IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE I.S GALADIMA:
Date: 3rd October, 2018. SUIT NO: NICN/YEN/25/2016
BETWEEN:
ENERUWU I. JOHN CLAIMANT
AND
RIVERS STATE LOCAL GOVERNMENT
SERVICE COMMISSION DEFENDANTS
ATTORNEY GENERAL OF RIVERS STATE
REPRESENTATION:
· ISAH SEIDU FOR THE CLAIMANT.
· CHIEF T. A. AMADI FOR THE 1st DEFENDANT.
· F. ONYIRI (ASSISTANT DIRECTOR, MOJ) FOR THE 2nd DEFENDANT.
JUDGEMENT:
This Complaint dated the 11th of February, 2016 seeks the following reliefs:
1. A declaration that the premature retirement of the Claimant vide a retrospective letter of retirement dated 30th December, 2015 who (ordinarily) had till 1st April, 2017 to remain in service is null, void and of no legal effect whatsoever.
2. An order of the Honorable Court restoring the Claimant back to his post as Director of Administration/Head of Personnel Management in Asari Toru Local Government Area of Rivers State, Nigeria and also all the Claimant’s entitlements attaching thereto with effect from 1st January, 2016.
3. An order restraining the Defendants from intimidating, harassing, embarrassing, victimizing, or further victimizing the Claimant for no just cause or without compliance with the relevant Public Service Rules of Rivers State.
4. Payment of N50,000,000.00 damages for unlawful retirement, embarrassment, harassment, and suffering suffered by sudden retirement without due compliance with the law and the rules covering the Claimant’s employment, by the Defendants.
5. An order of mandatory injunction compelling the Defendants to pay to the Claimant his salary, wages, emoluments and allowances from 1st January, 2016 to 1st April, 2017.
6. A declaration that the stoppage of the Claimant’s salary, emolument, and all his entitlements from 1st January, 2016 when he received the said letter of retirement to that extent that the Claimant is still in the employment of the Defendants and entitled to all the rights, privileges, and promotion due to the Claimant as a civil servant in their employment is unlawful.
7. A declaration that the Claimant’s employment subsists until 1st April, 2020.
ALTERNATIVELY:
8. An order for the payment of the Claimant’s salary from January 2016 and all his allowances, transport allowances, rent allowances, utility allowances, and any other benefits pertaining to the office as Director of Administration/Head Personnel Management in Asari Toru Local Government Area of Rivers State, Nigeria from 1st January, 2016 to 1st April, 2017.
The Claimant’s originating processes consist of the General Complaint above described accompanied by the Statement of Facts, list of exhibits and witness’ deposition on oath; a reply to the 1st Defendant’s Statement of Defence filed on the 15th of March, 2016 (as well as amended witness’ deposition and additional exhibits) and a reply to the 2nd Defendant’s Statement of Defence (along with additional witness’ deposition and exhibits) filed on the 8th of June, 2016. The 1st Defendant filed a Statement of Defence along with other accompanying processes on the 9th of March, 2016 while the 2nd Defendant’s Statement of Defence along with other processes were filed on the 14th of June, 2016.
SUMMARY OF FACTS:
A summary of the facts of this case is that the Claimant alleges that he was employed by the then Bonny Local Government of Rivers State of Nigeria sometime in February, 1980 but that the said employment was terminated on the orders of the 1st Defendant vide letter dated 22nd December, 1981. A fresh employment letter was purportedly issued to him with effect from 1st April, 1982 and the same was terminated in 1983 but in 1985, he was again reinstated. On the 23rd of March, 2015 the Claimant was allegedly compulsorily retired by the 1st Defendant for having purportedly served a minimum of 35 years in service. However, on the 21st of May, 2015 as a result of the reviewal of his case sequel to his protest letter dated 24th April, 2015, he was again reinstated. Regardless, by a letter dated 30th December, 2015 this Claimant’s employment was purportedly finally terminated by letter of compulsory retirement retrospectively. The Claimant alleges that he ordinarily has till the 1st of April, 2017 when he could have been retired legally from service or to 1st April, 2020, whichever date this Court determines appropriate.
THE CLAIMANT’S CASE:
The Claimant, relying on his testimonies contained in his various depositions as witness, adopted them and was cross examined on the 6th of December, 2017. In establishing his claims, he had tendered a total of 9 exhibits thus:
1. Exhibit “P 1” – Claimant’s Offer of Appointment dated 19/3/1982;
2. Exhibit “P 2” – Letter of retirement from the unified local government service dated 23/3/2015;
3. Exhibit “P 3” – Protest letter by the Claimant against forceful retirement from service dated 24/4/2015;
4. Exhibit “P 4” – Letter of reinstatement dated 25/5/2015;
5. Exhibit “P 5” – Retirement letter from unified local government dated 30/12/2015;
6. Exhibit “P 6” – Claimant’s solicitor’s letter to the Defendants dated 7/1/2016;
7. Exhibit “P 7” – CTC of Claimant’s record of service from 1/4/82;
8. Exhibit “P 8” – Upgrading letter dated 27/8/86;
9. Exhibit “P 9” – Letter of Offer of Appointment dated 15/2/80.
1st DEFENDANT’S CASE:
The 1st Defendant also called in one witness, Mrs. Patricia Amadi on the 1st of March, 2018 and through her, tendered a total of 7 exhibits thus:
1. Exhibit “DW 1” – Letter of Offer of Appointment dated 15th February, 1980 by Bonny Local Government (same a Claimant’s Exhibit “P9”);
2. Exhibit “DW 2” – Claimant’s record of service from 1st March, 1980 – January, 1993;
3. Exhibit “DW 3” – Claimant’s Promotional Progression Report;
4. Exhibit “DW 4” – Letter of appeal for accelerated promotion dated 6th February, 1994;
5. Exhibit “DW 5” – Letter dated 4th December, 1997 titled “RESULT OF THE 1996 PROMOTION INTERVIEW AND MY CASE FOR ACCELERATED ADVANCEMENT” dated 4/12/1997;
6. Exhibit “DW 6” – Letter dated 2nd June, 1999 titled “PLEA FOR ACCELERATED ADVANCEMENT” written by the Claimant to the 1st Defendant;
7. Exhibit “DW 7” – Letter titled “RELEASE OF WITHHELD PROMOTION” dated 30th August, 2010.
The witness too was cross examined by the Claimant’s Counsel.
2nd DEFENDANT’S CASE:
In his defense as well, the 2nd Defendant also called in the testimony of a sole witness one K. P. Okojaja, Esq. who relied on his deposition on oath dated 9th May, 2016 and also tendered 3 exhibits which are the same as the 1st Defendant’s Exhibits “DW 1”, “DW 2” and “DW 4”. He was also cross examined by the Claimant’s Counsel after adopting his deposition in open court.
CASE HISTORY:
At the conclusion of hearing, the parties submitted their written final addresses. The 1st Defendant submitted its written final address dated the 12th of March, 2018 but filed on the 14th of March, 2018. The Claimant’s written address was filed on the 20th of March, 2018. The 1st Defendant further filed a reply on points of law dated the 26th of March, 2018. Initially, the case was adjourned for the adoption of written addresses to the 26th of April, 2018 but a letter was written by the 2nd Defendant for an adjournment to May, 2018 on the ground that the substantive counsel handling the case on behalf of the 2nd Defendant, F. Onyiri, then Assistant Director River State Ministry of Justice was elevated to the bench and as such his file had to be reassigned to another State Counsel. That letter is dated 25th April, 2018. As a result of the application, this court had adjourned the case again to the 14th of June, 2018 for adoption of written addresses. However, on the said 14th June, 2018, the matter had to again be adjourned to the 26th of September, 2018 for parties to adopt their various addresses before this Court may deliver its judgment. Consideration had to be given to the intervening periods of the induction course for new Judges at the National Judicial Institute (NJI) in Abuja from June 25th to 4th July, 2018 as well as the period of Court vacation from 23rd July to 21st September, 2018 which explains the reason for adjourning these proceedings for the adoption of written addresses and the subsequent pronouncement of judgment to today.
1st DEFENDANT’S FINAL SUBMISSIONS:
The 1st Defendant summarized its defense in line with its statement provided that this Claimant was –
· Employed as a clerical assistant with effect from 1st March, 1980 by the Bonny Local Government Area vide letter dated the 15th of February, 1980 (and not 1st April, 1982 (sic* 19/3/82) as alleged by the Claimant).
· That from his record of service which was tendered in Court, the Claimant’s promotional progression and benefits are based on his employment in 1980.
· That even the Claimant had admitted that he was employed in 1980 as evidenced in two of his letters contained in his official file which are variously dated 6/2/94 and 4/12/97.
· That it was curious for the Claimant to begin to claim he was employed in 1982 as was done in his letter dated 30/8/2010 titled “RELEASE OF WITHHELD PROMOTION”.
· That the purported period of termination and reinstatement between 1983/85 of the Claimant’s employment, does not affect the computation of his service years which ought to be calculated from 1980.
· That the Claimant’s service record indicates he served for 35 years from 1980 and was eligible for retirement on the 30th of December, 2015 as a Director on salary grade level 16.
Based on these facts and in line with the evidence established in its behalf, the 1st Defendant raised a lone issue for determination thus – “Whether the Claimant has proved his entitlement to the reliefs sought in this suit?”
It was first argued by Chief T.A. Amadi for the 1st Defendant that the reliefs sought for are declaratory in nature and it is the Claimant’s burden to prove his case on a preponderance of evidence as required by law. That since parties are also bound by their pleadings, this court must find that the Claimant had pleaded two different dates of first employment. They are firstly, the letter of 15th of February, 1980 (which was allegedly terminated and which letter was accordingly never tendered by the Claimant in Court but by the 1st Defendant as exhibit “DW1”). (But it is necessary and note worthy here to state promptly that the Claimant did in fact tender the letter of 15th February, 1980 as Exhibit “P9”.)
Learned 1st Defendant’s Counsel said further that the 2nd employment letter dated 1st April, 1982 (sic *19/3/82) which was tendered as Exhibit “P2” (sic Exhibit “P1”) was allegedly terminated by the Bonny Local Government “without pay” for three years between 1983/85.
It is alleged that in his evidence on the 6th of December, 2017, the Claimant as CW1 had testified that he was compulsorily retired by the 1st Defendant by letter dated 23rd March, 2015 (Exhibit “P2”) on grounds of having served for 35 years but because of his protest letter dated 24th April, 2015, (Exhibit “P3”), he was reinstated vide Exhibit “P4” dated 21st May, 2015. He was however retired again by letter dated 30th December, 2015 notwithstanding that he had until 1st April 2017, or 1st April 2020 before he could be forcibly retired from service.
Learned Counsel believes it is the Claimant’s duty in law to determine his actual date of employment and his failure to produce his letter of employment in 1980 must be deemed to be fatal to his claims since by virtue of Section 167 (d) Evidence Act 2011 a person is guilty of withholding relevant evidence which if produced, would be against his interest.
Learned Counsel said that the Claimant as witness had admitted under cross examination that his employment is pensionable and that in deed, the 1st Defendant had the right to retire him upon attaining 35 years in service which accordingly is from 1980 – 2015 as evidenced in Exhibit P2. It is claimed also that the Claimant had also admitted under cross examination that he would not be surprised if his record of service (Exhibit DW2) indicates that his employment did in fact begin in 1980.
Mr. 1st Defendant’s Counsel submits that the Claimant’s case is riddled with material and fundamental contradictions and this court cannot be made to speculate on which facts are accurate. I have been referred to the case of MTN (NIG.) COMM LTD. V. HANSON (2017) 18 NWLR (part 1598) 394/428 where the Supreme Court accordingly deprecated this sought of scenario.
Furthermore, learned Counsel refers to certain paragraphs of the 1st Defendant’s Statement of Defence particularly paragraphs 4 (a) and (b), 6, 7, 8 and 13 to establish how the Claimant had in certain letters personally written by him to the 1st Defendant (i.e. Exhibits “DW 4”, “DW 5” and “DW 6”), admitted he was employed on the 1st of March, 1980 (sic* 15th February, 1980). But curiously in an averment contained in the Claimant’s reply to the 1st Defendant’s Statement of Defence in paragraph 6, the Claimant had said in response to those paragraphs above mentioned, that the “…same letters were in error and same altered by the (subsequent) letter dated 30th August, 2010 which is latter in time”. That the Claimant under cross examination, in fact denied signing the letters Exhibited as “DW 4”, “DW 5” and “DW 6” in spite of his admission in his paragraph 6 of his Reply to the 1st Defendant’s Statement of Defence and paragraph 9 of his Additional Witness’ Statement on Oath filed on 15/03/16. It is believed that the Claimant is estopped in law from denying making those 3 exhibits “DW 4”, “DW 5” and “DW 6” which were written by him and in which he clearly admits his employment commenced in 1980 and in his subsequent letter in which he said those three letters were made in error.
The 1st Defendant’s Counsel queried that why did it take the Claimant 13 years in the case of Exhibit “DW 5” and 16 years in Exhibit “DW 4” to alter his position as contained in Exhibit “DW 7” to the effect that he was employed in 1982? He is accordingly denied in law to approbate and reprobate at the same time – N.E.C.O V. TOKODE (2011) 5 NWLR (part 1239) 45/72 which is expressed in the maxim allegans contraria non est audiendus. I have been encouraged to examine the signatures carefully on Exhibits “P1”, “P3”, “DW 6”, “DW 7”, and the signature on the Claimant’s written statement on oath and utilizing the provision of Section 101 of the Evidence Act 2011, make necessary comparisons to determine whether the signatures are the same or not with the one on Exhibit “DW 4” and “DW 5”.
Also, it was submitted on that the Claimant did not deny the fact that the 1st Defendant had the right to correct any mistakes it may have made while computing the service period put in by the Claimant. As such, if there were any mistakes in the proper computation of the Claimant’s record of service, the 1st Defendant would ordinarily own up to such. But from every indication accordingly, the Claimant had served for 35 years in service from 1980 and was eligible for retirement in 2015. That where there are two equal equities, the first in time prevails and based on this premise, the conflict between 1980 or 1982 must be resolved in favor of the former which is besides consistent with the Claimant’s admission as well as the Defence witnesses’ testimonies in that regard.
Finally, the 1st Defendant’s Counsel wants me to find that the 1st Defendant’s defence is more probable and as such should refuse to grant any of the Claimant’s reliefs. Also, that relief 4 has not been proven to warrant the grant of same and relief 7 is purely academic since the Claimant had chosen to state during cross examination that 2017 is ordinarily his retirement year and not 2020. He said this case is frivolous and admonishes that the Claimant may make his legitimate claims for his retirement benefits effective 1st March, 2015 as directed in Exhibit “DW 7” which is his letter of retirement dated 30th December, 2015.
CLAIMANT’S FINAL SUBMISSIONS:
As stated earlier, the Claimant’s final written submissions was filed on the 20th of March, 2018. He testified personally and was cross examined on the 6th of December, 2017. He also tendered 9 exhibits enumerated above. He raised 2 issues for determination as follows:
1. Whether the Defendants were right to have relied on the Claimant’s letter of employment dated 15th February, 1980 to retire the Claimant from the public service of the Rivers State Government instead of the letter of employment dated 19th March, 1982 which is later in time?
2. Whether the Claimant is entitled in law and in fact to the reliefs sought as per the complaint issued on 11th February, 2016?
On issue one above, the Claimant’s Counsel Mr. Isah Seidu answered in the negative and adduced his reasons by first stating that a grave error was done when these Defendants acted upon the 1980 Claimant’s letter of employment to prematurely and forcefully retire him from service. It is argued that since there was another letter of employment dated 1982, the former one became moribund. This is accordingly given legal cognizance by the decision in ORJI V. D.T.M (NIG.) LTD (citation supplied) where the Court of Appeal had purportedly lucidly stated that where the content of a document is altered by another document, the former document no more enjoys any legal life. Based on this premise therefore, the computation of the Claimant’s years of service with the Defendants should be on the basis of the records contained in Exhibit “P 7” (and not on the basis of the 1st Defendant’s Exhibit “DW 2”). Accordingly, a grave error of law was occasioned as the 1980 letter is moribund. Counsel calls to aid the admissions of the 1st and 2nd Defendants’ witnesses at the proceedings of March, 2018 who had testified that they would be surprised to learn that there are two employment letters in the service record contrary to what is conventional. It is offered further that documents speak for themselves and their contents cannot be amended by oral testimonies as such it is irrelevant what the Claimant may have said in open Court concerning the contents of the already exhibited documents. I was referred to the case of YADIS (NIG.) LTD. V. GREAT NIGERIA INSURANCE CO. LTD (citation supplied) and to sections 125 (1) and 128 (1) and (3) of the Evidence Act. I was urged on to resolve this issue 1 in favor of the Claimant more so since his 1980 employment was duly terminated by no fault of his but due to administrative complexities at the instance of the Defendants. Counsel says he is gladdened by the decision in the case of EGWUATU V. DIAMOND BANK PLC (citation supplied) which stated that where an employee’s employment is determined due to acts of the employer, such an act amounts to constructive dismissal which attracts damages. It was pleaded for this Court to find that the 1982 letter of employment is latter in time as such computation of the Claimant’s years of service must commence from then and not from 1980.
On the second issue, that the letter of 30th December, 2015 (Exhibit “P 5”) which purports to retire the Claimant with effect from 1st March, 2015 tantamounts to promoting unfair labor practice which ought to be nullified by this Court. The case of ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION AND ANOR (citation supplied) was relied upon. Accordingly, where an employment has been retrospectively terminated, the proper order is the nullification of the termination. Another case of BAKARE V. LAGOS STATE CIVIL SERVICE COMMISSION (citation supplied) was relied upon and the Court there had accordingly held inter alia that “a decision to dismiss normally takes effect from the date of the decision or (on) a later date”. It is argued on that “an employer cannot dismiss or terminate his employee’s employment with retrospective effect with a view to denying him of his vested right to salary”. This is said to be the fulcrum of the decision in AKINTOYE V. HOTEL BON VOYAGE (citation supplied). As such, Exhibit “P 5” dated the 30th of December, 2015 but which retrospectively determined the Claimant’s employment with effect from 1st March, 2015 should be declared null and void by this Court. Further reliance was made on another decision this time accordingly by the Supreme Court in PHCN V. OFFOELO (citation supplied) whereat it was accordingly decided that “to force a public servant into retirement…before he gets to his retirement age, is an unusual action against him in his career.”
On whether the Claimant is entitled in law to reliefs 4 – 6 or 8 of the Claims, Counsel recommended the decision of the Court in ALABIDUN V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (citation supplied) where this Court per my brother Kanyip, J held that “once wrongful termination of appointment by the employer is established, then damages which is the amount the employee would have earned had his employment run up to the retirement age will follow.”
I have been urged on to discountenance any submission supposedly made on the contention that the Claimant has withheld relevant evidence. The Claimant had accordingly relied and tendered the employment letter of 15th February, 1980 by Bonny Local Government as Exhibit “P 9”.
On the 1st Defendant’s contentions as to admissions accordingly made by the Claimant in his pleadings, I have also been urged to refuse those assertions in line with the decision in the case of PETROLEUM AND GAS COMPANY LTD. V. HENCY NIGERIA LIMITED (citation supplied). It is offered further that the contradictions allegedly made in the Claimant’s case have nothing to do with the fact in issue and so cannot be considered material enough for discountenancing the evidence of the Claimant on record – see PADA V. GALADIMA (citation supplied). Again and for added measure, that regardless of any admissions made by the Claimant under cross examination, it is allegedly the Court’s duty to construe physical documents and not the parties’ interpretation of the contents of the documents. The case of YADIS (NIG.) LTD V. GREAT NIGERIA INSURANCE COMPANY LTD (citation supplied) was again relied upon where it was decided inter alia that “a document legally speaking speaks for itself and cannot speak through the testimonies of witnesses.”
The Claimant’s Counsel also feels that the 1st Defendant is guilty of withholding evidence which are vital for the just determination of this cause when it refused to produce the Exhibits “P 1” and “P 2” tendered by the Claimant. It is the supposition of Counsel that those documents emanated from the 1st Defendant and as such, it should have been produced for the Court’s consideration.
It was finally submitted that by virtue of Section 19 of this Court’s Act 2006, this Court is vested to award damages in circumstances where it has been established that there is unfair labor practice(s) contrary to known international labor standards as is accordingly the case here. As in the case in GOVERNOR OF EKITI STATE V. OJO (citation supplied), it is recommended that this court should hold that “…the court will award damages in lieu of reinstatement where reinstatement is not appropriate in the circumstances. Again, in contracts of employment with statutory flavor, the court will award damages where there is evidence of situations and circumstances which make it impossible to order reinstatement “.
Counsel urged this Court to grant his reliefs entirely.
1st DEFENDANT’S REPLY ON POINTS OF LAW:
In direct response to the issues and questions raised by the Claimant, the 1st Defendant elected to respond on points of law in his process filed on the 26th of March, 2018. The 1st Defendant Counsel first countered the assertion made by the Claimant’s Counsel about how moribund the letter of 1980 is by stating that this Court must find that the Claimant’s Counsel’s submission on this is misconceived in law because the case of ORJI V. DORJI TEXTILE MILLS (NIG.) LTD. (Supra) cited by him, is inapplicable to the facts and circumstances of this case in that that case is a Supreme Court decision and not of a Court of Appeal as alleged and the facts and decisions in that case do not support this Claimant’s. That the Supreme Court had concluded in the above cited case that the legal life of a document where altered, is transferred to the new document made subsequently. The 1st Defendant’s Counsel however seeks to distinguish this case from the above authority because he is certain the 1980 employment letter (tendered as Exhibit DW 1) is not at all dead or moribund having regards to the record of service (Exhibit DW 2) which shows a compendium of all the service benefits and promotions enjoyed by the Claimant based on his 1980 employment letter. He emphasized that the legal life of Exhibit DW 1 remained in force all through the 35 years reckoning of the Claimant’s employment and this was even admitted by the Claimant via Exhibits DW 4 and DW 5. As far as learned Counsel is also concerned Exhibit P 7 tendered by the Claimant goes to no issue.
Also, it was submitted on that the case of ORJI V. D.T.M. (NIG.) LTD further solidifies the 1st Defendant’s letter of retirement to the Claimant dated 30/12/2015 (Exhibit P 5) which was an affirmation of the earlier letter of retirement dated 23/3/2015 served on the Claimant. He said this Court must find that Exhibits DW 1, DW 4, DW 5 as well as Exhibit P 5 are all legally potent particularly if consideration is given to the decision in YARDIS (NIG.) LTD. V. GREAT NIG. INSURANCE CO. LTD (2007) (Supra) already cited and applied by the Claimant’s Counsel.
Finally, the 1st Defendant’s Counsel supplied that the cases cited by the learned Counsel for the Claimant in his paragraphs 7.2 to 7.7 of his written final address relate to cases of termination of appointment and or dismissal from service and not to retirement from service. In his reckoning therefore those cases cannot be apposite to the suit at hand. He concludes by submitting that no matter how brilliantly put the case of the Claimant might seem, the submissions made by his Counsel run counter to his claims and as such this Court must refuse to grant the reliefs sought by the Claimant by dismissing them.
It is necessary to state here that the 2nd Defendant did not file a final written address and has elected instead to adopt and rely on the submissions made by the 1st Defendant’s Counsel as his.
COURT’S DECISION:
I have gone through all the processes, submissions, and authorities brought before me in this suit. The issue for determination is whether the Claimant has proven his case entitling him to the reliefs sought. The main question this Court must answer while making findings on the issue raised is “when was the Claimant first employed for the purpose of determining when his retirement is or should be”? There are two contradictory letters of Offer of Appointment – one was in 1980 whereas the other was in 1982. According to the Claimant, his employment by the 1st Defendant in 1980 was constructively terminated by the notice contained in a circular/order dated 22nd December, 1981 which essentially was a letter that placed an embargo on the employment of staff from level 01 – 06 who were employed into the Local Government Service in 1980 from being “approved” as employees and so a fresh employment vide another offer of appointment was purportedly given to him in 1982 with the same terms and conditions as the first. To him, his employment record which though shows he was employed in 1980 is inaccurate and although he had complained before his “forceful” retirement in 2015, nothing was done to rectify the anomaly. The 1st Defendant’s Counsel however argued that the Claimant had admitted even in two letters written by the Claimant personally that his employment was in 1980 and not in 1982. The same 1st Defendant’s Counsel wonders why it took the Claimant such a long time to complain of the date on his official record of service which conflicts with his second letter of employment as a staff of the Local Government Service Commission of Rivers State. There is no doubt that the Claimant’s evaluation and progression while in service with the 1st Defendant was based on his employment status of 1980 and not of 1982 (as seen from Exhibits “DW 2” and “DW 3”). Does it then mean that the Claimant must now be estopped from claiming a different date from the one stated in his service record? Is it true that refusing him to continue till 2017 when he purportedly should have attained 35 years in service if his employment is computed from 1982, amounts to unfair labor practice which this Court must frown against? Furthermore, should this Court attach any evidential value on the 1982 record of service tendered by the Claimant as Exhibit “P 7”?
I have taken due diligence to reproduce the facts brought before me for adjudication but for the sake of making my findings on those specific questions above, it is necessary to repeat here that there are two contradictory letters of Offer of Appointment. The first is dated the 15/2/80 and the second, 19/3/82. It is this Claimant’s assertion that the first Offer of Appointment was terminated by letter dated 22nd December, 1981 with reference no LGSC/AD/194/93 which was tendered along with other documents, as Exhibit P 3. A cursory look at this document titled “EMBARGO ON EMPLOYMENT OF STAFF” seems to suggest that it was a circular addressed to all the then Secretaries of the local government areas in Rivers State. In the main body of that letter (from lines 9 – 12), it specifically stated that:
….
…This circular serves as a reminder to all secretaries and Assistant secretaries that the embargo on employment referred to above is still in force and is to be rightly enforced. Any secretary or Assistant Secretary who flouts this directive will be severely disciplined.
The Claimant’s assumption has been that this circular served as “a constructive termination” of his first appointment.
This view however cannot be upheld. This circular which this Claimant heavily relied upon, cannot be said to be a letter of termination of his employment. The obvious reason being that it does not specifically state within its contents and or form, that it is a letter terminating the Claimant’s employment and the fact that it was not even addressed directly to the Claimant, supports this premise. The law requires that for an employment with a statutory flavor to be legally and properly terminated or determined, such must be done strictly within the confines of the Service Rules establishing the authority. It is legally required therefore, that an employment which is clothed with statutory flavor as in this case, must be terminated in a way and manner prescribed by the relevant statute and any other manner of termination which is inconsistent with the statute will be null and void and of no effect . See the case of IBAMA V SPDC (NIG) LTD 2005 17 NWLR Pt. 954 AT 364. Granted though “it is an established principle of law backed by a plethora of decided cases that an employer is entitled to retire/terminate his employee’s appointment for good or for bad reason or no reason at all” (See the case of ISIEVWORE V. NEPA (2002) 13 NWLR (Pt.784)319); still, the case at hand was never terminated by the Defendants particularly the 1st Defendant. It does not even translate to a “constructive termination” of the Claimant’s employment as alleged because it never suggested the cessation of employment and even salaries which he began to enjoy from 1980 when he was first employed. The Claimant has not stated either in his pleadings or in his statement on oath that his salaries were stopped immediately after the above circular was issued. It is difficult to appreciate the premise therefore that the employment duly given vide letter of appointment dated 15/2/80 was terminated on 22/12/81.
Having arrived at the above finding, what weight must this Court attach on the subsequent letter of appointment dated 19/3/82?
I have considered the Claimant’s argument that a subsequent employment letter vitiates the existence of a previous one. I have even read the cited authority of ORJI V. DORJI TEXTILE MILLS AND ANOR (2009) 18 NWLR (Pt. 1173) 467 S.C. With all due respect, this case was decided by the Supreme Court in 2009 and not by the Court of Appeal as alleged by the Claimant’s Counsel and it was in respect of a different subject matter from the one presently before this Court. The crux or fulcrum of that case is the removal of the appellant from the membership of the Defendant/Respondent companies. The Supreme Court, upholding the concurrent findings of facts of both lower Courts held inter alia per Niki Tobi, JSC that:
“The documents relied upon by the appellant in respect of her status as director and shareholder of the company is dated 13th January, 1986. They are the documents which gave birth to the formation of the company…If any alteration or change is carried out in accordance with the provisions of the CAMA, a court of law is not competent to hold against the alteration or change. Sections 44 to 48 of CAMA provide for the alteration of the Memorandum and Articles of Association and where a company complies with the provisions, that is the end of the matter. The alteration in the Particulars of Directors was made on 23rd March, 1993; some seven years after the initial documents that gave birth to the companies. It is elementary law that where a document is altered, it no more enjoys any legal life. The document becomes moribund or dead to the extent of the alteration. Accordingly, a party cannot rely on such a document because it is lifeless in law. The existing legal life is transferred to the new document which provides for the alteration. It is in this regard, I come to the conclusion that the documents relied upon by the appellant in all her affidavits are totally spent in law and therefore of no evidential or probative value, and I so hold”. (Underlining mine).
I have made efforts to reproduce the portion relied upon by the learned Counsel to the Claimant in support of his argument that this Court must find that a second letter of appointment automatically makes a previous one (if any), moribund. Unfortunately, this was not the decision made by the Supreme Court in this regard. I am therefore not completely swayed by that authority. I do however reckon that where a subsequent agreement is made between two consenting parties which affects any changes in their previous legal status or positions, such subsequent agreement or contract shall become legally binding on them.
However, the fact that the Claimant received a subsequent letter of appointment from the 1st Defendant does not automatically make the 1st letter of appointment moribund because the 1st offer was never formally terminated as already found prior now. At best, it seems to me that the second letter merely reestablished the fact that the Claimant was employed by the 1st Defendant. By the time the second letter was issued to the Claimant, he had already been serving as an employee of the 1st Defendant for a period of precisely 2 years, 1 month and 4 days. If he had been terminated from the service, he should have been issued with a formal letter of termination stating clearly that he was no longer in the service of the 1st Defendant and his salaries will most obviously had been stopped. This was never the case and as such as technically sound as it may seem to argue that his employment begun in 1982 as opposed to 1980, the facts and circumstances of his case suggest otherwise. The onus still remains on the Claimant to establish that his employment begun in 1982 and perhaps if he had produced his confirmation letter to show his employment was considered to commence with effect from 1982, or if he had produced a witness who was employed along with him under similar circumstances and who is still in service, this Court would have been persuaded to believe this Claimant.
Considering the fact also that a civil servant is barred from holding more than one employment at a time, it seems to me that this Claimant constructively had two separate employments given the circumstance of this case. Since the first employment was never terminated, the subsequent employment letter given to him is technically a new appointment. Although this issue was never traversed by either Counsel, my opinion here is that unless the previous appointment is terminated, the subsequent one cannot have any legal value. Under employment law, the existence of a second or subsequent employment letter does not automatically extinguish a previous one. The prior employment must be legally and effectively determined by either the employer or the employee before a subsequent employment particularly by a civil servant, can become legal.
I therefore do not attach any evidential weight to Exhibit P 2 and I so hold. Invariably, I also refuse to attach any evidential significance to Exhibit P 7 which is purportedly a progressional record allegedly from 1982. I believe this record is not conclusive prove that the Claimant was employed in 1982 and that it was a document obtained in anticipation of this trial.
I however concur with the Defendants’ argument that the fact that the Claimant admitted in three Exhibits lettered “DW 4”, “DW 5”, and “DW 6” that he was employed into the service in 1980 and not 1982, further weakens the Claimant’s case. These exhibits are clear admissions by the Claimant that he knew exactly when the date of his employment is and has had a preconceived notion of when he will be expected to retire from service of the 1st Defendant. The fact that it took him long to make any formal complaints about the administrative issues surrounding his employment (up to 16 years), further suggests that he is guilty of standing by. I reckon therefore that I am not persuaded by the argument made by the Claimant that these are not material enough to refuse the grant of the reliefs sought. I consider them as material evidence establishing knowledge and belief as to when the Claimant was first employed and I so hold.
On the question of when the Claimant ought to compulsorily retire from the service of the 1st Defendant having attained 35 years in service, there is no doubt in my mind that having established that the Claimant’s letter of appointment of 15/2/80 is the legally effective one, the Claimant is expected to retire 35 years later or by the age of 60 years whichever comes first in accordance with the Rivers State Local Government Service Rules. Therefore, since he hasn’t attained 60 years of age, he is expected to retire voluntarily by the 1/3/2015 (inclusive of his terminal leave period). This is because his letter of employment states that his employment commenced with effect from 1/3/80. Thus said, the Claimant who had stayed on in service until 30/12/2015 had actually remained on longer and had enjoyed more time than he should have. I therefore hold that the Claimant’s terminal date is for all intents and purposes, on the 1/3/2015.
It is all so important to note that by the time of delivering this judgment, the Claimant should have retired either way and so it will be impossible to even make any order of reinstatement to his previous office held.
At this juncture, I must point out that there has been several administrative lapses caused by particularly the 1st Defendant which led to a very shoddy process of determining and computing the Claimant’s service periods. It is disheartening and quite embarrassing that they were two letters of Offer of Appointment issued to him bearing different dates without the prior one being terminated, no letter of confirmation of the Claimant’s employment (and if there were, it was never tendered to show that the Claimant’s employment was eventually confirmed), and that a letter was caused to be written retrospectively retiring him. The legal effect of retrospective letters of retirement was beautifully captured in the decision by my learned brother, Kanyip, J in AWA V. NSITF (Suit No. NICN/LA/464/2013) delivered on the 16/3/2015 where he had held inter alia that:
“Since I held that the claimant’s compulsory retirement was null and void, ordinarily the order to make is one of reinstatement; but this cannot be for the reason already given (which is) the claimant is passed his retirement age. What the claimant is entitled to, therefore, are his cumulative salaries and allowances and all other benefits accruable to him up to 22nd February 2015, the date he clocked 60 years of age. Exhibit C4 compulsorily retired the claimant with immediate effect i.e. from the date of Exhibit C4, namely, 30th May 2013. The claimant was due to retire on 22nd February 2015. This means that the claimant is entitled to his salaries, allowances and all other benefits for the period 30th May 2013 to 22nd February 2015. In line with the Supreme Court decision in Hon. Chigozie Eze & 147 ors v. Governor of Abia State & 2 ors, and this Court’s decision in Mahmud Bayo Alabidun v. President of the Federal Republic of Nigeria & anor, it is my order that the claimant is entitled to be paid his salary, allowances and all other benefits as are due to him for the period 30th May 2013 to 22nd February 2015 less the sum of Nine Million, One Hundred and Forty-Two Thousand, Seven Hundred and Thirty-One Naira, Seventy-Eight Kobo (N9,142,731.78k) (which) the claimant acknowledged receiving vide Exhibit C10. As I indicated and held in Mahmud Bayo Alabidun v. President of the Federal Republic of Nigeria & anor, having thus in the instant case ordered that the claimant is entitled to be paid his salary and allowances for the period 30th May 2013 to 22nd February 2015, when he was due to retire given the attainment of 60 years of age, the claim for general damages is not sustainable as to grant that would amount to double compensation, a windfall to say the least. See CCB (Nig.) Ltd v. Okonkwo [2001] 15 NWLR (Pt. 735) 114 CA. In any event, by Baba v. Nigerian Civil Aviation Training Centre [1986] 5 NWLR (Pt. 42) 514 CA, no compensation can be claimed in respect of injury done to the servant’s feelings by his dismissal or in respect of difficulty in finding an alternative work.”
In the instant case however, the Claimant was reinstated (Exhibit P 4) after the first letter dated 23/3/2015 (Exhibit P 2) purportedly retired him. The Defendants allege that when it was discovered that he was wrongly reinstated, another letter was eventually written to him (Exhibit P 5). The contents of Exhibit “P 5” however provide that the Claimant’s retirement is with effect from 1st March, 2015. It will indeed amount to an unfair Labour practice to allow the Defendants make reclaims of any benefits which the Claimant had enjoyed from 1/3/2015 (when he should have voluntarily retired), till 30/12/3015 when a second letter was written retiring him formally from the service. Not that such claim was made in the first place; It is impossible for me however, not to give consideration to the salaries and allowances he received from March ending to December ending 2015. Of course, his retirement benefits ought ordinarily to be computed less the salaries received from March to December, 2015. However, this Court reckons that his reinstatement was done voluntarily by the 1st Defendant even though the Claimant had written a protest letter dated 24/4/2015 (Exhibit P 3) against the first letter of retirement issued to him. I also reckon it is indeed wrong and illegal to retire an employee retrospectively – and this is most vehemently renounced.
Notwithstanding my premise above, I shall order the Defendants to fast track, process and pay the Claimant all outstanding entitlements being his retirement benefits, perquisites and emoluments, up to 1/3/2015. This must be done within 60 days of pronouncing this here judgment and in default, shall attract an interest of 10% per annum until final payment of the gross entitlements.
Finally and for the avoidance of any doubts, I shall not grant any of the 8 reliefs specifically sought by the Claimant save for the payment of his retirement entitlements which are legally due to him in the manner and within the period above ordered.
The Claimant is congratulated for giving 35 meritorious service years to his State and Local Government Areas and I wish him all the best in his retirement and future endeavors.
Case is dismissed without costs.
Delivered this 3rd day of October, 2018.
Hon. Justice I. S. Galadima,
Judge.
