The possibility of a final resolution of the burning question on whether or not the President possesses the power to extend the tenure of a civil/public servant (whose tenure is regulated by law) is in sight.
A National Industrial Court in Abuja will, on February 10, 2021 hear a suit seeking to, among others, void the purported extension of the tenure of the Comptroller General of Immigration (CGI), Muhammed Babandede by President Muhammadu Buhari, on the grounds that it is unlawful.
The suit, marked: NICN/ABJ/196/2020 essentially, wants the court to determine whether Babandede, who was recruited into the Nigerian Immigration Service (NIS) on September 13, 1985 could, under any guise, lawfully remain in office beyond September 12, 2020 in the face of the provisions of the Public Service Rules (PSRs) 100238 and 020810 made pursuant to sections 160, 169 and 172 of the Constitution and sections 2 and 3 of the NIS Act 2015.
The suit filed by a lawyer, Daniel Makolo has, as defendants, the Minister of Interior; the Director/Secretary of the Civil Defence, Correctional, Fire and Immigration Services Board (CDCFIB); Babandede; the NIS; the Head of Service of the Federation (HOSF), Federal Civil Service Commission (FCSC); the National Security Adviser (NSA); the Secretary to the Government of the Federation (SGF) and the Attorney General of the Federation (AGF).
In a supporting affidavit, Makalo stated that Babandede has, since becoming the CGI, strictly applied the Public Service Rules (PSRs) 100238 and 020810, which provides the mandatory retirement ages and tenure of service for public officers, but that it is unjust that he is now unwilling to apply the same rules to himself.
Makolo added that Babandede ought to observe the provisions of the PSRs 100238 and 020810 like other civil servants employed at the same time with him in 1985 who have since vacated office in compliance with the rules.
He added that by the provisions of the PSRs, Babandede ought to proceed on the mandatory retirement leave on June 13, 2020 preparatory to his formal exit from service on September 12, 2020, and that having ignored the provisions, all his actions, including the disbursement of funds are illegal, and he should be compelled to make refund.
“The refusal, failure and neglect of the fourth defendant to proceed on retirement fuels the speculation that his failure to proceed on his pre-retirement leave is in his bid to cover his corrupt practices and those of his benefactors and protégé,” Makolo added.
He wants the court to declare among others, that no known laws allow the President, either acting by himself or through any agency of government, to extend the period of service of a public officer with statutory tenure.
Makolo also wants the court to declare that Babandede’s (the fourth defendant’s) tenure, as a public officer employed on September 13, 1985 as an Immigration Officer, has ended and his further stay in office “is arbitrary, unlawful, immoral and unconstitutional.”
Most of the respondents have, by their notices of preliminary objection, challenged the competence of the suit and the plaintiff’s locus standi (right to initiate the action).
In their counter-affidavit, both the NSA and the AGF argued that the President was in order and that he (the President) is empowered by the Constitution to determine the tenure of officers occupying offices listed in Section 171(2) of the Constitution.
“The President, under Section 171(1), (2)(d) of the Constitution has the constitutional power to power to appoint the fourth defendant as the CGI, remove him or extend his tenure, and such powers give an unlimited discretion to the President.
“Any attempt to consider the appointment of the fourth defendant as illegal will unavoidably result in declaring Section 171(1), (2)(d) of the Constitution as unconstitutional, which is no doubt, outrageous.”
The SGF, among several arguments, faulted the suit on the grounds that the plaintiff, though claimed Babandede’s tenure had expired, failed to provide any “evidence showing that the appointment of the fourth defendant (Babandede) expired as alleged.”
On its part, the FCSC denied any wrongdoing and prayed the court to strike off its name as the seventh defendant on the grounds that no cause of action was established against it.
The FCSC, in its counter-affidavit, agreed with the plaintiff that public service has statutory tenure, which could not be extended under any guise.
It agreed that the PSR 020810 provides, among others, that “no officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service, whichever is earlier.”
Makolo, in reaction to the SGF’s claim that the plaintiff did not provide evidence, showing when Babandede’s tenure would expire, tendered a copy of the Federal Republic of Nigeria official gazette No: 7 published in Lagos on February 2, 1989, with Babandede’s name reflected in volume 76 at page 74, indicating that the CGI was recruited into the NIS on September 13, 1985.
As against the argument by the NSA and AGF, Makolo, in his reply, contended that the power to appoint, granted to the President under Section 171(1) of the Constitution cannot be exercised in breach of the provisions of the same Constitution.
“In exercising his powers under Section 171(1) of the Constitution, the President must comply with the provisions of the Constitution as well as relevant subsidiary legislation, particularly the Federal Government Public Service Rules and the NIS Act 2015.
“As such, any appointment made into the position of the Comptroller-General of Immigration as well as a head of any extra-ministerial department of the government of the federation, as well as tenure, must comply strictly with the provisions of extant laws.”
