MBAGWU IGNATIUS -VS- ABIA STATE UNIVERSITY

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: THURSDAY 21^STFEBRUARY 2019

SUIT NO.NICN/OW/59/2016

BETWEEN:

MBAGWU IGNATIUS………………………………………CLAIMANT

AND

ABIA STATE UNIVERSITY………………………………DEFENDANT

APPEARANCES:

C. EBERE FOR THE CLAIMANT.
THEO NKIRE, WITH N.C.E. NJAKA, CHIKODI OKEORJI AND IRENE OBI, FOR THE DEFENDANT.

JUDGMENT

INTRODUCTION

This suit was commenced by complaint dated 26/09/2016 and filed 27/09/2016, which is the date endorsed as the date the filing fee was paid, as distinct from 26/09/2016, stamped on the complaint. The Statement of Facts [wrongly tagged ‘Statement of Claim’] dated 26/09/2016 but filed 27/09/16 has the following reliefs in its paragraph 15:

A Declaration that the Defendant’s termination of the Appointment of the Claimant as Senior Security Officer in the Security Department of the defendant vide the letter dated 28^th June, 2016 is illegal, and unlawful.
An Order of Court setting aside the said termination for being illegal and unlawful.
An Order reinstating the claimant to his said position as Senior Security Officer in the Security Department of the Abia State University.
An Order on the defendant to pay over to the Claimant all the entitlements due to him by virtue of her said position including all salaries and allowances owed him from the said 28^th day of June, 2016.

Against the above, the defendant brought Memo of Appearance dated 21/10/2016 and filed 24/10/2016 and a Statement of Defence dated 01/11/2016 and filed 21/11/2016. The case first came up before Hon. Justice O.Y. Anuwe on 3^rd November 2016 vide proceedings recorded in the sister case Suit No. NICN/OW/58/2016 – AKPOLISI CECILIA V. ABIA STATE UNIVERSITY. On this date, the learned counsel to the defendant applied for correction on the Memo of Appearance and the application was granted as prayed. Later, the matter was adjourned to 18^th January 2017 for further mention. The matter came up as adjourned, and on this date, vide the proceedings in the sister case [supra] the Statement of Defence was deemed as properly filed and served. Subsequently, the matter was adjourned to 8^th March 2017 for hearing. On 8^th March 2017 when the matter came up, the counsel to the claimant asked for adjournment to file Reply and Defence to Counterclaim; and the case was adjourned to 10^th May 2017 for hearing vide the sister case [supra]. The claimant filed the Reply and Defence to Counterclaim dated 8^th March 2017 on 12^th April 2017, and it was deemed properly filed and served on 7^th June 2017 vide the sister case [supra]. The case was therefore adjourned to 13^th July 2017 for hearing vide the sister case[supra].

The Court did not sit on 13^th July 2017. The next date it sat was 23^rd October 2017. And before this date, His Lordship, Hon. Justice O.Y. Anuwe had been transferred from the Owerri Division while I replaced His Lordship. The matter came up before me for the first time on 23^rd October 2017. On this date, vide the sister case, supra, the matter was adjourned to 28^th November 2017 for hearing. On this date, the matter came up as adjourned but the Court directed the counsel to the parties to address it on the desirability of consolidating the five sister cases and therefore adjourned the fives cases vide the sister case[supra] to 11^th December 2017 for address on consolidation and 12^th December 2018 for hearing. The matter came up as adjourned on 11^th December 2017 and the Court acceded to the prayers of the counsel to the parties not to consolidate vide the sister case [supra]. Meanwhile, the defendant filed an Amended Statement of Defence supported with a motion to deem it as properly filed and served on 8^th December 2017. On this same 11^th December 2017, this matter came up vide proceedings recorded in its own file this time around. The learned counsel to the defendant attempted to move the motion to deem the Amended Statement of Defence as properly filed and served by informing the Court of its pendency and that, it had no written address as required by law.

On this basis, and on the application of the learned counsel to the defendant, the matter was adjourned to the very following day, 12^th December 2017 to enable the learned counsel to the defendant file a written address. The learned counsel filed the written address as prayed on 12^th December 2017 but while that of the sister case [supra] was moved on the said 12^th December 2017, this was never moved. Maybe, because the sister case [supra] went to trial on this date and took long, and the other cases consequently adjourned off record to 13^th March 2018. On 13^th March 2018, the case came up as adjourned. However, instead of moving the motion for amendment of the Statement of Defence pending, the learned counsel to the defendant made another application orally for adjournment to enable him frontload documents to be tendered. This application was refused on the ground that the matter was fixed for trial but with a rider that the application could be brought before the defence is opened. Subsequently, the case was opened this same day.

However, before going further, let me summarise the cases made by the parties in their pleadings, on the bases of which evidence was led and arguments canvassed by their lawyers.

CASES MADE BY PARTIES IN THEIR PLEADINGS

Claimant’s Pleadings

The claimant pleaded that the defendant employed him in its Security Department by a letter dated 12^th July, 1993 and that due to his efficiency at work he earned series of promotions until he was promoted to the rank of Senior Security Officer in 2013. The claimant further pleaded that it was on this rank that his appointment was terminated on 28^th June 2016. The claimant said he had served the defendant for 28 years withoutcommitting any offence and without any blemish;and that, he had never being queried or faced any disciplinary panel. The claimant pleaded further that as a senior staff, the claimant’s employment is governed by the Regulations Governing Conditions of Service of Senior Staff (HATISS 06-15) [RGCSSS]. The claimant further pleaded that he was not afforded fair hearing in accordance with paragraph 2.14 of the RGCSSS and section 36 of the 1999 Constitution before the termination. The claimant pleaded that after the termination he wrote to the defendant through the Vice-Chancellor on 19^th July 2016 complaining of the unlawful termination and asking it be rescinded. The claimant also asked the defendant to produce the original of the letter and that he would tender the copy in his possession in the event of failure to produce it. The claimant also pleaded that he gave the defendant pre-action notice through his counsel vide a letter dated 17^th August 2016 and served on the defendant on 18^th August 2016. Notice was given to the defendant to produce the original failing, which the copy with the claimant would be tendered.On the basis of the foregoing, the claimant claimed the four reliefs earlier reproduced above.

The Defence

Vide Amended Statement of Defence filed 8^th December 2017 the defendant joined issues by pleading that the reckless and negligent conducts of the claimant and his colleagues which led to total breach of security and peace in the University, the festering of cult activities and gruesome murder of student cultists led the University to set up a Special Committee on Security to investigate the security breaches pursuant to section 5(1) & (2) of the Abia State University Law [ASUL] and the RGCSSS. The defendant pleaded that the meetings of the Special Security Committee held its meetings in the open to which witnesses including the claimant were called. The defendant pleaded further that the claimant was found guilty of inability to discharge the functions of his office as Senior Security Officer in accordance with his conditions of service thus exposing the University to massive scandal the world over. The defendant denied the receipt of the letter and pre-action notice and that the alleged notice did not comply with the law. The defendant pleaded in return that the termination of the appointment of the claimant was necessary for public safety and good and that the continued employment of the claimant would prejudice the proper functioning of the University and compromise safety. The defendant stated that the termination of the employment of the claimant was lawful and in accordance with the laws and the RGCSSS and that the claimant is not entitled to reinstatement or any of the reliefs claimed. The defendant finally urged the Court to dismiss the suit and counterclaimed for N2,000,000.00 being cost of this action.

The Reply

Vide Reply to Statement of Defence and Defence to Counterclaim dated 8^th March 2017 and filed 12^th April 2017, the claimant reacted to the Statement of Defence and Counterclaim. Apart from reaffirming the averments in the Statement of Fact, the claimant replied that the letter was served on the servant of the defendant who acknowledged receipt on 18/08/2016 and that he is entitled to all the reliefs claimed. The claimant replied too that, all paragraphs relating to the counterclaim are denied in accordance with the averments contained in the Statement of Facts and that the defendant is not entitled to the counterclaim because it is gold digging and meant to harass the claimant. The claimant urged the Court to dismiss the counterclaim.

TRIAL PROCEEDINGS

The case was opened on 13^th March 2018 with the claimant who testified on behalf of himself as CW1. CW1 was sworn on the Holy Bible. After complying with all the preliminaries, CW1 adopted his witness statement on oath deposed 26^th September 2016 and thereafter offered to tender the documents relied on; and the learned counsel to the defendant objected document No. 12 on the list of document – photocopies of 4 pages of Regulations Governing Conditions of Service of Senior Staff of the defendant [RGCSSS]. The objection was upheld and the document rejected and marked accordingly. Subsequently, CW1 tendered the following documents without objection and they were accordingly marked Exhibits CWA (1-2), CWB, CWC, CWD, CWE, CWF, CWG, CWH, CWJ, and CWL (1-3).Objection was also raised to photocopy of the document titled “Re – Termination of Appointment: Request for Fair Hearing”. The objection was overruled and the document admitted as Exhibit CWK.Subsequently, the examination-in-chief was brought to an end and the matter adjourned to 15^th April 2018 for cross-examination and continuation.

On 15^th April 2018, the matter came up as adjourned.Before the commencement of cross-examination, the learned counsel to the claimant applied for an interpreter for CW1. After an initial objection, the learned counsel to the defendant conceded, and the Registrar: Simeon Ikpaele was assigned as interpreter. CW1 was thereafter cross-examined and the cross-examination brought to an end the same day. There was no re-examination. The learned counsel to the claimant thereafter closed the case of the claimant, and the matter proceeded the same day to defence. DW1 affirmed and adopted his witness statement on oath deposed 21^st November 2016 and the additional witness statement on oath deposed 8^th December 2017. The learned counsel to the claimant objected the original of Report of Special Committee on Security,arguing that, only the certified true copy [CTC] of it could be tendered. The objection was overruled and the document admitted and marked Exhibit DWA(1-16) accordingly.

After this, DW1 asked the Court to dismiss the case and grant his counterclaim. The examination-in-chief of DW1 was brought to an end. The case was thereafter adjourned to 23^rd and 25^th April 2018 for cross-examination and continuation. The matter came up as adjourned. DW1 was cross-examined. The learned counsel to the claimant attempted to tender photocopy of the RGCSSS through DW1. Initially, the learned counsel to the defendant objected, but later recanted his objection and said,since the document was a subsidiary legislation, which the Court was bound to accord judicial notice, he would no longer object to its admissibility. It was therefore admitted and marked Exhibit DWB. Later, the cross-examination was brought to an end. There was no re-examination; and the defence was accordingly closed. Thereafter, the case was adjourned to 14^th June 2018 for adoption of final written addresses of the parties.

On 14^th June 2018, the case was adjourned off record to 26^th September 2018 in the sister case [supra]. Before the 26^th September 2018, I was transferred from the Owerri Division to Enugu Division, and for this reason, the matter was adjourned sine dietill obtainment of fiat to complete my part heard matters. When fiat was eventually obtained, the case was fixed for 8^th November 2018 for adoption but it could not go on,and it was was adjourned off recordto 15^th November 2018, after hearing the sister case [supra]. The Court did not sit on the 15^th November 2018 and the matter was further adjourned to 30^th November 2018. On the 30^th November 2018, the matter finally came up for adoption of final written addresses.

ADOPTION OF FINAL WRITTEN ADDRESES

On this date, THEO NKIRE, for the defendant moved the application of the defendant to regularise its final written address. The application was granted on the condition that the receipt for default payment must be furnished the Court on or before the 7^th December 2018. [However, the receipt was retrieved from the Registry this morning and the original shown to me by both the HOD of the Division and Simeon Ikpaele and the photocopy is now page 128A of the file]. Thereafter, the learned counsel to the defendant adopted the final written address of the defendant dated 11^th June 2018 and filed 14^th June 2018. The learned counsel to the defendant also adopted the reply on points of law dated 28^th November 2018 and filed 30^th November 2018. In adumbration, the learned counsel to the defendant argued that, the three-pagedocument tendered by the claimant, as the RGCSSS were insufficient to assist the Court to arrive at a judgment in favour of the claimant, considering the dictum of Niki Tobi JSC in Idoniboye-Obu as quoted by claimant’s counsel on page 6 of his address. The learned counsel also opined that,both parties relied on Idoniboye-Obu’scase; and submitted that, if a subsidiary legislation made pursuant to NNPC Act could not avail the plaintiff in the case, the subsidiary legislation made pursuant to Abia State University Law in the instant case,wouldalso not avail the claimant in this case. The learned counsel to the defendant finally urged the Court to dismiss this suit as lacking merit. Then, the learned counsel to the claimant took over.

The learned counsel to the claimant: D.C. EBERE, adopted the claimant’s final written address dated 26^th November 2018 and filed 27^th November 2018. In adumbration, the learned counsel raised objection to the reply on points of law arguing that, it amounted to a second address. The learned counsel urged the Court to discountenance it. The learned counsel finally urged the Court, to grant all the reliefs claimed by the claimant; and dismiss the counterclaim of the defendant. The case was thereafter adjourned to 8^th January 2019 for judgment. As the judgment was not ready on this date, the case was adjourned sine die till date will be communicated to counsel when the judgment is to be delivered before the expiry of the statutory period. When the judgment was ready it was fixed for 21^st February 2019 and communicated to the counsel on both sides. I now move to summaries of the final written addresses of the counsel to both parties.

SUMMARIES OF FINAL WRITTEN ADDRESSES

Defendant’s Final Written Address

THEO NKIRE franked the defendant’s final written address. The learned counsel submitted two issues for the consideration of the Court. They are:

Whether, considering the provisions of paragraph 2 (b) of the Claimant’s contract of employment [Exhibit CWA, CWA1] (sic) with the Defendant and other circumstances of this case, Claimant’s employment was not lawfully terminated since the Abia State University Regulation Governing Conditions of Service of Senior Staff on which the Claimant relied was not enacted by the Abia State Assembly as a Schedule to the Abia State University Law nor as a subsidiary Legislation as required by law. [sic]
Whether having regard to the failure of the Claimant to serve a pre-action Notice on the Defendant as mandatorily required by Sections 36 (1) and 37 of the Abia State University Law, this Suit is not incompetent and ought therefore to be struck out. [sic]

Arguing issue 1, the learned counsel to the defendant submitted that, it is the duty of the claimant, who complained that his employment has been wrongfully determined, to plead and tender the contract of service. The learned counsel cited Idoniboye-Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589; Kato CBN (1999) 6 NWLR (Pt. 607) 390 at 405; Okomu Oil Palm Co. Ltd v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660 at 673-674; and Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 at 370. The learned counsel quoting Uwaifo, JSC, in Idoniboye-Obu’s case, said the Court is not permitted to look outside the contract for terms and conditions of the employment. The learned counsel also cited Adegbite v. College of Medicine of University of Lagos (1973) 5 SC 149 at 162 and International Drilling Company Ltd v. Ajijala (1976) 2 SC 115 at 127. The learned counsel further submitted that, the fact that an employer is a statutory creature does not cloth theconditions of service with statutory flavour. On this, the learned counsel cited Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (1993) 5 NWLR (Pt. 291) 47.

The learned counsel also submitted that, when an employment is determinable by agreement of the parties’ simpliciter, it couldn’t be interpreted to have statutory flavour. On this, the learned counsel cited Fakuade’s case [supra] and Okomu Oil Palm Co. Ltd [supra]. The learned counsel also quoted Iguh, JSC and Mohammed, JSC in Idoniboye-Obus case to show how to identify a subsidiary legislation that clothes an employment with statutory flavour. The learned counsel argued further that by paragraph 2(b) of the claimant’s letter of appointment [Exhibit CWA(1-2), the parties had corresponding rights to determine the contract by giving notice of one month or payment in lieu thereof; and that, as such, the claimant’s employment is not clothed with statutory flavour.The learned counsel argued that, the claimant’s purported entitlement to statutory flavour was based on his deposition that his employment was governed by the RGCSSS, the learned counsel argued that, following the prescription of Mohammed, JSC [supra] in Idoniboye-Obu’s case, the RGCSSS cannot enjoy statutory flavour, just like the conditions of service in Idoniboye-Obu’s, even though, made by the Board of the NNPC since both could not be said to be like section 17 of the University of Lagos Act and the Public Service Commission Regulations construed in Olaniyan’s and Shitta-Bey’s cases.

The learned counsel argued that, besides the above, the defendant had made a good cause for the determination of the employment in issue; and that, the employment was terminated on gross inefficiency of the claimant, along with his colleagues, as a security officer, which led to break down of law and order, total mayhem and devious attacks and counter-attacks of students cultists resulting in gruesome murders of student cultists. The learned counsel argued that, this was an auspicious moment for which paragraph 2(b) of the letter of appointment was provided; and that, it was rightly invoked in terminating the appointment of the claimant. The learned counsel submitted that, an employer is at liberty to bring to an end, with or without reason, the employment of its employee so far it acts within the terms of the contract. On this, the learned counsel cited Commissioner of Works, Benue State v. Devcon Ltd (1998) 3 NWLR (Pt. 83) 407 at 423. The learned counsel argued that, even if there is a breach of the agreement in terminating the employment, the remedy lies only in damages for earnings for the length of notice, which ought to be given. On this, the learned counsel cited Western Nigeria Development Corporation v. Abimbola (1996) NMLR 381; Nigerian Produce Marketing Board v. Adewunmi (1972) 1 ALL NLR (Pt. 2) 870 at 871; Chukwuma v. Shell Petroleum Dev. Co. Nig. Ltd. (1993) 4 NWLR (Pt. 289) 512 at 538.

The learned counsel argued further that, the claimant’s reliance on the RGCSSS was an error in that, it did not apply to the employment of the claimant nor possess statutory flavour, as it was neither an Act of parliament nor a subsidiary legislation made by parliament. On this, the learned counsel referred to Idoniboye-Obu’s case [supra]. The learned counsel went further to submit that, this is more so, because the claimant’s employment was not provided for anywhere in the Abia State University Law that established the defendant. The learned counsel argued that, arising from the above, this Court lacked the vires to grant the declarative reliefs claimed in this suit because, where a court found that an employer acted legitimately to terminate an employment without statutory flavour, and in accordance with the terms of the contract, a declarative relief cannot be granted. On this, the learned counsel cited Idoniboye-Obu’s case [supra]. The learned counsel submitted that, as a result, relief 1 of the claimant is not grantable; and that, since all the other reliefs are ancillary, they cannot also be granted. The learned counsel therefore urged the Court to dismiss the suit, and moved to issue 2.

On issue 2, which deals with whether or not pre-action notice was served as prescribed by sections 36(1) and 37 of the Abia State University Law, the learned counsel argued that, the defendant filed a Conditional Memorandum of Appearance and raised the issue in the Statement of Claim! [Defence]. The learned counsel cited paragraph 13 of the Amended Statement of Defence to show that, the issue was raised. The learned counsel argued that Exhibit CWL(1-3) tendered by the claimant as prove of service was an unacknowledged copy, which cannot prove acknowledgment where the issue is on whether it was served. The learned counsel submitted that, the only inference to be drawn is that; the claimant never served the pre-action notice. The learned counsel invited the Court to have a look at Exhibit CWL(1-3).

The learned counsel submitted further that, failure to serve pre-action notice divests the Court of its jurisdiction. The learned counsel referred the Court to Uguanyi v. NICON PLC (2004) 15 NWLR (Pt. 897) 612; Okafor v. Ukadike (2009) 1 NWLR (Pt. 1122) 259; and Abuja Municipal Area Council v. C.N. Okoli Transport Co. Ltd. [no further details given]. The learned counsel submitted that, therefore, the claimant has failed to prove that he served pre-action notice before the commencement of this case; and that, as a result, the suit ought to be struck out. And in finality, the learned counsel urged the Court to dismiss the suit in its entirety as lacking in merit. Thus, the defendant’s counsel final written address was concluded. I shall move to the written address of the learned counsel to the claimant.

Claimant’s Final Written Address

CHIMA EZIKE franked the claimants’ final written address. The learned counsel to the claimant submitted two issues to the Court for the determination of the suit. They are:

Whether the claimant has proved that his employment with the defendant enjoys statutory flavour. [sic]
Whether The [sic] Claimant Proved His Case [sic] so as to be entitled to the judgment of the Honourable Court. [sic]

On issue 1, the learned counsel argued that, it corresponds to issue 1 of the defendant; and that, the employment of the claimant, covered by the RGCSSS, being a subsidiary law of the defendant, enjoys statutory flavour hence, the termination of the claimant’s appointment is unlawful. The learned counsel quoted sections 28 and 29 of the Abia State University Law, to show how the RGCSSS is a subsidiary legislation. The learned counsel submitted further that, since the RGCSSS is a subsidiary legislation made by the Council of the defendant in exercise of the powers conferred on it by sections 28 and 29 of the Abia State University Law, the RGCSSS therefore forms part of the Abia State University Law. The learned counsel argued that, the reliance placed on paragraph 2(b) of the letter of appointment of the claimant to argue that his appointment lacks statutory flavour couldn’t hold in view of paragraph (a?) [2(a)] of the letter of appointment, which provisions negate the inference drawn from paragraph 2(b) in isolation.

The learned counsel argued that, by virtue of the phrase “subject to” employed in the said paragraph 2(a), it makes the employment to be governed by the Abia State University Law and that, therefore,the employment has statutory flavour. The learned counsel cited Alhassan v. Abu Zaria (2010) ALL FWLR (Pt. 538) 962 at 966 on the construction of the phrase “subject to”. The learned counsel argued that, in virtue of this, the RGCSSS is an integral part of the Abia State University Law. The learned counsel quoted Tobi JSC at 604 of Idoniboye-Obu’s case on how to determine whether a subsidiary legislation clothed a particular employment with statutory flavour. The learned counsel argued that, the RGCSSS was made pursuant to sections 28 and 29 of the Abia State University Law and that, the claimant’s letter of appointment made it clear that, the appointment was subject to the Abia State University Law, which is the parent law to the RGCSSS, and more so, because it satisfied all the factors prescribed by Tobi JSC in Idoniboye-Obu’s case [supra].

Subsequently, the learned counsel argued that, the claimant, though employed as a junior staff, his rise to the rank of a senior staff, made his employment to transmute to that governed by the RGCSSS, which itself is made pursuant to sections 23? [28] and 29 of the Abia State University Law. The learned counsel argued that, the RGCSSS enumerated the procedures for termination of appointment; and that, by virtue of Adebiyi v. Sorinmade (2004) ALL FWLR (Pt. 239) 933 at 937, and the appointment of the claimant pursuant to a statute made by the Council of the defendant, the RGCSSS provisions on termination must be strictly followed, otherwise, the Court must declare such transgression void. The learned counsel argued that, looking at Exhibit 1? [CWA], the employment letter and Exhibit 13? [DWB], the RGCSSS together with sections 28 and 29 of the Abia State University Law, the Court must come to the conclusion that, the claimant’s employment enjoys statutory flavour.Thus, argument on issue 1 came to an end, and the learned counsel moved to issue 2.

On issue 2, the learned counsel submitted that, it is agreed that the claimant was not given fair hearing and a look at Exhibit DW1? [DWA(1-16) –the Report of the University Ad-Hoc Committee, along with the admission made by DW1 under cross-examination that the claimant was never invited by the Panel, it is clear that the defendant conceded the point that the claimant was not given fair hearing. The claimant submitted that, the reliance placed on paragraph 2(b) of the letter of appointment to argue that the appointment may be terminated for good cause at any time, is misconceived, in that, the said paragraph 2(b) applied to junior and not senior staff; and that, the claimant had, by virtue of promotions,reached the senior staff cadre, which transmuted his conditions of service to one regulated by Exhibit DWB and paragraph 2(a) of the letter of appointment. The learned counsel opined that, by virtue of clause 2.14(iii) of Exhibit DWB, before the appointment of the claimant could be terminated for good cause, other than ground of infirmity of mind or body, he must be notified in writing of the grounds, be afforded opportunity to reply,be given audience at the Disciplinary Committee investigating his case; and be entitled to appeal adverse decision of the Committee to the Council.

The learned counsel submitted that, the above provisions of Exhibit DWB is meant to give the claimant fair hearing in accordance with section 36 of the 1999 Constitution. The learned counsel cited University of Jos (2017) ALL FWLR (Pt. 898) 101-117 and Angel Spinning & Dyeing Ltd v. Ajah (2000) FWLR (Pt. 23) 1332 at 1353-1354 to the effect that, where an employment’s provisions for the right of fair hearing before termination is not complied with, such renders the termination unlawful and liable to be set aside. The learned counsel argued that, the claimant having shown the failure of the defendant to abide by the right to fair hearing guaranteed by Exhibit 13? [DWB] vide paragraph 12.4(iii), the claimant has proved his case and is therefore entitled to the judgment of the Court. The Court was urged to set aside the termination and grant all the reliefs claimed. The Court was also urged to dismiss the counterclaim of the defendant.I shall now go to the reply on points of law.

Reply on Points of Law

THEO NKIRE franked the reply on points of law. The learned counsel replied that the claimant’s promotions would not change the claimant’s contract of employment as signed, which remained valid throughout her? [his] employment, and that, it could only be changed by signing a new contract at the promotion before he could take advantage of the RGCSSS. The learned counsel submitted that, as such, the interpretation of the employment could only be based on the initial contract, which does not enjoy statutory flavour. The learned counsel also opined that, the issue of transmutation of status would not change the contract, just as it did not change the contract in Idoniboye-Obu’s case, where the plaintiff who rose by promotion from junior rank to senior rank was terminated and the termination approved by the Court. The learned counsel also submitted that, the learned counsel to the claimant did not reply his argument and cases cited on the fact that the employment did not enjoy statutory flavour. The learned counsel finally urged the Court to dismiss this case.

At this juncture, the next thing is to resolve the dispute by giving the Court’s decision. Let me state that in doing this, I have given very careful considerations to the pleadings, evidence on record, the addresses of counsel and the authorities cited. In the course of the judgment references shall be made to these as necessary.

COURT’S DECISION

Before delving into the substantive case, let me address some preliminary points. I observed that the claimant’s written address was accepted for filing with the caveat that it was filed in default for 144 days which default fee was not paid. But on a closer look, I observed too that, the defendant’s written address, which was first filed, was equally filed out of time with a default of 20 days. I observed that I did not make a ruling on this at the point of adoption. Now, the logic is that, until the defendant’s final written address irregularly filed was deemed as properly filed and served, time would not run against the claimant to file his own final written address. That is to say, time would only start counting against the claimant when the final written address of the defendant irregularly filed is deemed as properly filed and served. The final written address of the defendant was only deemed as properly filed and served on 30^th November 2018. That is the date the reckoning of default would start from, after deducting the grace period. Now, the claimant who filed his final written address on 27^th November 2018 – that was before the deeming order for the defendant’s address was granted – could not be said to have filed out of time. The claimant actually filed before his time started running.

So, the claimant was not in default and the assessed default was therefore done in error; and the application for extension of time filed also a misnomer. I therefore hold that the final written address of the claimant was filed within time.

The second issue is that dealing with the Amended Statement of Defence of the Defendant. I observed that the application for leave to file it was never moved after the initial attempt to move it on 11^th December 2018 failed because it was not accompanied with a written address in accordance with the rules of this Court. I found that the counsel to the defendant filed the written address on the 12^th December 2017 as promised, and on which date it was supposed to be formally moved. I found that the one filed in respect of the sister case [supra] was moved and the said sister case proceeded to hearing while the other sister cases were adjourned off record at the end of the lengthy trial. Maybe this was responsible for the failure to formally move the application. The Court of Appeal in Hope Democratic Party Petitioner v. INEC & ORS. (2009) LPELR-8677 (CA) 70-71, G-A held that:

“The Supreme Court has held in the case of Oforkire v. Maduike (2003) 5 NWLR Pt. 166, that a Court process which is not moved in Court is as good as not filed, unless the process is not opposed by the Respondent(s) in which case the Court will deem the motion as moved.” [Underline supplied for emphasis]

I also cite Igbolezim & Ors v. Ewuru & Ors (2013) LPELR-21211 (CA) 44-45, B-D; andNzenwata v. Nzenwata (2016) LPELR-41089 (CA) 38-43, D-F, where the Court of Appeal held that, it is permissible for the Court to suo motu amend the pleadings in order to bring into focus the real issues at stake. In the particular case at hand, I found that the learned counsel to the defendant in paragraph 5.2.4.of the final written address referred to paragraph 13 of the Amended Statement of Defence. I found that the counsel to the claimant, in his final written address, did not object to this or argue that the case was not fought on the Amended Statement of Defence. I also found that DW1 also adopted the Additional Deposition deposed to pursuant to the said Amended Statement of Defence on 8^th December 2017 in this Court on 15/03/18 without any objection. In addition, the learned counsel to the defendant also made reference to paragraph 13 of the Amended Statement of Defence on 13^th March 2018 while raising objection to the admissibility of Exhibit CWK.

It follows that both parties believed the case was fought on the basis of the Amended Statement of Defence. It means a concession that the parties fought the case on the Amended Statement of Defence. In effect, it means the counsel to the claimant was not opposed to the Amended Statement of Defence been deemed as properly filed and served. Secondly, I observed that the amendments inserted into the Amended Statement of Defence did not in any way change the character of the case. In fact, they are very minor [see paras. 13, 20 and 21] such that, without them, the case could still be fought very well on the original Statement of Defence. Considering my foregoing reasoning and all the authorities cited in support, I think, this is a situation in which the Court is entitled to suo motu deem the amendment as properly filed and served. And I so hold. Let me now move to the substantive case.

I observed that the issues formulated by the counsel to the claimant do not seem to capture the breadth of the issues disclosed by the facts of the case and the ones formulated by the counsel to the defendants, though, captured the ambit of the issues arising, are nevertheless prolix and wrongly arranged. I adopt these issues but in a re-arranged and modified form. The rearranged and reformulated issues are:

Whether the defendant was served with pre-action notice in the instant case?
Whether the employment of the claimant was lawfully determined in accordance with relevant laws and conditions of service?

ISSUE 1:

WHETHER THE DEFENDANT WAS SERVED WITH PRE-ACTION NOTICE IN THE INSTANT CASE?

The above issue is a radical one and ought therefore to be settled before proceeding further in the case. I observed that the issue was pleaded, evidence led thereto and arguments canvassed on it in the written address of the defendant. I observed that the claimant also pleaded service of the pre-action notice and led evidence to show this at trial. Thus, issues were joined. Strangely however, the arguments of the defence on this issue were not replied in the address of the counsel to the claimant. This is strange enough!One legal parlance is that, this raised the necessary implication is that, the arguments canvassed by the defendant’s counsel, are deemed correct and conceded by the claimant’s counsel–see Donbraye & Anor. v. Preyor & Ors. (2014) LPELR-22286 (CA) 70, D-F, where the Court of Appeal held that:

“It is settled that where an opponent, like the appellants herein, fails or neglects to counter arguments of his adversary in his brief of argument, the defaulting party is deemed to have conceded the non-contested points.”

Nevertheless, I am aware that that does not relieve me of the responsibility to check whether, indeed, the argument is correct in law – see Aliyu & Ors. v. Intercontinental Bank Plc & Anor (2013) LPELR-2076 (CA) 35, A-F. I think the principle of law enunciated Donbraye’s case above, is applicable only after the Court has performed its duty to ascertain the correctness of the uncontradicted submission before it can deem same as conceded. As could be seen on pp. 69-70, F-D of Donbraye’s case [supra], the Court of Appeal carefully considered the unopposed argument and found that it was correct before it applied the doctrine of being deemed conceded. To ascertain whether the unchallenged argument relating to the issue of failure to serve pre-action notice is correct, the Court must of necessity consider the argument against the evidence on record because, whether or not a party files address or replies to issues canvassed by his opponent in the written address, the Court is duty bound to consider the evidence relative to the issue in point before arriving at its decision – see Lucky v. State (2016) LPELR-40541 (SC) 34-35, A-A; UBA v. Mustapha (2003) LPELR-6203 (CA) 31, A; and Lawson v. Afani Continental Co. Nig. Ltd & Anor. (2001) LPELR-9155 (CA) 22, A-C. Encapsulating my reasoning herein, the Court of Appeal in Aliyu & Ors. v. Intercontinental Bank Plc & Anor. (supra), stated the correct approach in a situation like this:

“Counsel to the first Respondent did not directly respond to the arguments of the Appellants on this issue. This however does not mean that this Court must accept the arguments of the Counsel to the Appellants as gospel truth. This is because the address of Counsel is not binding on the Court. The Court must still assess the arguments…In Edonkumoh v. Mutu (1999) 9 NWLR (Pt. 620) 633, Ibiyeye, JCA stated at 652 E-F thus:

‘It is pertinent to point out that the learned counsel for the first respondent did not proffer any response to this issue in his brief of argument. It follows therefore that he has little to urge on it. The fact that there is want of response by the first respondent is no licence to accede to the arguments and submissions of learned Counsel for the respondents. Those submissions will still be meticulously considered and opined upon accordingly’”

I found that the claimant tendered Exhibit CWL(1-3), which the counsel to the defendant also relied on to argue that there was no prove that the pre-action notice was served. In tendering Exhibit CWL (1-3), CW1 laid the foundation thus:

“I made mention of a letter written by my lawyer to the University of intention to commence legal action. I submitted the letter to the University. The one I submitted to the University must be with them. I have a counterpart copy acknowledged by the University. This is the acknowledged copy.”

The document was admitted and marked Exhibit CWL (1-3): the (1-3) denoting that the document is of three pages. This document was admitted without objection after the learned counsel to the defendant sighted it. It is therefore strange that the counsel to the defendant would proceed in his final written address to argue that, there was no proof of service of the pre-action notice of the defendant. More perplexing is the fact that, the counsel relied on the same Exhibit CWL (1-3) to anchor this argument. Maybe, the learned counsel conflated the facts of this case with the sister case: NICN/OW/58/2016 – Akpolisi Ceciliav. Abia State University [supra]; and just adapted the same final written address for both without bordering to synchronize it properly with the different facts in issue. Be that as it may, the important thing is that, Exhibit CWL (1-3) is marked as having three pages. This is by the pages containing writings. The document is ordinarily a two-page letter typed on the front pages alone, but the endorsement or acknowledgment in issue is contained on the back-page of the second page of the letter, making the third page. The back-page of the first page is totally blank. That is why the document was marked Exhibit CWL (1-3) to denote the fact that the document has three pages of writings, discounting the blank back-page of the first page. The third page on which something is written [the back-page of page 2] clearly stated in blue biro that one Ekezie Jacinter (Mrs), a Chief Typist, collected the document on 18/8/16 at 11.32 a.m and signed for it. To my mind, it is abundantly clear that the pre-action notice, by this, has been served.

The learned counsel to the defendant did not challenge the authenticity of the endorsement at the back of Exhibit CWL (1-3) at trial. Its authenticity is therefore established. In fact, his arguments showed that he was even oblivious of the existence of the endorsement or conflated it with that of the sister case, as observed earlier on. And what is more, as shown in the testimony of CW1 above, the witness stated unequivocally that the document he tendered was an acknowledged copy. And the learned counsel did not challenge the fact that Exhibit CWL (1-3)was an acknowledged copy at that point or under cross-examination. CW1 was only cross-examined on whether Exhibit CWl (1-3) was his document and he answered, “Yes. Exhibit CWL (1-3) is my document. I tendered it as my notice of intention to sue the University.” It is rather now late in the day to attempt to challenge the same document tendered and admitted clearly as an acknowledged copy without objection, now at the point of final written address. At the cross-examination of the DW1 on this issue, it was abundantly clear that the evidence given by DW1 to counter the service of the pre-action notice was first-rate hearsay evidence. DW1 did not say he was the one who was in charge of receipt of documents issued on the Vice-Chancellor. All he said was that, the solicitors to the University regularly briefed the Committee that investigated the security problem, of which he was a member. It is clear from this, that, even if the said solicitors briefed DW1 that pre-action notice was not received from the claimant[which is not even the case here],and he came to Court to repeat it, the evidence is a classical instance of hearsay.

But the truth of the matter is that DW1 did not even indicate what he was briefed about. And he accepted that he was not a clerk in the office of the Vice-Chancellor. Going by the endorsement, the pre-action notice was allegedly served in the office of the Vice-Chancellor and received therein by a named Chief Typist. CW1 did not say heserved the Committee that investigated the security problem. CW1 said he served the University; and produced evidence, indicating service at the office of the Vice-Chancellor. I wonder how DW1 could say he was in a position to give evidence on an issue, inwhich he played no role at all or on a service that allegedly took place in an office in which he was not working and the schedule of duty involved not part of his. It is clear that DW1 is just a busybody on this issue and not a witness of truth. No reasonable tribunal can give his evidence on this count the slightest probative value. He has no nexus at all to the issue of service of the pre-action notice.

And since no witness is called from the office the Vice-Chancellor to testify on this issue and it is not disputed that a person named Ekezie Jacinter (Mrs.) – Chief Typist worked in the office of the Vice-Chancellor at the material time and collected the pre-action notice in issue, the evidence of CW1 that he, not another person, served the pre-action notice, remained unassailed and worthy of been accorded the necessary probative value.CW1 did not say his lawyer or his lawyer’s servants served the pre-action notice: he said he served it. CW1 said the document was his, as affirmed under cross-examination, notwithstanding that his lawyer prepared it. It is commonsensical that, his Lawyer is, his technical agent for the purposes of franking legal/court processes, and therefore, his lawyer’s preparation of the pre-action notice in question is without reproach. The testimony of CW1 on this issue is in accord with paragraphs 13 of the Statement of Facts and paragraph 5 of the Reply.I therefore entertained no hesitation at all, in accepting CW1’s evidence on this count as true. I therefore hold that the claimant complied with the law and served the pre-action notice on the defendant.

The learned counsel to the defendant did not also raise the issue of section 37 of the ASUL on the manner of service of the pre-action notice in the final written address, but notwithstanding this, I will look at this issue because it was raised in the pleading and evidence led thereto. I am of the solid view that the legislature used the word “may” deliberately in that section in its ordinary sense, to denote discretion on the part of the person who is to serve. The word is therefore facultative since the suer is not precluded from using other viable alternatives of serving the pre-action notice or any other legal process on the defendant. It is only where no other alternative exists that the word “may” in a statute is read as denoting compulsion – see Adegbenro & Anor. v. Akintilo & Ors. (2009) LPELR-4423 (CA) 15, A-D. The word “may” as used in section 37 of the ASUL is definitely facultative and meant to make it easy for the claimant to serve by post instead of personal service often mandatorily prescribed by the rules of courts.

If, in spite of the leeway provided for the sole benefit of the claimant, the claimant takes it upon himself to go the whole hog of effecting personal service; that is his headache, so far he has served, the defendant has not suffered any injury and the provision was not made for the defendant’s benefit. The word “may” used in that section could not be read to defeat the obvious service that has been effected. The section does not impose any duty other than that, the process/pre-action notice in issue be served on the defendant. It only gives the person who is to serve it an option of service by post, instead of insisting on personal service. The person who is to serve is not thereby invested with any power to exercise but just a duty to serve the pre-action notice– see Egbo & Ors. v. Laguma & Ors. (1988) LPELR-20511 (CA) 16-21, F-Cand Rimi v. INEC (2004) LPELR-7402 (CA) 33, C-F.

More so, section 37 of the ASULmerely gives a private right in the instant case, which right could be waived by the owner of the right by choosing the more onerous means of service. The defendant suffers not injury if served personally.What is more, the claimant said he served the pre-action notice, meaning that, he personally served it. This aspect of his testimony was not shaken under cross-examination. The claimant reaffirmed his position under cross-examinationon 15/03/18 by stating that “Yes. Exhibit CWL (1-3) is my document. I tendered it as my notice of intention to sue the University.” Even without the documentary proof of service, the testimony that he served it, if he is not cross-examined on it, might be accepted as evidence of the service. I therefore hold that, the claimant has issued and served pre-action notice dictated by section 36 of ASUL and in accordance with section 37 of the ASUL in the means adopted to serve the pre-action notice in question. So, in effect, issue 1 is resolved in favour of the claimant and against the defendant. The objection to the competence of the action on account of failure to serve pre-action notice is hereby dismissed as totally lacking in merit. I shall now move to issue 2.

ISSUE 2:

WHETHER THE EMPLOYMENT OF THE CLAIMANT WAS LAWFULLY DETERMINED IN ACCORDANCE THE WITH THE RELEVANT LAWS AND CONDITIONS OF SERVICE?

There are three questions to be answered under this issue. They are:

Which conditions of service are applicable to the employment in issue?
Does these conditions of service have statutory flavour? And
If the answer to 2 is in the affirmative, was the employment rightly determined?

The first question to be answered here is:which conditions of service are applicable to the employment in issue? It is after this that the questions of whether or not these conditions of service have statutory flavour and whether the employment was lawfully or rightfully determined, would be answered. The applicable conditions of service were surprisingly made an issue in the instant case. The contention of the learned counsel to the defendant is that, the applicable conditions of service would be that referred to in the letter of appointment, which is the bedrock of the contract between the parties. This, the learned counsel opined, must continue to guide the contract and the applicable terms and conditions of service regardless of whether or not the status of the claimant transformed by reason of attaining the rank of senior officer by dint of promotions, unless and until another letter of appointment was issued incorporating another conditions of appointment.The learned counsel to the defendant relied on paragraph 2(b) of the letter of appointment, which specified that the employment of the claimant would be governed by the conditions of service of junior staff. The learned counsel to the claimant, on the other hand, opined contrariwise, arguing that, the attainment of the rank of senior staff transmuted the appointment from the conditions of service applicable to junior staff, as contained in the letter of appointment, to that of the conditions of service attached to senior staff, regardless of non-issuance of another letter of appointment reflecting this. The learned counsel to the claimant relied on paragraph 2(a) of the letter of appointment, which subjected the appointment to ASUL and statutes made thereunder and the conditions of service of junior staff.

I hold the very firm view that the position taken by the learned counsel to the defendant is wrong in the extreme and cannot be supported by logic, reason, employment custom and law. I am strongly persuaded of the rightness of the position adopted by the learned counsel to the claimant. Let me now justify my view with cogent reasons supported by logic and law. First, the reliance placed on Idoniboye-Obu’s case by the learned counsel to the defendant as supportive of the fact that, in spite of the fact that, the plaintiff therein was promoted from junior rank to senior rank, his employment was held to be rightly terminated on the basis of the original contract between the parties, irrespective of the senior rank attained, is most unfortunately, a misrepresentation of the facts of the case. RatherIdoniboye-Obu’s case supports the arguments of the claimant. What happened in that case was that, the conditions of service applicable to the very rank at which the plaintiff therein was sacked, was applied. Issue of the applicable conditions of service or the need to issue another letter of appointment did not arise. The NNPC Board in that case did not make the regulations in question mandatory, as reciprocal rights of termination were granted both parties with notice or payment in lieu thereof.

The simple issue that arose in the case was, giventhese conditions of service, waswhether Idoniboye-Obu’semployment was rightly terminated, and the Supreme Court held that, since the employment had no statutory flavour, it was rightly terminated. Whereas, impliedly conceded in the instant case, is that, ordinarily, the RGCSSS is applicable to senior staff in the defendant’s service, but would only not apply to the claimant in the instant case, because,another letter of appointment was not issued to reflect that, by the promotion of the claimant herein to the rank of senior staff, he became entitled to the conditions of service of senior staff. If the logic of Idoniboye-Obu’s case is applied, then, without much ado, the RGCSSS would apply to the claimant’s case as canvassed by the counsel to the claimant: conditions of service of senior staff [RGCSSS] are applicable to the claimant who is a senior staff.

Besides, logic and the economy of labour presuppose that, when a person is promoted, s/he enjoys the perquisites of the new rank attained and the burdens imposed by that attainment, otherwise, there would be no incentive to aspire to be promoted. The argument of the learned counsel to the defendant would amount to saying you are promoted but continued to enjoy only the perquisites of the rank from which you have been promoted, but takes on the burdens of the new rank attained – that is, promotion is all about punishment totally devoid of incentives. This proposition is utterly preposterous and totally against the most basic economic principle of labour whereby incentive [benefit] is regarded as the unseen hand that drives economic activities and the reason why human beings would work without coercion – see Wealth of Nations by Adam Smith. If the claimant is made to know that his promotion to the rank of senior staff is only in name and burdens, but totally devoid of the perquisites attached to those recruited on senior staff rank, inclusive of the conditions of service, definitely, he would never have striven to attain a rank that would only give him more burdens without corresponding security of tenure, more so, when the counsel to the defendant impliedly conceded that, different conditions of service apply to senior staff in the defendant.

In any case, the law gives parties to contract the right to modify their contract as they deem fit and in doing this, it does not necessarily mean that it must be in writing alone simply because the original contract itself was written. The law recognizes that, this could be done orally, in writing and by conduct or by a combination of the three – see Elephant Investment Limited v. Fijabi (2015) LPELR-24732 (CA) 50-52, B-B and Babagana v. Lantewa (2013) LPELR-22787 (CA) 23, A-C. Common sense, labour and employment relations practice dictate that, an employee is promoted with the full intents that he enjoys all the perquisites and burdens of the new rank to which he is promoted without the need to even spell these out in the letter of promotion. These would logically be read into the promotion unless contrary intention is manifestly demonstrated in the promotion letter. Parts of these perquisites are the new conditions of service pertaining to the new rank.

Even if the promotion to the rank of senior staff indicates that a new letter must be issued for the claimant to enjoy the conditions of service appertaining to senior staff and this letter is not issued until the occurrence of the cause of action, whose fault is it? It is definitely the defendant’s fault, and it cannot therefore profit from its failure to issue a new letter of appointment to defeat a right to which the claimant is ordinarily entitled. The defendant would be estopped from raising such defence – see Court of Appeal in Suit No. CA/A/795/2015 – Tukur v. the Kaduna State Polytechnic & 2 Ors. [delivered 30/07/2018by the Abuja Division] where it relied on the Supreme Court in Re: Apeh (2017) 11 NWLR (Pt. 1576) 3112 and held that:

“The effect of exhibit CA2, in my view, is that it operates as estoppels by conduct, the type of estoppels contemplated by section 163 [sic], Evidence Act 2011. That is: a party who has, either by his declaration or act, caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative 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, he must accept the new legal relationship as modified by his own words or action, whether or not it is supported by any point of law, or by any consideration but only by his word or conduct…These applicants herein, represented by the 2^nd set of respondents, in view of exhibit CA2, cannot be allowed to approbate and reprobate at the same time. They are stopped by operation of exhibit CA2.”

This authority estops the defendant from challenging the fact that the claimant’s service is governed by the RGCSSS. I also notice a peculiar trait in the last letter of promotion as junior staff [Exhibit CWC] and the first letter of promotion to senior staff [Exhibit CWD]. These two letters were distinctively marked “PROMOTION: (JUNIOR STAFF)’ and ‘PROMOTION (SENIOR STAFF”) respectively amongst the entire array of letters of promotion. This deliberateness is not without purpose. It is to mark the transmutation from the junior cadre to the senior cadre because of the dichotomies in the conditions of service and status. As is evident now, the defendant has two streams of employmentcodes in its fold: one for junior staff with reciprocal rights of termination with notice or payment in lieu thereof, and the other one for senior staff without the reciprocal rightsto end the employment; and with stringent conditions of service into which is embedded the right to fair hearing before termination. The implication of these is that, termination in both streams cannot lead to the same end or consequence. The result of improper termination in both cannot be the same, as argued by the defence. It cannot be that, improper termination in both would give rise to damages measured in terms of the notice that ought to be given, otherwise, there would not have been any need to have two different conditions of service with widely differing provisions.

It is clear that,the defendant is just blowing hot and cold on this issue of the applicable conditions of service. This, I say, because, the defendant pleaded in paragraphs 7 and 16 of the Amended Statement of Defence and led evidence thereof in paragraph 18 of the witness statement on oath deposed 21/11/16 that, the appointment of the claimant was terminated pursuant to the RGCSSS. If the appointment was terminated pursuant to the RGCSSS then, it is axiomatically correct that, the defendant agreed that, the RGCSSS isthe applicable conditions of service.It cannot turn round to argue contrariwise. Thus, the arguments of the learned counsel in this wise, go beyond his brief. His brief is as contained in the Amended Statement of Defence. Counsel cannot, at the stage of final address, make a different case for the defence. A party is bound to be consistent in the case being pursued – see Jadesimi v. Okotie-Eboh &Ors. (1989) LPELR-20220 (CA), E-G. Finally on this issue, I cite CBN & Anor. v. Igwillo (2007) LPELR-835 (SC) 21-23, G-F, where, in a similar situation, the Supreme Court held that, the mere fact that,the plaintiff was originally employed on probation for two years and,a new letter of appointment was not issued to the plaintiff to reflect the subsequent status, would not negate the fact that, the appointment had been transmuted by the subsequent correspondence between the plaintiff’s former employer and the new employer wherein, the plaintiff was released by the former employer only on the condition that, he be taken on transfer of service and not, on fresh appointment. Having arrived at this juncture, I have no hesitation in holding that, the applicable conditions of service to the employment in issueare the ones contained in the RGCSSS. I now move to examine the question whether or not these conditions of service have statutory flavour.

The centerpiece of arguments on this is Idoniboye-Obu’s case. Both counsel relied heavily and mainly on the case to justify that the employment has statutory flavour and that, it does not!This is surprising. The reasons would be seen shortly. Now, in treating this sub-head, the relevant provisions of the ASUL are contained in sections 5(1)(b), (d)& (2), 27(b) & (e) and 28(2)(b).I cannot find any relevance of section 29 of ASUL referred to by the learned counsel to the claimant. I shall reproduce them verbatim for the sake of clarity and easy appreciation of the construction that would follow:

“5(1) The University shall have power –

…
to institute professorships, readerships, lecturerships and other posts and offices and make appointment thereto;
…
to provide for the discipline and welfare of members and staff of the University…

(2) The powers conferred on the University by subsection (1) of this section shall be exercisable on behalf of the University by the Council or by the Senate or in any other manner which may be authorised by statute.” [Underline supplied for emphasis]

“27. The University may make statutes for any of the following purposes, that is to say –

(a) …

(b) specifying and regulating the powers and duties of any competent bodies of the University and regulating any other matter with the University or any of its authorities;

(c)…

(d)…

(e) generally for carrying into effect the purpose of this Law.

A statute shall not be deemed to have been made unless it has been passed –

(a) at a meeting of the Senate, by the votes of not less than two-thirds of the members present and voting; and

(b) at a meeting of the Council, by the votes of not less than two-thirds of the members present and voting.”

From the above, it is clear that,the University has the power to create offices and posts and make appointments thereto and that, these powers shall be exercised by the Council or Senate or in any other manner as provided by statutes. Statutes herein mean regulations made by the Council – see sections 2 [at regulations], 27 and 28.Section 2 says the Senate can only make regulations and not statutes. Section 5 sets out the items on which the University shall have powers and 27 sets out the purposes for which the Universityshall make statutes and section 28(b) spelt out the procedure of making statutes, indicating that, ultimately, the Council has the final stamp on statutes making. Section 2 only defined ‘regulation’ as one made by the Senate but did not define statute. Section 5(1)(d) provides directly that, the University shall have powers to provide for discipline and welfare of members and staff of the University. Section 27(b) & (e) gives the University power to make statutes specifying and regulating the powers and duties of competent bodies of the University and any other matter with the University or any of its authorities and for generally carrying into effect the purposes of the ASUL.

Section 5(2) states that, the powers conferred by section 5(1), amongst which are powers to create posts and recruit staff thereof and to provide for their discipline and welfare could be exercised in any other manner provided by statute. Statute here means subsidiary legislation. It is therefore not in doubt that Exhibit DWB [the RGCSSS] provides for recruitment,discipline and welfare of all members of senior staff of the University pursuant to section 5(1)& (2) of the ASUL and that, it was duly approved as a statute by the Council in accordance with sections 27(b) & (e) and 28(b), thereby becoming a statute of the University.Being a statute of the University, it logicallyought to be a subsidiary legislation because, that is the intendment of the provisions of the ASUL cited above.The full title of Exhibit DWB is “Abia State University, P.M.B. 2000, Uturu – Regulations Governing Conditions of Service of Senior Staff (HATISS 06-15)”, which I have shortened to RGCSSS. One thing that is clear from the long title of Exhibit DWB [RGCSSS] is that, it is specifically made and meant for senior staff of the University. The intendment is to give the University power to make subsidiary legislation or byelaw. In effect, it regulates the powers and duties of the University or its organs with respect to recruitment and discipline of its senior staff. But whether it would be accorded that status in law would depend on the examination of current position of law on when conditions of service would be deemed to assume the toga of subsidiary legislation, thereby conferring an employment with statutory flavour.

The implication is that, the junior staffers have their own different conditions of service. On this, the parties impliedly agree, otherwise, there would not have been stiff arguments on which of the two sets of conditions of service was applicable. Paragraph 2(b) of the letter of appointment made the appointment of junior staff terminable by reciprocal issuance of one-month notice or payment in lieu thereof. Both sides conceded this fact. Also conceded by both sides is that, this is not applicable to senior staff. That is, senior staff appointment is not terminable by simple reciprocal notice or payment in lieu thereof otherwise, efforts would not have been concentrated on proving whether or not the appointment of the claimant must be determined in accordance with the letter of appointment [Exhibit CWA (1-2)], which specified that the applicable conditions of service would be that of junior staff.But strangely and surprisingly, both sides also relied on Idoniboye-Obu’s caseas I earlier hinted above. And this authority isfrom the Supreme Court, the final in the hierarchy of stare decisis.

I have therefore most carefully read Idoniboye-Obu’s case and found two passages that are the sources of the contrary opinions by which both parties cited this same case as authority for their contrary propositions of law. Let me point out at this juncture that, I relied on the version of Idoniboye-Obu’s casereported in (2003) LPELR-1426 (SC) and not on the NWLR cited by learned counsel to the parties. At page 18, C-E of the lead judgment, the following ratio was laid on how to determine whenconditions of service become subsidiary legislation with statutory flavour:

“It is easy to understand from Olaniyan and Shitta-Bey that the rules and regulations which are claimed by an employee to be part of the terms and conditions of his employment capable of giving it statutory flavour and be of protection to the employee must (1) have statutory reinforcement or at any rate, be regarded as mandatory, (2) be directly applicable to the employee or persons of his cadre, (3) be seen to be intended for the protection of that employment; and (4) have been breached in the course of determining the employment; before they can be relied on to challenge the validity of that determination.” [Underline supplied for emphasis]

Later on, at pp. 54-55, A-A, in the seeming concurring judgment ofthe eminent jurist, Niki Tobi, JSC [of blessed memory] it was stated that:

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

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

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

The RGCSSS was made by the approval of the Council in its 77^th Regular meeting on 13/12/2002 and it took effect on 01/10/2002. I found Chapter 2.13 & 2.14 of the RGCSSS relevant to the tests for determining whether a subsidiary legislation has statutory flavour. Chapter 2.13(i) titled “RESIGNATION OF APPOINTMENT” provides that: “(i) A member of senior staff may resign his appointment by giving due notice or payment in lieu of notice…” Chapter 2.13(ii)-(iv) specified the lengths of the notices applicable to the different categories of senior staff. Now, Chapter2.14 titled “TERMINATION OF APPOINTMENT BY THE UNIVERSITY” provides that: “(1) The appointment of a senior member of staff on tenure may be terminated at any time for reasonable cause by Council on the recommendation of a Disciplinary Committee of Council in accordance with the provisions of these regulations.” Chapter 2.14(ii)(a)-(e) goes on to define what is meant by reasonable cause, while Chapter 2.14(iii) provides that:

“Before terminating an appointment for “reasonable cause” other than on grounds of infirmity of mind or body, the Disciplinary Committee of Council shall:

notify the member of staff concerned in writing of the grounds on which consideration is being given to the termination of his appointment;
give the member of staff concerned opportunity of replying to the grounds alleged against him.
Be allowed to appear before the Disciplinary Committee investigating his case;
Be entitled to appeal against the decision of Council through the Head of Department, Dean of College or Vice-Chancellor.”

It would be observed that from my earlier construction of the relevant provisions of ASUL that, the RGCSSS is made pursuant to sections 5(1)(b) & (d), 5(2); 27(b) & (e) and 28(1)-(3) of the ASUL. As clearly indicated on the front page of the RGCSSS, it was approved by the Council in its 77^th Meeting in accordance with section 28(2)(b) & (3) of the RGCSSS. From the purport of the relevant provisions of the RGCSSS cited and reproduced above, it would become very clear that, the RGCSSS complied entirely without any exception with all the prescriptions contained in the first ratio contained in the lead judgment in Idoniboye-Obu’s case as reproduced above. Thus, the ratio is actually the lead ratio.The RGCSSS has statutory reinforcementsin sections 5(1) & (2), 27(b) & (e) and 28(2) & (3) of the ASUL and its provisions are clearly mandatory. Unlike the position of junior staff wherein the letter of appointment stipulated that each party has reciprocal rights of termination of the appointment by mere giving of a month’s notice or payment in lieu thereof, Chapter 2.13(i), while it gives to the claimant right to resign or end his appointment by notice or payment in lieu thereof, on the other hand, Chapter 2.14(i), which contains the right of the employer to terminate, does not give the employer corresponding right, except in cases of infirmity of mind or body, which is not applicable here. Instead, it subjects the right of the employer to terminate,to rigorous tests of fair hearing and trial at a disciplinary committee before the appointment of a senior staff could be dispensed with by the defendant. Thus, these provisions are clearly mandatory.

Thus, it is clear that, the employer herein does not have the right of reciprocal termination of appointment with notice or payment in lieu thereof. This plainly makes compliance with the provisions of Chapter 2.14(ii) & (iii), which provides for fair hearing and for the grounds on which appointment of senior staff could be terminated and the need to conduct trial and observe the right to fair hearing and the rules of natural justice imperatives that,could not be disregardedfor a valid termination. What I am saying, in essence, is that, the RGCSSS rules are mandatory and thus, satisfied the first test prescribed in the ratio of the lead judgment cited above.It is also very clear that, these conditions of service are made pursuant to a principal Act [the ASUL in this case], that is, cogent nexus exist between the two; and thus, the RGCSSS have statutory reinforcements as shown earlier on,and thus, further satisfied the alternative ambit of the first prerequisite in the lead judgment. I move to the second test prescribed therein.

It is without doubt that, arising from my finding earlier on that, the claimant herein, being a senior staff, is covered by the RGCSSS that, the RGCSSS which, by its title, is made to govern the appointment, promotion and discipline of senior staff, is directly applicable to the claimant, who was a senior staff before his termination– see Exhibits CWD and CWE, which confirmed that, the claimant was a senior staff. So, the RGCSSS passed the second test. With regard to the third test, it is not in doubt that, the relevant provisions of the RGCSSS are meant to protect the employment of tenured senior staff of the defendant, amongst whom was the claimant. So, in effect, the RGCSSS passed the third test. With regard to the fourth test, we shall deferthis till after the determination of whether or not the RGCSSS have statutory flavour, because of the dichotomy introduced in Tobi’s JSC concurring ratio.

The real controversy in this case is centred actually on the ratio in the concurring judgment of Niki Tobi, JSC [supra], and particularly on the requirement that, before a supposedly subsidiary legislation could be given the toga of statutory flavour, the enactment clausemust commence with something to the following effect: “In the exercise of the powers conferred by, section 4(1) of the National Petroleum Corporation Act, 1977 as amended and all other powers enabling me in that behalf, I hereby make the following Regulations and or Conditions of Service.” The need to couch the enacting clause of conditions of service in this explicit fashion before it could be given the status of subsidiary legislation was arrived at after His Lordship Niki Tobi, JSC [supra] had earlier emphatically held that, “The regulations and or the conditions of service must be implicitly borne out from the section or sections delegating or donating the authority.”

I mark the word ‘implicitly’ because of its implication on the subsequent clause in the same ratio, which seemed to enjoin that the enacting clause must be simultaneously couched explicitly in a particular manner, which makes direct reference to the relevant section(s) of the enabling Act or Law. It would appear, with the greatest respect to the learned law lord, and in my very humble opinion that, this creates a sort internal contradiction in the ratio of His revered Lordship, Niki Tobi, JSC [of blessed memory], apart from the fact that, the need for explicitness in stating that, the subsidiary legislation is made pursuant to the enabling section of the parent statute, was not contained in the ratio of the lead judgment. The same ratio, it seemed to me, with the greatest respect, cannot prescribe implicit condition and at the same time, specify what amounts to explicit condition, thus, creating what appears to be internal contradiction in the said ratio. But be that as it may, a concurring judgment is part and parcel of the leading judgment and any additional reason given therein for agreeing with the lead judgment must be taken as filing the gap forgotten by the writer of the lead judgment – see Nwani v. Bakari & Anor. (2006) LPELR-7629 (CA) 13, A-E:

“A concurring judgment either supports, supplements or complements the lead judgment. It does not stand on its own and cannot supplant the lead judgment. A concurring judgment is, by its name and nature, an expression of agreement with the lead judgment. It can improve and enhance the quality of the lead judgment but cannot be contrary to it. Even though a separate judgment, a concurring judgment is regarded as being part and parcel of the lead judgment. The opposite of a concurring judgment is a dissenting judgment.The concurring judgment of Ogbuagu, JCA (as he then was) also struck out the notice of appeal in CA/J/247/2001 in line with the lead judgment of, My Lord, Muktar, JCA (as he then was). The aspect of the judgment being relied upon by the 1^st respondent as dismissing the appeal belongs to something else and I need not say anything about it.” [Underline supplied for emphasis]

The Supreme Court in Nwanna v. FCDA & Ors. (2004) LPELR-2102 (SC) 11-12, G-E also said this about the nature of concurring judgment:

“A concurring judgment complements, edifies and adds to the leading judgment. It could at times be an improvement of the leading judgment when the justices add to it aspects which the writer of the leading judgment did not remember to deal with. In so far as a concurring judgment performs some or all the above functions, it has equal force with or as the leading judgment in so far as the principles of stare decisis are concerned. However, a concurring judgment is not expected to deviate from the leading judgment. A concurring judgment which does its own thing in its own way outside the leading judgment is not a concurring judgment but a dissenting judgment. The mere fact that a concurring judgment mentioned in positive and correct way, what is not contained in the leading judgment does not make it wear the appellation of a dissenting judgment. In so far as what is contained there is relevant to the issues in the matter, the judgment is acceptable as a concurring judgment – Per Tobi, JSC.” [Undeline supplied for emphasis]

These rationes decidendi cited above are representatives of a host of others on the nature and effect of concurring judgment,and they all, do not make it easy to rightly place the ratio of Niki Tobi, JSC in Idoniboye-Obu’s case, as to whether or not, it supports or supplants the lead judgment by introducing a condition, absent in the lead judgment, and which makes it impossible for the lead judgment to fulfill itself when read together with the concurring judgment. It is not also easy to determine whether the concurring judgment does its own thing in its own way outside the lead judgment such that, it becomes a dissenting judgment.But from theserationes decidendion the nature and purport of concurring judgments and how to distinguish them from dissenting judgments, it appears clear that, the lead judgment must be self-fulfilling without reference to the concurring judgment. If by reference to the concurring judgment, the lead judgment, which was ordinarily self-sufficient,would no longer be self-sufficient, in the sense that, without fulfilling the extra requirement added in the concurring judgment, the lead judgment becomes incomplete, such that, one must ignore the lead judgment for the concurring judgment then, the concurring judgment would seem to have done its own thing in its own way, and thus, a dissenting judgment.

Nevertheless, it would appear from theserationes decidendi that, the bottom line is, if the concurring judgment, at the end of the day, comes to the same conclusion as the lead judgment, whatever reasons that are added by the concurring judgment must be taken as edifying the leading judgment by addition of aspects forgotten by the writer of the lead judgment. This is the crux in this case, whereby the RGCSSS satisfies all the conditions specified in the leading judgment without exception; and all those specified in the concurring judgment of Niki Tobi, JSC [supra], except for the additional requirements that the enacting clause of the supposed subsidiary legislation must be explicitly worded in a particular way, which the RGCSSS did not comply with; and that, the parent statute directly governs or regulates the employment in question.

Issue may not be made on the second, be that, the word “regulate” was introduced as an alternative to the word “govern” and ASUL satisfied the requirement of governing the employment and discipline of staff of the defendant in the instant case,by making provisions which governed the employment and discipline of staff, but does not regulate it, in the sense that, section 18 of the University of Lagos Act, after making provisions governing the employment and discipline of staff and the power to make subsidiary legislations in sections 4(1)(b) & (d), 12 and 13(1) & (2), went further in section 18, to regulate the employment and discipline of staff by making regulations thereby duplicating the regulations that are to be made in its conditions of service [a subsidiary legislation]. Whereas, the method adopted in the ASUL is that, the power to make these regulations is entirely left for the statutes [byelaws/subsidiary legislations] made by the University just like, it is done under the 1999 Constitution where sections 153, 158, 160(1) and paragraphs 11(1) & 13(c) of the Third Schedule thereof just governed the employment of civil and public servants and granted powers to make regulations thereto to the Federal Civil Service Commission and the Federal Judicial Service Commission, pursuant to which the Federal Civil Service Rules and the Federal Judicial Service Commission Regulations were made to regulate the employment and discipline of civil and public servants. In any case, the two words are often interchangeably used; and I think they must be taken in that sense.

Be that as it may, with regard to requirement that the enacting clause of the conditions of service be worded in a particular way before it could be deemed a subsidiary legislation in the ratio of His Lordship, Niki Tobi, JSC, which is the real issue at stake here, I have checked and could not find any clause in the whole of the RGCSSS which contain anything in the nature of the enacting clause as dictated by the ratio of His Lordship, Niki Tobi, JSC.I have not also found any authority of the Supreme Court, which clearly clarified the borderlines between concurring and dissenting judgments, as I have indicated above.Now, because of the hazy borderlines between the confines of concurring judgment and dissenting judgment, as discussed above, it is impossible to see my way through to resolve the status of the caveat introduced by Niki Tobi, JSC in Idoniboye-Obu’s case [supra]. And more particularly, I am mindful of the strictures imposed by the doctrine of stare decisis, especially when this relates to decisions of the apex Court. I do not want to fall foul of judicial impertinence in trying to distinguish this authority in way that leaves room for doubt.

For the above reasons,I have searched formore recent authorities of the Supreme Court, to see what the most recent approach to this thorny issue is. Fortunately, I came across Comptroller General of Customs & Ors. v. Gusau LOR (7/4/2017) at (https://www.lawonlinereport.com/) at p. 10 [no paragraph given] Musa Datijo Muhammad, JSC, in His concurring judgment, restated the law on when a subsidiary legislation would be deemed to have statutory flavour by quoting the ratio in the lead judgment ofIdoniboye-Obu’s case, [which I have earlier reproduced above] with approval,and without reference to the concurring judgment of Niki Tobi, JSC [supra]:

“In Tamunoemi Idoniboye-Obu v. Nigerian National Petroleum Corporation (2003) LPELR-1426 (SC) this Court has held that for rules and regulations to avail a plaintiff as constituting the terms and conditions of his employment capable of giving it statutory flavor and the attendant protection, the rules must be established to be:-

regarded as mandatory [sic]
directly applicable to him and persons of his cadre.
intended for the protection of the employment.
breached in the course of determining the employment.

In the case at hand, the respondent who has met all the foregoing requirements is entitled to succeed in his claim. The lower Courts’ decision in this regard is beyond reproach.” [Underling supplied for emphasis]

In the lead judgment by Ejembi Eko JSC at pp. 8-9, His Lordship said and I quote:

“It is crystal clear from the express provisions of section 153(1), and 160, read together with paragraph II of the Third Schedule of the 1999 Constitution, as amended, that the Public Service Rules are made pursuant to the powers conferred on the Federal Civil Service Commission by the Constitution…They are accordingly a bye-law of the Constitution. They have been made with the main object and intention of protecting officers, particularly those holding pensionable employment, in the Public Service of the Federation. In interpreting these Public Service Rules, I will choose the approach advocated by Nnamani, JSC in F.C.S.C. v. LAOYE…:

We should avoid a construction which would reduce the Legislation to futility and rather accept the bolder construction based on the view that the Parliament would legislate only for the purpose of bringing about an effective result.

The main object and intention of the Constitution, in vesting the Federal Civil Service Commission with the power not only to appoint persons to offices in the Federal Civil but also to make rules regarding the manner they retire, or the manner they are compulsorily retired, therefrom are clear. They are to engender in the civil servants security of tenure, which they psychologically need for patriotic and honest discharge of their duties. Where the main object and intention of a statute are clear, the Court, in its interpretative power, must give effect to those main object and intention…

This Court in Shitta-Bey v. Federal Civil Service Commission…made it clear that the Civil Service Rules (or Public Service Rules) made by the Federal Civil Service Commission, pursuant to the powers vested by the Constitution, govern conditions of service of Federal Public Servants. The Public Service Rules are not only a bye-law of the Constitution; they also have added constitutional flavour to the employment governed thereby. They take the relationship between the civil servant and the government beyond the ordinary or mere master and servant relationship.” [Underlining supplied for emphasis]

Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC added the following ratio in HisLordship’s concurring judgment at p. 11:

“An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship.”

The restatement of the law above by His Lordship, Musa Datijo Muhammad, JSC was echoed in the lead judgment of Ejembi Eko, JSC and the further concurring judgment of Kekere-Ekun, JSC – see pp. 8-9 and 11respectively, and adopted completely by the two remaining justices that sat on the panel.Thus, there is absolute internal cohesion on this ratio in the judgment. So, the ratio Muhammad, JSCis that of the Supreme Court in the instant case because, clearly, the leading judgment and all the other three justices that sat on the appeal shared the same view – see Adegoke Motors Limited v. Odesanya & Ors. (1987) LPELR-20498 (CA) 35-36, F-A, where it was held that:

“…the ratio in the judgment of a single Justice of the Supreme Court can only pass as the ratio of the Supreme Court in that case if it was expressed in the lead judgment with which a majority of the justices agree or if it appears that the majority of the Justices share the same view in their judgments even though it was not the lead judgment.”

This, being the most recent Supreme Court authority on the issue at hand and the relevant ratio adopted therein was the one contained in the lead judgment in Idoniboye-Obu’s casewithout any reference in the entire judgment to the concurring ratio of Niki Tobi, JSC [supra], it means that, there is a sort of contradiction between the most recent Supreme Court’s authority on the issue and that of Idoniboye-Obu [supra] or that, the most recent Supreme Court’s authority on the issue, at any rate, did not take cognisance of, His Lordship,Niki Tobi’s JSC [of blessed memory] ratio, and thus, it is not part of the most recent Supreme Court’s authority.

In fact, the coast was cleared completely when the Supreme Court stated clearly in the concluding portion of the ratioof His Lordship, Musa Datijo Muhammad, JSC as underlined above,that: “In the case at hand, the respondent who has met all the foregoing requirements is entitled to succeed in his claim. The lower Courts’ decision in this regard is beyond reproach.” It means this ratio is complete by itself without any further assurance. And I must observe that, this concurring ratio is totally at tune with the lead ratio on this issue. In fact, there is complete internal cohesion in the authority.The law is that, in such situation, the more recent of the two prevails. So, Comptroller General of Customs & Ors. v. Gusau [supra], which was decided in 2017, prevails over Idoniboye-Obu’s case [supra], decided in 2003– see Glaxo Smithkline Plc v. Jiya (2014) LPELR-22902 (CA) 13-14, D-C:

“…it is an established principle of law that when this Court is faced with two conflicting decisions of the Supreme Court on an issue, the Court is bound to follow the latest. This is because the Supreme Court has an inherent power to overrule itself. If the latest decision is in conflict with the earlier one, it follows that the latest decision has overruled the earlier one. See Dahiru vs. Kamale…where it was then expressed that where there are two irreconcilable decisions of the Supreme Court, the subordinate Courts are enjoined to abide by the later decision. It has been variously expressed that Court of Appeal must accept and apply loyally, the decisions of the Supreme Court and where the decisions manifestly conflict, the latter decision is binding on the Court of Appeal. The Supreme Court…stated that it is a settled principle that where there are two conflicting decisions of the House of Lords, the House cannot be bound by both decisions; it is fundamental that it is free to choose between the two decisions. In that case, and on that basis the apex Court preferred the Milangos’ case reflecting current judicial opinion in matters whether judgment sum can be given in foreign currency or judgment can be in foreign currency.” [Underling supplied for emphasis]

With the greatest respect and utmost humility, I am therefore bound by Comptroller General of Customs & Ors. v. Gusau [supra], and not by Idoniboye-Obu’s case [supra], on the vexed issue of, when conditions of service would be accorded the status of subsidiary legislation or byelaw and deemed to clothe an employment with the toga of statutory flavour. Besides, I observed that, the counsel to the defence: Theo Nkire stated clearly at the point in which Exhibit DWB was to be tendered through the witness for the defence on 23/04/18 that: “We withdraw our objection because the document is a subsidiary legislation which the Court is bound to take judicial notice of.” If the learned counsel to the defence said this at the trial, I think, it clearly amounts to inconsistency to turn round to argue against a concession already made during trial later at the stage of the final written address. Counsel is ordinarily estopped from taking this summersaulting kind of posture – see Uko v. The Liquidator, UTUK Construction and Marketting Company Limited in Liquidation & Ors. (2011) LPELR-9120 (CA) 10-11, G-A.

Let me draw attention to these salient facts. The facts of this case are quite different from those of Idoniboye-Obu’scase. In Idoniboye-Obu’scase, the conditions of service in issue actually gave both the NNPC and the plaintiff [Idoniboye-Obu] reciprocal rights to terminate the employment with notice or payment in lieu thereof. There was no transmutation of status by promotion and therefore transformation of conditions of service. Hence, the conditions of service could not in any way have had statutory flavour. So, issue of being clothed with statutory flavour did not even arise on the facts of the case. What arose was whether the employment was rightly determined and the Court held that, since it had no statutory flavour, it was rightly determined in accordance with the terms of the contract.

Whereas, in the present case, the status of the claimant transmuted from that of junior staff to senior staff; and consequently, the conditions of service transmuted from that of junior staff with reciprocal rights for both parties to terminate the employment to that of senior staff,in which this reciprocal rights were absent, in that,only the claimant has the right to exit by giving notice to the defendant while strict rules were imposed on the defendant before it could exercise the right of termination, demanding fair hearing before the defendant could lawfully terminate the employment. The reciprocity of rights to end the employment was thus lacking in the present case.In the present case, the conditions of service, apart from having statutory reinforcement as shown earlier on, were mandatory, the employer was a statutory creature, and its Council was given the power to enact statute to provide for discipline of staff and this was duly made in the RGCSSS. The conditions of service were directly applicable to the staff of the claimant’s cadre, and were made to protect their employment, and the breach of these is in contention in the instant case. So, the present case satisfied all the litmus tests of an employment clothed with statutory flavour, as specified in the most recent Supreme Court’s authority: Comptroller General of Custom & Ors. v. Gusau [supra].

One other thing to be noted is that, the ASUL actually specified how statutes must be made by the University under section 28(2) & (3). And the RGCSSS completely complied with these and stated compliance by saying the 77^th Meeting of the Council approved the RGCSSS. Thus, clear compliance with the provisions of the legislature is manifested and it would amount to thwarting the intention of the legislature to now read into the ASUL a requirement, which is not contained therein after ascertainment of complete compliance with what it specifically required to pass the test of subsidiary legislation. It must be noted that, in making the Civil Service Rules and the Federal Judicial Service Commission Regulations, the 1999 Constitution in its sections 153, 158, 160(1) and paragraphs 11(1) & 13(c) of the Third Schedule to the Constitutiondid not provide for the procedure of making these byelaws apart from just stating that the Civil Service Rules must be approved by the President and neither do both the Civil Service Rules nor the Federal Judicial Service Commission Regulations contain any assurance that they were approved accordingly, yet they are given judicial recognition as byelaws. I think what is really important is the intention of the legislature as could be gathered from the parent statute, the nexus between the parent statute and the conditions of service and the fact that, the conditions of service are mandatory, specifically made for the benefit of the employment in issue and applicable to the claimant in that class, and which breach is in contention. The specification that a particular technical language be used is not a requirement as borne out in Comptroller General of Customs & Ors. v. Gusua [supra].

The mere non-mention of the specific section pursuant to which the conditions of service were made does not take away the potency of the enabling sections of the parent statute, just like, the failure to mention the specific section of a statute under which a right is being claimed would not debar the claimant from getting such right merely for that reason, if the court finds that he is truly entitled to such right. This must be so because, the enabling statute did not make such requirement a condition precedent for the validity of the subsidiary legislation made pursuant to it.To hold otherwise, is to thwart the manifest intention of the legislature. Once the enabling sections of the parent statute are cited to the court and the court finds that true nexus exists between it and the conditions of service [subsidiary legislation], it is obliged to give effect to both the enabling statute and the subsidiary legislation, as it is not the law that before an act is done or a power is exercised, the exerciser must first state under which section of the enabling statute he is acting to make the act valid. The law is that, once there is a challenge to the exercise of the power, the exerciser must be able to point to the correct provision of the statute that covers his action; and once the enabling section is pointed out, and the court finds that, this is true, it must affirm the validity of the exercise of power in issue.

Assuming the enacting clause of a subsidiary legislation cites the wrong section of the parent statute, as the section pursuant to which it was made, but the parent statute actually gives power to make it in another section, would the court turn it down merely for that error when the correct section is subsequently cited before it or would it approve of a subsidiary legislation which enacting clause is correctly fashioned but without any provisions of the parent statute enabling it in that behalf, simply because the enabling clause was correctly fashioned? I think the important thing is that, a clear nexus, whether explicit or implicit, must be seen between a parent statute and a subsidiary legislation made pursuant to it, for the subsidiary legislation to have effect and not that, the enacting clause of the subsidiary legislation must be fashioned in a particular way or that, it directly mentions the enabling section of the parent statute. To insist on this rather technical point, when it is clear that a nexus exists between the parent statute and the subsidiary legislation, is to deliberately ignore giving effect to the manifest intention of the legislature and the provisions of statutes.And this would be utterly wrong because of the fact that, the law is presumed to be in the bosom of a judge, and for that reason, a judge is expected to know the law and apply it even if not cited, not to talk of when it is cited and ignored.

Once a provision of a law is cited and the court finds that it actually granted the right or power attributed to it or that certain steps or things are done or carried out in accordance with its dictates, the court is duty bound to give effect to the law in obedience to carrying out the intention of the legislature. It cannot ignore the law simply because the subsidiary legislation failed to state in its enacting clause the particular section of the parent law pursuant to which it was made when the parent law did not say failure in this respect would invalidate the subsidiary legislation.Since no provisions of the ASUL mandated that particular phrase be used when enacting a subsidiary legislation pursuant to it or that, the particular sections enabling the subsidiary legislation to be made be specifically mentioned, it would be wrong to import such technical points to thwart the clear intention of the ASUL and the RGCSSS.

Having earlier found that the claimant’s conditions of service [RGCSSS] satisfied all the prerequisites prescribed in the ratio in the lead judgment in Idoniboye-Obu’s case and which ratio is adopted completely with approval and restated in clear terms in Comptroller General of Customs & Ors. v. Gusau [supra], it follows that, the RGCSSSis a subsidiary legislation/byelaw made pursuant to the ASUL andtherefore conferred statutory flavour on the employment of the claimant in the instant case; and I so hold. Having answered the second question under issue 2 in favour of the claimant, I shall move to the third question, which completes the tripod of posers digested from issue 2.

But before going on to answer this third poser, let me treat a preliminary point, which occurred in the oral adumbration and expatiation of the learned counsel to the defendant – this is with respect to the argument that the claimant tendered incomplete[three-page] RGCSSS. This ordinarily introduced new issue not canvassed in the final written address and ought not to be entertained, but I will entertain it for two reasons – because the said three-page RGCSSS,which was actually objected at the point of being tendered and marked rejected, ought not to be re-tendered ordinarily; and in the second place because, the complete RGCSSS was later tendered via the witness of the defence under cross-examination on 23/04/18 with the consent of the counsel to the defencethat, it was a subsidiary legislation and accordingly marked as Exhibit DWB. The effect of the subsequent arguments that Exhibit DWB was not a subsidiary legislation, would have meant, were the argument to be right that, the complete RGCSSS retendered be expunged from record, having earlier been tendered in incomplete form and rejected. It would not therefore be tenderable again. I have held that it is a subsidiary legislation, which the Court is bound to take judicial notice of. It means the lawyer could ordinarily tender it fromthe Bar without any ado.The Court may also suo motu search it out by itself once cited as subsidiary legislation and agreed to by the other side. I am therefore of the solid opinion that, Exhibit DWB is rightly admitted,since it is a subsidiary legislation, which the lawyer could even tender from the Bar and which the Court could suo motu search out by itself and make use of once cited before it as subsidiary legislation and agreed to by the other side, as is the case here – see Haruna v. University of Agriculture, Makurdi & Anor [supra] 38-39, E-E. I shall now move to the third poser proper.

The third poser to be answered, to totally resolve issue 2 is: Was the employment lawfully determined? Here, essentially what is to be done, is to examine whether the employment was determined in accordance with the statutory provisions governing discipline of staff of the claimant’s cadre. The claimant pleaded at paragraph 10 of his Statement of Claim that disciplinary procedure governing his appointment is as provided in Chapter 2.14 of the RGCSSS and that,the right to fair hearing therein guaranteed was flagrantly breached in his termination. The defendant responded to this in paragraphs 4-10 of its Amended Statement of Defence. There was no effective denial of the averments made by the claimant in paragraph 10 of the Statement of Facts. Instead, the defence merely whipped up sentiments that claimant was negligent in the discharge of his duties leading to gruesome murders and that, a Special Committee of Security was set up in accordance with section 5(1) & (2) of the ASUL and that, the meetings of this Special Committee were held in public to which witnesses, including the claimant and other staff of the Security Department, were called. By what means the claimant was summoned to the meeting, was not stated.

I think ordinarily, where a statute or subsidiary legislation directs that an act must be done in an particular way; and there is denial of its been done in the specified manner, the person who is burdened with the duty to do the act must prove proper compliance with the law and the means by which this was done. And what is more, DW1 under cross-examination admitted in unequivocal words that “Yes, the claimant was not invited throughout the sitting of the Security Committee.” Thus, this piece of evidence is at variance with the pleadings of the defence as stated above, and therefore go to no issue –Yusuf v. Adegoke & Anor. (2007) LPELR-3534 (SC) 26, B-C. Besides, this piece of evidence elicited under cross-examination supports the case of the claimant that he was not invited to the meetings of the Special Committee on Security, on which basis, his appointment was determined; and therefore, becomes part of the evidence of the claimant – see Civil Design Construction Nig. Ltd v. SCOA Nigeria Limited (2007) LPELR-870 (SC) 16, E-F.This piece of evidence also clearly negates the depositions contained in paragraph 11 of the witness deposition of DW1 made 21/11/2016 that, the claimant was invited to the meeting of the said Committee. A case of serious material contradiction, by asserting the direct opposite of the evidence-in-chief at cross-examination, is established. It means the witness is not worthy of probative value – see Anambra State Government & Anor v. Gemex International Ltd (2011) LPELR-19733 (CA) 45, B-C.It follows that the defence did not have any evidence in support of its averments on this issue, whereas, the evidence of the claimant stands unchallenged on this issue.

The learned counsel to the defendant has cited section 5(1) & (2) of the ASUL as giving it power to inaugurate the Special Committee on Security and pursuant to which the appointment of the claimant was determined. I cannot find any semblance of what is attributed to this section when I construed theprovisions. Even if this section gives the University the power to set up the Committee, it does not preclude it from following the prescribed method by which appointment of a senior staff could be terminated. The Committee would do its work and make recommendations while the procedure prescribed for termination would subsequently be followed to terminate the appointment of those indicted by the said Committee, even if it means setting up another Committee. More so, it is abundantly clear that, the claimant was not invited and did not appear before the said Committee/Panel. In any case, section 5(1)(d) actually supports the case of the claimant. It gives the University power to provide for the discipline and welfare of members and staff of the University, which power the University exercised vide its Council under sections 27(b) & (e) and 28(1) & (2) of the ASUL by making the RGCSSS.

The Committee set up on Security did not provide for discipline and welfare of staff of the University as prescribed under section 5(1)(d). It rather investigated causes of security breakdown in the University and made recommendations thereto – see Exhibit DWA (1-16). To provide for discipline and welfare, is to make rules and regulations prescribing offences and punishments thereof and, how such offences are to be tried, and how to award punishments thereto.This is exactly what Exhibit DWB [the RGCSSS] did by specifying offences, the punishments and the procedure of trial. Thus, section 5(1)(d) of the ASUL is totally irrelevant to the case of the defendant and supports the case of the claimant.The argument that, section 5(1) & (2) gives the defendant the power to terminate the appointment of the claimant, is even inconsistent with the concessionduly made by the defendant in its Amended Statement of Defence [paragraphs 7 and 16 thereof] and evidence adduced in the witness deposition made 21/11/16 [paragraph 18 thereof] and adopted at trial, which were to the effect that, the termination was done in accordance with the laws and the RGCSSS.

Though, in both the Amended Statement of Defence and the witness deposition, the defendant did not state the exact provisions of the RGCSSS that gave it the power to terminate the claimant in the manner it did and neither was this stated in the final written address, the fact remains that, it was conceded that, for the termination to be lawful, it must be done via the RGCSSS. I cannot find any contradiction between the RGCSSS and section 5(1) & (2) cited by the counsel to the defendant or any other provisions of the ASUL; and the counsel to the defendant did not point out any either. Rather, I found that the provisions of the RGCSSS were actually complementary to, and are,in furtherance of the intendment of the provisions of the ASUL and therefore, have the same effect as the ASUL. That is the legal consequence of the nexus between parent and subsidiary legislations. A subsidiary legislation duly made and which is not in conflict with the principal statute acquires the force of the parent statute: that is, it becomes one with the parent statute.The claimant had shown in his pleadings and evidence before the Court that Chapter 2.14(iii) was breached in terminating his appointment. The defence has no answer to this. The defendant’s counsel’s sudden abandonment of the RGCSSS at the address stage, in justifying the termination of appointment of the claimant and the placement of reliance only on section 5(1) & (2) of the ASUL alone,contrary to the Amended Statement of Defence, is an abandonment of the case of the defence and embarkment on a voyage of his own. Counsel cannot go beyond his brief as contained in the pleadings and evidence adduced at trial. It also means that, thelearned counsel was merely approbating and reprobating on the need to comply with the RGCSSS in terminating the appointment of the claimant, and the law does not allow this – Jadesimi v. Okotie-Eboh [supra]. The RGCSSS is actually complementary to section 5(1)(d), without which,section 5(1)(d) could not fulfill itself.Chapter 2.14(iii) of the RGCSSS provides that:

“Before terminating an appointment for “reasonable cause” other than on grounds of infirmity of mind or body,the Disciplinary Committee of Council shall:

notify the member of staff concerned in writing of the grounds on which consideration is being given to the termination of his appointment; and
give the member of staff concerned opportunity of replying to the grounds alleged against him.
Be allowed to appear before the Disciplinary Committee investigating his case;
Be entitled to appeal against the decision of Council through the Head of Department, Dean of College or Vice-Chancellor.” [Underline supplied for emphasis]

The case of the claimant fell under “reasonable cause”. None of the above mandatory provisions was observed in the determination of the appointment of the claimant. Admission of the fact that the claimant was not invited to the meeting of the Special Committee on Security corresponds to a total negation of all the mandatory preconditions specified above. Since no evidence of the specific provision of the RGCSSS was adduced or cited to show that the defendant has the power to terminate the appointment of the claimant contrary to Chapter 2.14(iii) of the RGCSSS, and the defendant pleaded and led evidence that, the termination was done in accordance with the RGCSSS, it follows that, the defendant conceded that it didn’t comply with the RGCSSS in terminating the appointment. The defendant could not have pleaded and led evidence that the termination was done pursuant to the RGCSSS, and yet be unable to point out the very provision of the RGCSSS relied upon to say this. And Exhibit DWA (1-16) confirms the fact that, the claimant was not heard before his appointment was determined, as his appearance was not in any place recorded.

It is also of importance to note that, Chapter 2.14(iii) specified that the claimant must be communicated in writing of the grounds upon which it is proposed to remove him and given the opportunity of responding to these: this simply means the claimant must be issued query and he must be given opportunity to respond to this query in writing too. I cannot find where these were complied with. I cannot find where Disciplinary Committee was set up in accordance with Chapter 2.14(iii)(c) before which the claimant was given opportunity to appear. I cannot also find where the claimant appeared before any disciplinary committee in accordance with Chapter 2.14(iii)(c) of the RGCSSS. Thus, what this shows is that, even if the claimant had appeared before the Special Committee on Security, that appearance alone without more, would not have met the requirements of Chapter 2.14(iii)(c) of the RGCSSS. And the claimant was not even given the opportunity to appear before any committee.

Having held that the RGCSSS regulates the employment of the claimant and that the employment has statutory flavour and, having also found that the mandatory provisions of Chapter 2.14(iii) were breached in the termination of the appointment; it follows that, the employment of the claimant was unlawfully determined. Consequently, issue 2 is resolved in favour of the claimant and against the defendant. Since the two issues formulated for the determination of this case are resolved in favour of the claimant and against the defendant, it logically and legally follows that, the case of the claimant succeeds and the defence fails.The next thing is therefore to examine the appropriate relief to be granted. But before I go on to consider the reliefs to be granted, let me first settle the issue of the counterclaim.

THE COUNTERCLAIM

The defendant counterclaimed in paragraphs 21 and 22 of the Amended Statement of Defence, claiming the sum of N2,000,000.00 as the cost of this action. These, the claimant traversed in paragraphs 8-11 of the Reply and Defence to Counterclaim. The evidence adduced by the defendant in proof of its counterclaim are in two streams of the witness depositions of 21^st November 2016 and additional witness deposition of 8^th December 2017, both of which were adopted in this Court on the 15/03/18. At paragraph 23 of the first, a sum of N10,000,000.00 was claimed whereas, in paragraph 5 of the second, the defendant claimed N2,000,000.00 as the cost of the same suit without any explanation. These pieces of evidence are materially contradictory and could therefore not be given any probative value – Anambra State Government & Anor v. Gemex International Ltd [supra]. Besides, the claim for cost of litigation is in the nature of special damages, which the law requires to be strictly proved.

There is no such proof in the instant case. No evidence of payment and receipt of any of the two different sums was tendered nor the heads of the claim shown even in the pleadings. Thus, it is not grantable –Egon & Ors. v. Eno & Anor. (2007) LPELR-3958 (CA) 26-27, E-A. Finally, it needs be reiterated that, judicial policy in this nation does not support the sort of claim for money allegedly paid to counsel by the party that lose in a lawsuit – Guinness Nigeria Plc v. Nwoke (2000) LPELR-6845 (CA) 23-24, B-B; and Nwanji v. Coastal Services Ltd (2004) LPELR-2106 (SC) 18, B-E.And what is more, the claimant actually won this case, and cannot therefore be asked to pay this cost or any cost, except in exceptional circumstance, which is not applicable here.

Courts in Nigeria only orders realistic cost relative to the costs of processes filed, transportation for prosecution of the case but not the cost of hiring a lawyer, which, as it is, is at the whimsical discretion of the party that hires and not that of the party that is being requested to pay.As it is in this case, the claimant/defendant to counterclaim is not the loser in this case and cannot therefore be made to pay this cost, even if it were lawful in Nigeria. I also observed that the defendant/counterclaimant did not address the issue of the counterclaim in its final written address. The implication is that it is deemed abandoned –see Society Bic S.A. & Ors. v. Charzin Industries Limited (2014) LPELR-22256 (SC) 56, B-E. On the whole, the counterclaim fails and it is hereby dismissed.

CONCLUSION

Having held that the case of the claimant succeeds, it follows that claimant must be entitled to some reliefs. Where, in an employment clothed with statutory flavour, a court holds that the employment was unlawfully determined; the claimant must be entitled to reinstatement and payment of arrears of salaries from the date of the unlawful termination till actual reinstatement, as it is deemed that he never left service – New Nigeria Newspapers Limited v. Atoyebi (2013) LPELR-21489 (CA) 41, A-B. All the reliefs claimed by the claimant herein are intertwined with the right to reinstatement. I hereby grant all the 4 reliefs claimed by the claimantas per his Statement of Facts wrongly titled “Statement of ‘Claim” on the authority of Comptroller General of Customs & Ors. v. Gusau [supra] p. 9, para. 4. For the avoidance of doubt:

It is hereby declared that the defendant’s termination of the appointment of the claimant as Senior Security Officer in the Security Department of the defendant vide the letter dated 28^th June, 2016 is illegal, and unlawful.
The said termination is hereby set aside for being illegal and unlawful.
The claimant is hereby reinstatedto his said position as Senior Security Officer in the Security Department of the Abia State University.
The defendant is consequently hereby ordered to pay over to the Claimant all the entitlements due to him by virtue of her said position including all salaries and allowances owed him from the said 28^th day of June, 2016 till compliance with this judgment.

Cost is assessed at N100,000.00 [One Hundred Thousand Naira only] in favour of the claimant and against the defendant. The defendant is hereby given a grace of 30 days from the date of this judgment within which to comply with the judgment of the Court.This is the judgment of the Court and it is accordingly entered.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Judge

NATIONAL INDUSTRIAL COURT OF NIGERIA