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National Industrial Court

ANN N. UJAM -VS- ENUGU STATE POST-PRIMARY SCHOOLS

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 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 8th March 2018                                            SUIT NO. NICN/EN/17/2016

 

BETWEEN

 

ANN N. UJAM                                                        …                CLAIMANT

 

AND

 

  1. ENUGU STATE POST-PRIMARY SCHOOLS            

MANAGEMENT BOARD                                                

  1. THE CHAIRMAN, ENUGU STATE POST-PRIMARY

SCHOOLS MANAGEMENT BOARD                             

  1. THE SECRETARY ENUGU STATE POST-PRIMARY …        DEFENDANTS

 SCHOOLS MANAGEMENT BOARD                                 

                                 

REPRESENTATION:

 

Ujam H. Ujam Esq. for the Claimant

Genevieve Ifeoma Chukwurah Esq. for the Defendants.

 

JUDGMENT

 

  1. The Claimant by a Complaint filed on 29th April 2016 claimed against the Defendants for:

 

  1. A declaration that the stoppage of salaries and allowances of the Claimant since February 2013 by the Defendants without any just cause and in total violation of the 1st Defendant’s law is illegal, unlawful, null and void.

 

  1. A declaration that the removal of the Claimant from her post as principal of Community Secondary School Amodu Awkunanaw by the 3rd Defendant is in total violation of the 1st Defendant’s law.

 

  1. A declaration that the Claimant who was employed in 1983 with NCE certificate through a letter dated 9th September 1983 has not worked up to 35 years in service of the 1st Defendant and has not reached the age of retirement.

 

  1. An order directing the 1st, 2nd and 3rd Defendants or their agents, servants, officers, privies or otherwise however called to reinstate and restore the Claimant to her employment with the 1 Defendant at Community Secondary School Amodu Awkunanaw with her full and enhanced salaries and allowances including other entitlements, rights and privileges attached thereto from February 2013 up to the time of her retirement.

 

  1. An order of perpetual injunction restraining the 1st, 2nd and 3rd Defendants by themselves or their agents from further interfering with the Claimant’s performance of her duties till retirement.

 

  1. General damages of N5 million for unlawful interference with the Claimant’s employment with the 1st Defendant and the suffering, trauma, hardship and frustration which the interference in the Claimant’s employment have put on her.

 

ALTERNATIVELY

 

An order directing the 1st, 2nd and 3rd Defendants to pay the Claimant the total sum of money due to her on Grade level 16 step 7 as her salaries and allowances from February 2013 to 2018 when she will retire and 10 percent interest on the said sum for wrongful stoppage of salaries and allowances.

 

  1. The Claimant filed alongside the Complaint a statement of facts, list of witnesses and witness’ deposition of the Claimant, list of documents and copies of the documents. The processes were served on the Defendants on 10th May 2016. The Defendants, through their Counsel, Mrs. Evangeline E. Inyiama, entered an appearance and filed a statement of defence, list of witnesses, statement on oath of the witness, list of documents and copies of the documents on 2nd September 2016 together with a motion for enlargement of time and notice of preliminary objection challenging the jurisdiction of the Court on the ground that the action is statute barred. The motion for enlargement of time was granted as prayed on 18th November 2016. In a considered ruling delivered on 20th February 2017, this Honourable Court per Honourable Justice Waziri Abali dismissed the notice of preliminary objection and adjourned the case for hearing. With the leave of Court granted on 24th April 2017, the Defendants amended their statement of defence and filed a further witness deposition of Mrs. Pauline Nnenna Ekowa dated 24th April 2017. The Claimant filed her reply to the amended statement of defence and additional witness statement on oath on 2nd May 2017. This case came up before me on 24th October 2017 and was adjourned to 16th November 2017 for trial. Trial commenced on 16th November 2017 and was concluded on the same day. The Claimant adopted her statements on oath dated 29th April 2016 and 2nd May 2017 as her evidence in proof of her claim. She tendered 16 exhibits, exhibits A to R. Exhibit A is the letter of appointment and posting, exhibit B is confirmation of appointment, exhibit C is letter of appointment and transfer as Vice Principal, exhibit D is letter of appointment and posting as Principal, exhibit E is letter of appointment as Principal Special Grade; exhibit F is letter of posting of Mrs. Chika Mba as Acting Principal of GSS Amodu, exhibit G is Claimant’s letter dated 22/4/2013 to 1st Defendant’s Chairman protesting her early retirement. Exhibit H is Claimant’s letter of complaint to 1st Defendant’s Chairman dated 3/11/2014, exhibit J – J2 is a list containing names of those appointed Principals; exhibit K is letter of complaint to 1st Defendant’s Secretary dated 6/7/2015, exhibit L – L2 is Claimant’s letter to Commissioner for Education dated 10/9/2014, exhibit M – M5 is the three months’ pre action notices to the Defendants; exhibit N is courier receipts for delivery of pre action notices, exhibit P-P1 is Mrs. Josephine Onyia’s reply to the three months’ pre-action notices; conditions of service is exhibit Q-Q29 and exhibit R-R5 is recommendation from the Legal Unit. The Defendants’ witness, Mrs. Pauline Nnenna Ekowa, adopted her two statements on oath dated 2nd September 2016 and 29th April 2017 as her evidence in defence of the suit and tendered 12 exhibits, exhibits DW1 – DW12. Exhibit DW1 is copy of Government’s Circular dated 29/9/2014, exhibit DW2 is Claimant’s TC 11 certificate, exhibit DW3 is notification of Claimant’s record of service form; exhibit DW4 is letter of harmonization of salary, exhibits DW5 – DW10 are notifications of promotion of the Claimant, exhibit DW11 is a letter captioned “Blocking of Monthly Salaries/Allowances” dated 28/2/2013 and exhibit DW12-DW12A is Mrs. Josephine Onyia’s reply to the three months’ pre-action notices. The case was thereafter adjourned to 19th January 2018 for adoption of final written addresses. On 19th January 2018, learned Counsel for the Defendants, Miss Chukwurah, applied for an adjournment but did not copy learned Counsel to the Claimant who opposed the application for adjournment. The Court upheld the objection and pursuant to Order 45 rule 7 of National Industrial Court [Civil Procedure] Rules, 2017, the Defendants’ final written address filed on 5th December 2017 and reply on points of law dated 20th December 2017 were deemed adopted. Learned Counsel to the Claimant, Mr. Ujam, referred to and adopted the Claimant’s final written address dated and filed on 13th December 2017 as his argument in support of the claim. The matter was consequently set down for judgment.

 

CLAIMANT’S CASE

 

  1. The Claimant’s case, as manifest from the statement of facts and her statements on oath, is that she was a staff of the 1st Defendant having been employed on 9th September 1983 by the Old Anambra State Education Commission with NCE in Mathematics Education and posted to St. Theresa’s Secondary School Abor. She was promoted several times and at the time of her premature retirement in 2014, she was a Principal Special Grade on Grade Level 16 Step 7. It is the Claimant’s case that she was posted to Community Secondary School, Amodu Awkunanaw in Agbani Zone in October 2009 as Principal. She attributes her premature retirement to her attempt to stop the Igwe of the Community from creating a road across the School Compound in May 2013. She said Mr. Chijioke Nwobodo who was subsequently appointed Secretary to the 1st Defendant was a member of the Community who attended the settlement meeting between the School and the Community and he used his position as Secretary to the 1st Defendant to remove the Claimant from Community Secondary School Amodu Awkunanaw Community Secondary School Amodu Awkunanaw on the ground that she possessed TC 11 certificate even though she was not employed with the TC 11 certificate and was not due for retirement. Prior to her retirement in 2014 [by the appointment of Mrs. Chika Mba as the Acting Principal of Community Secondary School, Amodu Awkunanaw on 18th August 2014, exhibit F], her salary had been stopped pursuant to a memo dated 28th February 2013 from the Director Finance and Accounts of the 1st Defendant marked “Retired”, exhibit DW11, even when no letter of retirement was served on her. She protested her premature retirement to the 1st and 3rd Defendants and the Commissioner for Education, exhibits G, H, K and L respectively. The Commissioner for Education directed the Permanent Secretary of the 1st Defendant, Mrs. Josephine Uzoamaka Onyia, who took over from Mr. Chijioke Nwobodo to investigate the matter but she refused to attend to the letter but advised her to apply to the Head of Service. It is her case that she exhausted all administrative procedures of complaint to address the issue to no avail. Consequently, by letters dated 24/8/2015, she served the Defendants the requisite three months’ pre-action notice and thereafter commenced this suit seeking the reliefs set out above.

 

DEFENDANT’S CASE

 

  1. The Defendant’s case, as shown in their amended statement of defence and DW1’s statement on oath dated 2nd September 2016 and further statement on oath dated 24th April 2017 is that the Claimant obtained a TC 11 certificate in July 1979 and that those who obtained TC 11 certificates at the time were given automatic employment by the State Education Commission and posted to teach. DW1 testified that the Claimant dishonestly concealed the fact that she had TC 11 certificate and presented her NCE certificate for fresh appointment which is why “the circular affected her when it was discovered.” It is also the Defendants’ case that the Claimant was harmonized and promoted from Master 111 SGL 7 to Master 11 SGL 8 on 1st December 1985 and further promoted to SGL 9 on 1st December 1989 on the strength of her first appointment in July 1979. DW1 confirmed that the Claimant’s salary was erroneously stopped in February 2013 by letter dated 28th February 2013 and marked ‘retired’, exhibit DW11. DW1 said the “stoppage of salary/retirement of the Claimant was erroneous and the Claimant’s correct date of retirement is 1/7/2014 since her date of 1st appointment is 1/7/1979.” It is the Defendants’ case that the Claimant was retired based on Government Circular reference no. ENS/ENSG/PPSMB/AD.827/14 of 29th September 2014, exhibit DW1 and that the 3rd Defendant acting on the Government’s circular stopped the Claimant’s salary in March 2013.

 

SUBMISSION ON BEHALF OF THE DEFENDANT

 

  1. The Defendants’ undated final written address was filed on 5th December 2017. The Defendants raised two issues for determination namely:

 

  1. Whether this matter is statute-barred?

 

  1. Whether the Claimant is entitled to the reliefs sought in the statement of claim?

 

On issue one, learned Counsel to the Defendants referred to section 2[a] of the Public Officers Protection Act and submitted that when an action is statute barred, the Claimant who might have had a cause of action loses the right to enforce it. It was also submitted that for the purpose of limitation of action, time begins to run from the moment the cause of action accrued and referred to the case of Okenwa v. Military Governor of Imo State [1997] 6 NWLR [pt. 507]154 at 167 and Nigeria Ports Authority Plc v. Lotus Plastics Ltd. [2005] 19 NWLR [pt. 959]158 at 181. Continuing, learned Counsel submitted that in determining the period of limitation, one has to look at the time the cause of action arose and compare it with the time the writ of summons was filed. If the time is beyond the period allowed by the limitation law, then the action is statute barred. Learned Counsel also submitted that negotiation for the purpose of settlement of dispute does not prevent or stop the period of limitation from running and relied on Agricultural & Rural Management Training Institute v. Bayere [2003] FWLR [pt. 155] 649 at 662. It was further submitted that section 2[a] of the Public Officers Protection Act applies to actions on contract of service and relied on Gyang v. NSC [2002] 15 NWLR [pt. 791] 455, which learned Counsel submitted is in pari materia with this case and the Supreme Court upheld the preliminary objection. Learned Counsel also cited and relied on the cases of LUTH & M. B. Adewole [1996] 7 NWLR [pt. 463] 701 and Onyejekwe v. The Nigeria Police Council [1996] 7 NWLR [pt. 463] 704. Learned Counsel submitted that the only exception to statute of limitation is fraud and referred to the cases of Arowolo v. Ifabiyi [1995] 8 NWLR [pt. 400] 496 and Hassan v. Aliyu [2010] 7-12 SC 70 at 93. Learned Counsel therefore submitted that this action does not fall within the exceptions and urged the Court to dismiss it.

 

On issue two, learned Counsel explained that the Claimant’s retirement was not arbitrary or with bad intentions because the stoppage of her salary preceded the appointment of Mr. Chijioke Nwobodo as Secretary of the 1st Defendant and he was merely acting on exhibit DW1, the government circular. Learned Counsel referred to exhibits H and L-L1 and explained that even though exhibit DW1 was not attached to those letters, the Claimant admitted filling an evaluation form and stating therein that she did auxillary teaching in January 1976 and that exhibit DW1 included those who did auxillary teaching and by virtue of this fact the Claimant ought to have retired in January 2011. Continuing learned Counsel argued that the Claimant admitted that she obtained TC 11 certificate in the course of training as a teacher in 1979 and that what is admitted needs not to be proved and referred to the cases of Vanguard Media Ltd. v. Ajoku [2003] FWLR [pt.173] 68 and Ude v. A. G. Rivers State [2002] 4 NWLR [pt. 756] 66. Learned Counsel dwelt on the Claimant’s denial of knowledge of exhibit DW1 and referred to exhibit DW12-DW12A, which is the response to pre-action notice and argued that denial of knowledge of exhibit DW1 before the trial shows that the Claimant is not a credible witness. It was submitted that the Claimant’s retirement based on the provisions of exhibit DW1 is not illegal or unlawful because it was based on the directives of the Government that employed her. On exhibit R-R5, learned Counsel referred to section 190 of the Evidence Act and submitted that evidence of an unpublished official record relating to the affairs of the state cannot be given without the permission of the head of the department concerned, the 2nd Defendant, and urged the Court to discountenance it.

 

SUBMISSION ON BEHALF OF THE CLAIMANT

 

  1. The Claimant’s final written address is dated and filed on 13th December 2017. The Claimant raised four issues for determination to wit:

 

  1. Whether this suit is statute barred?

 

  1. Whether the Secretary of the 1st Defendant, Mr. Chijioke Nwobodo, who also posed as the Acting Chairman of the 1st Defendant has any power to retire the Claimant unduly?

 

  1. Whether there was any proof by the Defendants that the Claimant was not given first appointment by the 1st Defendant on 9th September 1983?

 

  1. Whether the Defendants are protected from none payment of filing fees in this Court?

 

In his reply to issue one, learned Counsel to the Claimant referred to section 34 of the Law setting up the 1st Defendant and section 11[2] of the State Proceeding Law, CAP 147 Laws of Enugu State, 2004 and submitted that the State Proceeding Law takes precedence over the 1st Defendant’s law. It was argued that where there are two conflicting laws, between the State and its statutory body, the State law takes precedence, especially as the Claimant cannot be expected to give three months’ notice and commence the action within three months. Learned Counsel also submitted that the Public Officers Protection Act does not apply to cases of breach of contract and relied on the cases of FGN v. Zebra Energy Ltd [2002] 18 NWLR [pt. 798] 162 and CBN v. Adedeji [2004] 13 NWLR [pt.890] 226. It was further submitted that for the Public Officers Protection Act to apply the following conditions must be established:

 

[a].     That the person against whom the action is commenced is a public officer or a person acting in execution of public duties within the meaning of the law.

[b].    That the act was done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.

 

Learned Counsel relied on Ibrahim v. JSC [1998] 14 NWLR [pt.584] 1, CBN v.  Ukpong [2006] 13 NWLR [pt.998] 555, Egbe v. Alhaji [1990] 1 NWLR [pt.128] 546 and Ekeogu v. Aliri [1991] 3 NWLR [pt.179] 258. Learned Counsel contended that the Claimant proved that the act was done in malice and consequently the Defendants lost the protection under the Act. Learned Counsel contended that the Public Officers Protection Act is meant to protect officers who act in good faith and submitted that where the defence of Public Officers Protection Act is not pleaded by the Defendants in their statement of defence they can neither raise it nor rely on it and referred to Kano v. Oyelakin [1993] 3 NWLR [pt.282] 399, FCDA v. Naibi [1990] 3 NWLR [pt.138] 270 at 281 and Mobil Oil [Nig.] v. Coker [1975] 3 SC 175. He therefore submitted that the plea of Public Officers Protection Act does not avail the Defendants. Learned Counsel further explained that the issue of statute barred was raised by the Defendants in their notice of preliminary objection filed on 2nd September 2016 and that this Honourable Court ruled on 20th February 2017 that the suit is not statute barred.

 

On issue two, learned Counsel explained that the Claimant’s employment is one with statutory flavor because it is regulated by statute, the 1st Defendant’s law and conditions of service and Public Service Rules of Enugu State 2014, particularly sections 010101 and 020810 [i] and [ii] and chapter 8.2 of the Conditions of Service. Learned Counsel also stated that the Defendants in paragraph 3[4] of the further statement on oath admitted that the retirement of the Claimant was erroneous and that the Claimant was to retire in 2014 and argued that the crux of this case is undue retirement of the Claimant on 28th February 2013, and the Defendants having admitted that they acted erroneously, the Claimant does not have to proved that her retirement was erroneous and relied on the case of Nwankwere v. Ugorji 10 SCND 38 and section 123 of Evidence Act 2011.  Learned Counsel contended that the 1st Defendant has no power to retire a regularized or confirmed staff and that retirement age is 35 years of pensionable service or 60 years of age and referred to section 10 Enugu State Post-Primary Schools Management Board Law, section 020810 of Enugu State Public Service Rules 2014 and exhibit Q-Q29. It was argued that whenever the authority of a person who retires a public servant is challenged, he must establish the source of his authority and relied on Wilson v. Attorney General of Bendel State [1985] 6 NSCC 191, 204 and Okoro v. Delta Steel Co. [1990] 2 NWLR [pt. 130] 87. Continuing learned Counsel submitted that the authority must prove the following:

[a]      the source of authority

[b]     that the employee has attained 60 years of age or 35 years of service

[c]      that the employee was given three months written notice of retirement and referred to the case of Psychiatric Hospital Management Board v. Ejitasha [2000] 13 WRN

 

It was further contended that exhibit DW3, record of service corroborates the Claimant’s case. It states that the Claimant was born on 25th September 1963, her first appointed on 9th September 1985 and would retire on 9th September 2020. Learned Counsel therefore argued that there is no evidence before the Court that the Claimant had any other appointment before 9th September 1985. On exhibit R-R5, learned Counsel contended that confidential government communication is excluded from class of public documents and relied on Governor Ekiti State & Anor v. Chief Ojo & Ors. [2006] All FWLR [pt.331] 1298 at 1328 and urged the Court to hold that the Defendants had no power to retire the Claimant without proof that she had reached the retirement age.

 

On issue three learned Counsel explained that the Claimant tendered exhibit A and the Defendant relied on exhibits DW3 and DW1 even though they admitted that the retirement was in error. He contended that apart from the fact that exhibit DW1 did not emanate from the 1st Defendant’s Board, it affects officers who stepped into the service as an auxillary teacher, temporary appointment or with TC 11 certificate and that the Claimant did not fall within this category and the Defendants have not proved the contrary.

 

On issue four, learned Counsel referred to Order 57 rule 5[3] of National Industrial Court [Civil Procedure] Rules 2017 and submitted that the Defendants may be exempted from payment of filing fees upon grant of the leave of this Court and referred to the case of Onwugbufor v. Okoye [1996] 1 NWLR [pt.424] 252 at 292. Relying on Sule v. Nigerian Cotton Board [1985] 2 NWLR [pt.5] 17, learned Counsel submitted that the word ‘may’ is permissive and that by section 3 of Enugu State Post-Primary Schools Management Board Law the 1st Defendant is a corporate entity different from government parastatals. Learned Counsel also referred to Order 41 rule 11 National Industrial Court [Civil Procedure] Rules 2017, sections 109 and 111 of the Evidence Act and submitted that DW1 signed her witness depositions in breach of the Rules and the Evidence Act. Finally, relying on section 34[4] of Enugu State Post-Primary Schools Management Board Law, learned Counsel contended that DW1 is not a staff of the 1st Defendant and was not authorized to represent the 1st Defendant and urged the Court to so hold.

 

REPLY ON POINTS OF LAW

 

  1. By way of reply on points of law, learned Counsel to the Defendants submitted that section 34[1] of Enugu State Post-Primary Schools Management Board Law and section 11[2] of the State Proceeding Law exist independently of each other and none is excluded; and that the Public Officers Protection Act being a Federal law supersedes the State Proceeding Law. Learned Counsel also contended that by the combined provisions of sections 10[1][a] and 11[3] of Enugu State Post-Primary Schools Management Board Law the 1st Defendant is a government agency. It was further argued that by section 6 of the State Proceeding Law, the Attorney General of the State has power to institute any civil proceeding on behalf of the State. On whether the Defendants are precluded from payment of filing fees, learned Counsel submitted that Order 57 rule 5[3] of National Industrial Court [Civil Procedure] Rules 2017 is clear on the issue and that leave of Court is not required.

 

COURT’S DECISION

 

  1. I have read and understood the pleadings and depositions of witnesses filed by learned Counsel for the parties and listened to their testimonies during cross examination. I have also read and carefully evaluated the 28 exhibits and the written addresses filed by both learned Counsel. Having done this, it is my considered opinion that the issue for determination in this case is whether the Claimant has proved her case on a preponderance of evidence to entitle her to the reliefs sought or any of them. The law is now settled that in civil cases the burden of proof is on the person who asserts same. See sections 131[1] and 132 of the Evidence Act 2011 and the cases of Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604 [CA] 1 at 26, Senator Chris Adighije v. Hon. Nkechi J. Nwaogu & Ors. [2010] LPELR-4941 [CA] 79-80 and Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627 [CA] 1 at 23-24, [2004] 2 NWLR [pt.856] 100. In Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -761, Niki Tobi, JCA [of blessed memory, as he then was] held that: “The onus is on the person alleging wrongful dismissal or termination of appointment to so prove. See College of Medicine v. Adegbite [1973] 5 SC 149. And he has to discharge the onus by relying on the contract of service and the notice of wrongful dismissal and termination. The law will not allow the party to vegetate on general common law provisions which are not contained in the contract or anticipated therein.” See also the case of Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1. Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought.

 

  1. Before I continue, I would like to make a few clarifications. First, is the issue whether this suit is statute barred? In the light of case law authorities, I hold the view that since this Court has ruled on the issue on 20th February 2017 and the Defendants have not appealed against the decision that settles the matter. Any other position I take on the issue will not be consistent with settled judicial authorities and will amount to sitting on appeal over a decision of my learned brother. This temptation I must resist. See the case of Al-Bishak v. National Productivity Centre & Anor. [2015] LPELR-24659[CA] 1 at 57-58 which is on all fours with this case. In that case Oseji, JCA, held thus:

 

“Curiously enough in the course of a careful perusal of the Record, it was discovered that learned counsel for the 2nd Respondent filed a notice of preliminary objection dated 10-12-2007 and it is at page 346 to 347 of the record. It was moved and argued on 4-3-2008 as shown at pages 350 to 350B of the record. In its ruling as contained in pages 350B and 350C of the Record, the lower Court overruled the preliminary objection on the ground that the National Productivity Centre Act made the Minister to have supervisory role over the Centre and the letter of termination of appointment pointed to that direction in which case there is a cause of action against it. Incidentally there was no appeal against the said Ruling which means that it still subsists despite the fact that the Judge who gave the Ruling is not the same Judge who concluded the hearing and delivered the final judgment. Nonetheless it is still the same court and any such ruling remains binding and subsisting until it is set aside on appeal. A judge of co-ordinate jurisdiction cannot sit on appeal or reverse the decision of another Judge more so that in this case it was in the same Court. When a case is to be tried de novo before another Judge due to the transfer of a former Judge hearing it or due to a reassignment order, every ruling hitherto delivered pursuant to an application filed and argued by the parties does not fizzle out but remains subsisting.”

 

I therefore abide by the decision of my learned brother and refrain from commenting on issue one. Also, learned Counsel to the Claimant argued extensively on the propriety of the Defendants not paying filing fees. By Order 57 rule 5[3] of National Industrial Court [Civil Procedure] Rules 2017, government or public institutions are exempted from paying filing fees for processes filed within time. The 1st Defendant is unarguably a public institution. Learned Counsel to the Claimant admitted this much in paragraph 6 page 8 of his written address when he argued that the Claimant is a public servant. If the Claimant is a public servant by virtue of her employment by the 1st Defendant, then invariably the 1st Defendant is a public institution. Moreover, by the combined provisions of sections 10[1][a] and 11[3] of Enugu State Post-Primary Schools Management Board Law, the 1st Defendant is a government agency established for the management and control of post-primary schools owned by the State. Learned Counsel’s submission on this point is therefore misconceived and hereby discountenanced. Thirdly, is the issue whether the office of the Attorney General of the State can represent the Defendants? By virtue of section 195[1] of the Constitution of the Federal Republic of Nigeria 1999 as amended, the Attorney General of the State is the Chief Law Officer of the State and can undertake any proceedings on behalf of the State or any agency of the State. See section 6 of State Proceedings Law, CAP 146 Laws of Enugu State and the case of Hon. Justice Raliat Elelu-Habeeb v. The Hon. Attorney General of the Federation & Ors. [2012] 2 SC [pt. 1] 145 at 204 to 205. Consequently, any staff of the Attorney General’s office can act for and on behalf of the party without the requirement of a written authorization. I therefore hold that the office of the Attorney General of Enugu State can represent the Defendants in this action. On DW1 signing her statements on oath in the Ministry of Justice, the Court is empowered by Order 5 Rule 6[2] of the National Industrial Court [Civil Procedure] Rules, 2017 to regulate its procedure in the interest of justice and fair play and in appropriate circumstances depart from the Evidence Act. I hold the view that this is one of such circumstances and the signing of DW1’s statements on oath in the Ministry of Justice does not invalidate it as the Registrar of this Court accepted it as being in compliance with the Rules of this Court and affixed her stamp and signature on it. Finally, on exhibit R-R5. Exhibit R-R5 is an unpublished official record pursuant to section 190 of the Evidence Act, 2011. It does not have a heading, was not signed and does not bear any certification or semblance of emanating from proper custody. It is highly unreliable and cannot be taken to establish the facts the Claimant tendered it for. Accordingly, I agree with the submission of learned Counsel to the Defendants in paragraph 5.06 of her final written address and I expunge it from the records.

 

  1. Now, I will proceed to consider the merits of this case. Having regard to the facts, it is plain to me that the Claimant’s employment is one with a statutory flavour. The parties are agreed on this fact. See paragraph 1 of the amended statement of defence. It is also agreed that the Claimant’s employment is regulated by the 1st Defendant’s Senior Staff Conditions of Service revised in November 2014 and Enugu State Public Service Rules, 2014. Exhibit Q-Q29 are the conditions of service. Chapter 8 Article 8.2 of exhibit Q-Q29 provides that the compulsory age of retirement shall be 60 years or 35 years of working experience. Section 4 Rule 160401 chapter 16 of the Enugu State Public Service Rules 2014 makes the provisions of section 8 in chapter 2 of the Public Service Rules on leaving of service applicable to all Parastatals as contained in each Parastatal’s conditions of service. Section 8 chapter 2, Rule 020810[i] of Enugu State Public Service Rules, 2014 provides that the compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier. Consequently, section 8 chapter 2, Rule 020810[i] of Enugu State Public Service Rules, 2014 applies to the Claimant’s employment. By the combined effect of these provisions, the retirement age is 60 years or 35 years of pensionable service whichever is earlier. It is trite that the conditions of service are the bedrock of any contract of service. See O. Amodu v. Dr. J. O. Amode & Anor. [1990] 5 NWLR [pt. 150] 356 at 372-373 and Frank Jowan & 77 Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 25.

 

  1. The Claimant’s case is that she was prematurely and improperly retired on 28th February 2013. There is evidence that the Claimant’s salary was stopped pursuant to exhibit DW11, a letter from the Director Finance and Accounts of the 1st Defendant dated 28th February 2013 and marked ‘retired’. There is nothing before the Court notifying the Claimant of her retirement. The Defendants in paragraphs 13 and 14 of the amended statement of defence and in paragraph 3[e] and [f] of the Defendants’ witness statement on oath dated 24th April 2017 admitted that the Claimant’s salary was erroneously stopped in February 2013 and that the “the stoppage of salary/retirement of the Claimant was erroneous….” Facts admitted require no further proof. See section 123 of the Evidence Act, 2011 and the cases of Bendel Pilgrims Welfare Board v. Alhaji Wahabi Irawo [1994] LPELR-14109[CA] 16 and Shittu Sanusi & 2Ors. v. Buraimo Obafunwa & Another [2006] LPELR-11863[CA] at page 26. In the latter case, Augie, JCA [as he then was] held:

 

“…it is trite law that facts admitted require no proof because an onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. If the Plaintiff’s claim is admitted, that will be the end. Similarly, if a particular averment of the Plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. In summary, what is not denied is deemed admitted and what is admitted need not be proved.”

 

  1. However, the Defendants contend that the Claimant was retired pursuant to exhibit DW1 dated 29th September 2014. The question is can exhibit DW1 operate retrospectively? I think not. Under our law there is a presumption against retrospectivity. See A. Shitta-Bey v. Attorney General of the Federation and Anor. [1998] LPELR-3055[SC] at page 42. It is the Defendants’ case that the Claimant’s correct retirement date is 1st July 2014. The Claimant contradicted these averments in paragraphs 11, 15 and 16 of her reply to the amended statement of defence and paragraphs 13, 17 and 18 of her additional statement on oath dated 2nd May 2017. Curiously, the Defendants did not lead any evidence or tender any documents to show a contrary date of employment of the Claimant. Exhibit DW3 titled ‘Record of Service’ corroborates the Claimant’s testimony. Part 11 of exhibit DW3 puts the date of first appointment as 9th September 1983 and her date of birth as 25th September 1963. By exhibit Q-Q29, the Claimant’s retirement date is September 2018. The Defendants’ witness in paragraph 3[d] of her further statement on oath dated 24th April 2017 stated, rather preposterously, that “If the Claimant’s date of first appointment is 1983 as she is claiming, that she would not be due for promotion/harmonized in 1985, rather she would be asking for confirmation of appointment being two years of employment. In other words, it is not possible for her appointment to be confirmed in 9/9/85 and promoted/harmonized the same year if not that she has been working with the TC 11 certificate.” These are not statements of facts. They are not the product of an investigation or the testimony of someone who witnessed the event; and there is no evidence before me that the Claimant had any other appointment before 9th September 1983. It is settled law that the burden of proof is on the person who asserts the existence of some state of affairs and therefore seeks judgment of the Court based on the facts which he has asserted. If those facts are not proved or no evidence is led at all on those facts, the person who asserted the existence of those facts is bound to fail. See the case of Solomon Adekunle v. Attorney General of Ogun State [2014] LPELR-22569[CA] at 22 and sections 131 and 132 of the Evidence Act, 2011. Exhibit DW3 sets out the Claimant’s date of first appointment as 9th September 1983. This contradicts DW1’s evidence and renders it unreliable. The Claimant’s evidence on her date of first appointment is therefore unchallenged and I accept it as correct in view of what I have said above. In Dr. N. E. Okoye & Another v. Centre Point Merchant Bank Ltd. [2008] 7-12 SC 1 at 28, Niki Tobi, J.S.C. [of blessed memory] held:

 

“I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. While uncontradicted affidavit evidence should be used by the court, there are instances when such affidavit evidence clearly tell a lie and the courts cannot be blind to such a lie.”

 

DW1’s evidence in her further statement on oath dated 24th April 2017 has been materially contradicted by the Defendants’ exhibits particularly exhibits DW1, DW3 and DW11. It beats the imagination how the 1st Defendant could claim to have retired the Claimant in 2013 on the basis of exhibit DW1 which was released on 29th September 2014. I agree with learned Counsel to the Claimant in paragraph 8 page 8 of his final written address that exhibit DW1 was irregularly issued to justify a pre-determined end. I find and hold that the Defendants did not act in good faith and did not act reasonably. Their action in retiring the Claimant is in breach of the Enugu State Public Service Rules and the 1st Defendant’s conditions of service. In Psychiatric Hospital Management Board v. E. O. Ejitagha [2000] LPELR-2930[SC] at page 15, Uwaifo, JSC, had this to say: “It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.” The question then is what is the effect of abuse of its statutory authority by the 1st Defendant? The answer can be found in the case of O. A. Adeyemi Adeniyi v. Governing Council of Yaba College of Technology [1993] 6 NWLR [pt. 300] 426 at 456, Karibi-Whyte, JSC [as he then was] held: “The general principle is that where the contract of service is protected by statute, and the removal of a person is predicated upon compliance with the statutory provisions, non-compliance with the statutory provisions renders the removal ultra vires and void.”

 

  1. From the evidence before me, the following facts are established:

 

  1. The Claimant’s retirement is irregular and in breach of the 1st Defendant’s conditions of service but not actuated by malice.

 

  1. The Claimant’s date of first appointment is 9th September 1983 and not 1st July 1979.

 

  1. The Claimant’s date of retirement should be September 2018 and not 1st July 2014 or 28th February 2013.

 

  1. The fact of automatic employment after obtaining TC 11 certificate was not established. The Defendants did not produce any government circular in proof. The ipsi dixit of DW1 does not suffice.

 

  1. Exhibit DW11 is not a process of retirement of public servants. It is presumptuous, non-factual and capricious.

 

  1. Flowing from the above, I find and hold that the Claimant’s retirement on 28th February 2013 is null, void and of no effect whatsoever. I also find and hold that the stoppage of salaries and allowances of the Claimant since February 2013 by the Defendants is in violation of the 1st Defendant’s law and consequently null, void and of no effect whatsoever. I equally find and hold based on the evidence before me that the Claimant’s date of retirement is September 2018 when she will attain 35 years of pensionable service.

 

  1. Having so found, what is the remedy available to the Claimant? The remedy is re-instatement. Accordingly, I direct the Defendants to reinstate and restore the Claimant to her position as Principal Community Secondary School Amodu Awkunanaw with immediate effect and pay her full and enhanced salaries, allowances and other entitlements from 28th February 2013 to her retirement in September 2018. The claims for perpetual injunction and general damages are refused and consequently dismissed. Cost of N150, 000 is awarded in favour of the Claimant against the Defendants.

 

  1. Judgment is entered accordingly.

 

 

 

 

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

8/3/18

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