IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

                        HOLDEN IN ABUJA

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

DATE: 2ND FEBRUARY 2023             SUIT NO: NICN/ABJ/91/2022

BETWEEN

IMONGAN PATIENCE ISEVBETA …………………………….. CLAIMANT                                               

 

AND

NATIONAL IDENTITY MANAGEMENT COMMISSION….. DEFENDANT

 

REPRESENATION

Thomas O Ilumah with him is Sunda N. Ezema for Claimant.

Ndidiamaka Okeke Esq with M. M. Dikwa Esq,  Emelife N. Maureen Mrs. And Shitu Maryam Abiola Miss for Defendant.

 

 

JUDGMENT

1.            By a General Form of Complaint filed 16th day of March 2022, the Claimant prayed this Court for the grant of the following reliefs against the defendant;

 

1.      A declaration that the portion of National Identity Management Condition of service 2011 which abrogates the continuing employment of our client (SIC) the claimant on the ground that possession of HND or Bachelor degree as the minimum qualification of any staff to remain in the employment of National Identity Management Commission is null, void and of no effect whatsoever to the extent that derogates and offends Section 32 (3) of the National Identity Management Commission Act 2007.

2.      A declaration that the employment of the claimant is regulated by the NIMC Act and the extant Public Service Rules and not Conditions of Service of National Identity Management Commission 2011.

3.      A declaration that the defendant’s declaration of redundancy of the claimant employment on the ground of lack of possession of the requisite minimum requirement of Higher National Diploma or First Degree Certificate for qualification to remain in the employment with the defendant is unfounded, illegal, unconstitutional and of no effect whatsoever.

4.      A declaration that the defendant-National Identity Management Commission cannot terminate the employment of Imongan Patience Isevbeta (Mrs.)-The claimant without strictly complying with Labour Act, Trade Unions Act Trade Unions Dispute, NIMC Act and Public Service Rules etc.

5.      An Order nullifying the termination of the claimant’s employment with the defendant.

6.      An Order directing that the claimant be restored to the service of the defendant and her due and accelerated promotion be given to her by the defendant.

7.      An Order nullifying the portions of Conditions of Service of National Identity Management Commission 2011 particularly item 4.1 and any other item in the Conditions of Service which derogates from Section 32 (3) of National Identity Management Commission Act 2007 as it relates to the employment of the claimant.

8.      An Order of this Court for the payment of all outstanding salaries, emoluments, and benefits due to the claimant as at her earlier promoted level as Chief Clerical Officer SGL07 from 15th August 2012 until the time of the judgment of this Court.

9.      An Order of this Honourable Court directing the defendant to pay to the claimant the sum of N100m (One Hundred Million Naira) only as general damages.

10. Interest on the judgment sum at the rate of 21% per annum with effect from date of judgment until the entire judgment sum is fully and finally liquidated.

11. Cost of this action.

2.            It is the claimant’s case that she was employed by Federal Ministry of Interior in the Department of National Civic Registration (DNCR) until the establishment of National Identity Management Commission in 2007 wherein she was transferred to the defendant. That she was given an approval to proceed on a part time (ND) program by the defendant. According to the claimant she was promoted from clerical Officer to Chief Clerical Officer by the defendant and on the same day she was given letter of redundancy.  Consequently, she was disengaged from the service of the defendant. That her abrupt disengagement from the service of the defendant with immediate effect has affected her psychologically beyond redemption unless this Court intervened to assuage the pains and embarrassment and financial havoc the action of the defendant has caused her. She urged the Court to grant the reliefs as contained in the writ of summons and statement of claim.

 

3.            The defendant in response filed notice of preliminary objection dated and filed the 12th day of May 2022 praying this Court to dismiss this suit for want of jurisdiction.

 

The grounds upon which this application is made are

 

1.      That the action of the defendant that led to the cause of action occurred on the 15th August 2012.

2.      That the claimant filed this case on the 16th March 2022 that is over Nine (9) years after the occurrence of cause of action.

3.      That reliefs sought by the claimant did not disclose any course of action, as the defendant acted within the Powers of the Commission as provided by NIMC Act 2007.

4.         Filed in support of the Notice of Preliminary Objection is a written address and counsel on behalf of the defendant framed a sole issue for determination thus; “Whether the claimant’s suit commenced 16th March 2022 to enforce the cause of action that allegedly arose on 15th August 2012 is not statute barred and therefore not maintainable before this Honourable Court.

5.         On issue one counsel submitted that the action, prosecution or proceeding shall commence within three months of the acts or in case of a continuance of damage or injury within three months next after the ceasing thereof. He supplied in support Section 2 (a) Public Officers Protection Act Cap. P41 LFN 2004 (Hereinafter called POPA) and the case of CBN & Ors v. Okojie [2005] LPELR-2474 (SC). Counsel further submitted that the position of the law is trite that in determining the period of limitation, the proper thing to be done is for the Court to look at the Originating Process alleging when the wrong was committed which gave rise to the cause of action, comparing same with the date on which the suit or case is filed. He supplied in support of his assertion the case of Mr. Popoola Elaband & 1 Or. V. Chief (Mrs.) Ganiat Dowodu [2006] 27 N. S. C. Q. R 318 @ 353 Paras. D-E and Mrs. Mary Nkemdilim Oranyeli v. First Bank of Nigeria Plc [2001] 6 N.W.L.R (Part 710) 572 @ 578 Paras C-D. It is equally the submission of learned counsel that POPA applies to contract of employment as in the instant. He supplied in support of his assertion the case of Tajudeen v. Customs Immigration& Prisons Service Board [2009] LPELR-3655 (CA). In conclusion counsel submitted that the law is settled that for a Court to have jurisdiction to entertain a matter brought before it. Three basic ingredients determine the competence which includes proper constitution of members and qualification, the subject matter is within the powers of the Court and the case is initiated in accordance with due process of law. He supplied in support of his assertion the case of Hon. Attorney General Ogun State & 1 Or v. Chief A.B Coker [2002] 17 NWLR (Part 796) Page 304 @ 329 Paras. D-G. Also, that where a Court lacks jurisdiction to hear and entertain a matter the proceedings however well conducted amounts to nothing and is a nullity. He supplied in support the case of Aaron Okarika & 4 Ors. v. Isaiah Samuel & 1 Or [2013] 53 NSCQR (Part 2) Page 428 @ 452 and Ports and Cargo Handlings Services Company Limited & 3 Ors. v. Migfo Nigeria & 1 Or. [2013] 53 NSCQR (Part 2) Page 428 @ 452. He urged the Court to dismiss this suit in its entirety for want of jurisdiction with a substantial cost against the claimant in favour of the defendant/Applicant.

6.         In opposition to the defendant’s preliminary objection claimant filed a written submission dated 24th day of May 2022 and filed 25th day of May 2022 wherein counsel on behalf of the claimant submitted that jurisdiction is the legal capacity of a Court to hear and determine judicial proceedings and that it is the authority given to the Court to decide a matter before it. He cited in support the case of AG Federation v. Guardian Newspapers [1999] 9 NWLR (Pt. 618) 187, Miscellaneous Offences Tribunal Okoroafor [2001] 10 SCNJ 1, Otukpo v. John [2000] 8 NWLR (Pt. 669) 507 @ 524 and Madukolu v. Nkemdilim [1992] 1 All NLR (Pt. 4) 587. He equally submitted that there was no termination of the claimant’s appointment in respect of her current status upon which she was denied her entitlements. Going further, learned counsel submitted that her cause of action accrues when it became clear that the defendant is not ready to accede to her rightful demand vide response to her letter and refusal to re-absorb her in the service. He cited in support the cases of Ojie & Ors v. Cross River State Council on Privitazation & Anor [2018] LPELR-46000 (CA) and Sifax (Nig.) Ltd v. Migfo (Nig) Ltd [2018] 9 NWLR (Pt. 1623) 138 SC. Also, it is the submission of learned counsel that labour disputes associated with salary or payment for work done cannot be caught up by limitation law and that claimant’s case is one of continuing injury, therefore cannot be statute barred. He cited in support the cases Capt Tony Oghide & 12 Ors v. Tason Air Limited & 1 Or. [2009] NLLR (Pt. 59) @ 69, Ratio 5 and Ofili v. C.S.C [2008] 1 FWLR (Pt. 407) 417 CA. On the whole he urged the Court to dismiss the Preliminary Objection in its entirety for lacking in merit.

7.         On the 3rd day of June 2022 defendant filed further written address in support of Notice of Preliminary Objection, wherein he submitted that the claimant’s alleged cause of action arose on the 15th day of August 2012 and the claimant commenced this suit on the 16th day of March 2022 after expiration of over Nine (9) years from the time the cause of action allegedly arose. That the promotion that the claimant stated that it gave rise to a continuous injury to the claimant is not correct. he cited in support the case of Lapade v. Gov. of Oyo State & Anor [2012] LPELR-20035 (CA), Godwin Inyang v. Regd. Trustees of the First Century Gospel Church [2006] All FWLR (Pt. 314) 278 and Aremo II v. Adekanye [2004] All FWLR (Pt. 224) 2113 @ 2132-2133. On the whole the defendant urged the Court hold that this case is statute barred and thus be dismissed in its entirety for want of jurisdiction with substantial cost in favor of the defendant/Applicant.

8.         Also, the defendant filed its statement of defence on the 12th day of May 2022 wherein its averred that promotion of the claimant was part of negotiation between the defendant and representative of Trade Union as part of benefits of the disengagement of the Commission and that the defendant never issued a Condition of Service but Personnel Policy in accordance with the powers of the Commission and Governing Board as stated at Section 6(b) of NIMC Act 2007 and not based on her completion of the National Diploma  as claimed. The defendant equally averred that all process of redundancy and subsequent disengagement was done in accordance with Section 20 of the Labour Act. That all wages and entitlement of the defendant ceased to be made from the day the severance packages were paid to the claimant and stated further that it is very clear by the Section 32 of the NIMC Act that all DNCR staff must accept the terms of transfer of service into NIMC. The defendant urged the Court to refuse the claim and dismiss same with cost.

9.         Claimant in her reply to the defendant’s statement of defence, contended that her promotion is not and cannot be part of negotiation between the defendant and representatives of the Trade Unions to accord the claimant her due benefits which were never given to her. The claimant maintained that the defendant uses Conditions of Service in disengaging her from its service and not any personnel policy and that the alleged process of declaration of redundancy and subsequent purported disengagement was completely in violation of Trade Unions Act and Labour Act and of the breach of the right of the claimant with the defendant. She further stated that the power of the defendant under The Act does not include declaration of redundancy reiterating that the position of the defendant that her promotion was given as part of negotiations for disengagement is false. Continuing, she asserted that she was granted leave/approval to proceed to undertake a part-time program consequent upon which she was promoted and she further confirm that she raised the money to prosecute this case. She urged the Court to sustain her claim and grant all her reliefs.

10.       on the 6th day of June 2022, Claimant opened her case and testified for herself as CW by adopting her statement on oath of 16th day of March 2022 and 6th day of May 2022. Documents marked Exhibits P-P8 were admitted through her. Claimant was subsequently cross examined by learned counsel on behalf of the defendant. Thereafter, claimant’s case was closed. On the 7th day of June, 2022, the defendant opened its case and called one Mohammed Muazu as DW who adopted his written statement on oath as his oral evidence in this case. Document marked as Exhibits M-M6 were tendered through him. He was subsequently cross examined by learned counsel on behalf of the Claimant. Afterwards the defendant closed its case and matter was adjourned for adoption of final written addresses.

11.       On the 19th day of July 2022, learned counsel on behalf of the defendant filed his final written address wherein he formulated a lone issue for the Court’s determination thus; “Whether or not on the basis of the evidence adduced the claimant is entitled to all the reliefs sought?

12.       Learned counsel submitted that the defendant communicated all the Union and other supervisory bodies of its intention to declare redundancy. He cited in support the provision of Section 20 of Labour Act. He further submitted that Section 8 of NIMC Act 2007 gave the Governing Board of the defendant the powers to employ, promote, terminate and discipline any officer under the employment of the defendant and that the defendant has the right to make Rules and Regulations guiding the employment of its employees as such the declaration of redundancy and the Condition of Service that was used for the redundancy. He equally cited in support Rules 160101, 16103 and 160301 of the Public Service Rules and submitted that the above provision vindicates the affairs and put out by the defendant. He urged the Court to so hold. He submitted further that collective agreement embedded in contract of service either expressly or by implication is binding on parties. He cited in support the case of Abalogun v. S. P. D. C Ltd [2003] 13 NWLR (Pt. 837) 309; Aminetu Omotola Salami v. Union Plc.  [2010] LPELR- 8975 (CA); New Nigeria Bank Plc v. Solomon Owie [2010] LPELR-4591 (CA) and Saka v. Ijuh [2010] 4 NWLR (Pt. 1184) 405. It is also his submission that the claimant has failed to bring material facts and evidence in support of her claims nor terms of employment as such her claims should fail. On the whole he submitted that all the actions of the defendant are in line with the provision of the Section 20 of the Labour Act, the Public Service Rules and NIMC Condition of Service 2011. He urged the Court to so hold.

13.       On the 10th day of August 2022, learned counsel on behalf of the claimant filed her final written address wherein he formulated the following issues for determination;

1.         Whether the claimant has proved by credible and cogent evidence that she is entitled to all the reliefs sought in this case against the defendant?

2.         Whether in the circumstances of this case, the provisions of item 4. 1 of the defendant’s Conditions of Service does not derogate from the provisions of Section 32 (3) of the NIMC Act and therefore inapplicable to the claimant in this suit?

3.         Whether the suit of the claimant against the defendant is statute barred before the Court?

4.         Whether the defendant can rely on Exhibits M1-M6 which are documents not pleaded and which were procured during the pendency of this suit.

14.       Taking issues one and two together learned counsel submitted that in law, it is incumbent on a party claiming to be entitled to a relief to satisfy the Court by evidence that he/she is truly entitle to it. He cited in support of his assertion the case of Civil Design Construction (Nig.) Ltd v. SCOA (Nig.) Ltd [2007] LPELR-870 (SC). He also submitted that it is the position of the law that it is a fundamental principle that rights of parties are decided on the basis of the substantive law in force at the time of the act in question. He cited in support the cases of Gusau v. APC & Ors. [2019] LPELR-46897 (SC) and Hope Democratic Party v. Peter Obi & 5 Ors. [2012] All EWLR (Pt. 612) 1620 @ 11634. Going further he posited that a statute operates prospectively and cannot be applied retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters which does not affect the rights of the parties. He cited in support the case of Afolabi v. Governor of Oyo State [1985] 2NWLR (Pt.9) 734 SC. It is his contention that the action taken by the defendant in this case by purportedly terminating the employment of claimant who was employed in 2003 on a singular basis of not having First Degree or Higher National Diploma as a prerequisite to remain in the service of the defendant after given approval to the claimant who underwent and obtained a Higher Diploma but still purportedly terminated her employment same date of her promotion on the basis of the defendant’s condition of service of 2011 amounts to a retrospective application of the law and therefore unconstitutional null and void and of no effect whatsoever. He also stated that by the provision of item 4.1 of the said Condition of service 2011 which provide for Bachelor’s Degree or Higher Diploma as a prerequisite for claimant to remain in the service of the defendant is inconsistent with Section 32 (3) of NIMC Act 2007 being the principal legislation and to the extent of inconsistency becomes null and void. Howbeit, the claimant had obtained HND but the defendant refused to accord to her promotion instead terminated her employment. That the actions of the defendant in declaring redundancy and terminating her employment is unconstitutional, null and void. He urged the Court to resolve issues one and two in favour of the claimant.

15.       On issue three, learned claimant’s counsel submitted that jurisdiction is the legal capacity of a Court to hear and determine judicial proceedings. He cited in support of his assertion the cases of AG Federation v. Guardian Newspaper [1999] 9 NWLR (Pt.618) 187; Miscellaneous Offences Tribunal v. Okoroafor [2001] 10 SCNJ 1; Otukpo v. John [2000] 8 NWLR (Pt. 669) 507 @ 524 and Madukolu v. Nkemdilin [1962] 1 All NLR (Pt. 4) 587. It is equally the submission of learned counsel that the letter of promotion of the claimant dated 28th day of June 2013 nullifies the letter purportedly disengaging the claimant by the claimant and that the content and date of the letter came after the alleged declaration of redundancy and disengagement dated 15th day of August 2012 thus no termination of claimant’s appointment in respect of the claimant’s current status with the defendant upon which the entitlements of the claimant is being denied by the defendant till date and there is no document before the Court to show that the claimant was disengaged after promotion, therefore, claimant’s case cannot be statute barred on the event that is continuous. Continuing, he posited that the law is settled that right of action accrues when the person that sues becomes aware of the wrong done to him and that in labour disputes associated with salary or payment for work done cannot be caught up by limitation law as same lies in the exception. He cited in support of his assertion the cases Ojie & Ors v. Cross River State Council on Privatization & Anor [2018] LPELR-46000 (CA); Sifax (Nig.) Ltd v. Migfo (Nig,) Ltd [2018] 9 NWLR (Pt. 1623) 138 SC; Capt. Tony Oghide & 12 Ors. v. Tason Air Limited & 1 Or [2019] NLLR (Pt. 59) @ 69 ratio 5; Ibrahim v. Judicial Service Committee, Kaduna State [1998] 14 NWLR (Pt. 5854) 1 @ 57 and Section 2 (a) of POPA.

16.       Regarding issue four, counsel submitted that documents not pleaded go to no issue. He equally submitted that it is trite that documentary evidence needs not be specifically pleaded to be admissible in evidence so long as facts and not evidence by which such document is expressly pleaded otherwise the documents will be rejected in evidence. He cited the cases of Ipinlaiye 11 v. Olukotun [1996] LPELR-207 SC and Consolidated Breweries Plc v. Aisowieren [2002] FWLR (Pt. 116) 959. Submitting further, counsel argued that Exhibits M-M6 were documents prepared in 2015 and beyond while that claimant’s appointment was declared redundant and purportedly terminated in 2012. He cited the case of Isah v. Kamba [2006] All FWLR (Pt. 456) 1901 and Section 83 (3) of Evidence Act 2011. He urged the Court to expunge the said Exhibits M-M6 and same is inadmissible in evidence as they were not pleaded and equally made in anticipation of this suit. In conclusion he urged the Court having regards to the case and reliefs of the claimant to dismiss the Preliminary Objection of the defendant and grant all the reliefs of the claimant.

17.       After a careful consideration of the originating process along with the other accompanying processes and documents, the statement of defence along with its accompanying processes and documents, notice of preliminary objection, the Exhibits tendered and the final written addresses of parties in this case. I am of the humble view that the germane issues for the Courts determination are;

1.         Whether there is merit in the Notice of Preliminary Objection to divest this Court with jurisdiction and if the answer is in the negative;

2.         Whether claimant has proven her case to entitled her to the reliefs sought?

18.       On issue one, it is clear from the Notice of Preliminary Objection filed by the defendant that the defendant is challenging the jurisdiction of this Court, its grouse is premised on the contention that claimant’s suit is statute barred. The law is trite that Jurisdiction is the bedrock of all actions before the Court. The question of jurisdiction of a Court is radical and crucial question of the competence of the Court. If a Court has no jurisdiction to hear and determine a matter, the whole proceedings would be void and nullity ab initio no matter how well conducted and brilliantly decided. Jurisdiction of a Court is therefore considered to be the nerve centre of adjudication and the life wire of all actions in Court. In fact, it can be said that jurisdiction is the blood that gives life to an action in a Court of law in the very same way that blood gives life to the human being. See the case of Ononikpo & Anor v. Okike [2020] LPELR- 49831; (CA); Kayili v. Yilbuk & Ors [2015] LPELR-24323 (SC); This is why it is important and appropriate for a Court to first deal with the issue which touches on its jurisdiction in a matter before it proceeds in an action to consider the merits of the case. See the case of Gumau v. Dahiru & Ors [2019] LPELR-49094 (CA)10; Galadima v. Tambai & Ors [2000] LPELR-1302 (SC)22, Para B.

19.       It is the contention of the defendant that claimant’s action is statute barred as the cause of action arose on the 15th day of August 2012 and this suit was commenced on the 16th day of March 2022 after the expiration of over nine years from the time the cause of action allegedly arose outside the statutory period of limitation provided under Section 2 of Public Officers Protection Act Cap P41 LFN 2004 (hereinafter called POPA). It’s a known fact that by the provision of Section 2(a) of POPA a claimant who intends to sue a Public Officer must commence his action within three months from the accrual of the cause of action failure of which same will be statute barred. As reasoned hereinbefore, claimant’s cause of action arose on the 15th day of August 2012. It is worthy of note that the rule created by Section 2 of the POPA is not absolute and as such will not apply in certain situations such as cases of breach of contract; recovery of land; claims for work and labour done; claims predicated on contracts. See the case of Radiographers Reg. Board Nig v. M. & H.W.U.N (2021] 8 NWLR (Pt. 1777) 149. The Apex Court in the case of Idachaba v. University of Agriculture, Makurdi [2021] LPELR-53081 (SC) Held that the period of limitation in Section 2 (a) of POPA is applicable to the case which was founded on employment/contract of service. The decision broke loose from the earlier decision of the apex Court that Section 2 (a) of POPA does not apply in cases founded on contracts which includes contract of service and for a while became state of law as to the application of Section 2 of POPA to cases founded on contracts including contract of employment. Intriguingly, the learned jurist Abba Aji JSC was same person while delivering the lead judgment in the case of Rahamaniya United Nig. Ltd v. Min. FCT. [2021] 17 NWLR (Pt. 1806) 481 @ 497, Para. H which was decided after Idachaba’s case, supra quoted with the approval the dictum of Galinje JSC in Roe Limited v. University of Nigeria [2018] LPELR-43855 (SC) @ 21 Paras D-G that; “The Public Officer Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done” (Emphasis supplied by me).  The state of law as to the application of Section 2 of POPA to cases founded on contracts which includes contract of service became very precarious given the above decisions. Nevertheless, it is worthy of note that this conflict has been laid to rest by the Supreme in one of its most recent decisions.

20.       As at today, the scope of application of the limitation law by Section 2 (a) of POPA is as decided by the Supreme Court in its recent decision in Oluremi Obasanjo & Anor v. Wuro Bogga Nig. Ltd & 3 Ors Unreported appeal no. SC.82/2010 delivered on 17th day of June, 2022 where in the apex Court held that the provision of Section 2 (a) POPA is not absolute and without its limitations. Such limitations are cases predicated on cases of recovery of land, breach of contract or claims for work and labour done. The Court went further that the provisions of Section 2 (a) of the POPA do not apply, for the purpose of limitations of actions, to actions predicated on contracts or for recovery of land. See also the following Rahamaniya United (Nig) Ltd v. Minister of FCT & Ors, supra; Osun State Government v. Danlami [2007] 9 NWLR (Pt. 1038) 66. It is clear by the above decisions of the Apex Court that the provisions of Sections 2 (a) for the purpose of limitation does not apply to cases predicated on contracts amongst other things. Consequently, it is from the above that the protection offered Public Officers by Section 2 (a) of POPA is not intended to apply to cases founded or predicated on contracts. Before now, the Supreme Court have decided that cases founded on contracts to which Section 2 (a) of POPA will not apply to includes cases founded on contract of service when in the case of National Revenue Mobilization and Fiscal Commission & 2 Ors. v. Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt. 1656 247 @ 269-271 Paras.  H-C Per Ariwoola JSC (now CJN) held thus; “Ordinarily, the purpose of the public officer’s protection law is to protect officers in civil liability of any wrongdoing that occasions damages to any citizen, if the action is not instituted within three months, after the act, default or neglect complained of…There is no doubt, a careful reading of the respondents’ claim will show clearly that it is on contract of service. It is now settled law that Section 2 of the Public Officers Protection Act does not apply to cases of contract. See Osun State Government v. Danlami Nig. Ltd [2007] 9 NWLR (Pt. 1038) 66; Nigerian Port Authority v. Construction General, Farsura Cagefar Spa & Anor 1974 All NLR (Pt.2) 463… I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondents’ action statute barred. In sum, I hold that the learned Justices of the court below are right in holding that the appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of Service involving the respondents. The issue is accordingly resolved against the appellants” [Emphasis supplied by me]. By the combined effect of the decisions of the apex Court in the cases of Oluremi Obasanjo & Anor v. Wuro Bogga Nig Ltd & 2 Ors supra and National Revenue Mobilization and Fiscal Commission & 2 Ors v. Ajibola Johnson & 10 Ors, supra cases founded on contracts which include contract of service are exempted from the operation of Section 2 of POPA. It will therefore indefensible for anyone after the above decisions of the Supreme Court in the above cases to say the period of limitation in the several Public Officers Protection laws apply to cases founded on contract of service. Thus, I find that the period of limitation in Section 2 (a) of POPA is not applicable. It is in the light of the above stated supra that I discountenance the objection of the defendant and dismissed same.

21.       Let me equally address the way and manner learned Counsel for both parties cited some cases in this suit. Both learned counsel in their respective written addresses relied on and cited the cases of  “ Roalat  Omotanwa Omotara v. National Identity Management Commission & Anor Suit No. NICN/ABJ/10/2013 (Unreported) cited by the learned defence counsel and  Amalgamated Union of Public Corporation, Civil Service Employees v. National Identity Management Commission with Suit No. NICN/ABJ/319/2014 and National Identity Management Commission v. Amalgamated Union of Public Corporation, Civil Service Technical and Recreational Services Employees in Appeal No. CA/A/557/2016 delivered on the 8th February 2019.”  cited by the claimant’s counsel, it is clear that the above cited are unreported cases. The law is that when counsel cite unreported cases, they owe the Court the duty to furnish it with a certified true copy. The Supreme Court per Amina Augie JSC in the case of Oni & Ors v. Gov. of Ekiti State & Anor [2019] LPELR-46413(SC)22, Para D. aptly captured it thus- It is an elementary principle, very elementary that Counsel, who wants the Court to make use of the authorities cited in Court, must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported. Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon. The unreported authorities cited by both learned counsel without furnishing the Court with a certified true copy of the judgments is in dereliction of their duties as counsel first to the Court and secondly to their client. The import of this is that they do not intend the Court to rely or make use of unreported cases cited. It is in respect of this that I discountenance the above unreported cases cited by both learned counsel.

           

22.       Next is issue two, the claimant in this suit is seeking the grant of declaratory reliefs. It has been held in plethora of judicial authorities that in a claim for declaratory reliefs as in the instant case, the claimant must succeed on the strength of his own case and not on the weakness of the defendant’s case. The claimant would not be entitled to judgment even on admission. It is the duty of the claimant to first prove the existence or non-existence of what he or she asserted by relevant, admissible and credible evidence. Once this burden so placed on the claimant is discharged, the onus then shifts to the defendant. See the case of Uzodinma v. Ihedioha [2020] 5NWLR (Pt 1718) 529 @ 578, Paras D-G and; Ehinle v. Ikorodu Local Govt [2021] 1 NWLR (1757) 279@316-317, Paras G-C; Paras A-B. However, a claimant is allowed to rely on aspects of defendant’s case that support his own. See the case of Hanatu v. Amadi [2020] 9 NWLR (Pt 1728) 128, Paras A-C and; Salisu v. Mobolaji [2016] NWLR (Pt. 1535) 280-281, Paras H-A.

23.       It is the claimant’s case that she was an employee of the defendant by way of transfer from Federal Ministry of Interior in the department of National Civic Registration (DNCR) before she was disengaged on the basis of redundancy.  The defendant on its part in the statement of defence averred that promotion of the claimant was part of the benefits of the disengagement of the Commission and that the defendant never issued a Condition of Service but Personnel Policy in accordance with the powers of the Commission and Governing Board as stated at Section 6(b) of The Act noting that her promotion was not based on her completion of the National Diploma as claimed. The defendant equally averred that all process of redundancy and subsequent disengagement was done in accordance with Section 20 of the Labour Act. That it is very clear by Section 32 of The Act that all DNCR staff must accept the terms of transfer of service into NIMC. The defendant relied on Exhibit M-M6. Let me at this stage address the objection raised by learned counsel on behalf of claimant with regards to documents tendered during trial on the 7th day of June 2022 particularly Exhibits M1-M6. According to learned counsel for claimant, they were not pleaded neither were they frontloaded and that the documents were prepared in anticipation of this suit. In response learned counsel on behalf of the defendant submitted that the documents are relevant and thus, admissible in evidence. I have perused Exhibits M1-M6 and I find that learned counsel for the claimant did not object to Exhibit M which is an agreement of disengagement between NIMC and relevant Labour Unions with representative of Federal Ministry of Labour and Productivity and the Office of Secretary to the Government of the Federation dated 25th July 2012 which contain decisions of the above bodies mentioned with regards to the declaration of redundancy in the defendant.  Exhibit M1 is a pay slip of the claimant for the Month of August 2012 from the defendant while Exhibits M2- M5 are letters of invitation and reply in respect of the meeting on the declaration of redundancy in the defendant which were all written the month of April 2012, July 2012. Exhibit M6 dated 11th August 2021 addressed to the Secretary to the Board of Civil Defence, Correctional, Fire and Immigration Services Board which was in response to a request for the reinstatement of the claimant. Now, the record of this Court clearly shows that this suit was commenced on the 16th day of March 2022. All the Exhibits in question are pertinent to the subject matter of this suit as they relay the facts of what happened resulting in the claimant’s action before this Court. This I find very relevant to the determination of this suit as provided under Section 4 of Evidence Act 2011. Moreso, there is nothing in the documents that suggest that they were prepared in anticipation of this suit as the claimant would want this Court to believe. Also, on the issue of frontloading it is true that the defendant failed to frontload the Exhibits M-M6 with its defence, However, the law is trite that frontloading procedure is to speed up dispensation of justice but that care must be taken not to sacrifice justice on the alter of efficiency. See the case of Olaniyan v. Oyewole [2008] 5 NWLR (Pt. 1079) 114 @ P. 146, Paras. A-B. It is in the light of all the above that I find that all the exhibits tendered are admissible in evidence and remains admitted Consequently, the objection of the Claimant’s counsel is discountenanced.

24.       Claimant by her claims is praying this Court to declare that NIMC Conditions of Service 2011 which provides for minimum requirement of HND or Bachelor Degree as a qualification for a staff to remain in service as null, void and of no effect whatsoever to the extent that it derogates and offends the provision of Section 32 (3) The Act and that declaring redundancy of the claimant’s employment on that basis is unfounded, illegal and unconstitutional. Also, that the defendant cannot terminate her employment without strictly complying with the provisions of Labour Act, Trade Union Act, Trade Dispute Act, NIMC Act and Public Service Rules. Noteworthy is the fact that Redundancy is a creation of statute and a specie of termination. By Section 20 (3) of Labour Act Redundancy means an involuntary and permanent loss of employment caused by an excess of manpower. Section 20 (1) and 2 of Labour Act LFN CAP L1 2004 provides thus;

                      (1) In the event of redundancy-

(a)       the employer shall inform the trade union or workers’   representative concerned of the reasons for and the extent of anticipated redundancy;

(b)       the principle of “last in, first out” shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability; and

(c)        the employer shall use his best endeavours to negotiate redundancy payments to any discharged workers who are not protected by regulations made under subsection (2) of this section.

(2) The Minister may make regulations providing, generally or in particular case, for the compulsory payment of redundancy allowances or termination of a worker’s employment because of his redundancy”.

It is clear from the provision hereinbefore captured that any organization, the defendant inclusive may declare redundancy some of its employees. The conditions precedent to redundancy are as stated in the Labour Act. Basically, an employee who is declared redundant must be paid redundancy benefits whether protected by the NIMC Act or not. The Court of  Appeal per Nimpar JCA in the case of Adibuah v. Mobil Oil Nig Plc [2015]LPELR-40987(CA)1@15-17,Para B held while relying on the case of P.A.N v Oje [1997] LPELR - 6331 (CA)  as regard redundancy  thus; The Court in the case of P.A.N v OJE (1997) LPELR - 6331 (CA) defined redundancy in the following words: "Redundancy in service in my view, is a mode of removing of an employee from service when his post is declared "redundant' by his employer. It is not a voluntary or forced retirement. It is not a dismissal from service, It is not a voluntary or forced resignation. It is not a termination of appointment as is known in public service. It is a form unique only to its procedure where an employee is quietly and lawfully relieved of his post. Such type of removal from office does not, in my view, carry along with it any other benefit except those benefit enumerated by the terms of contract to be payable to an employee declared "redundant.” Thus, it means that an employee who is declared redundant is only entitled to be paid redundancy benefits enumerated by the terms of the contract. There is no such provision in the NIMC Act or regulation, it is however, evident on record vide Exhibit M, that the defendant negotiated with the relevant trade Unions as provided by the Labour Act captured supra and they reached an agreement before it declared the Claimant redundant. One of the agreed terms is that any affected staff should be promoted two grade levels and be paid severance benefit. Also, apparent on Exhibit M, is that all the negotiating trade Union representatives and the Ministry of labour, as well as an Officer of the Office of the Secretary to the Government of the Federation were all in attendance and they all signed the agreement. Part of the amount agreed is that 3 months salary be paid to each staff, a repatriation allowance and training allowance. Also, that the affected staff should be given two upward grade level promotion. The lowest amount agreed upon by all parties to be paid to an affected staff is N155,488.25, whilst the highest amount is put at N360,433.90. The Claimant vide paragraph 4 of her statement of facts averred that she was promoted to the post of Chief Clerical Officer SGL 07, from SGL 05, which means she was indeed promoted two grade level above her grade level at the point of the determination of her contract. See Exhibit P3 tendered by the Claimant. This is in compliance with paragraph 1 of the agreement in Exhibit M and same reflected in Exhibit P3. Claimant’s salary vide her payslip which is on record as Exhibit M1 shows that her last salary in August 2012 before her redundancy was N25,410.28 per month. Claimant admitted under cross examination that she was paid a lump sum of N254,800.00 when she was declared redundant, but her contention is that she kept the money in her account because she did not accept it. When asked if she informed the defendant that she did not accept the money, She answered that she did not but kept on going to the Office to tell them. Although, the Claimant did not plead or tender the two accounts in this case, as the law is that facts not pleaded go to no issue.  Assuming but am not conceding to the fact that the Claimant did not plead facts about the lodgment of the severance pay into her account, I want to examine the documents learned counsel to the Claimant attached to a letter he wrote to the Court; one page statement of account purportedly belonging to the Claimant wherein she kept the severance pay and the purported letter written by Consumer Microfinance Bank. I have perused the letter from the alleged Consumer microfinance Bank and the one page purported statement of account of the claimant from Access Bank. First the letter from the microfinance states that the Claimant was its customer but that she has long stopped transaction with the account. That they could not assess her account statement due to a soft ware problem on their system that occurred in 2013, this date implies that the account became dormant since 2013. Next, is the one-page Access bank account statement of the Claimant from 1st June, 2022 to 30th June, 2022, with an account balance of N485,423.75.

    25. Now, the germane question that requires an answer here is, when did Claimant transfer the sum of N254,800 paid into her salary account into Access Bank and did the Access bank account reflect the said payment she allegedly transferred or kept into her account? I have carefully examined the said Access bank account statement with an eagle eye, and could not see any amount representing the severance pay she allegedly kept in her account. The law is long settled that he who asserts must prove. The onus of substantiating the assertion of the Claimant that she kept the money in her account lies solely on her shoulders to prove. The sums lodged in the said account shows a lodgment of the sum of N300,000 into her account on the 9th June, 2022 by one Salau  Oyobo Mercy , the narrative is thus “pls manage it”. Then on the next date which is the 10th of June, 2022, the same Salau Oyobo Mercy lodged into Claimant’s account the sum of N200,000, no narration. These are the only two lodgments made into Claimant’s account in June 2022. Claimant has failed to evince to this Court how the two lodgments relate to her severance pay she kept in her account and whether or not the said amount represents the sum of N254,800 paid into her account by the defendant as severance pay. It goes without saying that the two lodgments made into the Claimant’s account about 10 years after the determination of her employment by the defendant on the basis of redundancy, were payments made during the pendency of this suit and was contrived by the Claimant with the connivance of her counsel to deceive the Court into believing that she did not accept the severance pay. They are both clever by half, I must say because none of the two lodgments represents the severance pay they intent to portray as having been kept in her account. The whole statement and the purported letter from Consumer microfinance bank are all hoax, a fluke orchestrated to deceive the Court. It is most unfortunate and a regrettable situation that a learned counsel that should advise his counsel against such is the one facilitating such an unprofessional act. The extant position of the law respecting acceptance of severance pay upon determination of contract is that when an employee accepts either salary in lieu of notice or severance pay, the termination would be held to be mutual. See the cases of Akande v. IBB University, Lapai & Anor [2020] LPELR-52552CA; Sulaiman v. NBC PLC [2015] LPELR-25911CA; Imperial Medical Center v. Ahamefule [2017] LPELR- 42886CA. The Court of Appeal in the case of Angel Spinning & Dyeing Ltd v. Ajah [2000] LPELR-10724CA; held amongst others thus- “The respondent testified at the trial that he worked with the appellant for (4) four years and (7) seven Months and after he was given Exh. 3, the letter of termination, he collected one month's salary in lieu of notice. Strictly speaking the respondent is entitled only to 2 weeks' salary in lieu of notice, but he was given one month's salary in lieu of notice which he accepted. Having accepted the one month's salary in lieu of notice, the contract was validly and properly determined in accordance with the terms and conditions prescribed in Exh. 1, the contract of employment. The contract has been mutually determined. See Morohunfola v. Kwara Tech. (supra) at page 528; Dr. O. Ajolore v. Kwara State College of Technology (1986) 2 SC 374”. See also the decision of the Court in Alhasan v. ABU, Zaria & Ors [2009] LPELR-8138CA; wherein the Court reasoned thus- “where an employee accepts salary in lieu of notice of termination of his employment, he may not be heard to complain later that his contract of employment was not validly and properly determined because in such a case, his conduct could render the determination mutual. In Iloabachie vs. Philips (2002) 14 NWLR Part 181 p.264, it was held that the appellant had acquiesced in the determination of his appointment and cannot thereafter be heard to challenge his termination because the collection of his entitlement has laid to rest any contract real or imagined between the parties. Placing reliance on these cases and those cited therein, it is the law which has gained notoriety that where an employee accepts salary in lieu of notice or severance pay in determination of his employment as in the claimant’s case, she cannot turn round to later complain that her termination is unlawful. Estoppel by conduct will disqualify her from claiming or obtaining any benefit from the alleged unlawful termination of her employment. The Claimant in this case admitted that she was paid the sum of N254,800 as her severance pay upon the determination of her appointment by the defendant, she equally admitted that she has kept it in her account, which means it is still in her custody, under her control and ownership. She has neither refunded it to the defendant in any form or by any means, either by cash or cheque or banker’s draft. The only just and reasonable conclusion that could be drawn here is that the Claimant has accepted the determination of her employment mutually. She is thus estopped from asserting otherwise or seeking for the reliefs hereinbefore captured. It is in consequence that I hold that the Claimant failed to prove her case and therefore, she is not entitled to any of the reliefs sought. Accordingly, Claimant’s case is hereby dismissed.

26.   No order as to Costs.

 

27.  Judgment is accordingly entered.

                                               

 

Hon. Justice Oyebiola O. Oyewumi

            Presiding Judge