IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HON. JUSTICE E. D. SUBILIM

 

DATE: 13TH MAY, 2025                     

SUIT NO.: NICN/ABJ/401/2024

 

BETWEEN:

 

INDYOR VICTOR - CLAIMANT 

 

AND 

 

NIGERIAN SHIPPERS’ COUNCIL      - DEFENDANT

 

REPRESENTATION:

S. A. Aborishade, Esq.; with Bolade Akinlawon, Esq.; and Toyin Adegbehingbe, Esq.; Oladele Gbadeyan, Esq.; Awele Benedict, Esq.; and Elizabeth U. Esq.; for the Claimant.

Khalifa Ibrahim Shuaibu, Esq.; with B. B. Tanghen Esq.; Doyinsola Olakolade, Esq.; and I. O. Akiru, Esq.; for Defendant

 

 

JUDGMENT

 

  1. This action was originally commenced vide a Complaint dated the 1st November 2024 filed alongside other accompanying processes under the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and subsequently amended pursuant to a leave granted by this Court on the 6th December 2024. The Claimant seeks the following reliefs viz;
    1.  A Declaration that the purported restriction of the Claimant from his duty post by the Defendant is illegal and unlawful.

 

  1. A Declaration that the Defendant was in breach of its contractual obligations to the Claimant when she restricted the Claimant from his duty post contrary to the terms and Condition of Service of the Defendant.

 

  1. An Order of this Honourable Court mandating the Defendant to pay and keep paying the Claimant's arrears of the salaries, allowances necessary entitlement and benefits owed to her by the Defendants from the day of assumption of duty till the day of the Judgement and from the day of Judgment until the employment is legally determined one way or the other in line with the agreement between the parties specifically including:

 

  1. Monthly Salary: N350,000 (Three Hundred and Fifty Thousand Naira only)
  2.  Allowance for New Employee (28 Days Allowance): N1,020,000 (One Million and Twenty Thousand Naira Only)
  3. Child Education Allowance: N500,000 (Five Hundred Thousand Naira Only)
  4. Leave Allowance: N350,000 (Three Hundred and Fifty Thousand Naira Only)
  5.  Provision Allowance: N200,000 (Two Hundred Thousand Naira Only)
  6. Rent Allowance: N1,000,000 (One Million Naira Only)
  7. Utility Allowance: N150,000 (One Hundred and Fifty Thousand Naira Only)
  8. Meal Subsidy: N200,000 (Two Hundred Thousand Naira Only)
  9. Entertainment Allowance: N100,000 (One Hundred Thousand Naira Only)
  10. Dressing Allowance: N250,000 (Two Hundred and Fifty Thousand Naira Only)
  11. House Maintenance Allowance: N200,000 (Two Hundred Thousand Naira Only)
  12. Furniture Allowance: N500,000 (Five Hundred Thousand Naira Only)
  13. Kilometre Allowance: N300,000 (Three Hundred Thousand Naira Only)
  14. Transport Allowance: N150,000 (One Hundred and Fifty Thousand Naira Only)
  15. Proficiency Allowance: N175,000 (One Hundred and Seventy-five Thousand Naira Only)

 

  1. An Order for General Damages to the tune of N10, 000,000.00 (Ten Million Naira Only) in favour of the Claimant against the Defendant as a result of the suffering, humiliation meted out to the Claimant, loss of earning and psychological trauma suffered by the Claimant by the action of the Defendant.

 

  1. Interest charged at 25% (Twenty-Five per cent) per annum on all the accumulated salaries and allowances due to the Claimant from the due date for the first salary to the day of the judgment and charged at the rate of 10% per annum from the day of the judgment until the final liquidation of the Judgment debt.

 

  1. The cost of this suit.

 

  1. Pursuant to the order of Court granting leave to amend the originating processes, the Defendant filed its consequential Amended Statement of Defence on the 17th December, 2024. Thereafter, the Claimant filed his Reply to the Defendant's Amended Statement of Defence on 7th February, 2025, effectively closing the pleadings in the suit and case was settled for hearing.

 

CLAIMANT’S CASE

 

  1. The Claimant’s case is that he was employed as a permanent and pensionable staff in the position of Operations Officer II by the Defendant on the 10th of October, 2023 and subsequently posted to the Calabar Port Office on the 30th October, 2023 however, sometimes in November of the same year, he received an unofficial communication by way of text message from the private number of one Mr. Babatunde Idowu of the Human Resources Department directing him to stay away from his duty post pending further instructions from the management but initially decided to ignore the message and attempted to continue with his work but he was resisted by the security men acting on the instruction of the Defendant. He was thereby compelled to await further instruction of the Defendant which never came. The Claimant further aver that he had never been indicted for any offence or misconduct during the probationary period.

 

DEFENDANT’S CASE

 

  1. It is the case of the defence that the Claimant was offered provisional appointment on the 10th October, 2023 and was never confirmed in line with the terms and condition of service of the Defendant. The Defendant equally contended that after receiving the text message, Claimant sent a Short Message Service (SMS) to the Defendant’s Witness (Mr. Babatunde Idowu) of the Human Resources Management Department stating his name and his preferred venue for a second recruitment exercise to be conducted by the Defendant. It is the averment of the Defendant that indication to attend another recruitment exercise connotes waiving any right to complain against the termination of his employment during the probationary period by the Defendant. The Defendant also contended that Claimant’s cause of action has become statute barred and unenforceable having been commenced against the Defendant who is a public officer in violation of the 3 months’ limitation period provided in the Public Officers Protection Act.

 

COMMENCEMENT OF HEARING

 

  1. The Claimant opened his case and testified for himself as CW1, he adopted his written statement on Oath dated 6/12/2024 and 7/12/2024 respectively. Exhibits A, B, C, D and E was tendered through him and he was cross examined by the Defendant’s Counsel. The Defendant called one Idowu Babatunde Olalekan, an Assistant Director in the Defendant who testified as DW1. He adopted his written statement on Oath as his evidence. Exhibits Idowu A, B, C, D and E was tendered through him thereafter, he was cross examined by Claimant’s Counsel and Defendant’s case was closed. Matter was adjourned for adoption of final written addresses.

 

DEFENDANT’S WRITTEN SUBMISSION

 

  1. The Defendant on the 10th day of July 2025 filed its final written address wherein Counsel on its behalf formulated three issues for the determination of this Court viz;
    1. Whether the Claimant’s SMS amounts to a waiver of any right arising from the initial recruitment exercise.
    2. Whether the Claimant proved his employment is permanent and pensionable as to require compliance with the dispute resolution procedure contained in Defendant’s Terms and Condition of Service.
    3. Whether the Claimant has shown an entitlement to the grant of the reliefs sought in this suit.

 

  1. The Defendant started by addressing a threshold issue of which borders on the jurisdiction of the Court to adjudicate on the complaint of the Claimant. He posited that the question is critical to the adjudication of this suit by this Court because if the Court finds that the Claimant’s cause of action has become stale having been brought outside three months’ window provided by POPA? this Court would be left with no other option than to dismiss in entirety the Claimant’s case as the Court would become stripped of the requisite jurisdiction to her and determine this suit. That it could not be doubted that the Defendant being a statutory body established by Federal legislation is a public officer entitled to the protection afforded by Section 2 (a) of POPA. he cited in support of his assertion the following cases Ibrahim v. J.S.C. Kaduna State [1998] 14 NWLR (Pt. 584) P. 1; Offoboche v. Ogoja Local Government [2001] 16 NWLR (Pt. 739) P. 458; Kolo v. A.G Federation [2003] FWLR (Pt. 176) P. 687; [2002] 17 NWLR (Pt. 796) 362 and Nwafor v. MDCN [2016] LPELR-11495 (CA) P. 12-15 Paras. B. it is equally the position of Counsel that Public Offers Protection Act applies to contract of employment. He placed reliance on the case of Forestry Research Institute of Nigeria v. Mr. I. A Enaifoghe Gold [2007] 11 NWLR (Pt. 1044) Page 18-19. He went further to state that a proceeding that emanated from Court without a jurisdiction is like one that never took place at all because the Court should not have entertained the suit, for it is incompetent to so do. He made reference to the case of Shell Petroleum Development Co. (Nig) Ltd v. Abel Isaiah and Ors [2001] 11 NWLR (Pt. 723) P. 168; Peenok Investments Ltd v. Hotel Presidential Ltd [1983] 4 NCLR 122 and Olagunju v. PHCN Plc [2011] 10 NWLR (Pt. 1254) 113 @ 130-131. Similarly, having initiated this action outside the time provided by the law for an action of this nature to be commenced the Court is left with no jurisdiction to entertain the matter thus the only fate that can befall the Court is to make an order dismissing the suit in its entirety as same has become empty, stale and unforeseeable. He referred the Court to the case of JFS Investment Ltd v. Brawal line Ltd & Ors [2010] 12 SCNJ 275; Odebiyi v. Wema Bank Plc &Ors [2014] LPELR-22993 (CA). in conclusion it is the submission of Counsel that the Claimant’s suit is incompetent for lack of jurisdiction. He urge the Court to dismiss the action as the cause of action has become stale and enforceable.

 

  1. Now to the issues raised; it is the submission of Counsel regarding issue one that the principle of estoppel and waiver dictates that a person cannot retract a representation upon which another has acted. He placed reliance on the case of Central London Property v. High Tree House Ltd [1947] KB 130; Tukur v. Garba [2012] LPELR-9337 (SC) and Section 169 of the Evidence Act. The Defendant contended that this act of indicating interest in a fresh recruitment exercise constitutes an abandonment and waiver of any rights or complaints arising from his initial provisional appointment. By electing to participate in a new process, he waived his right to insist on the procedure of his prior removal. He placed reliance on the case of Ariori & Ors v. Elemo & Ors [1983] LPELR-552 (SC), Bakare v. Lagos State Civil Service Commission & Anor [1992] LPELR-711 (SC) P. 95 Paras C and Amaechi v. INEC & Ors [2008] LPELR-446 (SC) P. 273 Para D.

 

  1. Respecting issue two, Counsel argues that the Claimant’s employment was provisional, not permanent and pensionable and that the contract of employment, including the "offer of provisional appointment" (Exhibit A/B) and the Defendant’s Terms and Conditions of Service (Exhibit C/A), governs the relationship. It is Counsel’s position that Section 3.2.2 and 3.2.18 of the Terms and Conditions explicitly define "Permanent and Pensionable Appointment" and "Probation Period," stating that newly employed staff hold their employment on probation for the first twelve months, during which the Council can confirm, terminate, or extend the probation. If terminated for inability to meet expectations, one month's salary in lieu of notice is due. Similarly, the Claimant admitted during cross-examination that he was never confirmed. Therefore, he was still on probation when his appointment was terminated. The law is settled that an officer on probation does not enjoy the same conditions as a confirmed officer, and the process of their removal is not subject to strict adherence to rules. He made reference to the case of Alhaji Baba v. Nigerian Civil Aviation Training Centre Zaria & Anor [1991] 5 NWLR (Pt. 192) 388; Al-Bishak v. National Productivity Centre & Anor, Ihezukwu v. University of Jos & Ors [2015] LPELR-24659 (CA) @ P. 40-41 Paras. C; Alhassan v. ABU Zaria [2011] 11 NWLR (Pt. 1259) 417; Ondo State University & Anor v. Folayan [1994] LPELR-2673 (SC); Nitel Plc & Anor v. Akwa [2005] LPELR-5971 (CA) P. 24-26 Paras B. Counsel further argued that the Claimant was informed of his termination via SMS from the Human Resources Department. The Claimant did not deny receiving the SMS but pleaded that he "decided to ignore the message. He highlights that modern courts, including the Supreme Court, recognize electronic communication like SMS for official purposes hence the termination conveyed via SMS from an authorized official is valid and sufficient, and the Claimant’s attempt to insist on a traditional paper letter is an attempt to ignore modern realities. He placed reliance on the case of ENL Consortium Ltd. v. Shambilat Shelter (Nig.) Ltd [2018] LPELR-43902) (SC); Continental Sales Ltd v. R. Shipping Inc [2012] LPELR-7905 (CA) and C.E & M.S. v Pazan. [2020] 1 NWLR (Part. 1704) 40.

 

  1. On issue three it is the contention of Counsel that the Claimant, seeking declaratory reliefs, bears the burden of proving his claims on the strength of his own case with credible and cogent evidence. He cited in support of his assertion the case of Col. Nicholas Ayanru (Rtd) v. Mandilas Ltd [2007] 4 SCNJ 388; Nweke v. Okorie [2015] LPELR-40550. He stated that the Claimant’s extensive claims for arrears of salaries, allowances, and benefits are predicated on his assertion of being a permanent and pensionable staff, which the Defendant has demonstrated to be legally untenable and "manifestly absurd." Furthermore, these monetary claims constitute special damages, which require strict proof reiterating that the Claimant has failed to present any evidence that he worked beyond November 2023 or earned the specific amounts claimed hence the Court cannot determine entitlements or make a contract for the parties without such proof. He placed reliance on the case of Produce Marketing Board v. A.O. Adewunmi [1972] 11 SC 111/24; Neka B.B.B. Manufacturing Company Ltd v. African Continental Bank Ltd [2004] LPELR-1982 (SC); Board of Management of FMC, Makurdi v. Kwembe [2015)] LPELR-40486 (CA). He also argued that the Claimant’s sole argument that his termination via SMS was void is insufficient to establish entitlement to the reliefs as the main claim for permanent employment fails, all ancillary claims for damages, interest, and costs must also fail. Counsel relied on the case of Fafunwa v. Bellview Travels Ltd [2013] LPELR-20800 (CA); Mcdonald Scientific Emporium Ltd v. Access Bank (2021 LPELR-53301 (CA); Eligwe v. Okpkiri [2015] 240 LRCN 28; Jimoh v. Jimoh &Ors [2018] LPELR-43793 (CA); Kakih v. PDP & Ors [2014] LPELR-23277 (SC) and Gov. of Kogi State & Anor v. Simon [2024] LPELR-73317 (CA). In conclusion, Counsel urge the Court to find that the Claimant has abandoned his remedy due to the time lapse, waived his right to complain about the termination procedure, was on a provisional appointment that was lawfully terminated during probation, and failed to provide evidence to support his claims.  He urge the Court to dismiss Claimant’s suit with substantial costs.

 

CLAIMANT'S WRITTEN SUBMISSION

 

  1. The Claimant filed his final written address on the 29th day of August 2025 wherein Counsel on his behalf raised four issues for the determination of this Court thus;
    1. Whether the Claimant's suit was not filed within the time allowed by the public officers’ protection act and thereby statute barred?
    2. whether the employment of the Claimant falls within the category        of permanent and    pensionable employment within the Defendant's establishment and if so, whether the defendant can terminate the Claimant's appointment without following the procedures laid in the Defendant's terms and conditions of service
    3. Whether the claimant's SMS message to Mr. Babatunde Idowu amounts to a waiver of any right inuring to him as a result of his contractual employment with the Defendant?
    4. whether the Claimant is not entitled to the reliefs sought?

 

  1. On issue one it is the submission of Counsel that this issue is formulated in response to the "Threshold Point" raised in the Defendant's Written address and to meet the arguments canvassed in support of that issue. He submitted that the suit as constituted is valid, competent and does not suffer any legal disability that could render it incompetent and rob this Court of the jurisdiction to entertain it. He stated that the Defendant has based its argument against the competence of this suit on the provisions of section 2 (a) of the Public Officers Protection Act, CAP 319, LFN.  It is pointed out that the threshold issue raised and argued by the Defendant is jurisdictional, it is therefore submitted that in deciphering jurisdiction the only place the Court goes to is the totality of the pleadings of the Plaintiff, the Claimant in this case. He relied on the case of Adeyemi v. Opeyori [1976] 9-10 SC 31; UBN Plc v. Integrated Timber & Plywood Produces Ltd [2000] 2 NWLR (Pt.680) 99 @ 110; Okulate v. Awosanya [2000] 2 NWLR (Pt.646) 530 @555. It is the argument of Counsel that upon a careful perusal of the totality of the claims of the Claimant one would see that the case of the Claimant is not on the purported restriction by the Defendant as argued by the Defendant but the failure to honor the terms of agreement between the parties and failure to pay settled entitlements. The law is trite that it is legally wrong to construe the pleadings in parts and not as a whole. The law is that a statute or a document should not be construed in bits but be construed together with every part seen as a part of the whole. He made reference to the case of Aqua Ltd v. Ondo State Sport Council [1988] 4 NWLR (Pt.91)622; Tukur v. Govt Of Gongola State [1989] 4 NWLR (Pt.117)517.

 

  1. Counsel posited that the cause of action crystalized after the Defendant failed to act on the Claimant's demands as contained in the Solicitors' letter of 6th November, 2024. That more than anything, the case of the Claimant fits more to the exceptions to the Act and the effect of the POPA and we shall bring that out for the purpose of clarity. Similarly, the action of the Defendant complained of was not done in good faith and in accordance with the extant Terms and Conditions of Service of the Defendant. He stated at this juncture that for a Court to determine whether a suit is caught by the limitation law, the processes the Court would have to consider are the writ of summons and the statement of claim filed by the Claimant and in doing so, the court is enjoined to peruse the averments in the said pleading to determine when the cause of action accrued, and the date of filing of the suit. This is to ascertain whether or not the suit was filed outside the three (3) months' period provided by the POPA within which an aggrieved party can bring an action against a Public Officer for injury or damages suffered arising from the act of the Public Officer done in the course of carrying out his/her lawful duty. He referred the Court to the case of Wulima v. Usman [2014]16 NWLR (Pt. 1432) 160; Egbe v. Adefarasin (No. 2) [1987] 1NWLR (Pt.47)1; Eregbowa v. Obanor [2010] 16 NWLR (Pt.1218)33. Furthermore, in this case, the Witness DWI testified truthfully and expressly testified that the action of the Defendant is against the provisions of the Terms and Conditions of the parties and hence could not have been done in good faith. The law is well settled that the provisions of Section 2a of the Public Officers Protection Act will not avail a public officer who fails to act in good faith or acts in abuse of office or maliciously or with no semblance of legal justification. He placed reliance on Hassan v. Aliyu [2010] 17 NWLR (Pt.1223) 547 @ 589 (SC); Offoboche v. Ogoja L.G [2001] 16 NWLR (Pt.739) 458 referred to CBN v. Okojie [2004] 10 NWLR (Pt.882)488.
  2. It is Counsel’s submission that the Claimant's suit as constituted alleges breach of the contract of employment between the Claimant and the Defendant. This is as evidenced by the letter of Offer of Provisional Appointment issued to the Claimant by the Defendant which was tendered and admitted in evidence as Exhibit “A”. that the Court would observe therefrom that the relationship between the Parties as evidenced by the letter of offer of appointment, the Claimant's acceptance as evidenced by his resumption of duty upon being posted to Bauchi as the Administrative Officer II, on Grade Level 08 step 2 (Exhibit “B”), constitute not only an acceptance but a valuable consideration to clothe their relationship with the toga of a valid contract of employment. What is more, the Nigerian Shippers Council, Terms and Conditions of Service Manuel encapsulates the agreed terms of the contract, a breach of which the Claimant seeks to remedy by the present action. He contended that for a valid contract of employment to exist between parties, all the essential elements of an ordinary contract must be present. There must be an offer from the employer to the employee, an acceptance of the offer; and consideration. The parties must also have the capacity to enter into the contract; consensus ad idem/agreement; and the intention to be legally bound. He relied on African (Nig)Ltd v. A.G of the Federation [1996] 9 NWLR (Pt. 475) 634 @ 656-671; Orient Bank (Nig) Plc v. Bilante International Ltd. [1997] 8 NWLR (Pt.515)37. All these elements are present in the instant case. It must also be stated that the Courts have taken the position that acceptance of an offer of employment may be demonstrated by the conduct of the parties as well as with documents that have passed between them. On this. He cited in support of his assertion the case of Federal Government of Nigeria & Ors v. Zebra Energy Ltd. [2002] 18 NWLR (Pt. 798) 162 @ 211; Union Bank of Nigeria Ltd v. Ozigi [1991] 2 All NLR 45. Counsel also posited that the Court in deciding the case of Oyedeji v. Fasheun [1976] UILR 134, held that the performance of a condition in a contract is evidence of its acceptance. He stated that in the instant case, the Claimant had resumed at his duty post in Bauchi in October, 2023 as directed by the Defendant. This, he submits constitutes an acceptance of the Defendant's offer to him. The period within which the Claimant was allowed to function at his designated post is immaterial in deciding whether he has a valid contract with the Defendant. suffice that all the essential elements of a contract are present. That it is settled beyond peradventure, that one of the valid exceptions to the application of the Public Officers Protection Act is where the action is predicated on breach of contract. He cited in support of hi position the case of Roe Ltd. v. UNN [2018] LPELR-43855 (SC); Salako v. I.E.D.B [1953] 20 NLR 169 and Anolam v. .F.U.T.O [2025] 5 NWLR (Pt. 1984) 651 and  submitted therefore that the Defendant cannot take umbrage under the protection of the Public Officers Protection Act to evade her obligations to the Claimant as expressly encapsulated in the Defendant's Manual (Terms and Conditions of Service)which contains the terms of the contract of employment. That it is trite that where there is wrong, there must be a remedy. That is the fulcrum of the latin maxim, Ubi Jus Ibi Remedium hence a wrong having being done, this Court has the requisite vires and indeed, the duty to intervene and ensure that the integrity of the contract of employment is upheld in the circumstance.

 

  1. In response to the submission of the Defendant as contained in paragraphs 12,13,14,15,16,17,18 and 19 of the Defendant's Final Written Address, Claimant’s Counsel submitted that the position canvassed therein does not represent the current state of the law on the issue. While the Defendant opined that prior to the decision of the Supreme Court in the case of Okoronko v. INEC Supra, there was a cloud of confusion on whether the Public Officers Protection Act was applicable to contracts of employment, the Defendant however, is of the view that the apex Court had now cleared such in favour of the applicability of the limitation law to such contracts. He stated that the case of Okoronko v. INEC is dissimilar to the instant case and as such, is inapplicable in the circumstance for the reasons, In that case, the Appellant pleaded in paragraph 1 of his Statement of Claim the fact that he received a correspondence dated 13th September, 1997 from the Defendant suspending him from service of the Commission till further notice. This was a direct and positive act of the Defendant therein who is a public officer which has affected the Appellant's right. Thus, the Court had no hesitation in holding that the cause of action accrued from that date, thereby necessitating the application of the limitation law against the Appellant's suit file clearly over two years thereafter. This is not the case in the present suit. The Claimant pleaded clearly that he received an unofficial SMS message from the personal phone number of Mr.Babatunde Idowu directing him to stay away from work until he received further directive from the Council, which directive he awaited until he instructed his lawyer to write to the Defendant. The Appellant in Okoronko's case also pleaded and contended that his employment had some statutory flavour, hence it was guided by the Civil Service Rules which he argued did not envisage indefinite suspension of the Commission's employees. On that score, the Appellant by himself placed his employment as one under statute, and not common law. This is not the case in the present suit where the Claimant asserts that his employment is contractual and governed by the Defendant's Terms and Conditions of Service. He reiterated that in fact, the Claimant emphatically pleaded in paragraph 12 of his Amended Statement of Facts that the Public Service Rules do not apply to the Defendant. Also, the Appellant in Okoronko's case did not have any relief predicated on breach of contract as the Appellant's reliefs only challenged his suspension for being wrongful, ultra vires and amounting to a nullity, while he sought a declaration of his entitlement to salaries and allowances while in the instant case, the Claimant specifically sought a declaration that the Defendant was in breach of her contractual obligations to him. Consequently, it is thus clear, that the raison detre for the Supreme Court's position in Okoronko's case are not present in the instant case. Furthermore, the apex Court did not have the benefit of really determining the Appellant's claim that his case on the exception afforded him if his claims were founded on breach of contract, as the Supreme Court held that the Appellant cannot complain of failure of the trial judge to make specific finding on the learned counsel's submission in the absence of a Respondent's notice filed at the Court of Appeal. He placed reliance on the case of Okoronkwo v. INEC [2025] 8 NWLR (Pt.1991)131@P 153Pages-154; Hassan v. CSC [1992] 7 NWLR (Pt. 252) 218; Bamgboye v. Unilorin [1999] 6 SCNJ 295, [1999] 10 NWLR (Pt. 622) 290; U.B.N Ple v. Ogboh [1995] 2 NWLR (Pt.380) 647. It is thus, apparent that the decision of the apex Court was not to the effect that a blanket operation of the POPA will inure in favour of a public officer in a suit premised on breach of contract of employment, rather, the Court made the clarification that same would only apply where the employment is clothed with statutory flavour.

 

  1. It is equally the contention of Counsel that assuming without conceding that the provisions of section 2a of the POPA is applicable to the case of the Claimant and the case is not covered by the exceptions to the rule created under that statute, the question is when did the cause action arise in this case? In order to properly appreciate the point being raised here, it is imperative that we define the term “cause of action". He referred the Court to the case of Cil Risk & Asset Management Ltd. v. Ekiti State Government [2020]12 NWLR (Pt.1738) 203 @ 247 Paras. A-E; Thomas v. Olufosoye [1986] 1 NWLR(Pt.18) 659; S.P.D.C (Nig) Ltd. v. X.M Fed. Ltd. [2006] 16 NWLR (Pt.1004) 189. He went on and posited that in the instant case, the aggregate set of facts that constitute the cause of action started on the 21st of October, 2023 when the Assistant Director of the Defendant who was also the Defendant's witness, sent an Unofficial SMS message to the Claimant directing him to stay away from his duty post. This act and its attendant injury continued unabated until after the expiration of the probationary period of 12 months elapsed and the Claimant had to instruct his Solicitors to make a demand for payment of all his unpaid salaries, allowances, entitlements and benefits and to reach a just decision in respect of the Claimant's employment which demand was treated with scorn and disdain by the Defendant. The said letter of demand, which was written on the 21st October, 2024, and which demands were spurned by the Defendant crystalized the cause of action and thus, gave the Claimant the right of action to approach the Court for redress. He referred the Court to paragraphs 6,7,8,9,10,11,13,14,15,16,17,18 and 19of the Statement of Facts and submitted that the cause of action finally accrued in this suit upon the Defendant's refusal to consider and accede to the demands of the Claimant as contained in the Solicitor's letter, which, coupled with the acts of messaging the Claimant to stay away from his duty post, and preventing him from resuming work thereafter, are the sets of facts that confer on him the right to sue, and which if proved, would entitle the Claimant to the reliefs sought. He relied on the case of Abubakar v. Michelin Motor Services Ltd. [2020] 12 NWLR (Pt.1739) 555 @ 574 Paras. D-F. Counsel therefore submitted that the Claimant's suit which was filed on the 1st November,2024, a period of about 10 days after the accrual of the cause of action cannot be any stretch of reasoning, be said to have been caught up by the provision of Section 2 (a) of the Public Officers Protection Act. He made reference to the case of Cookey v. Fombo [2005] 15 NWLR (Pt. 947) 182 @Pg.202 Paras E-F and urge the Court to hold that the Claimant's suit is not caught up by the Public Officers Protection Act.

 

  1. Counsel posited that it is imperative to state in reaction to the Defendant's postulation as contained in paragraphs 16,17,18 and 19 of her Final Written Address that the cause of action did not crystalize on the 21st November, 2023 as posited by the learned senior counsel. In fact, the Defendant in reproducing the Claimant's averment in paragraph 6 of the Amended Statement of Facts, erroneously claimed that “the claimant received an official communication by way of text message from the Defendant directing him to stay away from the duty post pending further instruction from the management...” but that this Court would observe from the Claimant's pleading that the words used are “unofficial communication”, and not “official communication" as the Defendant would want the Court to believe. The error, he submits, is not unintentional. This is because, the effect same would have on the act/action of the said Mr. Babatunde Idowu in sending such message being unofficial, would have a direct concomitant effect on the accrual of cause of action. This is so as the unofficial act of the said official of the Defendant on the 21st November,2023, cannot be termed as an act of a public officer especially as the said act was done in contravention of the Defendant's Terms and Conditions of Service as pleaded in the Statement of Facts. Thus, the action of the Defendant complained of was not done in good faith and in accordance with the extant Terms and Conditions of Service of the Defendant. He stated that the Claimant is by this ground contending that the action of the Defendant in purporting to have terminated the employment of the Claimant without following the mandatory provisions of the Terms and Conditions of Service, and thus being carried out ultra vires her powers, amount to acting mala fide. He contended that the Claimant's suit is one predicated on breach of contract. In view of the documentary evidence adduced in support thereto which show clearly that for the employment of the Claimant to be lawfully determined, the provisions of Paragraphs 3.2.2, 3.2.18 and 3.4.3 of the Staff Manual must be complied with, which were not followed, there is reasonable and compelling reason to infer and indeed deduce that the action of the Defendant was not done in good faith. Indeed, the Defendant's acted arbitrarily in the circumstance. He referred the Court to the relevant provisions of the Terms and Conditions of Service of the Defendant and the provisions of Paragraphs 3.4 and 3.4.3 of the Defendant's Terms and Conditions of Service, Exhibit "C”, which deal with disciplinary measures; and termination of appointment of members of staff of the Defendant respectively, have highlighted the infractions that could result in the determination of an employee's appointment.   Counsel argued that there is nowhere in the Defendant's pleading where it was alleged that the Claimant has fallen into any of such categorization which could have warranted the Defendant's conduct being complained of. It is trite that parties are bound by their pleadings before the Court. he placed reliance on the cases of Ransome Kuti v. A.G Federation [1985] 2 NWLR (Pt. 6) 211; National Insurance Corporation of Nigeria v. Powerind Engineering Co. Ltd. [1986] 1 NWLR (Pt.14)1.

 

  1. It is the position of Counsel in furtherance to the above that there was no letter written to the Claimant by the Defendant to state that he did not meet up with the Council's expectations, neither was any salary paid to the Claimant, talk less of being paid one month's salary in lieu of notice as provided for in Paragraph 3.2.18.The logical and only inference that can be drawn from the facts as presented before the Court which were not denied by the Defendant is that, the directive and the actions of the Defendant to restrain the Claimant from coming to his duty post was done in bad faith and ultra vires. He posited also that the Courts have defined abuse of office by public officers in a plethora of cases. In the case of Uniport v. John [2020] 10 NWLR (Pt. 1731) 106 @ 134 Para.D, the Court of Appeal defined it as "the use of power to achieve ends other than for which power was granted." Also, in Radiographers Regd. Board Nig. V.M & HWUN [2021] 8 NWLR (Pt. 1777) 149, the Court defined the term to mean “the use of power donated to a person by law to achieve or actualize ends other than those for which it is granted: for example, to get personal gains, to show undue favour to another person, or to inflict vengeance on an adversary. It is one of the factors or incidents that disentitles a public officer to the protection of section 2(a) of the Public Officers Protection Act.” He equally contended that to establish a plea of abuse of office by a public officer in order to show that the provisions of the Public Officers Protection Act do not apply to his case, the Claimant must plead and lead evidence of bad faith on the part of the Defendant. He relied on the case of Peak Merchant Bank Ltd. v. C.B.N [2017] LPELR 42324; Nigerian Army v. Abayomi [2019] LPELR 47084; Uniport v. John (Supra) @ 134 Paras. E-F.   it is Counsel’s position that in the instant case, the Claimant had pleaded facts from which bad faith can conveniently be deduced. I refer the Court to paragraphs 6,7,8,9,10,14.15,16,17,18 and 19 of the Amended Statement of Facts; and paragraphs 1,2,3,4,5,6, and 7 of the Claimant's Reply.  He also stated that the Claimant was able to adduce evidence in prove of this allegation vide his examination in chief. He relied on paragraphs 8,9,10,11,12,14,15,16,18,20 of the Claimant's statement on oath; and paragraphs 3,4,5,6,7,8,10 and 11 of the Claimant's additional statement on oath. Additionally, Counsel argued that the Claimant had averred that he had never been indicted for any offence, breach or misconduct at all times relevant to his appointment. This, he submits, clearly shows that the Defendant was not carrying out his lawful duty in sending such unofficial message to the Claimant. It is trite that the protection afforded to a public officer under the Public Officers Protection Act will only inure in favour of acts done in the cause of their official duty. He placed reliance on the case of I.N.E.C v. Ogbadibo Local Government [2016] 3 NWLR(Pt.1498) 167 @ Pgs. 191-192 Paras. C-B and reiterated that to be protected, the public officer must have acted in pursuance or execution of any Act or Law or of a public duty or default of same. An official act properly so called, cannot be said to have been carried out in pursuance of an official duty. Counsel urged the Court not to rely on the warped account of the Defendant rather take the Claimant's originating process as it is which is the only document the Court can rely on to determine when the cause of action accrued.

 

  1. It is the contention of Counsel that the Claimant extracted sufficient evidence under cross-examination of the Defendant's witness, Mr. Babatunde Idowu to support his pleadings that there no lawful or valid basis for the Defendant's action of disallowing the Claimant to continue his work. The witness, DW 1, confirmed before the Court that appointments in the Defendant's organization are governed by the Terms and Conditions of Service, he went on to confirm that there are 4 types of employment in the Defendant and that the Claimant's employment falls under the permanent and pensionable category, albeit, subject to the probation period. He further stated that due process was followed in the Claimant's appointment and that the Claimant was not queried at any time for any infraction. The witness was honest enough to state that the Claimant was not dismissed, neither was his employment terminated for any of the reasons contained in the Terms and Conditions of Service of the Defendant. The witness was equally truthful enough to admit that his SMS message sent to the Claimant did not comply with paragraph 3.2.18 of the Terms and Conditions of Service. The witness admitted that there are both internal and external recruitments and stated further that his SMS message inviting the Claimant for another recruitment exercise, did not state which type of recruitment he was being invited for. Counsel noted that DW 1 admitted that all communications within the Defendant, being a government agency, must be in writing. However, the witness admitted that the instruction given to him by his superior, Ahmadu Yahaya Garta to send the SMS messages to the Claimant, were oral. How convenient, these, without more, he submitted have shown clearly that the actions of the Defendant were not only unlawful, invalid but were ill motivated and done in bad faith. It is trite that evidence elicited under cross examination of an opponent's witness that supports the adverse party's case is admissible and indeed, ought to be relied upon by the court in determination of the dispute before it. He placed reliance on the case of Ogbeide v. Osule [2004] 12 NWLR (Pt. 886) 86 @ 117 Paras. D-E and Adama v. K.S.H.A [2019] 16 NWLR (Pt.1699)501 and urged this Court to deprecate same and accordingly hold that the Defendant cannot be availed the protection offered by the Public Officers Protection Act, having acted mala fide.

 

  1. Respecting issue two learned Counsel stated from the onset that the relationship between the Claimant and the Defendant is strictu senso a contract of employment with all the essential elements of a valid contract present. The Defendant made an offer of employment to the Claimant as seen on the letter of Provisional Appointment, Exhibit “A”. Upon acceptance of the offer, the Claimant furnished consideration by reporting at his duty post upon being deployed by the Defendant. Counsel stated that the Claimant had pleaded facts to the effect that his appointment by the Defendant is permanent and pensionable vide paragraph 1 of the Statement of Facts. It is trite that pleadings, without more, are not sufficient to prove the existence of a facts thus there must be credible and cogent evidence adduced in support thereof, otherwise such facts would go to no issue. He cited in support of his assertion the case of Ogunyade v. Oshunkeye [2007] 15 NWLR (Pt.1057) 218 @ 246 and Owners M/V Gongola Hope v. S.C Nig Ltd [2007] 15 NWLR (Pt.1056)189@215. Counsel continued and stated that the operative words are that “a permanent appointment is one that will lead a person into a permanent and continuous service of the Council in the event of acceptable work performance" reiterating that the Claimant's appointment was subjected to the other part of Paragraph 3.2.2 which was why he obeyed the directive of the Defendant to stay away from his duty post, forbearing the attendant hardship that such directive caused him while awaiting further directive as instructed. He therefore submitted that the Claimant's appointment being one that is that is clothed with the right of permanent and continuous service, cannot be terminated, disqualified, or in any way or manner be abrogated by the Defendant except as expressly provided by the Manual. It is equally the position of Counsel that the Claimant had averred in paragraphs 14, 15 and 16 of his Amended Statement of Facts that the grounds for disqualification of appointment of all members of staff of the Defendant, including the Claimant are as provided in the Terms and Conditions of Service of the Defendant, Exhibit “C” and that the Claimant has never been indicted for any offence, breach or misconduct at all times relevant to his appointment. In effect, we submit that the Claimant is therefore not affected by the provision of paragraph 3.2.15 of the Defendant's Terms and Conditions of Service and we urge the Court to so hold. Consequently, it is settled law that in the interpretation and construction of documents placed before it, the Court will give the words used, their plain and ordinary meaning. He referred the Court to the case of Abacha v. F.R.N [2006] 4 NWLR (Pt.970) 239.

 

  1. It is Counsel’s submission that in contradistinction to the Claimant's assertion on the nature of his appointment, the Defendant had averred that the Claimant's appointment is not permanent and pensionable but merely on a probationary basis. Paragraph I of the Defendant's Statement of Defence is apposite in this regard. He posited that it is apposite to state here that the Defendant had admitted through her witness, Mr. Babatunde Idowu, DW 1 (who is an Assistant Director in the Defendant's employment and who stated that he participated in the recruitment process that resulted in the appointment of the Claimant) that the Claimant's employment falls under permanent and pensionable appointment of the Defendant. The witness also confirmed the suitability of the Claimant for the post, hence his recruitment. That it may be relevant to mention here with due respect to the Counsel to the Defendant, that the misconception in his position that the employment of the Claimant is not of permanent and pensionable category and is only probationary is that he mistook the probationary period or the term "probation" to be a kind or category of employment. However, the meaning of the term, as rightly captured by the Terms and Condition (Exhibit C)is nothing more than the period that the employer will study the employee whether to make him continue with the employment and when the employee will see if he is ready to continue with his service. It is not another category of employment in the Defendant. Also, DW 1 further conceded under cross examination that the Defendant did not dismiss/terminate the Claimant for any of the reasons contained in the Terms and Conditions of Service noting that this admission of the Defendant's failure to comply with the express provision of the terms of the contract of appointment supports the Claimant's case and he urge the Court to so hold. Similarly, there was no termination of the Claimant's appointment known to law. It is trite law that when a legislation or instrument/document has laid out a procedure for doing a thing, there should be no other mode or method of doing such thing. He cited in support of his assertion the cases of Okereke v. Yar'adua [2008] 12 NWLR (Pt. 1100) 95 @ 127 Paras. E-F; C. C. B. Plc v. Anambra State [1992] 10 SCNJ 137 at 163; [1992] 8NWLR(Pt.261)528 and Bamisile v. Osasuyi [2007] 10 NWLR (Pt.1042) 225@272. 

 

  1. Respecting issue three Counsel cited the case of Ironbar v. F.M.F Ltd [2024] 12 NWLR (Pt.1952)275 @ 316 Paras. A-E; 317 Para. E; 318-319 Paras. F- 325-326 Paras. C-A and submitted that for a party to successfully rely on the doctrine of estoppel by conduct, he has to show that based on the representation of facts or things by the other party in the proceeding, he altered his position adversely. This is what grounds the defence. Once the Defendant can show that based on the SMS sent by the Claimant to Mr. Babatunde Idowu, the Defendant was led into acting upon the said representation of the former in a particular way to her damage/detriment, then section 169 of the Evidence Act, 2011 would operate to bar the Claimant from reneging or resiling from his position However,the Defendant failed woefully to show how the Claimant's SMS affected her or altered her position. The Defendant did not plead nor lead any evidence of any fact to show that contrary to the Claimant's claim, the Defendant went ahead to offer the Claimant a fresh appointment or even interviewed him at the fresh exercise. None of such happened. Was the Defendant relying on that to justify the alleged termination of the Claimant's appointment which the Defendant purports took place well over six months before the conduct of the Claimant which the Defendant alleges he was estopped from reneging on? If that was the Defendant's position, then it has failed as the act contemplated by section 169 of the Evidence Act are acts done after the facts imputed to the Claimant had taken place and not before. He relied on the case of D.V.M (Nig.) Ltd. v. N.P.A [2019] 1 NWLR (Pt. 1652) 163 at 183-184 Paras. D-A and submitted that the plea of estoppel by conduct does not avail the Defendant in the circumstance of this case. He urges the Court to so hold.

 

  1. Regarding issue four Counsel argued that aside the fact that this issue is to establish the fact that the Claimant has creditably proved his case and entitled to the reliefs sought in the Statement of Facts, it is equally argued in response to Issue 3 in the Defendant's Written Address. He posited that in the first instant the Defendant has argued against the backdrop of the case of Ondo State University v. Folayan [1994] LPELR 2673(SC); [1994] 3 NWLR (Pt.354) 1 that the Claimant is not entitled to the relief sought in the sense that his appointment was terminated during probation and that the Claimant would have been entitled to the reliefs sought only if his appointment had been permanent and pensionable. Counsel contended that the facts of that case is distinguishable from the facts of this case. In that case, the contention of the Plaintiff was that since the probationary period had passed and the fact that the Defendant, his employers were silent on whether his appointment has been confirmed or not, then there was deemed confirmation of his appointment. It was on this ground that the Supreme Court opined that there was nothing like deemed confirmation and that in such a situation, the Court should rather presume a deemed extension of the probationary period. The Court further opined that deemed confirmation will imply forcing a servant on an unwilling master. He submitted that the case is not only unsupportive of the position it is being canvassed for but it supports the case of the Claimant. In that case, there was termination of the contract of employment but in this case there is no termination of appointment of the Claimant. In that wise, in line with the decision of the Supreme Court, even though the probationary period has lapsed in this case, the Court can simply deem it that there is an extension of the probationary period. He urged the Court to so hold.

 

  1. Counsel further submitted that notwithstanding that the Claimant was still on probation at the time the unconscionable action was taken by the Defendant, the Defendant still have the duty to follow the conditions laid down for the termination of the appointment of the Claimant. He placed reliance on the case of Ihezukwu v. University of Jos & Ors [1990] LPELR-1461(SC) and Al-Bishak v. National Productivity Centre & Anor [2015] LPELR-24659 (CA). It is the position of Counsel that the Defendant has failed woefully to follow the laid-down conditions for termination of the appointment of the Claimant with her even during the probation period and thus liable to pay the salary and allowances of the Claimant as itemized in the Statement of fact. On the whole, he urge the Court to grant all the claims of the Claimant as contained in the Amended Statement of Facts.

 

  1. Learned Claimant’s Counsel equally responded to some specific issues raised by the Defendant in its address; the Defendant's Counsel has raised the issue of the effect of text messages in the Address and equated the position of the Supreme Court in the case of ENL Consortium Ltd v. Shambilat Shelter (Nig.) Ltd [2018] LPELR-43902 (SC) and other cases where the Supreme Court and the Court of Appeal held that delivery of hearing notices by WhatsApp and text messages align with trends in modern technological advancement to liberty of parties to depart from the terms of their contract. He submitted that the Supreme Court was not laying a general rule in that case to the effect that where a contract stipulates that something should be done in writing it could be done by text message reiterating that the law is settled that the Courts will recognize and enforce terms of contract willingly entered into by parties. It is not the duty of the Court to alter the terms of the contract or make contract for the parties. He relied on the case of Mbat v. Hon. Minister, FCT [2024] 16 NWLR (Pt. 1965) 451 @482. He equally submitted that probably, may be if the Defendant had written a letter and delivered through WhatsApp that would have complied with the requirement laid down by the Courts for delivery of hearing notices. Not by way of text messages or SMs which is a very informal means of communication and departure from the terms of the contract between the parties as enshrined in Exhibit C. On whether there is need to follow a procedure laid down in the contract when terminating an appointment under probation. Counsel argued that though he has earlier addressed this point elaborately in the body of this Written Address but we will insistently address it here for the purpose emphasis and not to indicate that he concede the point when the learned Counsel the decision of this Court in Saifullah Muhammed Aliyu v. NPA in Suit No. NICN/ABJ/20/2023 (Unreported) to the effect that termination could be done against the content and the spirit of the contract between the parties as contained in the Terms and Conditions. According to Counsel, the employer in that case terminated by the stopping his salary rather than by letter as stipulated in the terms and conditions. It is unfortunate that the Defence has not found it appropriate to oblige us a copy of that unreported decision. However, he pointed out that the case of the Claimant is not a case of termination here as the Claimant never conceded that his appointment has been terminated, hence that case, determined on its own peculiar fact is irrelevant to the facts of this case. Counsel went further and submitted that assuming that was the rationale for the decision of this Court in that case, since it is a decision of a court of coordinate jurisdiction that is only persuasive and not binding. He urge this Court not to be persuaded by it. He however urge the Court to follow the decision of the Supreme Court in Iyeke v. PTI [2019] 2 NWLR (Pt.1656) 217; Ihechukwu v. Unijos [1990] 4 NWLR (Pt. 146) 598; Ondo State University v. Folayan (Supra) which are all on the point that though the employer could terminate during probationary period but it must still be in line with the laid down procedure be it in the contract or the statute. He urge the Court to grant all the claims of the Claimant.

 

DEFENDANT'S REPLY

 

  1. The Defendant filed its reply dated 3rd November 2025, though belated but regularize wherein Counsel responded to the issues highlighted from the Claimant’s final written address in distinct subparagraphs hereunder;

 

  1. Claimant's invitation for the court to strike out paragraph 6 of the defendant's statement of defence: Counsel posited that the Claimant in paragraph 2.09- 2.11 of his final address, argued that Paragraph 6 of the Statement of Defence was in the realm of “argument or legal conclusion and not a fact” it is on this alleged basis that the Claimant, with "trepidation" invited the court to discountenance paragraph 6 of the Amended Statement of Defence. Assuming without conceding that the Claimant's assertion regarding paragraph 6 of the amended Statement of Defence is true, Counsel submits that the invitation is belated and cannot be sustained or entertained as pleadings have since closed before trial commenced. Final address is not an opportunity for counsel to reopen pleadings and argue for striking out of paragraphs in an adversaries’ pleadings. He further stated that the rules of this Court provides ample opportunity for the Claimant to respond via a Reply to the Amended Statement of Defence which the Claimant utilised by filing his reply on the 7th February 2025 but manifestly failed to respond to this material fact contained in Paragraph 6 of the Defendant's Amended Statement of Defence, Paragraph 4 of the said reply is at best evasive and failed to address the fact that the Claimant ignored lawful orders from his superiors. Similarly, by attempting to reopen argument on the state of the pleading, the claimant is attempting to have a second bite at the cherry is both unfair in equity and is not procedurally allowed. The case of Finnih v. Imade [1992] 1NWLR(Pt.219) 511 @536-537 H-A cited and relied upon by the Claimant in actual fact supports the sustainance of paragraph 6 of the Defendant's. In the instant case, the issue of the fact of the Claimant ignoring his superior's lawful instruction was first raised in paragraph 7 of the amended statement of facts and paragraph 8 of the witness Statement on Oath of the Claimant and this material fact and the implication of the Claimant's action was merely restated in paragraph 6 of the Defendant's Amended Statement of Defence. Parties did not join issues as this material fact is deemed admitted, thus we urge your lordship to decline the Claimant's invitation for your lordship to discountenance paragraph 6 of the Amended Statement of Defence as the invitation is without any lawful basis whatsoever.

 

  1. On Claimant's attempt to distinguish the supreme court authority in Okonkwo v. INEC; Counsel stated that the Claimant in a bid to differentiate the facts of the instant case with the binding authority of Okonkwo v. INEC [2025] 8 NWLR (Pt.1991) 131@Pages 153-154, argued at paragraph 4.22 of his final address that: The Appellant in Okoronko's case also pleaded and contended that his employment had some statutory flavour, hence it was guided by the Civil Service Rules which he argued did not envisage indefinite suspension of the Commission's employees. On that score, the Appellant by himself placed his employment as one under statute, and not common law. This is not the case in the present suit where the Claimant asserts that his employment is contractual and governed by the Defendant's Terms and Conditions of Service. In fact, the Claimant emphatically pleaded in paragraph 12 of his Amended Statement of Facts that the Public Service Rules do not apply to the Defendant. That first it must be pointed out, that the Claimant has attempted to make a distinction without a difference as the ratio of the Supreme Court is clear about the applicability of the provision of the Public Officers Protection Act to an employment contract. Secondly and perhaps most importantly, the Claimant in the said paragraph 4.22 of his final address conceded the fact that the Claimant's employment has no statutory flavour. Thus, it is now beyond doubt that the relationship between the Claimant and the Defendant is akin to that of a master/servant relationship which under common law can be terminated anyhow without formality. He placed reliance on the case of U.T.C (Nig) Plc v. Peters [2022] LPELR - 5789 @ Page 17 Paragraph B-E. Thus, from which ever perspective or angle the Claimant's claim is viewed, it is clear that the Claimant's case is most deserving of an order dismissing the case in its entirety.

 

  1. Respecting the Claimant's claim that it was "an unofficial sms message” that was used to inform him to “stay away from work”. Learned Counsel posited that the Claimant asserted in paragraphs 4.32,4.33, 4.46 & 4.47 of his final address that the message sent to his phone by Mr. Babatunde Idowu was unofficial and as such "the unofficial act of the said official of the Defendant on the 21st  November 2023 cannot be termed as an act of a public officer” however, the Claimant failed to respond, distinguish or attempt to discountenance the numerous judicial authorities cited and relied upon by the Defendant to show and prove that an SMS was a valid means of communication which cannot be tagged "unofficial" The Claimant by doing this has admitted this material fact by avoiding to comment on them. He placed reliance on the case of Kanu v. FRN [2022] LPELR-58768 Page 22-25, Paras. D-A; Alhaji M. K.Gujba v. First Bank of Nigeria Plc & Anor [2011] LPELR 8971 (CA) Pages 42-43 Para B-A; Nwankwo v. Yar'adua [2010] 12NWLR (Pt.1209) 518 @ 586 and Order 19 Rule 4 (2) of the Court of Appeal Rules 2021. The failure of the Claimant to counter the Defendant's argument and authorities cited regarding the validity of an SMS as a means of official communication is that the Claimant is deemed to have conceded the issue as formulated and argued by the learned counsel for the Defendant, thus he urge the court to place total reliance on the authorities on the point cited by the Defendant.

 

  1. Furthermore, the Claimant's assertions in 4.83, 4.84, 4.85 & 4.86 and the case of Mbat v. Hon. Minister, FCT [2024] 16 NWLR (Pt.1965)451@482 is inapplicable to the instant case in that the issue in the Mmbat v. Hon. Minister, FCT (supra) was the enforcement of express terms of a government allocation which the claimant sought to avoid. There was no question of the mode or form of communication or substantial compliance. The ratio in Mbat v. Hon. Minister, FCT (supra) cannot be extended to situations where the question is whether a written notice communicated electronically satisfies the contractual requirement.16. A case is an authority for what it decides. He made reference to the case of Anyakorah v. PDP & Ors [2022] LPELR-56876(SC) (Pp. 12 Paras. D-D). He argued that the law is no longer static. The Evidence Act 2011 (as amended) under Section 84 recognizes electronic records as documents capable of being tendered and relied upon in legal proceedings. Consequently, the argument that an SMS is not in writing is inconsistent with both statutory recognition and judicial precedent. He submitted that the term in writing as used in the contract of employment should be given a purposive and liberal interpretation, consistent with the realities of the digital age, rather than a narrow, archaic view limited to pen and paper. He referred the Court to the case of ENL Consortium Ltd v. Shambilat Shelter (Nig) [2018] LPELR-43902 (SC) and other cases relied upon in the Defendant's written address acknowledged that the law must move with the times and that modern forms of communication such as text messages, emails, and WhatsApp are legitimate and effective means of conveying information. Accordingly, the termination of the Claimant's employment by text message was valid, effective, and in substantial compliance with the requirement of written notice as stipulated in the contract and recognized by current judicial and legislative authorities.

 

  1. Counsel contended that the Claimant at page 4.30 of his final address placed reliance on the case of Abubakar v. Michellin Motor Services Limited [2020] 12 (Pt.1739)555 @ Paras D-F  to argue that his cause of action arose or accrued upon the date of delivery of his solicitor's letter to the Defendant and upon the “Defendant refusal to consider and accede to the demands of the Claimant" however the case of Abubakar v. Michelin cited by the Claimant does not support the proposition made by the Claimant regarding when the cause of action against the Defendant arose. The first point to note is that the Abubakar v. Michellin appeal was dismissed by the Supreme Court on the grounds that the Appellant had initiated his action at the trial court, eight years after the cause of action accrued and not within five years as prescribed by the Plateau State Limitations Law, thus the case is a strong authority of the Apex Court demonstrating that an action cannot be sustained once the cause of action becomes stale. Secondly the Supreme Court laid down the vital test or elements to be considered in determining whether a cause of action had accrued hence when facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligations exist side by side, a cause of action is said to have accrued. He relied on the case of Thomas v. Olufosoye [1986] 1 NWLR (Pt. 18) P. 669; Adimora v. Ajufo [1988] 3 NWLR (Pt.80) P. 1; Afolayan v. Ogunrinde [1990] 1 NWLR (Pt. 127); Uwazuruonye v. Gov of Imo State & 2 Ors [2012] 11 SC P.133 and stated that a cause of action is thus a fact, once proved would entitle a claimant to remedy against the defendant. In the instant case, all the ingredients mentioned in the Abubakar v. Michellin case were clearly present on the 21" November 2023 when the Claimant received a message from the Defendant asking him to stay away from work and when she was further restrained by the Defendant from entering the Defendant's office when the Claimant decided to ignore the directives of the Defendant. It is therefore preposterous for the Claimant to assert that his cause of action arose on the date his solicitor submitted a demand notice to the Defendant and the Defendant refused to accede to his request. This argument has no foundation in law and we urge the court to discountenance same.

 

  1. The Claimant argued in paragraph 4.41-4.43 of his final address that the Defendant acted in bad faith by terminating his appointment. The Claimant in support of this proposition cited the case of Radiographers Regd. Board Nig v. M& HWUN [2021] 8 NWLR (Pt. 177) 149 where the court held that for an official act to be held to have been done in bad faith, it must have been done to get personal gains, to show undue favour to another person or inflict vengeance on an adversary. The Claimant in the present has not pleaded any fact or lead any evidence of bad faith on the part of the Defendant. Paragraphs 6,7,8,9,10,11,12,14,16,18and 20 of the amended statement of facts and paragraphs 3,4,5,6,7,8,10,and 11 of the Claimant's additional statement on oath does not show or contain any fact demonstrating bad faith on the part of the Defendant. Counsel therefore, urge the Court to discountenance the Claimant's unfounded allegation of bad faith against the Defendant. In conclusion, he urge the Court to find and to hold that the Court is without jurisdiction to entertain this suit as the cause of action has become stale and unenforceable in addition to the fact that the entire suit is lacking in merit as it is built on a false claim that the Claimant is a permanent and pensionable staff of the Defendant.

 

 

 

 

 

 

COURT’S DECISION

 

  1. I have had the privilege of carefully considering the pleadings, the evidence adduced, and the comprehensive written submissions of counsel to all parties in this suit. Based on this thorough review, the pivotal issues requiring determination by this Honourable Court are hereby formulated as follows:

 

  1. Whether the restriction of the Claimant from his duty post by means of an SMS message constituted a breach of the express and implied terms and conditions of service governing the employment relationship between the Claimant and the Defendant.
  2. Whether the Defendant was legally obligated to adhere to the prescribed procedures for terminating an appointment during the probationary period, as stipulated in the contract of employment, and whether the Defendant’s failure to comply with these mandatory procedures rendered the purported restriction or termination unlawful and void.
  3. Whether the present suit is statute-barred by virtue of the provisions of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004, or any other applicable limitation statute. 
  4. Whether, in light of the findings on the preceding issues, the Claimant is entitled to the reliefs sought in the Amended Statement of Material Facts.

 

  1. A perusal of the originating process evinces that the claimant in this case is substantially seeking for declaratory reliefs. It must therefore be noted that a claim for declaratory relief is a discretionary remedy which is neither granted as a matter of course nor on admission of the adverse party. Thus, a claimant seeking such must rely on the strength of his or her own case and not on the weakness of the defendant by leading credible evidence in support of his case. See TSY Ltd v. Nwachukwu [2024]13 NWLR (Pt. 1954)147@173-174, Paras F-A (SC); Aliyu v. Namadi [2023]8 NWLR (Pt. 1885)161@214, Paras C-E (SC) Adamu v. Nigerian Airforce [2022] 5NWLR (Pt 1822)159@177, Paras F-G; 178, Paras E-G (SC) and; Adesina v. Air France [2022]8 NWLR (Pt. 1833)523@555-556, Paras H-B. The burden of proof therefore rests squarely on the Claimant to establish his case on the preponderance of evidence, or balance of probabilities, by adducing credible evidence in support of the facts pleaded and the reliefs sought. He is only entitled to rely on aspects of the defendant’s case that supports his case. See Hanatu v. Amadiu [2020]9 NWLR (Pt. 1728)115@128, Paras A-C (SC); C.D.C (Nig) Ltd v. SCOA (Nig) Ltd [2007]6 NWLR (Pt. 1030)300@327, Paras A-F (SC). However, it should be noted that where the Defendant raises affirmative defences such as statute bar or valid termination, the burden shifts to the Defendant to establish such defences by the same standard. It is also worth noting that the general burden of proof in a civil case is that a claimant who commences an action in a court of law must prove that action in order to have judgment in his favour. This is the first law; the first order in the realm of proof. There is the second one and it is more generally put: a party who makes an assertion must prove it. See Olusesi v. Oyelusi and Others (1986) 3 N.W.L.R. (Pt.31) 634; Chukwudi and Another v. Unachuku (1979) 3 C.A. 114.

        

  1. Let me at this stage address some preliminary issues I consider necessary before delving into the main issues formulated for the determination of this suit. The Claimant in paragraph 12 of his Amended Statement of Facts averred that the Public Service Rules does not apply to relationship between Defendant and Claimant but is rather regulated by Defendant’s Staff Manual. Defendant, however, countered this in paragraph 8 of Amended Statement of Defence. I am mindful that the implication of claimant’s averment is to show that the employment relationship is not one with statutory flavour while the defendant argues otherwise. I have carefully reviewed Exhibit A, which is the letter of employment and Exhibit C which the staff manual. I must say that it is of common knowledge that a staff handbooks or manuals, circulars, and administrative guidelines are often issued by management in government agencies to ensure standardization in the workplace. While these documents may be "incorporated by reference" into a contract of employment, they do not necessarily possess the "flavour" of a statute. The law is trite that where a handbook is merely an internal agreement between management and staff and has not been laid before the legislature or published as a statutory instrument (where required by the enabling Act), it remains a contractual document. The Supreme Court is very emphatic on this when it cautioned in the case of Adedeji & Ors v. Central Bank of Nigeria & Attorney-General of the Federation [2023] 5 NWLR (Pt. 1878) 531 against the liberal expansion of the doctrine of employment with statutory flavour. The Court reiterated that internal documents, such as staff manuals, cannot create statutory flavoured employment relationship unless they are expressly authorized by or derived from a statute. The Supreme Court further emphasized that public institutions can and often do engage in master-servant relationships when the specific terms of the engagement are not grounded in a legislative instrument. This to mind is the case in the instant suit. The mere fact that the defendant is a creature of a statute does not automatically translate the employment relationship with its employees one with statutory flavour. The defendant’s Staff Manual does not qualify as subsidiary legislation in the eyes of the law. Rules, regulations, or orders made by an authority (such as a Minister, Council or a Board) under powers granted by a principal Act of the National Assembly are those that can be said to have statutory flavour as these are referred to as subsidiary legislation. This is not the case here. I therefore find that the relationship between parties in this suit is one of master and servant relationship. This I so hold.

[

  1. The Claimant, through his counsel, in their written brief, urged this Court to strike out Paragraph 6 of the Defendant's Statement of Defence. The gravamen of the Claimant's submission was that Paragraph 6 constituted an "argument or legal conclusion" rather than a statement of material fact, thereby offending the rules of pleading. The Defendant, conversely, contended that the application was belated, as pleadings had long since closed, and therefore ought not to be entertained. On this point, I must say that this Court is guided by the pronouncements of the Supreme Court on the import and application of Rules of Court. In the cases of Obi v. INEC & ors [2008] LPELR-2167 (SC) and Oloba v. Akereja (1988) 7 SC (Pt. 1), the apex court underscored the necessity of obeying Rules of Court. However, this obedience is not to be slavish, as eloquently articulated by Peter-Odili, JSC, in Federal Republic of Nigeria v. T. A. Dairo & Ors [2015] LPELR-24303 (SC), quoting Niki Tobi, JSC, in Abubakar v. Yar’adua [2008] 4 NWLR (Pt. 1078) SC 465 at 511 Para E-G:

 

“Rules of Court are meant to be obeyed of course. That is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their obedience cannot or should not be slavish to the point that justice in the case is destroyed or thrown overboard. The greatest barometer as far as the public is concerned is whether at the end of the litigation process, justice has been done to the parties. Therefore, if in the course of doing justice, some harm is done to some procedural rules which hurts the rule such as paragraph 7 of the Practice Directions, the Court should be happy that it took the line of action in pursuance of justice.”

 

  1. It is a well-established principle that mandatory words in the Rules of Court are not sacrosanct and are applied permissively, allowing for their discretionary application by the Court in the paramount interest of justice. See Obi v. INEC [2008] 1-2 SC 23 SC and Katto v. CBN [1991] 9 NWLR (Pt. 214) 126. While Rules of Practice are undoubtedly meant to be respected and obeyed, they serve as handmaids of the law, designed to aid in the due administration of justice, not to impede it. This Court finds no compelling or convincing reason in the arguments advanced by the Claimant to warrant the striking out of Paragraph 6 of the Statement of Defence at this stage. The Court retains the inherent power to sift through pleadings and distinguish between facts and legal conclusions during the evaluation of evidence and submissions. To strike out the paragraph would potentially prejudice the Defendant's ability to present its full defence. On this ground, I hereby discountenance the Claimant's submission to strike out Paragraph 6 of the Defendant’s Statement of Defence. I so hold.

 

  1. The grouse of the Claimant in this case is that during the probationary period of his employment with Defendant as Principal Officer II, sometime in November 2023 he got an unofficial communication by way of SMS message from the Defendant directing him to stay away from his duty post pending further instructions from the Management of the Defendant. Claimant stated that initially he ignored the message and attempted to continue with his work but he was resisted by the security men acting on the instructions of the Defendant.  In essence, claimant is claiming that his employment relationship with the Defendant was forcefully put on halt unilaterally by the Defendant contrary to their terms and condition regulating the relationship.  In an effort to resolve this, I shall proceed to consider the issues formulated for the determination of this suit, addressing them serially as itemized.

 

  1. Issue 1: Whether the Restriction of the Claimant from his Duty Post by Means of an SMS Message Constituted a Breach of the Terms and Conditions of Service Between the Claimant and the Defendant. To resolve this critical issue, it is imperative to meticulously examine the nature and form of the communication sent to the Claimant and to measure it against the established contractual framework governing the employment relationship. The evidence before this Court unequivocally establishes that the Claimant was employed under the Defendant's Terms and Conditions of Service, Exhibit C, which constitutes the binding contractual code between the parties. See Olaniyan v. University of Ilorin [2004] 15 NWLR (Pt. 896) 357. Paragraph 3.2.18 of Exhibit C prescribes a specific and mandatory mode of communication for the termination of probationary appointments, unequivocally mandating that the employee "shall receive written communication of the termination." The phrase "in writing" within the context of a formal employment relationship, particularly in a government parastatal, carries a precise technical and legal meaning. It connotes formal correspondence, typically a letter on the organization's official letterhead, duly signed by an authorized officer, and delivered through established official channels. The purpose of such a requirement is to ensure certainty, provide an official record, prevent ambiguity, and uphold due process in matters of grave professional consequence. An SMS message, by its very nature, is an inherently informal medium of communication. It is ordinarily reserved for casual exchanges and is wholly unsuitable for the conveyance of decisions of such profound professional consequence as the termination of employment or the exclusion of an employee from their duty post. The SMS sent to the Claimant, which merely directed him to "stay away from his duty post pending further instructions from Management," demonstrably lacked the requisite formality, clarity, and official imprimatur demanded by Exhibit C. Furthermore, the content of the message was inherently ambiguous; the phrase "pending further directive" suggested an interim suspension rather than a final, unequivocal, and definitive determination of the employment relationship. Such ambiguity is precisely what formal written communication is designed to prevent. By utilizing this informal, ambiguous, and procedurally deficient mode of communication to effect a restriction of such magnitude, the Defendant acted in a manner that was fundamentally inconsistent with, and in clear contravention of, the express procedural requirements of the contract.

 

  1. The Court therefore finds, without hesitation, that the restriction of the Claimant from his duty post by means of the SMS message constituted a clear, material, and actionable breach of the terms and conditions of service. This Court, exercising its constitutional jurisdiction under Section 254C of the 1999 Constitution (Third Alteration), has developed a robust jurisprudence rooted in the ILO Conventions, fundamental rights, and the dignity of the human person as guaranteed by Section 34 of the Constitution. In Duru v. Skye Bank Plc [2015] 59 NLLR (207) 680, this Court had held that the manner of termination is not merely a procedural nicety but reflects the respect owed to an employee as a person possessed of dignity. The Court reasoned that where the employment manual prescribed a formal written notice understood in the context of official correspondence a text message fails both the formal requirement and the dignity standard. See also Aloysius v. Diamond Bank Plc [2015] 58 NLLR (Pt. 199) 92. The Supreme Court in Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1 reaffirmed that where the contract prescribes a specific termination procedure, the employer must comply strictly. The Court distinguished between substantive entitlement to terminate (which the employer may generally possess) and procedural competence to effect termination (which depends entirely on contractual compliance). The import for SMS termination is decisive: even if the employer has the right to terminate, exercising that right through an unauthorised channel is procedurally incompetent. On this premise, I find that an SMS, being informal, instantaneous, and incapable of bearing the formal attributes of a letter of termination (official letterhead, signature, date of service, acknowledgment), cannot ordinarily satisfy a requirement for "written notice" within the contemplation of claimant’s employment manual. This I so hold.

[

  1. The Defendant in his brief of argument had raised a plea of waiver, contending that the Claimant relinquished his right to challenge the termination of his employment. This argument is predicated on the Claimant's expression of interest in a new recruitment exercise, which the Defendant asserts constituted an acceptance of the cessation of the previous contractual relationship. The Defendant posits that even if procedural irregularities existed in the Claimant's termination, his subsequent action nullified any such claim. The factual matrix, as presented by the Defendant, indicates that within a month of the Claimant's resumption of duty, he was instructed by the Human Resource Department of the Defendant to cease coming to work. This directive, lacking formal termination procedures, placed the Claimant in a state of employment limbo. Subsequently, the Claimant was informed of the commencement of another recruitment exercise by the Defendant. In response to this, and in circumstances of economic uncertainty created by the Defendant's irregular directive, the Claimant sent a message indicating interest in participating. The Claimant, in paragraphs 10 and 11 of his Statement of Facts, vehemently refutes the Defendant's plea of waiver. He argues that, given the peculiar circumstances of this case and the clear provisions of Section 169 of the Evidence Act, the plea of waiver by conduct cannot legally avail the Defendant. Crucially, the Claimant's solicitors served a pre-action notice and demand for payment on the Defendant on October 21, 2024. This decisive legal action occurred after the Claimant's expression of interest in the new recruitment exercise in July 2024, unequivocally demonstrating a continuous assertion of his rights and a clear intent not to abandon his claim.

 

  1. In our jurisprudence, for a plea of waiver to be effective and sustainable, the party asserting it bears the heavy burden of proving a clear, unequivocal, and intentional abandonment of a known right. It must be demonstrated that the party alleged to have waived their rights possessed full knowledge of those rights and deliberately chose to relinquish them without reservation. The intention to waive must be unambiguous and cannot be inferred from equivocal acts or circumstances. It is a well-established principle that merely expressing interest in alternative employment, even with the same employer, does not automatically signify an unequivocal intention to waive the right to challenge a previous, disputed, or unlawful termination. An employee who believes they have been unlawfully terminated may, out of economic necessity or as a reasonable step to mitigate potential damages, seek alternative employment opportunities, including re-applying to the same organization, while simultaneously pursuing legal redress for the alleged unlawful termination. Such actions, driven by practical realities and the need to secure a livelihood, are distinct from a voluntary and intentional relinquishment of legal rights. Applying these principles to the instant case, the Defendant's plea of waiver is untenable for several compelling reasons. In the first place, the Claimant's message, "My name is INDYOR VICTOR, My preferred venue: Abuja," is, at best, an inquiry or an expression of interest in a potential new opportunity. It lacks the definitive and unequivocal language required to constitute an intentional abandonment of his right to challenge the prior termination. It cannot be construed as a clear declaration that he was foregoing his existing legal claims. Secondly, the Claimant was placed in an uncertain and precarious financial position by the Defendant's irregular "stay away" directive. In such circumstances, an employee facing an alleged unlawful termination and loss of income is often compelled by economic necessity to apply for any available position, including a new recruitment drive by the same employer. Such an action is a reasonable and prudent step towards mitigating potential damages and securing a livelihood, rather than a voluntary waiver of a legal right. To interpret it otherwise would be to penalize an employee for attempting to survive an employer-created predicament. Thirdly, the serving of a pre-action notice and demand for payment on October 21, 2024, after the Claimant expressed interest in the new recruitment exercise in July 2024, is irrefutable evidence that the Claimant had not abandoned his right to challenge the 2023 termination. This action clearly demonstrates that he was actively pursuing legal remedies and continuously asserting his rights, thereby strongly militating against any argument that he had waived them. The Defendant's argument of waiver is directly contradicted by the Claimant's subsequent and decisive legal action.

 

  1. Fourthly, the principle that no man can take advantage of his own wrong (Nemo Commodum Capere Potest De Injuria Sua Propria) is directly applicable here. It would be unconscionable and contrary to justice for the Defendant to:

 

  1. Create a state of ambiguity and uncertainty for the Claimant through an irregular and unprocedural "stay away" directive, effectively terminating his employment without due process.
  2. Subsequently advertise the Claimant's position or a similar one, further solidifying the Claimant's state of limbo and economic vulnerability.
  3. Then attempt to argue that the Claimant's reasonable and economically driven response to this ambiguity and uncertainty constitutes a waiver of his fundamental legal rights. The Defendant cannot create the circumstances that compel an employee to seek alternative work and then use that very act as a shield against its own liability.

 

 

  1. This position is reinforced by judicial precedent. The Court of Appeal in Obanye v. Union Bank of Nigeria Plc [2018] LPELR-44739(CA), which is in relation to employment-related estoppel and waiver, held that an employer cannot manufacture a legal disability in an employee and then plead that disability to defeat the employee's claim. The court emphatically underscored that employment law must be administered with a keen sense of the commercial and practical realities facing employees, who are inherently at a disadvantage due to the power asymmetry inherent in the master-servant relationship. The Defendant's actions in this case mirror the scenario condemned in Obanye, where an employer seeks to exploit the very predicament, it created. This Court, in the exercise of its equitable jurisdiction under Section 254C(1)(f) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), is empowered to do what is just and equitable in all circumstances. To uphold the Defendant's plea of waiver would be to sanction an unfair labour practice and injustice, allowing an employer to benefit from its own irregular conduct and to disregard the economic realities faced by an employee whose livelihood has been jeopardized by such conduct. Based on the foregoing, I find and hold unequivocally that the act of the Claimant in expressing interest in a new recruitment exercise, under the specific circumstances of this case, does not in any way constitute a waiver of his right to challenge the irregular and disputed termination of his employment. The Defendant's plea of waiver is hereby dismissed as being without merit and contrary to law and equity. I so hold.

 

  1. Issue 2: Whether the Defendant was Required to Follow the Procedure Laid Down in the Contract for Terminating an Appointment During the Probationary Period, and Whether the Failure to Do So Rendered the Restriction Unlawful. It is a well-established and immutable principle of employment law, fortified by a consistent line of decisions from the Supreme Court, including Iyeke v. Petroleum Training Institute [2019] 2 NWLR (Pt. 1656) 217, Ihechukwu v. University of Jos [1990] 4 NWLR (Pt. 146) 598, and Ondo State University v. Folayan [1994] 7 NWLR (Pt. 354) 1, that an employer is absolutely bound by the procedural requirements stipulated in the contract of employment, even where the employee is serving a probationary period. The fact that an employee is on probation does not, and cannot, confer upon the employer an unfettered discretion to disregard the contractual framework. On the contrary, the employer must exercise its rights strictly in accordance with the terms agreed upon. See Savannah Bank (Nigeria) Ltd v. Ajilo (1989) 1 NWLR (Pt. 97) 305. Paragraph 3.2.18 of Exhibit C establishes a mandatory, two-fold requirement for the lawful termination of a probationary appointment: first, the communication of the termination in writing, and second, the payment of one month's salary in lieu of notice to the employee. These requirements are not discretionary; they are prescriptive conditions precedent to a lawful termination. Failure to satisfy these conditions renders the purported termination null and void. See Odulaja v. Haddad [1973] 11 SC 357.

 

  1. The evidence before the Court is unequivocal and uncontradicted that the Defendant failed to comply with either of these mandatory requirements. No formal letter of termination was ever issued to the Claimant, and no one month's salary in lieu of notice was paid. Moreover, the evidence further reveals a critical procedural flaw: the directive to restrict the Claimant was purportedly issued by one Mr. Idowu Babatunde Olalekan on the basis of an alleged oral instruction from one Alhaji Gata. This is in stark contrast to the explicit provisions of section 3.4.3 of the Terms and Conditions of Service, which designate the Council of the Defendant as the body exclusively empowered to terminate appointments. Any action taken by an individual or body without the requisite authority, particularly in matters of employment termination, is not merely a breach of contract but is ultra vires and a nullity ab initio. Such an act lacks legal force and cannot be validated. The Defendant failed to tender any documentary evidence whatsoever, such as minutes of a Council meeting or a formal resolution, to demonstrate that the Council authorized the restriction or termination of the Claimant's employment. The failure to produce this crucial evidence, which was clearly within the Defendant's power and possession, raises a strong adverse inference under Section 167(d) of the Evidence Act, 2011, that such evidence, if produced, would have been unfavourable to the Defendant or not even in existence. See Nigerian Agip Oil Co. Ltd v. Izegbuwa [2016] 15 NWLR (Pt. 1542) 349; Oduola & Sons Ltd v. Central Bank of Nigeria [2016] 17 NWLR (Pt. 1544) 575. This Court is ready to import and rely on the English law implied term of ‘mutual trust and confidence’. This is especially so in line with Section 254C (1) (f) CFRN 1999 as amended which mandate the application of international standards. Consequently, the restriction of the Claimant was not merely a breach of contract; it was fundamentally ultra vires, unlawful, and void, as it was executed without proper authority and in flagrant disregard of the mandatory procedural safeguards enshrined in the contract of employment. It therefore follows that Defendant was required to follow the procedure laid down in the contract for terminating an appointment during the Probationary Period. This I find and hold.

 

  1. In the course of writing this judgment, I observed that counsels dedicated significant attention to the fundamental issue of whether the Claimant's employment was permanent and pensionable or merely probationary. The Claimant strenuously argued that his employment was permanent and pensionable, as pleaded in Paragraph 1 of his Statement of Facts, evidenced by the Letter of Employment and Exhibit C (the Terms and Conditions of Service) which govern the employment relationship, subject only to an initial probationary period of 12 months. Counsel for the Claimant submitted that the Claimant’s appointment, being intrinsically linked to the right to permanence and continuous service, could not be unilaterally terminated, disqualified, or abrogated by the Defendant in any manner inconsistent with the provisions of the Manual. The Defendant, however, presented a divergent view, making reference to Exhibit A (the Letter of Provisional Appointment) and Sections 3.2.2 and 3.2.18 of Exhibit C. The Defendant insisted that the Claimant, being a probationary staff, was seeking reliefs typically reserved for a confirmed or permanent employee. In essence, the core of counsels' arguments revolved around the scope of an employee's rights under an employment contract. In labour jurisprudence, employment rights are recognized as inuring at distinct levels, a principle firmly affirmed in Akande Ishola v. Lilygate Nig. Ltd Unreported Suit No. NICN/LA/209/2016 delivered on 06/11/2017. In that case, this Court held that employment rights inure at three levels, each with its own scope of legal protection and potential for dispute resolution:
    1. Pre-employment rights: Covering disputes that arise before an individual formally commences employment.
    2. Employment rights: Encompassing matters such as wrongful termination, unfair labour practices, breach of employment contracts, disputes over wages, salaries, allowances, conditions of service, promotion, demotion, disciplinary actions, workplace harassment, health and safety issues, and trade union disputes.
    3. Post-employment rights: Pertaining to disputes that arise after the termination or cessation of employment.

 

  1. It is unequivocally clear that the present suit, as constituted by the Claimant’s reliefs, falls squarely within the ambit of the second category, namely ‘employment rights’ strictu senso. Both parties are in agreement on this fundamental position. The crucial dividing line in their arguments, however, lies in the precise legal description and implications of ‘probationary’ versus ‘permanent and pensionable’ employment. Exhibit C, the comprehensive Terms and Conditions regulating the employment relationship between the parties, makes adequate provisions for both permanent and pensionable appointments in Section 3.2.2 and probationary appointments in Section 3.2.18. Counsels, in their submissions, made specific reference to the Letter of Appointment issued to the Claimant by the Defendant, marked as Exhibit A. The Defendant's threshold argument is that the Claimant’s appointment, being probationary as explicitly stated in the letter of appointment, meant that the Claimant was not a full employee deserving the full protection and entitlements of a permanent and pensionable employee under Exhibit C. This argument, however, misapprehends the established principles of employment law. The Supreme Court, in the landmark case of Chukwumah v. Shell Petroleum Development Company of Nigeria Ltd [1993] 4 NWLR (Pt. 289) 512, laid down the controlling principle regarding probationary employment. The Court held unequivocally that a probationary employee is indeed an employee, and that the probationary character of the appointment goes only to the confirmation of the employment, not to the existence of the employment relationship itself. Crucially, the Supreme Court further held that the employer must respect and comply with the contractual terms governing the probationary period. Any purported termination that does not comply with those terms is wrongful. This authoritative position was reinforced by the Court of Appeal in Aiyetan v. Nigerian Institute for Oil Palm Research (NIFOR) [1987] 3 NWLR (Pt. 59) 48, where the court held that a probationary employee retains the full panoply of his contractual rights during the probation period, and an employer cannot use the cloak of probation to bypass its own procedural obligations.

 

  1. From a holistic reading of the provisions of Exhibit C, it is evident that the Terms and Conditions of Service contemplate the Claimant’s employment as a permanent and pensionable status, subject to the successful completion of the probationary period. While the employment relationship in this case is described as probationary, it is, in the eyes of the law, an existing employment relationship endowed with inherent employment rights. I find that from a community reading of Sections 3.2.2 and 3.2.18 of Exhibit C, the probationary character of the Claimant’s appointment pertains only to the ‘confirmation of the employment’ and does not negate the existence of the employment relationship or the applicability of the contractual terms during that period. The letter of offer, Exhibit A, is categorical that Exhibit C is applicable to the appointment of the Claimant. I therefore hold that the Claimant’s employment relationship is of a permanent and pensionable nature, subject to the probationary period as explicitly provided in the Terms and Conditions of Service. This I so hold.

 

  1. Issue 3: Whether the Suit is Statute-Barred by Virtue of the Public Officers Protection Act or Any Other Applicable Limitation Statute. The Defendant contends that this suit is statute-barred by virtue of Section 2(a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004, which stipulates that no action shall be brought against a public officer for acts done in the execution of public duty unless commenced within three months next after the act, neglect, or default complained of, or, in the case of a continuance of damage or injury, within three months next after the ceasing thereof. The Defendant argues that the suit was commenced more than three months after the SMS was sent. After a thorough review of the circumstances surrounding this case, I had cause to observe that from the facts before this court the SMS message itself, by its express terms referencing "pending further directive," did not constitute a definitive, final, or unequivocal act of termination from which time could begin to run. The employment relationship was not unequivocally repudiated on the date the SMS was sent; rather, the Claimant was deliberately left in a state of uncertainty, awaiting further instructions that never materialized. The wrong complained of was therefore not a single, isolated act but a continuing wrong, consisting of the ongoing denial of access to his duty post and the persistent withholding of his salary and entitlements. In accordance with the principle established in Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1, the limitation period for a continuing wrong does not begin to run until the wrong ceases. Each month that the Defendant withheld the Claimant's salary constituted a fresh and distinct breach of the contractual obligation. See Shell Petroleum Development Co. Ltd v. Aniete [1999] 12 NWLR (Pt. 632) 452.

 

  1. And most fundamentally, the National Industrial Court of Nigeria (NICN) derives its expansive jurisdiction from Section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Constitution grants it a comprehensive and exclusive authority over employment and labour relations matters. The weight of judicial authority, including the definitive decision of the Supreme Court in Skye Bank Plc v. Iwu [2017] 16 NWLR (Pt. 1590) 24, firmly supports the position that the Public Officers Protection Act does not operate to defeat or circumscribe the constitutional jurisdiction of this Court in matters of employment disputes, particularly where the cause of action is rooted in a contractual relationship and constitutes a continuing wrong. The POPA is primarily intended to protect public officers acting bona fide in the execution of public duty, not to shield employers from liability for breaches of contractual obligations in an employment relationship. When a public institution acts as an employer, it is bound by the terms of the contract of employment, and any breach thereof is a private contractual matter, not an act done in the execution of a public duty in the sense contemplated by the POPA. To hold otherwise would render the constitutional provisions establishing this Court and its jurisdiction nugatory in a significant class of cases. For these reasons, the Court finds and holds that the present suit is not statute-barred. I so hold.

 

  1. Issue 4: Whether the Claimant is Entitled to the Reliefs Sought in the Amended Statement of Material Facts. Having meticulously found that the restriction of the Claimant was unlawful and constituted a fundamental breach of contract, and having further determined that the suit is not statute-barred, the Court now turns to the crucial question of remedies and the Claimant's entitlement to the reliefs sought. The Claimant seeks declarations that the restriction from duty was illegal and unlawful, and that the Defendant breached its contractual obligations. Based on the findings under Issues 1 and 2, these declarations are hereby granted as prayed. The Claimant further seeks an order for the payment of arrears of salaries and allowances. The unchallenged evidence before this Court establishes that the Claimant has not received any salary or allowances since the date of the unlawful restriction. The Claimant's evidence specifically detailed a monthly salary of N350,000, as well as specific allowances including a rent allowance of N1,000,000 and a furniture allowance of N500,000. These figures were not specifically denied or controverted by the Defendant in its pleadings or evidence. In the context of the general provisions of Exhibit C, which clearly contemplate and provide for such allowances for employees, the Court accepts the Claimant's evidence on the quantum of remuneration as established on the balance of probabilities. See Mogaji v. Odofin (1978) 3 SC 91; Ogu v. Ikwe [2016] 15 NWLR (Pt. 1537) 225. The Defendant is therefore ordered to pay all arrears of salaries and allowances from the date of the unlawful restriction to the date of this judgment, computed at the rates established in evidence to the specific probationary period for which he was not paid.

 

  1. The Claimant also claims general damages in the sum of N10,000,000 for suffering, humiliation, loss of earnings, and psychological trauma. General damages are awarded to compensate for loss or suffering that is not easily quantifiable but flows naturally from the defendant's breach, beyond the mere pecuniary loss specifically proven. See Kode v. Nigerian Army [2018] 8 NWLR (Pt. 1619) 288; Abalaka v. University of Lagos [2016] 3 NWLR (Pt. 1500) 1. The circumstances of this case where the Claimant was summarily excluded from his livelihood by an informal text message, without due process, without stated reason, and left in a prolonged state of limbo and uncertainty, undoubtedly warrant compensation for the anguish, indignity, and disruption to his life suffered. However, while the suffering is evident, the sum claimed is, in the considered view of this Court, excessive and disproportionate to the nature of the breach in a contractual employment setting. In the judicious exercise of the Court's discretion, and having regard to the need for proportionality and the principle of restitutio in integrum (restoration to the original position as far as money can achieve), the Court awards the sum of N3,000,000 as general damages.

 

  1. Regarding interest, the Claimant seeks 25% per annum pre-judgment and 10% per annum post-judgment. The rate of 25% for pre-judgment interest is, in the current economic climate and prevailing judicial practice, excessive and not reflective of equitable considerations. See Union Bank of Nigeria Plc v. Aplin [2018] 8 NWLR (Pt. 1619) 115. The Court, exercising its inherent powers to award interest to compensate for the delay in payment and to ensure full justice, awards pre-judgment interest at 10% per annum on the accumulated salaries and allowances from the date the first salary fell due until the date of this judgment. Post-judgment interest is awarded at 10% per annum on the total judgment sum from the date of this judgment until final liquidation. 

 

  1. Finally, having regard to the conduct of the Defendant in this matter and the substantial success achieved by the Claimant in his claims, the Court awards costs in favour of the Claimant, assessed at N500,000. See Bank of the North Ltd v. Daboh [2008] 6 NWLR (Pt. 1083) 374; Adebowale v. Doherty [1997] 4 NWLR (Pt. 497) 361. On the whole, and for the reasons extensively articulated above, I hereby enter judgment for the Claimant on the following definitive terms:
    1. It is hereby declared that the restriction of the Claimant from his duty post by the Defendant, Nigerian Shippers Council, is illegal, unlawful, and constitutes a nullity.
    2. It is further hereby declared that the Defendant was in fundamental breach of its contractual obligations to the Claimant.
    3. The Defendant is hereby ordered to pay the Claimant all arrears of salaries and allowances from the date of the unlawful restriction to the date of this judgment, computed at the rates established in evidence.
    4. The Defendant is hereby ordered to pay the Claimant the sum of N3,000,000 (Three Million Naira) as general damages for the suffering, humiliation, and psychological trauma occasioned by the unlawful restriction.
    5. The Defendant is hereby ordered to pay pre-judgment interest at the rate of 10% per annum on the accumulated salaries and allowances from the date the first salary fell due until the date of this judgment.
    6. The Defendant is further ordered to pay post-judgment interest at the rate of 10% per annum on the total judgment sum (comprising arrears of salaries and allowances, general damages, and pre-judgment interest) from the date of this judgment until the date of final liquidation.
    7. The Defendant is hereby ordered to pay costs of N500,000 (Five Hundred Thousand Naira) to the Claimant.

 

  1. Judgment is hereby entered accordingly.

 

 

 

 

………………………………..

Hon. Justice E. D. Subilim

                  JUDGE