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National Industrial Court

Dr. Esbra F.T. Blakes -VS- Niger Delta University

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

 

IN THE YENAGOA JUDICIAL DIVISION

 

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

 

DATE:  WEDNESDAY 5TH FEBRUARY, 2020       

Suit No: NICN/YEN/38/2018

 

BETWEEN:

 

  1. ESBRA F.T.BLAKES                      ………………..              CLAIMANT

 

AND

 

NIGER DELTA UNIVERSITY                          ……………….                            DEFENDANT

 

 

REPRESENTATION

 

Mr. P.J. Fawei Esq with P.E. Ushie Esq and Moses Omondiagbe Esq for the Claimant.

 

Mr. O.G. Akpagra Esq for the Defendant.

 

JUDGEMENT

INTRODUCTION AND CLAIMS

 

The matter culminating into this judgment was commenced on the 31st of October, 2018 by way of a Writ of Complaint, which was taken out by P. J. Fawei Esq, of Counsel on behalf of the Claimant, accompanying the complaint were Motion Exparte, Motion on Notice, An Affidavit of urgency, Witness Statement on Oath, praying this Court for the following reliefs:

 

  1. A DECLARATION that by the virtue of Niger Delta University resolution of 10th December, 2015 as regards retirement age, the claimant being a deputy librarian [Academics] is entitled to statutorily retire at seventy years of age.

 

  1. A DECLARATION that the demotion of the Claimant from the position of university librarian to a deputy librarian by the defendant is in violation of the terms of employment and therefore illegal, null and void;

 

  1. AN ORDER of this Honourable Court reinstating the Claimant to the service of the defendant as the university Librarian with salaries, emoluments, and all other entitlements accruable to that office;

 

  1. AN ORDER of this Honourable Court directing the Defendant to pay to the claimant his salaries, emoluments that have accrued from the month of June 2018 till judgement is delivered in this suit;

 

  1. AN ORDER of this Honourable Court directing the Defendant to pay to the claimant the sum of Fifty Million Naira [N50, 000, 000] only as general and exemplary damages for the Psychological trauma the claimant and his family has been subjected to.

 

  1. AN ORDER of this Honourable Court directing the Defendant to pay to the claimant the sum One Million Five Hundred Thousand Naira [N1, 500, 000. 00] Only as cost of litigation of this Suit.

 

 

  1. AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant ten percent [10%] Monthly post judgement interest from when judgement is delivered until when same is fully complied with.

 

The Defendant, in response, and through their Counsel Mr. O.G. Akpagra, filed Memorandum of Appearance and filed a Statement of Defence, The Claimant further filed a Reply to the Defendants’ Statement of Defence. The defendant filed additional witness statement on oath. Trial commenced on the 5thof March, 2019, wherein the Claimant was sworn in as CW1and he tendered 17 EXHIBITS, which were marked as EXHIBITS CW FT 001 – CW FT 017. He was cross-examined on his evidence by Counsel for the Defendant.

 

The Defendant opened her case on 25th of June, 2019 and subsequently called one (1) witness – Benjamin Joffa of whom testified as DW1. The Witness adopted his Witness Statements on Oath and further deposition on oaths and a total of 14 EXHIBITS were tendered through the Witness, marked as EXHIBITS NDU 001 – NDU 014.The Witness was cross-examined by Counsel for the Claimant after which the Defendant closed their case. Consequently, Parties were ordered to file and serve on themselves their respective Final Written Addresses.

 

 

 

CLAIMANT’S CASE IN BRIEF

 

The Claimants’ case is that the defendant an educational institution sometimes on or about 6th of November, 2009 through the then Registrar of the institution [Niger Delta University] advertised vacancies and invited for suitably qualified candidates to apply for amongst which is the position of the University Librarian in Vanguard Newspaper of 6th November, 2009. The claimant following this advert, applied for the position of the University Librarian and was shortlisted and invited for interview amongst other applicants of which he successfully emerged and was employed as the Defendant’s Librarian in the Academic Department of the University with the conditions of service and salary expressly specified in the offer of Appointment letter dated February 5, 2016.  He further avers that his employment as the university librarian is governed by the condition of service [Niger Delta University Law, 2000] as contained in the letter of appointment duly issued to him by the Defendant. The Claimant also contended that the letter of appointment issued to him also expressly stated that he is to retire at the age of 65 years, he further averred that neither the letter of appointment issued to him nor the enabling statute establishing the university [Niger Delta University Law, 2000] provided for tenure of office for the post of the university librarian which he was employed to occupy. The claimant also stated that by the enabling law of the defendant [Niger Delta University Law, 2000] that the Governing Council of which the claimant is entitled to be in-attendance by the virtue of his office as the university Librarian is empowered to make rules and regulations for the university and that such rules shall be referred to as the university statute. He further averred that he was in attendance in one of the Governing Council Meeting held on the 10th December, 2015 at the Vice Chancellor’s conference room wherein it was resolved and handed down a university statute to codify the statutory requirement age of sixty-five [65] years of age for academic/Non-teaching staff and seventy years of age for professional cadre respectively. And stated further at paragraph Vii and Viii of page 32 of the said minute that it was also passed and agreed that University Librarian and Deputy Librarian shall be treated as staffs of professional cadre in terms of retirement age, and that the said resolution is contained in the minutes of meeting now in the University Council Records GC/15-16/00132 of December 10, 2015.

 

The claimant also contended that sometimes in February, 2016 the defendant caused to serve on him [as the University Librarian] an internal memorandum dated the 19th February, 2016 and entitled the ‘council decision; asking him to proceed on “sabbatical leave” and also conveyed the council decision at 80th meeting held on 11th February, 2016 that all principal officers of the university shall serve based on tenure. It is also the averment of the claimant that the Defendant through its then Vice Chancellor [Prof Humphrey A.O. Ogoni] wrote a second letter addressed to the claimant as the University Librarian appreciating him for his services and also conveying the council decisions to the effect that his tenure as the university librarian has elapsed and that he should hand over to one Dr. Mrs. Joyce Chinyere Oyedonagha with effect from the 26th February, 2016. Another letter was caused to be served on the claimant demoting him from the position of the University Librarian to Deputy Librarian and also positing him out to the external service department of the university.

 

The Claimant was served with another letter of retirement on the ground of attainment of 65 years of age of which he responded through two separate letters and pointed to the defendant of its governing council enacted university statute contained in the university records GC/15-16/00132 of December 10, 2015 declaring the university librarian and deputy librarian to be treated as staff of professional cadre in terms of retirement age, which shall be seventy [70] years of age. It’s the contention of the claimant that having been employed as university librarian without a specific tenure being provided for in the Niger Delta University Law or Conditions of Service of the University as specified in offer of appointment letter issued to the claimant, the issue of specific tenure can only take effect from the date same was made, and that it was also wrong of the defendant to demote him from the position of Librarian to Deputy Librarian. The claimant also contended that the defendant pursuant to the letter of retirement has stopped the payment of his salaries and other emoluments and are making moves to eject him from his current place of residence as the service quarters provided for him and his family by the defendant of which the defendant has concluded plan to eject him from the apartment even when the validity of his retirement is been questioned.

 

Upon cross examination by the Defendant’s Counsel, the Claimant confirmed that by the provision of the university miscellaneous  provisions Act of 2012 that the retirement age of an academic staff of professional cadre in the university is 70 years while the non-academic is 65 of age. He further pointed out that the governing council took decision on retirement age, he also admitted that positing and promotion of staffs are two different things, and that promotion of staff is by external assessment and publications and that he was accessed externally. That he submitted his publication in the process of his appointment as the University Librarian and that he has enjoyed the perquisites of a Principal Officer which is the one year sabbatical with full salary payment and two cars attached to his office. He also stated that he made request to be paid all his deferred annual leave bonus when he was the University Librarian and that he was entitled to retire at the age of seventy years old. And that he is asking the court to reinstate him back as the University Librarian, that the position of Deputy Librarian is equivalent to that of an Associate Professor or a Reader and that the issue of tenure of principal officers is five years in other university and not applicable in the defendant university as at the time he was employed.

 

 

THE CASE OF THE DEFENDANTS

 

The Defendant, in their written testimony averred that before the Claimant was appointed a University Librarian, he was already a staff of the defendant university and further contended that the Claimant was a staff of then Rivers State University of Science and Technology [RSUST] and came to the Defendant’s University by virtue of transfer of service effective from 1st December, 2006 and the Claimant resumed work at the University as a Senior Librarian on the same date. The Claimant was subsequently promoted from Senior Librarian to the rank of Principal Librarian on a salary level CONUASS 5/5 With effect from October, 1st 2008, in line with terms of service, it was also the contention of the defendant that following the advert for the position of a university librarian and subsequent application of the claimant for the position, the claimant was appointed university librarian with effect from November, 4th 2010. And by virtue of the claimant Nomenclature he is a member of Academic Staff Union of Universities[ASUU] of which the federal and all the unions in Nigerian Universities  including [ASUU] entered into an agreement in 2009 wherein the issue of salary and tenure of principal officers were reached and implemented, placing their salaries on a special consolidation structure and the issue of tenure of principal officers could not be implemented immediately, because it requires amendment of relevant laws to give it effect. Hence the said agreement was forwarded to the National Assembly leading to the amendment of university [miscellaneous provision Amendment] Act in 2012 wherein the tenure of the principal officers was pegged at 5 [five years] single tenure, meaning the appointment of the claimant predate the FGN/University Unions’ 2009 Agreement which came into effect in 2012.  They averred that following this law that all university was directed by the National University Commission to implement the law and consequently the defendant in line with the law, made its principal Officers who were holding offices before the amendment without tenure to be tenured and in the spirit of the law they were assigned to other duties in the university after they served out their tenures. It is the further contention of the defendant that with the dictates of the universities [miscellaneous Provision] [Amendment] Act, 2012, the claimant having served his five years tenure as the University Librarian, was merely posted to the external service unit, library Development [Special Unit] and was assigned to perform the duties of Deputy Librarian albeit without official promotion from his career position being the position of a Principal Librarian having served out his tenure. The Defendant also stated that by the minutes of the meeting that positions of deputy librarians and that of university librarian were made equivalent to a professor/reader, hence they must go through some process of assessment to be entitled to retire at 70 years of which the claimant during his tenure never attended any promotion interview for promotion nor present his publication for assessment in line with the condition of service of the defendant for promotion to the library academic cadre and the defendant further alludes to the fact they did not in any way stop the claimant salaries but that the claimant automatically become a pensioner and as such need to do the needful by following the due process of getting his pension and as soon he does the needful his pension, salary and gratuity will be paid to him without issues. The defendant further contends that they received other correspondence from the university commission and national salaries commission under the presidency Abuja on the positions of principal officers who had served out their tenure and still have service years to revert back to the positions they were before they were appointed  as principal officers, and they also admits to the fact that the governing council of the university made resolutions to the effect that the University Librarian and Deputy Librarian were made equivalent to that of a Professor/Reader, hence they must go through same process of assessment to be entitled to retire at 70 years of age. And that between the period of November, 4th 2010 when the defendant was made university librarian and February, 26th 2016 when his tenure elapsed, he did not attend any promotion interview to the rank of Deputy Librarian, or present his publication for assessment in line with the defendant’s condition of service, the extent practice within the defendant’s institution. And as such for a person to be qualified for the rank of a deputy librarian, such a person must possess a professorial degree plus Ph.D. in the relevant area; fifteen [15] publications, twelve [12] in print, three of which may be referred proceedings and three [3[of which should be in different foreign journals. And it is only when this is fulfilled that the person can be accessed by his department and the report from the department is sent to the [A & PC] Appointment and Promotion Committee [Academics] and there after the person’s papers will be sent to 3 external professors in relevant field for assessment, and if two of the professors gives a pass mark then the result will be sent to the Governing Council for approval. And the applicant/staff is thereafter promoted to the rank of a professor/Reader of which the defendant avers that the claimant was at no time in compliance with these processes and as such was never considered for promotion to the rank of deputy librarian. It is the further contention of the defendant that the claimant was employed as a Senior Librarian vides a letter of transfer of service from the then Rivers State University of Science and Technology [RSUST] and was promoted to Principal Librarian by the defendant and the claimant was not at any time demoted from the position of University Librarian but rather was rightly assigned to a special unit of the University and the Internal Memo entitled positing dated May 3rd, 2016 was not a letter of promotion nor letter of appointment from principal librarian to the deputy librarian and that it was just an internal memo of communication within the administrative structure of the defendant institution of which in compliance to the said letter has enjoyed all the benefits of an outgoing  principal officer, such as two Toyota car that was assigned to him, official service apartment, payment of full salaries as a principal librarian for one year commencing from March, 2016 – February, 2017 during his sabbatical leave And that his right to the used of the above official quarter abated upon the expiration of his tenure as University Librarian on February, 2016 and since that date a new Librarian has been appointed and in consequence both the official and the residential apartment ought to be occupied by the successor. The defendant also contended that for all intent, purposes and time, the claimant was and remained a principal librarian until the date of his notification of his statutory obligation to proceed on retirement having attained the statutory age of 65 years. The Defendant concludes by stating that the Claimant is not the only principal officer who held that office like him that was affected by the new law of whom all reverted back to the position they were before the appointment before been appointed as principal officers, and that the said law was applicable to all government universities in Nigeria.

 

DW1 testified under cross-examination and state that the claimant was appointed as a university librarian in 2010 and not employed as university librarian as postulated by the claimant and that by EXH.CW FT003 that his appointment is still subsisting until he retires. But that the 2009 agreement which came into effect in 2012 it creates a term or tenure system of 5 years as a University Librarian. He further testifies that the university governing council can change the condition of appointment of the claimant. And also admitted that he was aware that by the resolution dated 10th December, 2015 that there was a change of retirement age on those on professorial cadre from 65 years to 70 years of age and also on the same resolution it state that the rank of the librarian and that of the deputy librarian are to be considered as same with the rank of the professor and their retirement age shall be changed from 65 years to 70 years of age and that the defendant was still the university librarian in 2015 when the said resolution was passed, and he further draw a distinction as to occupying an office as the University Librarian but at another rank. And that the defendant has the powers to promote and demote its staffs when necessary.

 

On the final analysis, DW1 admitted that before the claimant was appointed that as the University Librarian he applied and was interviewed by a panel constituted by the University and that it was upon that he was found to be qualified and was appointed as the University Librarian. These were substantially similar testimony adduced by the DW2.

 

THE SUBMISSIONS OF THE DEFENDANT

Learned Counsel for the Defendant in his Final Written Address raised three (3) issues for determination to wit:

 

  1. Whether the Claimant has proved his case as required by the law to be entitled to the relief or claims sought.

 

  1. Whether the Claimant was a deputy librarian as at the time notice of retirement was served on him.

 

iii.                 Whether the act of the Claimant was lawful

 

Learned Counsel started by arguing issue one and two together in his argument by submitting that he who assert must prove and that the burden does not shift. He relied on the cases of Orji v. Dorji Texmill Nig. Ltd and Ors. [2010] 182 LRCN pg. 129 Ratios 2 and 13 at page 133 and 137. Counsel argued that the Claimant’s case as made out in the pleading is simply that he was unlawfully retired because as at the time he was served with the notice of retirement he was a deputy librarian and therefore entitled to be retired at the age 70. The learned counsel went further to state that the case in issue is beyond what the claimant states in his pleadings, it requires him to lead credible evidence in prove of his case. But instead the claimant succeeded in show of sentiment which does not have a place in our judicial adjudication, he further argued that sentiment no matter how eloquently presented command no place in our judicial system and that a competent court of justice has no place for sentiment when determining the justice of a suit between parties. And that the court can only rely on solid established evidence. He referred to Anike v SPDCN LTD [2010] 7 NWLR pt. 1246 at 227 Ratio 12 at pg. 234 paras H and E.

 

According to the Learned Counsel in his submission on issue one and two above, he states that the Claimant in proof of his case testified for himself, claiming basically that, he was appointed as a University Librarian via a letter dated the 5th day of February, 2010, which is to run till he attains the age of 65. However since the Governing Council of the defendant’s institution is empowered by the statute to make rules and regulations for the University, it indeed made such rule which was subsequently codified in the condition of service to effect that, both teaching/non-teaching staff should retire at 65 while staff of professorial cadre should retire at 70 years and that the University Librarian and the Deputy Librarian be regarded as Professor and Reader in terms of retirement hence should retire at 70 years of age, and being a Deputy Librarian the equivalent of Associate Professor as at the time he was served with the notice of retirement to retire at 65 years was wrong, but that he can only retire at 70 years of age. The defendant in defence and proof of the case filed a defence contending that, the claimant was not a deputy librarian being equivalent of a reader/associate professor to be entitled for retirement at 70 years. That he was a principal librarian, the position he reverted back to when he served out his five years as university librarian in accordance with the law. The claimant thereafter filed a reply to the defendant’s statement of defence by contending inter alia that the university [miscellaneous provisions] [Amendment] Act 2012 does not affect the claimant being a National Law. The claimant also admitted during cross examination that the governing council resolution of December, 10th 2015 on retirement age is in line with the university [miscellaneous provisions] [Amendment] Act 2012. The defendant further alluded that the claimant was asked during cross examination if he was promoted to the position of a deputy librarian and his answer was no. The claimant further stated under cross examination that staff of professional cadre go through external assessment and that their  publication are also access externally before being appointed as Deputy Librarian and that he was never assessed. It is the submission of the defendant counsel that the claimant during cross examination stated that promotion and posting means two different things and that he had received all the benefits of an outgoing librarian, the defendant counsel in summary under his written address touch on the prayers of the claimant as contained in the writ of summon and urged the court to discontinuance the claims of the claimant as it did not meet the requirement of justice and that claimant case is contradictory in nature as the claimant has not been able to prove to the court if he is a university librarian or a deputy librarian a question this court cannot provide an answer and it is only the claimant that provide such answer by a way of proof and have failed to prove that the claims must as a matter of law fail.

 

On issue three, Learned Counsel to the defendant further readopts and re-emphasize some of  his earlier positions in issue one and  two and maintained further that the act of the defendant was lawful and within the ambits of the law having clearly shown on record that the claimant was born on May 17th,  1953 and that been the case and in line with the condition of service the claimant was expected to retire on 17th May 2018 on ground of age more so that there is no contrary evidence to the said position other than that the defendant’s contention was that though he agree that he was actually 65 years and that he has attain the age of retirement but that he can only retire at the age of 70 years because he was a deputy librarian which is an equivalent to a reader/professor and been within a professional cadre he should be given that chance to enjoy his full 70 years of age while in service of the defendant, having admitted on cross examination that the said position of associate professor or its equivalent requires an external assessment to get that level and that it is on record that the claimant never went for any external assessment. It is their further contention that the issue of education is within the concurrent list of the Constitution which clearly provided that it is only the National Assembly that has power to make law for the Federation or any part thereof as it regards University education, Technology education and other Professional education as may from time to time be designated by the National Assembly. Learned counsel therefore urged this court to dismiss the case of the claimant.

 

 

SUBMISSION OF THE CLAIMANT

 

The Claimants’ Counsel, on his part, raised two issues for this Court to determine. They are:

 

  1. Whether the claimant’s demotion to deputy university librarian and subsequent retirement at 65 years of age was in breach of the terms of employment of the claimant by the defendant and therefore illegal and ought to be set aside.

 

  1. Whether the claimant has proven his case against the defendant and is therefore entitled to all the relief sought as per his complaint.

 

Learned Counsel answered the question in his issue one in the affirmative and argued that the Defendant was wrong and in grave error when it impliedly demoted the claimant from the rank of University Librarian to Deputy Librarian and subsequently compulsory retire him at unripe age of 65 years as against the statutory approved age of 70 years for some one of his cadre. It is their further submission that for proper appreciation of their position in this matter that it will be necessary to first understand the nature and class of employment relationship between the claimant and the defendant. It is their submission that the claimant is a public servant being employed by the Niger Delta university [NDU] established, owned, and fully founded by the government of Bayelsa state, hence his employment is one protected by statute. They supported their argument with the provision of Section 318[1] of the constitution of the federal Republic of Nigeria 1999[as amended] and also cited the cases of Egesi v Semb & Ors [2014] LPELR-241O1[CA]and Nnadi v. National Ear Care Centre & Anor (citation provided); amongst others. He contends that the Defendants ought to have acted in good faith and fairly listened to the Claimant before taking the decision of demoting and forcefully retiring the claimant at a very unripe age. That the claimant being a public servant who is protected by public service rules that the relationship between them is one with statutory flavour, it is also the contention of the claimant that all the document tendered by them especially Exhibits CWFT003 and CWFT008 are unchallenged and therefore need no further proof. Cited Emeka v. State (citation provided); amongst others. It is the further contention of the claimant’s counsel that the claimant was obviously demoted by implication from the position of University Librarian to Deputy Librarian in the guise of positing and with particular regard to the position and designation with which the claimant was employed, it is not in contention that the claimant was employed by the defendant as ‘University Librarian’ and not any other position and such his employment subsist until retirement age. And that the demotion or re-designation of the employment of the claimant is not contemplated in by the terms and condition of employment and the Niger Delta University Law 2000 or the university statute made pursuant to it, particularly that made in 2015. The law is well settled that any action to be taken on employment with statutory flavour must be within the contemplation of terms and condition of employment or comply strictly with the provisions of the relevant and applicable statutes establishing that employment. This is the view of Court of Appeal in the case of Kwara State Polytechnic, Ilorin & Anor vs. Shittu, He said its therefore goes to say that in the absence of any terms or condition of contract of employment as contained in the employment letter of the claimant or a provision in any of the relevant and applicable statutes envisaging demotion as at the time the claimant was so re-designated and posted, the act of defendant should be viewed as being in breach of the relevant statutes. It is also the contention of the claimant that governing council resolution of the defendant made on the 10th December, 2015 cannot have a retrospective effect, therefore, the five years’ tenure of the claimant can only be counted from December, 2015 when the governing council resolution came into effect and not from when he was employed in 2010 when there was no such law. And on the argument as canvassed by the defendant that the issue of claimant’s claim being caught up by limitation statutes is of no moment. Reason been that the public officers protection act is a federal legislation and does not apply to this case as the parties and transaction arose from Bayelsa State and its institution. It is their further submission that for the defendant failing to comply with the express and implied provisions of the law as to when to give effect to the governing councils resolution of 10th December 2015 by demoting the claimant in disregard of when it is to take effect, it cannot benefit from the Public Officers Protection Act. Referred to the case of Federal Airport Authority of Nigeria v. Sylvester G. Nwoye (citation provided); amongst others as applying mutatis mutandis to this case. On the other hand they submitted that there is nothing like the Public Officers Protection Law of Bayelsa State by the virtue of The Limitation Law of Bayelsa State, it is also the submission of the claimant that having received all the benefits of an out-gone University Librarian will not constitute a waiver or a clog in the process of enforcing the strict compliance of such statute, refers to Federal Airport Authority of Nigeria v. Sylvester G.  Nwoye (supra).

 

The claimant counsel further argued that the defendant having presented, related and treated the claimant as University Librarian [see Exh CWFT003] who by virtue of his position, is an academic staff of the university of professorial cadre [see Exh. CWFT004] is therefore estopped from denying him his entitlement of retiring at the age of 70 years of age. Refers to Section 169 of Evidence Act and also cited the Apex Court case of Okonkwo & Ors. v. Kpajie & Ors.

 

The claimant in conclusion on issue one above concluded by urging the court to uphold as follows; [1] that the claimant was illegally or wrongly demoted from the rank of university  librarian to deputy librarian at the time the defendant did; [2] that whichever position this court adjudges as that which the claimant was at the time of compulsory retirement –university librarian or deputy librarian- he ought to validly or compulsorily retire at 70 years of age in compliance with both the Governing Council resolution of 10 December, 2015 and Rules 160401 and 020810 [iii] of Public Service Rules, 2009.

 

ISSUE TWO

WHETHER THE CLAIMANT HAS PROVED HIS CASE ON THE BALANCE OF PROBABILTIES AND THEREFORE ENTITLED TO ALL THE RELIEFS SOUGHT AS PER HIS COMPLAINT

 

The Claimant on issue two above responded in the affirmative and posited that the claimant has successfully proved the facts alleged as the basis of his claim and in furtherance of this contention stated that the main plank on which the claimant’s case stands is that he was employed by the defendant as university librarian, a position the claimant was to occupy until retirement as shown in Exh CWFT003 tendered by the claimant. He submits that the Defendants in their pleadings admitted some facts pleaded in the statement alleging the existence of a contract for which the Defendant’s sole wittiness also admitted viva voca in court. And having shown that the claimant was validly employed as University Librarian from the available pieces of evidence before the court as well as the fact that the claimant had dutifully carried out his obligation of the contract of employment, Counsel cited several cases to buttress his position. Continuing on his argument, Learned Counsel for the Claimant submits that the law is trite that an assertion of fact not challenge or controverted by the opposing party shall not be deemed admitted, and on the issue of suffering damages or loss as a result of the refusal or non-payment of claimant’s salaries, emoluments, and other allied benefits, the claimant counsel contends that the claimant has suffered several harassments from the defendant more so that the claimant have to engage the services a lawyer to enforce his right when all effort proved abortive and as a result has expended a lots of monies in the pursuit of this suit. The claimant also lead evidence to this fact and also cited authorities in support of the positions. Counsel finally urged this court to grant all their reliefs.

 

COURT’S DECISION

 

Upon careful consideration of the processes filed by Parties and the evidence before this Court, and upon listening to the witnesses who testified on oath, I have chosen to adopt the issues raised by the Parties in their final arguments. Suffice it to say here that issues 1, 2, 3 and 4 raised by the Defendants will be determined together, while the two issues raised by the Claimant will be merged together. Consequently, the issues to be determined are as follows:

 

ISSUES RAISED BY THE DEFENDANT

 

  1. Whether the Claimant has proved his case as required by the law to be entitled to the relief or claims sought.

 

  1. Whether the Claimant was a deputy librarian as at the time notice of retirement was served on him.

 

iii.                 Whether the act of the Claimant was lawful.

 

 

ISSUES RAISED BY THE CLAIMANT

 

  1. Whether the claimant’s demotion to deputy university librarian and subsequent retirement at 65 years of age was in breach of the terms of employment of the claimant by the defendant and therefore illegal and ought to be set aside.

 

  1.  Whether the claimant has proven his case against the defendant and is therefore entitled to all the relief sought as per his complaint.

 

These issues will be determined jointly.

 

Some of the issues raised by the defendant which parties had joined issues and which touches on the jurisdiction of this court is the Public Officers Protection Law. And the law is settled on the relevance of jurisdiction and the need to ascertain the presence or absence of it when challenged, before delving into the substance of the suit. In other words the court is called upon to drop its armour, retreat and satisfy itself that it is sufficiently clothed with the powers to determine the suit. This court is truly not an errand-knight looking for jurisdiction where no one has activated it.

 

On the issue of whether the Claimant’s action is statute barred thereby robbed this court of the requisite jurisdiction to entertain same, for the avoidance of doubt and for the sake of clarity, Section2 (a) of the Public Officers Protection Act Cap P41 Laws of the Federation, 2004 which is in pari materia with section 1 (a) of the Bayelsa State Public Officers Protection Law, 2006 provides as follows:

 

Section 2:

 

“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provision shall have effect –

 

(a)  The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof…”

From the wordings of this Act any action sought to be commenced against a public officer, same must be brought within three (3) months next after the accrual of the cause of action. And in other to ascertain when a cause of action arose, the Court should look in to the Statement of Claim or the Complaint as the case may be, for the date when the cause of action arose and the date when the action was filed. That is to say time begins to run for the purpose of Limitation Law from the date the cause of action accrues. See British Airways Plc vs. Akinyosoye (1995) 1 NWLR (PT. 374) 722 at 724; Shell Pet. Dev. Co. (Nig) Ltd vs. Farah (1995) 3 NWLR (Pt. 382) 148 at 156; Agi vs. Eno (2010) 5 NWLR (Pt. 1188) pg 626 at pg 641 paras B-C.

It is of legal importance to note that a legal right to enforce an action is not perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law or Act had elapsed, see Adeosun vs. Jibesin (2004) 14 WRN 106. And where a statute of limitation prescribes a period within which an action should be brought; legal proceedings cannot be validly or properly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute barred. See Osun State Government vs. Danlami Nig. Ltd (2007) ALL FWLR (Pt. 365) 438 S.C.

Note that the rationale behind the Limitation Law, limitation of action is the principle of law requiring the plaintiff (claimant) as a matter of obligation to seek prompt remedy for the breach of his right in a court of law within the time limited by the law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. So where the law provides for the bringing of an action within a prescribed period (like the Public Officers Protection Act) in respect of a cause of action, accruing to the Plaintiff (Claimant), proceedings shall not be brought after the period prescribed by law; except the Claimant can show that the case comes within any of the laid down exceptions. See Dr. Charles Oladeinde Williams vs. Madam Olaitan Williams (2008) 4 – 5 SC (Pt. II) 253. Public Officers are not immune from suit under the Public Officers Protection Act. However, the law is that such a suit against a public officer must be instituted within a stipulated time or period provided by the statute, otherwise it becomes stale or statute-barred. See The Minister Of Petroleum & Mineral Resources & Anor Vs. Expo-Shipping Line (Nig) Ltd (2010) 12 NWLR (Pt. 1208) 26 SC.

The general purpose of Section 2 (a) of the Public Officers Protection Act as stated by the Supreme Court in the case of Ibrahim vs. Judicial Service Commission (1999) 14 NWLR (Pt. 584) is that for any section to avail any public officer protection then the following conditions must be fulfilled:

(a)  It must be established that the person whom the action is commenced      against is a  public officer or a person acting in execution of a public duties within the definition of the Act; and

 

(b)  The act done by the person in respect of which the action is commenced must be an act done in pursuance of 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.

Furthermore, the law is settled that a cause of action arises on the date the breach of duty occurs or when all the facts which are material to the success of the claim have occurred. And an action is commenced on the date the application for the issuance of the writ or other originating process is made and the necessary fees paid. See WOHEREM VS EMERUWA (2004) 6 – 7 SC 161 at 168 PARA 40. And the yardstick for determining whether an action is statute barred include the following:

(a)              The date when the cause of action accrued.

 

(b)              The date of commencement of the suit as indicated on the Writ of Summons or other Originating Process.

 

(c)               The period of time prescribed for bringing the action to be ascertained from the statute in question.

 

See Ajayi vs Adebiyi (2012) 5 SCNJ 458 at 481.

 

Having said all these by the provisions of Section 2 (a) of the Public Officers Protection Act Cap P41, Laws of the Federation, 2004 an action against any public officer (like the Defendant) cannot be maintained three months after the accrual of the cause of action. From the pleadings filed by the Claimant the action was commenced more than three months after the accrual of the cause of action.

 

While I am in alliance with the submissions made by the Learned counsel to the Defendant/Applicant that the cause of action aroused more than the period allowed by the Limitation Act to institute an action against a public officer, But by looking at the provisions of Section 2 (a) of the said Limitation Act an aggrieved party like the Claimant can bring an action against a public officer in case of a continuance of damage or injury within three months next after the ceasing thereof. In other words, if the damage or injury is in continuance, then a Claimant can institute an action outside the three months period provided by the statute.

Note that, despite these also, the law recognized some very exceptions to this general rule. In other words, Limitation Law is not applicable under certain exceptions. In A.G Rivers State vrs A.G Bayelsa State & Anor (2013) 3 NWLR (pt. 1340) at pg 148 – 150 para F – A; where the Supreme Court outlined or recognizes some very important exceptions as follows:

 

  1. In case of continuance of damage or injury, an action can be brought outside the statutory limitation period.

 

  1. Where the person relying on the Limitation Law acted outside the colours of his office or outside his statutory constitutional duty.

 

See also the decision of the Supreme Court in the cases of INEC vrs Ogbadibo Local Government (2016) 3 NWLR (PT. 1488) pg 205; Dr Charles Oladeinde Williams vrs Madam Olaitan Williams (2008) 4 – 5 SC (pt. 11) 253.

 

Furthermore, more recently the Supreme Court decision on section 2 of the Public Officers Protection Act Per ARIWOOLA JSC held that the Act does not apply to contracts of service. In National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors vrs Ajibola Johnson & 10 Ors (2019) 2 NWLR (pt. 1656) 247 at 270 – 271, His Lordship at page 271 said:

 

“I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondent’s action statute barred. In sum, I hold that the Learned Justices of the court below are right in holding that the appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the respondents…”

In view of the foregoing facts as enumerated above, it’s my ardent belief that the action of the Claimant is not statute barred as such this court has the requisite jurisdiction or jurisdictional competence to preside over this matter. I resolved this issue in favour of the Claimant.

 

Now coming back to the substantive matter, the law is settled already that the burden of proving wrongful termination or dismissal of a contract of employment rests on the shoulders of the employee who claims such wrongful action of the employer. Failure on the part of the employee to plead and prove the contract of employment is indeed fatal to his case. See the cases of Suleiman v Civil Service Commission of Ondo State & Ors (2015) LPELR-41796 (CA); Nepa v Aderemi (2006) LPELR-5932 (CA).

 

In Morohunfola v Kwara State College of Technology (1990) 4 NWLR (pt.145) pg. 506; the Court made it clear on how such facts can be pleaded. It is essential that the Claimant pleads in his statement of claim the fact that there was a contract of employment between him and the Defendant. He is to spell out in the statement of claim what the terms of the contract were or the aspect which has been breached. To my humble mind, it is sufficient enough if the Claimant is able to spell out the facts in a manner that a reasonable man is able to comprehend and appreciate, without any equivocation that there exists an employment relation between the parties. A cursory look at the particulars of the Claimant’s claim, particularly paragraphs 2, 3, 4, 5, 6, and 7, shows that the Claimant indeed pleaded some terms of his contract of employment between him and the defendant is one  regulated by the statute, in other words the employment is one clothed with statutory flavour.

 

The position of the law as espoused in MOROHUNFOLA’s case and indeed in the authorities on this head is to prevent the Court from speculating on the existence of a contract of employment and its particulars between the Parties involved.

 

The Claimant also went on to plead the alleged breach of the terms when he stated that he was served with a letter of demotion and a compulsory retirement letter at an un-riped age, The Defendant also joined issues with the Claimant on these fronts, in their Statement of Defence and relied on series of authorities to support their case.

 

From the evidence before this Court, it is not in doubt that the employment relationship between the Parties herein, is one coated with statutory flavour and as such the Claimant holds his employment under the provisions of the Statute establishing and or regulating the Institution he serves. Consequently, any action sought to be taken for or against such employee, the Claimant in this stead, must be in accordance with due process and as prescribed by the said laws governing the employment or any extant law governing such employment. The case of Iderima v Rivers State Civil Service Commission (2005) 16 NWLR (pt. 951), pg 378 is instructive. In effect, strict adherence to the due process and provisions of the laws is ordered. In the instant case, strict adherence to these methods are mandatory therefore a misstep of any of these procedures render the action null and void ab inito. See the cases of Incorporated Trustees of Nigeria Governors Forum & Anor v Riok (Nig.) Ltd & Ors (2018) LPELP-44915 (CA); Yemisi v FIRS (2012) LPELR-7964 (CA); Union Bank of Nig Ltd v Charles Ogboh (1995) 2 NWLR (pt. 380) pg. 647 at 669. Until these known Rule or the extent laws are amended, no other method of regulation or extraneous recommendation should be adopted in the exercise of this power. See Iderima v Rivers State Civil Service Commission (supra).

 

Learned Counsel for the Defendant has argued that the notice of retirement that was served on the Claimant which necessitated this action is illegal on the grounds of age and that the Claimant was never at any time a Deputy Librarian, though he served as University Librarian, of which he became so while being a Principal Librarian and by the extant laws, members who hold such official position are regarded as principal officers such as the Vice Chancellor, the Registrar, the Bursar and the University Librarian all hold such office for a term certain of five years and at the expiration of the five years tenure, such staff still have years of service he/she simply revert back  to his former position i.e. the position he or she was before his appointment and in the case of the claimant having served out his tenure, he reverted back to the former position being Principal Librarian this the Claimant counsel joined issues with the Defendant in serious opposition and relied on many authorities, however from the evidence before this court particularly Exhibits CW FT-001, CW1 FT-002, and CW1-FT 003 it is clear that the Defendant in this matter did advertised for vacancies and invited qualified candidates to apply for certain positions in the institution amongst which is the position of the University Librarian. And the Claimant in this matter did applied for the position of the University Librarian as was duly advertised in the vanguard newspaper of 6th November 2009 and he was shortlisted and invited for interview and was successfully emerged and the defendant employed him as the University Librarian the position he was until this matter. It is settled principle of law that fact speaks for itself, the court in the cause of doing justice is always enjoined to discard titles, heading of a document and look at the import of the document only, it therefore goes to say that to arrived at the just conclusion of this matter and having clearly look at all the document before this court it will be of great important to summarise the following fact as follows:

 

  1. That the claimant was formally with the Rivers state university of science and technology and his service was transferred to the defendant institution on 1st December, 2016.

 

  1. That the Claimant resumed at the defendant institution as a senior librarian the position he was until he applied for the position of the University Librarian.

 

  1. That following these advert by the defendant for the position of the University Librarian the claimant applied and emerged as the University Librarian.

 

  1. That following his emergence he was offered appointment vide an appointment letter as University Librarian.

 

  1. That the claimant was later posted out of his primary engagement and re posted to the defendant external unit.

 

  1. The claimant being dissatisfied contends as follows;

 

  1. That he ought to retire at 70 years of age by the Governing Council rule.
  2. That the University Miscellaneous Act which the defendant relied on to retire himcannot applied on him hence his employment predates the Act.

 

From the foregoing I therefore hold that the claimant was duly employed by the defendant as the university librarian and nothing more. Having said this, it will be of great important to state here that the claimant was employed as the university librarian in 2010 and since then the defendant has since related with him in that capacity, section 169 of Evidence Act is clear on this and it states as follows;

 

‘‘when one person has either by virtue of an existing court judgement, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of the thing’’

 

On the other hand it is my humble opinion that the governing council resolution of December 10, 2015 cannot apply retrospectively this is the domesticated university statute and cannot take effect from 2010 when the claimant was still serving as university librarian without tenure but can only take effect from 10th December, 2015 when same was made this goes to say that this act cannot regulate the employment relation between party, it suffice to also say that the law of retrospectivity can not also allow the Niger Delta University condition of service of February, 2015 to operate here as same was also made at the time when Claimant was in the service of the Defendant, very important is section 2[2] of the interpretation Act and the supreme court decision in the recent case of Professor Jerry Gana v. Democratic Party &Ors [2019]11 NWLR [pt.1684]510 at 533 para F where the Supreme Court gave effect to the provision of section 2[2] of the interpretation when it restated the position of the court on this point thus; ‘‘…..,where no other provision made as to when a particular enactment is to come into force, it shall come into when the Act is passed or on the date when the enactment is made’’, I therefore hold that the five years tenure of the claimant can only be counted from December, 2015 when the governing council resolution came into effect and not from when he was employed in 2010 when there was no such law. It follows therefore that the non-adherence to these procedural steps by the Defendants is a fundamental breach of the provisions of Rules regarding the regulation of the relationship between the claimant and defendant.

 

Consequently, I hold that hence this two laws cannot regulate parties in this transaction that the only law standing that can regulate party in this very contract is the conditions as contained in the offer of appointment dated the 5th day of February, 2010 which states 65 years of age. This goes to say that the claimant who admitted that he was already 65 years is due for retirement and therefore properly retired by the defendant at the time he was asked to retire I so hold. Hence from the evidence of this court it does appear that sit of the university librarian may be available at this point in time.

 

Furthermore, it’s of legal importance to state here that from the exhibits tendered by the defendant (Exhibits NDU 001, 002 and 003) it shows that the claimant transferred his services to the defendant’s institution; and he rose to the rank of a Principal Librarian before his subsequent appointment as the University Librarian. The claimant confirmed under cross examination that he was never promoted to the rank of a Deputy Librarian. He centred his argument as to the retiring age of 70 years to Exhibit CWFT004 which is the 9th meeting of the Governing Council of the defendant where it was stated or re-affirmed that the non academic staff shall retire at 65 years of age while the academic staff including the University Librarian are to retire at the 70 years of age. But such decision was not contained in the Niger Delta University conditions of service 2015. And its trite that unless an agreement is incorporated into condition of service or terms of contract same is not binding. See P.A.N. vrs Oje (1997) 11 NWLR (Pt. 530) 625 C.A; Rector Kwara State Polytechnic Vrs Adefila (2007) 15 NWLR (Pt. 1056) 42. Likewise there is no such provisions in any other law supplied by the claimant.

 

Furthermore, looking at the offer of appointment as librarian (EXT CWFT 003) the document categorically stated that the retiring age is 65 years of age. And in the absence of any enactment contained in the Establishment Act of the defendant, and since, university education falls within the concurrent legislative list as contained in Second Schedule Part II (No. 27) of the 1999 constitution this court can revert to section 6 (4) of the University Miscellaneous Amendment Act 2012 which stated that university librarian shall hold office for a single term of five years beginning from his appointment. And that same can be extended for a further period of one year and then relinquished his post and further assigned to other duty in the university. Therefore, the defendant was right that after five years the claimant was posted to the external affairs unit of the defendant. I so hold.

 

In effect, I hold as follows:

 

  1. That the claimant is duly employed as the University Librarian.

 

  1. That the Governing Council resolution of December 10, 2015 and the Niger Delta University Condition of Service February, 2015 cannot apply retrospectively, therefore cannot take effect from 2010 when the Claimant was the University Librarian, but can only take effect from 10th December, 2015 and February, 2015 respectively when same was made.

 

  1. That the following the condition of service as contained in the appointment letter the retirement of the Claimant from the Defendant’s Institution is proper and in line with the appointment letter.

 

  1. That the Claimant cannot be reinstated to his position as the University Librarian hence he was retired based on the only available condition of service as contained in his letter of appointment.

 

  1. The Defendants, their privies, agent, servants, etc., are hereby ordered to in the interest of justice give the claimant at least three months to enable him get alternative accommodation and move out of the university apartment.

 

All the terms of this judgment are to be complied with by the Parties and their respective Counsel. This is without prejudice to the right of appeal against the judgment by any of the Parties dissatisfied by the judgment.

 

This is my judgment.

 

 

 

 

__________________________________________

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

YENAGOA DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

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