Mrs Royde M.A. Ekanem -VS- Maritime Academy of Nigeria,Oron

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP: HON. JUSTICE M. N ESOWE

DATE: 10^TH DECEMBER, 2019 SUIT NO: NICN/UY/14/2016

BETWEEN

MRS ROYDE M.A EKANEM …………………………. CLAIMANT

AND

MARITIME ACADEMY OF NIGERIA, ORON …. DEFENDANT

REPRESENTATION

IME AKPAN Esq. for the Claimant.

VICTOR UKPE Esq. for the Defendant

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide a Complaint filed 18^th July, 2016, seeking the following reliefs:

A DECLARATION that the contract of employment between the Claimant and the Defendant is still subsisting, same having not been terminated or determined

A DECLARATION that the fraud perpetrated by the Defendant through the Rector, Dr Engineer Antony Anayo Ishiodo and the Head of Bursary Department, Mr F.A Kayode by using the instrumentality of Naval Officers to assault and chase the Claimant out of office and purportedly issued series of erroneous letters of retirement when the Claimant year of service shall terminate in 2020 are illegal and unlawful

A DECLARATION that the Claimant is entitled to all her salaries, emoluments and other benefits that may accrue to her office and status in the service of the Defendant

AN ORDER of Court directing the Defendant to compute, release and pay over to the Claimant all her salaries, emoluments and fringe benefits that may have accrued to the Claimant in her position in service of the Defendant from 16^th October, 2015 till date and continuously so till her appointment is determined and she is retired in the service of the Defendant in accordance with the law

AN ORDER that the Defendant pay interest on held salaries, emoluments and other fringe benefits at 25% prevailing bank interest rate per month to the Claimant

Cost of this action to be assessed at N500,000.00 (Five Hundred Thousand Naira) only

In the alternative, the Claimant claims against the Defendant N50,000,000.00 (Fifty Million Naira) only as general damages for breach of contract of employment.

SUMMARY OF FACTS

According to the Claimant, she was employed in the services of the Federal Civil Service on 6^th July, 1983 where her services where thereafter transferred to the Maritime Academy of Nigeria vide the letter dated 30^th June, 2014 and she was absolved by the Defendant vide an earlier letter dated 21^st May, 2012. Initially, she was to retire in October, 2015 on attaining 60 years of age. However, due to the Retirement Age of Staff of Polytechnics and Colleges of Education (Harmonisation) Act, 2012, which Act sets the retirement age of staff of tertiary institutions at 65 years, the retirement age of the Claimant extended to 2020. The Claimant was in the service of the Defendant until April 26^th, 2016 when at the behest of the Acting Rector and the Head of Bursary, Naval Officers threw her away from her office. It is the case of the Claimant that she was issued a number of fake, erroneous and back dated letters of retirement by the Defendant whilst still keeping her in their employment.

On the part of the Defendant, she stated in her amended statement of defence dated 20^th June, 2018 and filed 22^nd June, 2018that the Maritime Academy of Nigeria, Oron, is a Monotechnic, not a Polytechnic, established for the purpose of providing instruction/training to persons interested in Maritime Technology/Maritime Science. That being a monotechnic, the Retirement Age of Staff of Polytechnic and Colleges of Education (Harmonisation) Act, 2012 is not applicable to Defendant. That the aforementioned Act sets the retirement age at 65 years for academic staff and not for non-academic staff. The Claimant is a non-academic staff whose retirement becomes due on having put in 35 years of service or on attaining 60 years of age. The Claimant attained 60 years of age in October, 2015 in which her appointment terminated. That management of Defendant never approved the implementation of the Harmonisation Act, 2012. Granted, Defendant recalled some of it staff it had earlier retired on attaining 60 years. However, on realizing the error, it asked them to proceed on their earlier retirement. Defendant therefore asked the Court to dismiss Claimant’s case.

It must be noted that before amending their statement of Defence, the Defendant filed an earlier statement of defence dated 15^th September, 2016 to which the Claimant filed a reply to. In Claimant’s reply dated 20^th January, 2017 and filed 24^th January, 2017, Claimant stated that it is not true that the Defendant is a monotechnic and that the Harmonisation Act is not applicable to her. That it was the Defendant who refused to retire her on attaining 60 years despite her letters to them notifying them of her retirement issue. Defendant implemented the Harmonisation Act, 2012 when it recalled some of its staff it had earlier retired on attaining 60 years.

COMMENCEMENT OF HEARING

Hearing in this suit commenced on the 15^th of March, 2017 to which the Claimant herself testified as CW1. She adopted her witness statement on oath, tendered documents admitted as exhibits and she was cross examined. Thereafter, Claimant closed her case on 18^th January, 2018.

On their part, the Defendant opened their defence on the 25^th September, 2018 by calling one Eyong Ibiang Esq. who testified on behalf of the Defendant as DW1. He adopted his witness statement on oath, tendered documents admitted in evidence as exhibits and he was cross examined. Subsequently, Defendant closed their defence on 12^th March, 2019.

Thereafter, the case was adjourned to enable parties file, exchange and adopt their final written addresses.

DEFENDANT’S FINAL WRITTEN ADDRESS

In Defendant’s final written address dated 25^th March, 2019 and filed 28^th March, 2019, Learned Counsel to Defendant formulated three (3) issues for determination:

Whether the Retirement Age of Staff of Polytechnics and Colleges of Education (Harmonisation) Act, 2012 is applicable to Non-Academic Staff and by extension, the Claimant.

Whether the Claimant having accepted to retire at the age of 60years and processed her retirement which the Defendant was at the point of paying terminal benefits can resile same.

Whether theClaimant has proved her case and entitled to the reliefs sought

ARGUMENT

ON ISSUE 1: Whether the Retirement Age of Staff of Polytechnics and Colleges of Education (Harmonisation) Act, 2012 is applicable to Non-Academic Staff and by extension, the Claimant.

Learned Counsel, while submitting that the Harmonisation Act does not include non-academic staff, referred the Court to Section 1 and Section 3 of the Harmonisation Act. Section 1 provides:

The retirement age for staff of Polytechnics and Colleges of Education is harmonized

Section 3 provides:

Retirement age for academic staff

(1) Notwithstanding any to the contrary in the Pension Reform Act, the compulsory retirement age of an Academic Staff of Polytechnics and Colleges of Education shall be sixty-five years.

(2) A law or rule requiring a person to retire from the Public Service after thirty-five years shall not apply to Academic Staff of Polytechnics and Colleges of education.

It is the submission of Learned Counsel that from the foregoing, the Harmonisation Act does not apply to the Claimant being a non-academic staff.

ON ISSUE 2: Whether the Claimant having accepted to retire at the age of 60years and processed her retirement which the Defendant was at the point of paying terminal benefits can resile same.

Learned Counsel to Defendant submitted that the law is trite that where a person causes another to believe and act upon a state of affair, that person is estopped from acting otherwise. He referred Court to Amaechi V. INEC &Ors (2008) Vol.158 LRCN Page 1 @ 48 ratio 66. That in the case herein, arising from the fact that the Claimant has always known that her retirement was in October, 2015 as well as given series of letters and memo showing Claimant’s acceptance to retire from service in 2015, she cannot be allowed to turn around now and say she was not due for retirement in October, 2015.

ON ISSUE 3: Whether the Claimant has proved her case and entitled to the reliefs sought

Learned Counsel submitted that for the Claimant to benefit for the Harmonisation Act, she needed to prove that she is an academic staff and that her employer is either a polytechnic or college of education. That failure to prove this is fatal to her case.

Responding to the Claimant’s pleadings that she worked until April, 2016 before she was forced out of her office as well as the documents tendered as Exhibit C5 which purports to be the time book of the Defendant, Learned Counsel to Defendant urged the Court to expunge same from its record as the name of the Defendant is not on the said time book. That assuming without conceding that the Claimant worked with the Defendant after she was due for retirement in October, 2015, then who did the Claimant report to as confidential secretary after she was served with a letter of retirement which she acknowledged on 01/02/2016.

It is the submission of Learned Counsel that the Claimant has not proved her case to be entitled to the reliefs sought. That this suit is founded on ignorance of the law. Claimant was ready for retirement in October, 2015; retirement benefits were duly processed when she suddenly changed her mind and asserted that her retirement was regulated by the Retirement Age for Staff of Polytechnics and Colleges of Education (Harmonisation) Act, 2012.

Learned Counsel therefore urged the Court to dismiss this case with cost.

CLAIMANT’S FINAL WRITTEN ADDRESS

In Claimant’s final written address dated 15^th October, 2019 and filed16th October, 2019, Learned Counsel to Claimant adopted same issues formulated by the Defendant, that is:

Whether the Retirement Age of Staff of Polytechnics and Colleges of Education (Harmonisation) Act, 2012 is applicable to Non-Academic Staff and by extension, the Claimant.

Whether the Claimant having accepted to retire at the age of 60years and processed her retirement which the Defendant was at the point of paying terminal benefits can resile same.

Whether the Claimant has proved her case and entitled to the reliefs sought

ARGUMENT

ON ISSUE 1: Whether the Retirement Age of Staff of Polytechnics and Colleges of Education (Harmonisation) Act, 2012 is applicable to Non-Academic Staff and by extension, the Claimant.

Learned Counsel to Claimant submitted that the Harmonisation Act applies to the Claimant especially when it was the Defendant who made the Claimant believed that she cannot go on retirement at the age of 60 years as a non-academic staff in the light of the Harmonisation Act. He relied on Exhibits C8; C6; D1; D2 & D3. He also relied on Section 169 of Evidence Act, 2011.

ON ISSUE 2: Whether the Claimant having accepted to retire at the age of 60years and processed her retirement which the Defendant was at the point of paying terminal benefits can resile same.

Learned Counsel submitted that although it was the duty of the Defendant to notify the Claimant of her retirement, it was the Claimant who notified the Defendant of her retirement date. However, the Defendant failed/refused to respond to Claimant as it was enjoying the services of the Claimant and having implemented the Harmonisation Act, 2012 for non-academic staff.

He therefore urged the Court to resolve issue 2 in favour of the Claimant.

ON ISSUE 3: Whether the Claimant has proved her case and entitled to the reliefs sought

Learned Counsel, while relying on documents tendered before this Honourable Court, submitted that the Claimant has proved her case to be entitled to the reliefs sought.

DEFENDANT’S REPLY ON POINT OF LAW

On receipt of Claimant’s final written address, Learned Counsel to Defendant filed a reply dated 29^th October, 2019 and filed 30^th October, 2019 to which he replied on points of law to the Defendant’s final written address, and adumbrated further on their earlier final written address.

COURT

Having gone through the case of the Claimant, Defendant’s defence, evidence adduced in this case and the submissions of Counsel to the Claimant and Counsel to the Defendant, this Court while adopting all the issues raised by parties, has distilled a sole issue for determination, to wit:

Whether given the circumstances, the Claimant has proved her case to be entitled to the reliefs sought.

Having adopted all the issues formulated by parties in this suit, the Court will address same, when necessary, in the body of its judgment.

The case of the Claimant is that she is still in the employment of the Defendant by virtue of the Harmonisation Act, 2012. On the part of the Defendant, they posited that the Harmonisation Act only affected academic staff of polytechnic and Colleges of education not the Claimant who is a non-academic Staff or the Defendant which is a monotechnic.Given Defendant’s claim that she is a monotechnic, the question is what is a polytechnic/monotechnic? Polytechnic is a higher institution with training in multi discipline. Monotechnic is a higher institution with training in single discipline. Whether polytechnic, monotechnic or colleges of education, these institutions are colleges of higher institution which provide higher technical education, training and instruction that are not obtainable at the secondary school level. A monotechnic is not lower or lesser than a polytechnic in terms of instruction and training. The only thing peculiar to a monotechnic is that its kind of training/instruction is unique and specialised training in a particular discipline which, in the case of the Defendant herein, maritime. I must add that there are University of Agriculture which are specialised in training students in Agriculture. The very fact that they are specialised in a single discipline, that is agriculture, does not make them lesser or lower than their counterpart universities who train in multi discipline. In this vein, while agreeing with the Defendant that the Nigeria Maritime Academy, Oron, is a monotechnic being that its training is in the specialised area of maritime, I disagree with the Defendant that the Retirement age for Polytechnic and colleges of education (Harmonisation) Act, 2012 does not affect the Defendant. Saying so is belittling the Defendant and putting it in an academic position lesser than polytechnic and even lesser than colleges of education. The word polytechnic is nothing more than the plural of monotechnic. Saying what applies to polytechnic does not apply to monotechnic is like saying what apply to men does not apply to man merely because the words of the legislation chose to make use of the plural form of man rather than the singular form. In the sense with which the legislation is used in the case herein, what applies to polytechnic (Plural) is applicable to monotechnic (singular), and I so hold.

I also disagree with the Defendant that an Act of the National Assembly will not take effect on the Defendantwhich is an institution of the Federal Government inasmuch as it was not approved by the governing board of the Defendant. The moment a bill is passed and assented to by the president, it became an Act binding on the Defendant and it does not in any way require the adoption or approval of the Defendant before becoming effective. The Defendant is bound to implement it immediately as it does not require any input from the Defendant than obedience to the Act, and I so hold.

Now to answer the question of the Defendant whether the Harmonisation act, 2012 is applicable to non-academic staff, the trite law is that when the words of statute are straight forward and do not create any ambiguity, the Court must, as a matter of justice, give them their ordinary meaning. At the risk of repetition, Section 1 of the Retirement Age of Staff of Polytechnic and Colleges of Education (Harmonisation) Act, 2012 provides:

The retirement age for staff of Polytechnics and Colleges of Education is harmonized

Section 3 provides:

Retirement age for academic staff

(1) Notwithstanding anything to the contrary in the Pension Reform Act, the compulsory retirement age of an Academic Staff of Polytechnics and Colleges of Education shall be sixty-five years.

(2) A law or rule requiring a person to retire from the Public Service after thirty-five years shall not apply to Academic Staff of Polytechnics and Colleges of education.

(Underlining mine for emphasis)

The words of the statute in Section 3 above speak of no ambiguity as to the beneficiary. The beneficiary are academic staff. In this sense, non-academic staff cannot and will not benefit from the 65 years of retirement as it is not what is envisaged by the Harmonisation Act, 2012, and I so hold. Academic Staff Union of Universities (ASUU) put in a good fight and they got 65 years for their staff, academic staff of polytechnic and colleges of education put up a good fight and got 65 years retirement age for their staff. Perhaps one day the non-academic staff of polytechnic and colleges of education may put up a fight good enough for their retirement age to be at par with academic staff. However, until then, the law is what it is now and until it is amended, non-academic staff cannot benefit from it, and I so hold. Therefore, by extension, the Claimant herein, not being an academic staff cannot eat from the pot of academic staff but the pot of non-academic staff which at present is same with other civil servant whose retirement is generally on attaining 60 years of age or on having put in 35 years of service, whichever comes first, and I so hold. The issue here is not about what is fair or what is unfair based on the facts but what the law is based on the facts. Furthermore, the issue is not about the Claimant receding her retirement having earlier accepted same. This is because the law has already set the peak for retirement. One cannot exceed that peak. One can only go below it but cannot exceed it. Therefore, the moment the Claimant clocked 60 years, she automatically became due for retirement at law and, it is immaterial whether she accepted it or not; it will not hinder the retirement from taking place effective from the date set by the law.

Furthermore, in Claimant’s final written address, Learned Counsel submitted that Defendant made him believe that her employment was to cease in 2020 on the account of the Harmonisation Act, 2012 which they now say is not applicable to the Claimant being a non-academic staff. Be that as it may, even if the Defendant acted in ignorance of the law in not retiring the Claimant at October, 2015, the trite law is that ignorance of the law cannot be used as excuse by anybody. In this vein, eventhough, according to the Claimant she was made to believe that she would work until 2020 before retirement, this runs contrary to the law and given the circumstances, her belief and what she is made to believe cannot supersede the law which provides for her retirement to be 35years of service or on attaining 60years, whichever comes first. Therefore, if for any reason she was made to believe that her retirement extended to 2020 and she continued to work under that belief beyond her retirement in October, 2015, she can only be entitled to be paid by the Defendant for the period she worked beyond her retirement but she cannot use that to bend the law or amend the law which has provided for her retirement age to be 60 years.

Granted, given the facts and evidence adduced in this case, the Claimant continued working beyond October, 2015 her supposed retirement age. Even though there is no express agreement as to the conditions of such service after having attained the retirement age in October, 2015, it is evident that the Defendant, however condoned same until, as if waking up from its slumber in 2016, issued a letter of retirement to the Claimant dated 28^th January, 2016 with the effective date of Claimant’s retirement put at 16^th October, 2015. The Claimant, on her part replied to this letter in her letter dated 01/02/16. Now, as earlier held, the Claimant’s retirement took effect from October, 2015. However, given the fact that the Claimant continued working with the Defendant until 2016, work which the Defendant condoned, in the absence of any express agreement as to the conditions of the work, the law allows the Court to conclude from the conduct of the parties that there was indeed employment relationship. See Cway Nig Drinking Water Science and Technology Co. Ltd V. Ogwuche (2016) All FWLR (Pt.848) P.684 paras F-G where Per Orji Abadua (JCA) held:

I think it pertinent to mention that the general rule is that contract of employment may be in any form, and not necessary in writing. A contract of employment can be inferred from the conduct of the parties

On the part of the Defendant, they urged the Court to expunge the documents tendered in evidence by the Claimant evidencing the fact that Claimant worked until April, 2016. Now, in paragraph 5 of Claimant’s reply to Defendant’s earlier Statement of Defence, Claimant put the Defendant on notice to produce their copy of the Attendant Time Book covering the period of 16^th October, 2015 to 26^th April, 2016. The Defendant did not deem it fit to produce same for the Court to see if the one tendered by the Claimant is different from theirs. Yet they want the Court to expunge the one tendered by the Claimant. In Section 167 of the Evidence Act, 2011, it is provided thus:

The Court may presume the existence of any fact which it deems likely to havehappened, regard shall be had to the common course of natural events, human conduct andpublic and private business, in their relationship to the facts of the particular case, and in particular the court may presume that-

(a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) a thing or state of things which has been shown to be in existence within aperiod shorter than that within which such things or states of things usually cease to exist, is still in existence;

(c) the common course of business has been followed in particular cases:

(d) evidence which could be and is not produced would. if produced, beunfavourable to the person who withholds it; and

(e) when a document creating an obligation is in the hands of the obligor, the

obligation has been discharged.

(Underlining mine for emphasis)

In the case herein, the Defendant, having withheld/failed to produce the Attendant Time Book despite the notice given her by the Claimant, can only be presumed to have done this because she knows that same will be unfavourable and detrimental to hers case, and I so hold. In this regard, the conclusion the Court can draw from the case herein is that Claimant worked until 26^th April, 2016 and Defendant failed/neglected to tender its time book before the Court for no other reason than it will help the case of the Claimant in detriment to their own case, and I so hold. Therefore, the Court cannot expunge the Time Book tendered by the Claimant when there is no other time book tendered by the Defendant impugning the credibility of the time book tendered by the Claimant.

Flowing from the foregoing, as well as in the absence of any other time book from the Defendant contradicting the position of the Claimant that she worked until 26^th April, 2016, this Court finds and I so hold that Claimant continued working for the Defendant beyond 16^th October 2015 until 26^thApril, 2016 and the Defendant condoned the Claimant until 26^thApril, 2016 when she chased her from her office.

From all that have been said above, this Court finds and I so hold whereas the statutory employment of the Claimant with the Defendant came to an end on 16^th October, 2015, the fact that Claimant continued working until April, 2016 and the Defendant condoned her gave rise to an unwritten contract of employment which fits into the common law of master-servant employment. Therefore, when the Claimant statutory employment came to an end in October, 2015, a common law employment relationship took effect between the parties after October 16^th 2015. This common law relationship like every other is subject to the common law principle that an employee can fire at any time with or without reasons. This is also subject to the common law principle that a labourer is entitled to his wages for work done. Therefore, if the Claimant worked until April, 2016 before she was thrown out of her office, she is entitled to her wages for work done from October, 2015 to April, 2016 when Defendant stopped her from working, and I so hold. Given that the employment relationship was unwritten, and given that the Court had earlier held that the Claimant is entitled to wages for work done during this period, this Court, arising from its power to make ancillary order(s) and also give force to its decision, shall, in its discretion direct that the salary for this period should be equivalent to her salary and status prior to October, 2015. Defendant shall calculate same and pay the Claimant alongside her retirement benefits as it stood at October, 2015.

From all that have been said above, the case of the Claimant succeeds only to the following extent:

CLAIM 1 Fails

CLAIM 2 Fails

CLAIM 3 Succeeds only to the extent that Claimant is entitled to her salaries for work done in October, 2015 to April, 2016 and she is entitled to financial benefits and other benefits accruing to her on account of her statutory retirement effective 16^th October, 2015.

CLAIM 4 Succeeds only to the extent that the Defendant shall compute, release and pay over to the Claimant her salaries for the month of October, November, and December, 2015; January, February, March and April, 2016 at the prevailing monthly salary she was paid sequent to her retirement, and also pay her emoluments and fringe benefits befitting her status for these period at the prevailing rate she was paid before her retirement, and to also pay to her all her retirement benefits and accord her other retirement standing to her as at 16^th October, 2015.

CLAIM 5 Fails

CLAIM 6 Succeeds only to the extent that the Court awards the sum of N100,00.00 as cost in favour of the Claimant, same to be paid by the Defendant.

CLAIM 7 Fails

For the avoidance of doubt, the order/declaration(s) of the Court are as follows:

THE COURT HEREBY DECLARES Claimant is entitled to all her salaries, emoluments and other benefits that may accrue to her from October, 2015 to April, 2016, and she is entitled to financial benefits and other benefits accruing to her on account of her statutory retirement effective 16^th October, 2015.

THE COURT HEREBY ORDERS the Defendant to compute, release and pay over to the Claimant all her salaries, emoluments and fringe benefits that may have accrued to the Claimant in her position in service of the Defendant as well as all her retirement benefit effective 16^th October, 2015 being the date of her statutory retirement, and all her salaries, emoluments and other benefits that may accrue to her from October, 2015 to April, 2016 being the period of her common law contract of employment.