Removal of HoS Does Not Translate to Retirement from Service, Court Rules

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By Alex Enumah

Justice S. H. Danjidda of the Yenagoa Division of the National Industrial Court (NIC) in Yenagoa has held that the removal of a state Head of Service (HoS) by a governor cannot automatically translate to the retirement from the civil service.

Justice Danjidda, who made the declaration in a judgment he delivered in a suit filed by a former Rivers State Head of Service, Mr. Samuel Longjohn, held that although the governor has the powers to appoint the HoS, his retirement from the civil service could only be done in line with the provisions of the civil service rules and regulations.

The judge held that since a Head of Service (HoS) is picked from the rank of permanent secretaries, it is a political appointment, which implies that once the occupant of the position is removed from office as HoS, he or she needs to return to his or her former position as permanent secretary if he or she has not reached the mandatory retirement age.

Longjohn had dragged the Rivers State government to court over his unlawful retirement after he was removed as HoS of Rivers State in December 2015.

Defendants in the suit are the Attorney General, Rivers State; Head of Service, Rivers State and the Civil Service Commission, Rivers State.

The claimant, Longjohn, was first employed by the Rivers State Government through the Civil Service Commission in 1995 as Director of Treasury.

On August 15, 1998, he was then appointed as Permanent Secretary and was subsequently appointed Head of Service of Rivers State by the then Governor Chibuike Amaechi in August 20, 2012.

He, however, said on July 15, 2015, he heard his purported removal as HoS on the orders of the state Governor, Mr. Nyesom Wike, on the radio.

He stated that upon his removal, the defendants continued payment of his salary up till December, 2015 when he was last paid.

The claimant argued that upon his removal from the position HoS, the defendants ought to have redeployed him as a Permanent Secretary to any other office or position as he had not attained the statutory age of retirement.

But this was not done, hence the legal action against the government.

He, therefore, prayed the court to set aside his retirement, order his reinstatement as well as payment of his outstanding emoluments.

In the suit filed on his behalf by his lawyer, UB, Obaika, the claimant therefore prayed the court for the following reliefs: “A declaration that his removal as HoS of Rivers State did not translate into his retirement from the state civil service”.

In arguing the suit, Obaika had submitted that the appointment of the claimant as Head of Service was pursuant to Section 208(1) 2 (b) of the Constitution which empowers the governor to appoint a person as Head of Service from the rank of Permanent Secretaries or its equivalent from the Civil Service of the State of Federation.

He, however, argued that the removal as Head of Service does not translate to retirement of the claimant from the Civil Service of Rivers State when he was yet to attain the statutory age 60 years of retirement on September 19, 2018.

Obaika argued that Section 208(5) of the Constitution expressly excludes the Head of Service and Permanent Secretary from holding office at the pleasure of the Governor, adding that a person appointed into the office of Head of Service remains in office at the expiration of the tenure of the appointing governor until attainment of the statutory age of 60 years or 35 years in service.

He further submitted that the claimant having been appointed Head of Service from the rank of Permanent Secretary, upon removal as Head of Service, should have reverted to the rank of permanent secretary and remains in the civil service until retirement.

He added that the removal of the claimant from the civil service could only be done in line with the provisions of the Civil Service Rules and Regulations.

He drew the court’s attention to the fundamental fact that while the claimant was appointed in writing through exhibit 1, he was not issued any letter of retirement and which fact meant that after his removal as Head of Service, claimant at all times remained in the Civil Service of Rivers State.

But the defendants in opposing the suit, argued that upon taking the oath of office of Head of Service, the claimant ceased to be a permanent secretary and when he was removed and no longer in the civil service of the state.

Defendants’ lawyer, Henry Amadi, while insisting that Longjohn as validly removed and not entitled to his claim, stressed that the claimant held his appointment at the pleasure of the governor.

Delivering his judgment, Justice Danjidda held that the powers of the governor to appoint or remove persons pursuant to Section 208 of the Constitution are not absolute.

The court stated that while by Section 208(3) & (4) the Head of Service must be appointed from the rank of permanent secretaries or equivalent rank in the civil service, the governor must have regard to Section 208(5) and the proviso thereto.

The court held that Section 208(5) makes a clear distinction between the category of officers who hold their office at the pleasure of the governor being the Secretary of the State Government and personal staff of the governor on one hand, and civil servants who do not hold their office at the pleasure of the governor on the other hand.

The court went on to hold that the appointment of the claimant had statutory favour having been appointed into the Rivers State Civil Service in 1995 through exhibits 1, 2 & 3 and therefore the invested the claimant with a legal status higher than the ordinary master and servant employment relationship.

“The removal of the claimant and stopping his salary and refusing to return him to his position of the permanent secretary is null and void as the defendants acted ultra-vires of their powers and the court will not hesitate to order for reinstatement”, the court held.

The court went ahead to award damages against the defendants:

“That the removal of the claimant by the defendants as Head of Civil Service of Rivers State does not in any way translate into his retirement from Civil Service of Rivers State.

“That upon the removal of the Claimant as the Head of Service of Rivers State, he returns to his position as Permanent Secretary in the Civil Service of Rivers State.

“That non-redeployment of the claimant as the Permanent Secretary and stoppage of his salary before his attaining his statutory age of retirement is unlawful and illegal and the defendants shall compute and pay to the claimant all his outstanding salaries and allowances from January 2016 to September 2018 within 30 days of this judgment failing which it shall attract 50 per cent interest per annum until the judgment is fully liquidated”, he judge held.