DR. CORNELIUS OGUNMILADE -VS- NATIONAL ASSEMBLY SERVICE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 30^TH MAY, 2018 SUIT N0: NICN/ABJ/68/2015

BETWEEN

CORNELIUS OGUNMILADE CLAIMANT

AND

NATIONAL ASSEMBLY SERVICE COMMISSION DEFENDANT

REPRESENTATION

DANIEL ALUMUN for the Claimant

ONYEBUCHI OBETA for the Defendant

JUDGMENT

The Claimant filed this Complaint on 10^th December, 2015 with the accompanying frontloaded documents, claiming against the defendants as follows:

(a) A DECLARATION that the Defendant’s purported Letter of Withdrawal of Appointment of the Claimant, dated 27^th February 2007, is contrary to the terms of the Service Agreement between parties, especially clause 3 of the Letter of Appointment ret; NASS/SEN/PF/108, and is therefore oppressive, unlawful, unconstitutional, illegal, null and void and of no effect whatsoever.

(b) A DECLARATION that the Claimant remained in the employ of the Defendant until the expiration of the tenure of that employment on 29^th May 2007, and was entitled to all salaries, allowance, and/or emoluments accruing to that office.

(c) A DECLARATION that the stoppage of the Claimant’s salary, by the Defendant, in December, 2006 is contrary to the terms of the Service Agreement between the parties, and is unlawful and oppressive.

(d) AN ORDER of Court that the Defendant pays forthwith, to the Claimant, all outstanding salaries in the sum of N20,965.5 per month; all allowances, emoluments/severance benefits and other entitlements accruing to the Plaintiff’s office, from January 2007, to the expiration of its tenure on May 29, 2007.

(e) The sum of N500, 000.00 (Five Hundred naira) as General Damages for breach of contract.

(f) 10% interest per month, on the outstanding salaries, allowances, emoluments/severance benefits and other entitlements accruing to the Claimant’s office, from January 2007 till date of judgment.

(g) 12% interest per month, on the judgment sum from the date of judgment till same is wholly defrayed.

This matter is a sister case with NICN /ABJ 69/2015 by an Order of Court the two matters were consolidated and the Court indicated that separate Judgments would be given.

CLAIMANT’S CASE

The case of the Claimants’ are that they were variously offered appointments by the Defendant at various grade levels on 12^th August, 2004 and 19^th May, 2005 respectively and by their appointment, they were to serve as Legislative Aides to Senator Bode Olowopooroku.

Dr. Cornelius Ogunmilade was to be paid salary Grade level 16 step 09, which is N494,821 .00 per annum while Peter Abiodun Omoyeni was to be paid salary Grade level 09 step 15 which is 251,586.00 per annum. Also, allowances were to be paid to the Plaintiffs as applicable in the Public Service.

It is the case of the Claimants that without issuance of the required notices to the Claimants, the Claimants’ Salaries from January to 29^thMay, 2017 were not paid even when they were still at their duty post.

STATEMENT OF DEFENCE filed on 9^th May, 2015.

The Defendant admitted paragraph 3 of the statement of fact only to the extent that the Claimant was a staff of the Commission under Senator Bode Olowoporoku. Denying paragraphs 5,6,7,8 and 9 of the statement of fact, Defendant stated that the appointment of the Claimant is at the pleasure of his senator, Senator Bode Olowoporoku, and accordingly, the Commission deals with the Claimant through the said Senator.

Further to paragraph 5, that following Senator Bode Olowoporoku’s request for the withdrawal of Claimant’s appointment, it wrote the claimant withdrawing his appointment and giving him the required One Month Notice vide its letter dated 27^th February, 2007 served on the Claimant through the said Senator.

The Defendant denying paragraph 10 of the statement of fact averred that the Claimant is not entitled to any of the claims contained therein and accordingly urged the Court to dismiss same.

At the trial the Claimants both testified as CW1 and CW2 in the consolidated suit, adopted their respective witness statements on oath which were marked C1 and C4 respectively and proceeded to tender a total of six (6) exhibits

S/No	Description	Dated	Date tendered	Exhibit No	Remarks
1	Witness statement on Oath	10/12/15	C4	6^th April 2017
2	Letter of Appointment	19^th May 2005	C5	6^th April 2017
3	Solicitors Letter	3^rd March 2007	C6	6^th April 2017

The Defendants called one Jane Ocheghalle who testified as DW a Senior Legal Officer in the Defendant, she tendered both of her witness statements on Oath in respect of both NICN /ABJ/68/2015 and NICN /ABJ/69/2015.which were marked D1 and D2, DW proceeded to tender three 3 other documents marked D3-D5. D1,D3 and D5 were tendered in this trial)

S/No	Description	Dated	Date tendered	Exhibit No	Remarks
1	DW Witness Statement on Oath		16^th November 2017	D1
2	Senator Bode Olowoporoku’s Letter	27/02/07	16^th November 2017	13. D3
3.	NASS Letter of withdrawal	28/02/07	16^th November 2017	D5

Parties, at the end of trial, filed their respective written addresses in line with the court’s direction pursuant to Order 38 rule 20. The Defendant’s Final Written Address is dated and filed on 11^th January, 2018, while the Claimant’s is dated and filed on12^th February, 2018.
The defendant’s did not file a reply on points of law.

The DEFENDANT’S FINAL WRITTEN ADDRESS filed on 11^th January, 2018.

ISSUES

(1) Whether the court in the light of the claims of the Claimants can effectively and conclusively determine this suit as presently constituted.

(2) If issue 1 is however answered in the affirmative, whether the withdrawal of the appointment the Claimants by the Defendant were right, legal and or lawful, regard being hard to the Claimants’ service agreement (i.e. letters of appointment).

(3) Whether the Claimants are entitled to the reliefs sought in this suit.

ON ISSUE 1

Whether the court in the light of the claims of the Claimants can effectively and conclusively determine this suit as presently constituted.

Counsel referred to Section 5, paragraphs 0250 1-02504 of the Condition of Service in the National Assembly which provides as follows:

02501 “A non-pensionable short-term appointment is the appointment of a political appointee in the National Assembly on the Conditions set out in his letter of appointment and in accordance with such regulations that may be made from time to time to govern employment of political appointees;
02502 “A presiding officer, a member of the Senate, a member of the House of Representatives or a party leader in the National Assembly may select and appoint such political appointees as may be approved for his office from time to time.

For the purpose of this Regulation, a presiding officer means the president of the Senate, the Speaker of the House of Representatives, the Deputy Speaker of the House of Representatives;

02503 “A political appointee shall hold office at the pleasure of the officer he serves and shall cease to hold office when the officer he serves ceases to hold office
02504 “The Conditions of Service including the fringe benefits of a political appointee shall be as set out in his letter of appointment”

Counsel submitted that from the foregoing provisions, the Claimants held political appointments, were selected by Sen. Bode Olowoporoku in whose pleasure they held the said appointments and agree to forfeit the appointment whenever the distinguished Senator become displeased with them.

Furthermore, that the failure of the Claimants to join Sen. Bode Olowoporoku to this suit is fatal to their case, as this Hon. Court cannot effectively and conclusively determine the questions before it in this suit on the merit as presently constituted. Chief Moses Edewor V Property Development Company Nigeria Limited (2003) 31 WRN 92 © 94 ratio 1, per Oputa, JSC.

He submitted that a person who must be joined in a proceeding has to be someone whose presence is necessary as a party. Chief Collins Ezionwu & 9 Ors. V Mr. Godwin Egbo & 7 Ors. (2006) 5 NWLR (pt. 973) 316 © 327 para. C.; AMODU TIJANI DADA & 3 Ors. V. Jacob Bankoe & 2 Ors. (2008) 33 NSCQR 191 @ 218, per G.A., per OGUNTADE, JSC.

ON ISSUE 2

If issue 1 is however answered in the affirmative, whether the withdrawal of the appointment the Claimants by the Defendant were right, legal and or lawful, regard being hard to the Claimants’ service agreement (i.e. letters of appointment).

Counsel reproduced the letter of appointment of Dr. Cornelius Ogunmilade which read thus:

12^th August, 2004
NASS/LAS/PF/339

CORNELIUS OGUNMILADE

C10 Sen. Bode Olowoporoku,

National Assembly Complex,

Abuja.

LETTER OF APPOINTMENT INTO THE NATIONAL ASSEMBLY SERVICE

I write to offer you a non-pensionable and short term appointment as senior legislative Aide in the National Assembly Service on grade level 16 step 09 which is N494, 821.00 per annum with effect from the date you assume duty. Allowance will be paid to you as applicable in the public service.

Your appointment is at the pleasure of Sen. Bode Olowoporoku.
The Commission may at any time for good cause terminate your appointment by giving you one month’s notice in writing or by the payment of one month’s salary in lieu of notice, you may terminate your appointment by giving one month’s notice in writing or paying one month’s salary in lieu of notice.

You are expected to inform this office in writing of your acceptance of this offer within Two (2) weeks from the date of this letter and to take up the appointment immediately.

Congratulation!

J.M. IJAGBEMI (MRS)

FOR: CHAIRMAN”

Counsel argued that from the foregoing content of the Claimant’s letter of appointment, the following conclusion can be drawn:

(a) (a) The letter of appointment was served through Sen. Bode Olowoporoku;

(b) The appointment was a non-pensionable and short term one

(c) The appointment was at the pleasure of Senator Bode Olowoporoku

(d) The appointment can be terminated by either party by issuance of a one month notice of termination or payment of one month salary in lieu.

He contended that Section 5, paragraphs 02501-02504 of the Conditions of Service in the National Assembly 2004 already reproduced above answers these questions and that the above statutory provision further defines/clarifies the appointments of the Claimants as follows:-

(a) A political appointment;

(b) An appointment governed by the terms set out in the letters of appointments and nothing more;

(c) An appointment which ceases automatically with the ceasure of the tenure of Sen. Bode Olowoporoku unless withdrawn at the pleasure of the said Senator.

Counsel submitted that it is trite law that in employments like the ones under review, the employer reserves the right to terminate the employment at will. ISONG UDOFIA UMOH V INDUSTRIAL TRAINING GOVERNING COUNCIL (2001) 4 NWLR (part 703) 281 @285, ratio 3 where the Court of Appeal held that the categories of employment as follows:

“The three categories of employment are;

A purely Master and servant relationship governed by contract of employment or the rules of common law;
Employment in which the office is held at pleasure and can be determined at will and
Employment that is governed by statute

ON ISSUE 3

Whether the Claimants are entitled to the reliefs sought in this suit.

Counsel submitted that he who asserts must prove and that the Claimants are duty bound to show by reliable evidence that they are entitled to their claims. Christian Ewo & Ors V. Ogbodo Ani & Ors (2004) 4 MJSC 119 © 132, per Kutigi, JSC.

He submitted that the Claimants having failed to substantiate their claims, (that is reliefs a — e) vide convincing and reliable evidence to entitle them to such claims, the Court cannot conjecture or speculate, rather the Court is bound by her records and the evidence before her. Charles Udegbunam V. FCDA & 2Ors (2003) 12 M.J.S.C 64 @ 70 paragraph D.

CLAIMANTS’ FINAL WRITTEN ADDRESS filed on 12^th February, 2018.

ISSUES

1) Whether the non-joinder of Senator Bode Olowoporoku to this suit is sufficient to defeat the Claimants’ claims?

2) Whether considering the circumstances of this case, the stoppage of the Claimants’ salaries and allowances in December, 2006 and subsequent purported issuance and service of withdrawal of appointment letter on Senator Bode Olowoporoku is lawful regard being had to the Claimants’ service agreement (i.e. letters of appointment).

ON ISSUE 1

Whether the non-joinder of Senator Bode Olowoporoku to this suit is sufficient to defeat the Claimants’ claims?

Learned Counsel submitted that though the authorities cited by the Defendant seem plausible and persuasive, and assuming without conceding that the non-joinder of Senator Bode Olowoporoku by the Claimants is wrong, the principle of the effect of non-joinder or mis-joinder of parties to a Suit as posited in those judicial authorities is no longer the law as the Supreme Court in BELLO V. I N E C (2010) 8 N W L R (PT 1196) 342 S.C. @ PAGES 403-40L, paragraphs F-B, 404, paragraphs F-G,418 paragraphs A-B held inter-alia as follows: ‘No cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it”.

He contended that BELLO V. INEC (supra) is a latter decision and the most authoritative on non-joinder or mis-joinder of parties in a Suit.

Furthermore, that Section 9(2) of the Labour Act explicitly provides that An employer shall be responsible for the performance of any contract made by any person acting on his behalf and that the non-joinder of Senator Olowoporoku Bode to the Suit is inconsequential as he, within the context of this case acted for the Defendant whom the Law holds responsible.

ON ISSUE 2

Whether considering the circumstances of this case, the stoppage of the Claimants’ salaries and allowances in December, 2006 and subsequent purported issuance and service of withdrawal of appointment letter on Senator Bode Olowoporoku is lawful regard being had to the Claimants’ service agreement (i.e. letters of appointment).

Learned Counsel submitted that where there are procedural requirements stipulated for the termination of employment, such condition must be followed, otherwise a Termination carried out without fulfilling the requirements will be invalid. P.H.M.B V EJITAGHA (2000) NWLR Pt. 677 Page 160, Paragraphs A B; Olaniyan V University of Lagos (NO 2) (1985) 2 NWLR (pt. 9) 599, Eperokun V. University of Lagos (1 986) 4 NWLR (pt. 80) 25.

He pointed out that the Claimants in their testimony before the Court clearly stated that their salaries and allowances were stopped in December, 2006 and that from January 2007 to May, 2007 when their contract was to expire, nothing in form of money was paid to them, yet they were all at their duty posts till the last day of their contractual tenure. JIRGBAGH V. UBN (2001) 2 NWLR (PT.696 11) @PAGE 2S&2 PARAGRAPH H.

Counsel argued that the submission of the Claimants finds statute support and credence in Section 11 (i) (d) of the LABOUR ACT, CAP.L 1 LAWS OF THE FEDERATION OF NIGERIA, 2004, which provides as follows:

Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.

The notice to be given for the purpose of subsection (i) of this section shall be
One day, where the contract has continued for a period of three months or less;
One week, where the contract had continued of more than three months but less than two years;
Two weeks, where the contract has continued for a period of two years but less than five years; and
One month, where the contract had continued for five years or more.

Any notice for a period of one week or more shall be in writing

ARGUMENT ON ISSUE THREE

Counsel submitted that the summary of the Claimants’ case, is whether the purported termination of their employment by the Defendant, is in compliance with the terms of the contract of employment between the parties.

Counsel submitted that Exhibits C2, and C5 also provide that the termination of appointment shall be for ‘good cause’, and ‘… by giving you one month notice in writing …“and that the Defendant did not comply with the terms of Exhibit C2 and C5 in purportedly terminating the appointment of the Claimants. JIRGAGH V. UBN (2001)2 NWLR (Pt. 696) 11; P.H.M.B. v. EJITAGHA (2000) NWLR (Pt. 677) 160; Olaniyan V. Uni of Lagos (No. 2) (1985) 2 NWLR (Pt. 9) 599; Eperokun V. University of Lagos (1986) 4 NWLR (Pt. 80) 25.

It is Counsel’s submission that having not been a party to the contract of employment and his role having been of no legal significance to the Claimants, the Senator is not a necessary party to this Suit, within the definition proffered by the Supreme Court in Green V. Green (1987) 3 NWLR (Pt. 61) 480. Accordingly, that the submission on his non-joinder to this suit, contained in issue 1 of Defence Counsel’s Address, is misconceived.

He contended that if the Defendant felt misled by the Senator and wanted an indemnity for damages which his act may cause, Defendant’s remedy is to apply to join him in 3 party proceedings. And that the position canvassed by Defence Counsel on the effect of his alleged ‘non-joinder is dead law. BELLO v. INEC (2010) 8 NWLR (Pt. 1196) 342.

On the 26^th February 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgment.

Court’s Decision

I have carefully summarized the evidence of both sides, the arguments of opposing Counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimants have established an entitlement to the reliefs sought:

The Supreme Court in the case of LONGE Vs. FBN LTS [2010] LPELR 1793 SC held that “….there are three categories of employment

(a) Purely Master and Servant relationship

(b) Servants who hold their office at the pleasure of the employer

Where an officer holds his office “at pleasure,” like was the case in Brown v. Dagenham Urban District Council (1929) 1 K.B. 737 at p.742 he can be dismissed at will in complete disregard of any purported contract whether verbal, or written or even under seal, because such contract will be incompatible with his status and therefore destitute of legal value. Thus Servants of the Crown, civil as well as Military, except in special cases, where it is otherwise provided by law, hold their office only during the pleasure of the Crown and can be dismissed at any time in spite of a contract for a period of Service:- Dunn v. Reginam (1896).B. 116. In fact the employing authority will lack the power, the vires to “enter into a contract” inconsistent with the wording of the Statute which gave it power in the public interest to remove the Servant at its pleasure:- Nicholson v. Whitstable Urban District Council (1925) 89 J. P. Newsp 480 at p.508. An officer holding his office at pleasure has also no right to be heard before he is removed because there need not be anything against him to warrant his removal. If there is nothing against him, no reason need be given for there is nothing to defend since he held his office durante bene placito:-See Reg v. Dartington School Governors (1844) 6 Q.B.682.
In the case of SUIT NO. NICN/LA/605/2015 JOSHUA ABIODUN BABALOLA VS. STATE SECURITY SERVICE delivered on the 10^th July 2017, this court after considering the above authorities in a suit where the employment was also “durante bene placito” asked and answered the following question “With an appointment such as this, does the claimant even have any rights at all? The weight of caselaw authorities suggest that he does not”.

What all that means is that when an employment is at the pleasureof particular person the employee can be terminated whenever the person on whose pleasure they were employed deems fit . They have no rights or entitlements. Especailly as succintly put in NICHOLSON V. WHITSTABLE URBAN DISTRICT COUNCIL (SUPRA) ‘the employing authority will lack the power, the vires to “enter into a contract” any term of conditions inconsistent with the wording of the Statute which gave it power in the public interest to remove the Servant at its pleasure’ which means that a contract at the pleasure cannot be subject to any condition of term. in the instant case the National Assembly has no power to make an appointment at another person’s pleasure with any terms or conditions, hence all the claimants counsels reference and arguments as to termination procedure and notice I find are of no consequence and irreconcilable in a contract at pleasure.

The consequence of this finding is that the Claimant is employed at the behest of Senator Bode and holds that office at his pleasure, the conceivable only basis under which the Claimant could maintain an action in this suit is where the National Assembly had terminated their employment against the wishes or at the displeasure of Senator Bode. In the circumstances the defendants have clearly shown that they acted on the instruction of the Senator See Exhibits D2 and the Claimant had not refuted the Defendants proof in any way.

The Claimant had posed the question whether the non-joinder of the Senator would vitiate their claims. In law the lack of joinder or misjoinder does not truncate or vitiate a claim, and in the instant case the presence of the Senator would not change the position of the law it would however given the Claimant the opportunity to confront the Senator as to his directive the Claimant have satisfied the court o their entitlement o the reliefs sought.

The Claimant made copious references to the Labour Act but failed to realize that this is not applicable to him as a Political Adviser See Section 91 of the Labour Act which defines a worker to exclude persons exercising administrative, executive, technical or professional functions. As a Political Adviser to a Political Office Holder I find that the Claimants appointment falls under “administrative and Professional, furthermore, I find that the Claimant cannot be described as a worker so as to come within the ambit of the Labour Act LFN 2004.

In the instant case the Claimant is seeking the following

(e) The sum of N500,000.00 (Five Hundred naira) as General Damages for breach of contract.

(f) 10% interest per month, on the outstanding salaries, allowances, emoluments/severance benefits and other entitlements accruing to the Claimant’s office, from January 2007 till date of judgment.

(g) 12% interest per month, on the judgment sum from the date of judgment till same is wholly defrayed.

With regard to Relief (a), considering this court’s finding that the employing authority is not empowered to contract terms and conditions outside the “appointment being at Senator Bode Olowoporoku pleasure and in that regard Relief (a) cannot be granted.

Reliefs (b), (c) and (d) all relate to a claim for salary after the termination, which i have found the Claimant is not entitled to under a contract at pleasure. These reliefs all fail.

Reliefs (e), (f) and (g) are for damages and interest these are contingent on the other reliefs that failed and as such they too cannot be granted, further with regard to relief (f)) this Court does not grant pre-judgment interest. See MR. KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED [2012] 27 NLLR (PT. 78) 374 NIC