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National Industrial Court

Mr. A. O. Afariogun -VS- Federal University Of Technology Akure & 4

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BENIN JUDICIAL DIVISION

HOLDEN AT BENIN

BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO

DATED:  3rd FEBRUARY, 2020

 SUIT NO: NICN/AK/41/2017

BETWEEN

  1. M.A. AFARIOGUN……             CLAIMANT

AND

  1. FEDERAL UNIVERSITY

OF TECHNOLOGY, AKURE

  1. COUNCIL FUTA AKURE    
  2. PROFESSOR FUWAPE

(VICE CHANCELOR)                                         ——-  DEFENDANT

  1. MR. R.A. ARIFALO

(REGISTRAR FUTA)

  1. PROF. O.A. FAGBENRO

(CHAIRMAN, MANAGEMENT BOARD

FUTA SECONDARY SCHOOL)

                                  

REPRESENTATION:-

  1. O. Ayenakin with Dr. A.A Adebayo, O.O. Kunle-Morakinyo and K.O. Ojo for the Claimant.

Prof. O.J. Jejelola with Chief Adeboye Olatunji for the Defendants.

JUDGMENT

The claimant by a General form of Complaint filed on the 18th December 2017 and amended by order of court on 21st March, 2018, claims against the defendants the following reliefs;

  1. A Declaration that the claimant’s employment with the 1st, 2nd and 5th defendants is under FUTA Act and as such is statutorily flavoured.
  2. A Declaration that the retirement age of the claimant is 65 years and not 60 years as the claimant’s employment falls into category of non-academic staff of the 1st defendant.
  3. An Order setting aside the retirement of the claimant since the same is wrongful, illegal and void.
  4. An Order directing the defendants to reinstate the claimant to his appointment or employment and pay all claimant’s salaries, allowances and emoluments from the date of purported retirement to the date of judgment and thereafter
  5. An Order of Court restraining the defendants from forcing the claimant to retire from the employment of the 1st defendant at the age of 60 years.

Alternatively

  1. An Order directing the defendants to pay claimant’s gratuity and pension that is due to him upon his retirement from work.

The claimant filed alongside his complaint all other accompanying processes i.e. statement of facts, witness statement on oath, list of witness and documents to be relied on.

The case of the claimant is that he was employed by the 1st defendant on 20th February, 1997, after responding to an advertisement in the Guardian newspaper of 22nd October, 1996, wherein the 1st and 2nd defendant invited applications from interested members of the public to its employment inclusive of FUTA Staff Secondary School, Akure. The claimant averred that he applied and was eventually appointed as a tutor in the staff school. He stated further that his appointment was guided by the conditions contained in FUTA Act, statutes, ordinances as well as the conditions of service of senior staff issued by FUTA Staff Secondary School Management Board. He pleaded that he is a senior staff of the 1st defendant and his retirement age is 65 years and not 60 years and hence he is billed to retire in 2021, in accordance with his conditions of service.

The claimant further pleaded that on the 17th January, 2017, the 1st defendant wrote to notify him of his expected retirement on the 9th day of September, 2017, he stated that he protested and wrote the letter dated 20th September, 2017 for an extension of his retirement and upon receipt, the 1st defendant extended his retirement via internal memo dated 22nd September, 2017, to December 2017.

The claimant averred that staff of FUTA secondary school are categorized as senior staff of the 1st defendant and in as much as the retirement age of senior staff of the 1st defendant is 65 years, same is applicable to him.

The defendants filed their statement of defence on 10th January, 2018 and same was amended by order of court and filed on 18th April, 2018, wherein they contended that the claimant was not an employee of the 1st defendant but that of FUTA Staff Secondary School Management Board. They further averred that the claimant was not on secondment to the staff school but was appointed as Tutor II by the school, thus he is not a senior staff of the 1st defendant but an employee of the Staff School Board. They averred that the conditions of service applicable to the claimant ever since he was employed in 1997 are as contained in: (1) conditions of service for staff of the Staff Secondary School, FUTA effective notionally from 16th November, 1992 but financially from 1st October, 1996, (2) conditions of service for staff of FUTA Staff Secondary School, effective notionally from 23rd July, 2004, and (3) The Federal University of Technology, Akure Staff Secondary School conditions of service 2017 which became effective in November 2017, and these conditions were made by the 1st and 2nd defendants in accordance with the powers conferred on them by the provisions of Sections 10 and 11 of the Act creating the 1st defendant.

The defendants averred that the claimant requested for an extension of the date of his disengagement and same was granted by the principal of the staff school and his retirement age is 60 years and not 65 years, in line with his conditions of service.

The defendants contended that the claimant’s action is gold-digging, frivolous and vexatious and same ought to be dismissed with substantial cost in favour of the defendants.

The claimant filed a reply to the defendants’ statement of defence which was regularized by order of court on 31st December, 2018. In his reply, he averred that he is in a statutory employment with the 1st defendant by virtue of the FUT Act, and since the staff secondary school is a department of the 1st defendant and thus they are senior staff of the 1st and 2nd defendants. He averred further that all non-academic senior staff of the 1st defendants are mandated to retire at the age of 65 years. He alleged that the conditions of service referred to by the defendants from 23rd July, 2004 and November, 2017 are unknown to him and were concocted by the defendants for the purpose of this litigation, in that they did not at any time come into effect or apply to him. He added that there is nothing in section 10 of FUT Act that empowers the 1st and 2nd defendants to convert his statutory employment to a private employment. He stated that his letter requesting for an extension of his date of disengagement was written after he was directed to retire and this was meant to assuage his position.

Trial commenced in this suit on 21st May, 2019 with the claimant testifying for himself as CW1, he adopted his written statements on oath, CW1 also tendered several exhibits which were admitted without objection and marked Exhibits FF1-FF14, thereafter the defence counsel sought an adjournment which was granted by the court and the claimant was cross examined on 24th June, 2019. The claimant thereafter closed his case and on the 18th of July, 2019, the defence opened their case by calling R.A Arifalo, the 4th defendant as DW1, he adopted his written statement on oath, and tendered several documents which were admitted and marked Exhibits SFT1-SFT3. The claimant’s counsel raised an objection as to the admissibility of these Exhibits, but the court deferred same to the Final Written Address stage, DW1 was duly cross-examined and the defence closed. The Court subsequently adjourned the case for adoption of final written addresses, and both parties adopted their addresses on 18th November, 2019.

The defendants’ final written address was filed on the 8th August 2019 wherein Prof. .O.J. Jejelola for the defendants formulated two issues for determination, viz;

  1. Whether the mere fact that the appointment of the claimant with the 1st, 2nd and 5th defendants was made with statutorily flavour changes his age of retirement from 6o years to 65 years in the instant case.
  2. Whether it is proper, just and equitable for the honourable court to grant the prayers of the claimant in this case since he has failed to prove his claims against the defendants in accordance with the provisions of sections 132, 133 and 134 of the Evidence Act 2011 (as amended)

On the first issue, learned counsel submitted on behalf of the defendants that there is nothing that confers on the claimant, the rights of an academic staff of the 1st defendant as far as his retirement age is concerned. He argued that the mere fact that the claimant’s employment is statutorily flavoured does not mean he is covered by the conditions of service of senior staff of the 1st defendant as contained in the Act. He urged the Court to disbelieve the claimant’s denial of exhibits SFT1 and SFT2 because it is part of the provisions of Exhibits FF5 and FF14 that the claimant’s appointment is subject to Acts, Statutes and ordinances made thereunder and to regulations guiding the conditions of appointment of senior staff made by the FUTA Staff Secondary School Management Board from time to time. He relied on the case of E.C.W.A v Dele (2004) 10 FWLR (Pt. 230), 297.

Counsel also argued that paragraph 7 (i) of both Exhibits FF5 and FF14, paragraph 3 page 21 of Exhibit SFT1 and paragraph 6 of Exhibit FF2, all provides that the retirement age of the staff school is 60 years, he quoted the maxim expression unis exclusion exterious, and submitted that where the conditions governing a contract has been written in a document, the court will not look outside it in deciding the rights of the parties to the contract. He placed reliance on the case of Momoh v. Central Bank of Nigeria (2007) 14 NWLR (Pt. 1055) 504.

Learned counsel submitted that the implication of Exhibit FF12 written by the claimant is that same qualifies as an admission that his retirement age is 60 years, not 65 years as claimed. He relied on Sections 20, 21and 23 of the Evidence Act 2011.

He argued further that the claimant having been in employment and reaping the benefits of same since 1997 till 9th September, 2017, under the conditions of service, cannot be heard to challenge its legality after his retirement. He cited Mr. C.I.S. Iloabachie v. Prof. Dotun Phillips & 2 Ors. (2007) All FWLR (Pt. 115) p. 726 at 747 paras. A-C, and urged the court to resolve issue one in favour of the defendants.

On issue two, learned counsel canvassed that the claimant has failed to prove his case as required by Sections 131,132,133 and 134 of the Evidence Act 2011, therefore, it will not be proper, just and equitable for the court to grant his reliefs. He argued that Exhibit FF1 is nothing but an advertisement of the various vacancies in the ivory tower of the 1st defendant, while Exhibit FF3 is a confirmation of the claimant’s appointment, on Exhibit FF10 counsel submitted that same dealt with qualification for membership of the 1st defendant’s congregation and not the claimant’s age of retirement, thus it is irrelevant to this case. On Exhibits FF8(pay slip) and FF9(identity card) he submitted that these are nothing but personal documents showing prompt payments of the claimant’s salaries and his personal identity respectively, thus they bear no significance to the bone of contention in this case.

The defence counsel also argued that the claimant’s assertion that by the Federal Government Agreement with NASU and SSANU of the 1st defendant, his retirement age is to 65 years was not proved before this court, in that no document was tendered to authenticate the assertion. He relied on the case of Omotosho v B.O.N Ltd (2006) 9 NWLR (Pt. 986) 537 @ 590-591 and Obasi Bros. Co. Ltd. v M.B.A.S. Ltd. (2005) 9 NWLR (Pt. 929) p.117 @ 14, and submitted that the burden of proof did not shift from the claimant throughout this case and urged the court to uphold the arguments canvassed by him and dismiss the case of claimant with substantial cost.

The claimant’s final written address was filed on 5th September, 2019, wherein O.O. Ayenakin of counsel distilled one issue for determination, to wit;

Whether in view of the pleadings and documentary evidence before this court; the claimant is entitled to the reliefs sought.

Learned counsel by way of objection raised a preliminary issue on the competence of the defendants’ amended statement of defence before going into the main issue for determination. The claimant argued that by reason of the incompetent defence filed by the defendants, they have no defence to the case of claimant. He placed reliance on the case of Aina v Jinadu (1992) 4 NWLR (Pt. 233) 91 at 109, and argued that three solicitors were listed beneath the signature on the amended statement of defence and it is unclear as to who signed the document, he therefore posited that the process is defective and incompetent before this court. He cited Alawiye v Ogunsanya (2013) All FWLR (Pt. 668) 800 at 835-836 paras. H-B to support his argument.

He submitted further that the issue of competency is serious and fundamental in the adjudication process, and cannot be ignored by the court as it goes to the jurisdiction of the court, and carries a risk that all steps taken in such a proceeding will amount to a nullity if upheld. He cited Dalfam v Okakin (2001) 15 NWLR (Pt. 735) 203 at 249, and concluded on this issue that if the amended statement of defence is incompetent, the pleadings and evidence predicated upon it are also incompetent and added that the averments in the statement of facts are deemed admitted and need minimal proof. He thereafter relied on Bernard Okeebor v Police Council & Ors. (2003) 7 SCM 127.

In respect of the lone issue for determination formulated by the claimant, learned counsel submitted that from the pleadings and exhibits before this Court, the claimant is entitled to the reliefs sought. He argued that the virtue of Section 132 of the Evidence Act 2011, the burden of proof in a civil action rests on the claimant but the burden shifts to defendant when the claimant succeeds in proving his case. He referred the court to the case of Buhari & Anor. V Obasanjo Ors. (2005) 9 SCM 1, and submitted that the claimant in this case has satisfactorily discharged the burden on him, consequently the burden has shifted to the defendants who has failed to discharge same.

Counsel argued that in an action for wrongful termination of employment, the onus rests on the claimant to; (a) place before the court the terms of contract of employment, and (b) prove in what manner the said terms were breached by the employer, and cited Federal Medical Center, Ido-Ekiti v Isaac Olukayode (2011) FWLR (Pt. 593) 1944. He argued that a look at the claimant’s appointment letter reveals that the employment is regulated the FUT Act, Laws of the Federation of Nigeria and regulations governing appointment of senior staff made by FUTA secondary school; reviewed regulations governing the conditions of service of employees of FUTA 2017, amongst others. He submitted that this implies that the claimant’s appointment is statutory and by implication, the claimant was employed by the 1st defendant. He cited Chief Tamunoeui Idoribpye-Obu v Nigerian National Petroleum Corporation (2003) 2 SCM 103, and conceded that it is not every employment by a statutory body that will amount to a statutory employment, he however added that where an employee is employed under the law creating an institution and the letter of appointment specifically provides that the employment is subject to a statute or law as in the instant case; then the claimant is in a statutory employment. He placed reliance on the case of N.I.I.A v Anyafalu (2007) 2 NWLR (Pt. 1018, 247, 251 R5. The claimant’s counsel submitted that the claimant by his statement of facts claimed that he was appointed subject to the Act and the defendants never denied this assertion, and as such the fact is deemed admitted. He supported this argument with the case of Lawrence Elendu & 5 Ors. v. Felix Ekwuaba & 4 Ors. (1998) 10 SCNJ 51.

Counsel also argued that the DW1 lied in paragraphs 9 and 10 of his statement on oath when he stated that the claimant was not regarded as an employee of the 1st defendant and the conditions of service of the senior staff of the 1st defendant is not applicable to him, and in another breath admitted under cross-examination that the claimant was employed on behalf of the council of the 1st defendant. He submitted that having made two inconsistent statements on the same issue, the court should disbelieve the evidence of DW1, especially on the issue of whether the claimant was an employee of the 1st defendant or not, and cited the case of Ezemba v Ibeneme & Anor. (2004) 14 NWLR (Pt. 894) 617.

Learned Counsel also argued that paragraph 2 of Exhibit FF5, clearly states that employments made by the Staff secondary school management board are done on behalf of the council. He stated that although the claimant asserted that the conditions of service of 2004(Exhibit SFT1) and 2017(Exhibit SFT2) were never implemented, yet both documents contain this same provision and the 1992 conditions of service was not repealed by Exhibits SFT1 or SFT2 in any way. He argued further that the defendants had led the claimant to believe he was being employed into the service of the 1st defendant on the following grounds;

  1. a)the newspaper advert leading to the employment sought applications into academic and non-academic positions in the 1st defendant;
  2. b)the advert further stated that the conditions of service of the 1st defendant shall apply to all advertised vacancies;
  3. c)the advert portrayed the staff secondary school as a department of the 1st defendant;
  4. d)the claimant’s pay-slip and identity card shows the staff school is a department of the 1st

 Counsel therefore submitted that having made the claimant believe he was being employed by the 1st defendant under the Act, the defendants are estopped from asserting to the contrary. He placed reliance on the case of Ude v Osuyi (1998) 13 NWLR (Pt. 580) 1 SC.

Learned counsel posited further that the finding of the Federal High Court, Akure in FHC/AK/CS/64/2001(Exhibit FF10) is to the effect that staff of FUTA staff secondary school are administrative officers i.e. employees of the 1st defendant. He continued that this assertion was contained in the statement of facts and evidence led in by the claimant, he pointed out that the defendants failed or refused to controvert these assertions in their pleadings or evidence, thus same is deemed admitted and cited the case of Akinlagun v Oshoboja (2006) 12 NWLR (Pt. 993) 60 SC.

Claimant’s counsel referred to the evidence of DWI under cross examination when he admitted; (i) the recruitment by the staff school management board was done on behalf of the 1st defendant’s governing council, (ii) the salary structure of the staff secondary school is the same with staff of the 1st defendant, and (iii) retirement benefits applicable to 1st defendant also applies to the staff secondary school; and submitted that the admitted facts are no longer disputed. He cited the case of Olufosoye v Olorunfemi (1989) 20 NSCC (Pt. 1) 21 at 28, and urged the court to hold that since the appointment procedure, salary structure and retirement benefits of the staff secondary school are the same with the 1st defendant, the school and the claimant are employees of the 1st and 2nd defendants.

The counsel stated that the defendants’ case is hinged on the arguement that the claimant’s appointment was not made by Council, and submitted that since the claimant has placed credible evidence before the court in proof that his appointment was done on behalf of the council, the defendants’ case must fall flat on its face. He further argued that it was never the claimant’s contention that he is an academic staff of the 1st defendant but a non-academic staff and the decision of the court in FHC/AK/CS/64/2001 qualifies him as an administrative officer of the 1st defendant, and by the provisions of FUTA Reviewed Regulations Governing the condition of services of employees in CONTISS 06/ CONUASS 01 and above, which is the extant contract of service applicable to employees of the 1st defendant, he is to retire at the age of 65years.

Learned Counsel listed the conditions of service guiding the claimant’s employment as follows; the FUTA Act, statutes, ordinances and regulations made by the 1st defendant, Conditions of Service for Staff of the Secondary School of FUTA 1992 and FUTA Reviewed Regulations Governing the Conditions of Service of Employee on CONTISS06/CONUASS01 and above. He pointed out that the case of ECWA v. Dele (SUPRA) cited by the defendants’ counsel is not helpful to their case because FUTA Reviewed Regulations Governing the Conditions of Service of Employee on CONTISS06/CONUASS01 and above, is the extant condition of service since it came into force in 2015. He also averred that the case of Akinfe v. UBA Plc. (SUPRA) is not applicable to the issue in dispute in this case because the claimant is not asking the court to look outside the terms of his employment but at all the conditions. He also distinguished the case of Azenabor v Bayero University Kano (SUPRA) from the present suit in that the claimant is not only in a statutory employment because the 1st defendant is a statutory body but also because his employment was made subject to a statute. He argued that the authority is therefore not applicable.

On the argument of the defence counsel that the claimant admitted his retirement age to be 60 years in writing Exhibit FF12, learned counsel for the claimant submitted that this is misconceived because the claimant only wrote Exhibit FF12 to ameliorate his suffering thus the defence counsel’s argument on that issue is of no effect, and added that the claimant cannot vary his statutory provided age of retirement by a mere letter, he concluded that the claimant has proved his case and is entitled to the reliefs sought.

The defence counsel filed a reply on point of law to the claimant’s final written address on 13th September 2019.  He argued with regards to the objection raised as to the competency of the defence filed by the defendants which was predicated on the ground that the identity of the particular counsel that signed the amended statement of defence was not disclosed by submitting that the issue was not pleaded by the claimant and the address of counsel cannot replace pleadings and evidence. He cited Reynolds Contruction Company v R.B.B (1993) 6 NWLR (Pt. 292) P. 122, and argued that it is clear that Dr. O.J. Jejelola (JP) signed the amended statement of defence and the defendants’ final written address, he cited Section 15 of the National Industrial Court Act 2006 in urging the court to uphold the tenets of equity and dismiss the preliminary objection.

The defence counsel reiterated that the claimant did not discharge the burden of proof placed on him by law thus the burden never shifted to the defendants. He also differentiated the expression “not employed by the governing council” from “appointment on behalf of the council”, and explained that while the former deals with appointments made by the council under the FUTA Act, the latter relates to appointments made by the staff secondary school management board. He argued that since the claimant’s retirement age was expressly stated in the offer of employment as 60 years, the maxim expression unis exclusio alteruis will apply. He added that the issue of the membership of the congregation of FUTA decided by the Federal High Court Judgment (Exhibit FF10) cited by the claimant was sufficiently controverted by DW1.

Learned counsel added that the provisions of Section 128 of the Evidence Act 2011 negates claimant’s counsel’s argument in paragraph 4.55 of his address dealing with exclusion of oral evidence by documentary evidence. He also argued that the FUTA Reviewed Regulations Governing Conditions of Service of Employees on CONTISS06/CONUASS 01 and above is not applicable to the claimant. Finally learned counsel submitted that the submissions in the claimant’s final written address were not established as required by the provisions Section 131, 132, 133 and 134 of the Evidence Act 2011 and same cannot be cured by the address of counsel. He urged the court to dismiss this suit with substantial cost.

I have carefully gone through all processes, evidence and arguments canvassed by both parties in this suit and I have come up with the following issues that will best determine this suit:

1)    Whether or not the claimant is an employment of the Federal University of Technology Akure;

2)    Whether or not the claimant is in a statutory employment with the 1st and 2nd defendant

3)    Whether or not the retirement age of the claimant is 65 years.

4)    Whether the claimant is entitled to the reliefs sought

It is worthy of note that the objection raised by way of a preliminary issue in the claimant’s final written address deals with the competence of the extant statement of defence in this suit and it is imperative for this court to pronounce on same before delving into the issues for determination formulated by this court.

The claimant’s objection to the extant statement of defence dated and filed on 18th April, 2018, is predicated on the ground that it is unclear/uncertain who amongst the three legal practitioners listed in the process that prepared and signed same. A perusal of the process in question reveals a list of names, and there on top of the list and emboldened is the name;

 “Dr. O.J. Jejelola (JP)

PP: JEJELOLA & JEJELOLA & ASSOCIATES

…………………………………………………”

; all other names were listed thereafter, also attached to the process is the NBA bar practicing fee receipt of Jejelola Ola Jones, of which there is no doubt that Dr. O.J. Jejelola(JP) and Jejelola Ola Jones are one and the same person. A further look into the record of this court and scrutiny of processes filed in this suit, also reveals that the name Dr. O.J. Jejelola (JP) appeared atop all other names and the signature inscribed on all the processes with the NBA stamp duly affixed is that of Dr. O.J Jejelola (JP) which is one and the same with the process in question. An example of such process is the written address of defence counsel attached to the counter affidavit of the defendants dated and filed 5th March, 2019, which was filed in response to the claimant’s motion dated and filed 26th February, 2019, to further amend the claimant’s amended Reply to the statement of defence. This process forms part of the record of court in this suit, and this court is competent to use documents filed in a case and its record in arriving at a just decision in a suit. See TAVERSHIMA MHEMBE V. WAVSHIDI 1994 2NWLR PT326@ 321@ 330; EFCC v Akingbola (2015) LPELR-24546(CA). Therefore, after due consideration of all the above, I have no doubt that the extant statement of defence in this suit was signed by Dr. O.J. Jejelola (JP) and same is competent. This position is further reinforced by the case of; Daniel Ihibe Omede v Umion Bank of Nigeria Plc. (2013) LPELR-22793(CA) where Abdullahi JCA held as follows;

‘’All processes filed in Court are to be signed as follows: a) The signature of counsel, which may be any contraption, b) name of the counsel clearly written, c) the party counsel represents, d) name and address of law firm.

Also, Kekere-Ekun JSC went further on this issue in  Williams v Adold/Stamm Int’l (Nig.) Ltd. (2017) 6 NWLR (Pt. 1560) Pg. 1 at 19-20, where his Lordship held that;

“A process prepared and filed by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his firm where he carries out his practice. The grouse of the respondents appeared to be that there was no mark beside either of the two names to identify which of them signed the process however the name Ladi Williams, though handwritten, was very clear and legible. The court was satisfied that there was no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll. The omission to place a tick beside the name of Chief Ladi Rotimi Williams SAN did not mislead the respondents or the court as to who signed the process and such omission cannot invalidate it.”

The signature of Dr. O.J. Jejelola (JP) is legible and clear and above all other legal practitioners listed in the process and did not mislead the claimant and the court as to the identity of the counsel that signed the process. It is in the light of the foregoing, that I find that the objection of the claimant on the competence of the extant Amended statement of defence in this suit is unmeritorious and same is hereby dismissed. I so hold.

Also, worthy of note is the objection raised by the claimant’s counsel during the trial as to the admissibility of Exhibits STF1- STF3 which the defendants tendered through DW1. The arguments on this objection was deferred to the final written address stage, but the claimant’s counsel failed to address the court on same in his final address. Consequent upon this, I find that the objection is deemed abandoned and same is hereby discountenanced. I so hold.

I shall now proceed to treat the 1st and 2nd issues for determination, which are; whether the claimant is a staff of the 1st defendant and whether his employment is statutorily flavoured. The two issues will be treated together for the sake of expediency. A look at the complaint in this suit reveals that the claimant is contesting the propriety or otherwise of the letter directing him to retire at the age of 60 years. It is the claimant’s case that he is a senior non-academic staff of the 1st defendant and thus entitled to retire at the age of 65 years, The defendants on the other hand contended that the claimant was not an employee of the 1st defendant but of FUTA Staff Secondary School Management Board, and as such was to mandatorily retire at the age of 60 in line with the conditions of service guiding staff of the Board.

 It is the well settled position of law that a contract of employment is the bedrock upon which all employment relationships are formed and an aggrieved employee bears the evidential burden to place before the court his contract of employment and show in what way the terms and conditions were breached by the defendant. See F.M.C. Ido-Ekiti & Ors. v Alabi (2011) LPELR 4148 (CA). The claimant in proof of his employment, claimant tendered Exhibits FF2 (contract of employment), FF3 (confirmation of employment) before this court and also Exhibits FF1 (a) & (b) (Advertisement in the Guardian newspaper of Tuesday 22nd October, 1996), FF5 (Conditions of Service for Staff of the Staff Secondary School, Federal University of Technology, Akure) and FF6 (Letter of transfer of service) and FF11(FUTA Reviewed Regulation Governing the conditions of service of Employees on CONTISS 06/CONUASS 01 and above) May, 2017.

 It is trite that a person who asserts the existence of certain facts bears the burden to prove that those facts exist see Section 131 of the Evidence Act 2011. It therefore follows in the instant case that the claimant bears the burden of proving his case by the preponderance of evidence. The claimant relied on Exhibits FF2 i.e. letter of appointment and FF5 i.e. conditions of service in proof that he is an employee of the 1st and 2nd defendant, he also asserts that the Board of the staff school acted on behalf of the 2nd defendant with regards to his employment, in other words, the Board was an agent of the council. The term Agency has been defined in the case of SDV Nigeria Limited V Phillip Kayode Olusegun Ojo & Anor (2016) LPELR-40323 (CA), where Nimpar JCA, explained thus;

“Agency is a relationship that exists between a principal and another called “agent” under which the agent has authority to act on behalf of the principal. Several authorities defined agency relationship, one of which is the case of OKWEIJIMONOR V GBAKEJI (2008) NWLR (Pt. 1079) 172 where the Apex Court held thus: “The general law relating to agency however , may be defined as the relationship which exists or arises where one person has the authority or capacity to create legal relations, i.e. the ‘agent’ who acts on behalf of another called the ‘principal’ whereby the latter undertakes to be answerable for the lawful acts of the former with a third party; provided it was done within the scope of his authority or ratified later by the latter. The fundamental element in agency relationship is authority of the agent to act on behalf of the principal.”

A look at Exhibit FF5, particularly paragraph 2 thereof under “Appointments” reveals the following provisions;

Appointments shall be made by the management board of the school on behalf of Council on the recommendation of the Appointments and promotions committee. Appointments shall be made against established posts, and posts shall normally be advertised and interview conducted before an appointment is made.”

When an act is said to be done “on behalf of” a person, it connotes that the actual doer of the act is the principal and the agent merely acted on behalf of a disclosed principal. See First Bank of Nigeria Plc v Excel Plastic Industry Limited (2002) LPELR-10280 (CA). A further perusal of Exhibits FF8(pay slip) and FF9( identity card) tendered by the claimant reveals that they were issued to the claimant by the 1st defendant, also in the said exhibits, the Staff Secondary School was identified as a department of the 1st defendant. It is trite law that documentary evidence is the best form of evidence and the court will not allow a variation of the content of a document by oral evidence. See Section 125 of the Evidence Act 2011 and Jolugbo & Anor. V Aina & Anor. (2016) LPELR-40352(CA). The claimant had argued that the Exhibits listed indicates that there is an employment relationship between the claimant and the 1st defendant, while the defendant argued that the issued Exhibits cannot qualify the claimant as an employee of the defendant, giving that they were personal documents issued to him as evidence that he was receiving his salaries and for his personal identity in case of emergencies. However, it is worthy of note that the contention of the claimant that he was in a statutory employment was not disputed by the defendants and this was conceded by the defendants at page 3 of the defendants’ final written address under issue 1. The defendants further argued that the fact that the claimant was in a statutory employment will not confer the rights of an academic staff of the defendant on the claimant as far as his age of retirement is concerned, and added that his conditions of service was regulated by the conditions of service for the staff of FUTA staff secondary school which prescribed 60 years as the retirement age, and not the age of 65 years applicable to senior staff under the FUTA Act. The claimant responded to this by submitting that the claimant is not asserting that he is an academic staff but an administrative staff of the 1st defendant.

 In resolving this issue the meaning of a statutory employment will be examined. Statutory employment has been explained to mean an employment in which the procedure for employment and discipline are governed by statute. See Nigeria Institute of International Affairs v Mrs. T.O. Ayanfalu (2007) 2 NWLR (Pt. 1018) p. 246. In addition to the above, it is the position of the law that it is not all persons employed by a statutory body or government agency that is in a statutory flavored employment. Uwa JCA, explained this in Federal Medical Centre, Ido-Ekiti & Ors. v Isaac Olukayode Olajide (2011) LPELR-4150 (CA), when he held thus:

“In agreement with the submissions of 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. In a plethora of legal authorities in recent times, the Apex Court has given a clear distinction between employment with statutory flavour and other employment. In employments covered by statute, procedures for employment and discipline (including dismissal) of an employee are clearly spelt out, whereas any other employment outside the statute is governed by terms under which parties agreed to be master and servant.”

Applying the above test to the instant case will necessitate a close examination of the terms and conditions of employment of the claimant. It is undisputed that the claimant was employed vide Exhibit FF2, wherein it was stated in paragraph 2 thereof as follows:

“The appointment is subject to the provisions of the Act, Statutes and Ordinances, made hereunder, and to regulations governing the conditions of appointment of Senior Staff made by the FUTA Staff Secondary School Management Board from time to time.

The provision above clearly implies that the claimant’s employment is guided by the FUTA Act, statutes, and ordinances, but in addition regulations made by the FUTA Staff Secondary School Management Board from time to time. In the case of Lawrence Jirgbagh v Union Bank of Nig. Plc. (2000) LPELR-5802(CA), it was held that where the conditions of service are derived from regulations that emanates from statutory provisions, they invest the employee with a legal status higher than an ordinary master/servant employment, and the employment will be held to be statutorily flavoured and the employee is considered to be a public officer. In Fidelis Okirika Agbroroh v West African Examinations Council (2016) LPELR-40974(CA), Mbaba JCA defined a public officer as follows:

“In the determination of who is a ‘public officers resort is always had to the Interpretation Act, Cap 123 LF, where Section 18(1) thereof interprets Public Officer to mean – “A member of the Public Service of the Federal within the meaning of the Constitution of Federal Republic of Nigeria 1999, or the Public Service of the State”. And by Section 318(1) of the Constitution, as amended, “Public Service of the Federation is defined as : “The service of the federation in any capacity in respect of the Government of the Federation and includes service as:- a) Clerk or staff of the National Assembly of each house of National Assembly; b) Member of staff of the Supreme Court, Court of Appeal, the Federal High Court, the High Court of the Federal C.T. Abuja, Sharia Court of Appeal…, the Customary Court of Appeal…, or other Courts established for the Federation by this Constitution or by an Act of the National Assembly. c) Member of staff of any commission or authority established for the Federation by this constitution or by an Act of the National Assembly d) Staff of any area council e0 Staff of any statutory corporation established by an Act of the National Assembly; f) Staff of any educational institution established or financed principally by the Government of the Federation;… (Emphasis mine)

A statutory employment is as a matter of course governed by statute and so also is the procedure for employment and discipline provided for in the statute. See Nigeria Institute of International Affairs v Mrs. T.O. Ayanfalu (SUPRA).

However in the instant case, considering the plethora of facts in this case, the legal authorities cited and documents tendered particularly Exhibits FF1, FF2, FF5, FF6, FF11, and a holistic analysis of same, I find that there is sufficient evidence to indicate that the claimant is in a statutory employment with the defendants, and as conceded by the defence counsel.

To reinforce this point, I find that it is in evidence before this court that Exhibit FF6, which was written on the 1st defendant’s letter head and titled– RE: TRANSFER OF SERVICE – MR A.O AFARIOGUN was written to the Chairman, Ondo State Teaching Service Commission. Under the Public Service Rules (2008) Transfer was defined in Rule 020501 as;

(a)  The permanent release of an officer from scheduled service to another or from one class to another within the same service.

The content of Exhibit FF6 reveals that the transfer of the claimant was approved by the Chairman, Teaching Service Commission of Ondo State in accordance with the Public Service Rules see Rule 020502 which provides in paragraph 1 as follows:

“Application for Transfer/Secondment to posts graded GL06 and below shall be determined by the Ministry/Extra-Ministerial Office of the applicant’s choice.”

It is uncontroverted that the Extra- Ministerial office in charge of Teachers in the instant case is Ondo State Teaching Service Commission. The implication of Exhibit FF6 therefore, is that the claimant was in a statutory employment and with the express approval of the body in charge of his employment, he transferred his services to another statutory employment and was employed by an agent of a statutory body i.e. 1st defendant. Thus, having fulfilled all the conditions laid down by the PSR and the extant condition of service of the 1st defendant i.e. Exhibit FF11, which allows for transfer by the provisions of Paragraph 7(iii) which reads as follows:

“Appointments on transfer basis from any Public Service in Nigeria may be approved.”

  I find, premised on the above, that the claimant properly transferred his service from the Ondo State Teaching Service commission to the 1st defendant in accordance with the conditions of service guiding his employment.

The culmination of the above pieces of evidence is that although the claimant was employed by the Staff Secondary School Management Board, this was done on behalf of and pursuant to the powers donated by the 2nd defendant in the instant case. I find that the claimant is therefore a staff of the 1st defendant, an educational institution established pursuant to the Federal Universities of Technology Act, Exhibits FFI, FF2, FF5, FF8 and FF9 and all the evidence in this suit points to this fact. Furthermore, It is not in doubt that the claimant’s appointment was made pursuant and subject to the power of the council, and this is further reiterated by Exhibit FF6 captured above which confirms the transfer of the claimant’s service from a scheduled service to another. Moreover, the power of the FUTA Staff Secondary School Management Board to make regulations concerning the conditions of service of the school is as conferred by the University, which was derived by the provisions empowering the 1st and 2nd Defendants under Sections 10 and 11 of the Federal Universities of Technology Act. It is also immutable fact that the 1st Defendant is principally financed by the Federal Government of Nigeria and as such the statutes i.e. Act and Exhibit F11 made pursuant to the FUTA Act, which guides the employees of the 1st and 2nd defendant is far superior and supersedes any regulation made thereunder, as a regulation cannot be made to vary or contravene the provision of a statute, see Mr. Isa A. Saibu v Kwara State Polytechnic, (2008) LPELR 4524 (CA) per Ogunwunmiju J.C.A, where he held as follows;

“The rights bestowed on the Appellant by the law as an employee engaged in an employment with statutory flavour cannot be lightly taken away by the Governing Council of the Polytechnic. See PDP v. INEC (1999) 7 SCNJ 297 and (1999) II NWLR Pt. 626 Pg.200. In other words, the Respondent cannot ignore the provisions of the law which created the institution”

Thus, the aggregate of my findings above reinforces the fact that the claimant is although not an academic staff of the 1st defendant, from the interpretation of same in Exhibit FF11, but nonetheless is recognized under Exhibit FF11 as a professional staff see paragraph 5(xxvii) of Exhibit FF11, which defines Professional staffs as all employees of the University who engage in technical and professional services. This is quite different from the definition of academic staff as contained in paragraph 5 (ii) of the same Exhibit FF11. Having provided different meanings for both classes of employment, the express mention of one connotes the exclusion of the others. See Olanrewaju Commercial Services Ltd. v Sogaolu & Anor. (2014) LPELR-24086(CA). Thus I find that the status of the claimant as a Tutor in the staff secondary school of the 1st defendant is that of a professional staff of the 1st defendant.

It is premised on the above that I resolve issues 1 and 2 in favour of the claimant. I so hold.

On issue 3 formulated by me, which deals with the claimant’s retirement age, the position of the law is that in determining the rights and obligations of parties to a contract, the court must respect the sanctity of the contract made by them. They are bound by the terms thereof and the court will not allow any extraneous term to be read into it. See Adams O. Idufueko v Pfizer Products Limited & Anor. (2014) LPELR-22999 (SC).

It was revealed in Exhibit FF2 (letter of appointment) quoted above, that the claimant’s employment is subject to conditions of service made by the staff secondary school management board from time to time. Exhibits FF2 specifically and expressly empowered the board to make regulations on the conditions of appointment of staffs of the staff school.

The claimant’s contention is that by virtue of a Federal Government agreement with the Senior Staff Association of Nigerian Universities his retirement age is 65 years as opposed to the 60 years provided in Exhibits FF2 is also definitive.

The defendants on their own part tendered Exhibits SFT1 (Conditions of Service of Staff of FUTA Staff Secondary School, 2004) and SFT2 (The Federal University of Technology, Akure Staff Secondary School Conditions of Service, 2017.) The claimant contested the applicability of the said documents by averring that they both were never implemented by the Staff Secondary School and that the staff of the school obtained an injunction restraining the implementation of the said conditions of service. This assertion is however not backed up by credible evidence, as the duty to prove same lies with the claimant. See Madam Sarah Oscar & Anor. V Mallam Mansur Aliyu Isah (2014) LPELR-23620(CA). It would have helped the claimant’s cause to tender the said injunction before this court but as this was not done, the claimant’s assertion on this point stands unproven and abandoned. I so hold.

The provisions of Exhibits FF2 specifies that the claimant’s retirement age is 60 years, and further to this, paragraph 6 of Exhibit FF2 (letter of offer of employment) states:

“Your appointment will be for a period of three (3) years in the first instance after which it will be confirmed, subject to satisfactory performance, to the retirement age of 60. If the appointment is not confirmed at the end of the period, it will be determined by three months’ notice, or payment in lieu.”

The claimant also argued that upon receipt of Exhibit FF4, he orally protested the retirement and wrote Exhibit FF12 (letter requesting extension of Retirement) to the 1st defendant who upon receipt granted same. A thorough examination of Exhibit FF12, reveals that the claimant was not protesting his retirement but was in fact, appealing for an extension of his retirement to allow him complete the target he had already set with the students, a request which the principal of the school acceded to and the date of his retirement was extended to December 2017 instead of September 2017.

The claimant also led evidence that the Federal Government entered into a collective agreement with the Senior Staff Association of Nigerian Universities raising the retirement age of all senior staffs of the universities to 65 years and the 1st defendant duly incorporated same in Exhibit FF11. This assertion was uncontroverted by the defendants, and as it is settled law that evidence not denied is deemed admitted and needs no further proof. See Nyiam v Oko & Ors. (2011) LPELR-4542(CA). It however falls on the Court to ascertain whether Exhibit FF11 is applicable to the claimant

 This will lead to a thorough scrutiny of Exhibit FF11, particularly Paragraph 4(1) of Chapter V thereof which provides as follows;

“A member of staff shall retire from the service of the University upon attaining 65years for non-teaching and 70 years for Academic Staff in the professorial cadre (Academic Librarians inclusive) or 65 years for academic staff below the professorial cadre,”

It is therefore established that the 1st defendant has reviewed the conditions of service of its employees on CONTISS 06/CONUASS 01 and above, but failed to introduce a similar provision in the Staff Secondary School staff conditions of service This is despite the fact that staff of the school are members of Senior Staff Association of Nigerian Universities, and the staff school is regarded as a department under the 1st defendant. I find in line with the reasoning and holding on issues 1 and 2 above that the claimant is a professional staff of the 1st defendant as provided in paragraph 5(xxvii) of Exhibit FF11, and is as such, covered by the above provisions of Exhibit FF11 with regards to his retirement age as the provision is applicable to the staff of the 1st defendant

 I find it strange and unexplainable that the defendants will exclude the staff of the FUTA Staff Secondary School from the benefits applicable to all other members of staff of the 1st defendant. Moreso when it is trite that when a collective agreement is incorporated or embodied in the conditions of a contract of service, whether expressly or by necessary implication, it will be binding on all the parties. The 1st defendant having incorporated the retirement age of its staff in Exhibit F11 is so bound by the provision and cannot hide under the guise of a regulation to vitiate the provisions of Paragraph 4(1) of Chapter V of Exhibit FF11 with regards to the claimant’s retirement.

It is based on the foregoing that this court finds that the retirement age of the claimant is 65 years and therefore his purported retirement by the defendants in this suit is premature and unlawful. I so hold.

On the third issue, it is trite law that in a statutory flavoured employment, once the employee succeeds in establishing a breach of the statute guiding his employment, he will be entitled to reinstatement and arrears of his salary for the period of the breach. In other words, it is within the powers of the Court to restore the aggrieved party to his original position by making an order of reinstatement and payment of his arrears of salary. See Nongu v Local Government Service Commission & Anor (2011) LPELR-4851(CA). Having held that;

  1.             the claimant is a staff of the 1st defendant;
  2.             the claimant is in a statutory employment; and

   iii.            the claimant’s retirement age is 65 years,

 I am convinced that the claimant is entitled to the main reliefs sought in this suit. The claimant is entitled to be reinstated to his employment with the 1st defendant and for the arrears of his allowances and emoluments from the date of his purported retirement i.e. December 2017, be paid till he is finally reinstated.  I so hold.

It is settled law that an alternative relief will only be considered upon the failure of the main reliefs and where the main relief succeeds, the alternative relief becomes superfluous. See Holborn Nigeria Ltd. V O.C. Chris Enterprises Ltd. (2014) LPELR-23972(CA). The main reliefs in this suit having succeeded, it will be unnecessary to consider the alternate relief.

In all, I find that the claimant’s action succeeds and for the avoidance of doubt, I declare and order as follows.

  1. The claimant is an employee of the 1st defendant
  2. The claimant’s employment with the defendants is statutorily flavoured.
  3. The retirement age of the claimant is 65 years.
  4. The purported retirement of the claimant by the defendants is premature, unlawful, and void and same is hereby set aside.
  5. The defendants are hereby ordered to reinstate the claimant to his employment and pay all his, allowances and emoluments from the date of purported retirement i.e. December, 2017 to the date of judgment and until he is finally reinstated.
  6. The defendants are hereby restrained from forcing the claimant to retire before the statutorily provided age of 65 years.

I make no order as to cost.

Judgment is accordingly entered.

A.A. Adewemimo

        JUDGE

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