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National Industrial Court

Afi Nelson Ogba -VS- Nigeria Maritime Administration and Safety

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE:  MONDAY 4TH MARCH 2019                         SUIT NO. NICN/LA/519/2016

BETWEEN

AFI NELSON OGBA                                                                                   CLAIMANT

AND

NIGERIA MARITIME ADMINISTRATION AND SAFETY AGENCY   DEFENDANT

Representation:

O C Onwumere appears for the Claimant

Chris Okafor appears for the Defendant

 

 

JUDGMENT

  1. The Claimant instituted this suit against the Defendant by Complaint and Statement of Fact dated and filed on the 10thday of August, 2016.  The Process was amended by an Order of Court made on 6thApril 2017.  By the Amended Complaint and Statement of Fact dated 13th April 2017, the Claimant’s claim is for:

 

  1. i)A Declaration that the purported nullification of offer of appointment of the Claimant by letter ref: NIMASA/APD/CONF.2411/ VOl. 1/41 dated 14/9/2015 is null and void and of no effect.
  2. ii)A Declaration that the Defendant is not entitled to rely on its letter ref: NIMASA/APD/CONF.2411/ VOl. 1/41 dated 14/9/2015 to deny Claimant of the benefits of her permanent and pensionable employment with NIMASA, including arrears of salaries and allowances and her right to confirmation of employment as a permanent and pensionable staff.

iii)    An Order setting aside the letter of nullification of appointment ref: NIMASA/APD/CONF.2411/VOl. 1/41 dated 14/9/2015 and directing the Defendant to restore Claimant to her post as Principal Shipping Development Officer.

  1. iv)An Order for payment of Claimant’s arrears of salaries and allowances from 1st day of
  2.       1July 2015 till the restoration of her post.
  3. v)An Order confirming Claimant’s appointment as a permanent and pensionable staff of Nigerian Maritime Administration and Safety Agency having completed or deemed to have completed the probationary period of 12 months on the 16th day of June, 2016.
  4. vi)₦3, 500, 000 as legal fees incurred by Claimant and payable by Defendant; or in the alternative: An Order directing the taxation of Claimant’s Solicitor’s bill of costs for payment by Defendant.
  5. In reaction, the Defendants entered a conditional appearancevide the Memorandum of Appearance of 30th September 2016.  On 3rd November 2016, Defendant filed its Statement of Defence and other Defence processes dated 28th October 2016.  Defendant’s Statement of Defence was amended by Leave of Court granted on 17th January 2018.  Claimant filed no Reply.
  6. This matter was previously before Honourable Justice BB Kanyip and was reassigned to this Court on 16thNovember 2017.  Trial commenced on 30th April 2018 and ended on 29th October 2018.  At the trial, Claimant gave evidence for herself by adopting her witness written statement and was cross-examined.  She tendered 9 exhibits which were admitted and marked as follows:
  • Exhibit C1       –           Letter of appointment dated 17/6/2015.
  • Exhibit C2       –           Deployment letter dated 21/07/15.
  • Exhibit C3       –           Internal Memo dated 23/7/2015 for submission of

Retirement Savings Account (RSA) details.

  • Exhibit C4       –           Letter dated 14/09/2015 titled ‘Nullification of

Offer of Appointment’.

  • Exhibit C5       –           Pre-action notice dated 20/06/2016 issued by

Claimant’s Solicitors.

  • Exhibit C6       –           Defendant’s Conditions of Service.
  • Exhibit C7       –           Legal Services Agreement dated 13/6/16 made

between Claimant and her Solicitor

  • Exhibit C8       –           Staff identity card
  • Exhibit C9A    –           NIMASA Pre-Employment Form
  • Exhibit C9B    –           NIMASA Health Card

 

  1. The Defendant opened its defence on 29 October 2018 and relied on its amended Statement of Defence dated 24 January 2018. Its sole witness, Paul Agim, adopted his written statement and tendered photocopy of Chapters 2 and 11 of Defendant’s conditions of service admitted as exhibit D1.  He was cross-examined.
  2. At the close of trial, the Court ordered parties to file and serve their respective written addresses starting with the Defendant.  Defendant’s Final Written Address was filed on 12thNovember 2018.  Claimant’s Final Written Address was filed on 29th November 2018.  Defendant filed no Reply.  The Final Written Addresses were adopted on 24th January 2019 and the Court adjourned for judgment.
  3. Facts of the Case:

By a letter of provisional appointment ref: NIMASA./APD/R.2 dated 17th June 2015 the Defendant employed the Claimant as Principal Shipping Development Officer on Grade Level 12 step 1 with a commencement salary of ₦913, 729.74 per annum. The appointment was duly accepted by the Claimant who assumed duty and was deployed by the Defendant to their Shipping Development Department on or about the 21st July 2015 having undergone satisfactory medical examination conducted by the Medical Doctor approved by the Defendant.  By virtue of the permanent and pensionable nature of the appointment, the Claimant completed the basic processes for the pension scheme as required under Chapter 11 of Defendant’s Conditions of Service and submitted her Retirement Savings Account (RSA) details to the Defendant on or about the 23rd July 2015. The Claimant states that she was discharging her duties until the Defendant served her a letter ref: NIMASA/APD/CONF.2411/Vol.1/41 dated 14/09/2015 purporting to nullify the offer of provisional appointment. Claimant contends that the purported nullification of offer of appointment is strange to the Federal Government Public Service Rules and the Defendant’s Conditions of Service and not within the terms of the offer accepted by Claimant. The Claimant refused to accept the purported nullification of her appointment and continued to report at her duty post until the Defendant physically barred and prevented her from discharging any services thereat. Acting on the letter of 14/09/2015, the Defendant failed to pay any salaries and allowances to the Claimant from the 1st day of July 2015 till date.  Defendant also failed to confirm Claimant’s appointment upon the completion of the probationary period on or about the 16th June 2016.  Defendant however contends that its recruitment and employment policies are governed by its Conditions of Service, approved guidelines and due process; and that the employment letter was erroneously and irregularly issued to the Claimant as it did not comply with the necessary due process that pertain to such appointment.

Defendant contends that Claimant’s purported provisional appointment did not comply with the conditions for employment and was fraught with fundamental irregularities and therefore incompetent.  Defendant also states that Claimant never completed the probationary period of twelve months stipulated by articles 2.2 and 2.5 of Chapter two of the Defendant’s Conditions of Service; and that Claimant was not entitled to payment of salary as she never resumed work, did not complete medical examination, and was never pay rolled.

 

Arguments of Counsel:

  1. Defendant set the following issues for determination:

 

  1. Whether the Claimant’s purported provisional appointment  is not fundamentally defective and irregular;
  2. Whether the Defendant validly terminated the Claimant’s purported provisional appointment;
  3. Whether on the basis of the pleadings filed and the evidence led in support of same, the Claimant is entitled to the reliefs claimed against the Defendant.

On issue 1, Defendant contends that Claimant’s purported employment with the Defendant was fundamentally defective and irregular, null and void as it did not comply with the conditions precedent for employment stated in the Defendant’s Conditions of Service. They argue that there is no evidence before the Court of the following conditions precedent for employment by the Defendant:

  1. Advertisement for recruitment;
  2. Application letter pursuant to that advertisement.
  3. Invitation to attend an interview.
  4. Screening by an interview panel. and
  5. Approval of the appointment by the Director- General.

On issue 2, Defendant contends that Claimant’s purported defective employment was only provisional, for a probationary period of twelve calendar months, and subject to termination during the probationary period as borne out by the Provisional Appointment Letter and Article 2.2.1, and 2.5 of the Conditions of Service. They contend that since the Claimant did not complete the probationary period of twelve calendar months and her defective and incompetent provisional appointment was terminated in the third month of her purported appointment, the Claimant’s appointment having not been confirmed, the Claimant was not entitled to the rights, benefits and privileges accruable to confirmed staff as stipulated by Article 2.6 of the Conditions of Service.

 

Defendant argues that the right to hire necessarily implies the right to fire as without such right an employer will be left without a means of control over his employees and may lead to a situation of forcing an employee on an unwilling employer; and that the termination of the Claimant’s provisional employment is in exercise of an employer’s right to fire. Defendant relied on the case of Nigerian Romanian Wood Industries Ltd. v. Akingbulugbe(2011) 11 NWLR(Pt. 1257) 131 @ 153.

 

Defendant argues, with respect to issue 3, that Claimant has failed to prove her case and is therefore not entitled to the reliefs claimed against the Defendant. They argue that Claimant was required to specifically establish by credible evidence that her employment was governed by the Federal Government Public Service Rules and the Defendant’s Conditions of Service, and how the Defendant breached them. Defendant referred to the Court of Appeal decision in F.M.C. Ido-Ekiti v. Alabi (2012) 2 NWLR (pt. 1285) 411@ 439 paras A-C that:

… In a claim for wrongful termination of appointment, the onus is always on the employee to first, place before the Court the terms of contract of employment and secondly, to prove in what manner the terms were breached by the employer…

 

Defendant contends that the Claimant failed to prove that her purported appointment is governed by the Federal Government Public Service Rules by failing to place the Federal Government Public Service Rules before the Court, failing to show how same was relevant to her appointment and also failing to lead evidence to show how it was breached by the Defendant. Defendant submits that it is a creation of statute, the Nigerian Maritime Administration and Safety Agency Act, 2007, and is empowered by the Act to make its own conditions of service to regulate its employment and is surely not subject to the Federal Government Public Service Rules. They submit that the mere fact that the Defendant is a federal government agency does not imply that Claimant’s employment is governed by the Federal Government Public Service Rules; referring to the Court of Appeal decision in F.M.C. Ido-Ekiti v. Alabi (supra) @ 458 – 459 paras. G-H where it held on this point that:

It is not every employment in a federal government agency that is clothed with statutory flavour. The fact that the federal government agency is a statutory body does not automatically mean that the condition of service of its employees must be of special character ruling out the relationship of 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.

 

Defendant contends further that the Claimant failed to prove that she was a permanent and pensionable staff of the Defendant. They argue that by the provisions of Article 2.6 of the Conditions of Service, an employment only becomes permanent and pensionable upon confirmation by the Defendant. they argue that during cross-examination of the Defendant’s witness, it was established that the Claimant’s purported appointment would have been permanent and pensionable if the Claimant had qualified; and that unfortunately, the evidence before the Court showed that the Claimant did not so qualify.

  1. The Claimant on her part raised the following issues for determination in her final address:
  • Whether the letter of appointment dated 17/06/2016 and the Defendant’s conditions of service incorporated thereto, including rules against unfair labour practices, entitles the Defendant to nullify the appointment of the Claimant at all.
  • Whether the letter of appointment dated 17/06/2016 invested the Claimant with the prospects of a permanent and pensionable employment as defined by Defendant’s conditions of service and all applicable laws and rules.
  • Whether the Claimant has proved her case on a balance of probability.
  • Whether the Defendant is liable for the solicitor’s charges and costs of this suit.

Claimant argues on issue 1 that the letter of appointment Ref: NIMASA./APD/R.2 dated 17/06/2015 is a contract document binding on the parties. That the said appointment letter states how the appointment is to be terminated; and that there is no provision for “Nullification of Appointment”.  Claimant contends that Paragraph 6 of the appointment letter incorporates the Defendant’s Conditions of Service; which in turn is made pursuant to the NIMASA Act 2007.

Claimant further submits that this Court has the constitutional power and jurisdiction to identify unfair labour practices. She referred to the case of Godwin Okosi Omoudu v. Prof. Aize Obayan & Ors (2016) 65 N.L.L.R. (Pt 231) 407 at 473-474F-C, where Hon. Justice Adejumo, President of this Court held, inter alia that:

“…In specifically giving this Court jurisdiction over unfair labour practices, section 254C [1] of the 1999 Constitution enjoins this Court to take a closer look at the labour practices of employers [even if they are internal] in order to ascertain the fairness or otherwise of those practices. And once found to be unfair, the expectation of the law is that the labour practice in question must then be remedied as may be just under the law. In this wise, the recognition of exceptions to the rule of judicial non-interference when it comes to the issue of, say, promotion at workplace by other common law jurisdictions such as India commends itself to this Court over unfair labour practices.

Like I noted earlier, the essence of this Court is not just ‘the enforcement of mere contractual rights but for preventing labour practices regarded as unfair [for which a vindictive suspension and a vindictive denial or refusal of promotion are but examples] and for restoring industrial peace’ at the workplace. This Court when adjudicating must determine the ‘rights’ and ‘wrong’ of a claim made; and in doing so, the Court is undoubtedly free to apply the principles of justice, equity and good conscience. The justice of the instant case, to my mind, requires that the Defendants be held responsible for their acts against the Claimant; and I so hold.”

               Claimant urged that the Defendant is not entitled to nullify her appointment under the employment contract; and that the purported nullification is an unfair labour practice against the Claimant, which the Court must not accept by virtue of the provisions of section 254C [1] (f) of the 1999 (as amended). Claimant argues that this case calls for the invocation of the principle of equity; and equity regards as done that which ought to be done. Both law and equitable principles operate to regard the Claimant as a bona fide member of staff of the Defendant – Comptroller-General of Customs v. Comptroller Abdullahi Gusau (2017) All FWLR (Pt 911) 422 and Nigerian Institute of International Affairs v. Ayanfalu (2006) All FWLR (Pt 325) 141.

On issue 2, which is whether the letter of appointment dated 17/06/2016 invested the Claimant with the prospects of a permanent and pensionable employment as defined by Defendant’s conditions of service and all applicable laws and rules; Claimant submits that by Exhibit C6, Claimant belongs to permanent and pensionable category of staff.  Claimant further submits and urge the Court to hold that except Claimant is found blameworthy in any material respect at any material time, her appointment by virtue of the letter Ref:NIMASA/APD/R.2 dated 17th June, 2015 shall endure from probation to confirmation and “to a permanent and continuous service up to the age of 60 years or 35 years of service whichever is first”.

Claimant contends that the Defendant cannot truncate and terminate the 12 month probation period fixed by agreement and thereby treat the Claimant as a staff who failed to complete the agreed probation period. Claimant argues that she is entitled to have the benefit of a completed probation period under the agreement as it is her right so to do; and that it is such an unbroken period of service that entitles her to pension as envisaged by the parties as evidenced by the submission of exhibit C9, the Retirement Savings Account Details dated 23rd July 2015.  She argues that the submission of the Retirement Savings Account (RSA) Details show the manifest intention of the parties that the pensionable service has commenced to run from the appointment date.

Issue 3 is whether the Claimant has proved her case on a balance of probability.  Claimant submits that she has proved her case creditably well. She argues that the Defence proffered no evidence to support the allegation of “some anomalies in the recruitment exercise” mentioned in the nullification letter. That, whereas the Defendant alleged that it has a well-established recruitment policy and a mandate to advertise for recruitment, among others; its sole witness supplied no evidence of a single recruitment advert ever published by Defendant; and failed to name the person who committed the alleged anomaly and the criminal or civil process by which he was interdicted, exposed and proved to have violated the well-established due process in Defendant’s establishment.

On if Defendant is liable for the solicitor’s charges and costs of this suit, Claimant submits that the circumstance of this case invests on the Defendant the burden of settling the costs and charges incurred by Claimant to prosecute this matter.  This is because the Defendant, for all practical purposes, compelled the Claimant to institute this action. She referred to Naude v. Simon (2014) ALL FWLR (Pt. 753) 1878 where it was held that a successful party is entitled to be indemnified for costs of litigation which includes solicitors’ fees he incurred in the prosecution of the case.

 

Court’s Decision:

  1. I have carefully considered Parties processes and evidence in this case.  I have also considered the written submissions of Counsel and authorities cited in the final addresses.  I set the following issues for determination:
  2. Whether the appointment of the Claimant is valid or not;
  3. Whether the Defendant validly determined the Claimant’s appointment;
  4. Whether the Claimant is entitled to her Claim.
  5. Issue 1 forms the principal basis for Defendant’s determination of Claimant’s appointment via ExhibitC4 being Letter of ‘Nullification of Offer of Appointment’ dated 14thSeptember 2015.  Defendant contends that there were some anomalies in the recruitment exercise of the Claimant.  According to the Defendant, Claimant’s appointment did not comply with its Conditions of Service, approved guidelines and due process.  According to Defendant, there is no evidence of the following requirement having been complied with:
  6.       Advertisement for recruitment.
  7.       Application letter pursuant to that advertisement.

iii.      Invitation to attend an interview.

  1.       Constitution of an interview panel, and
  2.       Screening by the said interview panel.
  3. Parties are agreed that Claimant was appointed via OFFER OF PROVISIONAL APPOINTMENT letter dated 17thJune 2015.  Both parties tendered the Defendant’s Conditions of Service – Exhibit C6/D1 as also governing Claimant’s employment.  I have gone through the relevant provision of the said Conditions of Service; Chapter two paragraph 2.4 RECRUITMENT PROCEDURE.  It provides for the following:

2.4.1 JUSTIFICATION FOR RECRUITMENT

There will be no recruitment of any staff without a clear and proper justification.  To ensure such justification, the Administration and personnel department and other departments shall act in line with approved guidelines.

2.4.2  ESTABLISHMENT OF COMMITTEES

Standing committees are established to handle all employments, promotions and discipline of staff in the Agency.  The committees are constituted as follows:

  1. I)Junior Staff Committee
  2. II)Senior Staff Committee

III)             Management Staff Committee

2.4.3 Induction Course

These are all I found under the paragraph on recruitment procedure. I do not find any of the listed conditions precedent presented by the Defendant.

I find from the evidence before me that Claimant was duly offered provisional appointment as Principal Shipping Development Officer (Exhibit C1)  Exhibit C2 shows her deployment to the Shipping Development Department.  Exhibit C3 shows her submission of her retirement savings account to the Defendant. Exhibit C9 shows that she had done her medicals as required by her letter of appointment.  This was confirmed by the Defence witness during cross-examination.  All these show that Claimant’s employment had become effective.  In addition, Exhibit C4, Letter of Nullification of Appointment,  in its 2nd paragraph requesting Claimant to hand over all Agency’s property in her possession, including her identity card, to the Director, Administration and Personnel Services, go to show that Claimant had effectively assumed office, as appointed.

  1. This now brings to question the effect of Defendant’s assertion that her appointment had some anomalies.  Though the existence of the conditions listed by the Defendant has not been proved; assuming they were to exist, they are not such as the Claimant had control over.  As stated by DW during cross-examination, “none of the conditions are to be performed by the Claimant.  They are to be done by the Defendant”.

The Evidence Act 2011 at section 168(1) presumes regularity of any official act.  It states:

  1. (1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.

(2)When it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act.

According to the Court of Appeal in the case of Nduka & ors v. Sule (2013) LPELR-23629(CA) presumption of regularity is a principle applied in evidentiary evaluation that transaction made in the normal course of business are assumed to have been conducted in the usual manner unless there is evidence to prove otherwise, where it has been proved that an official act has been done, it will be presumed until the contrary is proved, that the said act complied with any necessary formalities and that the person did it was duly appointed to do so.” Per ORJI-ABADUA, J.C.A. (P. 22, paras. A-B).  See also Seamarine Int’l Ltd & Ors v. Ayetoro Bay Agency & Ors (2015) LPELR-24785(CA)

 

I have gone through the case of the Defendant, and have not found evidence which clearly rebuts this presumption which the law makes, that the appointment was regular.  As stated in the case of Shitta-Bey v. A.G. Fed. (1998) 10 NWLR (Pt.570)392,

Apart from what is called presumption of regularity of official acts, there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the common law maxim in the Latin phrase Omnia praesumuntur rite esse acta. This presumption is very commonly resorted to and applied especially with respect to official acts. See Ogbuanyinya v. Okudo (1990) (No.2) 4 NWLR (Pt. 146) 551 at 570 paragraphs D-E. See also section 114 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990.

 

I agree, as argued by Claimant that a company is liable for the acts of its servants or human agents – Ifeanyi Chukwu Ltd v. Soleh Boneh Ltd (2000) FWLR (Pt 27) 2046 at 2081 B-G per Mohammed JSC and that Claimant not being involved in the indoor management rules of the Defendant before her employment, cannot suffer for any breach of such rules by the Defendant.  Moreover, Defendant did not show who breached what procedure within it.

 

I therefore find that the presumption of regularity operates in favour of the Claimant.  I find that her appointment was regular.  I so hold.

 

The question of the nature of the employment of the Claimant is also imperative for a determination of the reliefs sought by Claimant.  The Claimant states that her employment is permanent and pensionable, while Defendant contends that it is not.  According to the Defendant in its address:

We contend further that the Claimant woefully failed to prove that she was a permanent and pensionable staff of the Defendant. The evidence before the court clearly establishes that the Claimant’s appointment was terminated in the 3rd month of her probation and was never confirmed. By the clear provisions of Article 2.6 of the Conditions of Service an employment only becomes permanent and pensionable upon confirmation by the Defendant. During cross-examination of the Defendant’s witness it was established that the Claimant’s purported appointment would have been permanent and pensionable if the claimant had qualified. Unfortunately, My Lord, the evidence before the court showed that the claimant did not so qualify.

 

I have again considered the Conditions of Service (Exhibit C6) to determine the nature of Claimant’s employment.  The Conditions of Service provides for two types of employment as follows:

2.2  TYPES OF EMPLOYMENT IN THE AGENCY:

There are two categories of employment in the Agency:

(I)                Permanent/Pensionable

(II)             Contract

2.2.1  Permanent/Pensionable Employment

A permanent and pensionable appointment is an appointment that will entitle a person to a permanent and continuous service up to the age of 60 years or 35 years of service whichever is first, subject to satisfactory performance and conduct.

Except employees already holding confirmed employments in other public sector or approved scheduled service who  are on transfer or secondment, all newly employed staff into pensionable posts in the Agency holds their employment on probation during the first 12 months of service.  At the completion of probation period, the employment may be confirmed, terminated or at the Agency’s discretion extended for a further probationary period not exceeding 6 months.

2.2.2  Contract Appointment

The Agency may engage on contract terms the services of experienced professionals and other staff who are normally 50 years and above, and who are required to provide critical services or perform a specific task over a relatively short period by virtue of proven experience in the particular area…

 

The above provision clearly shows that Claimant was not a contract staff.  The text of Claimant’s letter of appointment clearly shows that it was intended to appoint Claimant to a permanent/pensionable employment.  Defendant’s witness confirmed during cross examination that Claimant’s employment, being governed by the Conditions of Service, is a pensionable one, just like his.  This fact is also buttressed by the submission of the Pension account information.

 

  1.  Defendant’s challenge of Claimant’s permanent/pensionable status is founded on the fact that she was not confirmed before the determination of her employment.  This argument seems to suggest that it is confirmation that determines the nature of an employees’ employment.  On the contrary, it is my view that the  nature of employment is determined at the point of engagement, and not at the point of confirmation.  In the present case, my view is supported by paragraph 2.5 of Exhibit C6 on probation.  It provides that:

 

A new employee on permanent appointment shall in the first instance be on probation for a period of 12 months at the end of which the appointment may be confirmed.  If at the end of the stipulated probationary period, the service of the staff is unsatisfactory, an additional grace period of 6 months may be allowed after which the appointment may be confirmed or determined.

 

The above provision presupposes that the nature of the employment, whether it is on permanent basis, is determined upon appointment, and not upon confirmation, as suggested by Defendant.  The effect is that, Claimant was employed as a permanent/pensionable staff of the Defendant.

 

My finding on this question therefore is that Claimant’s appointment was valid; and that a permanent and pensionable employment was intended by the parties.

 

On Claimant’s contention that the Defendant cannot truncate and terminate the 12 month probation period fixed by agreement and thereby treat the Claimant as a staff who failed to complete the agreed probation period and that it is Claimant’s right to have the benefit of a completed probation period.  This argument suggests that the employee’s position is secured during the probationary period and as such the employment cannot be terminated during that period.  The position of the law is that an employee who is on probation can be terminated anytime during the probation and not necessarily at the end of the probationary period.  What the employer needs to do is just to comply with the requisite procedure for the termination.  Olayinka Kusamotu v. Wemabod Estate Ltd. (1976) 11 SC 279; AL-Bishak v. National Productivity Centre & Anor (2015) LPELR-24659(CA) Ihezukwu v. University of Jos & Ors (1990) 7 SC (Pt. 1) and Benjamin Wayo v. Judicial Service Commission, Benue State (2006) All FWLR 66.

  1. Parties are not agreed on Claimant’s employment having statutory flavour.  Claimant argues that a closer look at the Conditions of Service would reveal that it was made pursuant to the NIMASA Act 2007.  She refers to Article 1.2-1.5 at pages 7-10 of Exhibit C6.  Defendant denies this, though accepting that the Defendant is a creation of statute.

 

An employment is said to have statutory flavour if it is backed by statute.  In determining when an employment is said to have statutory flavour, the Court of Appeal held in FMC, Ido Ekiti & Ors. v. Kolawole(2011) LPELR-4149(CA):

 

In determining whether the respondent’s appointment is statutorily flavoured or not in line with the Appellants’ view, the courts have held that recourse should be had to the contents of the letter of appointment. …

An employment with statutory flavour is one where the procedure for employment and discipline are governed by statute. The conditions of service would determine whether the respondent’s termination of his employment was done following due process.” Per UWA, J.C.A. (P. 15, paras. B-F)

The decision of the Supreme Court in Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt.805)589 is very instructive in this case as the facts are similar to the facts in this case.  In that case, the Appellant was appointed by the Respondent with effect from September 1, 1980. Five years later his appointment was terminated with effect from 30 August, 1985. He then brought action against the Respondent claiming for, among others, “a declaration that the purported termination of his appointment by a letter AD/Per/C.661O dated 30th August, 1985 is unlawful, ineffective, null and void.”   The Appellant relied on the terms of his letter of appointment, the conditions of service of the Respondent, and also the Act which set up the respondent and other policy circulars. It was argued, on behalf of the Appellant that he had pleaded and proved that the Respondent was created by statute Nigerian National Petroleum Corporation Act (Cap. 320) Laws of the Federation of Nigeria, 1990 – and that the terms of his employment were contained in the conditions of service made pursuant to the said Act.; and that the conditions of service was undoubtedly made by the Respondent pursuant to s. 4(1) of the Act and therefore has the force of law. Appellant argued that the test of statutory flavour in a contract of service rests on a nexus or link between a particular contract of service and enabling regulations, provision or subsidiary regulations or conditions of service made pursuant to enabling statutory provisions; and that even if an enabling statute which gives a statutory body the power to enter into contract of service with any person does not go the whole hog to make express provisions on the conditions of service of such person particularly as regards recruitment and termination of employment, but gives powers to the statutory body to make such provisions in her conditions of service, the persons over whom the condition of service made by the statutory body prevail are invested with a special legal status and the contract of service itself acquires a statutory flavour.

 

The Supreme rejected the above argument and held that:

 

Conditions of service which will give a statutory flavour to a contract of service cannot be a matter of inference.  They must be conditions which are expressly set out by statute such as S.17(1) of the University of Lagos Act, 1967 or statutory regulations made under subsidiary legislation, such as the Civil Service Rules.  Thus, a regulation with statutory flavour must be enacted by the Parliament or any Law making body as a schedule to an Act or Law or as a Subsidiary Legislation.  In the instant case, the conditions of service under which the Appellant was employed were drawn up by the Board of Directors of the Nigerian National Petroleum Corporation. They therefore have no statutory flavour like S. 17 of the University of Lagos Act and Public Service Commission Regulations which governed the employment of Olaniyan and Shitta-Bey respectively.

 

The Supreme Court continued that:

 

The assertion in submission (1) that the terms and conditions contained in exhibit B have the status of statutory provisions is most astonishing. It may well be true that those terms and conditions were made because of section 4 subsection (1) of the Act which set up the Respondent but there is nothing to justify their being regarded as statutory provisions, nor can it be argued that they could not have been made even in the absence of that sub-section at least in regard to termination of appointment.

 

  1. The provision of Section 4 subsection (1) of the NNPC Act is analogous to the provision of section 14 of the NIMASA Act in this case.  The section provides that:

Subject to this Act, the corporation may appoint such persons as members of staff of the corporation as it considers necessary and may approve conditions of service, including provision for the payment of pensions.”

 

The Supreme Court held that the conditions of service were to be drawn up and approved by the Corporation, and that was what was done.  The Court noted that in Olaniyan’s case, apart from the Memorandum of Appointment which was the Agreement containing the terms and conditions of service, there was the University of Lagos Act, 1967. Under section 17(1) of that Act, provisions for disciplinary measure against certain categories of officers and staff are made. The Act sets out the procedure that must be followed to remove such employees from the service. That, when the mandatory procedure is not complied with, any disciplinary action taken against them will be declared null and void; and it is those statutory provisions that are regarded as giving them some measure of security and protection.

Tobi JSC in considering the import of the above provision and whether it is enough to grant statutory status to the employment under consideration held that:

An employment is said to have a statutory flavour if the employment is directly governed or regulated by a statute or a section or sections of the statute delegate power to an authority or body to make regulations or conditions of service as the case may be. In the case of the latter, the section or sections of the statute must clearly and unequivocally govern or regulate the employment of the plaintiff and must be unmistakably clear in the provision as to delegated legislation. The regulations and or the conditions of service must be implicitly borne out from the section or sections delegating or donating the authority. In other words, there must be clear nexus between the delegating section or sections and the regulations or conditions of service conveying a legal instrument or document which is of similar content. In such situation, the regulations or conditions of service must commence with the provision of the enabling statute; something to the following effect or purport and as it relates to this appeal.

“In exercise of the powers conferred by, section 4(1) of the National Petroleum Corporation Act, 1977 as amended and of all other powers enabling me in that behalf, I hereby make the following Regulations and or Conditions of Service.”

In my view, if exhibit B was so couched, I would have agreed with the submission of learned Senior Advocate that the conditions of service had a statutory flavour, provided that the person issuing it must be a person in law or by the Constitution who can issue a statutory instrument in the form of a subsidiary legislation.

 

In the instant case, Claimant’s appointment letter provides that ‘all employees of the Agency are governed by the Conditions of Service of the Agency’.  The Administration and Safety Agency Act, 2007, which is the section under which Claimant contends that her employment has statutory flavour in section 14 provides as follows:

14.-( I) The Agency shall have powers to employ such persons as it may deem necessary for the discharge of the duties and powers of Agency under this Act and regulations made pursuant to it.

(2) The Agency shall have the powers to determine the job description, title, terms, qualifications and salaries of any such person and all such persons shall be subject to the conflicts of interest provisions in the Third Schedule to this Act.

(3) The employment of the Agency’s staff, including its secretary, shall be subject to such terms and conditions as may from time to time be stipulated by the Agency’s Board and contained in the respective staff’s employment.

 

From the consideration of the case of Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt.805)589 above, this provision is akin to section 4 of the NNPC Act considered in that case, wherein the Supreme Court found that it did not grant statutory flavour to the employment.  Again, reference to exhibit C6 does not show any reference to the document having been made pursuant to the authority of the NIMASA Act as required by virtue of the dictum of Tobi  JSC in Idoniboye-Obu v. N.N.P.C. (supra).

Claimant also asserted that her appointment is governed by the Federal Government Public Service Rules, but did not exhibit the said Rules.  Though the Court had said it takes judicial notice of the Public Service Rules, Claimant did not lead evidence to the provision of her contract that makes her subject to the Federal Public Service Rules, nor did she state the provision of the Rule that applies to her.  It is the law that the fact that the Defendant is a federal government agency does not automatically make its employees, public servants, subject to the Civil Service Rules, without more.  See Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660.  I do not find that the Federal Public Service Rules applies to the Claimant.

Based on all the above, I find that Claimant’s employment does not have statutory flavour.  Claimant’s employment is governed by the letter of appointment (Exhibit C1) and the Defendant’s Conditions of Service (exhibit C6).  I so hold.

Having resolved that the appointment of Claimant was valid, and the nature of the employment, the next issue in contest is the validity of the determination of Claimant’s appointment.  Since I have already held that Claimant’s employment is regulated by Exhibit C1 and C6, we can only determine the rightness or otherwise of the termination, by reference to these documents.

 

Exhibit C4 is the document that purports to bring Claimant’s employment to an end.  It is titled NULLIFICATION OF OFFER OF APPOINTMENT and states:

 

With reference to our letter Ref: NIMASA/APD/R.2 dated 17th June, 2015 offering you provisional appointment, I am directed to inform you that Management has observed some anomalies in the recruitment exercise and resolved that your appointment with the Agency be nullified with immediate effect.

You are to hand over all the Agency’s property in your possession including your identity card to the Director, Administration and Personnel Services.

  1. I have gone through the conditions of employment of Claimant, and do not find any provision for nullification.  Exhibit C6/D1 provides for Resignation, termination, dismissal, and retirement.  No mention is made of nullification.  The English Cambridge Dictionary defines ‘to nullify’ as “to make a legalagreement or decision have no legal force; to cause something to have no value or effect”.  It is necessary to note that a contract of employment is first and foremost, a contract.  It is governed by the general rules of contract.  Where a party to a contract of employment unilaterally brings it to an end, contrary to agreement, that party is in breach of that agreement.  It does not matter what name is given to the mode of breach.  The determination (bringing to an end) of Claimant’s employment as done by the Defendant is contrary to agreement.  It is contrary to the letter given to the Claimant, and contrary to Defendant’s own Conditions of Service.

 

From the finding above, I hold that the letter of “Nullification of Offer of Appointment” Ref: NIMASA/APD/CONF.2411/Vol.1/41 dated 14/09/2015 is a nullity in itself.  Parties to contracts are not at liberty to unilaterally ‘nullify’ agreements they entered into.  Annulment is an action open to designated authorities to annul actions under certain legal conditions; and not open to a party to an agreement to annul its own action after leading the employee to shift grounds and position due to the agreement.  To permit that will create an unfair labour practice where contracts of employment can be ‘annulled’ by the overtly more powerful employer.  It will also cause terms of contracts of employment to be uncertain, and subject to the whims of the employer.  The justice of this case cannot accept that Claimant should suffer for no fault of hers and for no justifiable reason.

 

The act of ‘nullification’ not being open to the Defendant in this case, the contract of the Claimant continued as if it has not been tampered with.  Claimant was never sacked, never terminated, never retrenched, never dismissed, never retired being the only ways provided by Defendant’s own Conditions of Service.  If the Condition of Service has any value to the Defendant, then the terms of the Conditions should have been followed in determining the contract of the Claimant; even though still under probation.  Claimant is therefore entitled to all the rights that would have accrued to her, if not for Defendant’s breach.  It is the law that parties are bound by the terms of their contractual agreement and the Courts are also enjoined to give effect to it. See Al-Bishak v. National Productivity Centre & Anor (2015) LPELR-24659(CA); Lajibam Auto & Agric Concerns Ltd & Anor v. Trade Bank Plc & Anor (2014) LPELR-22779(CA).  It follows that Exhibits C1 and C6 which is the contract of employment between the parties must be followed to the letter except there is proof of illegality or fraud; which I have not found in this case.  Defendants therefore continue to be liable to the Claimant until properly terminated.

 

  1. I make no finding however, on the second limb of the relief on the ‘nullification letter’s capability or otherwise of eroding the Defendant’s commitments under Article 1.9.1 (b) and (c) among other obligations owed the Claimant as that goes beyond the propriety of the determination of Claimant’s employment, to issues akin to Defendant’s objectives and directive principles such as enabling staff realise their full potentials through the establishment of appropriate technical training and man power development programmes and the provision of a socio-psychological and physical environment that will motivate staff to achieve self-fulfilment and excellent job performance.    I decline that relief.

 

  1. What happens to the probationary status of the Claimant must flow from the determination that the nullification of the appointment is wrongful.   Being so, the implication is that Claimant continued as a probationary staff since June 2015, beyond the 12 months requirement for confirmation.  In the case ofIwuji v. Federal Commissioner For Etablishement 1985 1 NSCC 580 it was held that “Where an employee on probation has spent the required probationary period without termination or confirmation, the issue of confirmation of the employee is implied.“  The principle of ‘deemed confirmation’, enunciated in the case of RAJI v. OAU (2014) LPELR-22088(CA) will apply.  See also the cases of Obafemi Awolowo University vs. Dr. Kola Onabanjo (1991) 5 NWLR (Pt.193) 549.  However, the above cases which recognised ‘deemed confirmation’ differ from the present case in that in this case, Claimant was already removed before the expiration of the contractual period of probation.  I therefore decline to order for implied confirmation.

 

  1. Issue 3 is whether Claimant is entitled to her Claim.  Based on my findings on the first two issues for determination; I hold as follows:

 

  1. i)I declare that the purported nullification of offer of appointment of the Claimant by letter ref: NIMASA/APD/CONF.2411/VOl.1/41 dated 14/9/2015 is null and void and of no effect.
  2. ii)I declare that the Defendant is not entitled to rely on its letter ref: NIMASA/APD/CONF.2411/ Vol. 1/41 dated 14/9/2015 to deny Claimant of the benefits of her permanent and pensionable employment with NIMASA, including arrears of salaries and allowances and her right to confirmation of employment as a permanent and pensionable staff.

 

iii)                The letter of nullification of appointment ref: NIMASA/APD/CONF.2411/VOl. 1/41 dated 14/9/15 is hereby set aside.

Claimant seeks an order to restore her to her post as Principal Shipping Development Officer.  Having found that the Claimant’s employment with the Defendant was not with statutory flavour, the prayer sought is tantamount to an order for reinstatement which the Court cannot make in the circumstance.  However, until properly determined according to contract, Claimant continues to be entitled to her salaries and allowances.  The least requirement of equity and the demand for fair labour practices minimally require that an employer should be responsible to the document it draws up as its Conditions of Service.  Employers should not act according to their whims without regard to the contracts they have entered.  Thus, while not ordering reinstatement or compelling the continued employment of Claimant, Defendant should comply with its conditions of service in determining Claimant’s employment, else, it continues to be indebted to Claimant.

  1. iv)Defendant is ordered to pay to the Claimant, her arrears of salaries and allowances from 1st day of July 2015 till termination at the rate of ₦913, 729.74 per annum as stated in Claimant’s letter of employment.
  2. v)Relief 5 is declined as I do not find it an appropriate circumstance for the Order.

Relief 6 is for cost for this action.  This Court, per OBASEKI-OSAGHAE, in Mr. Olufemi Emmanuel Oyewole v. Olabisi Onabanjo University SUIT NO. NICN/LA/273/2013 judgement of which was delivered on November 22nd 2016 found that on the authorities, expenses incurred by a party on Counsel are reasonably compensated.  She referred to the cases of Int’l Offshore Const Ltd v S.L.N. Ltd [2003] 16 NWLR (Pt 845) 157 at 179, and Rewane v Okotie-Eboh  [1960] NSCC 135 at 139.  The Claimant in this case has made a claim for legal costs in the sum of N3,500,000.00 and has led evidence in this regard by exhibits C5 and C7. The evidence is unchallenged. The legal fees incurred by the Claimant are a result of the wrongful actions of the Defendant. This suit was instituted in 2016 by the chambers of O C Onwumere  & Co. It has taken about two years, six months till determination. In this regard,

  1. vi)I award the sum of N1, 000,000.00 (One Million Naira) as legal fees. This in my view is reasonable.

Defendant is to comply with the terms of this judgment not later than 30 days from this judgment.  Thereafter they shall attract post-judgment interest at the rate of 15% per annum till the date the judgment sums are paid in full.

 

Judgment is entered accordingly.

 

 

…………………………………

 

Hon. Justice Elizabeth A. OJI PhD

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