Egiebor Elizabeth Eghosa -VS- Edo State Institute of Technology &

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A. A.ADEWEMIMO

DATED: 13^THDECEMBER, 2018SUIT NO: NICN/AK/10/2016

BETWEEN

EGIEBOR ELIZABETH EGHOSA……………………. CLAIMANT

AND

EDO STATE INSTITUTE OF TECHNOLOGY

AND MANAGEMENT USEN

THE ACTING RECTOR, EDO STATE INSTITUTE

OF TECHNOLOGY AND MANAGEMENT USEN

THE REGISTRAR EDO STATE INSTITUTE OF

TECHNOLOGY AND MANAGEMENT USEN DEFENDANTS

THE HON. COMMISSIONER OF EDUCATION,

MINISTRY OF EDUCATION EDO STATE

THE EXECUTIVE GOVERNOR OF EDO STATE
THE ATTORNEY GENERAL AND COMMISSIONER

FOR JUSTICE, EDO STATE.

REPRESENTATION:-

N. ELUMA FOR THE CLAIMANT.

THERESA EGBE-ABE, ASST. DIRECTOR, EDO (MOJ) FOR THE DEFENDANTS.

JUDGMENT

The Claimant by a Complaint before thisCourt on the 6^thMay, 2016 claims against the Defendants as follow:

(a) A DECLARATION that the Compulsory retirement age of academic staff of the 1^st Defendant like every other polytechnics and colleges of Education in Nigeria is 65 years.

(b) A DECLARATION that the 1^st Defendant’s letter to the Claimant dated 2^nd March, 2016 and 6^th April, 2016 with the intention to terminate the Claimant’s appointment is not only illegal but null and void as the claimant still remains in the employ of the 1^st Defendant till 65 years.

(c) AN ORDER restraining the Defendants and/or any of their officials, agents or privies from taking any step calculated to undermine the Claimant’s position/appointment in the 1^st Defendant or capable of jeopardizing the Claimant’s position or status in the 1^st Defendant.

(d) AN AWARD of the Cost of instituting and prosecuting this action on indemnity basis against the 1^st, 2^nd and 3^rd Defendants jointly and severally.

The Claimant filed along with the Complaint all the accompanying processes, i.e. the statement of facts, deposition on oath of the claimant, list of witnesses and documents to be relied upon.

The Claimant’s case is that she was employed on 17^th December, 2004 as Lecturer III and rose to the rank of Assistant Chief Lecturer on CONPCASS 8 in the Department of Business Administration of the 1^st Defendant.

The Claimant avers thatthe 1^st defendant through the 3^rd Defendant wrote a letter dated 2^nd March, 2016 informing her that she is due for retirement in the employment of the 1^st Defendant by 21^st of June, 2016 when she shall be 60 years of age, contrary to the provisions of Harmonization Act 2012 and the Public Service Rules 2009 which stipulate 65 years as compulsory retirement age of academic staff in tertiary institutions including the staff of the 1^st Defendant.

The Claimant states that sequel to the letter dated 2^nd of March 2016, she approached her solicitor who caused a response to be written to the 1^st defendant through the 3^rd defendant with copies sent to the 2^nd, 3^rd 4^th and 5^th Defendants. This the Defendants failed to respond to till date.

The claimant placed reliance on the Harmonisation Act, the Public Service Rules and the minutes of the Governing council of the 1^st Defendant where the 65 years retirement age of Staff and the Academic Staff Union of Polytechnics, of the 1^st Defendant chapter was approved.

Hence, the claims against the Defendants as aforestated.

The defendants were served with the Claimant’s originating processes in this suit on 6^th June, 2016 and by a motion dated 20^thFebruary, 2017but filed on the 28^th March, 2017 regularized their processes on the 1^st of June 2017. The Defendants’ also filed a motion to amend their Statement of Defence, in the course of trial that was heard and granted by the court on 28^th of January, 2018. The defendants denied each and every allegation of facts contained in the Claimant’s Statement of facts as if same is specifically set out and traversed seriatim.

The Defendants affirmed that the Harmonisation Act approved 65 year retirement age for both academic and non-academic staff of the 1^st Defendant, but averred that this has not been ratified and domesticated into Law by the Edo State House of Assembly, the body charged with making laws for the State. The defendants asserted that the claimant’s appointment with the 1^st Defendant has lapsed by effluxion of time having attained the mandatory retirement age of 60 years at the time she filed this suit.

The Defendant’s relied on the 1^st Defendant’s condition of service of staff i.e Exhibit CR1at Chapter 10, Section 10.1(b), which provides that the compulsory retirement age of any staff of the 1^st defendant shall be 60 years. The defendants also state that it is true that the Federal Government in May 2012 through the National Assembly amended and harmonized the existing law on the retirement age of Polytechnics and College of Education to be 65 years and abrogated 35 years of service. Sequel to this provision, the Governing Council of the respective tertiary institutions were expected to seek approval from the State Government to implement same but since the 1^st Defendant had no Governing Council as at the time, the said issue was presented to the Commissioner for Secondary, Technical and Tertiary Education for approval to implement same, but the request was refused.

The defendants stated that a Governing council was appointed by the State Governor in 2015, for the 1^st Defendant and the said Council approved the Federal Government law of 65 years retirement age for both academic and non-academic staff of the 1^st defendant, hence staff that were 60 years and above but below 65 years were allowed to remain in the 1^st Defendant’s Institute. Subsequently, the 1^st defendant was warned to desist from implementing the 65 years retirement age because the said law has not been ratified and domesticated in Edo State. Consequently, those that have attained the said statutory retirement age were directed to retire and their salaries were then put on hold, and this was what affected the claimant in this case.The defendants therefore asserted that the claimant is not entitled to any of the reliefs sought in her Complaint and Statement of Facts.

Trial commenced in this suit on the 18^thApril,2018 with the claimant testifying for herself by testifying as CW1, she adopted her witness statement on oath and additional statement on oath, CW1alsotendered several exhibits which were admitted and marked Exhibits E1–E9and was cross examined. The Claimant thereafter closed her case. On the 21^stof June,2018 the Defendants opened their defence by calling their sole witness Cyril Simire, 1^st Defendant’s Registrar as DW1, he adopted his witness Statement on oath and tendered several exhibits which were marked as Exhibits CR1 – CR5, DW1 was also duly cross examined. The Defence thereafter closed their case, and the case was adjourned for the adoption of final written addresses.The parties adopted their final written addresses on the 15^th of October, 2018. In their Final written address the Defendants formulated two issues for determination:

(1) Whether the Claimant has successfully proven her case to warrant the grant of her reliefs in this Suit.

(2) Whether the retirement of the Claimant at the age of 60 (sixty) years by the 1^st defendant is just and proper.

On issueone, the Defendants submitted that the Claimant failed to show this Court any statutory provision of Edo State that supports her position of statutory retirement at the age of 65 years. The Defendants stated that neither the domesticated version of the Harmonization Act, 2012 nor anyevidence of a breach of contract on the part of the 1^stDefendant was placed before the court.

The defendants argued that the claimant who all through her career have accepted that her contract of employment was governed by the Edo State Law is now claiming a right under a Federal Government enactment at the twilight of that contract, he citedDENNIS NWOYE OKAFOR vs. ANTHONY IGWITO & 2 OTHERS (1997) 11 NWLR (Part) 527; PALMER NIGERIA LTD vs. FONSECA (1946) 18 NLR 49.

The Defendants submitted that Exhibit CR4 which was tendered through DW1 under cross examinationwas according to DW1, accepted by staff of the 1^st defendant in principle, as same was fraught with errors pending the time all the errors in it will be corrected. The Claimant would however want this court to treat Exhibit CR4 as the extant regulations and prefer same to Exhibit CR1. This, Counsel submitted cannot stand in the face of the evidence of DW1 in relation to Exhibit CR4 that same was full of errors andwas only fit to be deemed as operating pending the arrival of the more corrected version, he therefore urged the court to so hold. The following relevant provision in Exhibit CR4 (although counsel cited Exhibit CS6 in his final written address of which there is no such exhibit, however a detailed study of the argument and exhibits revealed he was referring to Exhibit CR4 which had a replica provision, this is also borne out by the follow up submission in his address) according to counsel reveals that it was only accepted by the staff of the 1^st defendant for a while pending the issuance of Exhibit CR1:

Chapter 10, Section 10.1(b) of Exhibit CR4 provides;

The compulsory age of retirement shall be 60 and the age of retirement is the 30^th September following the date on which a member of staff attains the age of 65.

Counsel to the defendant submitted that a cursory look at this provision shows that there exists two retirement ages in Exhibit CR4: i.e. 60 and 65. The rules in legal drafting assert that the word ‘and’ is a conjunctive word which connotes togetherness. He cited: Associated Artist Ltd vs. Inland Revenue Commissioner (1956) ALL ER 583; J. S. Tarka& Others Vs. D.P.P. (1961) 1 ALL NLR 376. Therefore, he submitted that the first and most important rule in the interpretation of statutes; the Literal Rule; states that words should be accorded their plain meaning especially when used in a clear and unambiguous manner as being employed in the instant provision, so there are two ages of retirement in that Exhibit, the Defendants however posited that there could not have been two retirement ages as a matter of sound principle, citing: Akintola vs. Adegbenro (1963) A.C. 614; Awolowo vs. Shagari&Ors. (1979) 6-95C 31; P.D.P. &Anor vs. INEC (1999) 75c Part 2 AT 30; Okonofua Vincent Omiegbe vs. UwesuUmaru; King vs. Commissioner of Income Tax (1888) 2 Q.B.D 296.

The same provisions in Exhibit CR1 however provides inChapter 10, Section 10.1(b) as follows;

The compulsory age of retirement shall be 60 and the date of retirement is the 30^th September following the date on which a member of staff attains the age.

He therefore urged the court to prefer Exhibit CR1 to CR4, as CR1 contains a workable provision which is not fraught with ambiguity, more over as the claimant has not been able to place before this court any staff that has been made to retire at the age of 65 based on the Harmonization Act, 2012. Eghe- Abe of counsel for the State referred to Exhibits CR2, CR3 and E7 which detailed the efforts of the 1^st defendant to ensure the domestication of the Harmonization Act in the State. The admissibility of Exhibit CR4 was also contended by the Defendants’ counsel, as it was argued that Exhibit CR4 is a photocopy of public document which was not duly certified and of which no foundation was laid, and that same was admitted in contravention of the Evidence Act, 2011, he therefore urged the court to expunge same.

Wherefore counsel submitted that the claims in this action are unproven by the Claimant and her action is also incompetent having failed to comply with the requisite pre action notice under the Law establishing the 1^st Defendant and same deserves to be dismissed.

On issue two, the defendants submitted that the Edo State legislature must domesticate the Law on harmonization of the retirement age of the staff in the 1^st defendant before the retirement age of 65 can be made operational in Edo State,with due regard to theConstitutional considerations which are:

The House of Assembly is Constitutionally saddled with the responsibility of making law for the peace, order and good government of Edo State or any part thereof with respect to the following matters.

(a) Any matter not included in the Exclusive Legislative List, set out in Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999.

(b) Any matter included in the Concurrent Legislative List set out in the first Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the Second Column opposite thereto in the Constitution of the federal Republic of Nigeria, 1999.

(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999.

Counsel citedSection 4(7) of the Constitution of the Federal Republic of Nigeria, 1999; INEC vs. Musa (2003) 3 NWLR (pt. 806) 72; A.G. Abia State vs. A.G. Federation (2002) FWLR (Part. 101) 1419, (2006) ALL FWLR (pt. 338) 604.

With regardsto this case, counsel averred that the CFRN 2^nd Schedule Part II of the concurrent list, items 29 and 30 states thus;

Subject as herein provided, House of Assembly shall have power to make laws for the State with respect to the establishment of an institution for purposes of University, Technological or Professional Education.
Nothing in the forgoing paragraphs of this item shall be construed so as to limit the powers of the House of Assembly to make laws for the State with respect to technical, vocational, post-primary, or other forms of education, including the establishment of institutions for the pursuit of such education.

The defendantsare therefore on a sound legal ground to wait for the Edo State House of Assembly to pass the law on harmonisation before they can implement same, he submitted.

In conclusion, the defendants’ counsel urged the court to find in favour of the Defendants and dismiss the suit in its entirety.

N.Eluma of counsel for the Claimant thereafteradopted his final written address dated 31^stday of July, 2018, whereina lone issue was formulated for determination to wit;

(1) Whether the Claimant has proved her case on the preponderance of evidence to entitle her to her prayers sought.

Counsel submitted that the Claimant has proved her case as required by Law on the preponderance of evidence. He argued that the defendants have not denied the fact that the claimant was a senior lecturer in the employment of the 1^st defendant before her appointment was abruptly terminated, he stated that DW1 also admitted under cross examination that the 1^st defendant’s governing council approved 65 years of age as retirement age for staff of the 1^st defendant.

He referred the courtto Exhibits E5 and E7which were to the effect that the Ministryof Education directed the 1^st defendant to discontinue the implementation of the 65 years retirement age for staff of the 1^st defendant, he argued that the issuance of the letters are not only illegal but null and void to the extent of its inconsistency with the duty of the 1^st defendant’s governing council.

Also, learned counsel argued that section 29(1) of the Edo State Institute of Technology and Management Usen Law 2002 (Exhibit CR5) provides for the power of the Moderator (Governor of Edo State) while Section 41 provides for the power of the Commissioner for Education as it relates to the institution, but no specific documentary evidence was placed before the court by the Defendants that, pursuant to these powers under the law that the Governor or Commissioner issued any directive to the 1^st Defendant on the retirement age,counsel argued that Exhibits CR2 and CR3 tendered by the Defendants were issued by the Ag Registrar of the 1^st Defendant and the Permanent Secretary respectively and not the appropriate office as provided for in Sections 29 (1) and 41 of the Law, and that since the defendantsthrough their witness never tendered any document which shows the Commissioner or Moderator as a signatory to such document, as specifically provided for in the Law, the position of the law being that the specific mention of a word excludes any other words by the literal rule of interpretation and where a statute bestows on a person power for a specific duty, anything done contrary is illegal. He citedKWARA STATE POLYTECHNIC VS SALIU (2012) 41 WRN 26 at 36. Counsel therefore submitted that Exhibits E5, E7 and CR5 (sic) are inconsistent with the spirit of the 1^st Defendant’s Law and the regulations hence should be declared null and void as it is the duty of these two to have given such directive to the 1^st defendant,even more so when the signatories to the aforesaid letters did not state that they wrote under the directive of the Moderator and Commissioner.

Counsel relied on section 3(1) of the provision of the Retirement Age of Staff of Polytechnics and College of Education (Harmonization Act) 2012 which pegged the compulsory retirement age of an academic staff of polytechnics and colleges of education at 65 years, and argued further that considering the provisions of that Act, any directive of the permanent secretary, the commissioner or moderator of the 1^st defendant contrary to the provisions of the Act will even be illegal and unjustifiable.

More importantly, the claimant argued that the provision of section 24 of the Edo State Institute of Technology and Management USEN Law 2002 (as amended)( Exhibit CR5) makes it clear that in the event of any inconsistency between any rules and regulations and the provision of this law or any other Laws, the provision of such Laws shall prevail, and submitted that the Harmonization Act 2012 supersedes the 1^st Defendant’s law and regulations. He submitted that the doctrine of covering the field accommodates the Harmonization Act 2012 to the exclusion of any other Law inconsistent with the Act.

Learned counsel posited that the claimant’s appointment was illegally and unjustifiably terminated by the 1^st defendant, as it is the governing council that has the power to terminate the appointment of senior staff of the status of the Claimant.

Counsel allegedthat Exhibit CR1 tendered by DW1 was falsified and altered as the word “of 65” were deliberately deleted but the Defendants forgot to also alter the provisions of 2.16(iv) page 7 chapter two of Exhibit CR1 to suit their illegal purpose as the provision expressly provided for 60 and 65 as retirement ages for non-academic and academic staff respectively, and urged the court to infer fraud in the circumstance.

Counsel also submitted that the claimant isin a statutory employment, hence her termination must accord with the rules, regulations or laws applicable to her employment. He cited Rajivs UNILAG (2007) JNSC pt 26 at 237 339; (2012). WRN Vol.41 at 26. He also cited Exhibit CR4 as the basis of the contractual relationship between the parties and that the position of the law is that since such regulationshave already been put in place, the court cannot rewrite any further contract for the parties in this suit as they are bound by the provisions of Exhibit CR4; He cited the case ofRACE AUTO SUPPLY COY LTD VS AKIB (2006) 5 JNSC pt 20 page 585 at 591; STANDARD NIGERIA ENGINEERING COY LTD VS NIGERIAN BANK FOR COMMERCE & INDUSTRY (2006) 2 JNSC pt 7 at 689 pg 693.

On pre action notice, counsel submitted there was substantial compliance with the provisions on pre action notice as provided under the 1^st Defendants Law

The claimant counsel submitted that part two, section 4(1) of the 1999 Constitution of the Federal Republic of Nigeria clearly provides that the Legislative Powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the federation which shall consist of a Senate and a House of Representative and by the provisions of section 4(2) of the same Constitution, the National Assembly shall have power to make laws for the peace, order and good government of the federation or any part thereof with respect to any matter included in the Exclusive Legislative List

The counsel argued that assuming but not conceding that there is such Law by the House of Assembly of Edo State, contrary to the provisions of the Harmonization Act 2012, by the provisions of section 4(8) sic( I believe counsel must have been referring to Section 4 (5) of the Constitution of the Federal Republic of Nigeria, 1999, if any law enacted by the House of Assembly of a State is inconsistent with any Law validly made by the National Assembly, the Law made by the National Assembly shall prevail and the other law shall to the extent of the inconsistency be void. Therefore, the Harmonization Act, 2012 does not require any ratification or domestication by the Edo State House of Assembly before same is applicable to the 1^st defendant contrary to the argument of the defence counsel.

In conclusion, the counsel to the claimant urged the court to grant the prayers of the claimant as Exhibit CR1 and the Harmonization Act 2012 pegged the retirement age of academic staff at 65 years, and taking into consideration Exhibit CR5,where it was provided that in case of conflict with the regulations made under that Law, CR5 and other Laws shall prevail.

On 20^th August, 2018, the defendants filed their Reply on Points of Law to the Claimant’s Final Written Address filed on 31/7/2018 in which, they contended with the claimant on the argument that the termination of appointment of a senior staff of the 1^st Defendant is the duty of the governing council. They posited that the provisions of Exhibits CR5 in Sections 7 & 8, CR2, CR3, E5 and E7 shows that the statutory power of the Governing Council to appoint or determine the conditions of service of any staff is subject to the policies of the 4^th – 6^th defendants, and that the issue at stake here is whether the Claimant could be retired at the age of sixty (60).

The defendants had earlier in their Final Written Address urged the court to discountenance Exhibit CR4 on the ground that it is contrary to Section 105 of the Evidence Act. He in addition citedSection 104, Evidence Act, 2011; OmisorevsAregbesola 2015 LPELR (24803) S.C.

The defendants submitted that Section 41 of Exhibit CR5 clearly provides that the directives that may be given to the Governing council by the commissioner shall be complied with and be given effect to by the Council. They stressed that though the Council desired to implement the Harmonization Act, the manifestation of their desire is dependent on the Edo State Government policy and that the 1^st defendant’s institution has been severally directed not to implement the provision of the Act until it is domesticated by the Edo State House of Assembly as stated in Exhibits E5, E7, CR2 and CR3.

The defendants denied the allegationof injustice against the claimant in the sense that her appointment only expired by effluxion of time due to her age. They argued further that the standard of proof required by the Claimant’s allegation of falsification of Exhibit CR1,is proof beyond reasonable doubt thereby urging the court to discountenance all the arguments canvassed in support of this argument, as the claimant did not place any proof before the court.

On Exhibit E6, the Defendants alleged that the Claimant’s place of abode is not included, the cause of action with its particulars of claims were not clearly stated and therefore the Exhibit falls short of a pre action notice, which cannot be taken to be amere irregularity but is a fundamental defect robbing this court of the requisite jurisdiction to try this suit. Counsel cited the case ofDOMINIC E. NTIERO v. NIGERIAN PORTS AUTHORITY (2008) 11 CMLR page 96 at pages 108 – 109 paragraphs C – A.; MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341.

The Defendants submitted that the claimant’s argument that the provisions of an Act of the National Assembly shall prevail if there is a conflict between it and the Edo State Law is misconceived,having failed to take cognizance of the fact that the 1^st defendant belonged to the Edo State Government and as such it is only the Edo State House of Assembly that has the power to make law for the purpose of the running of the 1^st Defendant’s Institution to the exclusion of the Federal Government of Nigeria. He citedSection 4(7) and items 29 and 30 of the Concurrent Legislative List of the Constitution of the Federal Republic of Nigeria, 1999; INEC v. MUSA (Supra); A.G. ABIA STATE v. A.G. FEDERATION (Supra).

The defendants therefore urged the court to dismiss the Claimant’s action in its entirety.

Having thoroughly gone through the processes filed by parties in this suit and evidence tendered, I have come up with the following issues that will best determine this suit to wit:

Whether or not Exhibit CR4 is competent before this court
Whether or not Exhibit E6 constitutes a sufficient pre-action notice.
Whether or not the federal law supersedes the state law on the issue of retirement age.
Whether or not the Claimant is entitled to her claims.

Before reaching a decision on the merits of this case, it is important to resolve the points of law raised by the Defendants in their statement of defence, which they failed to address the court on in their final written address, these are jurisdictional issues which the court cannot afford to overlook, to wit paragraph 10 a-d of their amended Statement of Defence:

(a) The 2^nd -4^th Defendants are not natural and juristic persons and are therefore not capable of suing or being sued.

(b) That consequent upon 8 (a) above, no reasonable cause of action has been disclosed against the Defendants as per the claimant’s complaint and statement of facts.

(c) That the names of the 2^nd to 4^th Defendants be struck out of this suit as they cannot be said to be proper and juristic parties to this suit.

(d) The Claimant’s originating processes of Complaint and Statement of facts were not franked by a Known/ Identifiable legal practitioner whose name is on the roll.

The 2^nd -4^th Defendants in this suit are-

The Acting Rector, Edo State Institute of Technology and Management, Usen.
The Registrar, Edo State Institute of Technology and Management, Usen.
Honourable Commissioner of Education, Ministry of Education. Edo state.

In Anozia v. A.G Lagos State [2010] LPELR-3778 (CA) the court per Saulawa, J.C.A defined juristic persons to mean “….the term juristic person is an entity, an artificial person, that is duly accorded recognition by law as having the rights and duties of a human being, in this sense the term juristic person includes corporations, partnerships and such other associations, whether incorporated or unincorporated”

Also in Onyuike v. The People of Lagos State &Ors [2013] LPELR-24809 (CA) per Dongban-Mensen, J.C.A “a juristic person is a legal entity through which the law of a particular legal system serves to permit groups of natural persons to act as if they were a composite individual for certain purposes. It is a legal fiction which does not mean that this specific entities are human beings but rather that the law allows them to act as people for certain limited purposes, usually law suits, property ownership, etc.

More over the 2^nd – 4^th Defendants are necessary parties to this suit as their presence is necessary in order to effectively adjudicate in this case. Necessary parties has been defined in several authorities, see the Supreme Court case of; REGD TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGERIA AND OTHERS V. MWHUN & ORS 2008 34 NSCQR Pt1 @ 321 where it was defined by MUKHTAR J.SC thus;

“All those who claim or share interest in the subject matter of the suit, or who may be affected by the result, as well as those who the court may join suomotu, are necessary parties, for their presence before the court may be necessary in order to enable the court, effectively and completely to adjudicate upon and settle all the questions involved or in controversy”

In the instant suit, I find that the 2^nd – 4^th Defendants are juristic persons and are so recognised under the Edo State Institute of Technology and Management, Usen Laws 2012 as amended (Exhibit CR5) and are necessary parties to this suit. I so hold.

Flowing from the above, the argument of the Defendants that no reasonable cause of action has been disclosed against them in the complaint and statement of facts,and that their names should be struck off the suit goes to no issue.

On whether the originating processes in this suit were franked by a known and identifiable legal practitioner the record of court clearly shows that the processes has the seal of BibajeOghoghome Elliot Esq affixed.

In all the points of law raised above are hereby discountenanced as they go to no issue.

On the issues for determination as formulated by the court, issue one is in respect of Exhibit CR4. The defendants urged the court in their address to discountenance Exhibit CR4 on the ground that it is contrary to Section 105 of the Evidence Act.

Exhibit CR4 is an uncertified version of the “Edo State Institute of Technology and Management Usen Regulations Governing the Conditions of Service of Employees on HATISTS 06 and Above Approved by Council”

Section 102 of the Evidence Act 2011 reads thus;

The following documents are public documents-

(a) Documents forming the official acts or records of the official act of – (i) the sovereign authority; (ii) official bodies and tribunals; or(iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and

(b) Public records kept in Nigeria of Private document

Section 104 of the Evidence Act 2011 reads thus

1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it, on payment of the legal fees prescribed in that respect, together with the certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.

2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.

3) An officer who, by the ordinary course of official duty is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

Section 105 of the Evidence Act reads;

Copies of documents certified in accordance with section 104 may be produced in proof of content of the public document or part of the public documents of which they purport to be copies.

In the instant suit, it is not in dispute that Exhibit CR4 is a public document within the meaning of section 102 of the Evidence Act and the Claimant did not certify same in accordance with the provisions of section 104 of the Evidence Act. Section 105 of the Evidence Act further provides for proof of documents by production of certified true copies.

Upon a cursory look at Exhibit CR4 it is obvious that the document was not certified and is therefore inadmissible in law, having not been duly certified as required by section 104 of the Evidence Act, this Exhibit is therefore expunged from the record of court. I so hold.

On issue two, the Defendants contends that Exhibit E6 falls short of a pre-action notice as envisaged under Exhibit CR5 they argue that it is an afterthought and by the rules of the 1^st Defendant, the Claimant ought to have given them one month pre-action notice and the place of abode of the claimant and particulars of his claims ought to have been included in Exhibit E6. The Claimant on the other hand argued that Exhibit E6 substantially complied with Exhibit CR5 because the purpose of pre action notice is to avoid springing a surprise on the Defendants as to the institution of a legal action.

A keen perusal of the said Exhibit E6 reveals that the Claimant’s grouse against the Defendants was hercompulsory retirement-

That the Claimant was shocked that she was asked to retire at 60 instead of 65 years as provided by the Harmonization act and Public Service rules.

Paragraph 8 of Exhibit E6 states further that:

“we hereby at this juncture state that you should retrace your step and allow our client to advance to the compulsory retirement age of 65 years in the institute before her retirement, else we shall have no choice than to take every legal action to stop you from perpetrating any illegality or victimization against our client.”

Paragraph 10

“Please, have a rethink, and stop the illegality against our client in the interest of justice before the expiration of 30 days upon the receipt of this letter”

From the above, Exhibit E6 clearly disclosed the grouse of the Claimant in this case and further informed the Defendants of her intention to proceed in instituting legal action against the defendants before the expiration of 30 days. This suit was filed on the 6^th of May, 2016 a time gap of over a month after Exhibit E6 was written.

I find therefore that Exhibit E6 suffices as a Pre-action notice to the Defendants and even more in compliance with Exhibit CR5. I so hold.

On issue three, the claimant contends that that the Governing council of the 1^st Defendant approved 65 years as retirement age of Staff and the Academic Staff Union of Polytechnics, Usen Chapter in accordance with the provisions of Harmonization Act 2012 and the Public Service Rules 2009, he relied on Section 24 of the Law (Exhibit CR5) which provides that “in the event of any inconsistency between any rules and regulations and the provision of this law or any other laws, the provision of such laws shall prevail”. The defendants on the other hand contends that the provisions of the Harmonization Act enacted have not been domesticated in Edo State. They argued further that indeed the council of the 1^st defendant approved the 65 year retirement age, but there was a letter from the Edo State Ministry of Secondary, Technical and Tertiary Education that the retirement age of 65 for academic and non-academic staff should be put on hold as the said law has not been ratified and domesticated in Edo-State and until it is done, the law cannot be implemented in the State.

Now the question is can the Harmonization Act, which is a federal legislation of 2012 which has not been domesticated in Edo state be said to supercede the existing laws of Edo state and the conditions of service of the Claimant?

Section 4(6) of the 1999 Constitution as amended provides that “the legislative powers of a state of the federation shall be vested in the House of Assembly of the state”

Further, Item 29 of the Concurrent Legislative List2^ndSchedule Part II of the CFRN provides:

“Subject as herein provided, a House of Assembly shall have power to make laws for the state with respect to the establishment of an institution for the purposes of University, Technological or professional education.”

Item 30 further provides that:

“Nothing in the foregoing paragraphs of this item shall be construed so as to limit the powers of a House of Assembly to make laws for the state with respect to Technical, Vocational, Post-primary, Primary or other forms of education, including the establishment of institutions for the pursuit of such education.”

It is therefore obvious that the House of Assembly of the State has the power to make laws for the State with respect to their self- owned institutions as stated in the above provisions of the Constitution. The importance of the powers of the House of Assembly is further emphasised in item 30 which emphasises the powers of the House of Assembly to make laws with respect to Educational institutions established by the State.The import of the Concurrent legislative list as set out in the CFRN, 1999, as amended is that the Constitution recognises the power of the State to competently legislate on items under the concurrent list, while the National Assembly is vested with the power to legislate for the Federation,The beauty of our democracy and federalism is separation of powers, the 1^st Defendant been an institution of the State of which the State Assembly is empowered to legislate and establish, fully funded by the State, is fully vested with the power to legislate on State owned institutions see HON MINISTER OF JUSTICE AND ATTORNEY GENERAL OF THE FEDERATION V. HON ATTORNEY GENERAL OF LAGOS STATE 2013 LPELR 20974 SC.

In the instant suit, having regard to the fact that the Edo state House of Assembly has not domesticated the said Harmonization Act which sets the retirement age at65, the Claimant cannot import the Act into her employment relationship with the 1^st Defendant and the doctrine of covering the field will not also avail in this instance, as the 1^st Defendant is owned and funded by the State Government and the National Assembly cannot legislate for the State in this instance. I so hold.

On issue four, whether or not the Claimant is entitled to her claims, the claims of the claimant against the defendant are as follows;

(a) A DECLARATION that the Compulsory retirement age of academic staff of the 1^st Defendant like every other polytechnics and colleges of Education in Nigeria is 65 years.

(d) AN AWARD of the Cost of instituting and prosecuting this action on indemnity basis against the 1^st, 2^nd and 3^rd Defendants jointly and severally.

The reliefs will be examined one after the other

Claim 1 is a declaration that the Compulsory retirement age of academic staff of the 1^st Defendant like every other polytechnics and colleges of Education in Nigeria is 65 years.

By the provisions of Clause 2.15 of Exhibit CR1

Tenure of Appointment of Full-time Permanent Staff

The appointment of all staff on HATISS 06 and above, shall normally be tenable to retiring age of 60 years or 35 years in service whichever comes first, unless due notice in writing, of termination of appointment has been given to, or by the institute, or the appointment is otherwise terminated under the provision of these regulations.

By this provision it is clear that the retirement age as provided above is 60 years or 35 years of service not 65years as proffered by the Claimant. Furthermore, Clause 2.16 Confirmation of Appointment provides that

All appointments may be either confirmed to retiring age 60 or 65 for academic or terminated after due notice has been giving to the member of staff concerned.

By this provision, it is abundantly clear that the Defendants have the discretion to retire academic member of staff at 60 or 65 as provided above. The sole discretion lies with them and in the case of the claimant they have decided to enforce her retirement at 60 years of age which is not in contention and is not outside the provisions of the regulations.

In NJC &Ors v. Senlong&Ors [2010] LPELR-4582 (CA) the Court of Appeal per Peter-Odili, J.C.A held that:

“…Another way of saying it is that where a statutory requirement for the exercise of a legal authority is laid down, it is expected that the public body invested with such authority would follow the requirements to the details. The non-observance in the process of reaching any decision renders the decision itself a nullity”

I find that the Defendants have complied with the laid down regulations. I so hold.

Furthermore, havingfound above that the Harmonization Act which has not been domesticated by the Edo state House of Assembly, It cannot be applicable to employees of the 1^stDefendant, this claim is bound to fail. I so hold.

Claim 2, is a declaration that the 1^st Defendant’s letter to the Claimant dated 2^nd March, 2016 and 6^th April, 2016 with the intention to terminate the Claimant’s appointment is not only illegal but null and void as the claimant still remains in the employ of the 1^st Defendant till 65 years.

By the provisions of Clause 2.15 of the Edo State Institute of Technology and Management Usen Regulations Governing the Conditions of Service of Employees on HATISS 06 and Above Approved by Council (Exhibit CR1) – Tenure of Appointment of Full-time permanent staff @pg 7 is stated thus:

The appointment of all staff on HATISS 06 and above, shall normally be tenable to retiring age of 60 years or 35 years in service whichever comes first, unless due notice in writing of termination of the appointment has been given to, or by the institute, or the appointment is otherwise terminated under the provision of these regulations.

By this provision it is stated that the retirement age is 60 years or 35 years in service whichever comes first, the defendants did no wrong by notifying the Claimant in writing of when the Claimants retirement will be due. There is nothing in that letter that states or infers termination of the appointment of the Claimant. The letter is only a notification of retirement upon the attainment of 60 years of age and as such I find nothing illegal about the said letter. I so hold

Claim 3 is for an orderrestraining the Defendants and/or any of their officials, agents or privies from taking any step calculated to undermine the Claimant’s position/appointment in the 1^st Defendant or capable of jeopardizing the Claimant’s position or status in the 1^st Defendant.In the instant suit, having held that the defendants followed due process in retiring the Claimant, Claim 3 is bound to fail. I so hold.

In all I find that the Claims as captured in the Complaint and Statement of Facts are unmeritorious. The entire suit thereby fails and is accordingly dismissed in its entirety. I so hold.

I make no order as to costs.

Judgment is accordingly entered.

Hon.Justice A.A.Adewemimo

Judge.