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National Industrial Court

MR. OGIUGO HENRY USUNOBUN VS EDO STATE INSTITUTE OF TECHNOLOGY  AND MANAGEMENT, USEN.

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

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

 

DATE: 29TH JANUARY, 2019      

         

SUIT NO: NICN/BEN/06/2016

 

BETWEEN

  1. OGIUGO HENRY USUNOBUN

CLAIMANT

 

AND

  1. EDO STATE INSTITUTE OF TECHNOLOGY

 AND MANAGEMENT, USEN.

  1. THE ACTING RECTOR, EDO STATE INSTITUTE
    OF TECHNOLOGY AND MANAGEMENT, USEN.
  2. THE REGISTRAR, EDO STATE INSTITUTE

OF TECHNOLOGY AND MANAGEMENT, USEN

  1. HON. COMMISSIONER FOR EDUCATION

MINISTRY OF EDUCATION, EDO STATE ………….DEFENDANT

 

REPRESENATATION

V.N Eluma for the claimant

Theresa Eghe –Abe (Mrs) Assistant Director (Edo State Ministry of Justice)with her I.O Kadiri SSC (Edo Ministry of Justice) for the defendants

 

JUDGMENT

It is the case of the claimant that he was offered a teaching appointment by the Post Primary Education Board vide a letter dated 1st of August, 2002. That by a letter dated 23rd of September, 2008 he was transferred to the service of the 1st defendant. He averred that upon his transfer to the 1st defendant, he was posted to establish and open the department of banking and finance of the 1st defendant vide a circular letter dated 6th of November, 2002 and was further offered appointment by the governing council of the 1st defendant as  an Assistant Lecturer by a letter dated 8th of June, 2005. He pleaded that by a letter from the 1st defendant dated 15th of June, 2005 the defendant approved his appointment as the functioning Head of Department of Banking and Finance with immediate effect and further approved by the 2nd defendant by a letter dated 12th of December, 2006 as the Head of Department of banking and finance. That he was upgraded to the rank of Lecturer I with effect from 1st of October, 2009 and to the rank of Senior Lecturer by a letter dated 12th of November, 2013 and with effect from 1st of October, 2012. He pleaded that he was given Tertiary Education Trust Fund (TETFUND) assistance in the sum of N1, 050,000.00 instead of N1, 500,000.00 which he protested but he was told that the payment schedule was the 1st defendant’s personal property and not meant to be seen.

He averred that he is not up to the statutory compulsory retirement age of 65 even though he has been illegally replaced by the defendants with another employee. That the 1st, 2nd and 3rd defendants are still owing him promotional arrears from October, 2012 to November, 2012 totaling N526,370.74 at N37,599.91 monthly and his arrears of salary and allowance from August, 2015 till date at N222,680.99. That by a letter dated 3rd of March, 2016 the 1st defendant admitted that the governing council in compliance with the Federal Government law approved 65years retirement age for both academic and non academic staff of the 1st defendant but that the 4th defendant warned them to desist from implementing the 65years retirement age approved by the Federal Government since it has not been domesticated in Edo State hence not binding on the 1st defendant. He averred that the 1st defendant requested him to return all salaries and allowances paid to him after August, 2014 because he ought to have retired from the service of the 1st defendantat the age of 60. That he was by a letter dated 16th of March, 2016 asked to proceed on retirement with effect from August, 2014 when he attains the age of 60 years contrary to the Harmonization Act, of 2012 which provides that the retirement age of academic staff of all polytechnics and colleges of education in Nigeria is 65years and not 60 years hence he is still in service and employ of the 1st defendant.

It is in the light of the above; the claimant filed a general complaint on the 19th of April, 2016 against the defendants claiming the following reliefs;

  1. A Declaration that the compulsory retirement age of academic staff of the 1st defendant like every other polytechnics and colleges of education in Nigeria is 65 years.
  2. A Declaration that the 1stdefendant’s letters dated 2nd March, and 3rd March, 2016 are null and void and of no effect whatsoever as the claimant still remains in the employment of the 1st defendant.
  3. A Declaration that the 1st, 2nd and 3rd defendants pay the claimant’s salary and allowances from August, 2015 till date at N222, 680.99 per month and the claimant promotional arrears from October, 2012 to November, 2013 totaling N526,370.74 at N37,597.91 monthly.
  4. A Declaration that the 1st, 2nd and 3rddefendants pay the claimant balance sum of N450,000 TETFUND grant withheld by the aforesaid defendants meant for PHD programme of the claimant.
  5. An order restraining the 1st, 2nd, 3rd and 4th defendants and/or any of their officials, agent or privies from taking any step calculated to undermine the claimant’s position in the 1st defendant or capable of jeopardizing the claimant’s position or status in the 1st defendant.
  6. AN AWARD of the cost of instituting and prosecuting this action on indemnity basis against the 1st, 2nd and 3rd defendant’s jointly and severally

OR ALTERNATIVELY.

  1. N500,000,000 (Five Hundred Million Naira) damages against the 1st, 2nd and 3rd defendants for breach of contract.

The defendants on the other hand filed a further amended Statement of defence on the 13th March 2018, and denied each and every fact contained in the claimant’s statement facts and averred that they had paid the claimant’s TETFUND even before the initiation of this suit. That the 1st defendants regulation Governing Condition of Service of Staff at Chapter 10 Section 10.1 Subsection (b), provides that the compulsory age of retirement of any staff of the 1st defendant shall be 60 years. They admitted that the Federal Government in May, 2012 through the National Assembly amended and harmonized the existing law on retirement age of Polytechnics and colleges of Education to be 65 years and abrogated 35 years of service but the 1stdefendant is yet to be ratified and domesticated into corpus of the Edo State Laws by the relevant constitutional institution of Edo State House of Assembly. They pleaded that in ensuring due compliance to the said directive, the permanent secretary of the Ministry of Education of Education Mrs. G.O Idahor vide her letter with Ref. ESP/GEN/67/61 and dated 17th July, 2015 on page (iii) which reads that “the 65 years for academic and non academic staff should be put on hold as Federal Government law on same has not been ratified and domesticated in Edo State. Until this is done, the law cannot be implemented in the state”. That sequel to the directives, those who have attained the mandatory age of 60 years were asked to retire and their salaries were put on hold and  that the claimant ought to have retired not later than the 30th day of September, 2014. They denied that they owed the claimant salaries and allowances for the period claimedand admitted that the claimant’s TETFUND has been approved and accredited in the sum of N1, 050,000.000 to his account by the 1st defendant. The defendants pleaded that the 2nd-4th defendants not been natural or juristic persons are not capable of suing or being sued and as such no reasonable cause of action has been disclosed against the defendants. Theyalsoaverred that the claimant commenced this suit without serving the 1st defendant a pre-action notice of intention to file this suit and they urged the Court to dismiss this suit with substantial cost.

The defendants by an amended statement of Counterclaim averred that the claimant had received his entire total sum of one year salary vides payment made to him by the defendants from September, 2014 to August, 2015 before he was made to retire and it is upon this that the claim as follows:

  1. That the defendant claim the refund N2,672,171,88k (Two Million Six Hundred and Seventy Two Thousand, One Hundred and Seventy-One Thousand Naira, Eighty Eight Kobo) being the sum of one year salary paid to the claimant by the 1st defendant from August, 2014 when he ought to have retired to July, 2015, when his salary was eventually stopped by the 1st defendant at N222,680.99K (Two Hundred and Twenty-Two Thousand Six Hundred and Eighty Naira, Ninety-nine kobo) per month.

During trial, the Claimant testified for himself as CW, he adopted his sworn depositions on oath as his evidence in the case; he also tendered some documents which were admitted in evidence and marked Exhibit O-O13. The Defendants also testified through One Mr. Ayo Simire, he adopted his sworn deposition on oath as their evidence in the case and tendered some documents which were admitted by the Court as Exhibits CS-CS5.

Parties caused their written address to be filed in compliance with the rules of this Court; the Defendant filed its final written address on the 24th of April, 2018 and canvassed two issues for the determination of the Court; the claimant on the other hand filled his written address on the 21st of May, 2018 and distilled a sole issue. Counsel on both divide canvassed some issues, salient portions of which would be referred to in the course of this judgment.

Having carefully examined the processes filed by parties and all accompanying documents, the testimonies of witnesses in the case and arguments of both counsel as distilled in their respective written addresses.It is clear that the issues that will determine this suit is;

  1. Whether or not the claimant has proven his suit to be entitled to his reliefs.
  2. Whether or not the defendant/counterclaimant are entitled to their reliefs;

Before delving into the crux of this suit, it is imperative to consider some preliminary issues raised by learned counsel on both side in their written submissions. It is also the averment of the defendants by paragraph 13(a-d)  of their amended statement of defence and counter claim, also paragraph 15 (a-d) of the Defence Witness deposition on oath that the 2nd -4th  defendant  are  not natural and juristic person capable of being sued  and consequently no reasonable cause of action can be disclosed against them and their names are liable to be struck out for not being proper and juristic parties to this suit. Although the Defence Counsel did not buttress this position in their written submission filed before this Court and in the same vein the claimant failed to discuss same in his final address. The law is trite that it is the duty of the Court to make pronouncement on every issue properly raised before it for determination before arriving at a decision, failure or neglect to such issues would amount to miscarriage of justice, See Tijani Amoo &Ors v. Alhaji Busari Albi & Ors [2003] 12 NWLR (Pt 823) 537, Ogene-Ovunwo & Anor v. Iheanyichukwu Woko & Ors [2011] LPELR (Pt 2841) SC, First Bank  & Anor  v FCMB [2016] LPLR-42217 (CA).  This issue is a jurisdictional issue which the Court cannot afford to overlook, it is a trite principle that the ever recurring vexed issue of jurisdiction is not merely important but very fundamental, hence ought to be accorded the highest degree of consideration and priority over and above any issue. This is because where the Court embarks upon a decision in any given matter without the requisite jurisdiction; the decision reached is null and void and liable to be set aside, See the cases of Okeke v. Secruities and Exchange Commission & Ors [2013] LPELR-20355 (CA), A.G Federation v. Guardian Newspapers Ltd [1999] 9 NWLR (Pt. 618) 187, SPDC (Nig) Ltd v. Sirpt-Alusteel Const. Ltd [2007] 1 NWLR (Pt 1067) 128at 157.  In this suit, the argumentof the defendants that the 2nd-4th defendants are  not natural and juristic person capable of being sued  is an issue that borders on the jurisdictional of the Court and ought to be dispensed with at the earliest opportunity. The Court in the case of Akas v. Manager [2001] 8 NWLR (715) 436 at 44 had defined who a juristic person is in law, : “A juristic person is either a natural person in the sense of a human being of the requisite capacity or an entity created by the law which includes an in the sense of a human  being of the requisite capacity or an entity created by the law which includes an incorporated body and special artificial being created by legislation and vested with the capacity  to sue and be sued” See also Abia State University v. Anyaibe [1996] 3 NWLR (539) 649; Okafor v. Asoh [1999] 3 NWLR (593) 35. The law is that a non-juristic person, generally cannot sue or be sued , See Agbomagbe bank Ltd v. General manager G.B Ollivant Ltd &Ors [1961] 1 ALL NLR 116. Also in Onyuike v. The People of Lagos State &Ors [2013] LPELR-24809 (CA), per Dongban-Mensem JCA stated that “A juristic person is a legal entity through which the law of a particular legal system serves to permit groups of natural persons to act as if they were a composite individual for certain purposes. It is a legal fiction which does not mean that this specific entities are human beings but rather that the law allows them to act as people for certain limited purposes usually lawsuit, property, ownership etc. In the case of Chairman EFCC & Anor v Littlechild & Anor [2015]LPELR 25199 CA.The Court of Appeal held that “where a body or office is created by statute notwithstanding the absence of an express provision thereon as to its capacity to sue or be sued, the right to sue and be sued may be inferred from the statue….” Now in the instant case, it is obvious that the 1st defendant is created under the law enacted by the Edo State House of Assembly. Equally there is no doubt that the 2nd and 3rddefendants’ are legal juristic persons who by their positions are the alter ego of the 1st defendant and they carry out functions for and on behalf of the 1stdefendant.The 4th defendant is the organ responsible for the supervision and regulation of the 1st defendant’s activities and his office is statutorily provided videSection 192 of the 1999 Constitution as amended. Therefore I have no difficulty in holding the view that the 4th defendant can be sued eo nomine.The act of joining the 2nd – 4th defendants in this suit is valid.Hence, is imperative I state that the argument of the defendants is unmeritorious and thus discountenanced.

Learned Defence Counsel in his issue one, paragraphs 4.25 -4.32 of his written argument submitted that although the claimant tried to issue the 1stdefendant a purported pre-action notice (Exhibit O8), that the said pre-action notice is bereft of any particular of the claimant’s claim in this suit and it did not mention the wrong of the 1stdefendant and the claimant’s particular cause of action. He continued that the said pre-action notice (Exhibit O8) is void of the Claimant’s place of abode and such this failure robs the Court of its requisite jurisdiction to entertain this suit, counsel noted that the relevant legal requirement of the claimant’s pre-action notice is provided for in Section 40 of the Edo State Institute of Technology &Management Usen Law, 2002 which provides:

“No suit shall be commenced against the college until at least one month after written notice of intention to commence the cases shall have been served on the college by intending plaintiff or his agents and such notice shall clearly state the cause of action, the particulars of the claim, the name and place of abode the intending plaintiff and the reliefs which he claims”.

He argued that there are fundamental defaults in compliance with the requirement of the requisite ore-action notice in this suit and when same occurs as in this circumstance, the Court is enjoined to deem the suit as incompetent and dismiss same in its entirety, he cited Niger Care Development Company Ltd v. Adamawa State Water Board & 3 Others [2008] 6 CMLR at pages 136-137 paragraph H-E, Amadi v. NNPC [2000] 10 NWLR (Part 674) 76; Dominc E. Nitero v. Nigerian Ports Authority [2008]11 CMLR page 96 at pages 108-109. Madukolu v. Nkemdilim [1962] 2 SCNLR 341.The Claimant’s counsel on the other hand in paragraph 8.2 -8.6 of his written submissionstated that the pre-action notice (Exhibit O8) dated 16thFebruary 2016 is in accordance with Order 23 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure)  Rules 2017 and  the requirement is that a party is required to file a copy of pre-action notice along with the originating process and by Order 23 Rule 2 of the Rules of this Court where such action is filed without a photocopy of the pre-action notice; the Court may declare the process to be incompetent learned Claimant’s counsel argued further that the claimant fully complied with Order 23, Rules 1 and 2 and as such the process and the suit cannot be said to be incompetent  and moreover the Edo State Institute of Technology and Management, Usen Law 2002(as amended) makes provisions for the content of a pre-action notice which is to be issued to the 1stDefendant and the claimant complied with same. He concluded that assuming but not conceding that there was no compliance with the ingredients required for pre-action notice issued and served on the 1stdefendant, that the position of the law is that once there is a substantial compliance by a party, it should be taken as being fully complied with, he placed reliance on A.P.G.A v. Ohazulike [2012] 45 WRN 168 at 171. He reiterated the position Order 5 Rules 2(1) of the NIC rules2017 that an application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the alleged irregularity of the claimant’s pre-action Notice. He noted that in view of this provision which provides the mode and manner for making an application of this nature, the defendants chose to raise same in their final written address is a flagrant disobedience to the rules of this court, he cited Banna v. Telepower Nig Ltd [2007] 1 JNSC (Pt 27) at 395. Defence Counsel reacting to the argument of the claimant in Paragraph 14 of the Defendant’s Reply Address on Point of Law stated that resort to Order 23 Rules 1 &2 and Order 5 of the National Industrial Court of Nigeria 2012 could not cure the  fundamental defect occasioned by the lack of proper pre-action notice before the institution of this suit, he argued that this is because the said order never provided for any practice direction in relation to the modes of issuance of proper per-action  notice but merely provides for the circumstances where the Court may rely on any rules of any High Court (Civil Procedure) Rules  that may do substantial  justice to any case.

The Black’s law Dictionary Ninth Edition at page 1164 defines Notice as “legal notification required by law or agreement, or imparted by operation of the law as a result of some fact (Such as the recording of an instrument). “A person has notice of a fact or condition if that person (1) has actual knowledge of it; (2) has received information about it (3) has reason to know about it (4) knows about a related fact; or (5) is considers as having been able to ascertain it by checking an official filing recording”

The Apex Court, per Muhammad JSC in Dominic E. Ntiero v. Nigerian Ports Authority [2008] LPELR -2073 (SC) described a pre-action notice to “connote some form of legal notification or information required by law or implied by operation of law, contained in an enactment, agreement or contract, which requires compliance by the person who is under legal duty to put on notice the person to be notified, before the commencement of legal action against such a person”.The requirement of pre-action notice where this is prescribed by law is known to have one balance and it is to acquaint the defendant beforehand of the nature of action contemplated and to give him enough time to consider or reconsider his position in the matter as to whether to comprise or contest it. It is not a substantive element but a procedural requirement, albeit statutory, which a defendant is entitled to before he may be expected to defend the action that may follow, see the case of Chief John Eze v. Dr. Cosmos Ikechukwu Okechkwu & Ors [2002] LPELR-194 SC.  The Court has also held in Ministry of Education , Anambra State v. Asikpo [2014] 14 NWLR (Pt 1427) 351  that “ if a party being sued is one that requires pre-action notice to be given before the commencement of the action, the pre-action notice must be given , otherwise the case is incompetent and the Court is therefore robbed of jurisdiction..”

The giving of pre-action notice has nothing to do with the cause of action. It is pertinent to adumbrate the intendment /ration for the issuance and service of pre-action notice to an opposing party, primarily, the jurisprudence if pre-action notice is to enable the defendant know in advance the anticipated action and possible amicable settlement of the matter between the parties without recourse  to adjudication  by the Court. It is a harmless procedure designed essentially to stop a possible litigation, thus saving money and time of the parties, See the case of Niger case Development Company Ltd v. Adamawa State Water Board &Ors [2008] LPELR-1997 (SC). The Supreme Court Per Coker J.SC (as he then was in the case of Katsina Local Government v. Makudawa [1971] 1 NMLR 100 at 107 held that “the purpose of giving notice of claim to the Local Government of the claim against it is that it is not taken by surprise but have adequate time to prepare to deal with the claim in its defence. The purpose of notice is not to put hazards in the way of bringing litigation against it.”  The case of Amadi v. NNPC [2000] 10 NWLR (Pt. 674) 76, is in all fours with this case and instructive, the appellant in that case was dismissed by the respondent and the appellant’s lawyers Idowu Sofola & Co. wrote to his employer urging them to recall the appellant which they stated in that letter as in this instance that the appellant will institute an action against them. Supreme Court per Mohammed JSC (CJN) as he then was; held amongst others that:

a legitimate regulation of access of Courts should not directed at impeding ready access to the Courts. There is no provision in the Constitution for special privileges to any class or category of persons. Any statutory provision aimed at the protection of any class of persons from the exercise of the Court of its constitutional jurisdiction to determine the right of another citizen seems to me inconsistent with the provisions of Section 6(6) (b) of the Constitution.

By the provisions of Section 23 of the Interpretation Act, Cap I. 123, LFN 2007 which provides that “Where a form is prescribed by an enactment, a form which differs from the prescribed from shall not be invalid for the purposes of enactment by reason only of the difference is the difference is not a material particular and is not calculated to mislead”.

It is apt to state that the defendant failed to tender Edo State Institute of Technology and Management, Usen Law 2002(as amended) it relied on in evidence before this Court on the content of the pre-action notice and the period provided for before commencement of action. However, a careful perusal at the record of the Court by Exhibit O8 which is the letter written by the office of Victor Eluma & CO Esq Ref no: VEN/040/003/016 dated 16thFebruary 2016 to the Registrar of the 1stdefendant titled “Illegal Stoppage of Salary of Mr. Usunobun henry Oguigo: Thirty days’ Notice of Intention to go to Court to seek redress”, the claimant through Paragraph 6 and 7 thereof brought to the notice of the defendants this;

“We hereby give you thirty days’ notice to redress this wrongs meted out on our client as we shall have no choice but to approach a Court of Competent jurisdiction to redress the wrongs done to our client upon the expiration of thirty days of receipt of this letter/notice of our client’s intention to seek redress in Court)

For the avoidance of doubt, we shall approach any Court of competent jurisdiction to compel you to pay all clients salary and allowances owed him till date and we shall further ask for aggravated damages against the institute for breach of contract to the tune of N500,000.000.00 (Five Hundred Million Naira  Only.”(Underlining mine for emphasis).

It is also noteworthy to say that the defendants vide exhibit O9 received, acknowledged and responded to Exhibit O8 (Reply letter Ref No: ESITM/CONF.231/01 dated 3rdMarch 2016 titled “RE: Illegal Stoppage of Salary of Mr. Usunobun Henry Oguigo: Thirty days’ Notice of Intention to go to Court to seek redress”and even stated at paragraph 3 of exhibit O9 that “Edo State Institute of Technology and Management, Usen vehemently refuse to be intimidated by your threat to take legal action against it nor will it allow itself to be cajoled and or compelled into taking actions that contravenes its Regulations (undermine for emphasis)” . This goes to say that theyhave sufficient notice of the claimant’s intention to institute a legal action against them if his requests are no acceded to. My position is strengthened by the decision of the Apex Court in Amadi’s case supra as well as the provision of the Interpretation Act, supra. From the above, Exhibit O8 clearly disclosed the intention of the claimant to institute legal action against the defendants. Exhibit O8 was instituted 16th  February 2016 and this suit was filed 19th April 2016 which is a time gap of about 2 months and 3 days. Hence the provisions of Section 40 of the Edo State Institute of Technology &Management Usen Law, 2002requiring one month notice before an action can be commenced against the defendant was strictly adhered with. Consequent upon which I resolve this issue in favour of the claimant and hold that Exhibit O8 suffice as pre-action notice against the defendant. Accordingly, I find that the defendant’s objection is discountenanced as lacking in merit. I so hold.

Furthermore, it is the contention of learned claimant’s counsel in paragraph 9.2 of the Final Written Address that a careful perusal of the copy of the process filed by the defence counsel show that the payment of filing fees for the reliefs endorsed on the counter claim was not made, he continued that it is well settled principle of law that once the appropriate filing fees for a relief or claim is not paid  such claim becomes incompetent and liable to be struck out, he cited Ukpe v. Registered Trustees of Apostolic Church of Nigeria [2012] 45 WRN 80 at 86-87, he then concluded that this fatal mistake made by the defendant cannot be validated by an amendment of any nature. The Defence Counsel respondent in Paragraph 16 of his Reply that the rules of this Honourable Court only request payment from those who are members of the official bar and the Edo State Law officers’ Association only when they are in default of filing processes are exempted.

The position of the law is that an application cannot be brought before the Court without first andforemost filing same by paying the necessary assessed filing fees.  This is the only means by which a document can be legally brought before the Court except of course it is an official document which usually does not attract filing fees, See the case of Informatics Company &Telematics Ltd v. Nurudeen[2001] LPELR -8184 (CA). The payment of filing fee is a condition precedent to originating a process, See Onguwigbofor v. Okoye [1996] 1 NWLR (Pt. 424) 259; Moyosore v. Governor of Kwara State [2012] 5 NWLR (Pt 1293) 242, Samba petroleum Company Ltd & Anor v. FCMB [2013] LPELR-21874 (CA).The  Apex Court in Abia State Transport Corp &Ors v. Quorum Consortium [2009] 9 NWLR (Pt.1145) 1, payment of a prescribed filing fee by litigants, excepts the governments, is a pre-condition to the validity of the process filed in the Court. Unless the pre-condition is satisfied, the Court will lack jurisdiction to entertain a process in which the prescribed fee has not been paid, See the case of Onwugbufor v. Okoye [1996] 1 NWLR (Pt.424) 252, Horsfall v. Amaizu & Ors [2013] LPELR-22874 (CA). It is common place and practice that government official, agencies and parastatals need not pay for filing fees before filing their processes in Court, this is in view of the fact that payment of the prescribed fee would amount to paying back into the government coffers the money initially meant for government itself.  Hence I find that the Claimant’s argument that failure of the defendant to pay the requisite filing fee makes the suit incompetent is unmeritorious. I so hold.

To the crux of this suit, it is ideal to lay a brief background into the nature of the employment relationship existent between the parties, it is the submission of learned claimant’s counsel in paragraph 7.4 of his Written Address that the employment of the claimant is garnered with statutory flavour hence his termination must accord with the rules and regulation applicable.  The position of the law that an employment is with statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee, See the case of Audu v. Petroleum Equilisation Fund (Management) Board & Anor [2010] LPELR-3824 (CA).V NSITFMB [2016] 7 NLLR (Part 240) 440, Oforishe v. Nigeria Gas Ltd [2017] LPELR-42766 SC, Mr. Syed Qamar Ahmed v. Ahmadu Bello University (ABU) &Anor [2016] LPELR 40261 CA; Federal Polytechnic Ede &Ors v. Alhaji Lukeman Ademola Oyebanji [2013] LPELR 1996.The question of whether a contract of employment is governed by statute or not depends on the construction of the contract itself and the relevant statute in the exclusive preserve of the Courts. Without much ado, it is trite to state perhaps for clarity, that for an employment to be one with statutory flavor, it must meet one of two conditions. One, the terms and conditions applicable to that particular employment must have been specifically provided for by a particular statute. Or in the alternative, the regulation which contains the applicable terms and conditions of the particular employment must have been made pursuant to or in exercise of the power conferred by a statute. It therefore naturally flows that a valid determination/dismissal/promotion/retirement must satisfy the provisions of the said statute and a breach which renders the act ultra-vires and void as there must be strict adherence to the laid down procedure in the statute. See the cases of Okocha v. CSC, Edo state & Anor [2016] 64 NLLR (Pt 228) 477,  Ogbaje v. Abuja Investment and Property Development Co. Ltd [2007] LPELR-118 55 CA; Isaa Saibu v. Kwara State Polytechnic Ilorin [2008] LPELR-4524 CA. It is observed from a cursory look at all the documents tendered in evidence that the claimant’s employmentis statutory. I answer in view of the law establishing the 1stdefendant  which is the Edo State Institute of Technology &Management Usen Law, 2002which also governs the claimant’s employment with the 1st defendant and the letter dated 8th June 2005  Ref NO: ITMO/PO.37/18 titled “Senior Staff Appointment” (Exhibit O1),  Paragraph 3 thereof states:

“Your appointment will be subject to the terms and conditions as laid down in the Regulation Governing the Conditions of Service for Senior Staff of the Institute and any other regulation in force for the time being”

The claimant on his relief one claimed that the compulsory retirement age for academic staff of the 1stdefendant like every other polytechnic and colleges of education is 65 years. It is the evidence of the claimant by paragraph 28 of his deposition on oath and by Exhibit O that he was born on the 27th day of August, 1954 and the 1stdefendant in the letter dated  2ndMarch 2014  asked him to proceed on  retirement  with effect from 27th of August 2014 (Exhibit O11 &O12), he contended that the retirement age of academic and non-academic staff of all polytechnics and colleges of  Education in Nigeria is 65 years and not 60 years hence he is still in the service  and employ of the 1st defendant  It is the submission of learned claimant’s counsel that in line with the wide powers conferred on the 1stdefendant’s governing council as provided for in Section 7 of the Edo State Institute of  Technology and Management Usen Law 2002 that  having adopted 65 years for the  retirement both academic and non-academic staff that the rejection of same by the Head of service or any other authority is illegal, he continued that the issuance of Exhibit O9 and O10 on the claimant is not only unjustifiable but illegal, null and void to the extent of their inconsistency with theEdo State institute of  Technology and Management Usen Law 2002. Counsel argued further that the Defendants admitted in Exhibit O9 that the retirement age of both academic and non-academic staff is 65years but that the ministry of Education warned them from implementing same because the Federal law approving the 65 years has not been ratified and domesticated in Edo State. He also noted that by the provisions of Section 3(1) of the Retirement Age  of Staff  of polytechnic and colleges of Education (Harmonisation Act, 2012), the compulsory retirement age for academic staff of the polytechnic and colleges of education is 65years , it is the submission of learned counsel that the Harmonisation Act supra supersedes  the Edo State institute of  Technology and Management Usen Law 2002 and the doctrine of covering the field accommodates the Harmonisation Act to the exclusion of any other law inconsistent with the Act, Counsel relied on Section 4(1) of the 1999 Constitution  and Part 1 of the second Schedule of the Constitution whilst submitting that the National Assembly can make laws in respect of technological education as it relates to the 1stdefendant and in light of this the Harmonisation Act, 2012 does not require any ratification or domestication by the Edo State House of Assembly before same is applicable to the 1st defendant  that the National Assembly has the power to make laws for the Federation or any part thereof and by the doctrine of covering the field, such laws are valid and binding on the 1st defendant. The defence counsel responded in paragraph 4 of his written submission that contrary to the argument of the claimant that the appropriatebody to make the relevant law to back up the claimant’s retirement at the age of 65 years is no other than the Edo State House of Assembly, he relied on Section 4(7) of the 1999 Constitution as amended , he noted that the provisions of the Conditions of Service (Exhibit CS6) tendered by the claimant at paragraph 2.16 (vi) Chapter Two Page 7 expressly provides for the ages of 60 years and 65 years for non-academic and academic staff respectively. It is his submission that the defendant’s witness told the Court before tendering of exhibit CS6 by the claimant through him that the exhibit was accepted by staff of the 1st defendant in principle as same is fraught with errors pending the time all the errors pending the time all the errors in the version will be corrected. He posited that a cursory look at the aforementioned reveals that there exist two retirement ages in the Regulation that is age 60 and 65 and the defendants as a matter of sound principle cannot operate two retirement ages and Exhibit CS tendered by the defendant does not contain similar provision as seen at chapter 10 Section 10.1 (b). Learned counsel then urge the Court to prefer exhibit CS to exhibit CS6 tendered by the claimant.

It is appropriate to state that exhibit CS (tendered by the defendant) and CS (tendered by the claimant) are both Regulation of the 1st defendant. However, the discrepancy here is that to the claimant that is the operative Regulation that governs his condition of service and the defendant admitted to the extent that it was the regulation in force before the publishing of the exhibit CS as the said Exhibit CS tendered by the claimant was fraught with errors. Defendant witness also stated that Exhibit CS tendered by the claimant was approved in principle but it was yet to be signed. It is apt to state that both Regulations tendered by parties are public documents and by the Rules regarding public documents as provided by Sections 104 of the Evidence Act, 2011 that “(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be”. A keen perusal of both documents reveals that exhibit CS tendered by the claimant is not certified in accordance with the provisions of Section 104 of the Evidence Act supra. This in effect is capable of being expunged from the record of Court because the Judex has the competence to either completely reject admitted evidence or discountenance such evidence admitted at the time of writing the judgment if he comes to the full knowledge and conclusion that the evidence was wrongly admitted. Accordingly a document earlier albeit wrongly admitted does not carry any probative value as the Judge can expunge the document or disregard it in the course of evaluating the totality of the evidence before him at a just decision. Therefore, I find that exhibit CS tendered by the claimant has no probative value and thus expunged and dismissed from the record of the Court. I so hold.

With regards to claimant’s relief one, it is deducible that as at the time the claimant was retired from the employ of the 1st  defendant he was 62 years of age, however the defendant in paragraph 3 of Exhibit O11 dated 2nd of March, 2012 effected his retirement from 27th  of August 2014 which was when he clocked 60 years. A cursory look at  the 1st Defendant’s Regulation Governing the Condition of Service  (Exhibit CS), Chapter 10, paragraph 10.1 (a) provides:

“The Compulsory age of retirement shall be 60 and the date of retirement is the 30th September following the date on which a member of staff attains the age”

It is glaring from the above provision that the age prescribed by the regulation governing the claimant’s employment with the 1st defendant is 60 years, the contention of the claimant in this regard is that the retirement age should be 65 years in view of Section 3(1) of the provision of the Retirement Age of Staff of Polytechnics and colleges of Education (Harmonisation Act 2012), the compulsory retirement age of an academic staff of polytechnics and colleges of education shall be 65years. He continued that the defendants vide exhibit O9 admitted that the 1st defendant governing council approved 65years of age as retirement age for both academic and non academic staff of the 1st defendant but that the Ministry of Education warned it from implementing the Act as it has not domesticated by Edo state hence it is not applicable. I reproduce this exhibit for ease of reference thus

Exhibit O9, paragraph c and d states that;

“ (c) that the council in compliance with the Federal Government law approved the 65 years retirement age for both academic and non-academic staff of the institute, hence staff that were 60 years and above but below 65 years were allowed to remain in the institute.

(d) That the institute have been warned severally through series of letters from the Ministry of Education which is the institute’s state regulating body) to desist from implementing the 65years retirement age approved by the Federal Government because it has not been rectified and domesticated in Edo state and thus not binding on the state (Underlining mine).

It is also clear to state that by exhibit CS1 Section 3(1) of the provision of the Retirement Age of Staff of Polytechnics and colleges of Education (Harmonisation Act 2012), the compulsory retirement age of an academic staff of polytechnics and colleges of education shall be 65years. However, Exhibit CS2 a letter from the Edo State Ministry of Secondary, Technical and Tertiary Education dated 17th of July, 2015 discloses at paragraph 2 (iii) that “the 65years retirement age for academic and non academic staff should be put on hold as Federal Government law on same has not been rectified and domesticated in Edo state. Until this is done, the law cannot be implemented in the State.”

Now, the question begging an answer is Can the Harmonisation Act 2012,  which is an Act of the National Assembly take effect in Edo state without the Act been domesticated by the law of the Edo State House of Assembly.

By the provisions of Section 4(1) and (6) of the 1999 Constitution as amended, the legislative power of the Federal Republic of Nigeria shall be vested in the National Assembly for the Federation which shall consist of the Senate and House of Representative and that of the State of the Federation shall be vested in the House of Assembly of the State.The doctrine of hierarchy of legislations whereby the Constitution of the Federal Republic of Nigeria is at the Apex followed by the Acts of the National Assembly with the State laws coming next, the doctrine posits that the provision of any Act of the National Assembly or the State Law which is inconsistent with any provision of the Constitution is to the extent of that inconsistency void. Similarly, the provision of any State Law which is inconsistent with any provision of an Act of the National  Assembly  is also  void to the extent of the inconsistency , See the case of Orji v. Anyaso [2000] 2 NWLR (Pt.643) Pg1 at 22, Paras, G-H. Likewise Part II of the 2nd Schedule, Concurrent legislation, Item 29&30 of the 1999 Constitution provides that:

“Subject as herein provided , a House of Assembly shall have power to make laws for the state with respect to the establishment of an institution, for the purposes of the University, technological or Professional Education

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

It is deducible from the above that the State House of Assembly Edo State has the power to legislate over the 1st defendant, the 1st defendant being an institution established by the Law of the Edo State House of Assembly, hence it is right to state that once the National Assembly makes laws in which the Constitution as amended has vested such powers to so do also on the state, such law must first pass through the state House of Assembly for domestication before it is applied in the State.  Now, the question that comes to mind is would the doctrine of covering the field apply in this instance? The doctrine of covering the field posits that where there is conflict between the legislations of both the Federal and State Government by virtue of their constitutional legislative power, the law passed by the state legislature will be invalidated on the ground that the Federal legislature has covered the whole field on that particular subject matter, See the cases of Attorney General of Ondo State v Attorney General of the Federation & ors [2002] NWLR (Pt 772) p. 222; Oseni v. Dawodu [1994] 4 NWLR (Part 339) page 390 at 406, Pars E-G, Nigerian Breweries Plc v. The Governor of Oyo State &Ors [2011] LPELR-4610 (CA).

It is noteworthy that the legislation by the Edo State House of Assembly and National Assembly does not possess and similarity by any impression as both statutes provides for different ages of retirement.  Also, as rightly argued by the defendants and corroborated vide exhibit CS2 that the Harmonisation Act 2012 Act is yet to be domesticated into the Edo State laws by the State House of Assembly. I find that the provision of Section 3(1) of the Harmonisation Act thereon cannot avail the claimant by any stretch. It is premised from the foregoing that the appropriate age of retirement is enshrined in exhibit CS governing the claimant’s contract of employment at Section10.1 (b) of the Regulation Governing the Conditions of Service of the 1st Defendant (Exhibit CS) and it provides:“The Compulsory age of retirement shall be 60 and the date of retirement is the 30th September following the date on which a member of staff attains the age” that I find that the compulsory retirement age of academic staff of the 1st defendant like every other polytechnics and colleges of education in Nigeria is 60 years. I so hold.

On Relief 2 of the Claimant seeking for a declaration that the 1st defendant’s letter dated 2nd and 3rd March 2016 are null and void and of no effect whatsoever as the claimant still remains in the employment of the 1st defendant. I have held supra that the compulsory retirement age of the academic staff of the 1st defendant is 60 years in view the Section10.1 (b) of the Regulation Governing the Conditions of Service of the 1st Defendant (Exhibit CS) and the fact that the Harmonisation Act 2012 has not yet been domesticated by Edo State House of Assembly. This invariably depict that the claimant is mandatory retired as seen vide exhibit O11 dated the 2nd March, 2016 which is reproduced here under as follows;

“I write to inform you that the Ministry of Education has directed that the institute should discontinue the implementation of 65years retirement age and uphold the statutory 60years retirement age

This is due to the fact that 65years retirement age for academic and non-academic staff signed into law by the Federal Government has not been rectified and domesticated in Edo State

In view of the above, I am directed to inform you to proceed on retirement with effect from 27th August, 2014, when you attained 60years of age …”(Underlining mine  for emphasis”

By Clause 2.15 of the Edo State Institute of Technology and Management Usen Regulations Governing the Conditions of Service of Employees on HATISS O6 and AboveApproved by Council (Exhibit CS), page 15:

“Tenure of Appointment of Full time permanent staff

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

From the above stated supra, it is deducible that the retirement age for the claimant is 60 years or 35years in service whichever comes first. However, an indepth perusal of exhibit of exhibit O11 dated 2nd of March, 2016 clearly shows that the claimant was directed by the 1st defendant to proceed on retirement in retrospect that is with effect from 27th of August, 2014. Now what the appropriate question to ask is what is the effect of retiring the claimant in retrospect? The answer is found in the latin maxim Lex prospicit non respicit meaning law looks forward and not backwards and case of Cosmos C. Nnadi v National Ear Care Centre &Anor [2014] LPELR 22910 CA where the Court of Appeal held per Mbaba JCA that;

 “I do not think in an employment with statutory flavour, a boss, assuming the office of employer, can simply wake up with imperial powers and issue a letter of termination or dismissal to an employee, bringing to an end his services, with a backdating effect, as purportedly done by 1st respondent in this case, in complete disregard of the procedures stipulated in the conditions of service governing the contract of service. This is because employees who are members of the public or civil service and related services have a more secure and jealously guarded tenure and their position is not that of mere master and servant relationship, whereof a master can simply fire his servant for any reason or without any reason, provided he gives him the stipulated notice or salary in lieu of the notice. to remove a public servant in flagrant contravention of the rules governing his service, whether under contract or under provisions of a statute or regulations made thereunder, is to act capriciously and to destabilize the security of tenure of his public service, frustrate his hopes and aspirations and thereby act in a manner inimical to order good government and well-being of the society.”

See also the cases of Healey v Societe Anonyne Francoise Rubastic [1917] 1 KB 946; Akinbola v Ministry for FCT & Anor [2018] LPELR 45848 CA; Kwara State Polytechnic, Ilorin v Shittu [2013] 17 WRN 78; [2012] LPELR 9843 CA; NBTE v Anyanwu [2005] All FWLR (Pt 256) 1266.

Applying this principle in this instant case, the defendant in this suit cannot validly issue the claimant his letter of retirement in retrospect, rather it should be issued when he ought to have retired as provided for in exhibit CS. In effect I find that the letter dated 2nd of March, 2016 is null and void. Another pertinent question is the claimant still in the employment of the defendant? I answer this question in the negative because vide exhibit CS, the claimant ought to have been retired at the age of 60 years old that is in 2014. Therefore claimants claim fails in this regard. I so hold.

On the Claimant’s claim for the payment claimant’s salary and allowances from August, 2015 till date at N222, 680.99 per month and the claimant promotional arrears from October, 2012 to November, 2013 totaling N526,370.74 at N37,597.91 monthly, it is the argument of Learned Claimant’s counsel that the Defence Witness Admitted under Cross examination that the Claimant is being owed salary from August 2015 till date at N22,680.99 per month  but only noted that he was not aware that the claimant was being owed salary arrears but only promotional arrears. He noted further that the law is well settled that what admitted need no further proof as well entrenched is in Section 123 of the Evidence Act, Counsel also reiterated that the defence witness further admitted under cross examination that the claimant is being owed promotional arrears from October 2012 to November 2013 totaling N526, 370.74 at N37, 597.91 monthly. The defendants on the other hand admitted that the promotional arrears of the claimant from October 2012 to November 2013 is not in dispute which is not in dispute and which sums to N526,370.74 at N37,577.91 per month.

From the record of the Court and the evidence adduced by the defence witness under cross-examination, he admitted that the claimant is entitled to promotional arrears from October, 2012 to November, 2013 totaling N526, 370.74 at N37, 597.91, the position of the law is that facts admitted need no further proof, Section 123 of the Evidence Act 2011; Narinder Trust Ltd v. N.I.C.B Ltd [2001] FWLR 1546 at 1558, Nwankwo v. Nwankwo [1995] 5 NWLR (pt 894) 158, Bunge v. Governor Rivers State [2006] 12 NWLR (Pt.995) 573, Chukwu & Ors v. Akpelu [2013] LPELR-21864 (SC). It is upon this premise that I find and hold that the Claimant is entitled to his promotional arrears from October 2012 to November 2013 totaling N526, 370.74 at N37, 597.91monthly. On the other leg of his claim, which is for payment his salary and allowances from August, 2015 till date at N222, 680.99 per month. The defendants by paragraph 17 of their statement of defence and counterclaim averred that the claimant had received his entire total sum of one year salary from September 2014 to August 2015. This means that the defendants as rightly stated by the claimant in Paragraph 21 of his deposition on oath that the defendants stopped payment August 2015. I have held that the claimant was retired unlawfully and in retrospect. Now having earlier held that the appropriate age of retirement of the claimant is 60 years as provided for by Exhibit CS, is the claimant now entitled to his salary from August 2015 till date as claimed? It is equally right to state that the defendants communicated to the claimant of his retirement on the 2nd of March, 2016 and this to him is disbelieving as the defendants had made him to believe by exhibit O9 at paragraphs c and d that he would be retired at the age of 65 basing its source on the Harmonisation Act 2012 that has not been domesticated by the Edo State House of Assembly into law.  It is trite that by Section 169 of the Evidence Act, 2011 where one party has by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted upon accordingly, then once the other party had taken him at his word and acted on it, then the one who gave the promise or assurance cannot afterward be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. See the cases of BPS Construction & Engineering Co. Ltd v FCDA [2017] LPELR 42516 SC; Bulet Int’l (Nig) Ltd & anor v Olaniyi & anor [2017] LPELR 42475 SC; UBA Plc v J.I Efemini & Sons (Nig) Ltd [2018] LPELR 44150 CA. Flowing from the above, the defendant will not be allowed to approbate and reprobate at the same time. In result thereof is that I find that the claimant is only entitled to his salaries and allowance only from August 2015 till March, 2016 the period when the defendants made him believe he would be in their employment till he is aged 65years and not till date because the position of the law is that an employee is entitled to his salaries for work done, inversely, an employee cannot be entitled to salaries for work not done, see the case of Isa v. C.G.C Nigeria Ltd [2014] LPELR-23977 CA. Hence, the claimant’s salary and allowances from August, 2015 till date at N222, 680.99 per month fails.

On the claimant’s claim for the balance of the TETFUND grant meant for his PHD programme in the sum of N450,000 withheld by the defendants,  it is the averment of the Claimant  vide Paragraphs 13-15 of his statement of fact that he was given a tertiary education trust fund (TETFUND) grant/assistance by the1st-3rd defendants for the purpose of pursuing his Ph.D programme but instead of the sum of N1,500,000.00  expected, he was paid the sum of N1,050,000.00 instead however  upon protest by a letter dated 8th February 2014 and 15th June 2014(which the Claimant failed to tender in evidence)he  got no response from the Defendants, it is his further statement that his other colleagues got the exact sum of N1,500,000.00. Learned Claimant’s Counsel argued that the defendants failed to call a vital witness in order to prove that the TETFUND grant to which the claimant is entitled to is N1, 050,000.00 that the failure to call the 1st defendant’s Bursar who was the one who disbursed the grant is fatal to the position of the defendant, he cited Section 133(2) of the Evidence Act 2011 that the burden now shifts on the party against whom judgment would be given if no evidence is adduced.The defendants on the other hand stated that the sum of N1, 050,000.00 had been approved and accredited to the Claimant’s account by TETFUND, learned defence counsel argued that the issue that the Claimant was being owed N450,000 was already rectified by the 1st defendant vide the issuance of Exhibit CS5 dated 21st March 2016 which was received by the claimant’s counsel and endorsed  before the existence of this suit.It is imperative to note that the Claimant tendered his pay slip (Exhibit O13) evincing the sum of N1, 050,000.00 credited into his Sterling Bank Account, 0014190613, the Claimant also stated under cross examination that it is the executive secretary of TETFUND that approves fund and send to the 1st defendant. The defence witness during cross examination admitted that it was the Bursar that granted the TETFUND that he was aware that the amount disbursed to the claimant was N1, 050,000.00 and not N1, 500,000.00, it is evident from Exhibit CS4 that the sum of N1, 050,000.00 was approved for the Claimant for the TETFUND Ph.D grant also the defendant vide Exhibit CS5, Para 1 thereof stated:

“That the money quoted was erroneously stated to be N1, 500,000.00(One Million, Five Hundred Thousand Naira only) instead of N1, 050,000.00 (One Million, Fifty Thousand Naira Only”. There is nowhere in the record before the Court where the claimant proved his assertion to earn him the claim of the sum of N450,000.00 as evidence tendered in Court by both parties points to the fact that the defendant disbursed only the sum of N1,050,000.00 to the claimant  and also that the defendant’s  letter dated 3rd of March, 2016 erroneously quoted the sum of N1,500,000.00 instead of N1,050,000 and which was rectified by exhibit CS5.  It is against this backdrop that I find that the claimant ‘s claim for balance sum of N450,000 TETFUND grant withheld and meant for PhD programme fails..

The Claimant is also seeking for an order restraining the defendants and/or any of their agents, or privies from taking any step calculated to undermine his position in the 1st Defendant or capable of jeopardizing his position or status in the 1st Defendant, It is long settled that the one major consideration for the grant of an injunctive relief is the compelling interest at stake, See Okoli v. Duru [2007] All FWLR (PT 367) 887 at 926, para F-G (CA). The Court must exercise discretion in the grant of injunctive reliefs of this nature, it is evident from the case that the act complained of by the Claimant is already a completed act in view of the fact that the claimant has retired from the employ of the 1st Defendant. It is against this premise that I find that the claimant’s injunctive reliefs fails I so hold.

On award of cost  of this suit, it is the law that cost follows event and this Court is empowered by the Rules to award cost, see the case of NNPC v. Clifco Nig. Ltd [2011] LPELR 2-122, Mudun & Ors v,. Adanchi & Ors [2013] LPELR-20774 (CA), Olokunlade v. Samuel [2011] 17 NWLR (Pt. 1276) 290., the award of cost is at the discretion of the Court and the ultimate requirement for such discretion must be exercised judicially and judiciously, See Wema Bank &Anor v. Alran Frozen Foods Agency Nigh. Ltd & Anor [2015] LPELR-25980 (CA).It follows that a successful party is entitled to cost, the claimant not been successful in this case is not entitled to cost.

In his alternative, the claimant is claiming the sum of N500,000,000 (Five  Hundred Million Naira against the  1st-3rd defendants for breach of contract, it is now well settled  that in a claim for damages for breach of contract, as in the instant case, this Court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract, See the case of Mobil Oil Nig Ltd v. Akinfisile [1969] 1 NMLR 227, Arisons Trading &Engineering Company Ltd v. The Military Governor of Ogun State [2009]15 NWLR (Pt.1163) 26, a breach of contract is committed when a party to a contract, without lawful excuse fails, neglect or refuses to perform an obligations he undertook in the contract or either performs the obligation defectively or incapacities himself from performing the contract or by wrongfully repudiating the contract, see the case Kemtas Nig. Ltd v. Fab Anieh Nig Ltd [2007] ALL FWLR (Pt384) 320 at 342, Paras B-C (CA). I have earlier held that the claimant is entitled to his salaries and allowance only from August 2015 till March, 2016 when his retirement was communicated to him thus the grant of this claim will amount to double compensation. It is on this premise that I find that claimant’s claim on damages fail.

On issue two, it is the Defendant’s Counter claim against the claimant for the entire total salary paid to him from September 2014 to August 2015 before his retirement, the defendants’ Counter claim is in the sum of Two Million, Six Hundred and  Seventy-Two  Thousand , One Hundred and Seventy-One Naira, Eighty –Eight Kobo (N2,672.171.88k)  being the sum of one year salary paid to the Claimant by the 1st Defendant from August 2014 to July 2015 at the rate of N222,680.99k per month, it is the averment of the Claimant in Paragraph 21 of his deposition on oath that the defendants stopped payment August 2015. I have held supra that the retirement of claimant in retrospect is unlawful. I have also held that the claimant is entitled to his salaries from August 2015 to March, 2016 hence the counterclaim of the defendant claiming the claimant’s salaries from September, 2014 till August, 2015 fails.

It is apparent from all the above that the claimant’s claims succeed in part and the defendant/counterclaim fails. For the avoidance of doubt, I declare and order as follow:

  1. That the compulsory retirement age of academic staff of the 1st defendant like every other polytechnics and colleges of education in Nigeria is 60 years.
  2. That the defendant’s letter dated 2nd March, 2016 from the 1st defendant titled “Retirement from the Service of the Institute” is unlawful null and void.
  3. That the claimant claim for reinstatement fails.
  4. That the Claimant is entitled to his promotional arrears from October 2012 to November 2013 totaling N526, 370.74 at N37, 597.91monthly.
  5. That the claimant is entitled to his salaries from August, 2015 to March, 2016.
  6. That the claimant ‘s claim for balance sum of N450,000 TETFUND grant withheld and meant for Ph.D programme fails.
  7. That claimant’s relief e, f and g fail.
  8. That the defendants counter claim fails.
  9. All judgment sum is to be paid within 30 days of this judgment, failing which it shall attract an annual interest of 10% of the total judgment sum.

Judgment is accordingly entered.

Hon. Justice Oyewumi Oyebiola O.

Presiding Judge

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