FOWOWE DAVID ADEROGBA VS FEDERAL MINISTRY OF SCIENCE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

DATE: 7^THNOVEMBER, 2018 SUIT NO. NICN/AK/89/2013

BETWEEN

FOWOWE DAVID ADEROGBA …………………… CLAIMANT

AND

1 FEDERAL MINISTRY OF SCIENCE AND TECHNOLOGY

2 ENGINEERING MATERIALS DEVELOPMENT INSTITUTE, AKURE ONDO STATE ……..DEFENDANTS

3 ENGINEER B.A OLUNLADE

REPRESENTATION

Olabode Shaba for the claimant

Ayo Laogun with him are Boluwatife Laderin, Folake Oroniyi, Olabisi Agberotimi, Monijesu Awotoye, Tope Olayiwola, Adeyemi Adelu, S.O Adebisifor the 2^nd and 3^rddefendants

JUDGMENT

This is a transferred matter from the Federal High Court to this Court on the 26^th of June, 2013 and by a further amended General Form of Complaint dated 8^th of January, 2016, the claimantis claiming against the defendants the following reliefs:

AN ORDER of the Court that a letter of retirement dated 24/12/2010 with reference No. EMDI/AK/PF090 retiring the plaintiff from service is null, void and of no effect as it was borne out of malice.
A Declaration that the retirement of the plaintiff from the service is improper as it failed to follow the guidelines of the 1^st and 2^nd defendants as to the retirement of their officers.
AN ORDER of the Court that the 3^rd defendant has no power to sign the said letter as he is incapacitated of signing same.
AN ORDER commanding the defendants to recall the plaintiff and pay up all his salaries and allowances from November, 2010 to when he will be called back.

It is the claimant’s case that he was a former employee of the 1^st and 2^nd defendants before he was retired by the 3^rd defendant sometimes in December, 2010. He testified that he was employed as a Chief Store Keeper vide a letter of appointment dated 21-12-98 and his appointment was confirmed on the 4^th of February, 2002. He stated that by a letter dated 11^thof April, 2008, he was promoted to the post of Senior Executive Officer. He continued that the management of the 2^nd defendant were involved in various fraudulent activities and that on the 24/09/09, the management brought some vouchers of some equipment and materials that were not supplied to the Audit department in the sum of N20 Million Naira for him to sign as the senior officer which he refused. That he notified the Economic and Financial Crimes Commission and sequel to that he was subjected to different form of harassment and the management later conspired with one Mrs. B.E Olowoyo to steal some items and stock documents in other to frame him up. That he reported to the Board of the 2^nd defendant but they refused to take any action, but in December, 2010 he was unjustly retired contrary to the Public Service Rules 2008. He contended that the 3^rd defendant is not competent to sign his retirement letter as it is supposed to be done with the approval of supervising Minister of the 1^st defendant in compliance with the Public Services Rules. That his retirement was done out of malice because of his zero tolerance to the various forms of corruption perpetrated by the management of the 2^nd defendant.

The 2^nd and 3^rd defendants jointly filed their statement of defence, in it they admitted that the claimant was a former employee of the 2^nd defendant through the National Agency for Science and Engineering Infrastructure (NASENI). That the 1^st defendant does not have any role to play in the appointment, promotion, discipline and discharge of staff of the 2^nd defendant.That the claimant was on a temporary appointment until same was confirmed by the NASENI through the 2^nd defendant in line with the Federal Civil Service Rule.They went on that during the pendency of the claimants’ employment he was issued various queries and warnings. According to the 2^nd and 3^rd defendants, sometimes in October, 2009the plaintiff through his solicitors wrote a petition containing unfounded allegations of fraud against the managementof the 2^nd and the 3^rd defendants to EFCC without routing same through appropriate channels. That the Director General of NASENI set up a six man administrative panel of enquiry to look into the allegations. That the claimant was invited and questions were put to him but he could not back his allegations with evidence. They continued that while compiling their report, on the just concluded investigation, the claimant wrote another petition captioned “Vote of no confidence on NASENI panel and continuation of official intimidation and Harassment in EMDI, Akure”. They continued that contrary to the Public Service Rules 04416, it was discovered that the claimant was duplicating official and classified documents while he was at the Audit unit and that in view of the activities of the claimant he was transferred to the store unit. That while at the store it was discovered that some items were missing and it set up a panel to that effect, that when the claimant was asked on the missing item, he had no substantial explanationto give. That sequel to that, a report was made when they discovered that the claimant made away with several stationery.

It is the defendants’further evidence that on the 3^rd and 5^th of November, 2010 the Senior Staff of NASENI met to consider appointment, promotion and discipline of Senior Staff in all its centers including that of the 2^nddefendant. That in view of the disciplinary actions against the claimant and his dissatisfactory response, the Senior Staff Committee recommended that he should be retired immediately and this was approved by the Director General of NASENI by a letter dated 22^nd of December, 2010.That the 3^rd defendant being the acting Director, implemented on same by signing the letter of retirement of the claimant. They stated further that this suit is incompetent as the defendants are not necessary parties to this suit and that no notice of the claimant’s intention to sue was served on the 2^nd and 3^rd defendants. They urged the Court to hold that claimant’s claim against them is frivolous, incompetent and should be dismissed with substantial cost.

During trial, the Claimant testified for himself as CW, he adopted his sworn depositions on oath as his evidence in the case, he also tendered some documents which were admitted in evidence and marked Exhibits F1-F12. The Defendants also testified through One Olusola Ilelaboye and Bankole Adeoye Olunlade, they adopted their sworn depositions on oath as their evidence in the case and tendered some documents which were admitted by the Court as Exhibits O-O2 and BA- BA1.

Parties caused their written addresses to be filed in compliance with the rules of this Court at the close of trial; the Defendants filed theirjoint final written address on the 17^th of May 2018 and framed five issues for the determination of the Court; the claimant on the other hand filled his final written address on the 29^th of June, 2018 and distilled a sole issue. Counsel on both divide canvassed some issues, salient portions of which would be referred to in the course of this judgment.

Having carefully perused the processes filed by parties and all accompanying documents, the testimonies of witnesses in the case and arguments of both learned counsel as distilled in their respective written addresses. It is clear that three major questions diffused from the argument of both parties that requires an answer are;

Whether or not the Court has jurisdiction to entertain this suit.
Whether or not the Necessary and /or proper parties are before this Court.
Whether or not the claimant is entitled to his claims.

It is pertinent to state on the outset that the 1^stdefendant failed and or neglected to exercise their right of defence. It is the law that where evidence given by a party to any proceedings or by his witness is not challenged by the opposite party who has the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallengedcogent and credible facts before it. This is because in such circumstance the evidence before the Court obviously swings in one direction as there is nothing from the other side to put on the imaginary scale as against the evidence given by or on behalf of the claimant. See the cases of Mabamije v. Otto [2016] LPELR -26058 SC; Mrs Esther Ighreriniovo v. S.C.C Nigeria Ltd & Ors [2013] LPELR- 20336SC; Amayo v. Erinmwingbovo [2006] LPELR- 458 SC. However, the claimant is not absolved from the burden placed on him by law in proving his case. The onus is still on the claimant to prove his case but with minimal evidential proof which lies on him. See also the case of Unity Bank v Olatunji [2013] 15 NWLR (Pt. 1378) 503, p. 531.

On issue one, it is the contention of the learned defence counsel that Section 32 of the National Agency for Science and Engineering Infrastructure Act provides for the service of pre-action notice before any suit is commenced against it. He also argued that the condition precedent to invoke the Court’s jurisdiction has not been met by the claimant and the failure thereof is tantamount to not activating the Court’s jurisdiction.The claimant on the other hand posited that Exhibit F9 dated 6^th of January, 2011 a letter from his counsel to the defendants is deemed to be sufficient notice on the defendants of his intention to institute an action against them.Jurisdiction of a Court is paramount in every given case before it. It is the basis upon which a Court is competent to adjudicate and determine a matter. It gives or takes life out of a case.Once a Court finds that its bereft of the competence to adjudicate on the case, it should hands off, as the law is that no matter how well conducted a case, it becomes a nullityand unavailing to the parties. See the case of N.N.P.C v. Orhiowasele [2013] 13 NWLR (PT.1371) PT 1371, P.211 @ 224 SC.

The Black’s law Dictionary Ninth Edition at page 1164 defines, notice as the “legal notification required by law or agreement, or imparted by operation of law as a result of some fact(such as the recording of an instrument).A person has notice of a fact or condition if that person (1) has actual knowledge of it (2) has received information about it (3) has reason to know about it (4) know about a related fact…” In the case of Ministry of Education, Anambra State v Asikpo [2014] 14 NWLR (Pt 1427) 351the Courtheld that “if a party being sued is one that requires pre-action notice to be given before the commencement of the action, the pre-action notice must be given, otherwise the case is incompetent and the Court is therefore robbed of jurisdiction… ” A perusal of the NASENI Act discloses at Section 32 “that no suit shall be commenced against the Agency before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the agency by the intending plaintiff or his agent…” A careful look at the record before the Court discloses that by Exhibit F9 a letter dated 6^th of January, 2011, the claimant through his counsel at the last paragraph thereof brought to the notice of the defendants thus;

“TAKE NOTICE that should you fail, neglect or refuse to comply with the above conditions our client is poised to institute a legal action against you and your establishment at the Court of competent jurisdiction without further recourse to you to ventilate his constitutional right (Underline mine for emphasis).Be informed too that all possible machinery has been galvanized to unveil the corrupt and sharp practices bedeviling the nook and crannies of your establishment through publication on the daily tabloid and to making sure the bad eggs among your [SIC] are shown out of the public service.”

The pertinent question to ask is does Exhibit F9 suffice as a notice in the circumstances of this case, Black’s law Dictionary quoted above at page 1164 is recaptured thus “A person has notice of a fact or condition if that person (1) has actual knowledge of it; (2) has received information about it; (3) has reason to know about it (4) knows about a related fact; or (5) is considered as having been able to ascertain it by checking an official filing recording” applying the above to this instant case, the defendants having received and acknowledged Exhibit F9 is deemed to have sufficient notice on the claimant’s intention to institute a legal action if his requests are not acceded to. The claimant filed this matter on the 21^st of March, 2011 at the Federal High Court, that is a period of one month and few days as provided by the NASENI Act, this in my respectful view is in compliance with the provisions of Section 32 of the NASENI Act. I say so in view of the fact that claimant’s letter dated 6^th January, 2011, i.e. exhibit F9, has brought to the notice of the defendants his intention to sue them, by exhibit F9 the defendants had received an information about claimant’s intention to sue if they failed to yield to his request.If I may ask what is the intendment of issuance and service of pre action notice to an opposing party? Primarily, it is to inform the opposing party about the claimant’s intention to institute an action against them so that they would not be taken by surprise. The Supreme Court per Coker, J.S.C (as he then was) in the case of Katsina Local Government v. Makudawa [1971] I NMLR 100 at 107, held that “the purpose of giving notice of claim to the Local Government of the claim against it is that it is not taken by surprise but to have adequate time to prepare to deal with the claim in its defence. The purpose of the notice is not to put hazards in the way of bringing litigation against it.”The case of Amadi v NNPC [2000] 10 NWLR (Pt.674) 76, is in all fours with this case and instructive.The appellant in that case was dismissed by the respondent and the appellant’s lawyers Idowu Sofola & Co wrote to his employer urging them to recall the appellant failing which they stated in that letter as in this instance that the appellant will institute an action against them. Supreme Court Per Mohammed Lawal Uwais JSC (CJN) as he then was; held amongst others that-

a legitimate regulation of access to Courts should not be directed at impeding ready access to the Courts. There is no provision in the Constitution for special privileges to any class or category of persons. Any statutory provision aimed at the protection of any class of persons from the exercise of the Court of its constitutional jurisdiction to determine the right of another citizen seems to me inconsistent with the provisions of Section 6 (6)(b) of the Constitution.”

By the provisions of Section 23 of the interpretation Act, Cap. I. 123 LFN 2007, which provides that “Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead.”. It is obvious from this provision that the fact that the claimant did not issue a separate pre action notice to the defendants, instead issued exhibit F9, wherein he gave notice of his intention to sue them suffices. My position is strengthened by the decision of the apex Court in Amadi’s case supra as well as the provision of the interpretation Act, supra. Consequent upon which I resolve this issue in favour of the claimant and hold that the claimant has complied with the provision of Section 32 of NASENI Act. Accordingly, the defendant’s objection is discountenanced as lacking in merit.

Next, is the contention of learned defence counsel that the 3^rd defendant is not a juristic person as he was sued in his individual capacity for the act he did in his official capacity as the acting director of the 2^nd defendant and also that the claimant refused to serve on the 3^rd defendant the originating process in this suit personally since he is been sued in his personal capacity. He cited in support the case of Union Beverages Ltd v. Adamite Co Ltd [1990] 7 NWLR (Pt 162) 348.The claimant on the service of process of this Court on the 3^rd defendant posited that by virtue of Order 7 Rule 2(2) of the National Industrial Court Rules, 2007 (the rule in force at the commencement of this suit) the service on defence counsel is proper service on the 3^rd defendant.What is the purpose of service of Court process, if I may ask? The answer was explained by Fatayi-Williams, JSC (as he then was) of blessed memory in United Nigeria Press Ltd. & Anor. v. Timothy Olu Adebanjo (1969) 1 All NLR 114 at 122 as follows:

In our opinion, the object of all types of service of processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of, and able to resist, if he may, that which is sought against him.

The apex Court in Hon. Bayo Adegbola v. Godwin Osiyi & Ors [2017]LPELR-42471SC;Held amongst others Per Bage JSC that,“…Section 36(2) of the Constitution of Nigeria 1999 provided that an opportunity should be provided for a person whose rights and obligation may be affected to make Representation to the administration of authority before that authority makes decision affecting that person..” See also Eimskip Ltd v Exquisite Ind (Nig) Ltd [2003] FWLR (Pt 151) 1842 SC.Also, where a process has been served on the adverse party, but in an improper manner, the question that arises is one of procedural jurisdiction, and therefore does not go to the root of the matter. See the case of Skenconsult Ltd v Ukey [1981] 12 NSCC 1. Now, what the defendants canvassed before the Court is not that the process was not served on the 3^rd defendant, but on the improper mode of service/non-personal service of the process on the 3^rd defendant since he was sued personally. To this claimant responded that service on the 3^rd defendant was effected through his counsel and thus a proper service. This assertion was not denied by learned defence counsel. What is the propriety or otherwise of effecting a Court process through a counsel. By Order 7 Rule 1(1)(a)and (b) of the National Industrial Court Rules 2017[Which is impair materia with Order 7 Rule 1(1) of the 2007 repealed rule in operation at the time this suit was filed]it provides that;

Any process or document required or authorized by these rules or ordered by the Court to be served on any person who is a party in a matter may be served as follows;

By handing a copy of the process or document to the person or to the person’s counsel; or;
By leaving a copy of the process or document at the person’s or the person’s counsel residence or place of business”

From the above cited Rules of this Court, it is safe to conclude that the process of this suit served on counsel for the defendants is a good service.This is in view of the fact thatin the instance case the learned defence counsel has always appeared in Court and announced his representation for the 3^rd defendant in this case, the import of which is that he has held himself out as the counsel for the 3^rd defendant and has equally filled processes for and on behalf of the 3^rd defendant. The 3^rd defendant has joined issues with the claimant in his statement of defence. Going by the decisions of the Court in the above cited cases, the purpose of service of the originating processes on the 3^rd defendant has been served, hence the 3^rd defendant is in law and by virtue of Section 169 of the Evidence Act 2011, estopped from denying receipt of the Originating processes in this case, having acted on the statement of claim by filing a defence in response to same. I so find and hold.

With regards to the defendants grouse that the 3^rd defendant is a non juristic personality, it is settled law that a juristic person includes natural person, human beings; companies incorporated with the Corporate Affairs Commission, Corporation’s sole with perpetual succession; certain incorporated associations are granted the status of law such as Registered Trade Union, partnership and friendly societies/sole proprietary. See the cases of PHCN Plc & Anor v A.G Sokoto & Anor [2014] LPELR 23815 CA; Shell Petroleum Development Company & Anor v Daniel Pessu [2014] LPELR 23825 CA. It is undoubtedly that for an action to be properly constituted to vest on the Court the requisite jurisdiction to adjudicate thereon there must be competent claimant and defendant as it is a general principle of law that only natural persons that is human beings and juristic or artificial persons such as body corporate are competent to sue or to be sued, failing which action is liable to be struck out. It is the law that non-existing person, natural or artificial person, cannot institute an action in Court, nor will an action be allowed to be maintained against a defendant, who as sued is not a legal person.Now in this instance, the 3^rd defendant as agreed by parties is the acting Director of the 2^nd defendant. The 3^rd defendant is a natural personand the alter ego of the 2^nddefendant whodoes and carries out functions on behalf of the 2^nd defendant. Therefore, the act of joining the 3^rd defendant alongside the 2^nd defendant is proper. He is a necessary party in this suit. It is in this light and all I have stated supra, that I find the argument of the defendants unmeritorious and hence discountenanced.

Regarding issue two, it is the submission of the learned defence counsel that the 2^nd and 3^rddefendants are not needed without the presence of NASENI for the determination of this suit as it is not possible for the 2^nd and 3^rd defendants to act suo motu without directives from the supervisory agency who is not a party to this suit.In his reaction, the learned claimant counsel argued that the 2^nd and 3^rd defendants sued in this instance are proper and necessary parties to be sued for the proper and effective determination of the plaintiff’s case. It is a well settled position of the law that to make a person, either natural or legal to be a party to an action is that he should be bound by the result of the action. The questions to be settled in the action must be questions which cannot be effectually and completely settled unless he is a party. The Court is expected in the interest of justice to join as plaintiff or defendant anyone who may have a stake in the subject matter of this suit or may be affected by the decision. See the cases of Ibegwura Ordu Azubuike v Peoples Democratic Party & ors [2014] SC 476/2012, Green v Green [1987]3 NWLR (Pt 610) 480; Anabaraonye v Nwakaihe [1997] 1 SCNJ 161 AT 166; Mobil v L.S.E.P [2002] 12 SCNJ.The questions to be asked for the purpose of determining if NASENI as argued by the defendants is a proper and/or necessary party to this suit are;

Is the cause or matter liable to be defeated by a non-joinder?
Is it possible to adjudicate on the cause or matter unless NASENI is added as a defendant?
Is NASENI a person who should have been joined in the first instance?
Is NASENI a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter?

In answering the above poser, recourse is had to the argument of both parties with regards to the stance of NASENI in this suit. Parties in this suit are ad idem that NASENI has supervisory roles over the 2^nd defendant, as the 2^nd defendant in this suit is an institute under the supervision of NASENI which is in turn a parastatal of the 1^stdefendant. Also by Section 9(b) of the NASENI Act Cap. N3 LFN, 2007[Hereafter called The Act], provides that;

The Agency shall have;

(b) science and engineering infrastructure development complexes, to be established in such places in Nigeria as may be selected by the Agency with the approval of the president.

It is clear from the above captured provision that the NASENI Act established the 2^nd defendant as one of its complexes in Nigeria under which the claimant was employed, it is trite that where a body or office is created by statute, the right to sue or be sued can be inferred notwithstanding the absence of express provision in this regard. See the case ofAccess Bank v. Agege Local Govt. & Anor [2016] LPELR-40491CA. Aclose examination of the claimant’s offer letter of appointment Exhibit F dated 21/12/98discloses that he was employed by the Governing Board of the Engineering Materials Development Institute Akure, i.e. the 2^nd defendant and at paragraph 3 of page 2 of his offer letter, it states thus;

Should you be convicted, by a court of law, of a criminal offence involving moral turpitude by reason of misconduct or gross inefficiency, or any reason(s) as may require the termination of your appointment, the notice of such termination shall be decided by the GoverningBoard.(underline mine for emphasis)”

From the above, it is reasonable and safe to state contrary to the argument of the defendants that NASENI is neither a proper and or necessary party for the effectual determination of this suit rather, it is the Governing Board of the 2^nd defendantwhose presence is vital to the determination of this suit.This is premised on the claimant’s letter of offer which by its paragraph 1 states. “I write on behalf of the Governing Board of the Engineering Material Development Institute, Akure, to Offer you an appointment as Chief Store Keeper in the Finance and Supply Department of this institute. The duties of the post shall be such as the Head of your Department may direct” The import of this paragraph is that the claimant was appointed by the Governing Board of the 2^nddefendant and by the highlighted paragraph 3 of the same letter empowers the Governing Board of the 2^nd defendant to terminate claimant’s appointment and not NASENI. It is my finding that NASENI as a body has nothing to do with the claimant and therefore, the non-joinder of NASENI in this suit is not fatal to the case of the claimant.Now what is the implication/effect of non-joinder of the Governing Board of the 2^nd defendant in this suit? By Order 13 Rules 14(1) and (2) of the National Industrial Court Rules, 2017 it is to the effect that;

No proceedings shall be defeated by reason of misjoinder or non-joinder of parties and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before the Court.”

The Board of the 2^nd defendant was constituted for the 2^nd defendant and any of its action or inaction binds the 2^nd defendant. It is of note that the claimant’s appointment was not terminated by the Governing Board but by the Chief executive Officer of the 2^nd defendant, the effect of which is to be considered hereafter in this judgment. It is in the light of this and by virtue of Order 13 Rule 14(1) and (2) of the rules of this Court, that I find that the non-joinder of the Governing Board in this suit is also not fatal to the claimant’s case. Accordingly, I hold that the interest of justice will be best served with the parties currently before this Court and thus the case can be effectually determined without NASENI. I resolve this issue in favour of the claimant.

Now, why this suit? It is the claimant’s grouse that the letter of retirement dated 24/12/2010 with reference No. EMDI/AK/PF090 retiring him from service is improper null, void and of no effectas it failed to follow the guidelines of the 1^st and 2^nd defendants as to the retirement of their officersand it was borne out of malice. It is the grievance of the claimant that the disciplinary procedure for a senior staff was not followed by the 2^nd and 3^rd defendants in accordance with the NASENI Act and the Public Service Rules. Learned counsel also posited that the Director General of NASENI, the supervisory agency, being an agent or delegate of the Governing Board of NASENI cannot competently further delegate the powers or duty to the 3^rd defendant. He stated that the act of the 3^rd defendant signing claimant’s letter of retirement is ultra-vires his duties as he does not have the power to so do rather it is the Vice Chairman of NASENI with the approval of the Board which the 3^rd defendant is not a member. The defendants on the other hand argued that the discipline and retirement of any staff of the 2^nd defendant is governed by the Act, learned defence counsel submitted that the retirement of the claimant followed the appropriate guideline of NASENI and does not have to follow that of the 1^st defendant as NASENI has its own Act governing the retirement.

It is trite law that where an employee contends that the termination of his employment is wrongful/unlawful, the onus is on him to discharge the burden of proof placed on him to tender before the Court the documents regulating or evincing his/her employment relationship; the terms and conditions of his employment; who can appoint and remove him; the circumstances under which his appointment can be terminated and that his appointment can only be terminated by a person or authority other than the defendant. In addition it is also important to plead all relevant materials and facts upon which to hinge the claimant’s claim to sustain his allegations of wrongful or unlawful termination of employment as the case may be. Having done this, the plaintiff/claimant is next required to call credible evidence in proof of the pleaded facts. In the case of Bukar Modu Aji v. Chad Basin Development Authority & Anor [2015] LPELR-24562SC;Okoro JSC in that case cited with approval the apex Court decision inAmodu v Amode [1990] 5NWLR (Pt 150) 356at 370; where Agbaje JSC( As he then was) had this to say;

Since it is the plaintiff’s case that his dismissal by the defendants is not in accordance with the terms and conditions of the contract of service, between them it is for the plaintiff to plead and prove the conditions of the contract of service in question. It is also for the plaintiff to plead and prove in what way the conditions of employment gave his employers a restricted right of dismissal over him.

See also the cases of Longe v First Bank Plc [2010] 6 NWLR (Pt 1189) 1 SC; Ajuzi v First Bank of Nigeria Plc [2016] LPELR 40459 CA.

In this instant case, the claimant tendered his letters of employment and confirmation of appointment, marked exhibits F and F1 as well as the condition of service of the 2^nd defendant. A perusal of these documents reveal that the claimants’ appointment by Exhibits F at the second paragraph states that;“the appointment is subject to the NASENI Decree 33 of 1992, (which established the constitution of the Engineering Materials Development Institutions) governing appointment in the NASENI Conditions of Service and the scheme of service, as a public sector institution”From the foregoing it is right to state that the claimant employment is regulated by the Act.In the case of University of Ilorin v Abe [2003] FWLR (Pt 164) 267 at 278, the Court of Appeal per Amaizu JCA held that;

it is now firmly established by a long line of decided cases by the Apex Court that when an office or employment has a statutory flavour, in the sense that the conditions of service of an employee are provided for and protected by a statute or regulation made thereunder, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/ servant relationship, in order to discipline such a person, the procedure laid down in the relevant, statute or regulation must be complied with strictly.

An employment protected by statute is one governed by the enabling statutory provision, in that the terms and conditions of employment or service have been specifically provided for and protected by statute. A contract of employment in which the condition for appointment and determination of such appointment are governed by prescribed conditions in the relevant statute so that the terms are regulated by the provisions of the statute, is a contract with statutory flavour. Where therefore the terms and conditions of the contract of employment or service are specifically provided for by the statute or regulation made there under as in this instance, the contract is said to be protected by statute or in other words an employment with statutory flavour. See the case of Mr. Syed Qamar Ahmed v. Ahmadu Bello University (ABU) & Anor [2016] LPELR 40261 CA. Therefore it flows from the above that the employment of claimant in this suit is statutorily governed since it is regulated by an Act of the National Assembly [The Act]. From the above, it is apposite to state that for an effective determination of the contract, the procedure followed in determining the contract of the claimant must satisfy the provisions in the statue and a breach of which renders the act null and void as there must be strict adherence to the procedure enunciated by the Act in ensuring compliance with the principles of natural justice. The case of Federal Polytechnic, Ede & Ors v. Alhaji Lukeman Ademola Oyebanji [2012] LPELR 19696 CA, is on point.

It is trite that where an employee is being alleged of misconduct, the employer must notify him by issuance of written notice or query asserting the grounds of the accusation, give him a chance to defend the contention against him, invite him to make representation or defence thereto, be given an opportunity to cross examine his indicters, be permitted to call witnesses if any and the documents to be used against him must be given to him before the date of the panel to enable him adequately prepare for what he would face at the panel of the disciplinary committee. See the case of Pam v Mohammed [2008] 16 NWLR (Pt 112) 1 SC.A close examination of item 6 of the second schedule of the Act, on Discipline provides thus;

Notwithstanding the provisions of paragraph 5(2) of this schedule, discipline of the various categories of members of staff of institutions under the Agency shall be as follows that is;- (b) in the case of senior members of staff below the rank of deputy and assistantdirectors-

all disciplinary cases shall be enquired into by the internal Management Committee of the institution, under the chairmanship of the managing director or director of the institution;
the report of the internal Management Committee shall be submitted to the Board of Directors of the institutions; and

the decision of the Board of Director shall be final and binding on the institution”

It is deducible from the above cited procedure that all disciplinary process shall be looked into by the Internal Management Committee under the chairmanship of the Managing Director or Director of the institution; thereafter a report from the committee will be forwarded to the Board of Directors of the institution and the decision of the Board shall be final and binding on the institution.In this instant case and from the record of the Court, the claimant vide exhibit O was at various times issued queries between the period of 2001 and 2010. The defendants by exhibit O1, warned the claimant of all the alleged misconduct leveled against him. The claimant on the 4^th and 5^th of August, 2010 was issued a query on the ground that he was absent from duty and also to explain discrepancies in store stocks. The claimant answered these queries on the 11^th of August, 2010. There is nothing on record to prove that the allegation against the claimant was enquired under the chairmanship of the Managing Director or Director of the institution also no report from the Internal Management Committee submitted to the Board of Directors of the 2^nd defendant. It is the defendants’ submission that in view of the disciplinary actions against the claimant and his dissatisfactory response, the Senior staff committee recommended that he should be retired immediately and this was approved by the Director General of NASENI by a letter dated 22^nd of December, 2010 they tendered exhibit BA, a document from the Senior Staff Committee meeting held on the 3^rd and 5^thof November, 2010 intimating the 3^rd defendant to retire the claimant. Can exhibit BA constitute a report from the committee forwarded to the Board of Directors of the 2^nd defendant? I answer this in the negative as the Act unambiguously expressed that areport from the Internal Management Committee should be submitted to the Board of Directors of the 2^nd defendant, after an enquiry by the internal management Committee, rather what is before the Court is a recommendation from the Senior Staff Committee informing the 3^rd defendant to retire the claimant immediately and not a report as the defendant would want the Court to believe.There is equally no evidence on record to show that there was any enquiry into the claimant’s issue/allegation before the Senior Staff Committee recommended his retirement with immediate effect. It is plain on exhibit F, id est the offer of appointment of the claimant that he was appointed by the Governing Board/Board of directors of the 2^nd defendant. It is long settled principle of law that he who has the power to appoint has the power to fire. In fact claimant’s letter of appointment specifically stated that it is the Governing Board that is empowered to determine his employment. This position is more strengthened by item 6(iii) of the second schedule of the Act, which is that the Governing Board of the 2^nd defendant who appointed the claimant, can also terminate his appointment. Now was the claimant’s appointment determined by the Governing Board? I also answer this question in the negative. This is in view of the fact that the procedure through which the claimant was retired from the employment of the defendant is defective as there is a clear indication that the defendants failed to follow the procedure listed in the Act, in determining its relationship with the claimant. It is also plain that the claimant was not afforded fair hearing when the defendants skipped the required stages as provided for in item 6 of the second schedule of the Act. Exhibit F, i.e. claimant’s offer of appointment letter made his appointment subject to the provisions of the Act and the Public Service Rules, his appointment being pensionable as in the Federal Public Service. Rule 030601 of Public Service Rules, with regards to retirement of any Public Officer, the officer sought to be retired must be given an opportunity to be heard before a report could be submitted for consideration before retirement. The failure of the defendants to follow the procedures as set in the Act as well as the Public Service Rules (which is applicable to all government agencies including the 2^nd defendant,) is in breach of the claimant’s contract of employment which is regulated vide Statute. The appointment of the claimant cannot be determined other than in the way prescribed by the Act, and any manner of termination that is inconsistent with the provision of the statute or conditions of appointment is null and void. See the cases of Obanye v. Union Bank Nig. Plc [2018] LPELR-44702 SC; Osuah v Edo Broadcasting Service [2005] AFWLR (Pt. 253) 773 @ 787. Neither the 3^rd defendant nor the Senior Staff Committee of the 2^nd defendant can arrogate to themselves power not donated to them in brazen disregard to the statute. It is upon this basis that I find that the claimant’s letter of retirement dated the 24^th of December, 2010 is null, void and of no effect, it is accordingly, set aside. I so hold

It is the claimant’s claims that he is entitled to be reinstated to his erstwhile position and all his salaries and allowances paid to him. I have held earlier in this judgment that claimant’s retirement is unlawful and declared null and void, It is the law that where the termination of an employment with statutory flavour has been declared unlawful, the effect is thatparties are back to the status quo. Thus, the said dismissed employee or whose employment is terminated must automatically be reinstated.See the cases of Bassey v. A.G. Akwa Ibom State & ORS [2016] LPELR- 41244CA; Odiase v. Auchi Polytechnic(1998)4 NWLR (PT 546) 477 CA.It is in view of the constant position of the law on this as reiterated in the above cited cases that I find that claimant is entitled to be reinstated. Consequent upon which I order that the claimant should be reinstated back to the services of the 2^nd defendant and also that all his salaries and allowances be paid from the period of 24^th of December, 2010 when he was unlawfully retired to the time he would be recalled.

On the whole, it is obvious that the Claimant’s claims succeeds in the entirety and for the avoidance of doubt, I declare and Order as follows:

That the retirement of the claimant is unlawful, and thus null, void and of no effect.
That the 3^rd defendant’s action in dismissing the claimant is ultra vires his position.
That the letter of retirement dated 24^th of December, 2010 and signed by the 3^rd defendant is set aside.
That the claimant be reinstated back to the employment of the 2^nd defendant with immediate effect.
That the Claimant be paid all his emoluments from 24^th of December, 2010 till the date of his reinstatement.
Cost is accessed at N100,000.00 to be paid to the claimant.
That the entire decision of this Court is to be complied with within 30 days of this judgment failing which the judgment sum awarded which includes his salaries as ordered at paragraph 5 is to attract 10% interest per annum.