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/JOS/44/2014
BETWEEN:
ADO MOHAMMED &133 ORS ……….. ………….. CLAIMANTS
AND
1.THE ATTORNEY GENERAL OF THE FEDERATION
2.THE BOARD OF MANAGEMENT, FEDERAL MEDICAL
CENTRE ,JALINGO …..………… DEFENDANT
3.THE CHIEF MEDICAL DIRECTOR, FEDERAL MEDICAL
CENTRE ,JALINGO
- FEDERAL MEDICAL CENTRE ,JALINGO
REPRESENTATIONS:
- A. Oguche for the claimants.
- S. Barde with O.J. Uniga for the defendants.
JUDGMENT
- INTRODUCTION
The claimants took out a writ of summons against the defendants on 2/10/2014 accompanied by statement of claim, witness statements on oath and documents to be relied upon. The defendants seek for a nullification of their disengagement and their reinstatement on the ground that their employment enjoys statutory flavor and they could not be disengaged based on circulars or privatization of departments.
- FACTS OF THE CASE
The claimants were variously employed by the 2nd and 3rd defendants between 2001 and 2013 as cleaners, porters, ward attendants, gardeners, ward orderly, washerman, compound cleaners and compound attendants. They were subsequently confirmed and promoted.
Their employments were all terminated on 28/4/2014 in compliance with a directive of the Federal Government contained in a circular with Ref No.MH.6075/11/157 dated 21/3/2014.
- CASE OF THE CLAIMANTS
The claimants contend that their employments is wholly and exclusively governed by Civil Service Rules of the Federation thereby giving same a statutory flavor and cannot be determined , terminated or truncated under the guise of privatization of departments of the Federal Medical Centre Jalingo or based on directives contained in mere circulars.
- CASE OF THE DEFENDANTS
The defendants filed a statement of defence on 11/11/2014, accompanied by a witness statement on oath and documents to be relied upon. The defendants admit the facts as averred by the claimants and contend that claimants appointment were not converted into statutory employment as the 2nd to 4th Respondents are not creation of statute hence Civil Service Rules govern their relationship and other extant circulars from office of the Head of Civil Service of the Federation and Civil Service Commission. It was a policy of the Federal government to outsource these cadre of employees.
- HEARING OF THE CASE
At the hearing of the case, in the absence of dispute of facts, the only contention being the question of whether or not the employments of the claimants enjoy statutory flavor, on 16/5/2019, both counsel agreed to adopt the procedure in Order 55 Rule 1 of the Adamawa State High Court Civil Procedure Rules as is allowed by Order 23 Rule 1 of the Rules of this Court, this also accords with the procedure of trial on records allowable by Order 38 Rule 33 of the 2017 Rules of this Court. Both counsel also agreed on three issues for determination and so counsels submitted their respective final written addresses and adopted same on 18/9/2019.
- PRELIMINARY OBJECTION AND REPLY
The defendants filed a preliminary objection on 31/11/2014 challenging the jurisdiction of the Court on the ground that the 2nd, 3rd and 4th defendants are not juristic persons. The argument on the objection was also subsequently incorporated in the final written address. The claimant counsel also incorporated his reply to the objection in his final written address.
- FINAL WRITTEN ADDRESS OF CLAIMANTS’ COUNSEL
The claimants counsel filed his final written address on 5/7/2019.
Claimant counsel identified the three issues for determination as earlier agreed upon as follows;
- WHETHER or not the 2nd to 4th defendants are juristic personalities in the eyes of the law.
- WHETHER or not the employment of the Claimants was covered with statutory flavor.
- WHETHER the Defendants can lawfully terminate the employment of the Claimants by way of circular.
Arguing on issue 1 which was formulated, learned counsel submitted that a Notice of Preliminary Objection is not known to the Rules of this Court. The Rules of this Court expressly requires any objection in a suit pending before the Court to be made by the means of summons or motion. See Order 5 Rule 2(2) of the Rules of this Court, 2017. Accordingly, the notice of preliminary objection is incompetent.
Arguing on his issue 1 now tagged as issue 2, learned counsel submitted that the 4th Respondent is a Public tertiary health institution and/or entity established by the Federal Government pursuant to the University Hospitals Act, 1985 conferred with certain public duties, whilst the 2nd & 3rd Respondents are organs or offices established for the effective administration of the said 4th Respondent pursuant to the said University Hospitals Act (supra) and fully conferred with certain duties and powers.
The law has now become established beyond per adventure that public institutions and offices and, or organs created pursuant to statutes or under the Law and conferred with duties and powers are by implication duly conferred with juristic personalities, see IBRAHIM vs, JUDICIAL SERVICE COMMITTEE (1998) 12 SCNJ 255.
The law is now well settled beyond equivocation that non corporate statutory entities even when not expressly conferred with juristic personalities can still be validly and competently sued in a Court of Law. THOMAS VS. LOCAL GOVERNMENT SERVICE BOARD (1965) NMLF 310.
It therefore goes without saying that the claimants can competently and validly sue the 2nd -4th Respondents before this Honourable Court, irrespective of the fact that they have not been expressly conferred with juristic personalities since they Perform public duties and exercise powers pursuant to which the appointments of the Claimants were purportedly terminated.
The defendants have already filed their statement of defence. Having taken the positive step of filing their statement of defence, the Respondents cannot therefore validly question the inclusion of the 2nd-4th Respondents as parties to the said suit on the ground of lack of juristic personalities. See HOPE DEMOCRATIC PARTY VS. INEC & ORS (2009) 3 SCNJ 45AT 49.
Counsel did not address issues 1 and 2 as raised in the address.
- FINAL WRITTEN ADDRESS OF DEFENDANTS’ COUNSEL
Learned defendants counsel filed his final written address on 10/9/2019. Counsel formulated the same three issues as earlier agreed upon.
Arguing on issue 1, learned counsel submitted that based on judicial authorities that only Natural or artificia1 persons having legal personality can sue or be sued, NDOMAEGBA VS. GOVT OF CROSS RIVER STATE (1991) 4 NWLR (PART 188) 733 at 786.
It is not enough that substance of a body is recognized by a statute unless such statute arrogates it with such power of suing or being sued. Thus, even if a body is recognized by a statute such must arrogates it with a legal personality as was held in EROKORO VS. GOVT OF CROSS RIVER STATE (1991) 4 NWLR, P.185 P.325. The power to sue and be sued can on1y be donated by the State or law maker, either clearly or by necessary implication. The burden of proof of juristic personality usually lies on the person claiming its subsistence. See S.D. AGBOOLA & 2 ORS VS. GABRIEL SA’IDU & ANOR (1991) NWLR (PART175) P.576. The 2nd to 4th Respondents are not created by law or statute.
Submitting on his issue 2, learned counsel argued that the employment relationship between the Claimants and the Defendants in the instant suit falls under the common law employment relationship of master and servant. The relationship between the Claimants and Defendants is devoid of any statutory flavour, hence, same is regulated by the terms and conditions in the offer letter, Circulars, conditions of service and any other documents executed by the Claimants and Defendants.
It is not in dispute between the parties that Exhibits A1 –A89, the Letters of Employment given to the Claimants by the defendants contained specific terms and conditions. The claimants and Defendants mutually agreed to be bound by the contents of Exhibits A1 – A89 and Exhibits D1 – D105 respectively.
The fact that a person is a pensionable Federal Public servant does not mean that his contract of employment is protected by Statute. Rather, there has to be a linkage or nexus between the employee’s appointment with the statute creating the employer or corporation. See IYASE VS. U.B.T.H.M.B. ( 2000) 2 NWLR (PART 643) P.45, LGWILO VS. CBN (2000) 9 NWLR (PART 672) AT 302, U.B.T.H M.B. VS. DAWA (2001) 16 NWLR (PART 739) P.424 and OLATUNBOSUN VS. NISER (1998) 3 NWLR (PART 80) P.25.
Also, the letters of termination/Disengagement of the Claimants’ employment were clear and unambiguous as to the disengagement and payment of termination benefits also with one (1) month notice and payment in lieu of notice. In the instant case, the Defendants have satisfied both the two requirements before terminating or disengaging the Claimants.
Arguing his issue 3, counsel submitted that a master is entitled to disengage his servant from employment for any reason, for good, for bad; or for no reason at all, provided that the termination was done in accordance with the terms of their contract.
- CLAIMANTS COUNSEL’S REPLY ON POINTS OF LAW.
In what should be a reply on points of law, but titled claimants’ final written address and filed on 17/9/2019, learned counsel for the claimants formulated and argued the earlier 3 issues.
On issue 1, learned counsel submitted that the 2nd to 4th Defendants in this suit are fully clothed with juristic personalities capable of suing and being sued. See the cases of THE BOARD OF MANAGEMENT, FEDERAL MEDICAL CENTRE & ANOR VS. ABAKUME (2015) LPELR 24786 (CA) and FEDERAL MEDICAL CENTRE, IDO -EKITI &. ORS VS. MICHAEL (2012) LPELR-20406 (CA). That the 4th defendant is a public tertiary health institution established by the Federal Government pursuant to the University Hospitals Act 1985 and conferred with certain public duties.
Arguing issue 2, learned counsel submitted that the employments of the Claimants are covered with statutory flavor. That the 4th defendant is a Health agency of the Federal Government of Nigeria. That a staff of a Federal Medical Centre (i.e the 4th Defendant) is by virtue of that employment a Civil Servant which fact confers statutory flavor on same. This position of the law was laid down by the Court of Appeal in the case of FEDERAL MEDICAL CENTRE, IDO- EKITI & ORS VS. MICHAEL (SUPRA) which is on all fours with the case of the present Claimants.
That the admission of the defendants counsel that some of the claimants are entitled to pension and gratuity is a confirmation of their claim as only employments with statutory flavor attract pension and gratuity
Arguing his issue three, counsel submitted that since the employment of the Claimants with the 4th Defendant has statutory flavor, said employment of the Claimants with the 4th Defendant was not properly terminated through letters all dated the 28th of April, 2014, purportedly in compliance with the directive of the Federal Government of Nigeria contained in a Circular with Ref. No. MH.6075/11/157 dated the 21st of March, 2014. FEDERAL MEDICAL CENTRE, IDO- EKITI & ORS VS. MICHAEL (SUPRA)
- ISSUES FOR DETERMINATION
Three issues for determination were earlier agreed upon, the court is however of the opinion that the first two issues are proper and can dispose of this case, they are adopted as follows;
- Whether or not the 2nd to 4th defendants are juristic personalities in the eyes of the law. (preliminary objection)
- Whether or not the employment of the Claimants was covered with statutory flavor. (Merit of the case)
- COURT DECISION
(A) PRELIMINARY OBJECTION
Whether or not the 2nd to 4th defendants are juristic personalities in the eyes of the law.
In THE HON. MINISTER OF DEFENCE & ORS v. MRS. ETTA BASSEY EPHRAIM (2014) LPELR (SC) , The 2nd and 4th appellants were the chief of Army Staff and The Commanding Officer, 146 Battalion, Eburutu Calabar. The Supreme Court held,
As earlier on stated in the course of this judgment, it is even the law that the Court can accord the status of a legal personality to an entity or office where the body or office made no provision to that effect. .. As well, Courts may, in the course of exercise of their interpretative discretionary powers, add to that list if the justice of any given case so dictates. So I do not seem to agree with the learned Appellants’ Counsel’s submission that unless the offices of the 2nd and 4th Appellant are said to be of perpetual succession with a common seal and the powers to sue and to be sued, they cannot be ascribed the status of a juristic person or persons. In the case of Fawehinmi vs. NBA (Supra) Oputa JSC (of blessed memory) drew three distinctions from the celebrated case of Thomas vs. Local Government Service Board (Supra) like the Local Government was created by the Customary Law. Secondly, where the body or office is charged with the discharge of public functions and thirdly, where there is a nexus between the statutory functions and the injury complained of. The third one falls on all four walls with the issue at stake in this appeal. It is therefore my humble view that the 2nd and 4th Appellants are juristic persons in Law that are capable to sue or be sued in their various capacities. In consequence therefore, I shall and hereby resolve issue number one above in favour of the Respondent and hold that the learned trial judge was right in holding that the 2nd and 4th Appellants are juristic persons.
| In TONY ANOZIA v. THE ATTORNEY GENERAL, LAGOS STATE (2010) LPELR-3778(CA); |
| The respondents were 1. The Attorney General, Lagos State 2. The judiciary Lagos State 3. Chief Judge Lagos State and 4. The chief Registrar, Lagos State. The court held;
Undoubtedly, a body created by a statute for the discharge of specific public functions is capable of being sued in a claim for declaration relating to those functions. See Thomas v. Local Government Service Board (1965) NMLR 310 at 312, wherein the Supreme Court held, inter alia, per Brett JSC, thus: “We reject the submission that a statutory body with functions like those of the Local Government Service Board is not liable to be sued for declaration, and we do so more readily since the statutory provisions relating to the appellant’s office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings.” |
The 2nd to 4th defendants herein are charged with the discharge of public functions and there is a nexus between their functions and the injury complained of in this suit. The functions of the defendants which involves employing and terminating workers is such that injustice will definitely result if they cannot be sued by persons affected by their actions. It will only amount to unjust legal technicality in the circumstance to hold that the defendants cannot be sued because there is no statute expressly saying so. I find and hold, on the authority of THE HON. MINISTER OF DEFENCE & ORS v. MRS. ETTA BASSEY EPHRAIM (2014) LPELR (SC) ; TONY ANOZIA v. THE ATTORNEY GENERAL, LAGOS STATE (2010) LPELR-3778(CA) and THOMAS V. LOCAL GOVERNMENT SERVICE BOARD (1965) NMLR 310 AT 312 supra, that the 2nd to 4th defendants are properly sued in this suit.
The objection fails and is dismissed.
(B) MERIT OF THE CASE
Whether or not the employment of the Claimants was covered with statutory flavor.
Before considering the merit of the case, there are some other preliminary issues raised by the defendants’ counsel.
Arguing a preliminary issue, the defendants’ counsel submitted that the claimants counsel final written address was filed on 5/7//2019 outside the 14 days granted to him on 16/5/2019 without an application for extension of time and it is incompetent. In any event, the written address of 5/7/2019 only addressed defendants’ objection which was filed on 11/11/2014. It did not address any issue regarding the main suit. That jurisdiction can be raised at any time even for the first time at the Supreme Court.
Without much ado, I find this to be true and learned claimants’ counsel did not respond to this either, there is no reason why the claimants’ final written address of 5/7/2019 should stand. The issue is resolved in favour of the defendants. The claimants’ final written address filed on 5/7/2019 is hereby struck out.
Learned defendants’ counsel also submitted that the Appointment Letters and Disengagement Letters of some of the claimants are not before this Court as provided by the Rules of this Honourable Court and as such, they do not possess the requisite locus standi to maintain this suit, because they have nothing to show that they were employed by the 4th defendant.
The adoption of trial on record by consent was based on the admission of the facts by the defendants in their statement of defence and orally on record by defence counsel on 16/5 2019, counsel cannot raise this issue by now. More so, this was not raised in the statement of defence. The absence of the appointment letters and disengagement letters of some of the claimants in the circumstance of this case, where their existence or the fact of their employments and disengagement has not been denied, has become a mere irregularity which has been condoned.
This issue is resolved in favour of the claimants.
The claimants have asked for reinstatement and payment of their arrears of salaries and allowances from the date of their termination to the date of reinstatement. Whether or not an order for reinstatement and payment of salaries during the period of termination 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 defendants’ counsel has contended that the employment of the claimants with the defendants is not covered with statutory flavor as it was regulated by claimants’ letters of appointments, exhibits A1-A89. The claimant’s counsel argued that the contrary is the case.
The claimants’ counsel has argued that the admission of the defendants counsel that some of the claimants are entitled to pension and gratuity is a confirmation of their claim as only employments with statutory flavor attract pension and gratuity.
This is a misapprehension of the law, pension and gratuities are also grantable to persons in private employments based on the contract agreement and that is still the position in Nigeria today.
Similarly, the learned claimant counsel has argued that the 4th defendant is a public tertiary health institution established by the Federal Government pursuant to the University Hospitals Act 1985 and conferred with certain public duties. That the 4th defendant is a Health Agency of the Federal Government of Nigeria. That a staff of a Federal Medical Centre (i.e the 4th Defendant) is by virtue of that employment a Civil Servant which fact confers statutory flavor on same.
This position was the subject of my lord Galinje J. C. A. pronouncement in
| IMO EFFIONG MBOSOH v. JOINT ADMISSIONS AND MATRICULATIONS BOARD |
| (2008) LPELR-4306(CA) where my lord 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.”
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”.: |
|||
| In ADEDAYO SUNDAY JOSEPH & ORS v. KWARA STATE POLYTECHNIC & ORS(2013) LPELR-21398(CA), the Court held; | |||
The law is settled that in determining disputes arising from the determination of contract of employment, the court must confine itself to the plain words and meaning of the terms of contract of service between the parties which provides for their right and obligations.
It is the relevant conditions stated in the employee’s letter of appointment and the staff Regulations and conditions of service that must be construed and nothing else. See Imoloame v. WAEC (1992) 9 NWLR (pt. 265) 303 at 317.
The conditions for determination of the contract of employment are clearly set out in these Exhibits which the Appellants signed and accepted. There is nothing in these letters that suggests that the Appellants’ appointments enjoy statutory flavor. Learned counsel for the Appellants has forcefully argued that the Appellants’ employment by a statutory body enjoy appointments with statutory flavor. The Supreme Court in the case of Fakuade v. O.A.U.T.H (supra) paragraphs C – F which was cited and relied upon by the Respondents, the Apex Court did resolve that issue in the following words:-
“The fact that the Respondent is the creation of statute does not elevate all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavor…
In the instant case the contract between the parties is clear and unequivocal; Appellants have contracts of service with Respondent. The contract also contains the provisions for its determination.
The court must in construing the relationship of the parties confine itself to the plain words and meaning which can be derived from the rights and obligations provided thereunder.”
See Adegbite v. College of Medicine University of Lagos (1973) 5 SC 149, Nigerian Produce Marketing Board v. Adewunmi (1972) 1 All NLR (pt. 2) 433, Sule v. Nigerian Cotton Board (1985) 6 SC 62, (1985) 2 NWLR (pt. 9) 17.
Exhibits 5, 22 and 37 together with the Regulations Governing Conditions of Service for both Senior and Junior Staff and the Scheme of service for the Kwara State Polytechnic Ilorin Revised in 2007 which was admitted in evidence as Exhibit 6 have clearly provided for the mode of terminating the Appellants’ appointments. It is provided in Exhibits 5, 22 and 37, that the appointment of each of the Appellant is determinable by three months’ notice by any of the parties or payment of three months’ salary in lieu of notice.
In IMOLOAME v. WAEC (1992) 9 NWLR (pt. 265) 303 at 317, the trial High Court held that the employment of the plaintiff/appellant with the defendant respondent had statutory flavor, the Court of appeal held that it did not have statutory flavor and the Supreme Court upheld the decision of the Court of Appeal. This is what the Supreme Court said;
Learned Counsel to the plaintiffs has argued that the provisions of ”EXH M’’ of the conditions of service of the defendant council made under and by virtue of section 4( 3) of the West African Examination Council Act 1973 enjoys the same status.
I do not think the contention is right. The protection enjoyed by the Professors in Olaniyan’ s case is derived from their appointment and the status created by the appointment which is governed by the provisions of the University of Lagos Act.
The instant case is clearly different. …the defendant council exercised power to dismiss in Exhibit M. It is not correct to argue that because Exhibit M was made pursuant to section 4(3) of the West African Examination Councils Act 1973, the tenure of all appointments which enjoy the condition of service are protected by statute. This is clearly not the intention of the Act.
Section 4(3) enables Council to determine the remuneration, tenure of office and conditions of service of the Registrar and other officers and servants of the Council. It appears obvious from the Act that there is no special statutory protection of the tenure of any staff of the defendant Council. Section 6 of the Act relied upon by learned Counsel to plaintiff only make applicable the Pensions Act. The question of discipline is left to the Council by section 5.
The facts of the instant case do not justify that the status be accorded to the plaintiff. The Court below was right to hold as it did that plaintiff’s appointment with the defendant Council does not enjoy statutory flavour.
| See also DR. S.A.O. ADEGOKE v. OSUN STATE COLLEGE OF EDUCATION | ||
| (2010) LPELR-3601(CA)
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. 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 governed 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 the parties agreed to be master and servant. |
| In FEDERAL MEDICAL CENTRE, IDO-EKITI & ORS v. FOLORUNSO KAYODE MICHAEL(2012) LPELR-20406(CA) relied upon by claimant counsel, the Court of Appeal held;
The conditions of service would determine whether the Respondent’s termination of his employment was done following due process.
Respondent as Plaintiff in his evidence stated that the termination of his employment did not follow due process regulated by the Public Service Rules. From the facts on record, the Respondent was employed under the Public Service Rules per exhibit ‘A’. Obviously his employment is statutorily flavoured since the conditions of service of the Respondent are governed by the Public Service Rules. Exhibit A2 states that the conditions of service applicable is as in cognate institutions within the Federal Public Service. This fact was pleaded and proved by evidence at the lower court. The learned trial judge rightly held at page 61 of the record that: “According to exhibit A2 the conditions of service applicable is as in cognate institutions within the Federal Public Service and I have no difficulty in holding that it is the Public Service Rules that regulate the contract of employment between the Plaintiff and the Defendants.” |
In the case at hand, exhibits A1 to A89, claimants letters of employments, similarly provide as follows;
The terms and condition of your appointment are as follows;
- The appointment is subject to your being declared medically fit.
- The appointment is subject to production of three (3) satisfactory referees’ report.
- The appointment will be a retiring age of sixty ( 60) years subject to confirmation after two years probationary period in accordance with the regulations and your duties as ward attendant for which you are appointed shall be as the Head of Department may direct.
- Your Salary will be at the rate of =N”’ 264381 Per annum on CONHESS 1 step 1 i.e N2643881 to N359426.
- The appointment may be terminated at anytime by the Board or yourself by either giving (1) month’s notice or one month’s salary in lieu of notice.
- You will be eligible for National Health Insurances scheme for yourself, your wife and four Children as approved by the Federal Government of Nigeria.
- You will be enlisted in the National Pension in accordance with the approved Federal Government Pension Scheme.
- You will be entitled to annual leave to be taken by arrangement through the Head of your department and with the approval of the Assistant Director of Administration.
It is clear that the conditions of service of the claimants are not the same as that of Michael which is;
“….your conditions of service will generally be in accordance with those applicable in cognate institutions within the Federal Public Service as may be adopted or varied from time to time.”
The facts of this case are not on all fours with Michael’s case as contended by claimants’ counsel. The conditions of service of the claimants are no more than what has been above reproduced. Their conditions of service are nowhere shown to be regulated by the Federal Public Service Rules and they have not been shown to be contained in any statute.
On the strength of the cases of; 1. N.E.P.A. v. EDEGBERO (2000) 14 NWLR (Pt.688)615; (2000) LPELR-6884(CA); 2. IMOLOAME V. WA.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303; 3. ADEDAYO SUNDAY JOSEPH & ORS v. KWARA STATE POLYTECHNIC & ORS (2013) LPELR-21398(CA), as well as the case of
FEDERAL MEDICAL CENTRE, IDO. EKITI & ORS V. SHUAIB ADEWOLE ALABI (2011) LPELR (CA) where it was held;
Now coming to the main issue for determination which is whether it is every employment in a Federal Government agency that is clothed with statutory flavour. The answer is simply No. The fact that the Respondent is a statutory body does not automatically mean that the condition of service of its employees must be of a special character ruling out the relationship of mere master and servant. It is only when that employment is protected by statute which makes provisions for the procedure for employment and termination of such employment that it can respectfully be said that the employment is clothed with statutory flavour. See Central Bank of Nigeria v. Agwilo (2007) 14 NWLR (Pt.1054) 386 @ 393; Olaniya v. University of Lagos (1985) 2 NWLR (Pt.9) 597; Shita-Bey v. FCSC (1981) 1 SC 40;
it is clear that that even though the defendants are legal personalities, the employments of the claimants with the defendants are not shown to be contained in any statute but as per their letters of employments. The employments of the claimants with the defendants fall under the category of master and servant relationship regulated wholly by the terms in the letters of employment and so do not enjoy statutory flavor. I so find and hold.
That being the case, by the nature of the reliefs claimed, none is grantable, the case of the claimants fails and same is hereby dismissed for want of merit.
I make no order as to cost.
This is the judgment of the Court and it is entered accordingly.
…………………………………………….
HONOURABLE JUSTICE K.D.DAMULAK
PRESIDING JUDGE, NICN, YOLA.
