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FALALU MANU UMAR -VS- JOINT ADMISSIONS AND MATRICULATION

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVIDION

HOLDEN AT YOLA

DATED THIS 2ND DAY OF DECEMBER 2019

BEFOREHIS LORDSHIP, HONORABLE JUSTICE K.D. DAMULAK

                                                                                             SUIT NO.NICN/JL/02/2017

BETWEEN:

FALALU MANU UMAR                                          …………..CLAIMANT

AND

JOINT ADMISSIONS AND MATRICULATION BOARD        …..………… DEFENDANT

REPRESENTATIONS:

Martin Milkman, Esq.,Ganki Hassan, Esq.,Simon Joseph, Esq.

F.U. Fonga, Esq., S.H. Sani, Esq. andP.E. Aina, Esq. for the claimant.

Hadiza Baba Gimba, Esq., Yakubu Ahmadu, Esq. and Charles Ojonugwa, Esq. for the defendant.

 

  1. INTRODUCTION:

This is a claim of wrongful termination of employment. The claimant filed a complaint on the 20th of December, 2017, together with a statement of fact, list of witnesses, list of documents to be relied on and copies thereof. Claimant filed an amended complaint on the 1st of April, 2018  with amended statement of facts without witness statement on oath or any accompanying documents. The amendment was granted on 16/5/2018.  The claimant prays in his amended complaint for the following reliefs:

  1. A DECLARATION that the Claimant’s employment with the Defendant being a statutory employment cannot be terminated except in accordance with the procedure required by law.
  2. A DECLARATION that the Claimant’s employment having not been terminated from the employment of the Defendant is entitled to all his salaries and allowances from August, 2016 (when the Defendant stopped paying him) to the time of his retirement, unless his employment is properly terminated.
  3. AN ORDER Of the Honourable court compelling the Defendant to compute and pay the Claimant all his arrears of salaries and allowances from August. 2006 (when the Defendant stopped paying him) to the date of the judgment in this case.
  4. AN ORDER of injunction restraining the defendant from further tempering or withholding the Claimant’s salaries and allowances up till the time of his retirement or proper termination of his appointment with the Defendant.
  5. The sum of Five Million Naira (N5,000, 000.00) as general damages.
  6. AND FOR SUCH FURTHER 0RDER(S) as this honourable court may deem fit to make in the circumstances of this case.

In response, the defendant, who did not file a statement of defence before the amendment of claimant processes, filed a consequential amended statement of defence and other accompanying documents, as ordered by the Court, on the 28th of May, 2018.

  1. SUMMARY OF THE CASE:

The claimant was employed by the defendant on the 4th of July, 1996 as Principal Accounts Assistant IV and later confirmed on the 2nd of August, 1998. He was promoted to Principal Accounts Assistant III on 1st of July, 1999 and later to Principal Executive Officer (ACCT). Subsequently, the defendant terminated the employment of the claimant on the 10th of July, 2006, hence this suit.

  1. CASE OF THE CLAIMANT:

The claimant testified as CW 1 on 15/5/2019, he adopted his witness statement on oath of 20/12/2017. His said witness statement on oath is as follows:

In July, 1996 I was offered a provisional employment into the services of the defendant as Principal Accounts Assistant IV. The defendant confirmed my appointment as their permanent staff and same was communicated to me by a letter dated 14th December, 1999, wit Ref. No. JAMB/ADMIN/46/P316/VOL/45, and that the permanent and pensionable appointment takes effect from 2nd August, 1998. The defendant decided to promote me to the position of Principal Accounts Assistant III, with effect from 1st July, 1999 and was placed on HATISS 8, STEP 1. The promotion letter is dated 14th December, 1999, with Ref. JAMB/R. I was further promoted from the position of Principal Accounts III to the position of Principal Executive Officer (ACCT) with effect from 1st July, 2002. I was placed in HATISS 9, STEP 1 as stated in the said letter. The letter of promotion addressed to me by the defendant is dated 13th December, 2002. I know for a fact that HATISS 9, STEP 1 means level 9 step 1. My promotion normally comes after every 3 years. My next promotion to HATISS 11 STEP 1 which was the next level after HATISS 9 STEP 1 was meant to be in July, 2006. But the defendant failed and refused to promote me even after I fulfilled all the requirements without any justification. All my mates in the service of the defendant are currently at Level 14 and will be due for Directorship in 2018.

 

On the 22nd November, 2002, I was transferred from Finance and Supplies Department, JAMB National Headquarter, Bwari, Abuja to JAMB Office Jalingo, Taraba state, as Acting Coordinator of the State office I wrote a letter to the Taraba State Government to purchase the defendant’s application forms for Taraba state indigenes. The said letter is dated 18th January, 2005 with Ref. No. JAMB/TRSO/ADM/38. In response to my above stated requested, Taraba state government purchased 590 JAMB forms for her indigenes and that receipt of payments were issued to the State Government after they paid for the JAMB forms.

The defendant served me with a letter dated 10th July, 2006, stating that my appointment has been terminated. The said letter served on me does not contain any offence that warranted the issuance of such letter on me. The defendant did not follow the procedure for terminating the appointment of a public servant in the employment of the Federal Government laid down in the Federal Public Service and Civil Service Rules. The defendant did not give me three months’ notice as required under the Federal Government Public Service Rules. Since I was appointed to work for the defendant, I have never been issued with any query and have never faced any disciplinary committee or panel or even personality. Since August, 2006, the defendant stopped paying my salary and up till the time of filing this case, I have not received any payment from the defendant as salary or entitlement of whatever name. The act of stopping my salary by the Defendant is a wrong which is activated every month the Defendant fails or refuse to pay my monthly salary.

Before my salary was stopped by the defendant, I was receiving the sum of one million four hundred and forty five thousand five hundred and seventy four naira (N1, 445, 574) only, per annum as my salary. That was why I was paid the sum of one hundred and twenty thousand four and sixty four naira fifty one kobo (120, 464.51) only, as salary in the month of July, 2006, being the last month that I received my salary from the defendant. I noticed that the content of the letter purportedly terminating my employment, did not in reality terminate my employment with the defendant. The Board was only directed to terminate my appointment by computing and paying all my entitlements including one month’s salaries in lieu of notice as stated in my appointment letter. The defendant without terminating my appointment only stopped paying my salaries and did not pay me my entitlements. Upon my retirement, I am entitled to gratuity and pension since I had served the defendant for over 10 years making pension contributions from my salaries.

Under cross examination, the claimant testified that:

I was never issued any query by the defendant. I was issued a query on 30/3/2005 but it was withdrawn by the management. I answered the query. The defendant served on me a letter dated 28/4/2005 to remit proceeds for sale of JAMB forms. I was invited to attend a disciplinary committee but I did not attend. I wrote a letter to the House of Representative. The House simply did not reply to me. I never sold JAMB form for 2004/2005 and refuse to remit the proceeds to the defendant. I had a copy of the Regulations and Conditions of Service but I handed it over to the defendant. I did not serve the defendant with a pre-action notice.

The following documents were tendered and admitted in evidence:

  1. Letter of probational offer of appointment dated 4/7/1996- Exhibit FMU 1
  2. Confirmation letter dated 14/2/1999- Exhibit FMU 2
  3. Promotion letter dated 14/12/1999- Exhibit FMU 3
  4. Notification of promotion dated 13/12/2002- Exhibit FMU 4
  5. Transfer letter dated 22/1//2002-Exhibit FMU5
  6. Letter of termination of appointment dated 10/7/2006- Exhibit FMU 6
  7. JAMB receipt dated 14/3/2005- Exhibit FMU 7
  8. Response to query dated 8/3/2005- Exhibit FMU 8

 

  1. CASE OF THE DEFENDANT

Ojo Sunday, Assistant Chief Administration Officer to the defendant, testified on behalf of the defendant as DW 1 as follows:

The defendant admits paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 15 of the claimant’s statement of claim. The appointment of the claimant was since terminated on the 10th July, 2006 by the Governing Board of the defendant following the appearance of the claimant before a constituted disciplinary committee of the defendant on the 8th and 9th June, 2005 at the boardroom of her National Headquarters Bwari, Abuja on an allegation of corruption for failing to remit N1, 192, 500.00 (one million, one hundred and ninety two thousand naira, five hundred naira) to the defendant.

The letter dated 10th July, 2006 served on the claimant was a letter of termination of the claimant’s appointment with the Defendant and not a letter stating that the claimant’s appointment will be terminated. Even though the letter of termination did not expressly contain the offence committed by the claimant, it does not in any way rule out the fact that indeed, the claimant committed an offence against the defendant. Due process was followed before the issuance of the letter of termination of appointment of the claimant. The defendant has an Act, Regulations and Conditions of Service guiding the termination of her employees’ appointment known to the claimant.

The claimant was issued with a query with Ref No: JAMB/RO/AUD/0519 dated 30th March, 2005 in respect of the claimant’s failure to remit N1, 192, 500.00 (one million, one hundred and ninety two thousand five hundred naira) for 2003/2004 Direct Entry forms given to the claimant as state coordinator to sell at the defendant’s Taraba state office, Jalingo. The claimant answered the query by writing a letter to the defendant dated 8th March, 2005 but received by the defendant on the 8th April, 2005. Upon the receipt of the answer to query written by the claimant to the defendant stating that, the said amount has been remitted to the defendant, the Deputy Director Personnel to the defendant wrote a letter dated 25th April, 2005 to the Deputy Director, Revenue and Mobilization to the defendant for clearance of some cases facing audit query in which the name of the claimant was indicated as number (e) on the list. The defendant on discovering that the claimant has not remitted the said N1, 192, 500.00 (one million, one hundred and ninety two thousand, five hundred naira) wrote a letter dated 28th April, 2005 to the claimant giving him 30 days ultimatum to either remit the said money or face any action to be taken by the Board. Upon the failure of the claimant to pay the money after the expiration of the 30 days ultimatum, the defendant issued a letter of invitation dated 2nd June, 2005 to the claimant to appear before her disciplinary committee on the 8th and 9th of June, 2005 at the defendant’s boardroom of her National Headquarters Bwari, Abuja by 11 a.m. the said letter contained list of the defendant’s staff who were to appear before her disciplinary committee. The claimant’s name was indicated as number 3 on the list. During the hearing of the query by the disciplinary committee of the defendant over the allegations of non-remittance of money by the claimant, it was discovered that, the claimant only remitted N47,700.00 (forty seven thousand, seven hundred naira) only as against N1, 192, 500.00 (one million, one hundred and ninety thousand naira, five hundred naira) that he was to remit, thereby bringing the total amount of money unremitted by the claimant to the defendant to N1, 144, 800.00 (one million, one hundred and forty four thousand, eight hundred naira). Before arriving at the said figure, the 122nd management committee summary decision on disciplinary cases resolved to visit the defendant’s office at Jalingo in Taraba state to investigate the claimant.

At the 51st meeting of the Governing Board of the defendant, disciplinary cases were deliberated upon and decisions were adopted. The claimant’s name appeared as number 1 on the list. Thereafter, the defendant showed compassion on the claimant based on his plea for leniency and terminated is appointment without stating the reason for so doing. The House of Representatives Committee on Basic Education and Services wrote a letter dated 16th June, 2017 to the Registrar of the defendant stating that, the claimant wrote a petition against her via Y.N. Akirikwen and Association titled: ‘RE-WRONGFUL TERMINATION OF APPOINTMENT/APPEAL FOR REINSTATEMENT AND PAYMENT OF THE BENEFIT AND ENTITLEMENT’ and requested the defendant’s response to the allegation and evidence to prove that due process was followed in reaching the decision to terminate the appointment of the petitioner by the Board. In response to the letter from the House of Representatives Committee on Basic Education & Services, she wrote a letter dated 22nd September, 2017 to the Honorable Chairman stating the circumstances that led to the termination of the claimant’s appointment and how due process was followed with documentary evidence attached. The House of Representative Committee on Basic Education and Services upon the receipt of the letter of response from the defendant dismissed the petition of the claimant for lack of merit.  The claimant is not entitled to salaries from August, 2006 up till the time of filing this suit.

DW 1 under cross-examination stated that:

I was not working with the defendant as of 2005. I was not in the picture of what led to the termination. But I know these facts from records. The one month notice was not given to the claimant. The claimant was paid one month salary in lieu. I did not place any evidence before the court on the payment of the one month salary in lieu of notice. Every staff of the defendant has a file in the custody of the defendant. When a query is issued to any staff, a copy is documented in his file. It is not possible for the court  to know what is the content of the query. The claimant was invited to explain further as written on Exhibit FMU 8. I don’t know whether the instruction to ask the claimant to further explain was carried out. I did not bring the receipt that the claimant attached to exhibit FMU 8. Steps were never taken by the defendant to clarify the authenticity of the receipts annexed to the reply to the query exhibit FMU 8. I know one Mr. Ignatius Okoronkwo. I know one Noble Onukwe now retired. I know from my records that Ignatius, Noble and claimant were queried on the same issue of non-remittance of proceeds from sales of forms.

The following documents were tendered and admitted in evidence:

  1. CTC of the letter for the offer of probationary employment dated 24/6/1996- Exhibit OS 1
  2. CTC of confirmation of appointment dated 14/12/1999-Exhibit OS 2
  3. CTC of letter for termination of appointment dated 10/7/2006-Exhibit OS 3
  4. CTC of letter of clearance dated 25/4/2005- Exhibit OS 4
  5. Letter in reference to query dated 28/4/2005- Exhibit OS 5
  6. Letter of invitation dated 2/6/2005- Exhibit OS 6
  7. CTC of 122nd Management Committee meeting dated 12/7/2005- Exhibit OS 7
  8. Internal memo (CTC) dated 6/7/2006- Exhibit OS 8
  9. Letter to House of Reps dated 16/6/2017- Exhibit OS 9
  10. Letter from the defendant to House of Reps dated 22/9/2017- Exhibit OS 10
  11. Regulations and Conditions of Service – Exhibit OS 11

 

  1. DEFENDANT’S FINAL WRITTEN ADDRESS

The defendant raised seven (7) issues for determination and argued them as follows:

  1. Whether the claimant has fulfilled the condition precedent to the commencement of this suit:
  2. Whether the action is statute barred for failure of the claimant to commence the present suit within three months from the time the cause of action arose?

The submissions on the first two issues will be considered under the ruling on preliminary objection.

  1. Whether the termination of the appointment of the claimant vide letter dated 10th July, 2006 was wrongful having regards to the Regulations and Conditions of Service of the defendant?

Counsel submits that the contention of the claimant that the Public Service Rules was not followed in terminating his appointment does not hold water because it does not apply to the defendant. This is because by the agreement between the claimant and the defendant, it is the Regulations and Conditions of Service, exhibit OS11 that applies to the contract of employment. See Teju Investment and Property Co. Ltd v. Subaru (2016) LPELR 40087 (CA) pg. 20 paras. B-C. Counsel further argues that the defendant has complied with the provisions of exhibit OS 11, particularly sections 1.00, 1.01, 1.02, 2.00 & 2.01 of chapter 9, in terminating the claimant’s employment.

  1. Whether the claimant was paid one month’s salary in lieu of notice of termination of his appointment by the defendant?

Counsel argues that the sum of N120, 464.51 received by the claimant as his last salary paid to him by the defendant for the month of June, was actually a cumulation of his one month payment in lieu of notice as well his salary for 10 days from 1st of July to 10th of July, 2006.

  1. Whether the claimant was compulsorily entitled to one month’s notice of termination of appointment from the defendant?

Counsel contends that it is the claimant that is duty-bound to give one month’s notice to the defendant if he wants to terminate his appointment, while the defendant is only obligated to pay one month’s salary in lieu of that notice as paragraph 5 of exhibit FMU 1 states that: ‘this appointment may be terminated either by you or the Board by one month’s notice or payment of one month’s salary in lieu.’ Counsel further submits that assuming but not conceding that the defendant is to give the claimant the one month’s notice, the paragraph uses ‘or’ which gives the defendant an option to choose between the two.

  1. Whether steps were taken by the defendant to clarify the authenticity of the receipt submitted by the claimant as directed in exhibit FMU 8?

Counsel submits that the recommendations of the Disciplinary Committee in exhibit FMU8 were carried out by the defendant. Verifications were made and it was discovered that the sum of N1, 192, 500 was unremitted by the claimant as can be seen from exhibit OS4. Also, in paragraph 4 of exhibit OS7, after studying the report of Dr. Saleh Abubakar as recommended, it was discovered that there was an outstanding N1, 144, 800 to be remitted.

  1. Whether the claimant is entitled to his claims as endorsed in the complaint and amended statement of facts establishing the cause of action?

Counsel finally submits that the claimant is not entitled to the reliefs claimed because he did not state the true facts surrounding the termination of appointment. It is trite in law that where there are material contradictions in evidence the entire evidence should be rejected. See Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393 per Ogunbiyi J.S.C., pg. 68, paras. A-C.

Counsel urged Court to strike out the suit or dismiss same for lack of merit.

 

  1. CLAIMANT’S FINAL WRITTEN ADDRESS:

The claimant formulated two issues for determination and argued them as follows:

  1.   Whether or not the employment of the claimant with the defendant has been terminated?

On this issue, Counsel relies on exhibit FMU6, the alleged letter of termination, which states that:

‘I am, directed to inform you that the Governing Board of the Joint Admissions and Matriculation Board has directed that your appointment be terminated. The Director of Finance and Supplies has been directed to compute and pay all your entitlements including one month’s salary in lieu of notice.’

It is the argument of the Counsel that these underlined statements connote that the decision of the defendant will be implemented. And it is trite in law that in interpreting documents, parties intend what they said. See Attorney General of Nassarawa State v. Attorney General of Plateau State (2012) LPELR 9730 (SC) PG. 66, PARAS. C-D. Moreover, there is no evidence showing that the above mentioned payment in lieu of one month notice has been paid.

Notwithstanding the above, Counsel submits that the provision of paragraph 3.01 of chapter 9 of JAMB Regulation and Conditions of Service of Staff which states that the Board must be informed before a staff initiates a court action, does not apply to the instant case.

  1. Whether or not he alleged termination of the claimant’s employment is liable to be set aside for being a nullity?

The learned Counsel submits that the employment of the claimant being one with statutory flavor can only be terminated after the laid down procedures have been complied with. See Oluntoba Oju & Ors v. Abdul-Raheem & Ors. (2009), SC, pages 55-57. Paragraph 11.1(ii) of the Joint Admissions and Matriculation Board Staff Regulations and Conditions of Service provides that before the employment of a staff can be terminated, it must be on the ground of general inefficiency and such staff must have been warned three times. Counsel further contends that the requirement of warning in exhibit FMU6 was not complied with. Equally, Counsel posits that the requirement of payment of one month’s salary in lieu of notice was equally not complied with. DW1 corroborated this non-payment under cross-examination.

Counsel also argues that the burden of proving the allegation against the claimant, non-remittance of proceeds of forms sold, lies on the defendant and this has not been discharged as no evidence has been put before this Court showing such. See Nsefik v. Muna (2007) 10 NWLR (Pt. 1043) 502, at page 514, paras. D-F. Still on this issue, Counsel asserts that when exhibit OS 5 was served on the claimant, he replied via a letter dated 8/3/2005 and even attached a receipt evidencing the remittance of the proceeds. Furthermore, Counsel submits that the directives made by the Disciplinary Committee on the case of the claimant were not complied with and the Board, nonetheless, went ahead to terminate the employment of the claimant, thus suggesting mala fide.

Counsel further argues that assuming but not conceding that the claimant did not remit the said proceeds, the punishment meted out was not commensurate to the offence. This is more so when the punishment is compared to that of Mr. Ignatius Okonkwo and Mr. Noble O. Onukwe who were queried the same time as the claimant and on the same allegations. The Committee recommended that they be issued letters of warning, be transferred to the National Headquarters and the approval of their promotion be withdrawn.

Counsel submits that the defendant who is in contravention of the Federal Public Service Rules and the terms of contract of service, cannot hide under the protective umbrella of section 2(a) of the Public Officers (Protection) Act to render the suit statute barred. See University of Ibadan v. Governor of Kwara State & Ors. (2012) LPELR-14326 (CA) pg. 91-95, paras. B-A. Counsel also asserts that section 2(a) of the Public Officers’ Protection Act has two legs to it. The first relates to ‘permanent damage or injury’, in which case a suit is to be commenced three (3) months after the alleged wrong. The second is the ‘continuous damage or injury’ under which the suit is to be commenced three (3) months after it ceases. See Kano State House of Assembly v. Umar (2014) LPELR-24008 (CA) pg. 50.

Counsel goes further to argue that the acts complained about by the claimant is of the continuous nature as every month the defendant fails to pay the claimant his salary and entitlement, the cause of action inures. As such, the suit cannot be said to be statute barred. See Kano Sate House of Assembly v. Umar (supra), pg. 49-50, paras. F-D.

Counsel submits that the authorities cited by the defendant on the above issue are incongruous to the case at hand. This is because in all the cases the termination was ascertained, while in the present suit, the claimant’s contention is that the employment is still subsisting.

In addition, Counsel submits that the Public Service Rules 2014 applies to the defendant because by section 318 of the 1999 Constitution, the defendant is a public servant. By schedule 6 of chapter 2 of the Public Service Rules, three months’ notice or one month’s salary must be given before employment can be terminated. The defendant clearly contravened this provision.

Counsel argues that the last salary received by the claimant was not the payment in lieu of notice envisaged by exhibit exhibits FMU 6/OS3, but rather for work done for that month. The payment of a month’s salary in lieu of notice is given in addition to salary to help cushion the harsh effect of retrenchment.

As to the allegation of contradictory evidence by the defendant, Counsel submits that the defendant did not specify the contradictions in the evidence of the witness and only material contradictions will affect evidence. See Ebenezer Nwokoro & Ors. V. Titus Onuma & Anor. (1999) LPELR-2126 (SC) pg. 16-17, paras. E-D.

Counsel finally urged the Court to resolve the issues in favor of the claimant.

 

 

  1. DEFENDANT’S REPLY ON POINTS OF LAW:

In reply to the claimant’s written address, learned Counsel to the defendant submits that the defendant’s consequential amended statement of defence is as a result of the ruling of the Court dated the 16th of May, 2018 wherein the defendant was ordered to file the amended process within 14 days. Claimant’s submission cannot outweigh written document. See UBN v. SAX (Nig.) Ltd (1994) 8 NWLR (pt. 361) pg. 150. Counsel further proffers that assuming but not conceding that the defendant erred by filing the amended statement of defence, the Court is enjoined to invoke section 12 (2) (a) if the National Industrial Court Act 2006 and Order 5 Rule 3 of the NICN (Civil Procedure Rules) and ignore the nomenclature used. Failure to do this would be tantamount to denying the defendant fair hearing. See N.B.T.C. Ltd v. Court (2010) 8 NWLR pt. 1196, pg. 257, paras. G, H and P. and pg. 258, paras. D-G.

As to the argument of the claimant that the defendant entered appearance late without applying for extension, Counsel submits that an application had been made and all penalties paid, however, the application could not be moved because His Lordship N.C.S. Ogbuanya was transferred to Port Harcourt. The Counsel urged the Court to equally invoke section 12 (2) (a) of the NICN Act 2006 and Order 5 Rule 3 of the NICN (Civil Procedure Rules) 2017 and declare the memorandum of appearance as competent.

On the claimant’s argument that exhibit FMU6 gives a directive to terminate the employment of the claimant, Counsel submits that exhibit FMU6 can better be appreciated if read side by side with paragraph 1 of exhibit OS 8 which provides the Recommendations against the claimant thus: ‘That his appointment be terminated with effect from 6th July, 2006, having been in the service of Board for 10 years.’ This evidence supersedes the opinion of the claimant’s counsel. Moreover, the claimant in his witness statement on oath has admitted that his employment had been terminated. See N.N.P.C. v. KLIFCO (Nig.) (2011) 10 NWLR (Pt. 1255) 209.

Counsel equally argued that contrary to the claimant’s argument that the defendant admitted to the claimant as still being a staff of the defendant in paragraph 4.3 of its witness statement on oath, Counsel argues that that was not what was inferred and no amount of submission can outweigh written evidence. See UBN v. SAX (Nig.) Ltd (1994) 8 NWLR (Pt. 361) pg. 150.

Counsel posits that contrary to the assertion of the claimant that his employment is one with statutory flavor, this is not the case. The contract of employment of the claimant is solely regulated by the Regulations and Conditions of Service of the defendant.

Furthermore, Counsel argues that paragraph 11.01 of the JAMB Regulations and Condition of Service which gives the ground and the procedure upon which the employment of a staff can be terminated is inapplicable to the claimant’s case. This is because the allegation against the claimant does not relate to ‘general inefficiency’ as used in the paragraph. Even if it does, the same paragraph uses ‘may’ which makes it optional for the defendant to give warning letters thrice or not.

Counsel submits that the case of the claimant is distinguishable from that of Mr. Ignatius Okonkwo and Mr. Noble O. Onukwe in the sense that they remitted the money they embezzled while the claimant only remitted part of the money.

Counsel urged the Court to discountenance the claimant’s written address.

  1. ISSUES FOR DETERMINATION

The defendant counsel formulated 7 issues for determination while claimant counsel formulated 2 issues. The court is of the opinion that besides the preliminary questions, the 3rd issue formulated by the defence counsel can properly dispose of this case and it is adopted as follows;

Whether the termination of the appointment of the claimant vide letter dated 10th July, 2006 was wrongful.

 

  1. COURT DECISION
  2. PRELIMINARY OBJECTION.

The defendant counsel raised the following objections;

  1. Whether the claimant has fulfilled the condition precedent to the commencement of this suit:

It is the contention of the learned Counsel that assuming the claimant was still a staff of the defendant as contended, then the suit is incompetent because the claimant did not issue the defendant with a pre-action notice which is a pre-condition to instituting a legal action as provided for in section 3.0 and 3.01 of chapter nine of Regulations and Conditions of Service of the Joint Admission and Matriculation Board 1999. Counsel further argues that for this, the Court lacks jurisdiction to entertain the suit. See Mil. Admin. Taraba State v. Jen (2001) 1 NWLR, Pt. 694 pg. 418.

This issue can only be determined in the merit of the case after a finding on the employment status of the claimant.

  1. Whether the action is statute barred for failure of the claimant to commence the present suit within three months from the time the cause of action arose?

The Counsel further submits that the action is statute barred because it was not commenced within three months from the date the claimant’s employment was terminated as provided for in section 2 (a) of the Public Officers’ Protection Act. The cause of action, which is the termination of employment, arose on the 10th of July, 2006, while the suit was filed on 20/12/2017.

This case arises from an employment contract, it is exempted from the application of the Public Officers Protection Act. This issue has been recently laid to rest by the Supreme Court in the case of N.R.M.A.F.C V JOHNSON (2019)2 NWLR (PART.1656) P.247 AT 270 where Ariwoola J.S.C held as follows;

There is no doubt, a careful reading of the respondent’s claim will show clearly that it is on contract of service. It is now settled law that section 2 of public officers protection law does not apply to cases of contract.

In a consenting judgment, Aka’as J.S.C also held;

“Since the action instituted by the respondents is a contract of employment, the public officers protection law cannot be involved to bar the action undertaken by the plaintiffs/respondents”.

Furthermore, it is the claim of the claimant that he has not been terminated but his salary has not been paid since August 2006 to date and thus it is a continuous wrong. This can only be determined when considering the merit of the case.

The objection accordingly fails and is dismissed.

 

  1. MERIT OF THE CASE.

By way of a preliminary issue of law, the claimant raised the following argument:

The claimant filed the action on the 20th of December, 2017. The defendant filed a notice of preliminary objection on the 12th of February, 2018 challenging the competency of the suit and the jurisdiction of the Court to entertain the suit without a statement of defence instead of filing a statement of defence or both the preliminary objection and a statement of defence. On the 16th of May, 2018, the claimant amended its complaint and statement of facts by an Order of the Court. Thereafter, the defendant filed an amended statement of defence. For this, learned Counsel argues that the defendant without initially filing a statement of defence cannot go ahead and file an amended statement of defence. This, if anything, amounts to a process filed out of time without obtaining an order of the Court for extension of time contrary to Order 9 Rules 1(1) & (3) of the NICN Rules, 2017. Counsel concludes that this error makes the process incompetent and urged the Court to regard the claimant’s case as unchallenged.

It does not matter whether or not a defendant had filed a statement of defence prior to the amendment of the complaint and statement of facts, his time to file defence begins to run after the amendment by the claimant and in this case the defendant was on 16/5/2018 given 14 days by the court to file his defence which was filled on 28/5/2018 within time. The fact that it was titled consequential amended statement of defence will not vitiate the process. Such extreme technicality will only murder justice.

This issue is resolved against the claimant and in favour of the defendant.

Whether the termination of the appointment of the claimant vide letter dated 10th July, 2006 was wrongful.

The claimant has asked for payment of arrears of his salaries and allowances from the date of his termination to the time of retirement. Whether or not an order for payment of salaries during the period of termination, and indeed, whether reliefs A, B, C and D of the claimant can be ordered, depends on whether or not the employment of the claimant has statutory flavor. See DAVIDSON OBIANWUNA v. NATIONAL ELECTRIC POWER AUTHORITY (2016) LPELR-40935(CA); MR. KUNLE OSISANYA V. AFRIBANK NIGERIA PLC (2007) LPELR-2809(SC); (2007) 6 NWLR (Pt.1031) 565.

The crux of the claimant’s complaint about his purported termination in 2006 are as in paragraphs 14, 15, 20, and 22 to 26 of the amended statement of facts. These complaints are covered by the evidence of the claimant as follows;

The defendant did not follow the procedure for terminating the appointment of a public servant in the employment of the Federal Government laid down in the Federal Public Service and Civil Service Rules. The defendant did not give me three months’ notice as required under the Federal Government Public Service Rules. Before my salary was stopped by the defendant, I was receiving the sum of one million four hundred and forty five thousand five hundred and seventy four naira (N1, 445, 574) only, per annum as my salary. That was why I was paid the sum of one hundred and twenty thousand four hundred and sixty four naira fifty one kobo (120, 464.51) only, as salary in the month of July, 2006, being the last month that I received my salary from the defendant. I noticed that the content of the letter purportedly terminating my employment did not in reality terminate my employment with the defendant. The Board was only directed to terminate my appointment by computing and paying all my entitlements including one month’s salaries in lieu of notice as stated in my appointment letter. The defendant without terminating my appointment only stopped paying my salaries and did not pay me my entitlements. Upon my retirement, I am entitled to gratuity and pension since I had served the defendant for over 10 years making pension contributions from my salaries.

An   employment with statutory flavor was defined by the Court of Appeal in the case of N.E.P.A. v. EDEGBERO (2000) 14 NWLR (Pt.688)615; (2000) LPELR-6884(CA) relying on the decision of the Supreme Court in IMOLOAME V. WA.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303  thus;

What in effect is an employment with statutory flavour.
The Supreme Court had in the case of Imoloame v. WA.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303 defined it as:
“Where the contract of service is governed by the provisions of a statute or where the Conditions of Service are contained in regulations derived from statutory provisions they invest the employee with a legal status higher than the ordinary one of Master and Servant. They accordingly enjoy statutory flavour”.:
See also DR. S.A.O. ADEGOKE v. OSUN STATE COLLEGE OF EDUCATION  
 (2010) LPELR-3601(CA)

 

and  FEDERAL MEDICAL CENTRE, IDO. EKITI & ORS V. ISAAC OLUKAYODE OLAJIDE (2011) LPELR-4150(CA)
 

 

  

This court observes that in all the contention of learned counsel to the claimant that the claimants’ employment enjoys statutory flavor, he did not cite any authority to the effect that employment with  JAMB enjoys statutory flavor automatically. Similarly, a contention that an employment has statutory flavor is a contention that the employment has statutory protection and the first place to run for protection is the statute, but in this case, claimant and counsel made resort to no such statutory provision except to pages 55-57. Paragraph 11.1(ii) of the Joint Admissions and Matriculation Board Staff Regulations and Conditions of Service and that the requirement of payment of one month’s salary in lieu of notice in the letter of employment was equally not complied with.

In IMO EFFIONG MBOSOH v. JOINT ADMISSIONS AND MATRICULATIONS BOARD
(2008) LPELR-4306(CA) per GALINJE J. C. A., the court held that;

“The argument, though quite misconceived, now seems to me common with counsel that any officer employed by statutory body enjoys an appointment with statutory flavour. Nothing is farther from the true legal position. The character of an appointment and status of the employee in respect thereof is determined by the legal character and the contract of the employee. Hence where the contract of appointment is determinable by the agreement of the parties, simplictier, there is no question of the contract having a statutory flavour. The fact that the other contracting party is the creation of a statute did not make any difference.”

 

In FEDERAL MEDICAL CENTRE, IDO. EKITI & ORS V. ISAAC OLUKAYODE OLAJIDE (2011) LPELR-4150(CA) the court held;
 

 In agreement with the submissions of the learned counsel to the 1st set of appellants to the effect that for an employment to be held to have statutory flavour the following conditions must be met:


1) The employer must be a body set up by statute.


2) The establishing statute must make express provisions regulating the employment of the  staff of the category of the employee concerned.

Applying the above decisions to the instant case, beginning from the Joint Admissions and Matriculation Board Act, Sections 3(1)(2),  4(1)(2) and 7(2)(3) provides for the tenure of office and removal from office of the chairman, members of the Board and Registrar as follows;

  1. Tenure of office

(1)  The chairman shall hold office for a period of three years and shall be eligible for re-appointment for a further period of three years.

(2)  A person appointed to be a member of the Board, not being public officer, shall hold office for a period of three years and shall be eligible for re-appointment for a further period of three years.

  1. Removal from office of member of the Board

(1)  The Minister may, with the approval of the President, at any time remove any member of the Board from office if the Minister is of the opinion that it is not in the interest of the Board for the member to continue in office and shall notify the member in writing to that effect.

(2)  Where the Board is satisfied that the continued presence on the Board of any member is not in the national interest or the interest of the Board, the Board may recommend to the Minister that the member concerned be removed from his office and if the Minister, after making such inquires as he considers necessary, approves of the recommendation, he may in writing declare the office of the member vacant.

  1. Registrar to the Board

(3)  The Registrar shall hold office in the first instance for a period of five years and shall be eligible for re-appointment for such further periods as the President may, from time to time, determine.

(4)  Subject to this section, the Registrar shall hold office on such terms as to emoluments and otherwise as may be specified in his letter of appointment, and as may, from time to time, be approved by the President.

 

It is thus easy to see how the tenure of the above officers are protected by statute. The claimants’ employment does not fall in this category but under section 8 of the Act.

Section 8 of the Joint Admissions and Matriculation Board Act provides as follows;

  1. Other staff of the Board

(1)  The Board may appoint such other employees of the Board to assist the Registrar in the exercise of his functions under this Act.

(2)  The remuneration and tenure of office of the other employees of the Board shall be determined by the Board after consultation with the Federal Civil Service Commission.

 

Consequently, the claimant’s employment letter dated 4/7/1996 exhibit MU1 states at paragraphs 2 and 5 as follows;

2.Your appointment is subject to the conditions of services as specified by the board, from time to time.

  1. This appointment may be terminated either by you or the board by one month’s notice or payment of one month salary in lieu.

In the condition of service, exhibit OS11, the procedure for appointments, types of appointments, eligibility for appointment and appointment bodies etc are provided for in chapter two. Chapters four and five make provision for salaries and allowances of staff, Chapter 9 makes provision for disciplinary procedure while chapter 10 provides for retirement, gratuity and pension.

In THE WEST AFRICAN EXAMINATION COUNCIL V. MURITALA OYEWUSI OBISESAN (2008) LPELR-8500(CA) the court held;

The respondent thus accepted to be bound by the terms of service of the staff of the council. The terms and conditions of service for staff of the appellant Council in Nigeria is contained in Exhibit ‘H’.

The question now is: does Exhibit ‘H’ have statutory flavour or not. An employment with statutory flavour arises where the body employing the man is under some statutory or other restriction as to the kind of contract which it makes with its servants and the grounds on which it can dismiss them. Where an appointment is regulated by statutory provision, such an appointment is said to enjoy statutory protection or statutory flavour. Olaniyan v. University of Lagos (1985) 2 NWLR (Pt 9) 599;

 

Before an employment could be said to have statutory flavour, the statute must expressly make it so, otherwise, the employment will be treated on the basis of the common law principle of master and servant. In the present case the conditions under which the respondent was employed were drawn up by the council, they therefore have no statutory flavour. The relationship ought to and is governed by agreement of the parties and not by statute; removal by termination of the appointment would therefore be in the terms spelt out in the conditions of service, Exhibit ‘H’.

I find accordingly that the appointment of the claimant does not enjoy statutory flavor, it is a master/servant relation terminable by one month notice or salary in lieu. The implication is that reliefs B, C and D fail and are hereby dismissed.

This also means that the claimant did not need to comply with the provisions of section 3.0 and 3.01 of chapter nine of Regulations and Conditions of Service of the Joint Admission and Matriculation Board 1999 before instituting the present suit.

The employment of the claimant with the defendant is regulated by the employment letter, exhibit FMU1 and the terms and condition of service of the defendant, exhibit OS11.

Now the contention about whether or not the claimant committed any offence or was granted fair hearing does not arise in this case because the termination letter did not state any reason for the termination. In the circumstance of this case, and as correctly contented by the defendant, given the terms in the letter of employment, that the appointment of the claimant can be terminated for no reason at all, where the letter of termination gives no reason for the termination, none can be offered after the claimant has sued for his rights in Court. Any reason to justify termination must be in the termination letter or there is none.

The question now is whether the termination of the claimant was in line with the terms of employment, exhibits FMU1 and OS11. The supposed position of the law for now is that a master may terminate the employment of his servant for good bad or no reason at all, but with a caveat, provided the terms and condition of service are followed.

In the instant case, paragraph 5 of exhibit FMU1, the employment letter provides that this appointment may be terminated either by you or the board by one month’s notice or payment of one month salary in lieu. This court has already held that the termination letter did not state any reason for the termination and none can be offered after the claimant has sued for his rights in Court, accordingly, the termination is squarely based on the letter of employment.

It is also the contention of claimant that the letter of 10/7/2006, exhibit FMU6 did not terminate claimant employment but only indicated that his employment will be terminated based on the language of the letter and that he was not paid his one month salary in lieu of notice as the sum of N 120,464.51 paid to him was his July salary. The defendant argued the contrary.

A reproduction of the contents of Exhibit FMU6 is necessary here. The letter provides as follows;

 

LETTER OF TERMINATION OF APPOINTMENT

I am directed to inform you that the Governing Board of the Joint Admissions and Matriculation Board has directed that your appointment be terminated.

The director of supplies and finance has been directed to compute and pay all your entitlements, including one month’s salary in lieu of notice.

You are to hand over the affairs of the State Office Jalingo Taraba State  to the next  senior officer in the State Office.

You are further requested to handover your Identity card and all the Boards property in your possession to the Director of administration before 21st July, 2006.

Having reproduced the contents of the letter above, it is clear from the title of the letter to the instructions in all paragraphs of the letter that the only one and reasonable construction of that letter is that the employment of the claimant was terminated by that letter and no any other construction is reasonable. It is also clear that that the claimant understood the letter as such from 2006 until 2017 when his new understanding or interpretation led to the institution of this suit.

The claimant is ready to accept that interpretation on the condition that if his one month salary in lieu of notice was paid to him. It is pertinent to note that Exhibit FMU6 is dated 10/7/2006, at such a time, the claimant cannot claim to have earned his July salary, at least if at all, not in full but at most 1/3 thereof, I therefore find and hold that the payment of a full month’s salary to the claimant in July, 2006 after a termination letter on 10/7/2006 is reasonably a payment in lieu of notice in line with Exhibit FMU6 than payment for July 2006 salary.

Section 14 of the National Industrial Court Act 2006 enjoys and empowers this court to resolve all issues so as to avoid a repetition of litigation as follows;

  1. The Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.

 

Now the one more lingering question is whether the claimant has been paid all his entitlements as per the condition of service and as directed in his letter of termination, Exhibit FMU6. It is the contention of the claimant that he is entitled to gratuity and pension since he has served the defendant for over ten years making pension contributions from his salaries. The defendant did not deny this in the statement of defence but simply put the claimant to the strictest proof thereof.

For a start, paragraph 2 of the termination letter, exhibit FMU6 provides as follows; “The director of supplies and finance has been directed to compute and pay all your entitlements, including one month’s salary in lieu of notice”.  This means that the claimant was eligible for other entitlements besides one month salary in lieu of notice. Whether or not the claimant is entitled to gratuity and pension is to be determined by the condition of service, exhibit SO11.

Chapter 10 of exhibit SO11 provides for gratuity and pensions. Paragraphs 6.02 and 6.03 of chapter 10 provides as follows;

6.02 A member of staff, on leaving the service of the Board, whether voluntarily or compulsorily, having served for 35 years and not less than 10 years, shall be entitled to pension and gratuity in accordance with the table in appendix 3 which may be amended for the Federal Public Service from time to time.

6.03 Subject to the provision of this book, pension and gratuity shall be regarded as a staff’s inalienable right  and shall , under no circumstances be withheld or reduced provided that-

  1. where a staff is dismissed from the service, such dismissal shall result in forfeiture of his retirement benefits.

 The claimant herein was not dismissed but simply terminated; he had served from 4/7/1996 to 10/7/2006, a period of 10 years and 6 days. He is therefore entitled to pension and gratuity in accordance with the table in appendix 3 of the applicable 1999 condition of service of the defendant, exhibit SO11.

The last rank of the claimant was principal accounts officer on HATISS 9 STEP 1. His last salary based on the uncontested evidence before the court was N1,445,574.00 per annum, translating to N120,464.52 per month.

According to Appendix 3 of the condition of service, the gratuity for a staff who has served for 10 years is 100% of his total emoluments, this means that the claimant was entitled to N1, 445,574.00 as Gratuity and I so hold.

Similarly, according to Appendix 3 of the condition of service, the pension for a staff who has served for 10 years is 30% of his total emoluments, this means that the claimant was entitled to 30/100 x1,445,574.00 which amounts to N433,672.2 Per annum which translate to N36,139.35 per month from August 2006 as pension and I so hold. This translates to arrears of 13 years and 4 months from August 2006 to July 2019 and August 2019 to November, 2019. This is calculated as N433,672.2 x 13 =N5,637,738.6  and  N36,139.35 X4 =144,557.4, this gives us a total sum of N5,782,296.00 as pension arrears and I so hold.

  1. COURT ORDER

For the avoidance of doubt, the case of the claimant succeeds in part and it is hereby declared and ordered as follows;

  1. The termination of the claimant’s appointment was not in full compliance with the condition of service for failure to pay him gratuity and pensions.
  2. It is hereby declared that the claimant is entitled to gratuity in the sum of N1, 445,574.00 (One Million, Four Hundred and Forty Five Thousand, Five Hundred and Seventy Four Naira) only.
  3. It is hereby declared that the claimant is entitled to monthly pension in the sum of N433,672.2 Per annum which translate to N36,139.35 per month from August 2006 to the date of judgment and subsequently.
  4. It is hereby declared that the claimant is entitled to pension arrears  in the sum of N433,672.2 Per annum from August 2006 to November 2019 which is N5,782,296.00 ((Five Million, Seven Hundred and Eighty Two Thousand, Two Hundred and Ninety Six Naira) only.
  5. The defendant is hereby ordered to pay to the claimant the sum of N1, 445,574.00(One Million, Four Hundred and Forty Five Thousand, Five Hundred and Seventy Four Naira) only, being his gratuity.
  6. The defendant is hereby ordered to pay to the claimant the sum of N5,782,296.00 (Five Million, Seven Hundred and Eighty Two Thousand, Two Hundred and Ninety Six Naira) only, being his arrears of pension.
  7. The defendant is hereby ordered to pay to the claimant the sum of N36,139.35(Thirty Six Thousand, One Hundred and Thirty Nine Naira, thirty five kobo) per month henceforth as his Monthly  pension.
  8. I ward cost of N100, 000.00 in favour of the claimant
  9. The gratuity, Arrears of pension and cost are to be paid within 30 days of this judgment, failure upon which the judgment sum shall attract 10% interest per Annum.

This is the judgment of the Court and it is entered accordingly.

 

…………………………………………….

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN, YOLA.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVIDION

HOLDEN AT YOLA

DATED THIS 2ND DAY OF DECEMBER 2019

BEFOREHIS LORDSHIP, HONORABLE JUSTICE K.D. DAMULAK

                                                                                             SUIT NO.NICN/JL/02/2017

BETWEEN:

FALALU MANU UMAR                                        ………………..  ………….. CLAIMANT

AND

JOINT ADMISSIONS AND MATRICULATION BOARD         …..………… DEFENDANT

JUDGMENT ORDER

WHEREAS the claimants took out a complaint on the 20th 12/2017 against the defendants seeking, among others, the following reliefs:

  1. A DECLARATION that the Claimant’s employment with the Defendant being a statutory employment cannot be terminated except in accordance with the procedure required by law.
  2. A DECLARATION that the Claimant’s employment having not been terminated from the employment of the Defendant is entitled to all his salaries and allowances from August, 2016 (when the Defendant stopped paying him) to the time of his retirement, unless his employment is properly terminated.
  3. AN ORDER Of the Honourable court compelling the Defendant to compute and pay the Claimant all his arrears of salaries and allowances from August. 2006 (when the Defendant stopped paying him) to the date of the judgment in this case.
  4. AN ORDER of injunction restraining the defendant from further tempering or withholding the Claimant’s salaries and allowances up till the time of his retirement or proper termination of his appointment with the Defendant.
  5. The sum of Five Million Naira (N5,000, 000.00) as general damages.
  6. AND FOR SUCH FURTHER 0RDER(S) as this honourable court may deem fit to make in the circumstances of this case.

AND after hearing the evidence of both parties and the address of Martin Milkman Esq. for the claimant and Charles Ojunugba Audu  Esq. for the defendant, it is held that the case of the claimants succeed and it is hereby ordered as follows;

 

 

COURT ORDER

  1. The termination of the claimant’s appointment was not in full compliance with the condition of service for failure to pay him gratuity and pensions.
  2. It is hereby declared that the claimant is entitled to gratuity in the sum of N1, 445,574.00(One Million, Four Hundred and Forty Five Thousand, Five Hundred and Seventy Four Naira) only.
  3. It is hereby declared that the claimant is entitled to monthly pension in the sum of N433,672.2 Per annum which translate to N36,139.35 per month from August 2006 to the date of judgment and subsequently.
  4. It is hereby declared that the claimant is entitled to pension arrears  in the sum of N433,672.2 Per annum from August 2006 to November 2019 which is N5,782,296.00((Five Million, Seven Hundred and Eighty Two Thousand, Two Hundred and Ninety Six Naira)only.
  5. The defendant is hereby ordered to pay to the claimant the sum of N1, 445,574.00 (One Million, Four Hundred and Forty Five Thousand, Five Hundred and Seventy Four Naira) only, being his gratuity.
  6. The defendant is hereby ordered to pay to the claimant the sum of N5,782,296.00 (Five Million, Seven Hundred and Eighty Two Thousand, Two Hundred and Ninety Six Naira) only, being his arrears of pension.
  7. The defendant is hereby ordered to pay to the claimant the sum of N36,139.35 (Thirty Six Thousand, One Hundred and Thirty Nine Naira, thirty five kobo) per month henceforth as his Monthly  pension.
  8. I ward cost of N100, 000.00 (One hundred thousand Naira) only  in favour of the claimant
  9. The gratuity, Arrears of pension and cost are to be paid within 30 days of this judgment, failure upon which the judgment sum shall attract 10% interest per Annum.

 

GIVEN UNDER THE SEAL OF THE COURT AND THE HAND

                  OF THE HONOURABLE JUDGE,  HON.  JUSTICE K. D. DAMULAK

                  THIS 2ND DAY OF DECEMBER, 2019.

 

 

 

………………………………….

HON. JUSTICE K. D. DAMULAK

JUDGE

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