LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

Mr. Wasiu Ademola Adeniyi -VS- Oyo State Government & 2 ORS

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

Date: June 13, 2018                                                                           Suit No: NICN/IB/83/2013

Between:

Mr. Wasiu Ademola Adeniyi                     —————————–                         Claimant

And

1.         Oyo State Government

2.         Attorney-General of Oyo State      —————————-                      Defendants

3.         Mr. Yanju Adegbite

 

Representation:

Ayo Faleti with him are A. O. Ashagidigbi Esq., A. A. Faleti and K. Ola for the Claimant

Akibu Akintola; Principal State Counsel, Oyo State Ministry of Justice for the 1st and 2nd Defendants.

Bayo Lawal with M. O. Aderonmu for the 3rd defendant.

COURT’S JUDGMENT

On September 6, 2013 the claimant filed this Complaint and by his amended statement of facts filed on January 29, 2014 at page 224 of the record, the claimant is seeking for the following reliefs against the defendants:

1.      Declaration that the purported compulsory retirement/termination of the claimant’s employment by the 3rd defendant and Broadcasting Corporation of Oyo State acting on the instruction and authority of the 1st defendant from the service of the 1st defendant vide 3rd defendant and Broadcasting Corporation of Oyo State letter of 15th July, 2013 is wrongful, illegal and of no effect whatsoever.

2.      Declaration that the claimant is still a lawful employee and still in the service of the 1st defendant and Broadcasting Corporation of Oyo State as the Assistant Director of Programmes, Broadcasting Corporation of Oyo State notwithstanding the defendants’ letter of compulsory retirement/termination of the claimant’s employment dated 15th July, 2013

3.      An Order of the Court; restoring the claimant to his post and office as the Assistant Director of Programmes with the Broadcasting Corporation of Oyo State and to all his rights and privileges attaching thereto.

4.      An Order, directing the defendants to pay to the claimant all his arrears of salaries, allowances and other emoluments/entitlements due to the claimant from July 2013 till the date of reinstatement by the Court and thereafter full salary, allowances and other entitlements due to the claimant as an employee of the defendants and Broadcasting Corporation of Oyo State on monthly basis.

                  

Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the defendants entered appearances through their counsel and filed their statement of defence together with other processes in compliance with the Rules of this Court.

The case of the claimant is that he was a broadcaster and that he joined the services of the Broadcasting Corporation of Oyo State as Temporary Producer II on GL 8 Step 2 in February 1992. Thereafter, his appointment was regularized and confirmed; he then rose through the ranks to the post of Assistant Director of Programmes. He averred further that in June 2007, he was deployed to the office of the Executive Governor of Oyo State as Assistant Director (Protocol) effective from June 15, 2007 until September 5, 2011 when he was re-deployed back to the Broadcasting Corporation of Oyo. Subsequently, he was compulsory retired from the Public Service of Oyo State through a letter signed by the 3rd defendant on the instruction of the 1st defendant; contrary to the provisions of Oyo State Civil Service Commission Regulation 1978 as reproduced in Vol. VI of the Laws of Oyo State and the Oyo State Public Service Rules.

The case of the 1st and 2nd defendants is that, the claimant was truly redeployed to the office of the Executive Governor of Oyo State as Assistant Director with schedule of duty that was clearly at variance with his schedule duty at the Broadcasting Corporation of Oyo State; which is a Parastatal under the first defendant. By the time the claimant was redeployed back to the Corporation four years later, the claimant was no longer relevant and current so as to efficiently and effectively discharge his assignment because of innovations introduced into the broadcast industry while he was away, which were surreptitious. The Corporation observed that the claimant had completely lost touch with the primary function of the Corporation. Therefore, the claimant was compulsorily retired by the defendants after they were convinced that there was no space to accommodate him in view of his complete detachment from the Broadcasting Corporation, which is professional in scope and in practice. To them, the compulsory retirement of the claimant was neither punitive nor political; rather, it was done in public interest.

The case of the 3rd defendant on the other hand is that, after the claimant joined the services of the Broadcasting Corporation of Oyo State and his appointment was regularized and confirmed, the claimant was deployed to the office of the Executive Governor of Oyo State as Assistant Director (Protocol). That upon the re-deployment of the claimant to the Broadcasting Corporation, the management of the Corporation had introduced new innovations into the Broadcasting Industry after the claimant was deployed from the Corporation and was fully convinced that the claimant left the Broadcasting Corporation for over 4years; he would no longer be relevant, hence the claimant was not re-absorbed and he was returned to the office of the Executive Governor of Oyo State. Eventually, the claimant was compulsorily retired from the Public Service of Oyo State through a letter from the office of the Head of Service while the BCOS Director of Finance and Supplies was advised[ to compute his final entitlements.

 

During hearing of the case, the claimant testified as CW1 and tendered 18 Exhibits while the 1st and 2nd defendants called one witness; Omowunmi Shittu (Mrs.) as (DW1), without tendering any document even though they had earlier listed 5 documents; see page 587 for the list. The 3rd defendant did not call any witness. In line with the Rules of this Court, Counsel were directed to file their final written addresses by the Court. While counsel to the 1st and 2nd defendants did not comply with the said direction, counsel to the other parties did.

3RD DEFENDANT’S WRITTEN ARGUMENTS

In his final written address, counsel to the 3rd defendant raised issues for determination as:

  1. Whether the claimant disclosed any cause of action against the 3rd defendant in this suit.
  2. Whether from the evidence before the Honourable Court the claimant’s compulsory retirement is not justified.
  3. Whether the claimant ought not to join the Broadcasting Corporation of Oyo State as a necessary party in this suit.

Arguing the first issue, counsel referred the Court to paragraphs 12, 13, 15 and 21 of the Amended Statement of Facts together with paragraphs 9, 10, 11 and 12 of the Amended 3rd defendant’s Statement of Defence and submitted that no cause of action was disclosed in this suit against the 3rd defendant and that the 3rd defendant is merely the Chief Executive Officer of the Broadcasting Corporation of Oyo State who acted in his official capacity; referring to Exhibit C8. He cited in support, Lawal v. Ejidike [1997] 2 NWLR (Pt. 487) 319 at 321 particularly at 328 and Amata v. Omofuwa [1997] 2 NWLR (Pt. 485) 93 at 95 and also to the evidence of the 1st and 2nd defendants before the Court.  Counsel continued that the claimant did not prove any wrong doing in a personal capacity against the 3rd defendant. To him, the 3rd defendant; being a public servant, acted on the instructions of the Corporation’s Management. Therefore, there is no cause of action in this suit against him personally.

Arguing issue two of whether the claimant’s compulsory retirement is not justified, counsel submitted that the claimant was employed into the Oyo State Public Service vide the Broadcasting Corporation of Oyo State, which is a Parastatal of the Oyo State Government; referring to Document C.10 (Oyo State Government of Nigeria Public Service Rules Volume 1 January, 2013) Rules 150301 thereof. That the extant laws regulating the claimant’s employment before his compulsory retirement was the Broadcasting Corporation of Oyo State Law, Cap. 19 Laws of Oyo State 2000 and by section 27(1) of the said law; the Broadcasting Corporation of Oyo State is given powers to determine the employment of any of its staff where his/her services are no longer needed.

Arguing issue three of whether the claimant ought not to join the Broadcasting Corporation of Oyo State as a necessary party in this suit, counsel submitted that the 3rd defendant being the Chief Executive Officer of the Broadcasting Corporation of Oyo State acted on the decision of the Oyo State Government to communicate to the claimant his compulsory retirement from the Public Service of Oyo State. He went on that the claimant cannot successfully challenge his compulsory retirement without joining the Broadcasting Corporation of Oyo State as a defendant in this suit. Referring to section 4 (7) of the Broadcasting Corporation of Oyo State Law, counsel submitted that failure to join the Broadcasting Corporation of Oyo State to this suit is fundamental to the claimant’s case and so, the cause of action is liable to be defeated. He referred the Court to the cases of Hassan v. Ajanyi [2003] 21 WRN 107 at 114 particularly at 131 – 132 and N.N.P.C. v. Evwori [2007] 9 WRN 160 at 168-169 particularly at 178.

CLAIMANT’S WRITTEN ARGUMENTS

The claimant filed its final written address wherein he raised a preliminary question on the decision of the 3rd defendant not to call evidence. Counsel submitted that the Statement on Oath of one Mr. James Olugbenga Afolabi, which he did not adopt, is deemed abandoned. Therefore, the pleading of the 3rd defendant which is not supported by evidence is also deemed abandoned as the law is settled that a pleading not supported by evidence goes to no issue citing; Oritoye v. Lagos State of Government [2014] All FWLR (Pt. 744) 183 at 194; Abe v. Skye Bank Plc. [2016] All FWLR (Pt. 819) 1081 and Durosaro v. Ayomide [2005] All FWLR (Pt. 260) 167.

Thereafter, counsel to the claimant formulated an issue for determination of the Court as:

Whether the compulsory retirement of the claimant by the defendants vide the 3rd defendant’s letter of 15th July, 2013 Exhibit C8 written on the instruction of the 1st defendant was valid/proper and not in violation of the claimant’s condition of service.

Arguing the issue, counsel submitted that from the totality of the evidence adduced by both sides, the claimant has proved his case as required by law as the evidence adduced in proof of his case are reliable, credible and conclusive proof of the facts pleaded by him and the claimant’s evidence are more probable than that proffered by the defendants. He continued that the 3rd defendant’s failure to lead evidence in support of his pleadings means that he has abandoned whatever defence he has to the claimant’s case and the law is settled that where there is no defence to a claim, minimum proof is required as there will not be any evidence to be put on the other side of the imaginary of scale as far as the 3rd defendant is concerned. To counsel, the 3rd defendant has joined no issue with the claimant on his claim in law and it is also settled in Law that where no issued is joined, then there is no need to prove them.

Counsel went on that where a defendant fails to file a defence or abandons the defence he has filed as the 3rd defendant did in this case, then the Court is obliged to assume that such a defendant has no defence and he will be deemed to have admitted the claimant’s claim in its entirety; referring to the following cases: Okoebor v. Police Council [2003] 5.S.C.11 at 21; Usman v. Garke [2003] 7 S.C. 33 at 46; Ogbonna v. A.G. Imo [1992] 1 NWLR (Pt. 220) 647; Aghocha v. Aghocha [1986] 4 NWLR (Pt. 37) 566; Awoyegbe v. Ogbeide [1988] 1 NWLR (Pt. 73) 695; Nig. Housing Corp. v. Mumuni [1997] 2 S.C. 57.

 

In addition, He contended that the claimant has proved that he is entitled to the two reliefs in prayers 3 and 4 of his claims as the two orders/claims are consequential and they flow from the two declaratory reliefs in legs 1 & 2 of his claims. To him, the law is settled that where a claim or relief flows from a declaratory relief sought and the declaratory relief is granted, it follows that the consequential reliefs; which derive their life from the declaratory relief, must also be granted. He continued that it is an established principle of law that where an employee complains that his employment has been wrongfully terminated or that he was wrongfully dismissed, such employee has the burden of placing before the Court, not only the terms and conditions of his employment but must go ahead to show the manner in which the terms were breached by the employer. He referred to the cases of: Ogundipe v. Nig. Telecoms Ltd [2016] All FWLR (pt 817) 613; Katto v. CBN [1999] 5 S.C. (Pt. II) 21; Morounfola v. Kwara State College of Tech [1990] 4 NWLR (Pt. 145) 306; Okoebor v. Police Council [2003] 5 S.C. (Pt. II) at 341; Psychiatric Hospital Management Board v. Eyitaga [2000] 6 S.C. (Pt. II) 1; Power Holding Co. Ltd v. Offoello [2013] All FWLR (Pt. 664) 1 and Odomboye v. NNPC [2003] 1 SC (Pt. I) 40.

Counsel’s position is that, from the Amended Statement of facts, the claimant pleaded uncontrovertibly in paragraphs 19, 27 and 28 of his Statement of Fact and paragraphs 20, 28 and 29 of his Re-sworn Statement on Oath that the Oyo State Civil Service Commission Regulations (Document C.9) and the Oyo State Public Service Rules (Document C.10) govern his employment and that he is on a Pensionable level. He continued that there is no evidence before the Court to contradict or controvert this fact from the defendants and that where a party pleads a fact and the other who has the opportunity to controvert the fact fails and/or neglect to do so, such a fact is no longer in issue and the alleging party is relieved of the burden of prove; citing Nwarata v. Egboka [2006] All FWLR (Pt. 338) 768 at 7772. To counsel, even though the defendants made a general denial of paragraphs 26, 27, 28, 29 and 30 of the Amended Statement of Facts, that is not sufficient to show or prove that the claimant’s employment is not regulated by the Oyo State Civil Service Regulations and the Oyo State Public Service Rules; which the claimant specifically pleaded. He submitted that the law is now settled that a defendant must sufficiently and conclusively deny and traverse the averment contained in the statement of claim, citing U.I.T.H.M.B v. Ajide [2006] All FWLR (Pt. 326) 282 at 304 (paragraph F-G). Counsel maintained that the claimant’s pleadings and evidence that his employment is governed and regulated by Documents C9 and C10 remained uncontroverted.

 

Responding to the arguments on issues 2 and 3 of the 3rd defendant’s counsel in in his final written address that the law regulating the claimant’s employment is the Broadcasting of Oyo State Law Cap 19 Law of Oyo State; counsel submitted that there is no pleading from any of the defendants and it is trite that facts not pleaded goes to no issue, citing Alhassan v. Ishallu [2017] All FWLR (Pt. 860) 209 and Ogundeji v. Ganiyu [2016] All FWLR (Pt. 854). He continued that no evidence was led in proof of the procedure laid down in the so-called Broadcasting Corporation of Oyo State law for determining the employee’ employment and that the address of a counsel, no matter how beautifully written cannot take the place of evidence; citing Ajayi v. Total Nig. Plc. [2014] All FWLR (Pt. 719) 1069 (SC) and Olomade v. Sowemimo [2014] All FWLR (Pt. 750) 1311 (SC). Counsel went on that the 3rd defendant failed to produce the said Broadcasting Corporation of Oyo State Law, which he relied on as regulating the employments of the 3rd defendant’s employees. To him, it is trite that the duty of producing a particular document is on the party who intends to rely on it, citing Thomas Ofomaja v. Hon Comm. for Education [1995] 8 NWLR (Pt. 411) 69.  

Additionally, counsel submitted that the claimant’s employment enjoys statutory flavour in view of the un-contradicted evidence that the claimant’s employment is governed by the Oyo State Civil Service Regulations and the Public Service Rules of Oyo State, citing Federal Medical Centre, Ido-Ekiti v. Kolawole [2012] All FWLR (Pt. 653) 1999 at 2011. He went on that by Rule 020810 (i) of the Public Service Rules: “the compulsory retirement age for all grades in the civil/public service is 60years or 35years of pensionable service, whichever is earlier”. He contended that the procedure for the premature determination of such employment is well spelt out in Regulation 35(a) in Part 6 of the Civil Service Commission Regulations (Document C9) and that the defendants did not argue that they complied with the extant procedure laid down in Regulation 35(a) of Part 6 of the Civil Service Commission Regulations in compulsorily retiring the claimant from his employment.

Counsel submitted that in an employment with statutory flavour, strict compliance and adherence with the procedure for the termination as laid down in the statute or regulation made there under, must be followed and a breach of one step in the procedure is a breach of all the procedure that would warrant grant of the relief sought by the employee. That the failure of the defendants to comply with the procedure laid down for the termination of the claimant’s employment is fatal to the defence of the defendants, citing University of Ilorin v. Abe (Prof) [2003] FWLR (Pt. 164) 267 at 283; Okorocha v. Civil Service Comm. of Edo State [2004] FWLR (Pt. 190) and Iderima v. River State Civil Service Comm. [2005] All FWLR (Pt. 285) 431.

On the contention of counsel to the 3rd defendant in respect of his issue one argued in paragraphs 4:03 – 4:10 of his final written address, to the effect that the claimant does not have a cause of action against the 3rd defendant, counsel submitted that it is the defendants’ letter of July 15, 2013 (Document C.8) with which the claimant was compulsorily retired from the Public Service of Oyo State (1st defendant) that is the cause of this matter/action. He went on that the 3rd defendant was the author of this letter (Document C8) and which makes the 3rd defendant a necessary party or a nominal party but that the 3rd defendant is one whose presence is necessary for the effectual and complete determination of the claimant’s complaint for him to be bound by the decision in this case; citing Babayeju v. Ashamu [1998] 9 NWLR (Pt. 567) 546 and Peenok Investment Ltd v. Hotel Presidential Ltd [1982] 12S.C (Reprint) 1.

Counsel to the 3rd defendant filed reply on point of law and submitted that the 3rd defendant’s pleading is supported by enough evidence before the Court as the totality of the evidence before the Court strengthened his position that no cause of action is established by the claimant against the 3rd defendant in this suit. He went on that credible evidence that supported the 3rd defendant’s pleading was elicited during the cross examination of the claimant (CW1). He maintained that there is clear distinction between calling of witnesses and calling evidence in proving a matter before the Court, citing Akomolafe v. Guardian Press Ltd [2010] 3 NWLR (Pt. 1181) 338 at 353 – 354; INEC v. Ifeanyi [2010] NWLR 98.

On the issue of the Broadcasting Corporation of Oyo State Law not being pleaded, counsel submitted that the Broadcasting Corporation of Oyo State Law is a legislation of the State House of Assembly that the Court can take judicial notice of even if not pleaded or frontloaded before the Court, citing Section 122 (2) (a) (&) (b) of the Evidence Act, 2011 and the case of Nkpornwi v. Ejire [2009] 9 NWLR (Pt. 1145) 131 at 182 and Corporate Affairs Commission v. The Registered Trustees of Celestial Church of Christ (Nigeria Diocese) [2009] 11 NWLR (Pt. 1151) 40 at 55. Counsel to the 3rd defendant finally urged the Court to dismiss this action in its entirety.

COURT’S DECISION

Having gone through the facts and counsel’s arguments on this case, I am of the considered view that the issues for determination by this Court in this case are:

  1. Whether or not the claimant disclosed any cause of action against the 3rd defendant.
  2. Whether or not the claimant ought not to join the Broadcasting Corporation of Oyo State as a necessary party.
  3. Whether or not the compulsory retirement of the claimant is justified;
  4. If the answer to issue 3 is in the affirmative, whether the claimant is entitled to re-instatement together with the arrears of his salaries and other emoluments with effect from when his employment was determined.

Before determining the framed issues, it is imperative for me to bring out some salient facts, which came up during the trial of the case. Firstly, let me reiterate that the claimant testified for himself as C.W.1 while one Mr. Shittu Omowumi testified on behalf of the 1st and 2nd defendants as D.W1. However, the 3rd defendant did not call any witness but his counsel informed the Court that he is resting his case on that of the claimant.

Secondly, on October 13, 2016 the claimant opened and concluded his case. Thereafter, the case suffered several adjournments at the instance of counsel to the 1st and 2nd defendants until November 16, 2017 before they could open their defence, which they concluded on January 29, 2018. Then the Court directed counsel to the parties to file and exchange their final written addresses and to send soft copies of same to the Court. The matter was subsequently adjourned for adoption. Before the Court sat on April 26, 2018 when the matter came up for adoption, counsel to the 1st and 2nd defendants camento Court and told the Registrar of the Court that he was before the Court of Appeal and left. The Court stood the matter down for him to finish from the Court of Appeal and to afterwards come for the adoption. Around 1:30pm the Court continued with the proceeding on the case and the Registrar of the Court, Bukky Daodu informed the Court that she called the counsel, Mr. Akibu Akintola at 12:05pm and informed him that the Court stood the case down for him but he told her he will call her back but counsel did not call her back as promised. Again Mr. Ayo Faleti, counsel to the claimant sent his colleague A. A. Faleti to check Mr. Akibu Akintola at the Court of Appeal at 12:15pm. A.A. Faleti did but Mr. Akibu Akintola was not found at the Court of Appeal. As at the day in question, the 1st and 2nd defendants were yet to file their final written address and no explanation was given for this. Consequently, the Court foreclosed counsel to the 1st and 2nd defendants from filing his final written address relying on Order 45 Rule12 of the NICN (Civil Procedure) Rules, 2017. Thereafter, the Court directed the other counsel in Court to proceed to adopt their final written addresses and counsel to the claimant together with the 3rd defendant’s counsel adopted their final written addresses.

DID THE CLAIMANT DISCLOSE ANY CAUSE OF ACTION AGAINST THE 3RD DEFENDANT?

Cause of action is defined by the Supreme Court in the case of SPDC (Nig.) Ltd v. X. M. Fed. Ltd. [2006] 16 NWLR (Pt. 1004) Pg. 189 at P. 200-201, Paras. E-A to mean: a) a cause of Complaints; b) a civil right or obligation for determination by a Court of law and c) a dispute in respect of which, a Court of law is entitled to invoke its judicial powers to determine. It is a factual situation, which enables one person to obtain a remedy from another in Court in respect of an injury. Cause of action is also referred to as facts, which when proved will entitle a plaintiff to a remedy against a defendant. These facts are discernible by a resort to the writ of summons/complaint/originating summons and the statement of claim/statement of facts and other relevant evidence alleging when the wrong was committed, which gave rise to the cause of action. See the case of Unijos v. Ikegwuoha [2013] 9 NWLR (Pt. 1360) 478. It is trite that in determining whether a cause of action is disclosed, the Court is required to confine itself to the writ of summons/complaint and statement of claim/statement of facts; see Holec Project (Nig.) Ltd v. Dafeson International Ltd [1999] 6 NWLR (Pt. 607) 490 at 500, Para G-H.

By the averments in paragraphs 12, 13, 15 and 21 of the Amended Statement of Facts, the claimant pleads this way:

  1. 12.The Claimant avers that upon his redeployment back to the Broadcasting Corporation of Oyo State on the order of the Executive Governor of Oyo State, the 3rd Defendant who has since assumed duty as the Broadcasting Corporation of Oyo State Chief Executive Officer, refused to take the Claimant on the excuse that the Claimant has formerly worked in the office of the former Executive Governor of Oyo State who was from the opposing political party.
  2. Based on the refusal of the 3rd Defendant as the Chief Executive Officer of the Broadcasting Corporation of Oyo State to take back the Claimant, the Claimant avers that he was returned back to the Office of the Executive Governor of Oyo State on the order of the 1st Defendant’s Head of Service.
  3. The Claimant avers that to his surprise, he received a letter from the 3rd Defendant authorized by the Broadcasting Corporation of Oyo State, compulsorily retiring the Claimant from the Public Service of the 1st defendant (Oyo State); 3rd Defendant and Broadcasting Corporation of Oyo State’s letter of 15th July, 2013 is pleaded and same will be relied upon at the trial.
  4. The Claimant will contend at the trial that retiring him from the service of the 1st Defendant was maliciously and politically motivated.”

From the above paragraphs, I am of the considered view that the claimant’s complaint against the 3rd defendant is that the defendants, including the 3rd defendant compulsorily retired him from the service of Oyo State Public Service maliciously. At this stage, it does not matter whether the said complaint has been established against the 3rd defendant but at least there is a complaint, an alleged wrong against the 3rd defendant in this suit. Therefore, I find and hold that the claimant has cause of action against the 3rd defendant.

IS THE BROADCASTING CORPORATION OF OYO STATE A NECESSARY PARTY THAT OUGHT TO BE JOINED IN THIS SUIT?

The facts on this issue are that at its inception, when this matter was filed on September 6, 2013; the Broadcasting Corporation of Oyo State was also sued as the 4th defendant; see page one of the record. The Corporation raised a Preliminary Objection that the suit was filed against it prematurely as the claimant did not give the Corporation pre-action notice. The claimant’s counsel conceded and applied to withdraw the case against the 4th defendant; hence, the Corporation’s name was struck out as a party. After giving the necessary notice to the Corporation, the claimant instituted a separate action against the Corporation with Suit No: NICN/IB/99/2014. The claimant again made another attempt to consolidate that case against the Corporation with Suit No: NICN/IB/99/2014 with the instant suit with No: NICN/IB/83/2013 but this Court again refused. See a copy of the considered Ruling of this Court, delivered on December 15, 2015 at pages 529 to 538 of the record. In this peculiar circumstance, can we say that the non-joinder of the Corporation to the suit is fatal? Counsel to the 3rd defendant answered this question in the affirmative while the claimant’s counsel answered it in the negative.

In the case of Green v. Green [1987] 3 NWLR (Pt.61) 480 at page 498, the Supreme Court laid down the principles, which a Court should follow when it is deciding on the effect of non-joinder of a party to a suit when Oputa JSC postulated the following questions for a Court to answer when considering the issue of joinder of parties:

  1.    Is the cause or matter liable to be defeated by the non-joinder?
  2.  Is it not possible for the Court to adjudicate on the cause of action set up by the plaintiff unless the third party is added as defendant?
  3.  Is the third party, a person who ought to have been joined as a defendant?
  4.  Is the third party, a person whose presence before the Court as defendant will be necessary in order to enable the Court effectually and completely adjudicate on and settle all the questions involved in the cause or matter?

Also in the case of Azuh v. UBN Plc. [2014] LPELR 22913 (SC), the Supreme Court per Kekere – Ekun JSC held that:

The position of the law is that non-joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of a Court to adjudicate on the matter before it.

In the instant case, the claimant started and continued his working career with the Broadcasting Corporation of Oyo State for a major part of the period service. See the contents of Documents C.1 to C. 4 (v), C.7 and C.8 before the Court. However, none of the defendants contested the fact that the claimant was a Public Officer in Oyo State, which in my firm view was the reason why the claimant was deployed from the Broadcasting Corporation to the office of the Oyo State Executive Governor as Assistant Director (Protocol) in June 2007 in the first place. See also the contents of Document C.5 at page 27 of the record and the claimant’s letter of re-deployment in September 2011 in Document C.6 at page 28 of the record. Unlike when the claimant started his working career purely with the Corporation; he later became a public servant with the Oyo State Government (the 1st defendant) under, which the Broadcasting Corporation is now a Parastatal and I so find and hold. I further hold that been a Public Officer/Servant in Oyo State, the employer of the claimant from then on was the Oyo State Government and not merely the Broadcasting Corporation. This been the position of the claimant’s employment when he was retired compulsorily; it is my finding that the Corporation is not a necessary party but a nominal and desirable party to this suit. I again find that the presence of the Corporation as a defendant in this case will not be necessary before the Court can effectually and completely adjudicate on and settle all the questions involved in this cause. Besides, with the decisions of the Apex Court cited above, I hold that, even though the Broadcasting Corporation of Oyo State is a desirable and nominal party in the instant case; because the letters of employment and determination of the claimant’s employment emanated from it, I hold that the non-joinder of the Corporation as a party to this suit is not fatal to the case, as the said non-joinder is a mere irregularity that does not affect the competence or jurisdiction of this Court to adjudicate on the matter.

Was The Compulsory Retirement of the Claimant Justified?

On this issue, the content of Document C.8 titled “letter of compulsory retirement from the public service of Oyo State” is apt. The document is dated July 15, 2013; signed by the 3rd defendant and it is at page 30 of the Court’s record. Paragraph one of this document states:

I am to inform you that your services with the Oyo State Government are no longer required. In effect, you have been compulsorily retired from the Public Service of Oyo State with immediate effect.

In paragraphs 19, 27 and 28 of the statement of facts, the claimant pleaded that the provisions of the Civil Service Commission Rules of Oyo State and the Oyo State Government Public Service Regulations of 2013 are applicable to this case. The 1st and 2nd defendants generally denied paragraphs 19 and 28 of the statement of facts in paragraph 3 of their consequential amended statement of defence but aver nothing at all on the deposition in paragraph 27 of the statement of facts either in admission or in denial of same in their pleadings. Besides, the 1st and 2nd defendants did not specifically deny paragraphs 19 and 28 of the statement of facts in their pleadings. Still, apart from his general denial of paragraphs 19, 27 and 28 of the statement of facts in paragraph 1 of his amended statement of defence, the 3rd defendant did not make specific denial of any of the three paragraphs in question in his pleadings. It is trite that general denial of paragraphs 19, 27 and 28 of the statement of facts by the defendants and the silence on paragraph 27 of the statement of facts by the 1st & 2nd defendants without being specific, amount to admission of the averments in those paragraphs by the defendants. In the case of Meridien Trade Corporation Ltd v. Metal Construction (W.A.) Ltd. [1998] LPELR-1862(SC): [1998] 3 SC 20; the Supreme Court held:

A traverse which is evasive amounts to an implied admission. Every allegation of fact made in a Statement of Claim or counter-claim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counter-claim, as the case may be, and a general denial of such allegations or a general Statement of non-admission of them, is not sufficient traverse of them. Per Mohammed JSC (P.23 paras. E-G).

See also First Bank of Nig. Plc. v. T.S.A. Ind. Ltd [2007]: [2007] All FWLR (Pt. 352) 1719 at 1734 Paras. E- F (CA) and CBN   v. Uchenna Godswill Dinneh [2010] LPELR-CA/A/121/08 on the same principle. Consequently, I find and hold that, as a Public Officer in Oyo State, the provisions of the Civil Service Commission Regulations of Oyo State and the Oyo State Government Public Service Rules of 2013 are applicable to the instant case. Their copies are marked as Documents C.9 and C.10 respectively at pages 31 to 151 of the record.

Rule 020810 (i) of the Oyo State Government Public Service Rules provides that:

The compulsory retirement age for all grades in the services shall be 60years or 35years of pensionable service, whichever is earlier.

Regulation 35(a) in Part 6 of the Civil Service Commission Regulations of Oyo State provides:

If it appears to a Head of Department that there is reason arising out of the officer’s conduct or efficiency why a public officer who has been confirmed in a pensionable office and has served for not less than fifteen years should be called upon to retire, the Head of Department shall

(a)    if the officer is in category 1 or 2 make a recommendation, giving his reasons to the Commission, and if the Commission, after having received the recommendation authorizes him to call upon the officer to submit representations regarding his proposed compulsory retirement, the Head of Department shall do so and upon receiving any such representation or if the officer does not avail himself of the opportunity to submit representations before a date specified by the Head of Department (which date shall allow a reasonable interval for the purpose) he shall report the fact to the Commission;

As I have found above, the claimant was employed on February 21, 1992 and his employment was compulsorily determined on July 15, 2013. This means that he had worked for the defendants for over 21years before his employment was determined. At the time of his compulsory retirement, the claimant was a Grade level 14 step 6 Public Officer in Oyo State Public Service; see the content of Document C.4 (v) at page 26 of the record. Thus, by the provision of Regulation 3 of the Civil Service Commission Regulations of Oyo State, the claimant was a Category 1 Public Officer in Oyo State Public Service at the material time.

The defendants’ contention on the compulsory retirement of the claimant is that, the claimant was employed by the Broadcasting Corporation. However, what the defendants failed to understand is that at the time of his compulsory retirement, the claimant was already a Public Officer under the 1st defendant, the Oyo State Government, if not, he would not be deployed to Governor’s office and re-deployed back to the Corporation after four years. The defendants contended again that by the time the claimant was brought back to the Corporation, he was no longer relevant to the Corporation; and so, he was compulsorily retired in line with the provisions of section 27 (1) of the Broadcasting Corporation Law of Oyo State.

The Broadcasting Corporation Law of Oyo State was made on August 1, 1983. See the preamble before Part 1 of this Law. The provision of section 1 states that, the Law is to be cited as the Broadcasting Corporation of Oyo State and ‘1985 No. 5’ is written at its side note. In Document C.1, the letter of Offer of Appointment, the claimant was appointed as Producer II for the Corporation on February 21, 1992; at least about 7years after the enforcement of the Corporation Law. This means that the claimant was employed as a staff of the Broadcasting Corporation of Oyo State; he was not employed as an employee of the former Government Broadcasting Corporation of Oyo State, to whom the provision of section 27 (1) of the Broadcasting Corporation of Oyo State 1985 No. 5 Cap.19 Laws of Oyo State of Nigeria 2000 applies. In other words, I find that the claimant was not an ‘officer of the former Government Broadcasting Corporation of Oyo State’ neither was he deployed by the appropriate authority to serve in the State from the former Government Broadcasting Corporation of Oyo State. In the circumstance, I hold that provision of section 27 (1) of the Broadcasting Corporation of Oyo State 1985 No. 5 Cap.19, Laws of Oyo State of Nigeria 2000; which relates to all Officers of the former Government Broadcasting Corporation of Oyo State deployed by the appropriate authority to serve in the State is not applicable to this case as the claimant was appointed by the present “Broadcasting Corporation of Oyo State” and not under the  ‘former Government Broadcasting Corporation of Oyo State’.

Haven held that section 27 (1) of the Broadcasting Corporation Law is not applicable but the provisions of the CSC Regulations and the Oyo State Government Public Service Rules of 2013 that are applicable; can we then say that the defendants compulsorily retired the claimant in accordance with the relevant regulation and Rule?

For a Public Servant in Oyo State to be compulsorily retired from Public Service of the State, he shall be 60years old or that he has put in 35years of pensionable service; whichever is earlier. Apparently, neither of these ages is applicable to the claimant in the instant case; as there is no pleading on this neither is there any evidence before the Court that at the time of his compulsory retirement, the claimant was either 60years of age or that he had rendered to Oyo State Government 35years of pensionable service. This not being the case, it is mandatory for the defendants to follow the procedure stated in Regulation 35 (a) of the Civil Service Commission Regulations of Oyo State in compulsorily retiring the claimant.

There is no provision under the Civil Service Commission Regulations of Oyo State and under the Oyo State Government Public Service Rules of 2013 that allows the 3rd defendant, Chief Executive Officer of the Broadcasting Corporation of Oyo State to compulsorily retire a level 14 Public Officer from Oyo State Public Service without following due process and without recourse to the Civil Service Commission of Oyo State. What the 3rd defendant and the Broadcasting Corporation ought to have done when they realized that the claimant did not fit into the Corporation system again at the point he was re-deployed back to the Corporation was to make a report on that to the Civil Service Commission of Oyo State and then await further directive from the Commission, but the defendants failed to do that. Rather, they unilaterally retired the claimant compulsory from Oyo State Public Service in deviance to the provisions of Regulation 35 (a) of the Civil Service Commission Regulations of Oyo State. Consequently, I find and hold that the compulsory retirement of the claimant by the defendants was illegal, null and void and of no effect.

Is the claimant entitled to re-instatement and to payment of his arrears of salaries?

In order for an employee whose employment was wrongly determined to be entitled to re-instatement, his employment must have enjoyed statutory flavour. In the case of Imoloame v. WA.E.C. [1992] 11/12 SCNJ 121 at 135; [1992] 9 NWLR (Pt. 265) 303, the Supreme Court held that: “where the contract of service is governed by the provisions of a statute or where the Conditions of Service are contained in regulations derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of Master and Servant. It accordingly enjoys statutory flavour”. Also in the case of Union Bank v. Ogboh [1995] 2 SCNJ; [1995] 2 NWLR (Pt. 380) 647 the Supreme Court held that: “in an employment with statutory flavour, the parties are bound to observe the Conditions contained in the statute and anything done which is inconsistent with that shall be null and void and of no effect”.
The Rules and Regulations of the Public Service of Oyo State and Civil Service Commission are made pursuant to the provisions of the Constitution of the FRN, 1999 (As Amended) for smooth operations of the Public Service of Oyo State and because these Rules and Regulations are the terms and conditions applicable to the employment of Public Servants in Oyo State, I find and hold that the claimant’s employment with the 1st defendant is with statutory flavour. These Rules and Regulations of Oyo State Public Service state how the employment of the claimant is to be compulsorily retired as reproduced above and which are to be strictly complied with. Nevertheless, the defendants failed to comply with Rule 020810 (i) of the Oyo State Government Public Service Rules and Regulation 35(a) of the Civil Service Commission Regulations of Oyo State in compulsorily retiring the claimant in the case at hand as shown above. Consequently, I find and hold that the compulsory retirement of the claimant by the defendants is a nullity and of no effect whatsoever.

 

In the recent case of University of Ilorin & Ors v. Dr. Mrs. Aize I. Obayan unreported Suit No: SC.35/2006, the judgment of which was delivered on February 2, 2018; the Supreme Court held inter alia that:

 

Although Exhibit 25, which is the revised regulations governing the conditions of service of Senior Staff of the University of Ilorin provides for termination of appointment since there is evidence that the respondent is a senior staff of University of Ilorin, her employment could not be treated as a mere master and servant relationship whereby her service could be dispensed with at will. — I find that this appeal is totally devoid of any merit and it is accordingly dismissed. I further affirm the judgment of the lower Court delivered on 10 March, 2005; which ordered the respondents (now the appellants) to reinstate and restore the plaintiff to her post as a lecturer and Reader in the Department of Guidance and Counseling of the University and to restore to her all rights, entitlements and other perquisites of that office and to pay to the plaintiff all her salaries, allowances and other entitlements from September 1999 to date. For the avoidance of doubt, the plaintiff is still in the service of the University of Ilorin.

 

Based on these findings and holdings; particularly the recent decision of the Supreme Court cited above, I hold in addition, that the defendants shall re-instate the claimant as an Assistant Director (Programmes) on GL 14 Step 6 with the Public Service of Oyo State Government (the 1st defendant). The defendants are to also restore to the claimant all rights, entitlements and other perquisites of that office and to pay to him all his salaries, allowances and other entitlements with effect from July 16, 2013 when the letter of illegal compulsory retirement was received by the claimant to date. Nonetheless, even though the 3rd defendant wrote the claimant’s letter of compulsory retirement, I find that he did that on behalf of a disclosed principal, the Broadcasting Corporation of Oyo State. Consequently, I hold that by virtue of the provision of section 4 (7) of the Broadcasting Corporation Law of Oyo State, the 3rd defendant is not personally liable for authoring the illegal letter of compulsory retirement of the claimant in this case.

 

On the whole, I declare and order as follows:

1.      I declare that the compulsory retirement of the claimant’s employment by the defendants on July 15, 2013 is wrongful, illegal and of no effect whatsoever.

2.      I declare that the claimant is still a lawful employee of the 1st defendant.

3.      I hereby Order that the claimant is to be re-stated to his post as an Assistant Director of Programmes in the Public Service of Oyo State without loss of his rights and privileges attaching thereto.

4.      I hereby Order that the 1st defendant is to pay to the claimant all his arrears of salaries, allowances and other emoluments/entitlements due to him from July 2013 till today less his indebtedness to the defendants. Thereafter, the 1st defendant is to continue paying the claimant’s full salaries, allowances and other entitlements due to him until the employment is properly determined.

5.      The 3rd defendant is not personally liable for issuing the illegal letter of compulsory retirement to the claimant by virtue of section 4 (7) of the Broadcasting Corporation Law of Oyo State

6.      The 1st defendant is to pay the judgment debt together with N60,000.00 cost to the claimant within 60days from today.

 

Judgment is entered accordingly.

Hon. Justice F. I. Kola-Olalere

Presiding Judge

admin

Website:

Related Story