OSUH SAMPSON -VS- BIA STATE UNIVERSITY

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

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

DATE: THURSDAY 21^STFEBRUARY 2019

SUIT NO.NICN/OW/62/2016

BETWEEN:

OSUH SAMPSON…………………………………………CLAIMANT

AND

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

APPEARANCES:

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

JUDGMENT

INTRODUCTION

This suit was commenced by complaint dated 26/09/2016 and filed 27/09/2016 [the date endorsed as the date the filing fee was paid, as distinct from 26/09/2016 stamped on the complaint]. The Statement of Facts [wrongly tagged ‘Statement of Claim’] dated 26/09/2016 but filed 27/09/16was accompanied with the Claimant’s Statement on Oath, the List of Documents and the List of Witnesses. By paragraph 15 of the Statement of Facts, the claimant claims the following reliefs:

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

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

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

On this basis and on the application of the learned counsel to the defendant, the matter was adjourned to the very following day, 12^th December 2017 to enable the learned counsel to the defendant file a written address. The learned counsel filed the said written address as prayed on 12^th December 2017 but while that of the sister case [supra] was moved on the said 12^th December 2017, this was never moved.Maybe, because the sister case [supra] went to trial on this date and took long,and the other cases consequently adjourned off record to 13^th March 2018.On 13^th March 2018, the case was again adjourned off record to 23^rd April 2018 vide proceedings of that day in another sister case: Suit No. NICN/OW/59/2016 – Mbagwu Ignatius v. Abia State University. On this date, it was further adjourned off record to 22^nd May 2018. On 22^nd May 2018, the matter came up as adjourned and the case was opened.

But before going to the trial, let me first summarise the parties’ pleadings, on the bases of which issues were joined, evidence led and arguments proffered,in the final written addresses by their counsel.

CASES MADE BY THE PARTIES’ IN THEIR PLEADINGS

Statement of Facts

The claimant said he was a staff of the defendant at all time material to this suit, having been employed in its Security Department by a letter dated 23^rd August 1989; and that, the appointment was confirmed by a letter dated 12^th July 1993. The claimant said by dint of hard work, rewarded by promotions, he was promoted to the rank of Senior Security Officer by letter dated 20^th January 2012 and that; it was on this rank that the defendant terminated his appointment by a letter dated 28th June 2016. The claimant said he had served the defendant for 24 years. The claimant said by virtue of his rank as Senior Security Officer, he was a senior staff of the defendant and governed by the “Regulations Governing Conditions of Service of Senior Staff (HATISS 06-15)”[to be called RGCSSS] approved by the University Council on 12/12/2002. The claimant said he,at no time committed any misconduct and that he had never been queried and neither invited to any disciplinary committee on any allegation; and that, he was not given fair hearing before his appointment was determined, contrary to paragraph 2.14 of the RGCSSS and section 36 of the 1999 Constitution. The claimant stated that he protested the termination by a letter to the Vice-Chancellor dated 21^st July 2016 and that, the defendant refused to reply the said letter. The claimant said, through his lawyer, by a letter dated 17^thAugust 2016 and served on the defendant on 18^th August 2016, he also gave the defendant one-month notice of his intention to commence legal action against it, and that, the defendant refused to reply the pre-action notice thus, this action was brought. The claimant gave the defendant notice to produce originals of these letters at trial, failing, which copies would be tendered.

Statement of Defence

The defence was that, the reckless conduct of the claimant as security officer led to breach of security, death of students, festering of deadly cult activities and wanton destructions of lives and properties in the University. And that as a result, the defendant set up a Committee to investigate the breach of security pursuant to section 5(1) & (2) of the Abia State University Law and the RGCSSS. The defendant said witnesses, including the claimant, were called to the meetings of the Committee, which sat in the open. The defendant said the Committee found the claimant guilty of monumental failure and inability to discharge the functions of his office as security officer. The defendant said it never received the letters or notices allegedly sent to it by the claimant. The defendant said the termination of the claimant was lawful and in accordance with the laws and the RGCSSS and that, the claimant is not entitled to the reliefs claimed. The defendant also counterclaimed for the cost of defending this action.

Reply and Defence to Counterclaim

The reaction of the claimant to the Statement of Defence, apart from repeating the Statement of Facts, was that he had always been diligent and never reckless in his duties, which was why no query was ever issued him and that, his counsel wrote the defendant through the Vice-Chancellor and that the said letter was served and received by the defendant through its agent/servant who acknowledged receipt on 18/08/2016.

It is on the foregoing bases, as reviewed in a, b, & cabove that the suit was fought and evidence led in proof and arguments canvassed by learned counsel in support of each party’s case. To the trial proceedings, being the next in line, I go.

TRIAL PROCEEDINGS

On 22^nd May 2018, trial commenced in this suit with the claimant opening his case by testifying on behalf of himself as CW1. CW1 elected to speak in Igbo. The Registrar of Court 1, Simeon Ikpa, was assigned the duty of interpreter. CW1 was sworn on the Holy Bible. After complying with all other initial preliminaries, CW1 adopted his witness statement on oath deposed on 26^th September 2016. All the documents brought forward by the claimant were admitted without objection from the defendant’s counsel, and were accordingly marked Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11(1-3), 12, and 13 respectively. After this, CW1 said he was not liable for the counterclaim and asked the Court to grant all his reliefs. Thereafter, the learned counsel to the claimant applied for substitution of the original documents tendered with photocopies and this application was granted unopposed and thereafter, the case was adjourned to 24^th May 2018 for cross-examination of CW1.The matter came up as adjourned on the 24^th May 2018 for cross-examination and CW1 was cross-examined. After objection to the line of re-examination taken and the arguments thereto and the ruling of Court upholding the objection, the case of the claimant was closed. The matter was thereafter adjourned to 6^th June 2018 for defence.

The matter came up on the 6^th June 2018 as adjourned and one Ogbonna Onuha testified for the defendant as DW1. DW1 was sworn on the Holy Bible, and after complying with the initial preliminaries, DW1 adopted his witness statements on oath deposed 21^st November 2016 and the additional one deposed 8^th December 2017. DW1 only tendered one document, and it was admitted as Exhibit DW1 without objection. Thereafter, DW1 asked the Court to dismiss the suit. Thereafter, the case proceeded to cross-examination. DW1 was cross-examined by the counsel to the claimant accordingly. There was no re-examination. The defence closed at this stage and the matter was adjourned to 26^th September 2018 for adoption of final written addresses of counsel to the parties.

ADOPTION OF FINAL WRITTEN ADDRESSES

On 26^th September 2018, the Court did not sit due to my transfer from the Owerri Judicial Division and the need to secure fiat to complete my part heard matters. When fiat was eventually secured, the Court sat on 30^th November 2018. On the 30^th November 2018 when the matter came up, the learned counsel for the claimant applied for waival of the default fee for filing the claimant’s final written address out of time. This application was refused and the matter adjourned to 7^th December 2018 for evidence of payment of the default fee and adoption of the final written addresses thereafter. The Court did not sit on the 7^th December 2018 and the matter was adjourned off record to 11^th December 2018. The Court sat on the said 11^th December 2018 and the matter went on as scheduled after evidence of payment of the default fee had been confirmed and the final written address of the claimant regularized.

The learned counsel to the defendant, THEO NKIRE adopted first. The learned counsel adopted both the final written address of the defendant and the reply on points of law filed 14^th June 2018 and 30^th November 2018 respectively. In adumbration, the learned counsel to the defendant invited the Court to take a special note of Idoniboye-Obu’s case cited in the final written addressesof parties because both parties relied on it. The learned counsel said the kernel of the case was that the Supreme Court held that failure of a supposedly subsidiary legislation to show clearly in its body, by mentioning exactly where and how the power to make it was derived, is fatal. The learned counsel also said that, in Idoniboye-Obu’s case, the entire NNPC subsidiary legislation was tendered, and yet the Supreme Court rejected it as not properly made, whereas, in this case, the claimant merely tendered three pages of a sixty-page document; and that, the three pages tendered did not include the opening paragraph from which it could be seen the source from which the defendant derived the power to make subsidiary legislation. On this basis, the learned counsel submitted, the claimant had failed to furnish the Court with sufficient material to find for him. The learned counsel subsequently urged the Court to dismiss the case.

Thereafter, after objecting to the reply on points of law filed by counsel to the defendant on the ground that it was a repetitious, the learned counsel to the claimant:V.O. NWUGO adopted the final written address of the claimant dated and filed 27^th November 2018. After abandoning the adumbration he started, the learned counsel to the claimant urged the Court to grant all the reliefs of the claimant and dismiss the counterclaim. On this note, the case was adjourned to 8^th January 2019 for judgment. But as the judgment was not ready on this date, it was therefore adjourned sine die till it is ready when delivery date would be communicated to the parties. Having been ready the counsel to the both parties were accordingly communicated.

I shall now proceed to summarise the final written addresses of counsel to the parties.

ADDRESSES OF COUNSEL TO THE PARTIES

Defendant’s Final Written Address

THEO NKIRE franked the defendant’s final written address. The learned counsel submitted two issues for the determination of the case, to wit:

Whether, considering all the circumstances of this case, the Claimant who in cross-examination admitted that his lawyer wrote and signed his deposition for him has proven his case and thereby discharged the onus of proof laden on him? [sic]
Whether, considering the provisions of paragraph 2 (b) of the Claimant’s contract of employment [Exhibit CWA, CWA1] with the Defendant and other circumstances of this case, Claimant’s employment was not lawfully terminated since the Abia State University Regulation Governing Conditions of Service of Senior Staff on which the Claimant relied was not enacted by the Abia State Assembly as a Schedule to the Abia State University Law nor as a Subsidiary Legislation as required by law. [sic]

Arguing issue 1, as formulated above, the learned counsel to the defendant cited sections 131, 132, and 133(1) of the Evidence Act and submitted that, the initial burden of proof lies on the person against whom the judgment of the Court would go if no evidence were given by either side and that, it is only after this initial burden is discharged that it shifts to the other side. The learned counsel submitted that, this initial burden is on the claimant in the instant case. The learned counsel cited Adama Beverages Ltd v. Galleon (2006) LPELR-40314 (CA); N.B. Ltd v. D.C. Holdings Ltd (2004) 13 NWLR 436 at 462; Chime v. Eze (2010) 6 EPR 353; Deame Pauline K. Tallen v. Jang & Ors (2011) LPELR-9231 (CA) and a host of other authorities on this point; and submitted that, where a claimant failed to lead evidence in support of his case, the case fails. The learned counsel cited Insurance Brokers v. Atlantic Textile (1996) 9 10 SCNJ 171 and other authorities on this point. The learned counsel argued further that, this is so, because averments in pleading are not evidence and vice versa; and cited Aake & Anor v. Akun (2003) 14 NWLR (Pt. 840); (2003) LPELR-72 (SC) 9 and other cases.

The learned counsel also argued that, under cross-examination, claimant, who testified for himself as CW1, admitted that his lawyer wrote and signed the witness statement on oath, which he adopted, for him.The learned counsel argued that, immediately after CW1 gave his answer above, his counsel stood up stating that, that was not what the witness intended to say and that, this interjection was tantamount to suggesting to the witness that he should give another answer. The learned counsel argued that, as a result of this, CW1 answered the next question put to him under cross-examination, which was whether after his lawyer wrote and signed the witness statement on oath, he also filed it for him, to which theCW1 now answered that, he [CW1] filed his witness deposition by himself. The learned counsel argued that, the Court had advantage of watching the demeanour of the witness to ascribe probative value to his testimony and that, it is on record that,the learned counsel to the claimant made spirited attempts to make CW1 change his answer, upon which the Court reminded the counsel to the claimant that, the record of the Court was clear on the answer the claimant gave.

The learned counsel argued that, under re-examination, the counsel to the claimant sought to make the claimant change the answer he initially gave under cross-examination, which line of re-examination was objected and the Court ruled in the defendant’s favour, to the effect that, the CW1 was quite satisfied with the answer he gave under cross-examination until his lawyer suggested to him that he ought to have answered otherwise. The learned counsel said he relied on the said ruling to argue that, the claimant, having admitted that he was not the maker of his witness statement on oath, which he adopted, could not rely on it as his evidence in this case. The learned counsel referred to section 223 of the Evidence Act and Cross-Examination: Mastering theTrial Lawyer’s Most Potent Weapon by Fola Arthur-Worrey and Yemi Osinbajo to highlight the purposes of cross-examination.The learned counsel also cited Borishade v. N.B.N. Ltd (2007) 1 NWLR (Pt. 1015) 217 at 237, C-F on the purposes of cross-examination and how it could be dexterously employed to unearth the demeanour that brings out hidden falsehood and answers that unearths the truths. The learned counsel submitted that, this was what exactly was achieved in the cross-examination of CW1 where it was successfully brought out from the CW1 that his witness statement on oath was not made by him. The learned counsel submitted that, since the witness did not make the witness deposition, there was therefore no evidence supporting his case and the case cannot stand. This ended arguments on issue 1. The learned counsel thereafter moved to issue 2.

On issue2, the learned counsel to the defendant argued that, a claimant who claimed wrongful termination has the responsibility to plead and prove the contract of service and how it was wrongfully determined. On this, the learned counsel cited Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt. 805) 589; (2003) 1 S.C (Pt. 1) 40 and a host of other authorities. The learned counsel submitted further that, the fact that an employer is a statutory body does not cloth its conditions of service with statutory flavour. On this, the learned counsel cited Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board (1993) 5 NWLR (Pt. 291) 47. The learned counsel also submitted that, where an appointment is determinable simpliciter,by agreement of the parties, it could not be imputed with statutory flavour. The learned counsel cited Fakuade’s case [supra]; Okomu Oil Palm C. Ltd v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660; and Idoniboye-Obu’s case [supra]. The learned counsel opined that,since the letter of appointment [Exhibit 1] issued the claimant by the defendant clearly provided in paragraph 2(b) for termination by either party by issuance of notice or payment in lieu thereof, which letter of appointment the claimant accepted, it followed that; the employment was not clothed with statutory flavour.

The learned counsel submitted that, the claimant’s argument that the Conditions of Service of Senior Staff of the defendant governed his employment and conferred it with statutory flavour is not correct, but that, before an employment could be attached with statutory flavour, as was held in Idoniboye-Obu’s case [supra], the statute must expressly make it so, failing, which it would be treated otherwise. The learned counsel argued that, a set of Conditions of Service would only assume statutory flavour if enacted by a legislative body as a schedule to a statute or as a subsidiary legislation. The learned counsel argued that, since the RGCSSS in issue was approved by the University Council, just like the Conditions of Service in Idoniboye-Obu’s case were drawn up and approved by the Board of NNPC, and the Supreme Court still held that the Conditions of Service of NNPC, had no statutory flavour like section 17 of the University of Lagos Act and the Public Service Commission Regulations, which governed the employments in Olaniyan and Shitta-Bey respectively, the Conditions of Service of the defendant herein, would also not have statutory flavour.

The learned counsel submitted that, the defendant had established good cause for terminating the employment of the claimant in accordance with paragraph 2(b) of the letter of appointment by showing that, he and his colleagues were so incompetent such that, the University was overrunby cultists, leading to gruesome murder of students and total breakdown of law and order in the University.The learned counsel submitted that, an employer could bring the employment of its employee to an end with or without reason, so far, it acts within the compass of the terms of the contract of employment, and vice versa. The learned counsel referred the Court to Commissioner of Works, Benue State v. Devcon Ltd (1988) 3 NWLR (Pt. 83) 407 at 423. The learned counsel submitted that, in case of breach, the only remedy available to the claimant is payment of damages for the length of notice that ought to have been given. On this, the learned counselcitedWestern Nigeria Development Corporation v. Abimbola (1966) 1 ALL NLR 159 at 160-161; Chukwuma v. SPDC Nig. Ltd (1993) 4 NWLR (Pt. 289) 512 at 538 and other authorities. The learned counsel submitted that, therefore, the claimant’s heavy reliance on the RGCSSS was an error.The learned counsel argued that, this is so, because the said RGCSSS neither applied to the employment of the claimant nor clothed it with statutory flavour nor was it provided for anywhere in the Abia State University Law.

The learned counsel submitted that, arising from the foregoing, this Court is estopped from granting the declarative reliefs claimed because, the law is that, where an employer terminates an employment without statutory flavour within the terms of the employment, the Court would lack power to grant any declarative relief. The learned counsel therefore submitted that, claimant’s relief 1, which is declarative, is not grantable and that, since all the other reliefs are ancillary to it, they are equally not grantable. The learned counsel finally urged the Court to dismiss the suit.This marks the end of the final written address of the defendant. I shall now move to that of the claimant.

Claimant’s Final Written Address

CHIMA EZIKE franked the claimant’s final written address. The learned counsel formulated three issues, to wit:

Whether the claimant has proved that his employment with the defendant enjoys statutory flavor. [sic]
Whether, considering all the circumstances of this case, the claimant who in cross [sic] examination admitted that his lawyer wrote and signed his deposition for him has proven his case and thereby discharged the onus of proof laden on him. [sic]
Whether The [sic] Claimant Proved His Case [sic] so as to be entitled to the judgment of the Honourable Court. [sic]

On issue1, the learned counsel argued that,the claimant’s employment is governed by the RGCSSS;and that, the provisions of the said RGCSSS have statutory flavour, which made termination not in accordance, unlawful. The learned counsel went further to argue that sections 28 and 29 of the Abia State University Law gives the defendant’s Council powers to make the RGCSSS and that, since the RGCSSS, is a subsidiary legislation,it formed part of the Abia State University Law. The learned counsel argued further that, the reliance placed by the learned counsel to the defendant on paragraph 2(b) of the letter of appointment of the claimant is totally misconceived in view of paragraph 2(a) thereof, which was ignored.

The learned counsel argued that, contrary to the assertion of the learned counsel to the defendant, paragraph 2(a) of the letter of appointment subjects the appointment of the claimant to the provisions of the Imo State University Law and statutes and amendment therein made and the regulations governing the conditions of service for junior staff made by the Council. The learned counsel cited Alhassan v. Abu Zaria (2010) ALL FWLR (Pt. 538) 962 at 966 on the interpretation of the phrase ‘subject to’. The learned counsel argued that, the reliance put on Idoniboye-Obu’s case was misconceived, in that, apart from the fact that, the RGCSSS was made pursuant to sections 28 and 29 of the Abia State University Law, the letter of appointment of the claimant clearly made his employment subject to the Abia State University Law and thestatutes or other amendments made therein. The learned counsel contended that the employment in issue has statutory flavour because; it satisfies all the trappings enumerated by Tobi JSC in Idoniboye-Obu’s case.

The learned counsel later opined that, since the claimant was promoted to senior staff, the new rank makes his employment to come under the purview of the RGCSSS applicable to senior staff; and that, this is a statute made pursuant to sections 23? [28] and 29 of the Abia State University Law. The learned counsel submitted that, paragraph 2:14 of the RGCSSS provided the procedure for terminating the appointment of senior staff and that; this procedure must be strictly followed, failing, which the termination would be declared a nullity. The learned counsel referred the Court to Adebiyi v. Sorinmade (2004) ALL FWLR (Pt. 239) 933 at 937. The learned counsel submitted further that,construction of Exhibits 1 and 13 together with sections 28 and 29 of the Abia State University Law wouldlogically show that, the employment in issue hasstatutory flavour. Thus,argument on issue 1 was brought to an end on this note; and the learned counsel moved to issue 2.

On issue 2, which relates to admission by the claimant under cross-examination that his statement on oath was written and signed by his lawyer, the learned counsel argued that, the learned counsel missed the point because, the claimant answered the question in accordance with the interpretation provided by the interpreter, who misled the claimant. The learned counsel said the interpreter had said that he merely asked the claimant whether his lawyer signed his process without specifying the particular one. The learned counsel argued that, it would not matter whether or not the learned counsel to the claimant took objection timeously. The learned counsel argued in the alternative that, even if it is assumed that the claimant admitted that his lawyer wrote and signed his statement on oath, that only makes it irregular, which irregularity was cured when the claimant adopted it in Court.On this, the learned counsel cited Udeagha & Anor. v. Omegara & 3 Ors (2010) ALL FWLR (Pt. 542) 1785 at 1800-1801. The learned counsel submitted that, since the witness adopted the witness statement on oath in Court and there is no dispute as to the fact that it was sworn before Commissioner for Oaths, section 150 of the Evidence Act makes it valid.The learned counsel argued that, it would have been another thing, if the claimant had said the statement on oath was not his and rejected it outright or if it was not sworn as required.

On the basis of the foregoing, the Court was urged to hold that the witness statement on oath, adopted in Court isthat of CW1and been duly sworn, is competent. Thus, the argument on issue 2 ended, and the learned counsel moved to his issue 3.

On issue3, which deals with whether the claimant is entitled to the reliefs claimed, the learned counsel to the claimant argued that, by the totality of evidence adduced, the claimant had proved his case. After repeating the arguments he had earlier canvassed, the learned counsel argued that, it was not in dispute that the claimant was never afforded fair hearing. Citing paragraph 2:14 of the RGCSSS, the learned counsel submitted that,this secured right to fair hearing for the claimant and that, he must be heard before his appointment could be lawfully terminated in accordance with the provisions of section 36 of the 1999 Constitution. On this, the learned counsel cited Eze v. University of Jos (2017) ALL FWLR (Pt. 898) 101 at 117. The learned counsel submitted that, failure to give the claimant fair hearing rendered the termination liable to be set aside. On this, the learned counsel cited Angel Spinning & Dyeing Ltd v. Ajah (2000) FWLR (Pt. 23) 1332 at 1353-1354. The learned counsel finally urged the Court to set aside the termination and grant all the reliefs claimed, and to equally dismiss the counterclaim of the defendant.

The final written address of the claimant’s counsel was thus brought to an end. I shall now move to the reply on points of law filed by the counsel to the defendant.

Reply on Points of Law

CHIEF THEO NKIRE franked the reply on points of law. The learned counsel argued that, the arguments of the learned counsel to the claimant that, because the claimant was promoted to the rank of senior staff, he became subjected to the RGCSSS could not hold, unless the claimant signed another letter of appointment, the initial letter by which he was employed to the junior cadre continues to govern his employment. The learned counsel argued that, the learned counsel to the claimant could no longer reopen the issue of admission made under cross-examination because, the Court having determined it, became functus officio. The learned counsel submitted that, the only issue that could be examined in that regard is the implication of the admission so made. The learned counsel also argued that the authority of Udeagha & Anor. v. Omeagara & Ors [supra] is irrelevant to this case because, the facts and circumstances are different.

The learned counsel argued that, unlike the instant case, there was no issue of authorship of the witness Statement on Oath in that case and that, the issue that arose in that case was where the witness statement on oath was made and sworn, and the court held that, once it was found to have been sworn before a Commissioner for Oath, its regularity is presumed. The learned counsel argued that, in any event, presumption of regularity is rebuttable by cogent evidence; and submitted that, in the present case, where the witness admitted that, his witness statement on oath was authored and signed by his counsel, it means that, the evidence therein was not his own. The learned counsel submitted that, the failure to sign the witness statement on oath personally is fundamental; and urged the Court to discountenance it and dismiss the case.

The above are the proper of reply on points of law that I could find. The remainders are either re-argument or attempts to add to the previous arguments. I shall now move to the next and most important function of a judge in a judgment: that is, giving the decision of the Court. This is the abode of appraisal of evidence, cross-fertilization of evidence with the addresses of counsel to the parties, examination of authorities and bringing out the true position of law on the issues raised and rendering a decision with cogent reasons, which determines the rights of the parties in the suit. To achieve these, I have most painstakingly read all the processes filed in the suit and paid special attention to the relevant ones. I have equally listened to the evidence of witnesses in Court and the cross-examinations. I have equally carefully read most of the authorities cited on every issue canvassed and did my own research too. I have carefully digested the oral and written addresses of counsel to the parties, as is evident in my summaries of them above. To the main work, I now go.

COURT’S DECISION

Before delving into the main duty of giving my decision, let me address some preliminary and salient points. First, I observed that the defendant’s counsel failed totally to canvass any argument in the final written address on the issue of failure to serve pre-action notice pleaded; and on which evidence was led. I also observed that the claimant’s counsel did not say anything about this. In the same manner, I observed that, the defendant’s counsel did not canvass any argument in respect of the issue of counterclaim pleaded and on which evidence was led at trial. Though, the claimant’s counsel made passing remark that the counterclaim be dismissed in the claimant’s final written address. Thesetwo issuesaretherefore deemed abandoned – Fenton Keynes Finance Ltd v. Transply Nigeria Limited (2010) LPELR-4156 (CA) 15, C-D.

Besides, I even found that Exhibit 11(1-3) tendered, is an acknowledged copy of the pre-action notice, having been endorsed at the back of the second page, which makes the third page, as received by one Ekezie Jacinta, a Chief Typist on 18/8/16. I observed that CW1 was not cross-examined on the issue of service of the pre-action notice, making his evidence and Exhibit 11(1-3), which are in accord with paragraph 13 of the Statement of Facts and paragraph 5 of the Reply to remain unassailed.With regard to the counterclaim, apart from the fact that the defence failed to proffer argument on it, I observed too, that the claim therein is not actually a counterclaim, as it could not stand on its own in the absence of this suit and neither is it a set off. It is merely the cost of litigation. As such, it is in the nature of special damages, which require strict proof. No receipt or bank statement was tendered to show that the money was in deed paid. In any case, the claim is not even one grantable under Nigerian law – seeGuinness Nigeria Plc v. Nwoke (2000) LPELR-6845 (CA) 23-24, B-B; and Nwanji v. Coastal Services Ltd (2004) LPELR-2106 (SC) 18, B-E.The issues having been abandoned, as shown above, are accordingly struck.

The third preliminary issue I intend to examine is that dealing with the application for leave to amend the Statement of Defence and deeming the Amended Statement of Defence filed as properly filed and served.Attempt was made to move this application on 11^th December 2017 but adjournment was granted till the very following day, to enable the learned counsel regularise the application brought irregularly without written address. On the said 12^th December 2017,the written address was filed as promised, however, the application was not moved while the case was adjourned off record vide the sister case [supra]. Subsequently, it was never moved thereafter. However, I found that the defendant witness was led to adopt the witness deposition made pursuant to the Amended Statement of Defence on 8^th December 2017. And no objection was raised. Thus, it is clear that the case was fought on the basis of the Amended Statement of Defence.The Court of Appeal in Hope Democratic Party Petitioner v. INEC & ORS. (2009) LPELR-8677 (CA) 70-71, G-A held that:

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

The above authority is supported by Igbolezim & Ors v. Ewuru & Ors (2013) LPELR-21211 (CA) 44-45, B-D. In Nzenwata v. Nzenwata (2016) LPELR-41089 (CA) 38-43, D-F, the Court of Appeal held that, it is permissible for the Court to suo motu amend the pleadings in order to bring into focus the real issues at stake. In effect, it means the counsel to the claimant was not opposed to the Amended Statement of Defence been deemed as properly filed and served. Secondly, I observed that the amendments inserted into the Amended Statement of Defence did not in any way change the character of the case. In fact, they are very minor [see paras. 13, 20 and 21] such that, without them, the case could still be fought very well on the original Statement of Defence. I have even held that the issues inserted by the amendments were deemed abandoned by reason of failure to canvass addresses on them at the final written address, and they were accordingly struck out. Considering the foregoing reasoning and all the authorities cited above, I think this is a situation in which the Court is entitled to suo motu deem the amendment as properly filed and served. The Amended Statement of Defence is therefore deemed as properly filed and served. Let me now move to the substantive case.

In giving my decision on the merit of the case, I shall adopt the two issues formulated by the defendant, which to me, appeared to have captured the issues arising in the case while the issues formulated by the claimant are repetitive and failed to capture the breadth of the issues arising. Though, I shall reformulate the issues to make them more concise. The two issues reformulated are:

Whether the admission of the claimant under cross-examination that his lawyer wrote and signed his witness deposition on oath is fatal to his case?
Whether the appointment of the claimant was lawfully determined?

ISSUE 1:

Whether the admission of the claimant under cross-examination that his lawyer wrote and signed his witness deposition on oath is fatal to his case?

This issue is threshold, in that, if it were determined in favour of the defendant, it would no longer be necessary to go into the other issue. It would mean that the claimant failed to prove his case.The argument here is that, because the claimant, who testified as CW1, admitted under cross-examination that his lawyer wrote and signed his witness statement on oath, the statement belonged to the lawyer and not the claimant-witness and as such, there is no evidence in proof of the case. This argument was countered on the ground that it was the interpreter who misled the witness by wrong interpretation and that, even at that, the admission could not negatively affect the case since, the irregularity was cured by the subsequent adoption of the deposition in Court.

First, let me state that the aspect of the argument of the counsel to the claimant dealing with the witness being misled by the interpreter is a misnomer and misplaced. It is re-argument of an argument canvassed at trial and on which the Court gave its considered ruling thus, becoming functus officio. It is a matter for appeal. I would also like to say that section 150 of the Evidence Act cited by the learned counsel to the claimant is completely irrelevant to the issue at hand.Be that as it may, let me now turn to the other aspects of the arguments of the learned counsel to the parties on this issue.

My first observation is that, the learned counsel to the defendant did not challenge the CW1 on whether the evidence contained in the deposition in issue were not his own. All that was done in cross-examination was to unearth the facts that the lawyer wrote and sign for the claimant and not for himself. Below is a transcript of the evidence in issue: “Yes, my lawyer wrote and signed it for me – the witness deposition on oath. I am the one that filed my witness deposition in Court. I came with my lawyer the day I filed it.” [Underline supplied for emphasis] From this, especially the underlined portion, which is the material in issue, it is clear that the witness admitted that the deposition was his, but that his lawyer wrote and signed it for him. So, there is no dispute on the ownership of the deposition or the person responsible for the evidence contained in the deposition. So, the argument of the learned counsel to the defendant that the witness admitted that the deposition was not his, is totally contrary to the evidence on record, as shown above, and therefore wrong. The narrow dispute is the effect of the lawyer writing and signing it for the witness.This, the learned counsel to the claimant had argued that,it is a mere irregularity cured by the adoption in Court. On the other hand, the learned counsel to the defendant had argued that the defect is fundamental and incurable.

In any case, CW1 adopted the deposition as his and was cross-examined on it.The poser is: Does it mean that because a lawyer wrote and signed the witness deposition, just like pleadings, that it is not that of the claimant?The mere fact that a lawyer drafted and signed a witness statement on oath would not make such,that of the lawyer, just like pleadings franked and signed by a lawyer does not become his by that virtue, but remains that of the party for whom the lawyer acted. It would still remain that of the witness not withstanding the irregularities because, the lawyer could not have had the evidence deposed to, if not briefed by the witness. It should not be forgotten that, at all material time; the lawyer remains the agent of the client/litigant. The deposition might be irregular, no doubt, but it still remains that of the witness who adopted it in Court. The only thing, therefore, for the Court to decide, as rightly identified by the learned counsel to the defendant, is the effect of such irregularity on a witness deposition. It is an accepted practice, which is not hidden from the public that, lawyers draft all court processes for their clients, but I note that it is unusual for a lawyer to sign witness deposition for his client/witness. It is also known that lawyers draft and signed pleadings for litigants. In the days of old,before the introduction of the frontloading system, witnesses would be led to give evidence on the pleadings, prepared, signed and franked by lawyers, without anybody raising objection. So, I find it difficult to see the point in this objection. I see it as mere technical ambush.

Let me point out that the Evidence Act does not govern the witness deposition on oath; and as such, the witness deposition on oath cannot be equated to affidavit governed by the Evidence Act. It is governed by the rules of courts. The earlier this is appreciated, the better; and this has its implications on the status of witness depositions. The rules of this Court, which provide for witness deposition on oath, did not actually say the witness must be the one to draft and sign it. It only requires that such should be on oath. And the witness deposition in issue is actually on oath. There is no dispute about that. Other than this, the rules put the witness deposition on oath on the same pedestal as that of pleadings. It is only common sense and carryover from the requirements of Evidence Act with regard to affidavits, which must be on oath and signed personally by the deponent that the witness signs the witness statement on oath. A witness statement on oath is quite different from affidavit and the one should not be confused with the other. – see Order 3, Rule 9 of the NICN Rules:

“The Complaint shall be accompanied by:

a statement of facts establishing the cause of action;
a list of witnesses to be called;
a Written Statements on oath of all witnesses to be called by the Claimant; and
a list and number of copies of documents and other exhibits to be tendered at trial.”

These rules are validated under section 3 of the Evidence Actand section 12(2)(b) of the National Industrial Court Act. From the above quoted provisions, it is clear that, once the witness deposition is on oath, the issue of the person who drafted and signed it becomes immaterial. And if the issue of signing is to be material, the fault of shirking duty to insist that the deposition be signed by the maker/owner in his/her presence, would be that of the Commissioner for Oaths who accepted it against the rule that the signing be done in his/her presence and cannot be visited on the unsuspecting litigant/witness. After all, it is the name of CW1 that appeared on the witness deposition as that of the maker and not the name of the lawyer and the Commissioner for Oaths ought to have known and insisted on the rule that the deposition be signed by the maker in his presence – Dominic Ede & Anor v. Mba & Ors (2011) LPELR-8234 (SC) 33-34, F-A. In like manner, the sin of a lawyer cannot be visited on an unsuspecting litigant/witness – seeOsalumhense v. Agboro (2005) LPELR-7536 (CA) 17, A-F. The scenario painted above showed that, both counsel and the Commissioner for Oaths were allegedly responsible for the fault in issue and that, the witness knew nothing about the wrongness of the irregular procedure adopted, to be accused of conniving with them and therefore liable to be punished on the irregularity.It is thus clear that the claimant-witness could not be punished for this irregularity. It is also clear that the witness statement on oath is at the same pedestal with the pleadings. What happened in the instant case did not suggest that the evidence belonged to the lawyer, for the claimant did not say the lawyer manufactured the evidence, and in any case, no question was raised as to who supplied the lawyer with the evidence contained therein. And it is not in dispute that it is the name of the claimant/witness that is contained as the deponent, so what happened was a clear case of irregularity. By adoption in Court without objection, this irregularity is cured otherwise; the purpose of adoption would be negated. What the rules of courts did in creating witness statement on oath is to turn such oral testimonies into documentary statement, with status slightly higher than that of pleadings, because of the subtle distinction between evidence and pleadings.

Consequently, the present complaint of the defence counsel ought to have been a point of objection before the adoption of the witness deposition in issue: just like raising objection to admissibility of documents before admission. The witness statement on oath, being written, becomes a document, even though,not yet evidence until adopted in court. Once adopted without protest, as in the instant case, the mere technical irregularities, which did not affect the substance of the contents cannot vitiate the witness depositions, which now becomes documentary evidence. The objection would be too late in time. This is because, immediately the witness deposition is adopted, it becomes evidence. We should not forget that the adoption is done under another oath sworn by the witness before the very eye of the Court, thus curing any initial defect in the preliminary oath. These peculiarities mark out witness depositions on oath from affidavits.

An affidavit, immediately after it is sworn, becomes documentary evidence and does not need a second oath for it to be used by a Court whereas, a witness deposition needs a second oath to be admissible as evidence which could be used by courts. And at this, it becomes mere evidence-in-chief. It only becomes full evidence to be used in court after cross-examination. Whereas, affidavits need no adoption in courts and becomes full evidence immediately after they are sworn and are not subjected to cross-examination. If irregularities in affidavits, which are full evidence without further assurance, could be waived, how much more,irregularities on witness depositions, which are not full evidence until adopted and cross-examinations conducted on them in courts?Let me also state that, the purpose of frontloading system introduced is to eschew undue technicalities and prevent the conduct of cases as a fencing gamepreviously prevalent before its introduction. If this type of objection is allowed, it would defeat the whole essence of the frontloading system and reintroduce, by the backdoor, the cankerwormsthe frontloading system sought to tame–see Okpa v. Irek & Anor (2012) LPELR-8033 (CA) 9, C-A, where the Court of Appeal explained the law on similar situation thus:

“The Tribunal rejected the tendering of the witness statement on oath as it did not conform with the requirements of section 13 of the oaths Act. This court has consistently held that a witness statement on oath is different from an affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court Process [sic] in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence…On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts, his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine, the witness’ it is taken as the true situation of the facts contained therein

‘The Tribunal was therefore led by both parties to adopt a wrong procedure of turning the witness statements as exhibits which were eventually rejected. The only way facts in a witness statement can be jettisoned is by cross examination.” [Underline supplied for emphasis]

I think this authority is expository enough on the issue at hand. In any case, since the rules of this Court govern the frontloading system and not the Evidence Act, the rules this Court relevant to witness deposition, which form part of the frontloading system,are therefore waivable under Order 5, Rules 1 & 2 of the NICN Rules, if objection was not raised timeously before taken further steps in the case. The witness deposition in question had been served on the defendant long before its adoption in Court, and was adopted in the presence of the counsel to the defendant without protest, and the learned counsel to the defendant took further steps to cross-examine on it. The learned counsel is presumed to have known about the defect in question for him to frame question on it under cross-examination and left it at that, only to later raise objection on that ground against the witness deposition at the final address stage, with the sole purpose of ensuring that the case is devoid of evidence on the part of the claimant, and for a sin the claimant-witness did not commit.This is a classic case of laying ambush and turning trial into a whirlwind of chess gametactics and strategies in which ambushes and traps are laid in advance against the unsuspecting party which snap to entangle the unsuspecting party later. These are the things the frontloading system was designed to eschew. Everybody must bring his/her cards face up on the table. That is the new rule.

I don’t think a defendant should be allowed any technical advantage, which he would not haveenjoyed under the previous system where oral evidence was led pursuant to the pleadings,simply because of the newly introduced frontloading system, which was introduced to eschew all the technicalities inherent in the previous system. Under the previous system, the counsel to the defendant could not have prevented the claimant from giving oral evidence in support of his case. It would therefore be self-defeatist to allow the defendant to find another means of turning the frontloading system into a worse fencing game/chess game under which the claimant would now be totally prevented from giving evidence in his case for no justifiable reason other than mere technicality. The claimant should not be subjected to any new injury to which he would not have been exposed previously as a result of the introduction of the frontloading system designed precisely to eschew trial by ambush. It is therefore too late in the day to allow the defendant to activate the prospective ambush laid under cross-examination for the sole purpose of permanently shutting out the claimant from giving evidence and the Court from deciding the case on the merit.

In view of the foregoing, I am persuaded by the argument of the learned counsel to the claimant that what happened in the instant case is a waivable irregularity; and that the adoption in Court cures the defects in issue. The objection therefore lacks merit. I therefore resolve issue no. 1 in favour of the claimant and against the defendant. The objection against the witness deposition of CW1 is therefore dismissed. I hold that the Court is at liberty to countenance witness statement on oath and give it the probative value, if any, it deserves. I shall now move to issue 2.

ISSUE2:

Whether the appointment of the claimant was lawfully determined?

There are three questions to be answered under this issue. They are:1.Which conditions of service are applicable to the employment in issue?2.Does these conditions of service have statutory flavour? 3.If the answer to 2 is yes, were the conditions of service observed in the determination of this appointment?The first question to be answered here is: which conditions of service are applicable to the employment in issue? It is after this that the questions of whether or not these conditions of service have statutory flavour; and depending on the outcome of question 2, whether they were breached in the determination of the employment,would be examined.

The applicable conditions of service were surprisingly made an issue in the instant case. The contention of the learned counsel to the defendant is that, the applicable conditions of service would be that referred to in the letter of appointment [Exhibit 1] of the claimant, which is the bedrock of the contract between the parties. This letter, the learned counsel to the defendant opined, must continue to govern the contract and the applicable terms and conditions of service, regardless of whether or not the status of the claimant transformed by reason of attaining the rank of senior officer by promotions, unless and until another letter of appointment was issued incorporating different conditions of service. The learned counsel to the defendant relied on paragraph 2(b) of the letter of appointment, which specified that the parties have reciprocal rights of determination of the contract by giving notices or payment in lieu thereof. The learned counsel to the claimant, on the other hand, opined contrariwise, arguing that, the attainment of the rank of senior staff transmuted the conditions of service applicable to junior staff, as contained in the letter of appointment, to that of the conditions of service attached to senior staff, regardless of non-issuance of another letter of appointment reflecting this. The learned counsel to the claimant relied on paragraph 2(a) of the letter of appointment, which subjected the appointment to ASUL and statutes made thereunder and the conditions of service of junior staff.

I hold the very firm view that the position taken by the learned counsel to the defendant is wrong in the extreme and cannot be supported by logic, reason, employment custom and practice, and the law. The reliance placed on paragraph 2(b) of the letter of appointment, to argue that the conditions of service for junior staff are the applicable conditions of service for senior staff at the same time, even though, there are separate conditions of service for senior staff, simply because another letter was not issued at the point of promotion to senior staff, is totally incongruous and self-conflicting. How can a person be a senior staff and at the same time be governed by the conditions of service of junior staff, when in the same organisation, there are different conditions of service for junior and senior staff? This is totally illogical and cannot be the natural intendment of promotion to senior rank, except this incongruity is expressly stated in the letter of promotion to seniorcadre. Otherwise, the senior staff must by reasons of logic, internal cohesion, common sense, employmentcustom and practice be deemed to be governed by the conditions of service of senior staff where this was not expressly stated in the letter of promotion from junior to senior staff.The conditions of service of senior staff must be read into the contract immediately the claimant was promoted to the senior staff cadre, as implied terms of the contract – see Multichoice Nigeria Limited v. Azeez (2010) LPELR-4558 (CA) 11, A-F.

Apart from my reasoning above, I am further strongly persuaded of the rightness of the position adopted by the learned counsel to the claimant. Let me now justify this further by supplying more cogent reasons supported by logic and law. First, the reliance placed on Idoniboye-Obu’s case by the learned counsel to the defendant as supportive of the fact that, in spite of the fact that the plaintiff therein was promoted from junior rank to senior rank, his employment was held to be rightly terminated on the basis of the original contract between the parties irrespective of the senior rank attained, is most unfortunately a misrepresentation of the facts of the case. Rather Idoniboye-Obu’s case supports the arguments of the claimant. What happened in that case was that, the conditions of service applicable to the very rank at which the plaintiff therein was sacked was applied. Issue of which conditions of service were applicable did not arise at all and neither did that of the need to issue another letter of appointmentbefore particular conditions of service could apply.

The question examined was whether the appointment was rightly terminated and the Court held that since the conditions of service did not give Idoniboye-Obu’s employment statutory flavour, the appointment was rightly terminated in accordance with the terms whereas, impliedly conceded in the instant case, is that, ordinarily, the RGCSSS is applicable to senior staff in the defendant’s service, but would only not apply in the instant case, because new letter of appointment was not issued to reflect that, by the promotion of the claimant herein to the rank of senior staff, he would now enjoy the conditions of service of senior staff. If the logic of Idoniboye-Obu’s case is applied, then, without much ado, the RGCSSS would apply to the claimant’s case as canvassed by the learned counsel to the claimant because,thoseare the conditions of service applicable to the claimant’s rank.

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

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

Even if the promotion to the rank of senior staff indicates that a new letter must be issued for the claimant to enjoy the conditions of service appertaining to senior staff and this letter is not issued until the occurrence of the cause of action, whose fault is it? It is definitely the defendant’s fault and it cannot therefore profit from its failure to issue a new letter of appointment to defeat a right to which the claimant is ordinarily entitled. In any case, in the instant case, nothing of such was contained in the letters of promotion to senior staff. The defendant would therefore be estopped from raising such defence – see the Court of Appeal in Suit No. CA/A/795/2015 – Tukur v. the Kaduna State Polytechnic & 2 Ors. [delivered 30/07/2018by the Abuja Division] where it relied on the Supreme Court in Re: Apeh (2017) 11 NWLR (Pt. 1576) 3112 and held that:

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

This authority estops the defendant from challenging the fact that the claimant’s service is governed by the RGCSSS. I also notice a peculiar trait in the last letter of promotion as junior staff [Exhibit 6] and the first letter of promotion to senior staff [Exhibit 7]. These two letters were distinctively marked “PROMOTION: (JUNIOR STAFF)’ and ‘PROMOTION (SENIOR STAFF” respectively amongst all the array of letters of promotion tendered. This deliberateness is not without a purpose. It is to mark the transmutation from the junior cadre to the senior cadre because of the dichotomies in the conditions of service and status attached to the two different cadres.

Be that as it may. I even observed that the defendant is just blowing hot and cold on this issue of the applicable conditions of service. This, I say because, the defendant pleaded in paragraphs 7 and 16 of the Amended Statement of Defence and led evidence thereof in paragraph 18 of the witness statement on oath deposed 21/11/16 that,the appointment of the claimant was terminated pursuant to the RGCSSS. If the appointment was terminated pursuant to the RGCSSS then, it is axiomatically correct that, the defendant agreed that, the RGCSSS is the applicable conditions of service. It cannot turn round to argue contrariwise. Thus, the arguments of counsel in this wise go beyond his brief. His brief is as contained in the Amended Statement of Defence. Counsel cannot, at the stage of final written address, make a different case for the defence. A party is bound to be consistent in the case being pursued – see Jadesimi v. Okotie-Eboh &Ors. (1989) LPELR-20220 (CA), E-G.

Finally on this issue, I cite CBN & Anor. v. Igwillo (2007) LPELR-835 (SC) 21-23, G-F, where, in a similar situation, the Supreme Court held that, the mere fact that the plaintiff was originally employed on probation for two years and a new letter of appointment was not issued to the plaintiff to reflect the subsequent status, would not negate the fact that the appointment had been transmuted by the subsequent correspondence between the plaintiff’s former employer and the new employer wherein, the plaintiff was released by the former employer only on the condition that he be taken on transfer of service and not on fresh appointment. The letter of promotion to senior staff, in the same wise, transmuted the conditions of service of the claimant herein to those of senior staff. Having arrived at this juncture, I have no hesitation in holding that, the applicable conditions of service to the employment in issue are the ones contained in the RGCSSS.Poser 1under issue 2 is thus resolved in favour of the claimant and against the defendant. I shall now move to the second question under issue 2, that is:Does these conditions of service have statutory flavour?

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

“5(1) The University shall have power –

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

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

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

(a)

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

(c)…

(d)…

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

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

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

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

From the above, it is clear that the University has the power to create offices and posts and make appointments thereto and that, these powers shall be exercised by the Council or Senate or in any other manner as provided by statutes. Statutes herein mean regulations made by Council – see sections 2 [at regulations], 27 and 28(2)(b) & (3) of the ASUL. Section 5(1)(d) provides directly that the University shall have powers to provide for discipline and welfare of members and staff of the University. Section 5(2) says all the powers assigned under section 5(1) could be exercised by the Council or Senate or in any other manner as provided by statute. The RGCSSS is a statute of the University that provides for exercise of the powers of recruitment and discipline of staff as conferred by section 5(1)(b) & (d). Section 27(b) & (e) gives the University power to make statutes specifying and regulating the powers and duties of competent bodies of the University and any other matter relating to the University or any of its authorities and for generally carrying into effect the purposes of the ASUL.

It is therefore not in doubt that Exhibit DWB [the RGCSSS] provides for recruitment, discipline and welfare of all members of senior staff of the University pursuant to sections 5(1)(b), (d), &(2)and 27(b) & (e) of the ASUL and that it was approved as a statute by the Council pursuant to section 28(2)(b) & (3) of the ASUL. Being a statute of the University, ordinarily it ought to be a subsidiary legislation. The full title of Exhibit DWB is “Abia State University, P.M.B. 2000, Uturu – Regulations Governing Conditions of Service of Senior Staff (HATISS 06-15)”, which I have shortened to RGCSSS. One thing that is clear from the long title of Exhibit DWB is that, it is specifically made and meant for the protection of the employment of the senior staff of the University. In effect, it regulates the powers and duties of the University or its organs with respect to recruitment and discipline of its senior staff.

The implication is that, the junior staffers have their different conditions of service. On this, the parties impliedly agreed, otherwise, there would not have been stiff arguments on which conditions of service are applicable. Paragraph 2(b) of the letter of appointment made the appointment of junior staff terminable by reciprocal issuance of one-month notice or payment in lieu thereof. Both sides conceded this fact. Also conceded by both sides is that, this is not ordinarily applicable to senior staff. That is, senior staff appointment is not ordinarily terminable by simple reciprocal notice or payment in lieu thereof otherwise, efforts would not have been concentrated by both sides on proving whether or not the appointment of the claimant must be determined in accordance with the letter of appointment [Exhibit CWA (1-2)], which specified that the applicable conditions of service would be that of junior staff. But both sides are in sharp disagreement on whether, by being promoted from the rank of junior staff to senior staff, as opposed to being appointed as senior staff, the claimant, whose letter of appointment as junior staff had not been changed, would be entitled to conditions of service of senior staff,a rank which he has earned by promotion. Surprisingly, as indicated earlier, both sides relied heavily on Idoniboye-Obu’s case.And this authority was the latest Supreme Court’s authority cited by both parties on this issue and the issue of when employment could be said to have statutory flavour.

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

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

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

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

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

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

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

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

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

It would be observed that, from my earlier construction of the relevant provisions of the ASUL that the RGCSSS is made pursuant to sections 5(1)(b) & (d) and (2), 27(b) & (e) and 28(1)-(3) of the ASUL. As clearly indicated on the front page of the RGCSSS, it was approved by the Council in its 77^th Meeting in accordance with section 28(2)(b) & (3) of the RGCSSS. From the purport of the relevant provisions of the RGCSSS cited and reproduced above, it would become very clear that, the RGCSSS complied entirely with all the prescriptions contained in the first ratio cited above; and which ratio, is actually the lead ratio. The RGCSSS has statutory reinforcement and its provisions are clearly mandatory. Unlike the position of junior staff wherein the letter of appointment stipulated that each party has reciprocal right of termination of the appointment by mere giving of a month’s notice or payment in lieu thereof, Chapter 2.13(i), while it gives to the claimant right to resign or end his appointment by notice or payment in lieu thereof, Chapter 2.14(i), which contains the right of the employer to terminate, does not give it corresponding right to terminate with notice or payment in lieu thereof, except in cases of infirmity of mind or body, which is not applicable in the instant case. Instead, it subjects the right of the employer to rigorous tests of fair hearing and trial at a disciplinary committee before the appointment of a senior staff could be dispensed with.

Thus, it is clear that the employer herein does not have the right of reciprocal termination of appointment with notice or payment in lieu thereof. This plainly makes the compliance with the provisions of Chapter 2.14(ii) & (iii) which provides for fair hearing and for service on the employee the grounds on which appointment of senior staff could be terminated and the need to conduct trial and observe the right to fair hearing and the rules of natural justice, imperatives that cannot be disregarded for a valid termination. What I am saying, in essence, is that, the RGCSSS rules have statutory reinforcement and are mandatory and thus satisfied the first test prescribed in the ratio of the lead judgment cited above. I move to the second test prescribed therein.

It is without doubt that, arising from my finding earlier on that, the claimant herein, being a senior staff, is covered by the RGCSSS, that the RGCSSS which, by its title, is directly made to govern the appointment, promotion and discipline of senior staff, is directly applicable to the claimant, who was a senior staff – see Exhibits CWD and CWE, which confirmed that the claimant was a senior staff. There is even no contest on the fact that the claimant is a senior staff. So, the RGCSSS passed the second test. With regard to the third test, it is not in doubt that the relevant provisions of the RGCSSS are meant to protect the employment of tenured senior staff of the defendant, amongst whom was the claimant. So, in effect, the RGCSSS passed the third test. With regard to the fourth test, we shall leave that till after determination of whether or not the RGCSSS has statutory flavour.

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

I mark the word ‘implicitly’ because of its implication on the subsequent clause in the same ratio, which seemed to enjoin that the enacting clause must be simultaneously couched explicitly in a particular manner, which makes direct reference to the enabling Act or Law. It would appear, with the greatest respect to the learned law lord, and in my very humble opinion that, this creates a sort of internal contradiction in the seemingly concurring ratio of His revered Lordship, Niki Tobi JSC [of blessed memory], apart from the fact that, the need for explicitness in stating that the subsidiary legislation is made pursuant to the enabling section of the parent statute, was not contained in the ratio of the lead judgment. The same ratio cannot prescribe implicit condition and at the same time specify what amounts to explicit condition. I also observed that, it was not contained in the lead judgment that the parent statute must directly regulate the employment in question for subsequent conditions of service made pursuant to the parent statute to have statutory flavour. In the lead judgment, it appeared sufficient if the parent statute gives the body enacting the subsidiary legislation power to enact regulations on the employment, discipline and welfare of staff.But the use of the word ‘regulate’ may not be stressed, as it is only an alternative to the word ‘govern’ employed in the same sentence. The ASUL actually govern the recruitment and discipline of the staff of the defendant – see section 5(1)(b) & (d), only it did not regulate them.

There is a world of difference between to govern and to regulate. A section might govern an activity without necessarily providing the regulations by which that activity is governed. To regulate is to provide regulations by which an activity is governed; and these regulations could be provided entirely in subsidiary regulations made pursuant to the power granted by the parent statute.Section 5(1)(b) & (d) of the ASUL govern powers to appoint and discipline the claimant while sections 5(2), 27(b) & (e) and 28(2)(b) & (3) grant the power to make the necessary conditions of service [statute/subsidiary legislation] to regulate the employment and discipline of the claimant.What was done in the ASUL and the RGCSSS are quite in tandem with what was done with regard to the Federal Civil Service Rules and the Federal Judicial Service Commission Regulations 2010 made pursuant to sections 153, 158, 160(1) and paragraphs 11(1) and 13(c) of the Third Schedule to the 1999 Constitution.

Be that as it may, a concurring judgment is part and parcel of the leading judgment and any additional reason given therein for agreeing with the lead judgment must be taken as filing the gaps forgotten by the writer of the lead judgment – see Nwani v. Bakari & Anor. (2006) LPELR-7629 (CA) 13, A-E:

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

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

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

From the above rationes decidendi cited on the nature and effect of concurring judgment, it is not easy to place the ratio of Niki Tobi, JSC in Idoniboye-Obu’s case, as to whether or not it supports or supplants the lead judgment by introducing conditions, absent in the lead judgment, and which make it impossible for the lead judgment to fulfill itself when read together with the concurring judgment. It is not also easy to determine whether the concurring judgment does its own thing in its own way outside the lead judgment, such that, it becomes a dissenting judgment. But from theserationes decidendi, it appears clear that, the lead judgment must be self-fulfilling without reference to the concurring judgment. If by reference to the concurring judgment, the lead judgment, which was ordinarily self-sufficient, is no longer self-sufficient, in the sense that, without fulfilling the extra requirements added in the concurring judgment, the lead judgment becomes incomplete, such that, one must ignore the lead judgment for the concurring judgment then, the concurring judgment would therefore seem to have done its own thing in its own way, and thus, a dissenting judgment. I mean when a concurring judgment and the lead judgment cannot be reconciled or cannot cohabit, the concurring judgment amounts, in essence, to dissenting judgment.

Nevertheless, it would appear from these rationes decidenditoo, that the bottom line is, if the concurring judgment, at the end of the day, comes to the same conclusion as the lead judgment, whatever reasons that are added by the concurring judgment must be taken as edifying the leading judgment by addition of aspects forgotten by the writer of the lead judgment. This is the crux in this case, whereby the RGCSSS satisfied all the conditions specified in the leading judgment without exception; and those specified in the concurring judgment of Niki Tobi, JSC [supra], except for the additional requirements that, the principal statute must expressly govern or regulate the employment in additionto delegating power to make subsidiary legislation on the same employment it has governed orregulated; and that, the enacting clause of the supposed subsidiary legislation must be explicitly worded in a particular way, which the RGCSSS did not comply with. I held that the ASUL govern the employment in issue but did not regulate it and that the word ‘regulate’ is an alternative to ‘govern’, hence there is no problem with that. However, I have checked and could not find any clause in the whole of the RGCSSS, which contain anything in the nature of the enacting clause, which the ratio of His Lordship, Niki Tobi prescribed. I have not also found any authority of the Supreme Court, which sufficiently clarified the borderlines between concurring and dissenting judgments.

Now, because of the hazy borderlines between the confines of concurring and dissenting judgments, as discussed above, it is impossible for me to see may way through to resolve the status of the caveats introduced by Niki Tobi, JSC in Idoniboye-Obu’s case [supra].For this reason, I have searched to find out if there are more recent authorities of the Supreme Courtdirectly on the issue of when conditions of service would be deemed made pursuant to a principal statute or when a subsidiary legislation clothing an employment with statutory flavour would be deemed properly made pursuant to a parent statute, instead of trying to determine whether or not the ratio of His Lordship, Niki Tobi, JSC was a dissenting or concurring ratio, and in order to see what the most recent approach to this thorny issue is. Fortunately, I came across Comptroller General of Customs & Ors. v. Gusau LOR (7/4/2017) at (https://www.lawonlinereport.com/), which appears to be the most recent authority of the Supreme Court onthis thorny issue. In any case, it is the latest one I could lay my hands upon.Pages 8, 10& 11 [no paragraph given]of the authority are very instructive on the issue at stake. According to Ejembi Eko, JSC in the leading judgment at pp. 8-9:

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

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

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

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

Musa Datijo Muhammad, JSC, in His concurring judgment, at p. 10restated the law on when conditions of service would become a subsidiary legislation deemed to have statutory flavour by directly quoting the ratio in the lead judgment in Idoniboye-Obu’s case[supra], with approval, and without reference to the concurring judgment of Niki Tobi, JSC [supra]:

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

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

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

His Lordship, K.M.O. Kekere-Ekun, JSC, at p. 11 added this in His concurring opinion:

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

The above rationes decidendi from three of the justices that sat on the case demonstrated without equivocation that emphasis is not placed on the requirements in Niki Tobi’s, JSC ratio in Idoniboye-Obu’s case that the parent statute must itself directly regulate the employment before it could delegate power to a non-legislative body to make conditions of service with statutory flavour and that, such subsidiary legislationmust commence by specifically stating the sections of the parent statute pursuant to which the conditions of service are made before they could enjoy statutory flavour.It is sufficient if the parent statute merely governs it. What was stressed is that, an implicit nexus, as gathered from the intentions of the legislatures in both the parent statute and the subsidiary legislation must exist between the parent statute and the subsidiary legislation.I think the important thing stressed is that, wherethere were sections of the principal statute,which govern the employment and also gave the power to make regulations to another body, and they were accordingly made, those conditions of service would be regarded as a subsidiary legislation conferring the employment with statutory flavour.It was held in the leading ratio, as seen that, the intention of the legislature conferring that power in the principal statute must be given preeminence.

It would be observed that the 1999 Constitution did not directly by itself contain provisions/rules regulating the employment of civil/public servants in Nigeria, yet the regulations made by the Federal Civil Service Commission and the Federal Judicial Service Commission on appointment and discipline of officers of the Federal Civil Service and those of the Federal Judicial Service have always enjoined statutory flavour. It merely granted powers to the Civil Service Commission and the Federal Judicial Service Commission to appoint and discipline staff and gave powers to the Commissions to make rules to regulating their own procedures, and in furtherance of these powers thereto and sections 153, 158, 160(1) and paragraphs 11(1) & 13(c) of the Third Schedule of the 1999 Constitution, made the Federal Civil Service Regulations and the Federal Judicial Service Commission Regulations 2010. The Constitution did not itself contain these regulations as donein section18 of the University of Lagos Act, which regulations are duplicated again in the conditions of service made pursuant to it.

Whereas, the ASUL directly granted powers to the University to make statute [byelaw]on the recruitment and discipline of staff and how this statute is to be made. Though, it is observed that the Federal Civil Service Rules and the Federal Judicial Service Commission Regulationswere explicitly stated to be made pursuant to the relevant sections of the Constitution while the same thing was not done with regard to the RGCSSS, which just stated that, it was approved by Council in its 77^th Meeting but, it must be noted that,this method is in total compliance with section 28(2) & (3) of the ASUL on how the University’s power to enact statute is to be exercised and must therefore be sufficient.

To now say that, the RGCSSS which manifestly complied with the prescription of ASUL, the enabling Act in this instance, on how a subsidiary legislation made under it, is to be made, is not a subsidiary legislation, simply because the RGCSSSdid not explicitly state the enabling section of the ASUL, would be a classic case of thwarting the intention of the legislature and thus, negating the decision in Comptroller General of Custom v. Gusau [supra]. Unlike the system adopted in the Constitution, which did not specify how the subsidiary legislation made pursuant to sections 153, 158, 160(1)and paragraphs 11(1) & 13(c) of the 1999 Constitution should be made,the ASUL clearly and directly specified how subsidiary legislation made under it is to be made and the RGCSSS clearly showed compliance by stating that,the Council approved the RGCSSS in its 77^th Meeting. And in the leading ratio in Comptroller General of Custom v. Gusau [supra] it was stated clearly that, it is the intention of the legislature that must be given effect to. It is clear from the ASUL and the RGCSSS read together that, the intendment is to enable the Council of the University [defendant] to make statute on appointment, discipline and conditions of service of its staff and that, the RGCSSS made thereto and which satisfied all the conditions specified in Comptroller General of Custom v. Gusau [supra] conferred statutory flavour on the employment in the instant case.

So, it is not really necessary to duplicate regulations, as done in section18 of the University of Lagos Act and sections 17 and 18 of the Federal Universities of Agriculture Act and the subsidiary legislations made pursuant to sections 4(1)(d), 12(1)(b) and 13 thereto on the same issue or for the subsidiary legislation to explicitly state that it was made pursuant to specific section of the parent statute, provided there are clear provisions supporting its being made, for the subsidiary legislations to have statutory flavours. That is, it is sufficient if there is an implicit nexus between the principal and subsidiary legislation. So, all the requirements specified in Comptroller General of Custom v. Gusauare perfectly met by the ASUL and the RGCSSS in the instant case.

The fact that the requirement of commencing the conditions of service with the express phraseology recommended by Niki Tobi, JSC is not compulsory, is laid to rest in the concurring rationes decidendi of M.D. Muhammad, and Kekere-Ekun JJSC, especially in M.D. Muhammad, JSC, which adopted wholly,the ratio contained in the lead judgment in Idoniboye-Obu’s case without reference to the concurring ratio of Niki Tobi, JSC [supra]. It means that, there is now a very clear sort of contradiction between the most recent Supreme Court’s authority on this issue and that of Idoniboye-Obu [supra] or that, the most recent Supreme Court’s authority on the issue, at any rate, did not take cognisance of the ratio of His Lordship, Niki Tobi JSC [of blessed memory], and thus, it is not part of the most recent Supreme Court’s authority. In fact, the coast was completely cleared for Comptroller General of Customs & Ors. v. Gusau [supra], the most recent Supreme Court’s authority on this issue,when the Supreme Court,Per M.D Muhammad, JSC,stated clearly in the concluding portion of His Lordship’s ratio, as earlier underlined above, that: “In the case at hand, the respondent who has met all the foregoing requirements is entitled to succeed in his claim. The lower Courts decision in this regard is beyond reproach.”

It means this ratio is complete by itself without any further assurance; and that, once the tests prescribed therein are met, recognition must be accorded the conditions of service as having statutory flavour.This ratio was echoed in the lead judgment and that of the concurring judgment of Kekere-Ekun, JSC; and the leading judgment was completely adopted by the two remaining justices in the panel. Thus, there is total internal cohesion on this ratio in the judgment, such that, it becomes the ratio of the case – see Adegoke Motors Limited v. Odesanya & Ors. (1987) LPELR- 20498 (CA) 35-36, F-A, where the Court of Appeal stated:

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

The specification that the a specific language be employed in drafting the subsidiary legislation or that the specific section of the parent Act be specified are not requirements, as is clear from Comptroller General of Customs v. Gusau [supra] and neither are they requirements of the ASUL. The RGCSSS has complied with the specific requirement that the Council passed it before it becomes a statute by stating clearly that the Council approved it at its 77^th Meeting.The mere non-mention of the specific section pursuant to which the conditions of service were made does not take away the potency of the enabling sections of the parent statute, just like the failure to mention the specific section of a statute under which a right is being claimed would not debar the claimant from getting such right merely for that reason, if the court finds that, he is truly entitled to such right. This must be so because, the enabling statute did not make such requirement a condition precedent for the validity of the subsidiary legislation made pursuant to it. To hold otherwise is to thwart the manifest intention of the legislature. Once the enabling sections of the parent statute are cited to the court and the court finds that true nexus exists between it and the conditions of service [subsidiary legislation], it is obliged to give effect to both the enabling statute and the subsidiary legislation, as it is not the law that, before an act is done or a power is exercised, the exerciser must first state under which section of the enabling statute he is acting to make the act valid. The law is that, once there is a challenge to the exercise of the power, the exerciser must be able to point to the correct provision of the statute that covers his action and once the enabling section is pointed out, and the court finds that this is true, it must affirm the validity of the exercise of power in issue.

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

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

The law is that, the more recent of Supreme Court’s authorities prevails on a lower court. So, Comptroller General of Customs & Ors. v. Gusau [supra], which was decided in 2017, prevails over Idoniboye-Obu’s case [supra], decided in 2003 – see Glaxo Smithkline Plc v. Jiya (2014) LPELR-22902 (CA) 13-14, D-C:

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

With the utmost respect, I am therefore bound by Comptroller General of Customs & Ors. v. Gusau [supra], and not by Idoniboye-Obu’s case [supra], on the vexed issue of when conditions of service, would be deemed a subsidiary legislation with the toga of statutory flavour on any particular employment.

Besides, let me draw attention to these salient facts. The facts of this case are quite different from those of Idoniboye-Obu’scase. In Idoniboye-Obu’scase, the conditions of service in issue actually gave both the NNPC and the plaintiff [Idoniboye-Obu] reciprocal rights to terminate the employment with notice or payment in lieu thereof. There was no transmutation of conditions of service by promotion. Hence, the conditions of service could not in any way have had statutory flavour in Idoniboye-Obu’s case. So, issue of being clothed with statutory flavour did not even arise on the facts of the case. Whereas, in the present case, the conditions of service transformed the parties from that of junior staff and the defendant with reciprocal rights to terminate the employment to that of senior staff, in which, the portion of the defendant/employer in these reciprocal rights,was absent on the side of the defendant/employer and only the claimant has the right to exit by giving notice to the defendant, but whereas strict rules were imposed on the defendant, demanding fair hearing before the defendant could lawfully terminate the employment. The reciprocity of rights to end the employment was thus lacking in the present case. Thus, the conditions of service herein were mandatory, the employer was a statutory creature, and its Council was given the powers to enact statute to regulate the appointment and discipline of staff and this was duly made in the RGCSSS. So, the present case satisfied all the litmus tests of an employment clothed with statutory flavour, as specified in Comptroller General of Customs & Ors. v. Gusau [supra], the most recent Supreme Court’s authority on when regulations [conditions of service] would be deemed to be a subsidiary legislation with statutory flavour; and I so hold.

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

But before going on to answer this third poser, let me treat a preliminary point, which occurred in the oral adumbration of counsel to the defendant – this is with respect to the argument that the claimant tendered incomplete [three-page] RGCSSS. This ordinarily introduced new issue not canvassed in the final written address and ought not to be entertained, but I will entertain it for three reasons – First, the defence seemed to be confused as to the exact status of the conditions of service in issue [Exhibit 13] and secondly, the effect of the subsequent arguments that Exhibit 13 was not a subsidiary legislation, would have meant, were the argument to be right that, it must be expunged from the record, and thirdly, because in the oral adumbration, the learned counsel to the defence claimed that three-page conditions of service [Exhibit 13] was tendered. I take the third and first points together. I observed that in the introductory part of the defendant’s final written address, precisely at paragraph 2.1.2, it was stated that the claimant tendered 11 Exhibits. I think the confusion started from that point. The claimant tendered 13 Exhibits. One thing I noticed in the said paragraph 2.1.2 is that, while it was stated that 11 exhibits were tendered and these were correctly identified to the point of Exhibit 9, when it came to the turn of the RGCSSS [Exhibit 13], it was simply stated “…and Document titled ‘Regulations Governing Conditions of Service of Senior Staff (HATISS 06-15)’. The RGCSSS was not given the Exhibit’s nomenclature by which it was admitted by the Court or any nomenclature at all. It is strange that the defence who knew that exhibits admitted were allocated nomenclatures would decide to avoid giving the nomenclature by which Exhibit 13 was admitted.

I observed too that the claimant stated clearly in his final written address that 13 Exhibits were tendered and indicated their respective nomenclatures. I also observed that, throughout the final written address of the defence, the actual nomenclature of the RGCSSS was avoided and reference was always made to “Regulations Governing Conditions of Service of Senior Staff (HATISS 06-15).” – see paragraph 5.2.10.The purpose of this is not clear.But I observed that Exhibits 12 and 13 were not in the list of documents filed, as only 11 documents were listed therein, though,the three-page RGCSSS was frontloaded, but not listed. But at the trial, all the 13 documents were tendered without objection and marked accordingly. I observed that,the entire documents tendered were actually pleaded. It should be observed that, by admitting that the RGCSSS was tendered at all, the learned counsel to the defence conceded the fact that, not eleven exhibits were tendered but, definitely exhibits more than eleven were tendered because,at any rate, the RGCSSS was never amongst the eleven documents listed on the list of documents filed – see p. 9 of file.

I observed too, that, instead of tendering the three-page RGCSSS frontloaded, the claimant’s counsel tendered the entire composite RGCSSS, which was clearly admitted in that form, which is why it was indicated in the record of proceedings to be of 64 pages.Evident is that the defence clearly conceded the fact that, the complete RGCSSS was tendered otherwise, the counsel would not have simply referred to the regulations governing conditions of service throughout the final written address, as simple reference to the full title of the RGCSSS without reservation signified that the entire document is in focus. Evident is also that, no issue was raised in the final written address as to whether a three-page RGCSSS was tendered. So, the attempt to raise this issue at the adumbration stage is either out of confusion arising from the scenario that played out in the sister case or for a reason that is not evident to me. I hold that the full composite Exhibit 13 was tendered and admitted. I now move to the second point. The argument that the RGCSSS is not a subsidiary legislation, having been settled, the RGCSSS is lawfully before the Court and the Court is obliged to take full cognisance of it – see Haruna v. University of Agriculture, Makurdi & Anor [supra] 38-39, E-E. I shall now move to the third poser proper, which is whether the conditions of service were breached in terminating the appointment in question.

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

I think ordinarily, where a statute or subsidiary legislation directs that an act must be done in a particular way, and there is denial that it was not so done, the person who is burdened with the duty to do the act must prove proper compliance with the law and the means by which this was done. And what is more, DW1 under cross-examination, admitted in unequivocal words that the claimant was not in the list of the 16 people invited by the Committee in Exhibit DW1 and that, the University relied on the evidence of the Chief Security Officer, who supervised the claimant and that, the claimant did not actually appear before the Committee.Thus, this piece of evidence is at variance with the pleadings of the defence that the claimant was invited and that his appointment was terminated pursuant to the RGCSSS, as earlier stated above, and therefore go to no issue – Yusuf v. Adegoke & Anor. (2007) LPELR-3534 (SC) 26, B-C.

Besides, this piece of evidence elicited under cross-examination supports the case of the claimant that, he was not invited to the meetings of the Special Committee on Security, on which basis, his appointment was determined; and therefore, becomes part of the evidence of the claimant – see Civil Design Construction Nig. Ltd v. SCOA Nigeria Limited (2007) LPELR-870 (SC) 16, E-F. This piece of evidence also clearly negates the depositions contained in paragraph 11 of the witness deposition of DW1 made 21/11/2016and adopted in this Court on 6^th June 2018 that, the claimant was invited to the meeting of the said Committee. A case of serious material contradiction, by asserting the direct opposite of the evidence-in-chief at cross-examination, is established. It means the witness is not worthy of probative value – see Anambra State Government & Anor v. Gemex International Ltd (2011) LPELR-19733 (CA) 45, B-C. It follows that the defence did not have any evidence in support of its averments, whereas, the evidence of the claimant stands unchallenged on this issue.

The learned counsel to the defendant has cited section 5(1) & (2) of the ASUL as giving it power to inaugurate the Special Committee on Security and pursuant to which the appointment of the claimant was determined. I cannot find any semblance of what is attributed to section 5(1) & (2) when I read and construed it. Even if this section gives the University the power to set up the Committee, it does not excuse it from following the prescribed method by which appointment of a senior staff could be terminated as spelt out in Chapter 2.14 of the RGCSSS. The Committee would do its work and make recommendations while the procedure prescribed for termination would subsequently be followed to terminate the appointment of those indicted by the said Committee. In any case, section 5(1)(d)& (2) actually support the case of the claimant. It gives the University power to provide for the discipline and welfare of members and staff of the University and power to make statute to regulate the employment and discipline of the claimant, which powers the University exercised vide its Council under sections 27(b) & (e) and 28(1) & (2) of the ASUL by making the RGCSSS accordingly.

The Committee set up on Security did not provide for discipline and welfare of staff of the University as prescribed under section 5(1)(d) of the ASUL. It rather investigated causes of security breakdown in the University and made recommendations thereto – see Exhibit DW1. In any case, Exhibit DW1 could not have made regulations to regulate the employment and discipline of staff, as it is not the body empowered in that behalf. To provide for discipline and welfare, is to make rules and regulations prescribing offences and punishments and, how such offences are to be tried and how to award punishments. This is exactly what the Council did vide Exhibit 13 [the RGCSSS]. Thus, section 5(1)(d) of the ASUL is totally irrelevant to the case of the defendant and supports the case of the claimant. The Committee set up by the defendant is not the Committee mandated by Chapter 2.14(iii)(a)-(c) of the RGCSSS to preside on the discipline of the claimant.Under these provisions, the claimant must be issued a query, which states in writing the grounds on which it is proposed to terminate his appointment. He must be given opportunity to respond in writing to these allegations; and must also be given opportunity to appear before a Disciplinary Committee investigating his matter.

The argument that section 5(1) & (2) gives the defendant the power to terminate the appointment of the claimant is even inconsistent with the concession made by the defendant in its Amended Statement of Defence [paragraphs 7 and 16 thereof] and evidence adduced in witness deposition made 21/11/16 [paragraph 18 thereof] and adopted at trial to the effect that, the termination was done in accordance with the laws and the RGCSSS. Though, in both the Amended Statement of Defence and the witness deposition, the defendant did not state the exact provisions of the RGCSSS that gave it the power to terminate the claimant in the manner it did, and neither was this stated in the final written address, the fact remains that, it was conceded that, for the termination to be lawful, it must be done via the RGCSSS.

The claimant showed in his pleadings and evidence before the Court that, Chapter 2.14(iii) was breached in terminating his appointment. The defence has no answer to this. The defendant’s counsel’s sudden abandonment of the RGCSSS at the address stage, in justifying the termination of appointment of the claimant and the placement of reliance nowsolely on section 5(1) & (2) of the ASUL is an abandonment of the case of the defence and embarkment on a voyage of his own. Counsel cannot go beyond his brief as contained in the pleadings and evidence adduced at trial. It also means that, counsel was merely approbating and reprobating on the need to comply with the RGCSSS in terminating the appointment of the claimant, and the law does not allow this – Jadesimi v. Okotie-Eboh [supra]. The RGCSSS is actually complementary to section 5(1)(d), without which, it could not fulfill itself. Chapter 2.14(iii) of the RGCSSS provides that:

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

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

As stated earlier on, none of the above mandatory provisions was observed in the determination of the appointment of the claimant. Admission of the fact that the claimant was not invited to the meeting of the Special Committee on Security corresponds to a total negation of all the mandatory preconditions specified above. And in any case, the Special Committee on Security is not the Disciplinary Committee enjoined by Chapter 2.14(iii) of the RGCSSS.So, even if the claimant had been invited to and appeared before the Special Committee on Security, the requirement of Chapter 2.14(iii) would still not have been met without more. Since no evidence of the specific provision of the RGCSSS was cited to show that the defendant has the power to terminate the appointment of the claimant contrary to Chapter 2.14(iii) of the RGCSSS, and the defendant pleaded and led evidence that the termination was done in accordance with the RGCSSS, it becomes obvious that, the defendant didn’t comply with the RGCSSS in terminating the appointment, since it could not show how it complied.

The defendant could not have pleaded and led evidence that the termination was done pursuant to the RGCSSS, and yet, be unable to point out the very provision of the RGCSSS relied upon to say this. And Exhibit DW1 confirms that, the claimant was not heard before his appointment was determined, as his appearance was not in any place recorded. Even if the Special Committee on Security actually invited the claimant and he appeared, that would not be evidence of compliance with the provisions of Chapter 2.14(iii) of the RGCSSS, except it is shown that, all the provisions and steps enumerated in the said Chapter 2.14(iii) of the RGCSSS were totally complied with without any exception. None of these provisions was complied with.

Having held that the RGCSSS governs the employment of the claimant and that the employment has statutory flavour and, having also found that, the mandatory provisions of Chapter 2.14(iii) were breached in the termination of the appointment, it follows that the employment of the claimant was unlawfully determined. Consequently, I resolved the third poser under issue 2 in favour of the claimant and against the defendant. Having resolved all the three posers raised under issue 2 in favour of the claimant and against the defendant, issue 2 is resolved in favour of the claimant and against the defendant. Since the two issues formulated for the determination of this case are resolved in favour of the claimant and against the defendant, it logically and legally follows that, the case of the claimant succeeds and the defence fails. The next thing is therefore to examine the appropriate relief to be granted: that is, to conclude the case.

CONCLUSION

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

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

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

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Judge

NATIONAL INDUSTRIAL