IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

 

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

 

DATE: FRIDAY MARCH 24, 2023                       SUIT NO: NICN/ABK/07/2022

 

 

BETWEEN:

 

CHUKWUEDO ONYEKA STANLEY…………………………………...CLAIMANT

 

AND

 

1.     ALEX EKWUEME FEDERAL UNIVERSITY

NDUFU ALIKE IKWO (AE-FUNAI)

2.     VICE CHANCELLOR ALEX EKWUEME                     DEFENDANTS

FEDERAL UNIVERSITY NDUFU ALIKE IKWO

3.     REGISTRAR, ALEX EKWUEME FEDERAL

UNIVERSITY NDUFU ALIKE IKWO

 



 

APPEARANCES:

1.     ISAAC INEDOZIE AGHA, HOLDING THE BRIEF OF HIGH CHIEF SIR JOHN NSO – FOR THE CLAIMANT.

2.     CHRIS OSANI, WITH THE BRIEF OF M.O. ODO – FOR THE DEFENDANTS.

 

 

JUDGMENT

INTRODUCTION

ORIGINATING SUMMONS [OS] commenced this suit July 25, 2022. It has Affidavit in Support [AS] and Written Address [WA]. The claimant framed the following reliefs:

(i)                          A declaration that the termination of the claimant’s appointment by the defendants vide letter of termination of appointment with reference number FUNAI/R/PER/SS/769/VOL. 1 dated 17th June, 2019 is null and void ab initio and of no effect whatsoever, and flagrantly in breach of the service agreement between the parties;

(ii)                       An order of injunction restraining the defendants by themselves, servants agents [sic], officers from acting on the purported letter of termination of appointment;

(iii)                    An order reinstating the claimant unto his position of employment as per the status as at the time of the purported termination;

(iv)                     An order compelling the defendants to pay the claimant the arrears of his annual salaries of N1,300,255 – N1,447,767 or otherwise any sum due to his [sic] as salaries from the month of July, 2019 till the date of reinstatement;

(v)                        An order of mandatory injunction compelling the defendants to issue to the claimant a letter of confirmation of his appointment with effect from January, 27, 2016;

(vi)                     N10,000,000.00 damages for breach of contract; and

(vii)                   Such further or other orders together with consequential orders as this Honourable Court may deem fit to make in the circumstances.

 

Thereafter, the claimant submitted the following questions for the Court to determine the OS:

(a)       Whether the claimant’s appointment was properly and lawfully terminated by the defendants?

(b)      Whether the claimant is not entitled to all the reliefs claimed in this action?    

 

The defendants reacted by Memorandum of Appearance filed December 16, 2022 and Counter Affidavit [CA] filed the same day together with a WA. The claimant thereafter filed Further Affidavit [FA] December 23, 2022 together with Reply on Points of Law [RPL]. Those are the focal processes filed. The decision moves to summary of the processes.

 

SUMMARY OF THE PROCESSES

A: Claimant’s Grievances

The claimant deposed that, the 1st and 2nd defendants gave him temporary appointment December 8, 2015, which letter of appointment spelt out the terms and conditions and, he accepted it and assumed duty January 27, 2016. He deposed further that, he performed his duties without blemish on the basis of which on 22nd December 2016, his appointment was regularised to a tenured appointment. He deposed further that, in the meantime, he secured admission for Master’s Degree at the University of Nigeria [UNN] and duly notified the 3rd defendant and, the defendants gave him approval to proceed. The claimant deposed that, by a letter dated April 3, 2019, he sought extension of seven months to finish the programme but the letter was ignored and, his appointment instead terminated June 17, 2019, whereas, the degree was awarded to him, three months after the termination of his appointment. He deposed that the termination of his appointment was improper, having failed to follow the rules, as well as being in breach of the contract. Those are the claimant’s grievances. The decision moves to summary of the claimant’s WA in support of the grievances.

HIGH CHIEF SIR JOHN O. NSO franked the claimant’s theory of the case. The erudite counsel argued the two questions together. Erudite counsel referred to Exhibits A & E and argued that, by the letter of regularisation, the claimant’s appointment became tenured and pensionable. He submitted that, by virtue of S. 4(1)(j) of the Federal University of Ndufu-Alike Ikwo (Establishment) Act [FUNAI Act] the employment of the claimant was clothed with statutory flavour and, cited some cases on statutory flavour. He submitted that, the claimant’s appointment, by virtue of Exhibit B, was a permanent one and cited the case of Offoelo v. NEP Plc (2006) 4 NRN 179 to the effect that, permanent appointment could only be terminated on grounds stated in the contract. He cited S. 16(1) & 17(4)(a)-(d) of the FUNAI Act and, argued that, they only provide for misconduct or inability to perform the functions of the office or conviction, commission of scandalous conducts, as grounds for termination and, cited S. 17(1) FUNAI Act, as providing the procedures for termination.

Erudite counsel argued that, the appointment letter [Exhibit A] was issued pursuant to the above provisions of the FUNAI Act and cited Idoniboye-Obu v. NPC (2003) 2 SCM 103. Erudite counsel argued that, the letter of termination did not state that the appointment was terminated on any of the grounds envisaged by the provisions of SS. 16(1) & 17(4)(a)-(d) of the FUNAI Act. Erudite counsel also submitted that, the claimant was also not afforded fair hearing in the procedure leading to his termination, contrary to S. 17(1)(b) of the FUNAI Act, which renders the termination unlawful. In support of this, the erudite counsel cited Uka v. Irolo (2002) 14 NWLR (Pt. 786) 195 and Kalu v. State (2011) 4 NWLR (Pt. 1237) 429. The erudite counsel argued that, the only reason for the termination of the contract was that, the claimant did not complete his Master’s within three years whereas, this three-year policy was made December 21, 2016, after the claimant had resumed his appointment January 27, 2016 thus, implying the absence of this term in the appointment accepted by the claimant. Erudite counsel submitted that, the defendants failed to invite the claimant to hear his views on the contentious mid-term policy, contrary to S. 17(1)(b) of the FUNAI Act and thus, breached the contract and cited Citi Bank (Nig) Ltd v. Ikediasi (2020) 13 NWLR (Pt. 1741) 337 at 366.

On the basis of the foregoing, the erudite counsel invited the Court to hold that, the appointment was unlawfully terminated. The erudite counsel argued that, consequently, the Court ought to order the reinstatement and confirmation of the appointment by virtue of S. 2.5 of the Staff Manual, which enjoins confirmation within two years, which was left undone since December 28, 2018 and cited Ifeta v. SPDC (2006) 32 WRN 1 (SC).

In rounding up the WA, the erudite counsel submitted that, the defendants had no good and justifiable reasons to terminate the claimant’s appointment and argued that, the claimant is entitled to damages for the breach of contract and, cited Ogbonnaya v. Alex Ekwueme University delivered May 19, 2020 and finally urged the Court to grant the reliefs claimed. That ends the claimant’s WA. The Court moves to the defendants’ counter-processes.

 

B: Defendants’ Counter-Grievances

The defendants’ Head, Legal Unit deposed the defendants’ CA. She counter-deposed to state the terms and conditions of service contained in the appointment letter and S. 2.20(c) of the Federal University Ndufu Alike-Ikwo Ebonyi State Conditions of Service for Senior Staff of the Federal University Ndufu Alike Ikwo [Staff Manual]. She counter-deposed that, the temporary appointment terminated after a year. She counter-deposed further that, the claimant’s admission for Master’s was on full time, contrary to the conditions of service and that, the degree was awarded to the claimant after four years and, his temporary appointment was terminated for failing to obtain the Master’s within three years of his employment. She counter-deposed that, the claimant failed to obtain study leave and concealed the fact of his full-time master’s from the defendants and the Court. She counter-deposed that, the claimant contravened the admission letter, which forbids full-time studies for someone in full-time employment.

She also counter-deposed that, the claimant failed to disclose to the defendants that, he was in full-time studies and that, there was, in any case, no satisfactory report from his superiors, because of these lapses, to earn him renewal of the expired appointment. She counter-deposed that, as a result of the automatic lapse of the claimant’s appointment, the termination letter was mere surplusage and that; it would be unjust to foist the claimant on the defendants and order payment of unearned salaries for an appointment duly terminated for failing to obtain Master’s within three years of post-appointment. The decision moves to summary of the defendants’ counter-theory of the case.

MICHAEL O. ODO franked the defendants’ counter-theory of the case. The erudite counsel submitted that, the parties agreed that Exhibit MO1, S. 2.20(c) [Exhibit MO3] of the FUNAI Act and S. 17(4) of the Staff Manual are the documents that govern the employment, in view of the undisputed facts of the case. The erudite counsel quoted a portion of the letter of appointment to the effect that, the appointment terminates automatically within a year, unless renewed and argued that, the appointment, being temporary, terminated after a year and the claimant failed to meet the qualification for renewal and failed to even ask for renewal. Erudite counsel referred to paragraphs 14 & 15 of the CA. The erudite counsel argued that, the reliance placed by the claimant on the regularisation letter is misplaced because, the regularisation only meant that, the defendants confirmed the resumption of the claimant and not that, the appointment has been confirmed. He referred to S. 2.14 of the Staff Manual and submitted that, the regularisation letter equally subjected itself to the appointment letter and did not constitute renewal.

The erudite counsel argued that, the termination letter was a mere formality The erudite counsel argued that, the deposition in paragraph 6 of the AS contradict paragraph 5 and that, because, regularisation, being effective from the date of resumption, cannot be based on unblemished and satisfactory performance, but clearly mere confirmation that the claimant had resumed duty and had been in service for continuous 6 months. He argued that, as at the date of resumption when the regularisation took effect, the claimant had not worked at all to have the regularisation premised on unblemished and satisfactory performance.

The erudite counsel argued that, by the self-contradiction, the Court is bound to throw away the evidence, as it cannot choose which is right. On this, the erudite counsel cited Ashakacem v. A.M. Inv. Ltd (2019) 5 NWLR (Pt. 1666) 447 at 460, A-C. The erudite counsel argued that, the international best practice supports the manner of termination of the claimant’s appointment, more so that the appointment had not been confirmed plus the fact that, the claimant was not originally qualified for the appointment because, he did not have MSC at the time of appointment and failed to disclose he was on full time post-graduate studies and cited Exhibits MO. 2A & 2B. Erudite counsel argued that, there is no international best practice in labour relations that can overlook this fraudulent practice and award claimant pat on the back for it. Erudite counsel argued that, the international best practice is either to suspend the MSC or to obtain leave to go for it. He further submitted that, the international best practice is that, where an employee’s concealed fraud is discovered, he is liable to termination and, recovery of the earned salaries.

Erudite counsel argued that, arising from this, the claimant appointment was void ab initio and the NIC cannot be used as engine to legalize the fraud and the unfair labour practice visited on the defendant, as the claimant could not have concluded his full time studies with a full time employment at the same time. He argued that, the full time job constituted gross misconduct, inefficiency and willful refusal to consummate the duties of his employment, for which reasons, his superiors in office refused to give him letter of satisfactory performance, to enable him apply for renewal. Learned counsel referred to paragraphs 16-18 of the CA and submitted that, he who comes to equity must come in clean hands and that, this Court, being a court of equity, cannot condone the act and must hold that, the appointment was lawfully terminated.

The erudite counsel argued that, it is conceded that, the reason offered for the termination is failure to obtain MSC within three years, the Court must be interested in knowing if the reason is lawful and justifiable, in view of the fact that, the claimant’s temporary appointment is terminable summarily for other reasons, like one month notice in accordance with S. 2.20(c) of the Staff Manual. Erudite counsel submitted that, this condition of service does not envisage the given of reasons and for this reason, any reason given that does not affect the future employability of the employee is valid. The erudite counsel argued that, it was clemency on the part of the defendants to refrain from dismissing the claimant for fraud and that, even if the Court decides now to foist the claimant on the defendant, that would not stop the defendants to subsequently reinvestigate the claimant on the fraud and dismiss him. Erudite counsel argued that, the clemency of the defendants in failing to give the injurious reason should be commended, as the international best practice than be condemned for being unfair labour practice.

Erudite counsel argued in the alternative that, if the Court comes to the conclusion that, the appointment did not terminate automatically by effluxion of time, he submits that, the appointment was terminated in accordance with the conditions of service and that, the defendants complied with the one month notice and the condition of service that, the claimant gets Master’s within three years of appointment, which is subsequent conditions of service made, as specified in the appointment letter, on which the claimant based his case. Learned counsel referred to Exhibit MO4 and paragraph 24 of the CA. On the basis of the foregoing, erudite counsel argued that, the claimant’s counsel’s argument that, there was originally no term of the contract with regard to obtainment of master’s within three years of appointment is therefore untenable, more so, that the same appointment letter says the temporary appointment would lapse after one year. He argued that, counsel’s address does not take the place of evidence and cited Okon v. Ubi (2006) ALL FWLR (Pt. 328) 717 at 743. He argued that, having failed to obtain the Master’s within three years, his appointment was rightly terminated, more so that, it was obtained by fraud.

The erudite counsel argued that, since the claimant appointment had not been confirmed, there was no special procedure required to terminate it than to give one-month notice, which was complied with. Erudite counsel argued that, the disciplinary procedures in S. 3.3 of the Staff Manual are meant for confirmed staff and on cases of misconduct. Erudite counsel argued that, SS. 16(1) & 17(1) of the FUNAI Act do not apply to appointment that terminated on effluxion of time and only apply to allegations of misconduct and inability to perform the functions of one’s office.

Erudite counsel argued too that, by virtue of S. 3.3.6(i)-(iv) Staff Manual, any appointment, whether temporary or permanent, except for professors, is terminable by one-month notice and cited Dudusola v. Nigeria Gas company Ltd (2014) FWLR (Pt. 713) 1902 at 1912, G and Chukwuam v. SPDC Nig. Ltd (1993) 4 NWLR (Pt. 289) 512 and that, since the salary in lieu of notice had been paid, the claimant could not be imposed on the defendants, when his termination was proper and he was not denied fair hearing and therefore, not entitled to the reliefs claimed. That ends the defendants’ theory of the case. The Court ought to move to the FA and its RPL but will not. I will give my reason later. Thus ended summary of the relevant processes. The Court moves to summary of proceedings.

 

 

SUMMARRY OF PROCEEDINGS

The case first came up October 21, 2022 and, it was adjourned for hearing. It came up next December 16, 2022 and was again adjourned for hearing. Thereafter, it came up February 10, 2023 and was heard. Erudite CHRIS OSANI moved the defendants’ application to regularise their defence processes and, it was granted. Thereafter, erudite ISAAC INEDOZIE AGHA adopted the WA in support of the OS. Thereafter, erudite CHRIS OSANI adopted the WA in support of the CA. Thereafter; the case was adjourned to 17/03/2023 for judgment. As judgment was not ready on the adjourned date, it was adjourned off record sine die and, when it was ready, delivery date was communicated to the erudite counsel. Those were the proceedings before the Court. The Court moves to give its decision.

But before then, I need to state that, I have carefully read and summarised the focal processes, as is seen above and digested the contents. I have taken note that, this is OS and, also noted the law relating to resolution of conflicts in affidavits. I have also noted the position of law that, the affidavits constitute both the pleadings and evidence. I have also checked some of the authorities cited to refresh my memory and also done personal researches on cogent authorities, to enable me give well-reasoned decision that would evoke conviction and catharsis. Having satisfied these important prerequisites, I certify myself qualified to give my decision on this case. There I go.

 

COURT’S DECISION AND THE RATIONES DECIDENDI  

This case, being OS, the Court, like the parties, is limited to the questions the claimant formulated for it to answer. They are:

(a) Whether the claimant’s appointment was properly and lawfully terminated by the defendants?

(b)      Whether the claimant is not entitled to all the reliefs claimed in this action?   

 

But before then, let me attend to a preliminary issue, which is the question of the FA and the RPL filed by the claimant, which the Court declined to summarise! What is the reason for the declination? At p. 3 of the Proceedings File is the record of adoption of the processes on the OS:

“Agha – We are ready to adopt. Before the Court is originating summons dated 14/07/22 and filed 23/07/22. It has 17-paragraph affidavit in support with annexures A-K. It has written address attached. We rely on the affidavit in support and the annexures. We adopt the written address.

Osani – We just had the leave of this Court. We filed counter-affidavit 16/12/2022 with 4 annexures – MO1-MO4. We rely on all the paragraphs of the counter-affidavit and the annexures and adopt the written address. We urge the Court to dismiss the suit.

Court – Case adjourned to 17th March 2023 for judgment.”

 

We can see that, in no place did the erudite counsel to the claimant reference the claimant’s FA and the RPL. The implication in law is abandonment – see Anieto v. Anieto (2019) LPELR-47223 (CA) 7-9, E-A. The Court could not deem it moved because, the scenario of counsel being present in court and not adopting the RPL, is different from the scenario envisaged by the rules of this Court, which give it power to deem as adopted, a process duly filed and, the counsel failed to attend court on the date fixed for hearing. That explains the reason for not summarising the FA and the RPL. They are deemed abandoned and, the Court accordingly discountenanced them. The Court can now safely move to the substantive decision.

The Court shall answer the two questions together because of their close interconnectedness. The Court will however like to state that, it had answered virtually all the questions raised in the instant suit in two of its previous decisions: NICN/ABK/09/2021: Udefi v. Alex Ekwueme Federal University, Ndufu Alike Ikwo & Ors [Delivered August 12, 2022] and Elizabeth  v. Alex Ekwueme Federal University, Ndufu Alike Ikwo & Ors [Unreported NICN/ABK/02/2021 delivered Dec. 15, 2021].

NIC is a Court of precedent; meaning, its previous decisions are binding on it, except there are strong reasons to depart from them. Hence, these decisions shall be the focal authorities for my decision in the instant case, being virtually the same facts in substance. The defence submitted in the WA, in paragraph 4.1 that, the facts of the case are undisputed. That is true: the case is really about construction of documents and interpretation of cognate laws and hence, rightly filed as OS.

The defence arguments are essentially structured in four dimensions: 1. The dimension justifying the termination upon the reason offered in the termination letter, as one permissible by the terms of the contract and the enabling statutes. 2. The dimension that, another reason, outside the one stated, justified the termination; and this reason is that, the claimant, by concealment of the full-time post-graduate programme, was rightly terminated and that, if the Court should foist him on the defendants, the defendants would then try him on the concealment and dismiss him. 3. The dimension that, in any case, being probationary or temporary appointment, and being that, only professors have tenured appointment, the claimant’s appointment could be terminated, once the requisite notice is served. 4. The dimension that, the appointment automatically lapsed after a year and that; the letter of termination was just a formality.

The claimant, via his counsel, argued that, the regularisation took his employment out of the morass of temporary or probationary appointment and made it permanent and therefore, made the appointment subject to the fair hearing provisions of the FUNAI Act, which the defence failed to comply with and therefore, the termination was unlawful. The claimant also argued that, his appointment letter did not contain any term that, he should obtain master’s within three years and that, his appointment could therefore not be terminated for a term imposed after the commencement of the contract. The claimant also argued slyly that, there is no term of the contract that forbids him from pursuing master’s degree. He also argued that, his appointment did not automatically lapse because, he served for three years before the termination.

The above are the contradictory positions to resolve. In doing this, it is important to state the focal law first. The law has become trite that, once an employer gives a reason for termination, he is stuck with that reason. He must justify it, to sustain the termination. The Supreme Court succinctly stated the law in SPDC Ltd v. Olarewaju (2008) LPELR-3046 (SC) 19-20, D-A:

“The guiding principle which has been articulated and applied in many cases including Olatunbosun v. N.I.S.E.R. Council…is that an employer is not bound to give reasons for terminating the appointment of his employee. But where, as in this case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the Court. In this case, the appellant, having given gross misconduct as its reasons for the respondent’s dismissal, has the onus to establish that the respondent was indeed guilty of the alleged misconduct to warrant his dismissal. And in a case like this, the Court must be watchful to ensure that in the investigations or proceedings of the domestic panel culminating in the employee’s dismissal, the rules of natural justice were not breached.”

 

See also Iwuoha v. Mobil Producing Nig. Unltd (2011) LPELR-4477 (CA) 10-11, A to the effect that, a court must confine itself to the reason given in the termination letter. This position of law is applicable to employment with statutory flavour, as well as common law employment – see Olufeagba & Ors v. Abdul-Raheem & Ors (2009) LPELR-2613 (SC) 88-90, D. And this is more particularly so in view of Art. 4 of the ILO C158, which says, it is unlawful to terminate employment without giving justifiable reason, which has become the international best practice in employment termination around the world, and binding on Nigeria by virtue of S. 254C-(1)(f) of the Constitution. Good enough, the erudite defence counsel conceded that, the instant employment is clothed with statutory flavour – see paragraph 4.2 of the WA, which implies that, reason must be offered for its termination.

The guiding principle here is that, the defence must justify the reason offered for the termination, within the four walls of the contract, and not to justify the termination, by another reason not stated in the termination letter. That is the law. What is the reason for the termination in the instant case?  It is as contained in Exhibit F of the AS, which paragraph 3 states:

“I write to convey the Termination of your appointment as Graduate Assistant…

This is consequent upon the Governing Council’s Resolution at its 6th Regular meeting held on 21st December, 2016 that ‘any Graduate Assistant who do not secure/obtain Masters degree within three (3) years from date assumed duty in the University would have their appointment terminated.”

 

That is the reason given for terminating the claimant’s appointment. The circular, which gives the defendants the right to terminate Graduate Assistant’s appointment for failing to obtain Master’s within three years, was issued January 17, 2017 [Exhibit MO4 of the CA]. The defendants argued that, the University had the right, as conferred on it by the appointment letter [Exhibit A], its enabling statute [FUNAI Act] and, the Staff Manual, to review and issue from time to time, new conditions and terms of service. The claimant argued contrarily that, this did not form part of the contract he entered at inception and, could therefore, not affect him. The claimant gave evidence that, he assumed duty January 27, 2016, which means, this policy was issued about a year after he assumed duty.

While it is the law that, because of the natural exigencies of labour relations and practices, rules of engagement might change from time to time, as the times demand and, for these reasons, the employers could make new rules and even change the contract and, impose new bars, there is no rules of employment relations that permit retroactive change of the contract or raise of the bar. What is permissible internationally is prospective raise of the bar: that is, only a change of policy that takes effect prospectively is allowed and lawful. Any other thing is breach of contract and would not be allowed, even where there is as contractual right in the employer to alter the contract.

            The three-year Master’s in this instance, was supposed to mature January 17, 2020 and, the claimant’s appointment terminated before then, was therefore, unlawfully terminated - Elizabeth  v. Alex Ekwueme Federal University & Ors [supra]. In like manner, even though, if it took the claimant four years to complete the Master’s, so far it has not exceeded the moratorium of the new policy, the claimant would be home and dry because, it is clear that, before the innovation of the three-year benchmark, there was no limitation of the duration to complete the Master’s. So, the time limitation cannot take effect retroactively.

Three years must begin to count for the claimant from the date the policy took effect, if it was actually communicated to the claimant on that date or, if not, from the date of its communication, for, in contract, you cannot introduce a secret unilateral clause without communicating it to the other party and expect it to be enforceable against him at your whims and caprices, even if you have the right to alter the contract. That would be against, even common law employment relations and definitely, international best practices – Elizabeth  v. Alex Ekwueme Federal University, Ndufu Alike Ikwo & Ors [supra] and Gambaga v. Mbiu & Ors (2014) LPELR-41079 (CA) 17. Even though, it is conceded that unilateral alteration of employment contract might be allowed in exceptional circumstances but, to have effect on the employees, such alteration must be communicated and, can never have effect, until so communicated.

The Third Alteration Act has radically affected the law with regard to labour relations. S. 254C-(1)(f) of the Constitution has introduced the concepts of unfair labour practices and international best practices to labour law and practices in Nigeria. The new legal regime would not permit the scenario painted above, even if it was permissible under the erstwhile common law – Elizabeth v. Alex Ekwueme Federal University [supra]. In effect, the defendants unlawfully terminated the claimant’s appointment. Thus, this focal point is decided against the defendants and in favour of the claimant. The reason the defendants gave for the termination, they have not been able to justify in fact and law and therefore, the termination is unlawful and the claimant stands reinstated, being that the employment has statutory flavour – Olufeagba & Ors v. Abdul-Raheem & Ors [supra] 40-41, E-B. That ought to be the end of the case because; the other issues are mere cavils that are totally irrelevant to the cause of action herein. But for the sake of completeness, I will examine them before rounding up the case.

The first amongst these cavils is the issue of concealment of full-time postgraduate admission. The claimant argued that, no term of his contract spelt that, he should not pursue full-time studies, but only not to take another paid employment while fully employed by the defendants or continuous work with any outside party. To resolve this, the first port of call is the appointment letter. Its clause [paragraph] 4 provides:

“The appointment is a whole time appointment and no paid work or any other continuous work with parties outside the University may be undertaken without the consent of the University previously obtained in writing.”

 

That is the pertinent clause in issue. It s clear that, this clause, as it is, does not totally forbid another paid work or any other continuous work, but only that, approval must be sought and obtained before the claimant could lawfully do it. The claimant pleaded in paragraphs 7 & 8 of the AS that, he notified the 3rd defendant of his admission for the postgraduate and, approval was obtained. I found confirmations in Exhibits C & D respectively. I found that, the claimant in Exhibit C claimed to have furnished the University with the admission documents. The word documents, I take judicial notice, is ambiguous and, I found that, the claimant did not annex the documents, which are supposed to be part of the Exhibit C. But I found that, the defendants admitted paragraphs 7 & 8, in their paragraphs 4 & 8 of the CA and, even exhibited the admission letter and its attachment, as Exhibits MO2A & MO2B.

What information are they then claiming the claimant suppressed from the University! Is it the very admission letter they admitted the claimant furnished them since June 20, 2017 [Exhibit D]! Did they not read the contents of the admission letter when the claimant gave them or, what did they use to process the approval to proceed on the course [Exhibit D]? Since the claimant got approval to undertake the studies, he has therefore, not in any way infringed the clause 4 of the appointment letter, which even permit simultaneous paid job with, even third party with the consent of the defendants, not to talk about admission for postgraduate studies, which the defendants even goaded the claimant to obtain at all cost. It is important to note that, full-time postgraduate study is not synonymous with paid employment or paid work or continuous work with outside parties but purely studies or studentship that is synonymous with apprenticeship – Udefi v. Alex Ekwueme Federal University & Ors [supra].

Another angle to this is that, I observed that, the three-year circular did not talk about the mode of admission for the Master’s degree that the claimant could pursue: whether full-time or part-time. It simply says, three years, leaving the modes of studies open. We are not told too, what the normal durations of the two streams are and, my check at both the admission letter and its attachment did not reveal these. These are the facts, which the defendants, making special defence, peculiarly within their knowledge, must prove to make the Court decide, there was indeed any violation. If three-year is approved and full-time Master’s has maximum three-year duration and, perhaps four-year or more duration for part-time, how is the claimant to comply with the longer period, if he had to go on part-time for a three-year moratorium?

And the argument that, the claimant failed to secure leave to pursue the course cannot gel because, the claimant applied for approval, which the University granted. Is it that the University was not aware that time that, leave ought to have been granted, instead of express approval of full-time study? From this scenario, what could be deduced is that, the defendants were fully aware of the facts and circumstances of the admission and decided to grant approval to the claimant to run full-time Master’s programme. They cannot turn round to complain against the approval they granted, as being irregular: equity would not permit that type of doublespeak and, S. 169 of the Evidence Act will also forbid it, and this is encapsulated as estoppel by conduct – Nsirim v. Nsirim (2002) LPELR-8060 (SC) 20, A-C.

In the same manner, it does not lie in the defendants’ mouth to point out that, the admission letter forbids full-time employment while pursuing full-time postgraduate studies. They cannot be heard to complain on a situation they created. It is a case of outsider that cries more than the bereaved. It is only the UNN that can lawfully complain. The defendants lack locus on the issue – Jatau (AMB) v. Auta (2022) LPELR-57146 (CA) 43-44, F-A. The defendants are not the UNN that forbids the claimant from undergoing full-time postgraduate studies while on full-time employment, it is the UNN, and only the UNN can complain on that. Such breach does not in anyway affect or contradict the contract the claimant had with the defendants. They should face the terms of their contract and show how the claimant breached them and, not to become meddlesome interloper in the affairs of the UNN.

The letter of appointment only forbids paid work or continuous work with third parties, while the claimant was on full-time employment with the defendants, which is not the case with postgraduate studies. Postgraduate study is not paid work or continuous work with third parties – Udefi v. Alex Ekwueme Federal University [supra]. The Court therefore holds that, the claimant did not conceal anything that he was obliged to disclose to the defendants - Udefi v. Alex Ekwueme Federal University [supra] on the international best practices on duty of disclosure on employees. It was held that, in Nigeria, it is only applicable when such issue to be disclosed is made part of the contract. What the defendants specified that the claimant must disclose is paid work or continuous work with third party, which full-time study is not.

Next, the Court examines the question that, the appointment, being temporary is terminable at will. The claimant has resisted this, by staking reliance on the regularisation letter, while the defence insists that, the regularisation letter is no more than mere acknowledgment that, the claimant had resumed duty because, the regularisation letter was backdated to the date of his resumption of duty, which confirms that, it merely acknowledged resumption at work and that, for this reason, the claimant could not lay claim to the same, as confirmation letter or, as having any other effect. The defence points to a clause in the regularisation letter, and argues it says, all the terms and conditions in the appointment letter still apply, notwithstanding the regularisation. They argue too that, only professors have permanent appointment, while all others’ appointments are terminable by a month’s notice. They argue further that, in any case, the claimant’s appointment, being temporary, is one-year tenured, unless renewed at the expiration of one year and that, the claimant’s appointment actually lapsed, since it was not renewed after a year and that, the termination letter was unnecessary surplusage.

As could be seen, all these arguments are interwoven with the effect of the regularisation letter on the entirety of the contract and related statutes and instruments. A document speaks for itself – Shinkafi & Anor v. Al-Hassan (2016) LPELR-45427 (CA) 17-18. There is also the principle of law that, when a document refers to another, such that both must be construed together to arrive at the composite meaning of a clause in a contract, the doctrine of incorporation by reference applies – Iwuoha v. NRC (1997) LPELR-1570 (SC) 16, A-C. The principle is particularly relevant here because, the arguments from left and right, point to its application. The focal clauses of the regularisation letter are clauses 2 & 3. They provide thus:

“By this approval, your employment in the University is now a tenured and pensionable appointment in line with the extant laws and regulations of the University.

All other conditions in your temporary appointment letter remain valid.”

 

From the foregoing, it is very clear that, the regularisation letter incorporated many other instruments, as listed therein, particularly the letter of temporary appointment. But the first principle is to examine the words of the regularisation letter itself, to know the exact relations they have with the other incorporated documents. Clause 3, as quoted above, becomes the central port of call. It says: “all other conditions in your temporary appointment letter remain valid.” What is the meaning of this? I think the meaning is derivable from the phrase “all other conditions” of which the determinant word in the phrase is “other”. The word “other” has been construed in FRN v. Ibori & Ors (2014) LPELR-23214 (CA) 59, to signify disjunction, as against similarity and that, it depicts alternative between different things. In line with the above authority and, with particular reference to its usage in the context of the clause 3 of the regularisation letter, the phrase simply modifies the preceding clause 2 and, means, apart from the conditions imposed in the temporary appointment letter, which have been nullified by clause 2, all other conditions therein remain valid, implying that, some terms in the temporary appointment letter had been nullified.

Unfortunately, the said clause 2 did not directly name those conditions of the appointment letter it nullified. The implication is that, these must be gathered from the effects of the phase “tenured and pensionable” of which the words “tenured” and “pensionable” become significant; meaning that, any of the conditions listed in the temporary appointment letter, which are incompatible with the phrase, must give way. To this extent, the argument of the defence that, the regularisation letter has no effect other than acknowledgment that, the claimant had resumed work is patently wrong. Then, we must first ascertain the meaning of the phrase “tenured and pensionable”. We turn once again to Udefi v. Alex Ekwueme Federal University [supra], which defined the phrase to mean:

“A temporary appointment cannot be tenured or pensionable, except if the pension would take retroactive effects on confirmation, but such effect is not expressly stated herein. The implication is that, as it is in the instant case, if the appointment has become tenured and pensionable, and the essence of tenured and pensionable appointment in the university system, is to guarantee the freedom of speech needed for research and publications, it follows that, the tenured and pensionable appointment in this instance must enjoy the benefits of S. 17 of the FUNAA, dealing with the procedure of disciplining academic and senior staff of the university, which essence is security of appointment of lecturers and other senior staff of the university.

That the claimant’s appointment is no longer temporary is settled beyond disputation by paragraph 6 of Exhibit A [Offer Of Temporary Appointment], which provides clearly that: ‘As this is temporary appointment, it will not be pensionable unless and until it is regularized.’ Having been regularised, it follows that: it is no longer temporary.  You cannot be allowed to blow hot and cold in contracts. The contra proferentem rule takes this type of ambivalence in favour of the employee – see Achkar Law, “Contra Proferentem in Ontario – Ambiguity in Employment Contracts” at https://www.achkarlaw.com... The defendants are therefore estopped from relying on any clause to say the appointment is still temporary. Hence, the claimant’s appointment cannot be terminated without following due process of the law as laid down in S. 17 of the FUNAA. – P. 15-16.”         

 

To edify the above ratio decidendi, this decision adds that, the revered clause 2 of the regularisation, puts further stamp of confirmation that, a tenured and pensionable appointment, is no longer temporary or probationary, once regularised, as the appointment is “now a tenured and pensionable appointment in line with the extant laws and regulations of the University”, which simply means, the regularisation makes the employee entitled to the protection offered by the FUNAI Act. In this wise, the relationship between the FUNAI Act and the Staff Manual becomes relevant. The Staff Manual, being a subsidiary legislation, takes its validity from the FUNAI Act and, cannot contain anything that negates the FUNAI Act. If it does, such incongruous provisions become void – African Natural Resources and Mines Ltd v.  SS Minerals Resources Ltd & Ors (2011) LPELR-55151 (CA) 10-11, E-A.

Hence, the defence arguments that, the claimant’s appointment remains temporary, even after regularisation and therefore, subject to whimsical termination, provided a month notice is given or salary in lieu is paid, by virtue of the Staff Manual, is incorrect, as it flies in the face of the provisions of SS. 16&17 of the FUNAI Act, more particularly so that, the appointment was terminated after three years. Hence, the failure to follow procedure as specified in the FUNAI Act is fatal to the termination; and I so hold. The National Assembly cannot make law [the FUNAI Act] for the University to make a subsidiary legislation, which the Staff Manual is, to thwart it!  

To regularise means, to make normal what was not normal or, what was originally irregular so that, it can enjoy the full benefits and privileges attached to the regular thing. That is the natural meaning of the word and, that is the sense in which the law has used the word – Usman v. Abubakar (2021) LPELR-3471 (CA) 9-10, E-F with regard to the regularisation of courts’ irregular processes and the legal effects. It might be that, the defendants have double-decker confirmation of appointment, which is peculiar to it, but that does not detract from the effect of regularisation, as bringing the appointment to the main stream of the FUNAI Act and, the privileges of fair hearing before termination. It simply means that, the appointment cannot lapse automatically after a year, once regularised, but might perhaps, in a strained meaning, be subject to yearly renewal till confirmation, but since it has been made tenured and pensionable, for it to be terminated after a year, the employee must be confronted with why and how he failed to meet the conditions for renewal, at the least, and allowed to defend the accusations before being shown the way out, and only when his defence failed to hold water. That is the least meaning and legal effect of regularisation.

No one forced the defendants to have double-decker confirmation, but since they have it, it must take its natural course, by resolving any ambiguity arising therefrom in favour of the claimant. Hence, the least that the regularisation could mean in this instance is that, the appointment, after the regularisation, is subject to the right to fair hearing before termination; and I so hold. Hence, in strained interpretation that, other conditions might have to be met before confirmation; for example, the possession of Master’s degree and that, confirmation puts an end to the stumbling blocks on the pyric ‘tenured and pensionable’ appointment conferred by the regularisation, but whatever further conditions imposed, the claimant is entitled to be heard before being shown the way out. That is the least legal effect of the regularisation letter. Any ambiguity in the interpretation of the clauses of the contract in issue must therefore be resolved in favour of the claimant in line with Udefi v. Alex Ekwueme Federal University [supra] and, Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806, 43-56, B, which says:

“…International best practices in labour or industrial relations are almost always mirrored in the light of the conduct of the employer; the actions (or inaction) of the employee are seldom the subject of consideration since it is the action of the employer which has been found to be wrongful/unlawful that has been brought to light for necessary salve to be afforded the employee. Section 254C(1)(f) and (h) and (2) of the Constitution empowers the lower Court to apply international best practices in labour…”

 

That ends discussion on the effect of the regularisation letter. The defence raised the issue that, if the Court foists the claimant on the defendants, since the employment could be terminated on the dishonesty of the claimant’s failure to disclose information, the defendants would proceed to commence process to dismiss the claimant for the fraud perpetrated in securing the appointment by the concealment of information regarding his full-time postgraduate study – p. 18, para. 4.17 of the defendants’ WA. This, as it is, is seemingly academic issue, which is futuristic and, courts are generally not imbued with jurisdiction to take on academic issues – Andrew v. Oshoakpemhe & Ors (2021) LPELR-53228 (CA) 68-69, A-E, but I am bound to look at this issue for two reasons. The first is, in virtue of the duty imposed specially on this Court by its specialised jurisdiction, by virtue of S. 14 of the National Industrial Court Act [NICA], to ensure that, it takes all isssues and gives all decisions that would ensure that, all issues and points that could lead to multiplicity of actions are ended at the first opportunity as this, I am bound to now attend to this issue and determine it once and for all. By this threat, it is clear that, another ground of litigation is being laid on exactly the same inordinate determination to terminate the claimant’s appointment.

The second reason is connected with the first, and this is the insolence of the threat and, the direct contempt implied to the Court that, the defendants would not obey whatever decision the Court gives, which does not favour it and, would look for frivolous and inordinate ways to thwart it. I am surprised that, this is coming from a lawyer! And this makes me wonder the sort of advice such lawyer gives to his clients, the defendants in this case, if he could be threatening the Court with disobedience now, that, it dared not determine the case against the defendants because, they are above the laws of the land!

The erudite counsel seems, in his inordinate ambition to trample the rule of law to satisfy his clients, to forget the settled principle of law that, a waived right could not be resuscitated, especially in condoned employment offence - Romrig Nigeria Limited v. FRN (2014) LPELR-22759 (CA) 44-45, G-A; Bakare v. Lagos State Civil Service Commission & Anor (1992) LPELR-711 (SC) 95, C-D and, Electricity Corporation of Nigeria v. NICOL (1968) LPELR-25505 (SC) 12, A-C, which held:

“It is settled law that if a master did not complain and appeared to be satisfied with a servant’s conduct, that complaint cannot be a ground for dismissal on a subsequent occasion…As to irregularities, the defendant could not rely on them in as much as, after full knowledge of them, he continued the plaintiff in his service.”

 

The defendants did not just discover the alleged offence of concealment of full-time postgraduate since the claimant furnished the defendants with his admission letter since May 10, 2017 [Exhibit C] and, the defendants approved for him to proceed on the course, since June 20, 2017 [Exhibit D] before his appointment was subsequently terminated June 17, 2019 [Exhibit F]: approximately two years after approval of the full-time postgraduate, without recourse to the alleged offence, they must be deemed to have condoned or waived it, if indeed, there was actually any concealment. That they are attached with waiver is settled, when the defendants deposed and argued that, they deliberately forwent the alleged offence of concealment because, they did not want to dismiss the claimant, they cannot fall back on it, when they failed to justify the termination on account of non-production of Master’s within three years of assumption of duty. In addition, the Supreme Court in Makun & Ors. v. Federal University of Technology, Minna, 2011 Legalpedia SC X944 page 1 states, and I quote:

“The plea of res judicata applies except in special cases, not only to points which the court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject-matter of litigation and which the parties exercising reasonable diligence might have brought forward.”

 

Res judicata stops the defendants from raising the question for all times and purposes, assuming the claimant were even guilty of it, which, as I have explained earlier, he was not even guilty of. They had the opportunity of raising it and, were aware of it before terminating the claimant’s appointment on another ground, but deliberately spurned it. They lost the opportunity forever. Those are the answers to the threat of the defence counsel that, he would goad his clients to embark on the illegality, if the Court dared to decide against them.

By his threat, it is beyond disputation that, the defendants were aware of the alleged concealment but declined to take it. Having made their choice, which did not gel, they are estopped to recant by making another fresh cause of action upon it, on this same issue of termination of the claimant’s appointment to the annoyance of both the claimant and the Court the on stale issue and, to waste the precious time of the Court and taxpayers’ moneys, in having to re-adjudicate the same point, which the defence decided to abandon at the first opportunity – AG Bendel State v. AGF & Ors (1981) LPELR-605 (SC) 153-154, F-B. There must be an end to litigation on the same issue. Besides, the Court has actually found that, the claimant is not guilty of any concealment, as he did not actually conceal anything from the defendants. Hence, this issue of concealment is dead and buried for all intents and purposes and, I so hold.

And there is no proof before the Court that the claimant did not perform his duties during the course of his postgraduate studies. The ipsi dixit that, his superior refused to give him recommendation after the appointment lapsed after a year, is totally false for two reasons. First, the claimant’s served for two more years after the approval of his Master’s programme without compliant on his performance, and in the second place, the defendants never gave non-recommendation by his superiors, as the cause of his termination, but not obtaining Master’s within three years. It would even appear that, had the claimant obtained the MSc within three years, as the termination letter and the circular on three-year tenure for Master’s made it to appear, the defendants would not have bothered about its being obtained on full-time basis, which shows that, clinging on the issue of full-time postgraduate, is mere clutching at straws, to justify the illegal termination of the claimant’s appointment.

The defendants manifested in the two documents [Exhibits F of the AS & MO4 of the CA], which did not state the manner of pursuing the Master’s and whether it would be on leave that, they have inordinate desire that, the claimant obtained Master’s within three years by all means! It also shows that, by bringing up the issue of full-time at all, the defendants are not consistent in the cause for which they terminated the claimant’s appointment; and the Court is under obligation to dismiss their mutually inconsistent defence, as a sign of bad faith. In this wise, the defendants cannot rely on any prior rule made when there was not in place the new rule pegging the duration to three years. The new three-year rule, being naturally inconsistent with a rule made when the duration was not pegged at three years. Be that as it may, the decision moves to the issue of the validity of payment of salary in lieu of notice to terminate.

I found that the claimant did not reply to the deposition that the salary in lieu of notice was paid. Though, this issue ought not to be relevant now, in view of the fact that, I had held severally that the termination was unlawful, but since, I said I would examine all issues for the sake completeness, I am bound to make my views known on it. Firstly, the regularisation letter nullified the issue of notice, which is inconsistent with tenured appointment. Secondly, going by the letter of termination, I found at first paragraph, the second sentence thereof: “However, the salary of June, 2019 will be paid to you in lieu of one month notice.” No evidence was adduced as to when this was paid or whether it was paid at all. The sentence quoted above is a mere promise and not evidence of actual payment. The law on payment of salary in lieu of notice is that, it must be paid contemporaneously with the termination to be effective – Mainstreet Bank Registrars Ltd v. Olugbenga (2017) LPELR-50998 (CA) 38-39, D-F and Chukwumah v. SPDC (Nig.) Ltd (1993) LPELR-864 (SC) 28, D-G.

Though, there appears to be some dictum that seems to suggest that, notification would be enough, especially from Bello CJN – p. 50-51, E-A – but it is the ratio decidendi in the lead judgment that prevails - Nwani v. Bakari & Anor. (2006) LPELR-7629 (CA) 13, A-E and Nwanna v. FCDA & Ors. (2004) LPELR-2102 (SC) 11-12, G-E. The idea that salary be paid in lieu of notice contemporaneously with termination is supported by S. 11(6)&(7) of the Labour Act and Art. 11 of the ILO C158 [supra], which is applicable in Nigeria as veritable signal of international best practice on point. The defendants who claimed they paid salary in lieu of notice has the duty to prove this by tendering the evidence of payment and, the promise to pay is not the evidence of actual payment – Bolou v. Federal College of Education, Obudu & Anor (2019) LPELR-47465 (CA) 22-24, C.

Since there is no proof of payment in lieu of notice contemporaneously with the termination, and the appointment has statutory flavour, the implication of not following procedure laid down by statute for the termination renders it unlawful, assuming it could be lawfully terminated on notice – NIIA v. Ayanfalu (2006) LPELR—5960 (CA) 13-14, D-A and The Registered Trustees of the Planned Parenthood Federation of Nigeria (2003) LPELR-7300 (CA) 14-15, F-E and makes the termination liable to be set aside while reinstatement is ordered with the payment of the arrears of salaries to date.

It follows that in whatever way one looks at it, the termination of the claimant’s appointment is unlawful and void ab initio. I accordingly hereby declare the termination of the claimant’s appointment void and hereby set it aside and order reinstatement of the claimant to his status quo ante the termination in line with the authority of Olufeagba & Ors v. Abdur-Raheem & Ors (2009) LPELR-2613 (SC) 40-41, E-B. In line with the authority of Taylex Drugs Company Limited v. Onankpa and, The Council of Federal Polytechnic, Ede & Ors v. Olowookere (2012) LPELR-7935 (CA) 22-23, D-B:

“…By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of ‘estoppel by conduct’ would operate to prevent the appellant from alleging and treating him as if he was still on probation. ‘Delay defeats Equity.”

 

Having allowed the claimant to stay in the defendants’ employment for three years beyond both the periods of regularisation and confirmation, with regularisation and its consequential effects as held earlier on, but without confirmation, the termination having been declared unlawful, the defendants are equally bound in equity, fairness and law, to issue the claimant with confirmation letter forthwith; having now being in the defendants’ employment for above 7 years without confirmation and, I accordingly order the defendants to issue the claimant with confirmation letter. I will now examine the issues of damages claimed in addition to claims for reinstatement with arrears of salaries.

I have carefully pondered over the idea of double compensation. We should bear our mind on the fact that, the defendants did not only fail to just obey the enabling laws and the contract but actually additionally infringed the constitutional provisions against unfair labour practices. I think the idea of retroactive three-year tenure, for which they terminated the claimant’s appointment, is a veritable example of unfair labour practices that goes beyond mere failure to comply with the provisions of the contract and the enabling statutes. In the cases of employment with statutory flavour, order of reinstatement with payment of arrears of salaries might be sufficient in cases where there are no egregious infringements of constitutional and employment rights. But definitely, where constitutional rights are infringed as contained in S. 254C-(1)(f) of the Constitution, we cannot and must not treat constitutional rights as mere common law employment rights, which the relief of reinstatement with arrears of salaries was before the further rights granted against unfair labour practices under S. 254C-(1)(f) of the Constitution. We must give allowance to this constitutional provision to fulfill itself.

Besides, I found that the defendants are unrepentant sinners who continue to demonstrate uncommon disdain for the Constitution of Nigeria. They must not be encouraged in this very atrocious attitude. This is not the first of the cases in which exactly the same issue, as in the instant case was raised and decided against the defendants by this Court. See for example: NICN/ABK/09/2021: Udefi v. Alex Ekwueme Federal University [Delivered August 12, 2022]; Elizabeth  v. Alex Ekwueme Federal University, Ndufu Alike Ikwo & Ors [Unreported NICN/ABK/02/2021 delivered Dec. 15, 2021] and, Maureen v. Alex Ekwueme Federal Univsersity, Nudufu Alike Ikwo & Ors [Unreported NICN/ABK/01/2021 delivered Dec. 09, 2021]. A more responsive institution, like a citadel of universal learning and civilisation, which a university is supposed to be, ought not to have allowed this case to come to Court.

They ought to have reconsidered their stand and recall all those illegally terminated on the issue on point. But alas, instead, they continue to justify what they did and even boasting that, if the Court dares to decide against them, they would contemptuously proceed to fish for another ground to terminate the claimant’s appointment! They clearly claimed to be unruly and above the law. Since Nigeria is not a jungle or Banana Republic, this type of egregious disregard for rule of law that is exhibited must be redressed with punitive and deterrent damages.

The way and manner of behaviour of the defendants in justifying this serious constitutional breach without remorse definitely traumatizes the claimant with psychological and mental agonies and is worthy of being compensated. I take especial notice that, in this peculiar case, reinstatement might not be enough because, it merely restores the claimant back to the position he was before the termination and does not take care of the issue of stagnation in career progression, which the claimant might lose for ever or be unable to make up, bearing in mind that, four years have lapsed before this decision is made. For all the above reasons, I believe the claimant is entitled to compensation in addition to reinstatement and payment of the arrears of salaries.      

It is for situations like this that, SS. 13-19 of the National Industrial Court Act [NICA], especially SS. 14 & 19(d) exist to give the Court the vires to accommodate reliefs in tune with the dictates of S. 254C-(1)(f) of the Constitution. Both ILO instruments and international best practices bind this Court in the adjudication of labour disputes. The ILO standard in a situation like this is the award of punitive and deterrent damages [compensation] - Xavier Beaudonnet ed., International Labour Law and Domestic Law: A training manual for judges, lawyers and legal educators (Turin, International Training Centre of the ILO, 1st edition, 2010) at 157.

I now intend to examine how the world of work treats this type of issue, resulting from breaches of employment contracts and rights under the canopy of ILO’s decent work agenda. In the ILO, “Judgment 121: Twentieth Ordinary Session of the Administrative Tribunal of the League of Nations, 1968”[1], involving Agarwala v. United Nations Food and Agricultural Organization [FAO], the Tribunal held, and I quote:

“By the letters of 8 and 9 June 1966 the complainant was relieved of his duties and in effect forbidden to call at his office. The nature of this act, which is clearly a suspension from duty, is not altered by the fact that some ten days later a duty of nominal character was proposed for him. The organization has therefore committed a breach of contract by suspending the complainant otherwise than in accordance with the Staff Regulations. Since his emoluments have been fully paid, he has suffered no material damage, but he has suffered moral damage. He is entitled to compensation for the distress caused by the abrupt way in which he was treated, tantamount in its form to summary dismissal, and for the injury done to his reputation and to his prospects of obtaining other employment. The Tribunal fixes this compensation at 6,000 dollars.”

 

Another international example is Harmon v. State, reviewed in Luth Levush, “Israel: National Labor Court Quintuples Compensation in Occupational Harassment Case”[2]. Levush reported the Nazareth Regional Labour Court of Israel [RLC] in the following words:

“The regional court rejected the appellant’s claim for reinstatement at his job but awarded him compensation in the amount of 60,000 new Israeli shekels (NIS) (about US$17,166) ‘for harassment or compensation for mental anguish.’ The court held that there were exceptional circumstances that justified this relief even though it was not explicitly requested…Although no legislation on the topic has been adopted yet, Israeli labor courts have addressed occupational harassment within the framework of existing law, basing their decisions on the obligations of good faith and fairness to which each employer is obligated as an integral part of the employment contract.”

 

On appeal to the Israeli National Labour Court [NLC], equivalence of the Nigerian National Industrial Court [NIC], Levush reported that, the NLC held in September 6, 2022 that:

“[i]n our case, the employer is the State of Israel, that is, a clearly public body whose obligations of good faith and fairness are elevated…’…

The NLC concluded that the compensation to the appellant in the circumstances of the case should be set at NIS300,000 (about US$85,168), reflecting the NLC’s conviction that the circumstances of the case were particularly grave and justified significant relief. The NLC explained that the compensation was mainly for the nonpecuniary [sic] component of the case, but also took into account the economic consequences of retirement and the need to establish a deterrence to similar behaviour in the future.”[3]

 

In both authorities on international best practices cited above, it would be observed that, in none did the claimant actually claimed for compensations for mental agonies. The courts presumed them as natural incidences of the employers’ behaviour. In the Israeli case, the claimant actually only asked for reinstatement alone and, the Court suo motu awarded damages [compensations] for the egregious behavior of the government department and held that, government departments and institutions have higher responsibilities to eschew unfair labour practices. In Israeli, there is even no statutory power imbued in the Israeli labour courts to award damages in such situation, they relied on good faith and fairness implied into all contracts of employment to arrive at the power to grant the relief. In Nigeria, S. 254C-(1)(f) of the Constitution and SS. 13-19 of the NICA, especially SS. 14 & 19(d) of the NICA clearly empower the NIC in this regard to grant accommodative relief for any injury of unfair labour practices. The South African labour court also has this type of power - Brent Bernard[4] says of the Labour Relations Act [LRA] in South Africa that:

 “The Labour Court or an arbitrator in terms of the LRA has wider range of outcomes at his disposal and may even award reinstatement, re-employment in addition to compensation…the Labour Court may make any order it considers appropriate.”

 

The power of the South African labour courts to grant any relief even though, not claimed, so far it is supported by the facts of the case, in aid of substantial justice is made pursuant to S. 23(1) of the South African Constitution, just like S. 254C-(1)(f) of the Nigerian Constitution. Both provide for rights of employees against unfair labour practices. It can be seen that, this power is almost universal in labour courts and is constitutional in the cases of Nigeria and South Africa. It can also be seen in the two foreign cases cited that, very huge sums were awarded. It could be seen also that, the ILO League of Nations Tribunal handed down its decisions 55 years ago, showing clearly that, compensations for mental agonies as a result of breaches in employment contracts, have long been in the world’s scene.

It is better for Nigeria to follow suit if it truly wants to encourage foreign labour and investments, it must go along with international best practices. In view of the foregoing, I award the claimant damages of one-year salary of N1,300,255 [One Million, Three Hundred Thousand, Two Hundred and Fifty-five Naira] only, for mental agonies and the loss of career prospects. After all, aggravated damages have always been granted where defamation is not successfully justified. The scenario in this case is much similar. The defendants did not show any remorse in their nefarious act but went further to justify it and even threaten the Court with disobedience, if it dares to decide against it.

Be that as it may, I now consider cost and take into consideration the depreciation in the Naira and the considerable problem of accessing Naira in recent time in Nigeria and the fact that, the claimant had always been present in Court, except today. Though, I note too that, this is OS, which does not necessitate fielding oral evidence. I assessed the cost at N200,000.00 [Two Hundred Thousand Naira] only. In line with the NICN Rules 2017, I grant 20% per annum simple interest rate on the monetary aspects of this decision to start reading immediately. The defendants deserve no moratorium because of their utter disrespect to the Court, as found earlier on.

I cannot end this case without commenting on the laziness of both counsel, but especially the defence counsel, who was fighting against the international best practices cited by the Court in the previous case(s). Though, he did not refer to the previous cases, but it is clear, he was fighting against the international best practices cited therein. The defence erudite counsel kept on referring to international best practices and fair labour practices and even pontificating that his submissions were the international best practices on the points in issue but failed to cite the precedents for those pontifications. It is laziness of the highest order. Having become aware of the doctrine as applicable in Nigeria, counsel ought to have combed the Internet for the possibilities of the international best practices that support his views, but alas, he was just pontificating without authorities. That is not the way of the practice of law.

The claimant’s counsel too did not fair better, as he too, cited no international best practices on the issue at hand. They both behaved as if S. 254C-(1)(f) of the Constitution was not in existence, whereas, this constitutional provision is now the bedrock of all labour and employment relations as it now clothed all employment with statutory flavour and narrowed considerably the distinction between common law employment and statutory employment, with the effect that, the only vestige of common law employment in Nigeria today is that, this Court rarely orders reinstatement in common law employment revelations, but instead, would grant damages, which were hitherto unavailable – Sahara Energy Resources Ltd v. Oyebola [supra]. Having got to this stage, the decision must cruise to an end.

 

CONCLUSION

The consequence of my holdings above is that both questions formulated for the determination of the OS are answered in favour of the claimant and against the defendants. In view of that, the decision must spell out in clear terms the reliefs granted. The reliefs granted are as follows:

1.     I grant reliefs (i), (ii) & (iii) in full as claimed.

2.     I grant relief (iv) to the extent of N1,300,255 [One Million, Three Hundred Thousand, Two Hundred and Fifty-Five Naira] only, as annual salary, till the date of reinstatement.

3.     I grant relief (v) in full.

4.     I grant relief (vi) to the tune of one-year salary of N1,300,255 [One Million, Three Hundred Thousand, Two Hundred and Fifty-five Naira] only.

5.     I grant cost of N200,000 [Two Hundred Thousand Naira] only in favour of the claimant.

6.     The defendants to comply with the decision immediately.

7.     Failing 6 above, I grant 20% simple interest rate per annum, to start running on the judgment sums immediately, till the judgment sums are cleared.

 

The above is my decision. The decision is accordingly entered today Friday the 24th day of March 2023 under my hand.

 

……………………………

HON. JUSTICE Oluwakayode Ojo AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA


[1] [Updated last July 7, 2000] at www.ilo.org [accessed Dec. 8, 2022].

[2] [Posted Nov. 29, 2022] at www.loc.gov [accessed Dec. 8, 2022].

[3] Ibid.

[4] “Fairness and Unilateral Change of Employment Conditions” at http://citeseerx.ist.psu.edu and [accessed Dec. 5, 2021] p. 36.