IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

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

 

DATED 24TH JULY, 2026                    

SUIT NO. NICN/ABJ/398/2024

 

BETWEEN:

 

JOVHYO CHRISTOPHER                                          -   CLAIMANT

 

AND

 

NIGERIA SHIPPERS COUNCIL                            -         DEFENDANT

 

REPRESENTATION:

Oladele Gbadeyan, Esq., with Hameedah Oketade, Esq., and Toyin Adegbehingbe, Esq., Awele Benedict, Esq., for the Claimant.

Abdul Mohammed SAN, with F. O. Amedu, Esq., C. N. Ayo, Esq., Abdulsufyanu Abubakar, Esq., B. B. Tangden, Esq., and Doyinsola Olukolade, Esq., for the Defendant.

                                 

                                           JUDGMENT

  1. By a General Form of Complaint dated and filed on 1st November, 2024, and subsequently amended on the 6th December, 2024, the Claimant claims against the Defendant as follows:
    1. A DECLARATION that the purported restriction of the Claimant from his duty post by the defendant is illegal and unlawful.
    2. 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 -]conditions of service of the defendant.
    3. AN ORDER of this Honourable Court mandating the defendant to pay and keep paying the Claimant’s arrears of salaries, allowances necessary entitlement and benefits owed to her (sic) by the defendants from the day of assumption of duty till the day of the judgment 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 only)
      2.   Allowances 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 250, 000 (Two Hundred 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. Kilometer 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)
    4. AN ORDER for General Damages to the tune 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.
    5. Interest charged at 25% (Twenty-Five Percent) 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 judgment and charged at the rate of 10% per annum from the day of the judgment until the final liquidation of the judgment debt.
    6. The cost of this suit.

CLAIMANT’S CASE

  1. It is the Claimant’s case as per his Statement of Facts and Witness Statement on Oath that he was employed by the Defendant vide a letter of appointment dated 10th October, 2023 as Operations Officer II, on Grade Level 08 Step 2, and posted to North East Coordinating Office Bauchi where he resumed on the 30th October, 2023. He equally averred that sometime in November 2023 he received an unofficial communication vide text message from Mr. Babatunde Idowu, a Human Resource Manager of the Defendant through his private phone directing him to stay away from work pending further instruction from the Management. It also the averment of the Claimant that he ignored the message and attempted to continue with his work but was resisted by the security at the instructions of the Defendant. He further averred that he was compelled to wait for further instructions from the Defendant which never came. Claimant continued and aver that Public Service Rules does not apply to Defendant as the Defendant has a manual that comprises detailed information on the Terms and Conditions of service of their employees including disqualification of appointment of its employees and that his appointment has passed probationary period as stated in the terms and conditions of the Defendant. Claimant also averred that he was never indicted for any offence or misconduct in the cause of her employment with the Defendant.

 

DEFENDANT’S CASE

 

  1. The Defendant in response filed its Statement of Defence on 6th December, 2024 and subsequently amended on the 17th December, 2024 and averred that the Claimant’s employment was not permanent and pensionable as he was on probation as stated on his offer of provisional appointment. The Defendant equally aver that communication between the Claimant and the Human Resources Department was official as SMS message was among the channel of communication with the Claimant. It is also the averment of the Defendant that the Claimant willingly disobeyed clear orders coming from a superior officer adding that the Claimant is not entitled to any salary and allowances or any benefits as the Claimant did not work for a period of one month and that it is a statutory entity established by the Federal Government hence its staff are bound by the Public Service Rules regardless of the fact that it has its own Terms and Conditions of Service. It went further to aver that the probationary period of the Claimant was still subsisting when the SMS message was sent.  That the Claimant suit does not disclose any cause of action to be entitled to the reliefs sought and also that the Claimant’s action is statute barred. He urges this Court to dismiss the amended statement of facts with cost on grounds that it is frivolous and an attempt to annoy and irritate the Defendant. 

 

CLAIMANT’S REPLY

 

  1. The Claimant filed a Reply in response to the Defendant’s statement of defense on 7th February, 2025, wherein he stated that he was never questioned or queried for any serious allegation that would lead to the termination his employment.  He equally stated that the text message he received was not an official communication in respect of his employment in the Defendant. He equally averred that the Defendant altered his position in life to accept the provisional offer of employment from Defendant and resumed duty and the Defendant failed to assess him for evaluation during the probationary period, hence the Defendant is estopped from pleading his own default as a defence to its unlawful act in this case.

 

COMMENCEMENT OF HEARING

 

  1. The Claimant opened his case and testified as CW1 by adopting his written statement on Oath dated 6/12/2024 and 7/02/2024 respectively. Exhibits A, B, C, and D were admitted through him. He was cross examined by the Defendant’s counsel and his case closed. The Defendant opened its defence and called one Idowu Babatunde Olalekan, an Assistant Director in the Defendant as DW1. He adopted his written statement on Oath as his oral evidence. Exhibits Idowu A, B, C, D and E was admitted through him and he was subsequently cross examined by the learned Claimant’s Counsel and the Defendant’s case was closed. Matter was adjourned for adoption of final written addresses. 

 

DEFENDANT’S WRITTEN SUBMISSION

 

  1. On the 10th day of July, 2025, the Defendant filed its final written address wherein Counsel on its behalf first address the issue as to whether the suit of the Claimant against the Defendant is statute barred and formulated two issues for the determination of this case thus:
    1. Whether from the totality of facts in this suit; particularly the defendant’s letter of Employment and Condition of Service, whether the claimant is entitled to the grant of the reliefs sought in this suit herein.
    2. Whether the claimant has shown an entitlement to the grant of the reliefs sought in this suit herein. 

 

  1. On the issue of statute barred It is the learned Counsel’s submission that the Defendant falls under the definition of the “Public Officer” under the Public Officers Protection Act, Cap 379, LFN, as provided in Section 2(a) of the Act and that the Defendant being a person can be only be sued within three months from the date of the occurrence of the act which formed the basis of the complaint, as defined in cases of Ibrahim v. J.S.C Kaduna State [1998] 14 NWLR (Pt. 584)Pp.1; Offoboche v. Ogoja Local Government [2001] 16 NWLR (Pt. 739) P. 458; Kolo v. A.G, Federation [2003] 10 NWLR (Pt. 829) P. 602. He equally stated that as whether the Public Officers Act applies in the determination of an employment contract as in the instant case. He placed reliance on the case of Okoronke v. INEC [2005] 8 NWLR (pt.1991) 131.

 

  1. Counsel submitted further that the law is settled that where a Court such as this Court is faced with conflicting decisions of a superior Court, is duty bound to follow the latest decision of the Supreme Court. Relying on the cases of Cyril O. Osakue v. Federal College of Education, Asaba [2010] 10 NWLR (Pt.1201) 1, Osude v. Azodo [2017] 15 NWLR (Pt 1688); Edeoga & Anor. v. INEC & Ors [2023] LPELR-61806 (SC) Pp. 31-44 Paras B. He posited that the Supreme Court’s latest decision in the case of Okoronkwo v. INEC (supra) settled the position of the law.  It is the submission of Counsel that this action having initiated 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 and the only fate that can befall the suit is an order for dismissal. He cited in support of his assertion 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, learned counsel urged the Court to dismiss this action as the cause of action has become stale and unenforceable.
  2. Respecting issue one, Learned Counsel submitted that the termination of the Claimant’s employment occurred during the probation period, hence the claimant cannot claim a permanent and pensionable employment and void. He contended that there is no point contesting that the contract of employment is governed by the terms and conditions as contained in the letter of “offer of provisional appointment” dated 10/10/2023 and the conditions of service of the Defendant, as it is settled that the contract of employment is the bedrock upon which an aggrieved employee must found his case. Consequently, in a written or documented contract of employment, the Court will not look outside the terms stipulated or agreed therein in deciding the rights or obligations of the parties. He cited the case of Katto v. CBN [1999] LPELR-1677 (SC) 10. He stated that contrary to the pleadings and oral testimony of the Claimant that the employment is permanent and pensionable, hence, entitled to the numerous reliefs including salaries, allowances, benefits from the date of the employment till date, as Exhibit A clearly states Provisional Appointment and also Section 3.2.2 and 3.2.18 of the Defendant’s Terms and Conditions of Service explicitly states what constitutes Permanent and Pensionable Appointment and the Probation period respectively.

 

  1. Learned counsel continued and submitted that the defendant’s Terms and Conditions of Service which the claimant tendered is clear that the evidence before the Court does in any way support the reliefs sought by the Claimant who was still on probation at the time the appointment was termination.  He posited that instead of the Claimant proving this case base on the actual facts, she approached the Court seeking the enforcement of the rights of a confirmed staff of the Defendant. Counsel stated that the Claimant is aware that the employment could be terminated during the probationary period as no corresponding right has been ensured between both parties yet. He relied on the cases of Alhaji Baba v. Nigerian Civil Aviation Training Centre Zaria & Anor [1991] 5 NWLR (Pt. 192) 388; Al-Bishak v. National Productivity Centre & Anor [2015] LPELR-24659 (CA) @ P. 40-41 Paras C. It is the submission of Counsel that the claimant was informed to await further instruction from the management that would determine the suitability of staff employed on probationary basis, but she took it beyond peradventure that her appointment had been terminated with the option given to her to participate in a fresh one, but yet came before this Court afterward to contend that her employment is still subsisting. Learned counsel further submitted that the Claimant contending that every communication must be written on paper and in black and white would amount to this Court closing its eyes to the modern realities of technological advancement. He cited in support of his assertion the cases of ENL Consortium Ltd v. Shambilat Shelter (Nig) Ltd [2018] LPELR-43902 (SC); Continental Sales Ltd v. R. Shipping Inc [2012] LPELR-7905 CA; C.E & M.S. v. Pazan [2020] 1 NWLR (Pt. 1704) 70. Counsel stated that the Claimant cannot claim that her employment was terminated because it was not in a letter in so far as the evidence before this Court showed that it came from a man of authority. He posited that the Claimant has never denied the fact that she was instructed by the Defendant to stay work through SMS, he contended that the Claimant wants the Court to sanction her decision to ignore the SMS after pleading that she ignored the said SMS in her paragraphs 7 and 9 of her amended statement of facts as well as her witness statement on oath, and as such there is no shadow of doubt that the Claimant was clearly informed of her termination in writing.

 

  1. Arguing on issue two it is the submission of Learned Counsel that the law is trite that he who asserts must prove his assertion and that it is equally trite that, in an action for declaratory reliefs such as the present case, the Claimant is duty bound to prove his claim on the strength of his case, as they are granted as products of credible and cogent evident proffered. He placed reliance on the case of Col. Nicholas Ayanru (Rtd) v. Mandilas Ltd [2007] 4 SCNJ 388; Nweke v. Okorie [2015] LPELR-40650. Counsel also contended that any person seeking such reliefs must come with clean hands. He relied on the cases of Ifekandu & Anor v. Uzoegwu [2008] LPELR-1435 (SC); Yaro v. Arewa Construction Ltd & Ors [2007] LPELR-3516 (SC), Kuburi International Traping Co. Ltd & Anor v. Bulama Musti & Anor [2018] LPELR-44104. Counsel stated further that the law applicable thereto, in order to determine whether or not such evidence has satisfied the requirement of proof to substantiate her claims as endorsed. He stated that the claimant is asking the Court to automatically make her an employee going by her reliefs 1 and 2 sought, and in doing that, the Court must first find that the Claimant’s employment to be permanent and pensionable.

       

  1. Learned counsel contended that the evidence presented before the Court shows that the claimant by her letter of employment was granted a provisional employment, as she never presented any proof before this Court that she worked and earned the amount she claimed. He relied on the cases of Obeya v. Microfinance Bank Ltd [2019] LPELR-47615 (CA); Eboni Finance & Securities Ltd v. Wole-Ojo Technical Services Ltd [1996] 7 NWLR (Pt. 461) 464. Counsel continued and submitted that the amount claimed is in the realm of special damages that is required to be strictly proven, as there is no evidence that the Claimant is entitled to all the amounts endorsed in the third relief. He placed reliance on the cases of Produce Marketing Board v. A.O. Adewunmi [1972] 11 SC 111/24; Neka B.B.B. Manufacturing Ltd v. African Continental Bank Ltd [2004] LPELR-1982 (SC) and stated that the Court cannot determine the entitlement of an employee in a labour relationship as that will be akin to the Court making a contract for parties which is not acceptable in our jurisprudence. He cited in support of his assertion the case of Board of Management of FMC, Makurdi v. Kwembe [2015] LPELR-40486 (CA). It is the contention of Counsel that the only evidence presented by the Claimant in this case is the SMS of the termination, and as such, this Court should find that termination is void, as she never disputed receipt of the SMS or that at the time the SMS was sent more so, she was still on probation. He submitted that the law has not changed that termination of employment during probation cannot be challenged. He urged the Court to find that the claim is not grantable in view of the manifest absurdity of the claim before the Court. Counsel further submitted that the law is settled that if the main claim fails, the ancillary claim will also fail. He cited the cases of Fafunwa v. Bellview Travels Ltd [2013] LPELR-20800 (CA); McDonald Scientific Emporium Ltd v. Access Bank [2021] LPELR-53301 (CA). In conclusion, counsel submitted that having demonstrated that the Claimant has not established or proved his entitlement to the reliefs sought, the Court is left with no other option than to refuse the grant of same. He therefore urged the Court to resolve the issue in favour of the Defendant and dismiss this suit with substantial cost.

 

CLAIMANT’S WRITTEN SUBMISSION

 

  1. The Claimant filed his final written address on 29th August, 2025 though belated but regularized wherein Counsel on his behalf formulated three issues for 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 establishment 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 out in the defendant’s terms and conditions of service?
    3. Whether the claimant is not entitled to the reliefs sought

 

  1. On issue one the Learned Counsel stated that this issue is formulated to the threshold point raised in the Defendant’s written address and to meet the arguments canvassed in support of that issue. He posited that this 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 same. He contended that the Defendant based its argument against the competence of this suit based on the provision of Section 2 (a) of the Public Officers Protection Act. He submitted that in deciphering jurisdiction the only place the Court goes to is the totality of the pleadings of the plaintiff. He cited in support of his assertion the cases of Adeyemi v. Opeyori [1976] 9-10 SC; UBN Plc v. Integrated Timber & Plywood Produces Ltd [2000] 2 NWLR (Pt. 680) 99 at 110; Okulate v. Awosanya [2000] 2 NWLR (Pt. 646) 530 @ 555. He submitted that totality of claims of the Claimant is the failure to honor the terms of agreement between both parties and failure to pay her entitlements, stating that it is legally wrong to construe the pleadings in parts and not as a whole. He reiterated that the position of the law is that a statute or document should not be construed in bits but construed together with every part seen as a part of the whole. He placed reliance on the cases 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. He stated that the cause action arises after the Defendant failed to act on the claimant’s demands dated 6th November, 2024, and as such the claimant’s case falls within the exceptions of POPA.

 

  1. Learned Counsel equally contended that for a Court to determine whether a suit is caught by the limitation law, the Court must consider the writ of summons and statement of claim filed by the Claimant and peruse the averments therein to determine when the cause of action accrued, and the date of filing of the suit to ascertain whether or not the suit was filed outside the three months’ period provided by POPA. He cited in support of his assertion the case of Wulima v. Usman [2014] 16 NWLR (Pt. 1432) 160; Egbe v. Adefarasin (No. 2) [1987] 1 NWLR (Pt. 47) and stated that DW1 admitted during cross examination that the defendant’s action was contrary to the Terms and Conditions of the defendant and acted in bad faith, as the law is settled that the provisions of Section 2a of POPA will not avail a public officer who fails to act in good faith. He made reference to the case of Hassan v. Aliyu [2010] 17 NWLR (Pt. 1223) 547 @ 589 (SC); CBN v. Okojie [2004] 10 NWLR (Pt. 882) 488. It is also the submission of Counsel that the Claimant’s suit as constituted alleges breach of contract of employment between the Claimant and the Defendant as evinced in her exhibit A, He stated that for a valid contract of employment to exist between parties, all essential elements of an ordinary contract must be present i.e offer acceptance and consideration and the parties must also have the capacity to enter into contract. He cited in support of his position the cases of African (Nig) Ltd v. A.G. of the Federation [1996] 9 NWLR (Pt. 475) 634 @ 651-671; Orient Bank (Nig) Plc v. Bilante International Ltd [1997] 8 NWLR (Pt. 515) 37 and stated that all these elements were present in the instant case and 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. He placed reliance on the case of Federal Government of Nigeria & Ors v. Zebra Energy Ltd [2002] 18 NWLR (Pt. 798) 162 @ 211 and Union Bank of Nigeria Ltd v. Ozigi [1991] 2 all NLR 45. Counsel submitted that one of the valid exceptions to the application of the POPA is where the action is predicated on breach of contract, relying on the case of Roe Ltd v. UNN [2018] LPELR-43855 (SC). He further submitted that where there is a wrong, there must be a remedy. That the Defendant’s paragraphs 12-19 of its final written address does not represent the current state of the law on the issue as the cases of Okoronko v. INEC is different from this instant case and as such is inapplicable in the circumstance. as it is clear that the Supreme Court’s position are not present in this case. Learned Counsel contended 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 flavor.

 

  1.  Regarding accrual and crystallization of cause of action Counsel submitted 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. He cited the cases of CIL Risk & Asset Management Ltd v. Ekiti State Government [2020] 12 NWLR (Pt. 1738) 203 @ 247 Paras. A-F; Thomas v. Olufosoye [1986] 1 NWLR (Pt. 18); S.P.D.C (Nig) Ltd v. X.M Fed. [2006] 16 NWLR (Pt.1004) 189. Counsel contented that the cause of action in this suit accrued upon when the defendant failed to consider and accede to the claimant’s demands as contained in the Solicitor’s letter, coupled with the acts of messaging the claimant to stay away from her duty post and preventing her from resuming work thereafter, are set of facts that confer on her the right to sue, and which if proved, would entitled the claimant to the reliefs sought, relying on the case of Abubakar v. Michelin Motor Services Ltd [2020] 12 NWLR (Pt. 1739) 555 @ Paras. D-F. Counsel urged the Court to hold that the Claimant’s suit is not caught up by POPA. It is also the learned Counsel’s contention that the Defendant’s action in purporting to have terminated the Claimant’s employment without following the provisions of the Terms and Conditions of Service is ultra vires, which amount to acting mala fide and in view of the documentary evidence adduced in support therein shows that for the Claimant’s employment to be lawfully determined, the provisions of paragraphs 3.2.2, 3.2, 3.2.18 and 3.4.3 of the staff manual must be complied with, which the Defendant failed to follow. Counsel stated that there is nowhere in the Defendant’s pleadings where it was alleged that the Claimant breached paragraphs 3.4 and 3.4.3 of the Terms and Conditions deals with the disciplinary measures and termination of employment to have warranted the Defendant’s conduct, as it is trite that parties are bound by their pleadings before the Court. He cited in support of his assertion the case of Ransome Kuti v. A.G Federation [1985] 2 NWLR (Pt. 6) 211 and National Insurance Corporation of Nigeria v. Powerind Engineering Co. Ltd [1986] 1 NWLR (Pt. 14) 1 and stated that there was no letter written to the Claimant stating that she did not meet up with the Counsel’s expectations, neither was any salary paid to her.

 

  1. Counsel further submitted that to establish a plea of abuse of office by a public officer, one must show that the provisions of POPA does not apply to his case, reiterating that the Claimant must plead and lead evidence of bad faith on the part of the Defendant. He placed reliance on the case of Peak Merchant Bank Ltd v. CBN [2017] LPELR-42324; Nigerian Army v. Abayomi [2019] LPELR-47084 and that the Claimant had pleaded facts from which bad faith can deduced from in paragraphs 6-19 of the claimant’s amended statement of facts as well as paragraphs 1-7 of the Claimant’s reply. Counsel continued and submitted that it is trite that the protection afforded to a public officer under POPA will only inure in favour of acts done in the cause of their official duty. He relied on the case of INEC v. Ogbadibo Local Government [2016] 3 NWLR (Pt.1498) 167 @ Pg. 191-192 Paras. C-B. Counsel stated 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, he also stated that an Official act properly so called cannot be said to have been carried out in pursuance of an official duty. He stated that DW1 admitted during cross examination that the Claimant’s appointment followed due process and that her employment was neither dismissed nor terminated for the reasons contained in the Terms and Conditions of Service and also that the SMS message sent to the Claimant did not comply with paragraph 3.2.18 of the Terms and Conditions of service, as all communications within the Defendant must be in writing. He submitted that the Defendant’s action was unlawful, invalid and ill motivated done in bad faith. He placed reliance on the cases of Ogebeide 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. He urged the Court to 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 contended that the relationship between the Claimant and the Defendant is strictu senso, a contract of employment with essential elements of a valid contract present   and the Claimant had pleaded facts to the effect that her appointment was permanent and pensionable. He equally submitted that pleadings without more, are not sufficient to prove the existence of a fact, there must be credible and cogent evidence adduced in support thereof. He placed reliance on the case of Ogunyade v. Oshunkeye [2007] 15 NWLR (Pt. 1057) 218 @ 246; Owners MV Gongola Hope v. S.C Nig Ltd [2007] 15 NWLR (Pt. 1056) 189 @ 215. Continuing, Counsel stated that the Claimant has clearly shown by creditable evidence that her appointment was a permanent and pensionable subject to the probation period of 12 months and that the Claimant’s appointment being one 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. He equally submitted that it is settled that in the interpretation and construction of documents placed before it, the Court must give the words used, their plain and ordinary meaning. He relied on the case of Abacha v. F.R.N [2006] 4 NWLR (Pt. 970) 239. It is the contention of learned Counsel that the defence counsel’s position that the Claimant’s employment was not permanent and pensionable was a misconception. He equally stated that there was no termination of the Claimant’s appointment known to law, as 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 placed reliance on the case 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 @ 163 and urged the Court to resolve this issue in the positive and in favour of the Claimant.

 

  1. Regarding issue three, it is the learned Counsel’s submission that the Defendant’s argument 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 reliefs sought because her appointment was terminated during probationary period and that the Claimant would have been entitled to the reliefs sought only if her appointment had been permanent and pensionable. It is the submission of Claimant’s   Counsel that the facts of that case is distinguishable from the facts of this case noting that 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 and it was on this ground that the Apex Court held that there was nothing like deemed confirmation  and that in such situation the Court should rather presume a deemed extension of probationary period.  It further held that deemed confirmation will imply forcing a willing servant on an unwilling master.  Counsel submitted that the case is not only unsupportive of the position it is being canvassed for but it supports the case of the Claimant. He submitted that notwithstanding that the claimant was still on probation at the time the unconscionable action was taken by the defendant, it still had the duty to follow the conditions laid down for the termination of the claimant’s appointment. 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) and submitted that the Defendant has failed woefully to follow the laid down.

 

  1. It is the submission of learned Counsel on the issue of the Claimant’s entitlement to her salaries, allowances, entitlements and benefits that the Claimant is entitled to all his salaries, allowances and benefits. It is the learned Counsel’s position that the Defendant’s argument that the claims were in the realm of special damages which must be strictly proved that the Claimant has worked for a month before the stay away order and that the rule on special damages only requires anyone asking for special damages to prove strictly that he suffered such damages and that all the Claimant needs to do is adduce credible evidence. He cited in support of his assertion the case of Amadi v. Chinda [2009] 10 NWLR (Pt. 1148) 107 @ 131. He submitted that the Claimant has specifically pleaded the special damages in her amended pleadings as well as her witness statement on oath, as the law is well settled that the Court has a duty to acct on evidence which is admissible and not contradicted and/or unchallenged except it is patently unreliable. He relied on the cases of Boye Ltd v. Sowemimo [2022] 3 NWLR (Pt 1817) 195 @ 219 C-F; Inegbedion v. Selo-Gemen [2013] 8 NWLR (Pt 1356) 211 @ 236. He urged the Court to consider the cross examination of the Defendant to find out that the quantum of the special damages was unchallenged.
  2. With respect to General Damages, Counsel submitted that the Claimant is entitled to general damages in the circumstance. He relied on the case of Stanbic IBTC Bank v. LOngterm Global Capital Ltd & Ors [2021] LPELR-55610 (CA) and Unity Bank Plc v. Ahmed [2020] 1 NWLR (Pt. 1705) 364.  He equally submitted that the law implies general damages in every breach of contract. He cited in support of his assertion the case of Cameron Airlines v. Otutuizu [2005] 9 NWLR (Pt. 929) 202 @ 223 and urge the Court to grant the Claimant his claim for general damages against the Defendant. Regarding post judgment interest, learned counsel relied on the Supreme Court case of Cappa & D’Alberto (Nig) Plc v. NDIC [2021] LPELR-53379 (SC) and submitted that this case is suitable for the grant of the post judgment claim. On the whole Counsel urge this Court to grant all the Claimant’s claims as contained in the amended statement of facts. He urged the Court to grant all the claims of the Claimant.

 

DEFENDANT’S REPLY ON POINTS OF LAW

 

  1. The Defendant in response to the Claimant’s Final Written Address filed a Reply on Points of Law dated the 3rd day of November, 2025 though belated but regularized wherein the Learned Counsel responded on the Claimant’s invitation for the Court to strike out Defendant’s paragraph 6 statement of defence. He submitted that the said invitation was belated and cannot be sustained as pleadings had been closed before trial commenced noting that final address is not an opportunity for Counsel to reopen pleadings and striking out of paragraphs in pleadings as it is both unfair in law and equity and is not procedurally allowed. He relied on the case of Finnih v. Imade [1992] 1 NWLR (pt. 219) 511 @ 536-537 H-A.  He equally stated that the material fact and the implication of the Claimant’s action was merely rested in paragraph 6 of the amended statement of defence, reiterating that parties did not join issues as the material fact was deemed admitted. He urged the Court to discountenance paragraph 6 of the amended statement of defence. On the case of Okonkwo v. INEC, Counsel submitted that the Claimant attempted to make a distinction without a difference as the ratio of the Supreme Court is clear on the application of the provision of POPA to an employment contract and most importantly the Claimant’s employment has no statutory flavour, but akin to that master/servant relationship which under common law can be terminated anyhow without formality. He relied on the case of U.T.C (Nig) Plc v. Peters [2022] LPELR-57289 Pg 17 Paras. B-E.

 

  1. On the issue of SMS message, Learned Counsel responded that the Claimant asserted in paragraphs 4.32, 4.33, 4.46 & 4.47 of her final written address that the SMS was unofficial but 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 valid means of communication which cannot be tagged “unofficial”, he noted that the Claimant by doing this has admitted this material fact by avoiding to comment on them. He relied on the case of Kanu v. FRN [2022] LPELR-58768, Pg. 22-25, Paras. D-A. He contended that the failure of the claimant to counter the defendant’s argument and authorities cited regarding the validity of an SMS is deemed to have conceded. He cited the cases of Mbat v. Hon. Minister, FCT [2024] 16 NWLR (Pt. 1965) 451 @ 482; Anyakorah v. PDP & Ors [2022] LPELR-56876 (SC) (Pp.12 Paras. D-D); Section 84 Evidence Act 2011.  He further submitted that the term in writing as used in the contract of employment should be given a purposive and liberal interpretation consistent with an SMS is not in writing is inconsistent with both statutory and judicial precedent. He posited that the termination of the Claimant’s appointment by SMS was valid, effective and in substantial compliance with the requirement of written notice. On the allegation of bad faith, it is the submission of learned Counsel that the Claimant argued in paragraphs 4.41-4.43 of her final written address that the Defendant acted in bad faith. He noted that the Claimant failed to plead any fact or lead any evidence of bad faith on the part of the Defendant. He therefore urged the Court to discountenance the Claimant’s unfounded allegation of bad faith against the Defendant. In conclusion, Counsel urged the Court to find and hold that this Court lacks the 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.

 

COURT’S DECISION

 

  1. This Court has painstakingly examined the pleadings, the oral and documentary evidence adduced by the parties, together with the final written addresses of learned Counsel. Upon a calm and objective appraisal of the entire pleadings, I find that the proper and decisive issues requiring determination are as follows:  
    1. Whether the restriction imposed on the Claimant from accessing his duty post by means of an SMS communication constituted a violation of the express and implied terms and conditions of service regulating the employment relationship between the Claimant and the Defendant.

 

  1. Whether having regard to the terms of the contract of employment, the Defendant was under a legal obligation to comply with the prescribed procedure for determining the Claimant’s appointment during his probationary period and if so, whether the Defendant’s failure to observe the said procedure rendered the purported restriction from duty or termination of the Claimant’s employment unlawful, null and void. 

 

  1. Whether this action is caught by the limitation provisions of the Public Officers Protection Act 2004 or any other applicable statute of limitation thereby rendering it statute-barred. 

 

  1. Whether in the final analysis and upon a proper consideration of the findings reached on the preceding issues, the Claimant has discharged the burden of proof entitling him 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] 5 NWLR (Pt 1822)159@177, Paras F-G; 178, Paras E-G (SC) and; Adesina v. AirFrance [2022]8 NWLR (Pt. 1833)523@555-556, Paras H-B. The burden of proof therefore rests squarely on the Claimant to establish her case on the preponderance of evidence, or balance of probabilities, by adducing credible evidence in support of the facts pleaded and the reliefs sought. Claimant is only entitled to rely on aspects of the defendant’s case that supports her 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 PSR 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 is the staff manual. I must say that it is of common knowledge that 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 my 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. 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 the 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 @ 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 Operations 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 imposed on the Claimant from accessing his duty post by means of an SMS communication constituted a violation of the express and implied terms and conditions of service regulating the employment relationship between the Claimant and the Defendant. 

  1. 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 her to stay away from her 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. 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.
  2. 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 unauthorized 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 cannot ordinarily satisfy a requirement for "written notice" within the contemplation of Claimant’s employment manual. This I so hold.

 

  1. Issue 2: 

Whether having regard to the terms of the contract of employment, the Defendant was under a legal obligation to comply with the prescribed procedure for determining the Claimant’s appointment during his probationary period and if so, whether the Defendant’s failure to observe the said procedure rendered the purported restriction from duty or termination of the Claimant’s employment unlawful, null and void. 

  1. 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. The evidence before the Court is unequivocal and un-contradicted 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.

 

  1. 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 principle of 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 this action is caught by the limitation provisions of the Public Officers Protection Act, 2004 or any other applicable statute of limitation thereby rendering it statute-barred. 

  1. 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 (1) 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, this Court finds and holds that the present suit is not statute-barred. I so hold.

 

  1. Issue 4: 

Whether in the final analysis and upon a proper consideration of the findings reached on the preceding issues, the Claimant has discharged the burden of proof entitling him to the reliefs sought in the Amended Statement of Material Facts. 

  1. 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 N3,500,000 as general damages.
  2. 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. 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.

 

  1. 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.

 

  1. It is further hereby declared that the Defendant was in fundamental breach of its contractual obligations to the Claimant.

 

  1. 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.

            

  1. 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.
  2. 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.

            

  1. 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.

 

  1. 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