AKPOLISI CECILIA -VS- ABIA STATE UNIVERSITY

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

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

DATE: THURSDAY 21^STFEBRUARY 2019

SUIT NO.NICN/OW/58/2016

BETWEEN:

AKPOLISI CECILIA…………………………………………CLAIMANT

AND

ABIA STATE UNIVERSITY………………………………DEFENDANT

APPEARANCES:

C. EBERE FOR THE CLAIMANT.
THEO NKIRE, WITH N.C.E. NJAKA, CHIKODI OKEORJI, AND IRENE OBI, FOR THE DEFENDANT.

JUDGMENT

INTRODUCTION

This suit was commenced by complaint dated 26/09/2016 on 27/09/2016, which is the date endorsed as the date the filing fee was paid, as distinct from 26/09/2016, stamped on the complaint. The Statement of Facts dated 26/09/2016 but filed 27/09/16 has the following reliefs in its paragraph 15:

A Declaration that the Defendant’s termination of the Appointment of the Claimant as Senior Security Officer in the Security Department of the defendant vide the letter dated 28^th June, 2016 is illegal, and unlawful.
An Order of Court setting aside the said termination for being illegal and unlawful.
An Order reinstating the claimant to her said position as Senior Security Officer in the Security Department of the Abia State University.
An Order on the defendant to pay over to the Claimant all the entitlements due to her by virtue of her said position including all salaries and allowances owed her from the said 28^th day of June, 2016.

Against the above, the defendant filed the Statement of Defence dated 1^st November 2016 on the 21^st November 2016. This was deemed as properly filed and served on 18^th January 2017. To the Statement of Defence and Counterclaim, the claimant filed on 12^th April 2017 Reply to Statement of Defence and Defence to the Counter claim dated 8^th March 2017. This process was deemed properly filed and served on 7^th June 2017, and the case was thereafter adjourned to 13^th July 2017 for hearing. But before this date, His Lordship, Hon. Justice O.Y. Anuwe, who,hitherto, hadbeen presiding over the matter, was transferred from Owerri Division while I was transferred to the Owerri Division. The first time the matter came up before me was 23^rd October 2017, and it was adjourned to 28^th November 2017 for hearing.

On this date, the matter came up as adjourned. Trial was to commence and the counsel to the claimant applied for interpreter for the claimant who was to testify on behalf of herself as CW1. At this stage, the Court observed that the matter was a sister case to some other cases and opined that they ought to be consolidated. The Court therefore adjourned the matter to 11^th December 2017 for counsel to address it on the issue of consolidation raised suo motu while trial was adjourned to 12^th December 2017. On this date, counsel to the parties addressed the Court on the issue of consolidation, and the Court acceded to their opinion that the matter be not consolidated.

Thereafter, the learned counsel to the defendant: CHIKODI OKEORJI, drew attention of the Court to the fact that the defendant had a motion dated 7^th December 2017 but filed 8^th December 2017. Because the application was not accompanied with written address, it was struck out; and the matter was adjourned to the following day to enable the defendant file a proper application. On 12^th December 2017, the matter came up as adjourned and the learned counsel to the defendant informed the Court of the pendency of a motion on notice dated 11^th December 2017 and filed 12^th December 2017, which sought to amend the Statement of Defence. The application to amend the Statement of Defence was moved and granted as prayed while cost was refused and the case ordered, as prayed by counsel to the claimant and agreed to by the learned counsel to the defendant, to proceed to hearing with a rider that the claimant was at liberty to file her consequential amendment, if any, later. None was filed subsequently.

CASES MADE BY THE PARTIES’ IN THEIR PLEADINGS

The case made out in the Statement of Facts is that the claimant was employed by the defendant on 15^th October 1984 and after series of promotions, got promoted to Senior Security Officer on 17^th January 2013, the position she occupied till her employment was terminated on 28^th June 2016. The claimant claimed she served the defendant dutifully for 32 years without receiving any query and was therefore awarded certificate of long service. The claimant said by her position as Senior Security Office, she was a senior staff governed by the Regulations Governing Conditions of Service of Senior Staff (HATISS 06-15) [CONDITIONS OF SERVICE] approved by the Council 12/12/2002 and effective 01/10/2002. The claimant said she never committed any offence and was not queried nor invited to any disciplinary committee prior to her termination and that, she was not afforded fair hearing in accordance with paragraph 2.14 of the Conditions of Service and section 36 of the 1999 Constitution. The claimant said after receiving the termination letter, she wrote the defendant to rescind the termination but this was not replied. The claimant also said she wrote through her counsel,a pre-action notice and served the defendant on 18^th August 2016 and that, the defendant did not reply the said pre-action notice. On this basis, the claimant prayed the Court forthe reliefs earlier reproduced abovein.

On the other hand, the defence of the defendant, in the Amended Statement of Defence is that, the conduct of the claimant was grossly reckless and puts the defendant and its students, staff and property in grave danger of loss of lives and property due to the claimant’s negligent, porous and ineffective service in the security department, which led to breach of security, loss of lives and festering of deadly cult activities on the campus. The defendant claimed too, to have set up a committee, which investigated this breach of peace pursuant to section 5(1) & (2) of the Abia State University Law and the Conditions of Service of Senior Staff of the University, and that witnesses, including the claimant were called, and they gave evidence, wherein the claimant was found wanting by her failure and inability to discharge her duties. The defendant denied being served with the letter to rescind the termination and the pre-action notice and that, the notice did not even comply with the law. The defendant maintained that the termination of the claimant was legal and in accordance with the laws and regulations governing the conditions of service of senior staff of the University and that, the claimant is not entitled to the reliefs claimed. The defendant counterclaimed for two million as the cost of this action.

The claimant further joined issues with the Amended Statement of Defence and the counterclaim vide the Reply to Statement of Defence and Defence to Counterclaim filed 12^th April 2017.The case subsequently went into trial. On these bases, evidence was led by each side to prove the case made their respective pleadings.

TRIAL PROCEEDINGS

On the 12^th December 2017 trial commenced with CW1 testifying on behalf of herself.After CW1 was sworn on the Holy Bible,she thereafter adopted her evidence-in-chief, the witness statement on oath made 26/09/2016. CW1 tendered 13 documents, which were admitted, subject to the right of the counsel to raise objection subsequently at the address stage. The examination-in-chief of CW1 was brought to an end on this same 12^th December 2017 and the matter was thereafter adjourned to 12^th and 13^th February 2018 for cross-examination and continuation. As adjourned, cross-examination of CW1 commenced 12^th February 2018. Two documents that the counsel to the defendant attempted to tender through CW1,under cross-examination, were rejected because, they were not pleaded and frontloaded. The cross-examination continued thereafter and was subsequently brought to an end the same 12^th February 2018. There was no re-examination, and the case of the claimant was closed. The matter was subsequently adjourned to 13^th and 15^th March 2018 for defence and cross-examination.

The case came up as adjourned on 13^th March 2018. The defence was opened with DW1, who affirmed. DW1 adopted the witness statement on oath he deposed to on 21/11/2016 as his evidence-in-chief. Exhibit DWA (1-16) was admitted while 4 other documents sought to be tendered were rejected and marked accordingly, on the ground that they were not frontloaded in accordance with the rules of this Court. Thereafter, the evidence-in-chief of DW1 was brought to an end and the defence was closed. On this same date, the case progressed to cross-examination. DW1 was cross-examined accordingly. Subsequently, when the counsel to the claimant ran out of questions after exhausting his 40 minutes duration, he asked for adjournment to continue the cross-examination. This application was refused and the Court closed the cross-examination. There was no re-examination. Thereafter, counsel to the defendant closed the defence. The case was thereafter adjourned to 24^th May 2018 for adoption of final written addresses.

ADOPTION OF FINAL WRITTEN ADDRESSES

On the 24^th May 2018, the matter came up as adjourned but the adoption of final written addresses could not go on as scheduled as the claimant was just served the defendant’s final written address. The adoption was therefore further adjourned to 14^th June 2018. On this date, the counsel to the claimant was absent in Court and had not filed his final written address. It was therefore further adjourned to 26^th September 2018. On this date, the Court did not sit, as I had been transferred from the Owerri Division and was yet to secure fiat for my part heard matters. The matter came up next on 8^th November 2018 after I had secured fiat. The counsel to the claimant was absent in Court and had still not filed the final written address of the claimant, but wrote for adjournment. The case was as a result to adjourned to 15^th November 2018 for adoptions. However, on this date, the Court did not sit. The matter came up next on 30^th November 2018. On this date, the Court deemed as properly filed and served, the final written addresses of both sides, which were filed out of time.

Thereafter, the matter proceeded to adoption of these addresses. The learned counsel to the defendant: THEO NKIRE, adopted first. The learned counsel adopted the final written address along with the reply on points of law. Thereafter, the learned counsel to the claimant: D.C. EBERE adopted the claimant’s final written address dated 26/11/18 and filed 27/11/18 while the one dated 14/11/18 was withdrawn and accordingly struck out. Counsel to both parties adumbrated. The learned counsel to the defendant stated in adumbration that the issue that the appointment was terminated without fair hearing would be of no avail because the employment is one without statutory flavour. The learned counsel said both counsel relied on Idoniboye-Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589. The learned counsel opined that there was no reference in the enabling law that the handbook of Abia State University was made pursuant to it. The learned counsel’s attempt to give to the Court a composite copy of the said handbook containing the conditions of service was stoutly opposed by the learned counsel to the claimant, and it was accordingly withdrawn.

The learned counsel to the defendant thereafter argued further that, if the subsidiary regulation made pursuant to the NNPC enabling law could not avail the plaintiff in Idoniboye-Obu’s case [supra], the Abia State University Handbook would not also avail the claimant herein. The learned counsel referred the Court to Exhibit CWN-CWN3, and argued that, the three-page document tendered, and lifted from page 12-14 of the University Handbook, was not sufficient for the Court to determine how the beginning of the document was couched, to ascertain if it was made pursuant to the Act establishing the University and thus, a subsidiary legislation. The learned counsel thereafter urged the Court to dismiss the case. The learned counsel to the claimant did his adumbration and argued that, the reply on points of law filed by the defendant’s counsel sought to reargue the written address and should be discountenanced. The learned counsel thereafter urged the Court to grant the reliefs the claimant sought and dismiss the counterclaim. The case was thereafter adjourned to 8^th January 2019 for judgment. The judgment was not ready at this date, and was therefore adjourned off record sine dietill it would be ready within the statutory time when the parties would be communicated of date for its delivery. I shall now move to summaries of the final addresses of the counsel to the parties.

ADDRESSES OF COUNSEL TO THE PARTIES

Defendant’s Final Written Address

THEO NKIRE franked the defendant’s final written address. The learned counsel submitted two issues for the determination of the case, to wit:

Whether, considering the provisions of paragraph 2 (b) of the Claimant’s contract of employment [Exhibit CWA, CWA1] with the Defendant and other circumstances of this case, Claimant’s employment was not lawfully terminated since the Abia State University Regulation Governing Conditions of Service of Senior Staff on which the Claimant relied was not enacted by the Abia State [sic] Assembly as a Schedule to the Abia State University Law nor as a Subsidiary Legislation as required by law. [sic]
Whether having regard to the failure of the Claimant to serve a pre-action Notice on the Defendant as mandatorily required by Sections 36 (1) and 37 of the Abia State University Law, this Suit in not incompetent and ought therefore to be struck out. [sic]

Under issue 1, the learned counsel to the defendant submitted that an employee who complained of wrongful termination has a duty to plead and prove the contract of employment and show in what manner it was breached. The learned counsel cited Idoniboye-Obu v. NNPC (2003) NWLR (Pt. 805) and a host of other authorities on this point. The learned counsel argued further that, it was also held in the above authority that the court is precluded from going outside the contract to determine the dispute. The learned counsel also cited Adegbite v. College of Medicine of University of Lagos (1973) 5 SC 149 at 162 and another case on this point. The learned counsel argued further that, the mere fact that an employeris a public institution does not mean that its employees must be clothed with statutory flavours; and on this, cited Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board [OAUHCMB] (1993) 5 NWLR (Pt. 291) 47. The learned counsel argued further that, where a contract provides for determination by agreement of the parties without more, statutory flavour could not be read into such contract. On this, the learned counsel relied on Fakuade v. OAUHCMB [supra] and Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660. The learned counsel quoted Iguh, JSC and Mohammed, JSC in Idoniboye-Obu [supra] on how to ascertainif a condition of service is made pursuant to an enabling statute and thus enjoys statutory flavour,without stating the exact paragraph and page.

The learned counsel to the defendant, quoting paragraph 2(b) of the latter of employment argued that, the contract of employment between the parties is as contained in the letter of employment [Exhibit CWA-CWA1], and particularly paragraph 2(b) thereof, which provides that the contract is terminable at the instance of either party by a month notice or salary in lieu thereof. Arising from the above submission, the learned counsel argued that, the employment is not clothed with statutory flavour. The learned counsel argued further that, the argument that that the employment is clothed with statutory flavour is based on the conditions of service, which was approved by the University Council on 13/12/2002 and took effect on 01/10/2002. The learned counsel, quoting Mohammed JSC in Idoniboye-Obu [supra] argued that, before an employment could be inferred with statutory flavour, the parent statute must expressly make it so and that, failing, the employment would be construed as common law employment; and that, conditions of service could only be held to have statutory flavour if enacted by a law making body as a schedule to an Act or Law or as a subsidiary legislation.

The learned counsel submitted that, because the conditions of service in issue were drawn up by the University and approved by the Council, just like in Idoniboye-Obu’s case, where the conditions of service were drawn up by the Board of Directors of NNPC without more, it therefore has no statutory flavour like section 17 of the University of Lagos Act and the Public Service Commission Regulations which governed the employments in Olaniyan and Shitta-Bey respectively. The learned counsel argued that,the defendant had in the cause of this trial made out a good cause for terminating the appointment of the claimant and her colleagues for incompetence, which led to grave insecurity and the flourishing of cultism leading to cruel and wanton murders of students. The learned counsel to the defendant argued further that, the defendant has the right, as an employer, to terminate the appointment of the claimant for any reason or no reason at all, so long as it acted within the confines of the terms of the employment, and that its motive thereby would become irrelevant. On this, the learned counsel cited Commissioner for Works, Benue State v. Devcon Ltd (1989) 3 NWLR (Pt. 83) 407 at 423. The learned counsel submitted that, where there is breach, the remedy lies in damages based on the period of notice, which was not given. On this, the learned counsel cited Western Nigeria Development Corporation v. Abimbola (1966) 1 ALL NLR 159 at 160-161; Nigeria Produce Marketing Board v. Adewunmi (1972) 1 ALL NLR (Pt. 2) 870 at 871; and Chukwuma v. Shell Petroleum Dev. Co. of Nig. Ltd (1993) 4 NWLR (Pt. 289) 512 at 538.

The learned counsel argued further that, the conditions of service relied upon by the claimant is not applicable to the termination of her employment and neither does it protect it with statutory flavour because the claimant’s employment was not provided for anywhere in the Abia State University Law. The learned counsel argued further that, where a court finds that the employer acts legitimately, in accordance with the terms of employment, in terminating an employment, which has no statutory flavour, it cannot grant any declaratory relief. Reliance was still placed on Idoniboye-Obu [supra]. Thus ended arguments in respect of issue 1, and counsel moved to issue 2.

On Issue 2, the learned counsel to the defendant argued that, section 36(1) of the Abia State University Law mandates the issuance and service of pre-action notice to commence suits against the defendant and that, section 37 thereof mandates that the said pre-action notice must be served by post. The learned counsel stated that, upon service of this suit on the defendant, it filed conditional appearance and raised the issue of non-service of pre-action notice in paragraph 13 of its Amended Statement of Defence. The learned counsel argued that, in an attempt to prove service of the said pre-action notice, the claimant tendered Exhibit CWM dated 17^th August 2016 and written by Chief Okey Ehieze [KSSC] and that, in spite of the defendant’s contention on non-service, Exhibit CWM, tendered was NOTan unacknowledged copy of the said pre-action notice. The learned counsel submitted that, this would not and cannot prove service in a situation where the contest is on non-service. The learned counsel further opined that, the inference deducible from the foregoing is that, there was no service otherwise; the claimant would have tendered an acknowledged copy or any other material showing or proving service. The learned counsel submitted that, failure to serve pre-action notice is pivotal and fatal to an action, where it is required and not served and could not be waived. On these, the learned counsel cited Uguanyi v. N.I.C.ON. PLC (2004) 15 NWLR (Pt. 897) 612; Okafor v. Ukadike (2009) 1 NWLR (Pt. 1122) 259 at 15, B-E; and Abuja Municipal Area Council v. C.N. Okoli Transport Co. Ltd [no further details submitted]. On the basis of the forgoing, the learned counsel submitted that, the claimant had failed to serve the pre-action notice on the defendant; and therefore urged the Court to strike out the suit.

Thus, the written address was brought to an end by urging the Court to dismiss the suit for lacking in merit.

Claimant’s Final Written Address

CHIMA EZIKEfranked the claimant’s final written address filed 27^th November 2018, which is the one adopted. The learned counsel raised two issues for the determination of the case, to wit:

Whether the claimant has proved that his employment with the defendant enjoys statutory flavor. [sic]
Whether The Claimant Proved His Case so as to be entitled to the judgment of the Honourable Court. [sic]

On issue 1, the learned counsel to the claimant submitted that his issue 1 corresponded to issue 1 of the defendant. The learned counsel argued that the employment of the claimant, which is covered by the regulations governing conditions of service of senior staff, which said regulations, is a subsidiary legislation, has statutory flavour; and as a result, the termination is unlawful. The learned counsel cited and reproduced the provisions of sections 28 and 29 of the Abia State University Law, 1985, which he said gave the University the power to make statutes and that, since the regulations governing the conditions of service of senior staff was made by the Council of the defendant, in exercise of the powers conferred on it by the said sections 28 and 29 of the Abia State University Law, the said conditions of service forms part of the Abia State University Law. The learned counsel argued further that, the reliance placed on paragraph 2(b) of the claimant’s letter of employment to argue that the appointment is not clothed with statutory flavour is misconceived in that, this view is negated by paragraph 2(a) of the same letter, which provides that the appointment is subject to the Imo State University Edict 1983 and the statutes and amendments thereto and the regulations governing conditions of service of junior staff made by the council from time to time. The learned counsel opined that, the use of the phrase ‘subject to’ makes the employment subject to the Imo State University Law and thus, clothed with statutory flavour. The learned counsel cited Alhassan v. ABU Zaria (2010) ALL FWLR (Pt. 538) 962 at 966 on the meaning of ‘subject to’; and that, by this, the regulations governing the conditions of service of senior staff is part of the Abia State University Law.

Citing and quoting portions of Idoniboye-Obu’s case [supra] the learned counsel to the claimant argued that, from the quoted portions, the conditions of service in issue was made pursuant to sections 28 and 29 of the Abia State University Law and that, the reliance placed on Idoniboye-Obu’scase to argue that the conditions of service in issue does not confer the employment with statutory flavour is misplaced, in view of the fact that, sections 28 and 29 of the Abia State University Law specifically made the employment subject to the edict and the conditions of service.The learned counsel submitted further that, the employment in issue is clothed with statutory flavour since it complied with all the prescriptions enumerated by Tobi JSC in Idoniboye-Obu’s case. The learned counsel argued that, since the claimant rose from the initial position of junior staff, on which she was employed, by promotions, to that of senior staff, her employment would now be governed by the conditions of service of senior staff. The learned counsel argued further that, paragraph 2:14 of the conditions of service prescribed the procedures to follow in dismissing the claimant and that, this must be strictly complied with since the employment is clothed with statutory flavour otherwise, the dismissal is liable to be voided. On this note, arguments on issue 1ended and, the learned counsel moved to issue 2.

On issue 2, the learned counselto claimant argued that, from the totality of evidence adduced, the claimant has proved her case. The learned counsel argued that, from the evidence on record, it was never disputed that the claimant was not given fair hearing either by way of query or oral questioning, as Exhibit DW1 [Report of the Council Ad-Hoc Committee…] showed that the claimant was never invited and DW1 admitted under cross-examination that the claimant was never invited to the Panel. The learned counsel submitted that, the argument of the learned counsel to the defendant that the employment of the claimant could be terminated for good reasons based on paragraph 2(b) of the letter of employment is misconceived and applies to the employment of junior staff alone and not to that of senior staff, to which category the claimant now belongs, and which conditions of service is now governed by Exhibit CWN-CWN3 and paragraph 2(a) of Exhibit CW1. The learned counsel argued that, for the defendant to properly terminate the appointment of the claimant, it must comply with paragraph 2.14 of Exhibit CWN–CWN3. The learned counsel argued that the provisions of the said paragraph is to afford the claimant the opportunity of being heard before terminating her appointment, in line with section 36(1) of the 1999 Constitution and Eze v. University of Jos (2017) ALL FWLR (Pt. 898) 101 at 117.

The learned counsel argued further that, where a statute provides for fair hearing in favour of an employee before her appointment could be terminated, failure in that respect renders the termination unlawful and makes it liable to be nullified. On this, the learned counsel cited AngelSpinning & Dyeing Ltd v. Ajah (2000) FWLR (Pt. 23) 1332 at 1353-1354. The learned counsel argued that, by the failure of the defendant to adhere to paragraph 12.4(iii) of Exhibit CWN-CWN3, the claimant is entitled to the judgment of the Court. The learned counsel finally urged the Court to set aside the dismissal and grant all the reliefs claimed while, on the other hand, the counterclaim of the defendant should be dismissed. I shall now move to the reply on points of law filed by the defendant’s counsel.

C.Reply on Points of Law

THEO NKIRE franked the Defendant’s Reply Address. But, before I move to summarise the reply, let me observe that it was filed against the claimant’s withdrawn written address filed 14/11/2018. Nevertheless, since it was adopted in Court, I shall go through it to see if it related to the issues canvassed in the claimant’s written address filed 27/11/2018 and adopted in Court; and summarise the relevant parts thereof, taking it that, it was adopted against the extant claimant’s final written address.

The learned counsel submitted that, the argument that, because the claimant had been promoted to the rank of senior staff from the rank of junior staff on which she was employed, her conditions of service had been transmuted to that of senior staff;and that, that would change the contract signed by the claimant, is misconceived. The learned counsel submitted that, this contract subsists throughout her employment with the defendant regardless of the position on which she was terminated; and that, to opt out of the initial contract, the claimant must sign another contract at her promotion. The learned counsel submitted that, in Idoniboye-Obu [supra], the plaintiff therein was relieved of his post notwithstanding that he rose from junior cadre to senior cadre. The learned counsel submitted that, if the claimant’s employment were construed in accordance with her contract of employment, the Court would come to the conclusion that her employment was properly terminated.

I shall not touch the reply concerned with service of pre-action notice, as this was not canvassed in the final written address of the claimant filed 27/11/2018. That ends the reply on points of law. I am now left with the duty of deciding the case one way or the other. Let me state before going to the process of deciding the case that, I have painstakingly read all the processes in the file and digested them. I have equally taken in the evidence-in-chief of the witnesses and the cross-examinations, inclusive of the demeanours of the witnesses. I shall make references to the evidence on record as the needs arise in the course of writing this judgment. I have equally very carefully digested the addresses of counsel to the parties [both oral and written], as is evident in my summary of them above.

COURT’S DECISION

First, I found that the two issues formulated by the claimant’s counsel are one and the same and do not cover the breadth of issues covered by the facts of the case. The two issues formulated by the defendant’s counsel covered adequately the issues arising from the pleadings of the parties,but are prolix and not arranged in the proper sequence. I therefore proceed to rearrange and reformulate the two issues in a concise manner, to wit:

Whether pre-action notice was served in the instant case, and if not, the effect on this action?
Whether the employment of the claimant was lawfully determined in accordance with the relevant laws and conditions of service?

ISSUE 1:

WHETHER PRE-ACTION NOTICE WAS SERVED IN THE INSTANT CASE, AND IF NOT, THE EFFECT ON THIS ACTION?

Issue 1, as couched above, is radical, being that, it raised issue of competence of the action. As such, it is treated first.The learned counsel to the defendant had argued that, section 36(1) of the Abia State University Law mandates issuance and serve of pre-action notice on the defendant, and that, section 37 thereof, specifies that it be served by post. The learned counsel submitted that, Exhibit CWM, by which the claimant attempted to prove service, would not avail, since there is no evidence on it, showing service and that, being that, no shred of evidence is produced to prove service, the action is incurably bad. The learned counsel also argued that, the defendant filed conditional appearance and raised the issue in its Statement of Defence. The learned counsel therefore urged the Court to strike out the suit.

At paragraphs 12, 13 and 14 of the Statement of Facts, the following averments were made:

“12. After receiving the purported letter of termination pleaded hereinbefore, the claimant wrote to the defendant through the defendant’s vice chancellor, the letter dated 19^th July, 2016, complaining of this unlawful termination and requested for fair hearing and the review of her termination. The defendant refused to reply to the said letter. The said letter of 19^th July, 2016 is hereby pleaded and the defendant is hereby given notice to produce the original of the letter in its possession or in default the claimant shall tender a copy of the said letter in her possession.

Having waited without receiving any reply to her letter, the claimant through her counsel gave the defendant a one month notice of her intention to commence legal action against it. The said letter dated 17^th August, 2016 and served on the defendant on 18^th August, 2016 is hereby pleaded. The defendant is hereby given notice to produce the original of the said pre-action notice in its possession or in default the claimant shall tender a copy thereof.
The defendant in its usual manner failed, refused and neglected to reply to the said pre-action notice.”

In reaction to the above paragraphs, the defendant in paragraph 13 of its Amended Statement of Defence, stated as follows:

“The defendant denies paragraph [sic] 12, 13, 14 of the Statement of Claim and contends that no such letters or notices were served on the Defendant as alleged by the Defendant [sic] or at all and that the alleged notice did not comply with the law.”

In further reaction to the above, in the reply filed by the claimant to the Amended Statement of Defence, the claimant stated in paragraph 5 of the reply that:

“In further answer to paragraph 13 of the statement of defence, the claimant states that she instructed her counsel who wrote the defendant a letter through the Vice Chancellor and the said letter was duly served and received by the defendant through her agent/servant who acknowledged receipt of same on 18/08/2016.”

It is my firm opinion that even without reference to the reply filed by the claimant, issue had been joined on whether there was service of pre-action notice or not. I shall not make reference to the letter asking for rescission of the termination because no issue was made of the service of that by the defence counsel in the written address. The issue on which address was canvassed is on pre-action notice and the fact that it was not served and the effect of failure to serve it on the action. No address was also made on the pleaded issue that the purported pre-action notice did not comply with the law, as no argument was canvassed on whether or not it was not served by post. I shall therefore not also touch this. Let me state that, the counsel to the claimant did not react to the issue of non-service of the pre-action notice in his final written address. The implication of this omission under law is concession of the rightness of that point that, the pre-action notice was not served – see Donbraye & Anor. v. Preyor & Ors. (2014) LPELR-22286 (CA) 70, D-F. However, this would not relief me of my duty to delve into whether or not the argument was right in law, notwithstanding the failure to challenge it, as a court is not bound by the arguments of counsel – see Aliyu & Ors. v, Intercontinental Bank Plc & Anor (2013) LPELR-20716 (CA) 35, A-F.

I wish to state that,in the said paragraphs 12-14 of the Statement of Facts and paragraph 5 of the Reply, the claimant herself conceded the fact that, it was necessary to serve pre-action notice in the instant case; and it was also conceded in these paragraphs that the claimant has the burden of proving service of the pre-action notice, otherwise, she would not have pleaded service and the manner of service of same, which she said was served on the servant of the defendant. So, the issue is whether or not the service of the pre-action notice was proved in Court.This, the defendant denied, thus joining issue on that narrow point alone. What evidence does the claimant give in proof of this; and what evidence is required or adequate in law? The averments contained in paragraphs 12-14 of the Statement of Facts were repeated verbatim in the Claimant’s Statement on Oath deposed to 26^th September 2016 and adopted in this Court on 12^th December 2017.In support, the purported pre-action notice allegedly served was tendered inevidence and admitted as Exhibit CWM. There is nothing on its face showing that it was served on the defendant or that the defendant received it.

That means, the manner by which the servants of the defendant received the pre-action notice was not given: whether by signing an acknowledgment copy or by entering the receipt into dispatch book or whatever. And yet the claimant said a pre-action notice was served on a servant of the defendant for the defendant. Neither was any witness called to testify as to the manner by which this pre-action notice was served on and received by the alleged servant. One curious thing is that, the claimant stated clearly that her lawyer was the one that issued this pre-action notice, yet the messenger who served this document from the office of the lawyer was not calledto testify nor was the evidence by which it was served by the lawyer adduced. Had the claimant claimed to have personally served the said pre-action notice, it would have been another thing. But the claimant never testified that she personally served the pre-action notice not to talk of testifying on whom she served and the manner by which it was so served.

It would have been a different thing had the defendant admitted service on it in the Amended Statement of Defence or in the Witness Statement on Oath.But what happened is that, issuewas joined on this in the pleadings.And the defendant denied receipt of the pre-action notice flatly in paragraph 15 of the Witness Statement on Oath adopted in this Court on 13^th March 2018: making the evidence on both sides to be at equilibrium. It is very clear from the above scenario that, apart from failure to prove by any shred of evidence, the service of the alleged pre-action notice, the claimant’s evidence as to its service is equally hearsay evidence of the highest order. That this is so, I citeEbonyi State University & Ors. v. Eteng (2012) LPELR-19973 (CA) 41-42, D-A, wherein, the Court of Appeal, expatiating on similar scenario observed thus:

“I cannot but observe that it was not the evidence of the Respondent that she “sent” the letter dated 12/2/2008, written by her lawyer to the 2^nd Appellant through the said 2^nd Appellant’s Secretary. According to the Respondent, it was her lawyer who wrote the letter that sent the same to the 2^nd Appellant through his secretary. Nothing was tendered before the lower Court to show that the Respondent’s lawyer sent the letter pleaded in paragraph 25 of the Statement of Claim at anytime, talk less of the manner in which this was done. I do not think one has to be a genius to know that the evidence of the dispatch/service on the Respondent is nothing more than hearsay…”

From the foregoing, it is now very clear that the pre-action notice in issue was not served on the defendant; and I so hold. Having held that the pre-action notice was not served, what is the consequence? The consequence depends on the stage at which the issue was raised or the manner by which it was raised. On this, I rely on Eti-Osa LG v. Jegede (2007) LPELR-8464 (CA) 25-26, A-E, in which the Court of Appeal quoted the Supreme Court with approval in Nonye v. Anyichie (2005) 1 SC (Pt. 11) thus:

“It may be mentioned that the effect of non-service of a pre-action notice, where it is statutorily required as in this case, is only an irregularity which, however renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the statement of Defence [sic]…If, therefore, a defendant refuses to waive it and he raises it, then the issue becomes a condition precedent which must be met before the court could exercise its jurisdiction…The defence like any similar defence touching on jurisdiction, should be raised preferably soon after the defendant is served with the writ of summons. It could also be pleaded in the statement of Defence.” [Underlining supplied for emphasis]

The Court of Appeal subsequently heldin the same case [p. 26-27, E-A], after quoting the Supreme Court with approval [as set out above], that:

“Clearly where the issue of non-compliance with pre-action provision of the relevant law and it is shown that there has been non-service of pre-action notice, the Court is bound to hold that the Plaintiff has not fulfilled a pre-condition for instituting his action. In other words, where there is noncompliance with, the stipulated pre-action condition for setting a legal process in motion, any suit instituted in contravention of the relevant law is incompetent and the Court of law for that reason lacks jurisdictional power to entertain it…”

The defendant herein pleaded the issue of failure to serve pre-action notice and led evidence in that regard at trial. Thus, the defendant demonstrated the second option of not waiving its right to service of pre-action notice in an unequivocal manner, pleading it in its Amended Statement of Defence. And sections 36(1) and 37 of the Abia State University Law confer this right on it. It follows that, since issuance and service of pre-action notice on the defendant were not complied with, I am of the firm conviction that, this action is incompetent for failure to abide a condition precedent, and I so hold. I therefore buy all the arguments of counsel to the defendant on this issue as the correct statement of the law and accede to his prayer to strike out the action. In that event, issue 1 is resolved in favour of the defendant and against the claimant. Since issue 1 is a pivotal point, and being that, it is resolved against the claimant and in favour of the defendant, the action cannot stand, it is accordingly struck out for being incompetent.

Ordinarily, this would have been the end of the matter since the matter has been struck out, but in case my decision is found to be wrong on appeal, in order to obviate the need to send down the case for retrial, for not giving any decision on the merit of the case, I proceed to give judgment on the merit of the case. Per chance, my decision on threshold issue is wrong, this would give the Court Appeal a view of my reasoning on the merit of the case and thus,afford it the opportunity to assume appellate jurisdiction over it, instead of sending it back for retrial, and thus, wasting precious judicial andparties’time and resources. I therefore move to issue 2, which deals with the merits of the substantive case.

ISSUE 2:

WHETHER THE EMPLOYMENT OF THE CLAIMANT WAS LAWFULLY DETERMINED IN ACCORDANCE WITH RELEVANT LAWS AND CONDITIONS OF SERVICE?

Now, the argument of the learned counsel to the defendant herein is that the conditions of service on which the claimant relied upon to argue that her employment has statutory flavour does not cloth the employment with statutory flavour because, once a contract of employment provides for reciprocal rights of termination without more, statutory flavour could not be read into it and that, paragraph 2(b) of the letter of appointment provided that the employment in issue could be terminated by giving one month’s notice or payment in lieu thereof, and so, it does not enjoy statutory flavour. The learned counsel to the defendant also opined that, before conditions of service relating to an employment could be construed as having statutory flavour, the principal statute must expressly so provide; and that, in the alternative, before a separate conditions of service, not made as schedule to the principal statute by competent legislative body, could be held as having statutory flavour, they must be made as a subsidiary legislation thereto, which preamble must refer clearly to the enabling statute; and that, the conditions of service herein did not pass these tests.

The learned counsel to the defendant said, as a result, the employment of the claimant could be terminated with or without reason and that, any breach thereof would only give rise to damages measured in terms of the length of notice that ought to be given. The learned counsel to the claimant countered these by saying paragraph 2(a) of the letter of appointment and sections 28 and 29 of the Abia State University Law made the conditions of service a subsidiary legislation and clothed the claimant’s employment with statutory flavour. The learned counsel also said because, the claimant had become a senior staff, she would not be bound by paragraph 2(b) of the letter of appointment cited by the defendant’s counsel but now,by the conditions of service of senior staff of the defendant, the claimant having become a senior staff by promotion.

In assessing these arguments, the first point would be to examine which Conditions of Service would be applicable to the claimant’s case. The learned counsel to the defendant had argued that the conditions of service of senior staff would not be applicable unless the claimant signed another contract of employment at reaching the senior staff cadre. The learned counsel to the defendant cited Idoniboye-Obu as supporting this view because, according to him, the plaintiff in that case was terminated notwithstanding that he had been promoted from junior rank to senior rank. First, let me say that the learned counsel misconstrued Idoniboye-Obu’s Case. The case did not determine anything like that. In fact, the case applied the conditions of service appertaining to the rank of the plaintiff at the time of his termination, as the applicable conditions attaching to his employment. Issue of issuance of a new letter of appointment did not arise at all in the case. Even the NNPC Board did not make the regulations in issue mandatory as provisions were made for reciprocal rights of termination. So, Idoniboye-Obu’scase actually supports the views expressed by the learned counsel to the claimant that the applicable Conditions of Service would be the conditions of service of senior staff of the defendant. I therefore share the view of the learned counsel to the claimant that the argument of the learned defence counsel is wrong.

Besides, the argument of defence counsel in this score cannot be right under any circumstance. I am of the firm conviction that this argument is, with the greatest respect, preposterous. It stands logic and law on their heads. Why? Logic presupposes that when a person is promoted to a post, the intendment is that the person enjoys the rights and privileges attached to such post, otherwise, there would not have been any need for the person to aspire for the post and for the employer to promote the person to such post, if the conditions of service would not be transmuted by the post to which s/he is promoted.As the burdens or duties of the superior post are higher, so must be the incentives: this is a basic economic principle. The incentive of profits or gains is the great invisible hand that drives industry, otherwise,nobody strives and businesses and the society stagnate – see Adam Smith, Wealth of Nations.

The law envisages that parties could change, modify, alter or amend a contract at any stage,either in writingor by conduct or by a combination of both – see Elephant Investment Limited v. Fijabi (2015) LPELR-24732 (CA) 50-52, B-B and Babagana v. Lantewa (2013) LPELR-22787 (CA) 23, A-C.Common sense, the normal course of human affairs, custom and practice of employment relations dictate that,once a party is promoted to a particular post, s/he enjoys the rights and privileges appertaining to that post, unless expressly stated to the contrary, irrespective of being originally a junior staff and promoted from that rank to the envious rank of senior staff. And I cannot find any reason why it would be stated to the contrary: it would be against human natural conduct and acceptability. Part of these rights and privileges is the conditions of service appertaining to the post or rank to which the person is promoted; and I do not think it is the law that, once a person who started as a junior staff is promoted to the senior level in the same organisation, s/he must be issued another letter of employment to enjoy the rights and privileges appertaining to the new status. Even if that were the law, where another letter is not issued or another contract is not issued and signed, as opined, whose fault is it? Plainly, it is the fault of the defendant; and law and equity forbid a party to gain from his/her wrong. So, the defendant is estopped from arguing that the claimant cannot enjoy the benefits accruing to a senior staff simply because it [the defendant] failed to issue another letter of appointment to the claimant after promoting her to the rank of senior staff. This argument is evidence of bad faith and totally inequitable.

It not being the argument of the learned counsel to the defendant that there is no Conditions of Service for senior staff, then, it follows that, the claimant who had attained the rank of senior staff should and must be governed by the Conditions of Service applicable to senior staff in the defendant, irrespective of not been issued with another letter of appointment or made to sign a new contract at the point of the promotion to senior rank. To my mind, it would appear that the counsel to the defendant is saying the claimant remained a junior staff notwithstanding the subsequent promotion to senior staff, if she cannot enjoy the benefits attached to the rank of senior staff. This cannot be: the promotion letter [Exhibit CWG], by implication, altered the contract between the parties.This was exactly what the Supreme Court said in a not dissimilar situation. In CBN & Anor. v. Igwillo (2007) LPELR-835 (SC), 21-23, G-F, where the plaintiff/respondent was employed on probation but subsequently, his previousemployer insisted that he would only be released on transfer of service, and the defendant/appellant agreed and communicated the former employer accordingly, but did not issue another letter of appointment to the plaintiff/respondent showing that he was employed on transfer of service, and his employment was eventually terminated as one on probation; and thus,subject to two years probation, the Supreme Court held at p. 22, paras. D-F thereof:

“The contention of the appellants, therefore, that the respondent was to be on probation for a period of two years as contained in the letter of offer (exhibit A) can definitely not stand. I believe and hold that that condition had been varied by the aforementioned exchange of the letters…”

In any case, the defendant is even just blowing hot and cold on this issue. By paragraph 16 of the Amended Statement of Defence, the defendant stated that the termination of the claimant was done in accordance with the Regulations Governing the Conditions of Service of Senior Staff of the University, thus agreeing that, the conditions of service applicable to the claimant, is the Conditions of Service of Senior Staff. To turn round later in the address stage, to say the same Conditions of Service the claimant pleaded and which the defendant conceded is applicable to the claimant in its pleadings, is no longer applicable, without amending the extant Amended Statement of Defence, is a classic case of inconsistency. The defendant’s counsel’s argument is beyond his brief. His brief is as contained in the Amended Statement of Defence. He cannot go outside it on a frolic of his own. I am therefore of the considered and firm view that, the claimant, having been promoted to the rank of senior staff,became governed by the Conditions of Service of Senior Staff of the defendant; and I so hold.

The ratio I have just established above is in tandem with the inferential estoppel coveredinsection 169 of the Evidence Act 2011, which the Court of Appeal most recently expounded in Suit No. CA/A/795/2015 – Tukur v. the Kaduna Polytechnic & 2 ors. [delivered by the Abuja Division on 30^th July 2018, p. 39] by adopting the ratio of the Supreme Court in Re: Apeh (2017) 11 NWLR (Pt. 1576) 3112in toto:

“The effect of exhibit CA2, in my view, is that it operates as estoppels by conduct, the type of estoppels contemplated by section 163 [sic], Evidence Act 2011. That is: a party who has, either by his declaration or act, caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of the thing, he must accept the new legal relationship as modified by his own words or action, whether or not it is supported by any point of law, or by any consideration but only by his word or conduct…These applicants herein, represented by the 2^nd set of respondents, in view of exhibit CA2, cannot be allowed to approbate and reprobate at the same time. They are stopped by operation of exhibit CA2”.

The defendant is estopped by virtue of Exhibit CWG, which promoted the claimant to the rank of Senior Staff;from saying the claimant is not governed by the Conditions of Service of Senior Staff. Exhibit CWG was clearly marked “PROMOTION (SENIOR STAFF)”. This is not without a purpose. The purpose is to reflect the new status of the claimant and the corresponding attendant burdens, rights and privileges, amongst which is the Conditions of Service of Senior Staff.That this is so, is made clear by her letter of promotion [Exhibit CWF] to the last rank in junior cadre, which was also clearly marked “PROMOTION: (JUNIOR STAFF)”. It would be observed that, these are the only two promotion letters so marked amongst the whole lot of promotion letters tendered: the last on the rank of junior staff and the first on the rank of senior staff. This is definitely to mark the dichotomy in status, duties, rights and privileges appertaining to the two different statuses. I therefore hold again that the applicable conditions of service in the instant case are the conditions of service of senior staff. Now, to the other aspects of the arguments, I go.

The next point I intend to tackle with regard to issue 2 is the question whether or not the purported conditions of service enjoyed statutory flavour. Citing Idoniboye-Obu’s case, the learned counsel to the defendant had argued vociferously that the conditions of service in issue do not enjoy statutory flavour because it was not made pursuant to any enabling law and that there was nothing in the body, showing that it was so made. Relying on the same authority, the learned counsel to the claimant countered and argued that the conditions of service enjoyed statutory flavour because itwas made pursuant to sections 28 and 29 of the Abia State University Law. The implication of these arguments and counterarguments as they were, is that, the status of the Conditions of Service is in issue.

For the Court to unravel the knotty issue, the whole of the composite manual containing the conditions of service must be tendered before the Court. Even more so, the counsel to the claimant, quoting Tobi JSC profusely, had argued that the Conditions of Service satisfied all the specifications of Tobi JSC in Idoniboye-Obu’s case [see paras. 6.09-6.11 of the claimant’s written address]. And part of these prerequisites is that, the opening clause of any supposedly subsidiary legislations must be couched in a particular form before it could be so recognised, making it very obvious that, one must have the whole of the composite document in order to see if it was so couched, as argued by counsel to the claimant; and yet, the learned counsel did not tender part of the composite document containing the opening clause nor even refer the Court to it. It does not matter whether the Court agrees with that argument or not. The starting point is to examine the purported subsidiary legislation to see if what the learned counsel to the claimant said was actually true. As it turns out, the whole of the composite document is not before the Court to confirm the argument of the learned counsel to the claimant that all conditions precedent were met. I think common sense and logic demand that, if the status of a document, as to whether or not it is a subsidiary legislation, is in issue, the party alleging that it is, has the duty to tender it to enable the Court, as a matter of evidence, determine that question. Until it is tendered, and the Court finds it to be subsidiary legislation, the Court cannot prejudge the issue and go ahead to take judicial notice in absentia of a document as subsidiary legislation, whose status is being contested. That would be speculative. And a court of law lacks the vires to speculate. It must base its decision on hard evidence.

It goes without much ado that it is the duty of the claimant to tender it. Now, the claimant tendered Exhibit CWN-CWN3 as the conditions of service. Exhibit CWN-CWN3 tendered is a four-page document made up of the front-cover page of the manual purportedly containing the conditions of service, and pp. 12, 13 and 14 ostensibly lifted from the purported composite manual. This is what the claimant tagged the conditions of service, as if what she deemedsupports her case alone is what matters!Is the method adopted by the claimant, as depicted above, in compliance with the law regarding tendering of a composite documents? In Usman & Anor v. Maccido & Ors (2009) LPELR-8517 (CA) 30, C-F, the Court of Appeal threw some lights on this:

“It is elementary rule of interpretation of statute, construction is to be made of all the parts of a statute together and not one part only by itself. Put differently, construction of statutes should be wholistic [sic]…Thus, the settled position on construction of any document be it wills, contract or statute is that the document must be read as a whole and its part also read in that light. Furthermore, an effort must be made to achieve harmony among its part [sic].” [Underlining supplied for emphasis]

The above is the statement of law on how to construe documents, contracts and statutes. If this maxim is to be obeyed, it means the document falling for construction must be tendered in whole and not in bits and pieces for the Court to do its work. The manual containing the conditions of service in issue, which ostensibly run into several pages, as could be seen from the disjointed pages tendered, was not tendered in whole, but in bits and pieces. The claimant just tendered the few pages that she felt support her case and left the larger gamut. And to make matters worse, during adoption of the final written addresses of parties, the learned counsel to the defendant sought to tender the whole of this manual, but the learned counsel to the claimant opposed him and the document was withdrawn. It was rather surprising that, at that stage, when the learned counsel to the claimant had had the opportunity of reading the final written address of the counsel to the defendant and saw the arguments on whether the conditions of service enjoyed statutory flavour or not, it did not occur to him that mistake was made in not tendering the composite document and that it was necessary to tender the whole document for the Court to be able to have a holistic view of the provisions and be thus able to determine, if indeed, the conditions of service enjoyed statutory flavour and therefore, a subsidiary legislation or that it does not enjoy statutory flavour and thus, a mere manual of conditions of service that could not prevent the defendant from sacking the claimant at will.

The defendant’s counsel was unknowingly assisting the claimant in attempting to give a composite copy of the manual to the Court because it is the claimant that has this primary responsibility and not the defendant; and since this attempt was thwarted by the learned counsel to the claimant, the claimant cannot cry wolf if it turns out that she ought to have tendered the whole composite document and did not.What the learned counsel to the claimant did not realize is that, since there was a contest on the status of the conditions of service, until the manual is carefully examined, the Court cannot determine that it enjoys statutory flavour and thus, a subsidiary legislation, which the Court is bound to judicially notice.It is a different kettle of fish where both parties agree that an employment has statutory flavour but defer on the interpretation of the relevant provisions of the conditions of service. Under such situation, the authenticity of the conditions of service, as a subsidiary legislation, is conceded hence, a court could take judicial notice thereof, but where the contest is that, the conditions of service do not enjoy statutory flavour, the implication is that, the status of the conditions of service is in doubt, and a court cannot invoke the doctrine of judicial notice until the document is tendered and examined. It might have also been another ball game entirely, were the defendant to tender the composite manual and the claimant, as in this casetendered,snippets fromit. The Court could rely on its power to examine documents in its kitty to construe the snippets tendered in the light of the composite onetendered by the defendant and containing the snippets and the remaining gamut. But that is not the case here.

What happened in the instant case, whereby the counsel to the claimant opposed the tendering of the composite manual containing the conditions of service,is what usually happens when counsel does not know when to put limit to antagonistic postures at trial. The claimant must sleep in her bed as her counsel assisted her to lay it.I think this happened because it was not the counsel that conducted the trial that appeared on the date of adoption when this incident happened. This is one of the dangers of another counsel appearing in the middle of a case not bothering to carefully read the whole file before appearing in court. While V.O. NWUGO conducted the trial, D.C. EBERE appeared on the 30^th November 2018 when the matter came up for adoption of final written addresses. By so doing, the learned counsel to the claimant seemed, in a way, to confirm the arguments of the defendant’s counsel that, the conditions of service donot enjoy statutory flavour otherwise, he would not have opposed the tendering of the composite supposedly subsidiary legislation from the Bar. In Akinbisade v. State (2006) LPELR-342 (SC)18, B-E, the Court of Appeal observed on a similar situation:

“I am in a grave difficulty to agree with the submission of learned counsel to the appellant. It is the law that for the purposes of obtaining a balanced picture in documentary evidence the entire documents must be interpreted as a whole and not in parts or pockets convenient to a party. In other words, a party cannot pick and choose extract from a document that is convenient to his case. That will be tantamount to shutting out the truth searching process in the mater before the court.”

Arising from the above authority, the implication is that, the other parts of the manual containing the conditions of service are probably not favourable to the claimant, which is the reason why her counsel used all energy to prevent its being tendered or that, in the alternative, the learned counsel did not know what was good for her client; and it is trite that, ignorance of the law is no excuse – see Hydroworks Ltd v. Rimi Local Government (2001) LPELR-5712 (CA) 10-11,G.The long and short of this is that, since only the few pages of the gamut of the composite manual were tendered, instead of the whole gamut, these do not satisfy the requirement of the law that the whole of a composite document/instrument must be tendered and all the provisions construed together, it follows that, the conditions of service was not tendered,as the manual containing the full conditions of service was not tendered as required by law. I therefore hold that the claimant failed to tender the conditions of service in issue.Flowing from this, Exhibit CWN-CWN3 is hereby discountenanced for not being the whole of the composite manual containing the conditions of service that ought to have been tendered.

It follows logically that the conditions of service have not been tendered. Not having been tendered, the conditions of service or more so, the manual containing the composite conditions of service in issue, this Court is hindered from exercising its jurisdiction to determine whether or not the conditions of service enjoy statutory flavour, and even, to determine whether the employment was wrongfully determined or not – seeKalgo v. Kalgo & Ors. (1999) LPELR-6527 (CA) 10, Paras. D-G; and Shittu v. Kwara State Polytechnic, Ilorin & Ors (2014) LPELR – 23820 (CA) 26, paras. D-F, where the Court of Appeal, on a comparable scenario held:

“In the final analysis and for what I had said above the enrolled orders – Exhibits A and B attached to the motion ex-parte did not satisfy the requirement that the judgment sought to be enforced must be placed before the Court and as such the material necessary to assist the trial Court in arriving at its decision in the exercise of its discretion to make the Order nisi was not placed before it. This accordingly robbed the Court of the jurisdiction to make the Order nisi in the first place.”

In any case, even if the said manual were a subsidiary legislation, it has always being the duty of the claimant, and not of the defendant, to tender it in the acceptable manner. And the acceptable manner is to tender the complete manual containing the whole of the conditions of service and not snippets from it. This is the law in employment cases – see Adekunle v. UBA PLC (2016) LPELR-41124 (CA) 21-22, D-B;Mighty Plastic Industry Limited v. Okeke (2016) LPELR-41034 (CA) 8-9, Paras. D-A; andOmale v. University of Agriculture Markurdi & Ors. (2011) LPELR-4366 (CA) 28-29, C-A, where the Court of Appeal held, and I quote:

“A party who relies on a document in proof of his claim must tender the document as extrinsic evidence of its contents is not admissible in evidence…Similarly, the appellant in the instant case who rested on the Regulations in proof of the nature of his employment ought to have tendered same in evidence as the pleadings and oral evidence of its contents will not place the Regulations before the court. As it was not tendered in evidence, the Regulations was left to lie in the records as a toothless bull dog.

Reliance cannot therefore be placed on the Regulations which was not tendered to determine whether the employment of the appellant has statutory flavour to entitle him the grant of the other reliefs sought. To decide otherwise will compel the court to speculate on the contents of the Regulations which is not the function of the court.” [Underlining supplied for emphasis]

This is so, because even if the conditions of service agreeably enjoys statutory flavour as a subsidiary legislation separately made by quasi-legislative body and not as a schedule to the principal enactment, not being in the nature of Acts and Laws of parliament, which the Court is deemed to have access to and thus, can search out by itself, it must still be tendered by the claimant who builds her case upon it and, which very document, is made part of her contract of employment and not made available to the public at large but strictly between the contracting parties, before the Court can take judicial notice of it and act accordingly– Global Soap & Detergent Ind. Ltd v. National Agency for Food & Drug Admin. & Control (NAFDAC) (2011) LPELR-4202 (CA) 33, A-E; and Yusuf & Ors. v. Toluhi (2008) LPELR-3533 (SC) 6-7, G-B. If the claimant decides to hide it in its closet or bring forward only the aspects favourable to her, leaving the vast gamut out of the prying eyes of the Court, that is her problem. She should not expect the Court to speculate as to those hidden contents or the Court to apply by itself for CTC thereof. It is in realization of this fact that, the University of Lagos Act provides in section 14 how to prove in courts, a subsidiary legislation –which it calls statute– made by the University:

“A statute may be proved in any court by the production of a copy thereof or having affixed to it a certificate purporting to be signed by the Vice-Chancellor, the Deputy Vice-Chancellor or the Registrar, to the effect that the copy is a true copy of a statute of the University.”

By now, the position of law is clear that, the claimant has the responsibility to plead and prove by cogent evidence the terms and condition of his service that were breached in the termination. The first step to doing these is, to tender the composite document containing the conditions of service allegedly breached [and not snippets from it, as done in this case] and secondly, point the Court to the very provisions that were allegedly breached. These requirements are cumulative and must be cumulatively satisfied. The claimant only satisfied the second by referring the Court to the provisions allegedly breached, but failed to tender the composite manual containing the said conditions of service. These cumulative prerequisites are threshold, failure of both or either attracts dismissal of the claimant’s case as unproved – see Ikuma v. Civil Service Commission, Benue State (2012) LPELR-8621 (CA) 18-19, Paras. B-G. Thus, issue 2 is resolved in favour of the defendant and against the claimant. The claimant’s case is accordingly dismissed as unproved. I now move to the counterclaim.

THE COUNTERCLAIM

In the main, the relief claimed in the counterclaim relates to cost, and no more. This is not what is called counterclaim. A counterclaim is an action, which could stand on its own, independent of the claimant’s action. This cannot be said of the counterclaim filed in this action. The counterclaim is merely asking for the cost of prosecuting this action, meaning that, had this action not been filed, it could not have arisen. It is also not a setoff, since it was not a liquidated sum, which the claimant owed the defendant as a result of transactions connected with this suit, which the defendant could set aside against any monetary claim against it by the claimant in this action. Besides, the supposedly counterclaim, is in the nature of special damages, and must be strictly proved by itemizing the heads by which the cost was incurred and how the cost was incurred and the receipts showing this. None was done in the instant case – Mantec Water Treatment Nig., Ltd v. Petroleum (Special) Trust Fund (2007) LPELR-9030 (CA) 31-32, F-B.

Apart from the foregoing, the only piece of evidence led on the counterclaim, which is the witness deposition of DW1, apart from the fact that it did not satisfy the requirements of the law as shown above, is also at variance with the pleadings. It claimed N10Million Naira, whereas, the Amended Statement of Defence and Counterclaim put the cost at N2Million Naira. The law is that evidence at variance with pleadings go to no issue –see West Africa Company Ltd v. Caroline Poultry Farm (Nigeria) Ltd (1999) LPELR-6228 (CA) 11, F.To crown it, the counsel to the defendant did not address the issue in the defendant’s written address, meaning that it has been abandoned – see Society Bic S.A. & Ors. v. Charzin Industries Limited (2014) LPELR-22256 (SC) 56, B-E. Besides, I endorse:Guinness Nigeria Plc v. Nwoke (2000) LPELR-6845 (CA) 23-24, B-B; and Nwanji v. Coastal Services Ltd (2004) LPELR-2106 (SC) 18, B-E, as the true position of law in Nigeria on the fact that, counsel fee cannot be shifted to a party that lost in a suit.The counterclaim is thus unproved. I therefore dismiss it too, as unproved.

CONCLUSION

It is only what the Court considers as realistic and reasonable cost of filing and prosecuting a case that it awards in this country, taking into consideration all the surrounding circumstances of the case. In view of the fact that the two parties lost their respective cases, cost of each cancels the other, consequently, I award no cost. The case and the counterclaim are both dismissed.

Judgment is, accordingly and formally, entered.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Judge

NATIONAL INDUSTRIAL COURT OF NIGERIA