IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

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

 

DATE: 24^TH JULY, 2026                

SUIT NO.: NICN/ABJ/399/2024

 

BETWEEN:

 

ONWE MARK OGAH                                               CLAIMANT

 

AND

 

NIGERIAN SHIPPERS COUNCIL                  DEFENDANT

 

REPRESENTATION:

OLADELE GBADEYAN, ESQ., WITH HIM SÚNDAY A. ABORISADE, ESQ., OLAJIDE O. OWONLA, ESQ., BABASOLA ADEWUMI, ESQ., BOLADE AKINLAWON, ESQ., TOYIN ADEGBEHINGBE, MISS FOR THE CLAIMANT.

ABDUL MOHAMMED SAN, FCIARB. WITH OBIABO FRANCIS AMEDU ESQ., CHIEMELIE NNEOMA AYO, ESQ., KHALIFA IBRAHIM SHUAIBU, ESQ., ABUSUFYANU ABUBAKAR, ESQ., BINBOL BENJAMIN TANGDEN, ESQ., DOYINSOLA OLUKOLADE ESQ., ISAAC AKWU ESQ., MICHELLE ANTEYI ESQ. FOR THE DEFENDANT.

JUDGMENT

1.The Claimant commenced this action by a Complaint filed on 1 November 2024, which was subsequently amended by an Amended Statement of Material Facts filed on 6 December 2024. The Claimant seeks the following:

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 entitlements and benefits owed to her by the Defendant 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:

a. Monthly salary: N359,131.37 (Three Hundred and Fifty- Nine Thousand, One Hundred and Thirty-One Naira and Thirty- Seven Kobo Only)

b. Allowance for New Employee (28 Days Allowance): N1, 020,000 (One Million and Twenty Thousand Naira Only)

c. Child Education Allowance: N500,000 (Five Hundred Thousand Naira Only)

d. Leave Allowance: N350,000 (Three Hundred and Fifty Thousand Naira Only)

e. Provision Allowance: N200,000 (Two Hundred Thousand Naira Only)

f. Rent Allowance: N1,000,000 (One Million Naira Only)

g. Utility Allowance: N150,000 (One Hundred and Fifty Thousand Naira Only)

h. Meal Allowance: N200,000 (Two Hundred Thousand Naira Only)

i. Entertainment Allowance: N100,000 (One Hundred Thousand Naira Only)

j. Dressing Allowance: N250,000 (Two Hundred and Fifty Thousand Naira Only)

k. House Maintenance: N200,000 (Two Hundred Thousand Naira Only)

l. Furniture Allowance: N500,000 (Five Hundred Thousand Naira Only)

m. Kilometer Allowance: N300,000 (Three Hundred Thousand Naira Only)

n. Transport Allowance: N150,000 (One Hundred and Fifty Thousand Naira Only)

o. Proficiency Allowance: (One Hundred and Seventy-Five Thousand Naira Only).

4. AN ORDER for General Damages to the tune of N10,000,000 (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 per cent) per annum on all the accumulated salaries and allowances due to the Claimant from the 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.

6. The cost of this suit.

2.The Defendant filed an Amended Statement of Defence on 17 December 2024, contending that the Claimant's provisional appointment was terminated during his probationary period and that the action is statute-barred under the Public Officers Protection Act. The Claimant filed a Reply to the Amended Statement of Defence on 7 February 2025, denying the termination of his employment and asserting that the statute of limitation is inapplicable to his contract.

CASE OF THE CLAIMANT

3.This action arose from a dispute over the employment status of the Claimant, Onwe Mark Ogah, who was appointed by the Defendant, the Nigerian Shippers' Council, as an Information Officer I via a Letter of Provisional Employment dated 10 October 2023. Following his deployment to the North Central Zonal Coordinating Office, the Claimant's active service was abruptly disrupted on 21 November 2023 when he received an informal text message from a human resources officer of the Defendant instructing him to stay away from work, a directive that was subsequently enforced by security personnel who barred him from accessing his duty post. Following a formal demand notice served by his solicitors on 21 October 2024, which went unheeded, the Claimant instituted this action on 1 November 2024, seeking declarations that the lockout was unlawful and in breach of contract, alongside claims for outstanding salaries, allowances, general damages, and post-judgment interest.

DEFENDANT’S CASE

4.In its defense, the Defendant raised a preliminary jurisdictional objection, asserting that the suit is statute-barred under Section 2(a) of the Public Officers Protection Act because it was filed nearly a year after the stay-away directive in November 2023. Substantively, the Defendant contends that the Claimant was a probationary employee whose provisional appointment was validly terminated through the electronic message, and that the Claimant subsequently waived any rights under the original recruitment by expressing interest in a fresh recruitment exercise via an SMS sent on 4 July 2024.

COMMENCEMENT OF HEARING

5.During the plenary trial, the Claimant testified as CW1 and tendered Exhibits A, B, C, and D, while the Defendant called Mr. Idowu Babatunde Olalekan as DW1, who tendered Exhibits A, B, C, D, and E. At the close of evidence, the case was adjourned for the filing and adoption of final written addresses, which were subsequently adopted by the parties.

CLAIMANT'S SUBMISSIONS

6.Learned Counsel to the Claimant, Olasoji O. Olowolafe, SAN, submitted that the Claimant is entitled to all the reliefs sought in this suit, and that the various preliminary and substantive defenses raised by the Defendant are completely without merit.

On Issue 1: Whether the Claimant's suit was not filed within the time allowed by the Public Officers Protection Act and thereby statute barred?

7.Learned Counsel to the Claimant submitted that the suit as constituted is valid, competent, and does not suffer from any legal disability that could rob this Honourable Court of its jurisdiction. Counsel argued that in determining whether a court has jurisdiction, the court must restrict itself to the totality of the pleadings filed by the Claimant, and not the defenses set up by the Defendant. In support of this contention, Counsel relied on Adeyemi v. Opeyori [1976] 10SC 31, UBN Plc v. Integrated Timber and Plywood Products Ltd [2000] 2 NWLR (pt.680) 99 at 110; Okulate v. Awosanya [2000] 2 NWLR (pt.646) at 555. Counsel submitted that a careful perusal of the Statement of Facts reveals that the Claimant's case is not merely challenging the restriction from his duty post, but is fundamentally an action based on the Defendant's breach of contractual obligations, including the failure to honor the terms of the employment agreement and the failure to pay settled entitlements. Counsel contended that pleadings and agreements must be construed as a whole and not in isolated bits, relying on Aqua Ltd v. Ondo State Sports Council [1988] 4 NWLR (Pt.91) 622; Tukur v. Government of Gongola State [1989] 4 NWLR (pt 117) 517. Counsel submitted that the cause of action in this suit crystallized only after the Defendant failed and refused to act on the demands made in the Claimant's Solicitors' letter dated 21st October 2024.

8.Counsel further submitted that the Public Officers Protection Act does not apply to this case because the Defendant's actions were not taken in good faith or in accordance with the extant Terms and Conditions of Service. Counsel relied on Wulima v. Usman [2014] 16 NWLR (pt.1432) 160;  Egbe v. Adefarasin (No.2) [1987]1 NWLR (pt.47) 1; Eregbowa v. Obanor [2010] 16 NWLR (pt.1218) 33 to state that the court must inspect the writ and statement of claim to determine the accrual date, and argued that the provisions of the Act will not protect a public officer who acts in bad faith, with malice, or in abuse of office. Counsel cited Hassan v. Aliyu [2010] 17 NWLR (pt.1223) 547 at 589 SC;  Offoboche v. Ogoja Local Government [2001] 16 NWLR (pt.739) 458; and CBN v. Okojie [2004] 10 NWLR (pt.882) 488 for the proposition that a public officer who acts maliciously or without legal justification is stripped of statutory protection. Counsel pointed out that the Defendant's own witness, DW1, admitted under cross-examination that the instruction to restrict the Claimant from his duty post was given orally and contrary to the written provisions of the staff manual, which establishes a lack of good faith.

9.Furthermore, Counsel argued that the Public Officers Protection Act does not apply to cases of breach of contract, particularly contracts of employment without statutory flavor. Counsel relied on the Supreme Court decisions in Roe Ltd v. UNN [2018] LPELR-43855, Salako v. I.E.D.B; and Anolam v. F.U.T.O. [2025] 5 NWLR (pt. 1984) 651  to support the position that the limitation law is inapplicable to actions rooted in contract. Counsel submitted that the relationship between the parties in this suit was strictly contractual, created by the offer of provisional appointment in Exhibit A, acceptance by conduct when the Claimant resumed at his duty post, and mutual consideration as set out in the Terms and Conditions of Service in Exhibit C. Counsel relied on African (Nig) Ltd v. A.G. Federation [1996] 9 NWLR (pt. 475) 634 at 656-671 v. Orient Bank (Nig) Plc v. Bilante International Ltd [1997] 8 NWLR (pt. 515) 37, Federal Government of Nigeria v. Zebra Energy Ltd [2002] 18 NWLR (pt. 798) 162 at 211; Union Bank of Nigeria Ltd v. Ozigi [1991] 2 All NLR 45 to argue that the essential elements of a valid contract were fully present. Counsel distinguished the case of Okoronkwo v. INEC, which was relied upon by the Defendant. Counsel argued that in Okoronkwo's case, there was a direct and positive formal letter of suspension "till further notice" which created the cause of action on a specific date, and the appellant therein had expressly pleaded that his employment was guided by the Civil Service Rules, thereby clothing it with statutory flavor. In contrast, Counsel argued that the present case involves an informal and unofficial SMS message sent from a private phone, and the Claimant has explicitly pleaded that the Public Service Rules do not apply to the Defendant. Counsel also submitted that according to the Supreme Court decision in Abubakar v. Michelin Motor Services Ltd [2020] 12 NWLR (pt. 1739) at 574 paras. D-F, a cause of action consists of a wrongful act and consequent damage, and that in the present case, the cause of action only fully accrued and crystallized when the Defendant refused the demands made in the Solicitor's letter of 21st October 2024, coupled with the ongoing restriction. Counsel also cited Cookey v. Fombo [2005] 15 NELR (pt. 947) 182 at 202 paras E-F to define a cause of action as the bundle of aggregate facts giving a right to a claim. Counsel argued that the Defendant's attempt to portray the SMS as an official communication is a deliberate misrepresentation of the pleadings, which explicitly termed the text message as "unofficial," and that such an unofficial, arbitrary act done in bad faith cannot enjoy statutory protection. Counsel relied on Uniport v. John [2020] 10 NWLR (pt. 1731) 106 at 134 and Radiographers Registered Board of Nigeria v. M & HWUN [2021] 8 NWLR (pt. 1777) 149 to define abuse of power, and argued that the Claimant pleaded and proved bad faith through his witness statements and the admissions extracted from DW1 under cross-examination. Counsel argued that the evidence of DW1 supporting the Claimant's case must be given full probative value, relying on Ogbeide v. Osule 2004] 12 NWLR (PT.886) at 117 paras D-E.

On Issue 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 out in the Defendant's terms and conditions of service?

10.Learned Counsel to the Claimant submitted that the contract of employment between the parties falls squarely within the category of permanent and pensionable employment. Counsel argued that the letter of provisional appointment in Exhibit A, the posting letter in Exhibit B, and the provisions of Section 3.2.2 of the Staff Manual in Exhibit C show that the appointment was designed to lead to permanent and continuous service. Counsel relied on Ogunyade v. Oshunkeye [2007] 15 NWLR (pt. 1057) 218; and Owners of M/V Gongola Hope v. S. C Nigeria Ltd [2007] 15 NWLR (PT. 1056) 189 at 215 to state that pleadings backed by credible documentary evidence are deemed proved, and cited Abacha v. F.R.N [2006] 4 NWLR (pt. 970) 239. to argue that the words in Paragraph 3.2.2 must be given their plain and ordinary meaning. Counsel argued that "probation" is not a distinct category of employment, but is merely a period of observation within a permanent and pensionable employment. Counsel pointed out that the Defendant's witness, DW1, admitted under cross-examination that the Claimant's appointment was permanent and pensionable, that due process was followed in his recruitment, and that the Claimant was never queried or found wanting. Counsel further argued that there was no valid termination of the Claimant's appointment known to law, because the Defendant completely failed to follow the mandatory procedure set out in Paragraph 3.2.18 of the Terms and Conditions of Service. Counsel submitted that under the Staff Manual, the termination of a probationary employee requires a written communication stating the inability to meet expectations and the payment of one month's salary in lieu of notice. Counsel argued that when a document lays down a procedure for doing an act, no other mode is permitted, relying on Okereke v. Yar'Adua [2008] 12 NWLR (pt. 1100) 95 at 127 paras. E-f; C.C.B. Plc v. Anambra State [1992] 10 SCNJ 137 at 163; and Bamisile v. Osasuyi 10 NWLR (pt. 1042) 225 at 272. Since the Defendant failed to issue any written letter of termination or pay any salary in lieu of notice, Counsel submitted that the contract of employment remains intact and subsisting.

11.Learned Counsel to the Claimant submitted that the SMS sent by the Claimant stating "My preferred Venue: Abuja. Thank you" does not constitute a waiver of his contractual rights or create an estoppel by conduct. Counsel argued that as pleaded in paragraphs 10 and 11 of the Reply, the Claimant was operating under the mistaken belief that the message sent by the Defendant's representative related to an internal recruitment exercise, and that the Claimant immediately backed out of the process upon discovering that it was a fresh external exercise. Counsel relied on the Supreme Court decision in Ironbar v. F.M.F. Ltd [2024] 12 NWLR (pt.1952) 275 at 316 paras. A-E 317 para. E; 318-319 paras. F-A, to argue that for the doctrine of estoppel by conduct under Section 169 of the Evidence Act 2011 to apply, the party raising it must demonstrate that they altered their position to their detriment or damage based on the other party's representation. Counsel also cited D.V.M. (Nig.) Ltd v. N.P.A [2019] 1 NWLR Pt. 1652 163 at 183-184 paras. D-A to reiterate this principle. Counsel argued that the Defendant failed to plead or prove any facts showing that it altered its position, offered a fresh appointment, or suffered any detriment as a result of the Claimant's text message. Furthermore, Counsel argued that since the Defendant asserts that the Claimant's employment was terminated six months prior to this text message, the Defendant could not have relied on the subsequent text message to justify its prior actions.

On Issue 3: Whether the Claimant is not entitled to the reliefs sought?

12.Learned Counsel to the Claimant submitted that the Claimant has proved his entitlement to all the reliefs sought. Counsel argued that the Defendant's reliance on Ondo State University v. Folayan [1994] LPELR-2673 SC; [1994] 3 NWLR (Pt. 354) 1 is misplaced because that case dealt with an employee asserting "deemed confirmation" after the lapse of probation, whereas the present case is built on the fact that no valid termination ever took place. Counsel submitted that the court can deem the probationary period extended while the contract remains intact. Counsel argued that even in respect of probationary employees, an employer has a strict duty to follow the conditions laid down for termination in the contract, relying on Ihezukwu v. University of Jos & Ors [1990] LPELR-1461 SC; Al-Bishak v. National Productivity Centre & Anor [2015] LPELR-24659 (CA).

13.Regarding the claim for salaries, allowances, and benefits, Counsel submitted that these are special damages that have been strictly proved. Counsel relied on Amadi v. Chinda 10 NWLR (PT.1148) 107 at 131 to state that special damages require credible evidence of such a character as to suggest entitlement. Counsel argued that the Claimant specifically pleaded these entitlements in paragraph 11 of the Amended Statement of Facts and gave unchallenged oral evidence in paragraph 13 of his Witness Statement on Oath. Counsel cited Boye Ltd v. Sowemimo [2020] 3 NWLR (PT 1817) 195 at 219 C-F; Inegbedion v. Selo-Gemen [2013] 8 NWLR (pt 1356) at 236, and Badejo v. Federal Ministry of Education [1996] 8 NWLR-(pt 464) 15 at 42 for the proposition that a court must act on unchallenged, uncontradicted, and admissible evidence. Counsel argued that as long as an employment contract is not validly determined, the employee remains on the payroll and is entitled to all salaries and benefits, relying on Bamisile v. NJC & Ors [2012] LPELR-8381 supra

14.Counsel further submitted that the Claimant is entitled to general damages, which are presumed by law to flow from a breach of contract, relying on Stanbic IBTC Bank v. Longterm Global Capital Ltd Ors [2021] LPELR-55610 CA, Unity Bank Plc v. Ahmed [2020] 1 NWLR (PT.1705) 364, and Cameroon Airlines v. Otutuizu [2005] 9 NWLR (pt. 929) 202 at 223. Counsel also submitted that the court has the power to award post-judgment interest, citing Cappa & D'Alberto (Nig.) Plc v. N.D.I.C. [2021] LPELR-53379 SC  In response to the Defendant's argument that the termination could be done via SMS, Counsel argued that an SMS is an informal means of communication and a clear departure from the written requirement in Exhibit C, and that cases recognizing electronic service of court processes, such as ENL Consortium Ltd v. Shambilat Shelter (Nig.) Ltd [2008] LPELR-43902 SC, cannot be used to permit parties to unilaterally alter the express terms of their contract, relying on Mbat v. Hon. Minister, F.C.T. [2024] 16 NWLR (pt.1965) 451 at 482 Counsel also urged the court not to follow the persuasive but distinguishable decision of coordinate jurisdiction in Saifullah Muhammed Aliyu v. N.P.A. in suit NO. NICN/ABJ/20/2023 (Unreported) as that case was decided on its own peculiar facts.

DEFENDANT'S SUBMISSIONS

15.Learned Counsel to the Defendant, Abdul Mohammed, SAN, submitted that the Claimant's action is incompetent, statute-barred, and totally lacking in merit, and must therefore be dismissed with substantial costs.

On Threshold Issue: Whether the suit of the Claimant against the Defendant is statute barred?

16.Learned Counsel to the Defendant submitted that the question of whether a suit is statute-barred is a threshold jurisdictional issue that must be resolved first. Counsel argued that if the court finds that the cause of action is stale, it lacks the jurisdiction to entertain the suit and must dismiss it in its entirety, relying on Eboigbe v. N.N.P.C [1994] 5 NWLR (Pt.347) 114 Araka v. Ejeagwu [2000] 12 SC (PT. 1) 99, for the proposition that a statute-barred action robs the court of jurisdiction and extinguishes the plaintiff's right to enforce the cause of action through judicial process.

17.Counsel submitted that the Defendant is a public officer within the meaning of the Public Officers Protection Act, Cap 379, LFN, and is fully protected by Section 2(a) thereof. In support of this contention, Counsel relied on Central Bank of Nigeria v. Hudro Air Pty Ltd [2014] 16 NWLR (pt.1434) 482, and Utomodu v. Military Governor, Bendel State [2014] 11 NWLR (pt.1417) 97 Counsel submitted that actions against public officers must be commenced within three months of the act complained of.

18.Counsel conceded that prior to the recent Supreme Court decision in Okoronkwo v. INEC [2025] 8 NWLR (pt.1991) 131, there was some confusion as to the applicability of the Public Officers Protection Act to contracts of employment, as seen in Revenue Mobilisation Allocation and Fiscal Commission [2019] 2 NWLR pt. 1656 247 v. Ajibola Johnson, Idachaba v. University of Agriculture, Makurdi [2021] 15 NWLR (pt.1688) 295, and Rector, Kwara Poly v. Adefila [2024] 9 NWLR (PT. 1944) 529. However, Counsel argued that where there are conflicting decisions, the court is duty-bound to follow the latest decision of the Supreme Court, relying on Cyril O. Osakue v. Federal College of Education, Asaba[2010] 10 NWLR (pt.1201) 1, Osude v. Azodo [2017] 15 NWLR (Pt. 1688) and Edeoga & Anor v. INEC &Ors [2023] LPELR-61806 SC. Counsel submitted that the Supreme Court in Okoronkwo v. INEC supra (quoting the concurring judgment of Ogbuanya, JSC) has now settled the law that actions rooted in contracts of employment are subject to the limitation provisions of Section 2 of the Public Officers Protection Act.

19.Applying this principle, Counsel pointed out that the Claimant's statement of claim explicitly pleaded in paragraph 6 that in November 2023, he received a text message instructing him to stay away from the duty post. Counsel argued that the cause of action crystallized on that date in November 2023, and the Claimant was required to bring this action within three months. Having waited until 1st November 2024 to file this complaint—a period of nearly one year later—Counsel submitted that the suit was filed in blatant violation of the Public Officers Protection Act and is incurably statute-barred.

20.In the Defendant's Reply on Point of Law, Counsel further responded to the Claimant's attempt to distinguish Okoronkwo v. INEC supra, arguing that it is a distinction without a difference. Counsel submitted that the Supreme Court's ratio on the applicability of the Public Officers Protection Act to employment contracts is absolute. Counsel pointed out that the Claimant, by pleading in paragraph 4.22 of his address that his employment has no statutory flavor, has conceded that the relationship is a master-and-servant relationship. Under common law, a master-and-servant relationship can be terminated for good, bad, or no reason at all, and without formal procedures. Counsel submitted that the Claimant's argument that the cause of action only accrued when his solicitor's demand letter was spurned is preposterous and has no foundation in law. Counsel also dismissed the Claimant's allegation of bad faith.

  On Whether the Claimant's SMS does not amount to a waiver of any right arising from the initial recruitment exercise which this claim is predicated upon?

22.Learned Counsel to the Defendant submitted that the Claimant is precluded from challenging the termination of his provisional appointment because his subsequent conduct constitutes a complete waiver. Counsel relied on Central London Property Trust Ltd v. High Trees House Ltd [1947] KB 130, Tukur v. Garba [2012] LPELR-9337 SC, and Section 169 of the Evidence Act 2011 to argue the principle of estoppel by conduct, which prevents a person from denying a state of affairs they previously represented as true.

23.Counsel pointed out that after being instructed to stop coming to work, the Claimant was informed of a fresh recruitment exercise and indicated his interest in participating by sending an SMS message stating, "My Preferred venue is Abuja. Thank You." Counsel argued that by electing to participate in the fresh exercise and sending this text message, the Claimant waived any right to challenge the termination or the procedure used. Counsel relied on Ariori & Ors v. Elemo [1983] LPELR-552 SC, Bakare v. Lagos State Civil Service Commission & Anor [1992] LPELR-711 (SC) (Pp.95 paras. C), The Admin. & Exec. of the Estate of Abacha v. Eke-Spiff & Ors [2009] LPELR-3152 SC, and Amaechi v. INEC & Ors [2008] LPELR-446 (SC) to argue that once a party voluntarily makes an election between two alternative procedures, they cannot afterwards go back and resort to the right they had abandoned. Counsel submitted that the text message was sent on 4th July 2024, subsequent to the termination, and that the Claimant's failure to attend the fresh exercise after indicating his venue preference, as shown in Exhibits Olalekan C and D, means he has lost any right to claim under the original provisional appointment.

On Issue 1: Whether from the totality of facts in this suit: particularly the Defendant's Letter of Employment and condition of service, the Claimant has proved that his employment is one of permanent and pensionable as to require the Defendant comply with the dispute resolution procedure contained in Defendant's Terms and Condition of Service?

24.Learned Counsel to the Defendant submitted that the contract of employment is the bedrock of the relationship between the parties, and the court cannot look outside its written terms to determine their rights, relying on Katto v. CBN [1999] LPELR-1677 (SC) 10 Counsel argued that the Claimant's assertion that he is a permanent and pensionable staff entitled to the rights of a confirmed officer is false. Counsel pointed out that Exhibit A explicitly offered "provisional appointment" and Section 3.2.2 and 3.2.18 of the Staff Manual state that newly employed staff hold their appointments on probation during the first twelve months. Counsel argued that since the Claimant admitted during cross-examination that his appointment was never confirmed, he was still on probation at the time of termination.

25.Counsel submitted that an officer on probation does not enjoy the same conditions of service as a confirmed officer, and their removal is not subject to strict procedural rules. Counsel relied on Al-Bishak v. National Productivity Centre & Anor [2015] LPELR-24659 CA at P.40-41 paras. C, Igwilo v. C.B.N [2000] 9 NWLR (PT.672), Alhassan v. ABU, Zaria [2011] 11 NWLR (Pt.1259) 417, and Ihezukwu v. University of Jos [1990] 7 SC (PT.1) pg. 18 ,for the proposition that an employer has an unfettered right to terminate a probationary employee's appointment without following strict procedures, provided there is satisfaction of suitability. Counsel also cited Ondo State University v. Folayan [1994] LPELR-2673 (SC) to argue that staying beyond the probation period does not result in automatic "deemed confirmation," and that courts will not foist an unwanted servant on an unwilling master. Counsel also relied on Nitel Plc & Anor v. Akwa [2005] LPELR-5971 CA (Pp.24-26. B)  and Alhaji Baba v. Nigerian Civil Aviation Training Centre Zaria to argue that the employer retains the right to terminate during probation for unsuitability. Counsel commended the decision of this court in Saifullah Muhammad Aliyu v. Nigerian Ports Authority (Suit No: NICN/ABJ/20/2023), where the court refused to reinstate a probationary staff whose termination was conveyed merely by withholding salaries, holding that it would be absurd to set aside an administrative exercise of discretion simply because a formal letter was not issued. Counsel also cited Celtel Nigeria BV v. Econet Wireless Ltd &Ors [2014] LPELR-22430. regarding the wide latitude of administrative discretion.

26.Counsel argued that the term "in writing" must be interpreted purposively to align with modern digital realities, and that electronic communications such as text messages, WhatsApp, and emails are legally recognized as writing. Counsel relied on ENL Consortium Ltd v. Shambilat Shelter (Nig.) Ltd [2018] LPELR-43902 SC; Continental Sales Ltd v. V.R. Shipping Inc [2012] LPELR-7905 CA; Sterling Bank v. Akintoye Akinbode [2018] LPELR-50669 CA to argue that courts must embrace technological advancements and that SMS is a valid official channel of communication. In the Reply on Point of Law, Counsel pointed out that the Claimant failed to address the judicial authorities showing that SMS is a valid means of official communication, and is therefore deemed to have admitted this material fact. Counsel also submitted that the Claimant's reliance on Mbat v. Hon. Minister, F.C.T. is inapplicable because that case did not deal with electronic notice compliance. Counsel submitted that the Claimant admitted receiving the SMS instructing him to stay away but chose to ignore it and attempt to continue work, which was resisted by security, proving that the termination was effectively communicated.

27.In response to the Claimant's request to strike out paragraph 6 of the Amended Statement of Defence, Counsel argued in the Reply on Point of Law that the Claimant's invitation is belated because pleadings have long closed. Counsel submitted that paragraph 6 merely restated a material fact first pleaded by the Claimant in his own Statement of Facts (that he decided to ignore the message), actually supports the Defendant because conclusions of law can be drawn from material facts pleaded.

On Issue 2: Whether the Claimant has shown an entitlement to the grant of the Reliefs sought in this suit herein?

28.Learned Counsel to the Defendant submitted that the Claimant has failed to prove his entitlement to any of the reliefs sought. Counsel argued that in an action for declaratory reliefs, the Claimant must succeed on the strength of his own case and not on the weakness of the defense, relying on Col. Nicholas Ayanru (Rtd) v. Mandilas Ltd [2007] 4 SCNJ 388; Nweke v. Okorie [2015] LPELR 40650; Ifekandu & Anor v. Uzoegwu [2008] LPELR-1435 SC. Counsel argued that granting the Claimant's reliefs would amount to forcing an unwilling master to employ a servant in perpetuity, which is a "manifest absurdity" under Ondo State University & Anor v. Folayan supra

29.Counsel further submitted that the Claimant failed to lead any evidence that he actually worked beyond November 2023 or earned the sums claimed, and that equity frowns at unjust enrichment, relying on Obeya v. Okpoga Microfinance Bank Ltd [2019] LPELR-47615 (CA) and Eboni Finance and Securities Ltd v. Wole-Ojo Technical Services Ltd [1996] 7 NWLR (Pt. 461) 464. Counsel argued that the claim for salaries and allowances falls in the realm of special damages, which must be strictly and specifically proved by laying concrete, quantifiable evidence before the court. Counsel submitted that there was no proof of the Claimant's entitlement to these specific sums, and the court cannot make a contract or speculate on entitlements, relying on Section 130 to 133 of the Evidence Act 2011, Produce Marketing Board v. A.O. Adewunmi [1972] 11 SC 111/24,  Counsel argued that since the main claims fail, all the ancillary claims for damages and interest must also fail, relying on Fafunwa v. Bellview Travels Ltd [2013] LPELR-20800 CA;  Kakih v. P.D.P & Ors [2014] LPELR-23277; Governor of Kogi State & Anor v. Simon [2024] LPELR-73317 CA.

COURT’S DECISION

30.Having meticulously considered the pleadings, the evidence adduced by all parties, and the comprehensive written submissions of counsel, this Honorable Court hereby formulates the pivotal issues requiring determination 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.

31.It is evident from the originating process that the Claimant primarily seeks declaratory reliefs. This Court notes that a claim for declaratory relief is a discretionary remedy, not granted as a matter of course or merely upon admission by the adverse party. Consequently, a claimant seeking such relief must rely on the inherent strength of their own case, adducing credible evidence in support of the pleaded facts and sought reliefs, rather than on any perceived weakness in the defendant's 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. 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. However, it is equally crucial to note 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 of proof. The Claimant is only entitled to leverage aspects of the Defendant’s case that unequivocally support his own. 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).

32.The foundational principle of civil litigation dictates that a claimant initiating an action must prove their case to secure a favorable judgment. This is the primary rule of evidence: any party making an assertion bears the burden of proving 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. Before delving into the substantive issues formulated for determination, this Court deems it necessary to address certain preliminary matters.

33.The Claimant, in paragraph 12 of his Amended Statement of Facts, averred that the Public Service Rules (PSR) do not apply to the employment relationship between him and the Defendant, asserting that the relationship is instead regulated by the Defendant’s Staff Manual. The Defendant, conversely, countered this in paragraph 8 of its Amended Statement of Defence, implying the applicability of statutory flavour. This Court is mindful that the Claimant’s averment seeks to establish a master-servant relationship, while the Defendant contends otherwise.

34.Having meticulously reviewed Exhibit A, the letter of employment, and Exhibit C, the Staff Manual, this Court recognizes that staff handbooks, manuals, circulars, and administrative guidelines are commonly issued by management in government agencies to ensure workplace standardization. While these documents may be incorporated by reference into a contract of employment, they do not inherently confer "statutory flavour" upon the employment relationship. The law is trite: 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 an enabling Act), it remains a purely contractual document. The Supreme Court, in Adedeji & Ors v. Central Bank of Nigeria & Attorney-General of the Federation [2023] 5 NWLR (Pt. 1878) 531, emphatically cautioned against the liberal expansion of the doctrine of employment with statutory flavour. The Apex Court reiterated that internal documents, such as staff manuals, cannot create a statutory flavoured employment relationship unless they are expressly authorized by or derived from a statute. Furthermore, the Supreme Court emphasized that public institutions can, and frequently do, engage in master-servant relationships when the specific terms of engagement are not grounded in a legislative instrument. This, in the considered view of this Court, is precisely the situation in the instant suit. The mere fact that the Defendant is a creature of statute does not automatically transform the employment relationship with its employees into one with statutory flavour. The Defendant’s Staff Manual does not qualify as subsidiary legislation in the eyes of the law. Only rules, regulations, or orders made by an authority (such as a Minister, Council, or Board) under powers granted by a principal Act of the National Assembly can be said to have statutory flavour, as these are referred to as subsidiary legislation. This is demonstrably not the case here. I therefore find and hold that the relationship between the parties in this suit is one of master and servant.

35.The Claimant, through his counsel, in their written brief, urged this Court to strike out Paragraph 6 of the Defendant's Statement of Defence, contending that it constituted an "argument or legal conclusion" rather than a statement of material fact, thereby offending the rules of pleading. The Defendant, conversely, argued that the application was belated, as pleadings had long since closed, and therefore ought not to be entertained.

36.On this point, this Court is guided by the pronouncements of the Supreme Court on the import and application of Rules of Court. In 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 @ 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.”

37.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 and would elevate procedural technicality over substantive justice. On this ground, the Claimant's submission to strike out Paragraph 6 of the Defendant’s Statement of Defence is hereby discountenanced.

38.The Claimant’s core grievance in this case is that in November 2023, during the probationary period of his appointment as Information Officer I with the Defendant, he received an unofficial communication via SMS message from the Defendant, directing him to stay away from his duty post pending further instructions from Management. The Claimant testified that he initially disregarded the message and attempted to continue with his work, but was physically resisted by security personnel acting on the Defendant's instructions. In essence, the Claimant asserts that his employment relationship with the Defendant was unilaterally and forcefully suspended or terminated by the Defendant, in direct contravention of the terms and conditions regulating their relationship. In resolving this dispute, this Court shall now proceed to consider the issues formulated for determination, addressing them serially as itemized.

 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.

39.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.

40.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 fundamental 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.

41.An SMS message, by its very nature, is an inherently informal and ephemeral 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 your 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. This 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.

42.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 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 the substantive entitlement to terminate (which the employer may generally possess) and the 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, informal, and ambiguous channel is procedurally incompetent and legally ineffective. On this premise, I find and hold 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 the Claimant’s employment manual.

43.Closely linked to the foregoing, the Defendant, in its brief of argument, 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.

44.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.

45.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. 46.The intention to waive must be unambiguous and cannot be inferred from equivocal acts or circumstances.

47.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.

48.Applying these principles to the instant case, the Defendant's plea of waiver is untenable for several compelling reasons:

49.Firstly, the Claimant's message 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.

50.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.

51.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.

52.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:

a. 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.

b. Subsequently advertise the Claimant's position or a similar one, further solidifying the Claimant's state of limbo and economic vulnerability.

c. 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.

53.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.

54.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 (supra), 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.

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.

55.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.

56.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.

57.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 by any subsequent ratification.

58.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, in line with its mandate under Section 254C (1) (f) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), to apply international best practices and standards, is ready to import and rely on the English law principle of an implied term of ‘mutual trust and confidence’, which was demonstrably breached by the Defendant's actions. 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 the 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.

59.In the course of this judgment, this Court observed that counsels dedicated significant time and 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:

i. Pre-employment rights: Covering disputes that arise before an individual formally commences employment.

ii. 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.

iii. post-employment rights: Pertaining to disputes that arise after the termination or cessation of employment.

60.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, fundamentally misapprehends the established principles of employment law.

61.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.

62.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.

Issue 3:

Whether the Suit is Statute-Barred by Virtue of the Public Officers Protection Act or Any Other Applicable Limitation Statute.

63.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 (POPA), 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.

64.After a thorough review of the circumstances surrounding this case, this Court observes that 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.

65.And most fundamentally, the National Industrial Court of Nigeria (NICN) derives its expansive and exclusive 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 or injury. 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, thereby undermining the very essence of specialized labour adjudication. For these compelling reasons, the Court finds and holds that the present suit is not statute-barred.

Issue 4:

Whether the Claimant is Entitled to the Reliefs Sought in the Amended Statement of Material Facts.

66.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.

67.The Claimant seeks declarations that the restriction from duty was illegal and unlawful, and that the Defendant breached its contractual obligations. Based on the unequivocal findings under Issues 1 and 2, these declarations are hereby granted as prayed.

68.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, specifically covering the probationary period for which he was unlawfully denied payment.

69.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 [2018] 3 NWLR (Pt. 1500) 1. The circumstances of this case, where the Claimant was summarily excluded from his means of 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.

70.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.

71.Finally, having regard to the conduct of the Defendant in this matter, which demonstrated a clear disregard for established contractual procedures and the dignity of the Claimant, and considering 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.

72.On the whole, and for the reasons extensively articulated above, this Court hereby enters judgment for the Claimant on the following definitive terms:

a. 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.

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

c. The Defendant is hereby ordered to pay the Claimant all arrears of salaries and allowances from the date of the unlawful restriction during the probationary period only to the date of this judgment, computed at the rates established in evidence.

d. 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.

e. 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.

f. 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.

g. The Defendant is hereby ordered to pay costs of N500,000 (Five Hundred Thousand Naira) to the Claimant.

Judgment is hereby entered accordingly.

 

 

…………………….

Hon. Justice E. D. Subilim

JUDGE