Engr. Luke Mmamel -VS- Institute of Management and Technology Enugu & ORSNational Industrial Court of Nigeria- Judgment Portal

THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

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

DATE: TUESDAY AUGUST 20, 2024

SUIT NO: NICN/EN/39/2018

BETWEEN:

ENGR LUKE MMAMEL………..………..…………………CLAIMANT

AND

1. INSTITUTE OF MANAGEMENT AND TECHNOLOGY

ENUGU

2. ATTORNEY-GENERAL AND COMMISSIONER DEFENDANTS

FOR JUSTICE OF ENUGU STATE OF NIGERIA

APPEARANCES:

1. PROF. Z.U. CHUKWUEMEKA ANYOGU – FOR THE CLAIMANT.

2. DR G.O. OMEH – FOR THE 1^ST DEFENDANT.

3. UZOAMAKA OKEJI [DIRECTOR OF CIVIL LITIGATION, MINISTRY OF JUSTICE, ENUGU STATE] – FOR THE 2^ND DEFENDANT.

JUDGMENT

INTRODUCTION

COMPLAINT commenced this suit Dec 07, 2018, which was accompanied with Statement of Facts [SF] in which the following reliefs were claimed:

I. A declaration that the claimant is entitled to his pension rights on retirement on the legal rights due to him as a confirmed Director of Works Services of the Institute of Management and Technology Enugu

II. An injunction restraining the Institute of Management and Technology Enugu from any further payment of the salary of the plaintiff [sic] on the reduced amount necessitating this action.

III. Payment of all legitimate arrears caused by the shortfall in payment of salary/emoluments, currently estimated at N7,510.338.72 (Seven Million five hundred and ten thousand three hundred and thirty eight naira, seventy two kobo (being shortfall for 12 months) [sic]

IV. Interest on the accrued arrears at the rate of 10% per annum from the date of Judgment until payment.

The 2^nd defendant filed Amended Statement of Defence [ASD] Feb 03, 2021 while the 1^st defendant filed Statement of Defence and Counter-Claim [SDCC] Mar 06, 2019. The claimant filed Defence to Counter-Claim [DCC] Nov 14, 2019. Thus, issues were joined on the pleadings. The next thing for me is summary of the pleadings.

SUMMARY OF THE PLEADINGS

A: The Claimant’s Story

The claimant pleaded that he was employed in 1983 as lecturer and that; he rose to the position of Senior Lecturer in 1991 but was made Acting Director of Works and Services [DWS] in that same 1991, as a result of state creation and that; when the substantive position of DWS was advertised in 1995, he applied and was appointed Chief Engineer on GL 13/8 October 18, 1995. The claimant pleaded he remained in this position till 1997 when he applied for confirmation of his position as substantive DWS, which was approved at GL 14/8 Sep 10, 1997. He pleaded that, however, in 1998 a circular dated Nov 10, 1998 made the DWS principal officer of the 1^st defendant, Institute of Management and Technology, Enugu [IMT]. The claimant pleaded that, suddenly, without any accusation or fault, by a letter dated July 01, 2016, the Council directed him to handover to another officer and he did.

The claimant pleaded that subsequent to this, he observed that his salary was reduced when he received his 2018 June salary, to N330,069 from the N958,931.46 he received for June 2016. He pleaded that he had put in 37 years in service and was entitled to pension, which would now be based on the reduced salary, which is one-third what he is supposed to earn as pension. He pleaded that, he petitioned the Council and the AG, Enugu State [the defendants] without success. The claimant pleaded that his appointment as DWS had statutory flavour and that; the position was the zenith of a career position for the cadre of pupil engineers. Thus ended the pleadings with the reliefs claimed as earlier stated above. I move to summary of the 1^st defendant’s pleadings.

B: 1^st Defendant’s Counter-Story and Counter-Claim

The 1^st defendant counterclaimed that the DWS is tenured appointment by IMT Law and that; the IMT had explained to the claimant in a letter, the reason for the underpayment, which was because the claimant was redeployed to his former position as Chief Engineer. The 1^st defendant counterpleaded that the computation of the claimant’s pension is based on his career position and not as DWS. The 1^st defendant counterpleaded that the claimant petition was replied. The 1^st defendant pleaded that the suit was procedurally incompetent by not following the rules of this Court and by suing the 2^nd defendant. Thereafter, the 1^st defendant moved to the Counter-Claim [CC] and, merely counterpleaded against the claimant’s reliefs that, he was not entitled to them and that, the 1^st defendant is entitled to N500Thousand exemplary damages. Thus, the 1^st defendant’s pleading ends. I move to the 2^nd defendant’s pleading.

C: 2^nd Defendant’s Counter-Story

The 2^nd defendant counterpleaded knowing the claimant and the cause of action and that; the letter dated Oct 18, 1995 only approved the claimant’s conversion from lecturer to Chief Engineer and Acting DWS. The 2^nd defendant also counterpleaded that the position of DWS is appointive and not career position, as effected in the Council meeting of Oct 28, 1998 by which, it became tenured and is only attained by appointment and not promotion. The 2^nd defendant counterpleaded that the claimant’s tenure lapsed in 2016 by virtue of S. 7 of the IMT Law and that; all principal officers who served up their tenures were redeployed like the claimant. The 2^nd defendant pleaded too that, pension is tied to career salary and not the salary of a tenure office. The 2^nd defendant thereafter urged the Court to strike out the suit. Thus, the 2^nd defendant’s pleadings ended. I move to the DCC.

D: The Claimant’s Defence to Counter-Claim [DCC]

The claimant replied para 2 of the 1^st defendant’s SDCC that the claimant’s pension, unlike his salaries, is paid by the State. He also relied on para 3 of the 1^st defendant’s SDCC that the word “substantive” means ‘permanent’ and not temporary and that, the claimant’s conversion from Chief Engineer to DWS was sequel to the recommendation of the Appointment and Promotion Committee. He replied that, Mr Mike E. Ezeh retired on his salary as Bursar and that; this suit was neither frivolous nor vexatious. Thus ended the DCC. That being the end of the pleadings, I move to summary of the proceedings.

SUMMARY OF PROCEEDINGS

The case came up first Apr 10, 2019 and both the 1^st and 2^nd defendants’ separate motions to regularise their SDs were granted. Thereafter, the 1^st defendant’s Notice of Preliminary Objection [NPO] was taken and ruling delivered Jul 09, 2019 and, the NPO was dismissed, while the case was adjourned. On Nov 18, 2019, the claimant’s DCC was regularised and, the case came up next, Feb 26, 2020, on which date, it was opened with the claimant testifying for himself as CW1. CW1 adopted the two Written Statements on Oath [WSOs] made 7/12/2018 and 14/11/2019 respectively. Exhibits C1, C2, C3 & C4 were admitted on this date, while the case was adjourned. CW1 continued with his testimony Nov 10, 2020 and, Exhibits C5 & C6 were tendered and, the CW1 was surrendered for Cross-Examination [XX].

Under XX by the 1^st defendant’s learned counsel, as to which positions are attained by promotion and by appointment, CW1 said if one had been in the public service, he goes to the next position by promotion but if appointed direct from outside, he is appointed to the appropriate position. CW1 admitted that he applied for the position of DWS through advert. To the question whether it would have been necessary to apply for fresh confirmation if the position of DWS is by promotion, CW1 said the position was advertised for both internal staff and external persons and, he was appointed as Chief Engineer but was asked to continue to function as Acting DWS. He said by the Public Service Rules [PSR], if one had acted for six months, he could apply for confirmation and, he applied and was appointed substantive DWS. In reaction to the document shown to him, CW1 said, it was 2016 document but he applied for DWS under the 1995 document, while he was appointed substantive DWS in 1997 with the then, applicable conditions of service before the 2016 publication and that, this 2016 publication was after he was asked to handover to the most senior engineer in his department. Thereafter, the document was admitted as Exhibit XXA.

CW1 read paras 1&2 of Exhibit C1 and said, his position, as DWS was not tenured, but a career position on which a person retires at 60 years. The 1^st defendant ended its XX at this stage and, CW1 was ordered to step out and come back the next date for the 2^nd defendant’s XX. The case was thereafter adjourned for continuation. It came up next Dec 09, 2020 and CW1 was further submitted for the XX of the 2^nd defendant.

Under XX by the 2^nd defendant’s learned counsel the DCL Enugu State, CW1 said the distinction between career position and appointment is that, a person in service is entitled to progression by way of promotion, while appointment is done on the basis of meeting the criteria set out in the adverts and, tenured; where it is stated in the instrument of appointment; and this must be clearly so stated before the appointment as advertised. He said Chief Lecturer is the terminal grade in the lecturer cadre. He admitted that more than one person could be promoted as Senior Lecturer.

To the question if more than one person could be appointed at once, as a principal officer, CW1 said it is one appointment at a time and that, only he was appointed DWS at the time. He said it was not correct that the office of the DWS was on direct appointment but rather, the terminal position for a pupil engineer in the IMT service. CW1 said positions attained by appointment are pensionable because, his appointment was substantive. He said while appointment by promotion is pensionable, appointment at the discretion of government is not pensionable. After few more questions about tenure and reversion to office by career officers, the XX was brought to an end and, the case was adjourned.

It came up next May 05, 2021 and the 2^nd defendant’s application for amendment of the SD and the ruling delivered Jul 6, 2021, allowing substitution of witness and additional documents. It came up next Jul 19, 2022 and, the defence opened with one Kingsley Obi, a staff of the IMT as DW1 and Exhibits D1 to D5 were admitted through him and, the 1^st defendant closed its evidence-in-chief, while the matter was adjourned. It came up next Jan 19, 2023 and DW1 was submitted for XX. The DCL for the 2^nd defendant cross-examined DW1.

Under XX by the 2^nd defendant’s learned counsel, DW1 said there were three types of appointments in the IMT: Council and principal officers appointment; career officers appointments; and casual workers. He said the DWS is in the category of principal officers, who only stays for a four-year tenure and that; the claimant’s tenure ended in 2016. He said career officers vacate their tenure offices and revert back to their former positions while their statutory allowances, as principal officer cease, as the allowances are attached to their offices and not, the officers. He said those who are not principal officers retire on their extant salaries and not that of principal officer. Thus, ended the XX by the 2^nd defendant and, the XX moved to the claimant’s learned counsel.

Under XX by the claimant’s learned counsel, DW1 said the Director of School Services is also tenure and that; it might be extended due to shortage of staff. DW1 agreed that, by Exhibit C1, the claimant was appointed substantive DWS and that it was not tenure. DW1 said he did not know whether there was advert in 1995 but the Council has a four-year tenure. He said he did not know if the DWS is on GL 14. He maintained that the DWS is by appointment and not, by promotion or conversion. DW1 gave examples of people who held principal offices and went back to their previous positions. The XX was brought to an end without re-examination, while the case was adjourned for continuation.

It came up next Mar 29, 2023 and 2^nd defendant fielded Oliver Nnenaya as DW2. DW2 adopted his WSO made 26/02/2021 and tendered Exhibits D6 to D12 and was submitted for XX. Under XX by the learned claimant’s counsel, DW2 admitted that the Director of School is tenure. He said the DWS is not by promotion but by appointment but Chief Engineer is by promotion. DW2 admitted that; there was an advert before the claimant was made the DWS but that; he had not seen and could not provide it. He said he did not know whether Mr Mike Ezeh retired as Bursar. He said if Mr Mike Ezeh is receiving his pension, his file couldn’t be in the IMT. To the question that Exhibit C2 did not mention that the claimant was relieved of his position because, his tenure had lapsed, DW2 said that was the directive of the Council. He said he did not know the meaning of tenure and the XX was brought to an end without re-examination, while the case was adjourned for adoption of Final Written Addresses [FWAs].

It came up next May 23, 2024 for adoption and DR G.O. OMEH of counsel to the 1^st defendant adopted the 1^st defendant’s FWA after oral regularisation and adumbrated that, the only issue is, identifying the distinction between appointive position and, position attained by promotion for the purposes of computing terminal benefits and referred to paras 21-22 of the FWA on employment with statutory flavour. Thereafter, the learned DIRECTOR OF CIVIL LITIGATION, MINISTRY OF JUSTICE [DCL], ENUGU STATE, learned UZOAMAKA OKEJI of counsel to the 2^nd defendant adopted her FWA and urged the Court to dismiss the case. Thereafter, the learned PROF Z. CHUKWUEMEKA ANYOGU, of counsel to the claimant adopted the claimant’s FWA and pointed to an error on p. 6 of the FWA that, the correct thing is Revised Law of Enugu State, which the Court noted. The learned counsel thereafter adopted the FWA. In adumbration, the learned Prof said the real issue is whether the claimant’s appointment as DWS is substantive or tenured and that; since all the documents that relieved the claimant of his position never mentioned tenure, the appointment was substantive and referred to Exhibit C5. The learned counsel thereafter urged the Court to grant the reliefs claimed.

The case was thereafter adjourned to Jul 10, 2024 for judgment. But it was not ready on this date and was for that reason; adjourned sine die and, when it was ready, date was communicated to the learned counsel to the parties. Being that as the case, the next thing is, summary of the FWAs.

SUMMARY OF THE FINAL WRITTEN ADDRESSES

A: 2^nd Defendant’s Final Written Address

Learned UZOAMAKA OKEJI, DIRECTOR OF CIVIL LITIGATION [DCL] franked the 2^nd defendant’s FWA. The learned DCL submitted a lone issue: “Whether the 2^nd defendant has placed a succinct argument enough before this Honourable Court entitling him to judgment in this case.” [Sic] The learned DCL argued that the office of DWS was originally not part of the principal offices of the IMT as attested by S. 23 of the IMT Law and that; this only came about in 1998 when the Council so included it. Learned counsel also referred to Exhibit D6. Learned counsel cited SS. 4(2) 13, 19(1)&(2) of the IMT Law to the effect that; the Council has the power to issue policy for the IMT. The learned counsel argued that the claimant blew hot and cold on the issue of the status of his appointment as DWS by admitting the position was added to principal cadre and later, maintaining that, he was demoted from it and cited S. 7 of the IMT Law. Learned DCR referred to the claimant’s testimony under XX and para 7 of the WSO. The learned counsel cited Yakubu v. Jauroyel & Ors (2004) LPELR-22732 (SC) on blowing hot and cold and contradictory pieces of evidence.

Learned counsel gave further examples of contradiction in the CW1’s evidence on the issue of the status of his appointment as DWS. Thus ended the FWA with prayer to the Court to dismiss the case with cost. I move to the 1^st defendant’s FWA.

B: 1^st Defendant’s Final Written Address

Learned DR. G.O. OMEH franked the 1^st defendant’s FWA and submitted two issues for the Court:

1. Whether the claimant is entitled to the reliefs sought notwithstanding the avalanche of evidence pointing to the direction that the Claimant’s appointment as Director of Works and Services was tenured, and that the enhanced salary and allowances and other perquisites of office enjoyed by him were attached to the particular office of Director of Works and Services and not personal to the occupier?

2. Whether the appointment of the Claimant as Director of Works and Services by the 1^st Defendant has statutory flavour. [Sic]

Arguing issue 1, the learned counsel submitted that the terms of contracts must not only be pleaded but must also be proved and cited Amodu v. Kwara State College of Technology (1990) 5 NWLR (Pt. 356) 21 and that, the claimant did not lay claim to any term or condition of service, which supported his position in the instant case that; his appointment had statutory flavour. The learned counsel argued that the “prevailing government establishment circulars for officers of your cadre” that appeared in the claimant’s appointment letter incorporates Council decisions. The learned counsel submitted that, there is an implied tenure before the inclusion of DWS in the principal cadre because, similar cadres were tenured and cited the allusion to the appointment of the claimant to acting capacity, pending the re-advertisement of the substantive position as contained in the conversion letter. The learned counsel argued that the fact that the claimant was not promoted but advertised before the appointment proved that, the position could be outsourced.

The learned counsel argued that, appointment positions are not pensionable and that, the document referred to in para 9 of the claimant’s FWSO regarding the pension of Mr. Eze is misleading, as it shows that the Mr Eze served in both federal and state services and that; Mr Eze spent 18 years as bursar and retired as bursar, unlike the claimant, who started as lecturer and transformed by appointment to DWS at the point when the DWS had become tenured. The learned counsel referred to para 30, p. 10 of the minutes of meeting of the Council, which showed that the position of DWS was advertised in 1995 and p. 11, para 20, which also showed that the tenure of Deputy Rector, a principal position like DWS, had expired and, a replacement appointed. The learned counsel urged the Court to resolve the issue against the claimant and moved to issue 2.

Under issue 2, on statutory flavour, the learned counsel referred to paras 14 of the SF and WSO where the claimant pleaded statutory flavour. The learned counsel cited Fakuade v. OAU Teaching Hospital Mgt. Board (1993) 5 NWLR (Pt. 291) 47 and Imoloame v. WAEC to the effect that, the mere fact that an employment was by a public body does not confer it with statutory flavour but only the contract of employment could prove this. Thus, the learned counsel ended issue 2 and the FWA, by urging the Court to dismiss the suit with cost and grant the CC. I now move to the claimant’s FWA.

C: Claimant’s Final Written Address

Learned PROF. Z. CHUKWUEMEKA ANYOGU franked the claimant’s FWA and submitted two issues:

(i) Are the defendants (particularly the first defendant) legally entitled to remove the claimant as the Director of Works Services by the letter of the 1^st July 2016 without fair hearing or hearing at all?

(ii) Has the claimant established his claim and therefore entitled to the reliefs claimed or any such reliefs. [Sic]

Arguing issue 1, the learned Prof of law, submitted that by virtue of SS. 10 of the IMT Law and 210 of the Constitution, the claimant, having been employed by the IMT, is entitled to pension as a public servant, which pension cannot be withheld. The learned counsel submitted that, by these facts, the claimant’s employment had statutory flavour. The learned counsel cited Oloruntoba-Oju & Ors v. Abdul-Raheem & Ors (2009) 13 NWLR (Pt. 1157) 83 and a host of other cases. The learned counsel argued that, the claimant’s case was that his appointment as DWS was in the normal progression of his career.

The learned counsel submitted that the defendants’ emphases on the second para of Exhibit C1 seemed to suggest that the appointment is tenured but that this is not so because, no law or instrument was cited to back up the claim and that, this para shows that, there is a prior condition that could be altered. The learned counsel submitted that the learned DCL’s argument at p. 16, para 3 of her FWA that the 1998 cooption of the DWS to principal officers was an internal arrangement until 2016, when the Governor’s approval was sought to regularise it, as such, supports the claimant that, the DWS was a career post and not tenured, which was why Exhibit C2 was not specific as to whether the appointment was tenured and, why the issue of tenure was never raised in Exhibit D6. The learned counsel argued that, when the defence witnesses were asked concerning the contents of the advert of 1995 they referred to; they said they did not know. The learned counsel also argued that, this is more perplexing in that, the letter relieving the claimant of his position [Exhibit C2], never mentioned expiry of tenure as the reason for the action and that; this is corroborated in paras 12 of the SF and 16 of the ASD, as expiry of tenure was not mentioned too. The learned counsel cited CBN v. Dinnah (2021) 15 NWLR (Pt. 1798) 91 SC and other cases.

The learned counsel submitted that, all the officers that the defendants said were relieved after their tenure lapsed and, who returned to their previous positions, none was fielded to testify, even though, still in the IMT’s service, whereas the claimant tendered CTC of the former bursar’s [Exhibit C5] retirement benefits, which supports his case. The learned counsel argued that, the reason for strict protection of the rights of employees, whose employments enjoy statutory flavour is for security of tenure and cited Comptroller General of Customs & Ors v. Gusau (2017) 18 NWLR (Pt. 1598) 353. The learned counsel argued that S. 29 of the IMT Law specified the grounds on which the claimant could be removed from office and that, none was met in his removal and that; Cap 29 did not mention DWS as one of the tenured offices in the IMT and as such, the expressio unius rule applies and cited Jegede v. INEC (2021) 14 NWLR (Pt. 1797) 409 SC. The learned counsel submitted that the claimant was removed in total breach of the rules of natural justice. On the basis of the foregoing, the Court is called upon to answer issue 1 in the claimant’s favour. Thereafter, the learned counsel moved to issue 2.

Under issue 2, on, if the claimant had established his claims, the learned counsel submitted that S. 29 of the IMT Law governs the claimant’s appointment and made his tenure until retirement and no such, circumstances arose when the claimant was abruptly removed. The learned counsel argued that the minutes of the defendant’s meetings do not qualify as public document by reason of S. 17(2)(3)&(4) of the IMT Law and that; the 1^st defendant’s attempts to distinguish the retirement of Mr Ezeh as bursar is not genuine and that; the citation of the removal of a Deputy Director is inappropriate because, S. 21 of the IMT Law made his tenure three years without the right of renewal. The learned counsel argued that the attention drawn to inconsistency in the claimant’s testimony is not correct because, his evidence was consistent. On this basis, the learned counsel urged the Court to find on this issue for the claimant. Thus ended the FWA with a call on the Court to grant all the reliefs claimed and dismiss the CC. That being the end of summary of the FWAs, I move to give my decision.

But before then, I wish to say; I have carefully read all the germane processes and listened to the testimonies of the witnesses in court, as my summaries above indicate. I have also done more research on authorities to enable me give a good decision while I have taken advantages of listening to the witnesses live and noted their demeanours. I note too that I did not summarise the WSOs of the witnesses, but nonetheless, I have carefully read them and will refer to them in the course of this judgment as occasions warrant. I did not summarise them because they were repetitious of the pleadings, which I have earlier summarised above.

COURT’S DECISION AND THE REASONS FOR THE DECISION

I have carefully read all the issues formulated by the three parties to the suit and found that they are all either verbose or off targets. I will fuse all of them together into just two terse issues:

1. Was the claimant unlawfully demoted with reduction in salary?

2. If yes, is the claimant entitled to the reliefs claimed?

I start with issue 1. The claimant’s learned Prof of Law cited SS. 10 & 29 of the IMT Law as governing the claimant’s appointment and that; by these sections; his appointment is not tenured but, a career permanent appointment till retirement and that, by these too, his appointment has statutory flavour. The claimant tendered various exhibits of which Exhibits C1, C2 & C5 are very germane. Exhibit D7 tendered by the defendants is also very germane to the claimant’s case. And the claimant’s learned Prof of Law submitted in his FWA that, by these, it is clear the claimant’s appointment as DWS was not tenured but rather, a career position and that, someone else, who had held similar principal office of Bursar, as the claimant, at retirement, had his pension calculated on his last salary in the principal office of Bursar.

Let me say at the outset about a serious misconception from both 1^st & 2^nd defendants. That an office is appointive and not attained by promotion does not make it tenured. What makes an office tenured is the conditions of service or terms of the appointment that say so clearly and unambiguously. And this is usually clearly stated in the instrument of appointment or the enabling statute or the conditions of service. There is also the misconception about the meaning of “substantive” relative to “tenured appointive position” and “career position”. The term “substantive” only means non-acting position and relates normally to career promotive positions when someone, though not yet fully qualified experience-wise, is being tested in consideration for appointment into the substantive position, and therefore made to act the very higher position he is being considered for.

It is usually resorted to when there is dearth of qualified personnel for the substantive promotive position and the next in rank to the substantive promotive position is made to act in that higher next rank or position for which s/he is not immediately qualified experience-wise but with the requisite degree, to assess his capability to be effective and efficient, if his promotion is accelerated to the substantive position and he is thereby saddled with the more onerous duties before the normal time.

For example, there might be someone on GL 16, and not yet ripe experience-wise for promotion to the position of substantive Director on GL 17, but when there is dearth of qualified personnel, he might be made to act in that position to test his viability, despite the non-qualification by the normal length of experience, and if found competent, s/he is so upgraded to the substantive post of Director on GL 17. That exactly was what happened in the claimant’s case when Exhibit D7 is carefully perused.

And besides, that a person is appointed straight to the top from outside or from the private sector does not mean the position is tenured, as all positions, career positions or tenured appointive positions, are appointive at the start. All career positions are therefore appointive at a point for every person before promotions come in and, a person could be appointed straight from the outside or private practice to the pinnacle of a career cadre, like Director on GL 17 in the public service, if he meets the criteria outlined and that does not make the office tenured.

The claimant has said in paras 2, 10 & 14 of the SF that, his appointment had statutory flavour by dint of the IMT Law and, his learned Prof of Law cited SS. 10 & 29 of the IMT Law while the claimant tendered his instrument of appointment as DWS [Exhibit C1]. And I have checked these provisions and Exhibit C1, and I found that truly, they gave the appointment statutory flavour. Para 2 of the instrument of appointment subjects the appointment to the IMT Law, amongst others and, the IMT Law provides in its S. 10 that, service in the IMT is a pensionable appointment and, S. 29-30 of the IMT Law provides for the mode of exercising disciplinary control over the claimant. In effect, the claimant has proved what he pleaded.

Employment law is strict about things like this. It construes doubts or ambiguities against the employer and in favour the employees. This is what is called contra proferentem rule[1]. And I cannot even find any ambiguity in the claimant’s instrument of appointment. The learned 1^st defendant’s Doctor of Law had argued about the claimant not pleading the alleged terms of his contract breached. What else could the claimant have pleaded, after pleading the IMT law and his instrument of appointment, which he said gave his employment statutory flavour, made his office permanent till retirement and, entitled him to pension and that, he was demoted without following the due process of law. The claimant having pleaded and proved what supports his case, it becomes the duty of the defendants, who placed contrary credence on the other alluded conditions of service in para 2 of the instrument that appointed the claimant to the office, to tender and show how these other instruments tenured the appointment, contrary to the claimant’s assertion, and that, they supersede the IMT Law. All the instruments they tendered did not support their case.

The 1^st defendant’s FWA argued in essence that, by the provisions of para 2 of Exhibit C1, the claimant’s appointment was impliedly tenured because of the references to prevailing government establishment circulars/IMT Conditions of Service, which the learned Dr. of Law submitted, included all policies made by the IMT Council and therein and that; the real time practice as facilitated by the Council showed this to be so. The defendants for this tendered some exhibits, of which Exhibits D2, D3, D5, D11 & D12 are germane. The essence of the 2^nd defendant’s FWA, as franked by the learned DCL is that, truly, the DWS was not a principal officer at inception but that, by internal arrangements, the IMT Council upgraded it to principal officer cadre in 1998 and, the Governor approved this in 2016 – paras 2.13-2.14 of the 2^nd defendant’s FWA. The 113^th IMT Council Meeting referred to, was held in 1998. The claimant was appointed DWS Sep 15, 1997 at the Sep 10, 1997 111^th Council Meeting, which was before the 113^th Council Meeting of Oct 28, 1998, more than a year after the claimant was appointed as DWS. By this, it shows that the position of DWS on GL 14/8 had been in existence before the 113^th Council Meeting of Oct 28, 1998, as a career promotive post, as claimant rightly claimed.

I found curious that both the learned DCL for the 2^nd defendant – p. 6 para 2.12 of the 2^nd defendant’s FWA – and the learned counsel for the 1^st defendant, attempted to muddle up these events in their separate FWAs by saying, it was the 113^th Meeting of Oct 28, 1998 that appointed the claimant DWS thus, that he was appointed a principal tenured officer [so called] from the start. Whatever that was supposed to achieve, has been shown to lack factual basis. In fact, a very careful reading of the pertinent portions of the proceedings of 113^th Meeting would show that, the basis of the claimant’s petition thereto is his prior appointment as DWS, which was the fulcrum for praying the Council for at par treatment with others on the same GL.

The main gist of the claimant’s case is as contained in paras 2, 5, 10 & 14 of the SF and by these, it is clear, the claimant built his case strictly on his appointment letter and the IMT Law and, during FWA, the claimant’s learned counsel cited SS. 10 & 29 of the IMT Law as supporting the claimant’s case that, his appointment had statutory flavour and that, he is entitled to pension. And like I said earlier on, I have checked and found that, the evidence and submissions in these regards are true and correct in law. You do not plead laws. You plead facts. The claimant pleaded and proved the relevant facts. Therefore, to convince the Court otherwise, that the others whom the defendants touted as having been reverted back to their previous positions in 2008 and 2016, merited the reversions, and thus, the claimant too, the defendants must show that their letters of appointment showed that their appointments were tenured for specific numbers of years or that, the IMT Law tenured their appointments.

Without these, they were possibly [possibly used advisedly], unlawfully reverted and the mere fact that they did not challenge their unlawful reversions has no bearings on the claimant, who has decided to challenge his unlawful reversion. SS. 7, 21(2) & 22(2) of the IMT Law clearly showed that tenured offices are held for shot periods of three years, by which the holders revert back to their previous positions and so, might not lose anything in terms of promotion in their original cadres from which they took up the tenure positions. And these sections did not contemplate the position of DWS. I found that the position of DWS was not listed amongst these and that, therefore, the learned Prof’s submission that the exclusio unius rule applies, is the correct position of law in this instance, and I so hold. Thus, for the IMT staffers on tenured appointments, they are in a form of secondment, at which end, they revert back to their career positions.

Besides, it appears that the tenure offices listed are limited to the academic cadre by virtue of the combined effects of SS. 7, 21(2) & 22(2) of the IMT Law. This might have been informed by the fact that academic positions, are not strictly based on seniority by number of years served but majorly on the publication of quality researches and minimal length of teaching services, which could possibly continue partially while on secondment because, the students who are the place of work of the lecturers, go and come and would always, at the point of studentship, remain junior or subservient to the lecturers whereas, administrative and technical cadres are based on some form of strict seniority and number of years served and once such officers go on secondment, others are promoted and others take over their positions attained by seniority and length of years and, when they come back from secondment to their previous ranks, they might not find duty-posts to fix in or they come to serve under their juniors.

Another thing that supports my view above is that, professorial or Chief Lecturer position is personal to the owner and s/he does not lose it by taking up appointive tenured position so far, s/he keeps green with the minimal publications. S/he carries the professorial or chief-lectureship chair with him/her wherever he goes or serves. But a technical or admin or account personnel loses the position of Chief Engineer or Deputy Bursar or Director of Admin or the likes, which s/he attained by promotion immediately he takes up an appointive position, as another staff immediately occupies the schedule of duties and hierarchical position of authority. That is why, perhaps in the federal public service, where directors are tenured; they retire compulsorily after serving their tenured terms of eight years – Dr. Oluwatoyin Smith v. Federal Civil Service Commission & Ors[2] and Alo Williams Nwankwu v. Head of Service of the Federation & Ors[3] on the nature of tenured directorship at the federal civil service. That appears to be the only way to avoid the problems of reabsorption into the hierarchical structures in going back to serve under their juniors and fixing schedule of duties.

So admin officers or technical officers on secondment cannot usually come back to be chief engineers or deputy bursars or directors of admin, as the position would have been filled up during their secondments, which perhaps, explains the reason, it has not been easy for the 1^st defendant to name specifically, the position and schedule of duties and under whose supervision to which the claimant was reverted – Exhibit D5, shows that the 1^st defendant is finding it difficult to fix the claimant into an exact position in the technical or engineering lower cadre to which he was illegally redeployed. Exhibit D5, the Council’s admission of difficulty in fixing the claimant to an exact position as a result of the redeployment, was dated Nov 25, 2016 and addressed to the Registrar/Sec. to Council. And this was more than three months after the claimant was demoted back to the rank of Chief Engineer Jul 01, 2016, the position from which he was appointed approximately 19 years ago as DWS. The memo says:

“The Governing Council of the Institute at its 192^nd (regular) meeting held on 23^rd November, 2016 noted that the former Director of Works and Services, Engr. L.E. Mmamel has not been deployed to any area in the Works Department since he was reverted to the rank of Chief Engineer.

The Council, therefore, directed you, to re-deploy, Engr. L.E. Mmamel, accordingly.

Thank you.”

The reality of the impracticality of the downgrading and that it has become a sort of depressing punishment and harrowing experience stare us in the face. Such was the difficulty in fixing the claimant back into the career engineering cadre that it took the intervention of the Council and even at that, the Council could not still resolve the problem, as it merely danced round it by blankly directing the Registrar, who was there with Council at the very meeting, as the Council’s Secretary, to perform the magic of fixing the claimant up, instead of asking the Registrar for his opinion and resolving the matter there and then, and then, directing the Registrar specifically, on exactly where to fix the claimant, which it had earlier failed to do in the instrument of demotion and redeployment because of the problems identified above.

This might not augur well for sustainable and harmonious industrial relations and good workplace relationship. In addition, hardly do you ever find appointed as Rectors and Deputy Rectors, persons who have not reached the pinnacles of their academic careers so that, by the time they are reverted, they lose nothing at all. They go back to teaching as professors or Chief Lecturers and continue to earn their exalted professorial or chief lecturers’ salaries and allowances. This further explains why it is easy to tenure lectureship appointive positions within the IMT.

While the NIC is not saying that the IMT cannot make any office in the admin, technical or any department tenure, what the NIC says emphatically as law is that, this policy must be contained in a lawful instrument and, must be expressly made part of the contract at the inception with the tenure clearly stated in the instrument of appointment to escape being damnified. The reason being that, this would allow the prospective gunners for such appointive tenured positions to reflect on the consequences of their career choices and plan ahead and not to be suddenly thrown to the middle of the sea without foreknowledge, which would amount to bad faith on the part of the employer. The Court would definitely not allow a unilateral alteration of a contract of employment to take retroactive effects after the employee had acted on it to his detriment. Such unconscionable conduct is breach of good faith in contracts and, would amount to a fantastical example of unfair labour practices forbidden by S. 254C-(1)(f) of the Constitution and SS. 13&15 of the National Industrial Court Act [NICA].

In any case, no document had been tendered to show that the position of DWS was tenured at any time, even up till now and, the claimant has shown clearly that his position as DWS, though, that of a principal officer, is nonetheless not tenured. It is totally unreasonable to have allowed a person to serve in an office for 18+ solid years on the basis that it is not tenured and suddenly, reverted back after approximately the 19^th year, to tenure and now made the claimant to be floating about without office or schedule of duties or to be made to go and serve under his junior! For all intents and purposes, it is clear that when the claimant was appointed DWS in 1997, the position was not that of a principal officer so-called or tenured, though the pinnacle of the pupil engineer cadre and, the first time the idea of principal officer or tenure came up was in 1998, and even at that, the position was yet not tenured – Exhibit C6; para 5 of Exhibit D6, p. 9-11 ending at Decision (i)-(ii) and, Exhibit D7. None mentioned the issue of tenure.

All that happened was that the position was added to the category of principal officers without the Governor’s approval, as it would seem to be. Even up till now, the defendants have not produced an iota of evidence that the position of DWS is tenured or that the Governor has approved the tenuring in line with the learned DCL’s assertion that the Governor’s approval is sacrosanct – p. 6, para 2.14 of the 1^st defendant’s FWA. Such an important issue is being treated with levity and the learned counsel to the 1^st defendant is touting implied tenure. That a person holds a principal office at the IMT is not synonymous with his appointment or position being tenured.

The two terms – “principal office” and “tenure" – are not the same and upgrade to principal officer or office or position does not automatically translate to tenured office. We should know that the IMT Law did not at any point use the term principal officer. Since no law says the DWS office was tenured and, the appointment letter did not say so too, and no instrument has said so till now, even the touted Governor’s approval is not tendered, S. 10 and 29-30 of the IMT Law must take full effect. And I want to say in passing that, even if such instrument were to be produced, its legality would be seriously doubtful in the faces of SS. 10 & 29-30 of the IMT Law. It would appear that anything short of amendment of the IMT Law to directly and specifically incorporate the DWS as tenured, as done for the others, or to give the Council or the Governor the right to do so, might be a mirage for being in conflict with the IMT Law, a substantive statute that cannot be varied by subsidiary legislation – NUEE & Anor v. BPE [2010) LPELR-1966 (SC), 32-42, D-F. See also Adisa v. Oyinwola & Ors (2000) LPELR-186 (SC) 29-30, B-E.

The IMT Law, being the Constitution for the IMT, could only be overridden by any subsidiary legislation in accordance with its tenor and not otherwise. Yes, the idea that the Council is imbued with power to formulate policies for the IMT is true and necessary to meet the exigencies of changing conditions and economy of service, but this power does not extend to formulating policies that would override the positive specific provisions of the IMT Law without showing the licence for such overriding Council’s power within the IMT Law itself. It does not also extend to whimsical retroactive alteration of a contract that had been in operation for long and on which basis the claimant-employee had acquired legitimate expectation of his pension rights being based on his salary as DWS.

I therefore find that the claimant’s appointment as DWS has statutory flavour and that; his appointment was pensionable by virtue of the combined effects of SS. 10 & 29-30 of the IMT Law. Assuming without conceding that my foregoing reasoning is incorrect, estoppel by conduct applies here – S. 169 of the Evidence Act and SS. 13&15 of the NICA and, S. 254C-(1)(f) of the Constitution. You cannot just wake up in the middle of an employment relationship and shift the goalpost, and worse still, make it have retroactive effect. It is forbidden in the configuration of modern employment relations jurisprudence – B.V. Advocaten, “Can you change an employment contract unilaterally[4]”; Brent Barnard, “Fairness and Unilateral Change of Employment Conditions[5]” and, Elekwa Amah Elizabeth v. Alex Ekwueme Federal University & Ors[6].

This is even an appropriate situation where the doctrine of waiver is fully applicable, assuming without conceding that, the appointment was by some magic tenured. Hear how the Supreme Court applied the doctrine of waiver in Bakare v. Lagos State Civil Service Commission & Anor (1992) LPELR-711 (SC) 95, C-D that:

“The main point raised by this issue is whether at the stage, some three years after the offence of absence from duty without leave or permission was committed, the respondents could go back and rely on Regulation 51 and Rule 04502. In my opinion any right they might have had to resort to them and dismiss the appellant had been waived. Waiver is an abandonment of a right, and is either express or implied from conduct. A right that has been waived is as good as lost in that once the other side acts upon the waiver, the party waiving his right can no longer go back on the waiver and act as if it was never waived. He must accept the legal relations between the parties subject to the qualification which he himself has introduced.”

By the above canonical decree from the Oracle itself, the defendants could not have woken up from their 18+ years slumber to revert back to an injurious position that would make the claimant serve under his juniors and at a reduced salary and consequential reduction in his pension entitlement. This situation is accurately forbidden by S. 169 of the Evidence Act by dint of the doctrine of estoppel by conduct. They cannot turn round to deny the consequences of a situation they knowingly and deliberately created and which the claimant had taken as the true state of the employment relations and acted upon to his detriment. Equity and SS. 13&15 of the NICA would not permit that type of doublespeak and, S. 169 of the Evidence Act also forbids it. This is encapsulated as estoppel by conduct – Nsirim v. Nsirim (2002) LPELR-8060 (SC) 20, A-C.

The defendants therefore cannot take advantage of the illegal demotion of the claimant to argue that the claimant did not retire as DWS but as Chief Engineer. This argument from the learned Dr. of Law, with the utmost respect, is patently wrong. To allow such cruel effect of the illegal demotion is to allow the defendants to take undue advantage of their wrongdoing. Equity and SS. 13&15 of the NICA and, S. 254C-(1)(f) of the Constitution would not allow such cruelty to stand in the modern firmament of industrial relations in Nigeria. That there is only one DWS at a time, as contended by the learned DCL, does not make the position of DWS tenure-appointive.

The usual thing is that a Director rank is the pinnacle of career cadre attained by promotion in the public service and, only one person at a time is promotable to the post in a department. If the claimant originally applied for DWS in reaction to the advert of 1995 and he was given the lower position of Chief Engineer and asked to be acting the immediately higher position of DWS as well, is it not clear that the claimant was right that the DWS was purely a career promotive position attained by promotion and not a tenured position attained only by appointment? The claimant is perfectly correct. Though, I take judicial notice that director in the federal public service is tenured, but it is still attained by promotion while the defendants herein has not been able to prove that DWS, as a director, is appointive and tenured in the IMT.

Had it been a tenured appointive position, it would not have been possible to give a lower rank to the claimant and ask him to be acting a supposedly pure tenured appointive office. An appointive position is normally a take-or-leave affair. It is either you are found appointable and appointed or you are found unqualified and rejected straight away. It is usually a career position that is attained by promotion that one that is next to the rank in view but slightly unqualified usually by reason of limited experience but not educational-wise could be asked to be acting the immediately higher rank with a view for eventual confirmation to the substantive position. One is not confirmed in a purely appointive tenured position. Exhibit D7, by which the claimant’s petition and that of another person for the confirmation of their acting positions was reviewed by the Rector, confirmed the truism of my reasoning above. It says Engr. L E Mmamel [the claimant] and one R O Ugbor applied for confirmation of their acting positions and upliftment to substantive ranks and then, recommended to Chairman of Council thus:

“Barring all minimal and tolerable human errors, the Ag Bursar Mr R O Ugbor and the Ag. Director of Works Services Engr L E Mmamel have performed creditably well…

Thus, I strongly recommend them for confirmation and upliftment to the substantive ranks of Bursar and Director of Works Services as appropriate.”

It is clear that Exhibit D7 above is what the 1^st defendant’s Council reacted to in issuing Exhibit C1 and not any advert. It is clear too that the claimant was not appointed DWS via advert but purely by confirmation of appointment reserved for only career positions. This shows clearly that the position of DWS was not tenured appointive position. In any case, the mere fact that a position was advertised does not ipso facto make it tenured. Career promotive positions are often advertised where there is dearth of qualified personnel. It is the instrument of appointment that shows whether an appointment is tenured or not. Appointive tenured position needs no confirmation because, only persons found fully qualified immediately are so appointed.

Besides, I truly found remarkable that the 2^nd defendant’s erudite counsel, the learned DCL, at para 2.12-2.14 p. 6 of the 2^nd defendant’s FWA stated clearly that, after the 1998 113^th Meeting of the IMT Council, the internal arrangement was arrived at to make the DWS principal officer but that, the Governor only approved this in 2016. I found Exhibit C9 corroborated this in a way, though, written way back in 2008. I found that on the basis of Exhibit C6, the former Bursar was in Jul 21, 2008 given the treatment meted out to the claimant eight years later in 2016.

The 2008 testrun, therefore, sets the foundation by flying the kite, which went into a lull immediately thereafter but revived with virulence in 2016 when it went amok because, the Governor so ordered. It definitely means that the forcible demotions are not the IMT Council’s idea but rather that of an external force, the Governor, who externally dictated this and for which, the Governing Council abandoned their legal duty, to implement without compunction. The law is that admission of counsel binds their clients – Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822 (SC) 21, A-D. This admission binds the two defendants, having been made by the learned AG Enugu State, through his learned DCL because, it shows that the 1^st defendant is de facto not independent - Akingade v. The State (2015) LPELR-25850 (CA) 25-26, E-A on the relevance of lifting the veil of incorporation.

And one thing is that, I cannot find that the Governor has more functions than those spelt out in the IMT Law. I cannot find too that, the Council has the power to override the IMT Law to create principal officers and tenure their appointments against SS. 10 & 29-30 of the IMT Law and more importantly so, when a contract was signed and became operative and had been so operated for 18+ years, and the IMT Law has clearly spelt out those whose positions were tenured, which did not include the DWS, the 1^st defendant’s Council could not just wake up one day and unilaterally alter the contract to the detriment of the employee – B.V. Advocaten [supra]; Brent Barnard [supra] and, Elekwa Amah Elizabeth v. Alex Ekwueme Federal University & Ors [supra]. It is the defendants’ duty to show the circular/instrument that tenured the claimant’s appointment as DWS and, they failed in this.

And by virtue of SS. 10 & 29-30 of the IMT Law, all others non-listed amongst the tenured offices, whether principal or non-principal officers, their services have statutory flavours and are pensionable and, they could only be removed from offices by compliance with S. 29-30 of the IMT Law. SS. 10 & 29-30 of the IMT Law, clearly incorporated by para 2 of the claimant’s appointment letter [Exhibit C1], clearly give the claimant’s office statutory flavours, contrary to the two defendants’ learned counsel’ contentions. And I so hold. And so, the defendants, especially the 1^st defendant, cannot whimsically remove the claimant from his office and demote him to the position he left 18+ years ago with reduced salary, with the set intention to deny him his rightful pension for no just cause and without hearing. That is clearly ultra vires its powers and clearly a travesty of the rules of natural justice, fair labour practices and also, a breach of good faith.

By Arts 8(2) & 12(2) of the ILO Convention No. 95 (the Protection of Wages Convention 1949) ratified by Nigeria Oct 10, 1960, which makes it enforceable in Nigeria by dint of S. 254C-(2) of the Constitution, it is forbidden to unilaterally reduce or withhold workers’/employees’ salaries/wages without prior negotiation with him. Withholding of salary is also regarded as violation of fundamental right to life, property and, the dignity of human person, as guaranteed by SS. 33, 34(a) & 44(1) of the Constitution – the Indian case of J. Aswartha Narayana v. The State of Ap[7] [delivered December 17, 2021] is pertinent in casu by virtue of S. 254C-(1)(f)-(i) of the Constitution and, Mr. Afamefuna Nwankwo v. Onitsha South Transport Company Ltd & Ors[8] p. 16-17.

It is the defendants’ duty to explain how and why Mr. Ezeh [Exhibit C5] had his pension based on his salary as Bursar, a supposedly principal office by the defendants’ standards, and why the claimant should not enjoy the same fate when the claimant’s position is admittedly that of a principal officer too. That would amount to discriminatory employment practice forbidden by S. 254C-(1)(f)-(h)&(2) of the Constitution, SS. 13&15 of the NICA; the ILO C111 – Discrimination (Employment and Occupation) Convention, 1958, which Nigeria ratified since Oct 02, 2002 and, which is fully enforceable in Nigeria by virtue of S. 254C-(2) of the Constitution.

The 2^nd defendant’s learned DCL’s admission that only in 2016 did the Governor approve the upgrade to principal officer, even though illegal, at which time the claimant had spent 18+ years as DWS, a position that, in the defendants’ language, had not been approved for upgrade to the principal officer, is in support of the claimant’s case. It means the touted upgrade that the IMT Council did in 1998 without the Governor’s illegal approval, was inchoate, assuming without conceding, that the Governor actually had the vires to give lawful approval. It is perhaps the reason that, no instrument till date, has informed the claimant that his appointment as DWS was tenured. And the defendants failed to show by which instrument or means the claimant, whose appointment was supposedly tenured-appointive for four years, was continually extended to make him spend 18+ years in office. This puts a lie to their contention.

And up till now the defendants have not tendered the instrument of the Governor’s alleged approval, which means up till now, the position remains as it used to be, not tenured, apart from the illegality of such approval, which is not sanctioned by any of the provisions of the IMT Law. If it is conceded that the Governor’s approval is necessary for the upgrade to principal officer, it means until the approval was obtained, the desire to upgrade the DWS remains a mere desire and the attempted upgrade remains inchoate. You cannot breach a fundamental term of a contract midway into its performance and worse still, make it to take effect retroactively, and expect to go scot-free, as I have shown earlier on. Be that as it may. Let me examine some collateral issues before I round up on issue 1.

The 1^st defendant pleaded incompetence of the action on two fronts. The first is that the initiation of the action violated the rules of this Court, which rules it did not state. The second is that the action is incompetent because, the 2^nd defendant is not a necessary party. I wonder why the 1^st defendant is crying more than the bereaved. Significant is that none of these issues was addressed in the 1^st defendant’s FWA. Both are therefore deemed abandoned and are accordingly liable to be struck out. But they are afflicted even with more potent diseases than abandonment, which go much to their merits. By virtue of Order 5 & Order 30, R 8 of the NIC Rules, they are deemed waived – Sulgrave Holdings Inc v. FGN & Ors (2012) LPELR-15520 (SC) 29, C-F. And besides the foregoing, by the 2^nd defendant’s learned counsel’s admission in casu, that the Governor was responsible for what happened, by approving the illegality, that brings the 2^nd defendant firmly into the canopy of the suit.

This is more so when the defendants’ DW2 testified that the pension files of the IMT’s staffers are not with the IMT thus, implying that the IMT is not responsible for her staff’s pension but the State Government. This additional admission against interest brings the 2^nd defendant more firmly into the picture. I therefore hold that the 2^nd defendant, the alter ego of the Governor and the State, is a necessary and proper party in the suit and he was accordingly, properly sued and joined as a party. It shows that the IMT is actually living in the shadow of the Governor and not the independent corporation that the law made it.

The learned 1^st defendant’s counsel has argued that the 1^st defendant is not a corporation but an institution created by law. This argument is trying to make a distinction between 2 X 2 and 2 + 2. S. 3(2) of the IMT Law specifically says the IMT is a “body corporate”: chapter closed. Thus, this is a proper situation to approve the lifting of the veil of incorporation, as already lifted by both the learned DCL to the 2^nd defendant and DW2. The lifting of the veil is accordingly approved. In any case, the claimant pleaded in his DCC that, while his salary is paid by the IMT, his pension is paid by the State and this is corroborated by DW2 thus, clearly articulating the nexus between the AG Enugu State and his case. The 2^nd defendant was therefore properly sued and joined as a party in this suit. Be that as it may, before I round up on issue 1, let me make three more comments.

The first is on Exhibit XXA tendered through the claimant under XX as showing that the IMT’s principal officers’ appointments are tenured. I found that clause 3.3 therein says the position of DWS, as advertised, is tenured for four years. First, let me observe that the date of the said publication was altered at the year. The date is Monday, July 4, 20… The last two figures to complete the year of the advert were tampered with by black handwritten alteration into 16 thus, becoming 2016. The 2016 was also written on top of the altered portion again. The alteration is a material issue, which goes into the weight to be attached to the exhibit because; the issue it sought to address is the date, which is the issue in dispute in the instant case. Though, this issue was not raised at XX but this does not preclude me from raising it at its discovery on a close examination of the exhibit during judgment writing. For this, the exhibit lacks probative value and it is accordingly discountenanced.

Assuming without conceding that my decision above is wrong, the exhibit still yet lacks value. It is a document made in anticipation of a suit by public officials that have interest in the outcome of the suit to protect their wrongdoings. So, it is worthless for that reason – Skye Bank Plc v. Perone Nigeria Ltd (2016) LPELR-41443 (CA) 50-53, F-E. And besides, since the learned DCL has pontifically admitted against the defendants’ interest that the Governor must approve upgrade of a position to principal officer, and there is no evidence of such approval tendered, the advert in issue, tending to make the position tenured, is inchoate and illegal. It is also dented by reasons of its illegality as both bill of attainder and ex post facto status.

The claimant was unlawfully removed from office Jul 01, 2016 and this advert, was published just three days later, Jul 04, 2016. It needs no efforts to discern that it was made to perfect the illegal removal of the claimant from office and this illegality becomes more profound, as I have explained earlier, bearing in mind that, there is no legal backing for it. In the third place, being post-dated to the accrual of the cause of action, it has no bearing on the cause of action, which had coalesced before its publication. It is a pure premeditated-afterthought – Smart v. The State (2016) LPELR-40728 (CS) 17, B-C on the nullity of afterthought.

The cause of action is that the claimant’s appointment as DWS is not tenured and yet, claimant was illegally removed before the end of his permanent appointment. To prove that it was tenured, the proof must predate the contract, at the least and not, post-date the illegal violation of the contract by the unlawful removal. So, the subsequent ex post facto inference the defendants wanted to place on the post-dated advert in Exhibit XXA is nonstarter. The exhibit is therefore doubly damnable and accordingly discountenanced as lacking probative value and also totally irrelevant to the case at hand. I move to the second comment before I round up on issue 1.

The 1^st defendant’s learned Doctor of Law had argued that the example of Mr Ezeh cited in Exhibit C5 in relation to payment of pension on the basis of the salary of a principal officer is distinguishable from the claimant’s case because, Mr Ezeh served at both the federal and IMT levels. That argument is, with the greatest respect to the learned Doctor of Law, totally off mark. The issue is whether Mr Ezeh’s salary as Bursar, a supposedly principal officer in the defendants’ language, was used at all in the computation of his pension. The answer is yes and, the learned Doctor of Law did not dispute this. So, of what relevance is the argument about the part-use of Mr Ezeh’s service with the FGN, as a quantum of his pension? It is totally of no use.

By reckoning with Mr Ezeh’s service with the FGN, the IMT in Exhibit C5 is simply saying, it would not be responsible for pension on services not rendered to it but to a third party. And that is the practice of pension calculation everywhere. So far the IMT reckons with the position of Mr Ezeh as its Bursar and used Mr Ezeh’s salary at the rank of Bursar in computing his service with it: that is what matters. The claimant did all his service with the IMT and rose to the position of DWS, and the IMT could not have used any other outside third-party parameter to calculate his pension. That argument is accordingly dismissed as lacking merits. I now move to the third and last comment before I round up on issue 1.

As a note of advice/warning to lawyers in this Court to wake up to the modern jurisprudence of labour law as ushered in by the Third Alteration Act, I will say the strict reliance on technicalities and common law principles have been radically reformed by the sheer force of the Third Alteration Act such that it would be a serious disservice to their clients not to familiarise themselves with this. As argued by the learned 1^st defendant’s counsel, it was the claimant’s entire duty to prove his unlawful dismissal. Even if permissible hitherto to override substantive justice, this can no longer be the law in the faces of SS. 12(2)(b), 13-15 of the NICA; S. 254C-(1)(f)-(h)&(2) of the Constitution, ILO C158 and, Adegboyu v. UBA[9], all which stressed that this Court is not strictly bound by the Evidence Act or strict fidelity to the common law but by substantial justice of the cases, equity and fair labour practices. S. 254C-(1)(f)&(h)&(2) of the Constitution makes the observance of fair labour practices and international best practices the hallmarks of adjudication in the NIC.

In virtue of this, the NIC is obliged to apply international best practices in the resolution of cases brought before it and international labour standards, which are contained in ILO treaties or conventions and other instruments and by these, the NIC can apply the labour standards contained in these treaties, whether ratified or not, as veritable examples of international best practices, to expatiate issues brought before it and this practice is not limited to Nigeria. It is a general practice applicable to labour courts around the world. For example, the ILO reported[10] that the Industrial Court of the Republic of Botswana in Mapho C. Ganelang v. Tyre World Ltd, despite the fact that Botswana had not ratified ILO C158 – Termination of Employment Convention, applied it thus:

“I am also of the firm view that the Respondent’s actions, in casu, fell foul of international labour standards in labour law. The Termination of Employment Convention No. 158 of 1982 ‘(C158)’ is in point. Under its equitable jurisdiction this Court can bring the principles of Convention C158 to bear in this case. This the Court can do because the Court of Appeal has held that this Court may, under its equitable jurisdiction apply international labour standards to assist it reach a proper determination of issues it is called upon to determine.”

The NIC has expectedly taken the same position as its sister, Industrial Court of Botswana, as it too, like all labour courts around the world, has equitable jurisdiction granted by SS. 254C-(1)(f) of the Constitution and 12-15 of the NICA. Let me cite just one example of how the NIC applied the same ILO C158, which Nigeria has also not ratified. In Shell Petroleum Development Company of Nigeria Ltd v. The Minister of Petroleum Resources & Ors[11], His Lordship, Kanyip, HPNICN, quoted the authority of Arturo S. Bronstein[12], a highly qualified publicist, to utilize the ILO C158, a Convention, Nigeria, like Botswana, has also not ratified:

“Nigeria may not have ratified the International Labour Organisation (ILO) Termination of Employment Convention, 1982 (No. 158), the Convention that promotes security of employment globally. And I must acknowledge that ILO standards, that is, Conventions, Recommendations and Codes of Practice, whether ratified or not, ‘not only reflect a certain universal wisdom, they also enjoy a social legitimacy that would seem hard to challenge”

The labour standards in these unratified conventions could also be utilised as general principles of international labour law or customary international labour law by virtue of Art 38(1)(c) of the ICJ Statute, once the benchmark of 15 years of general universal application is met; and the ILO C158, which came into being in 1982, has far surpassed the benchmark, having been consistently and universally applied across the world for the past 42 years. Arts 4 & 7 of ILO C158 are impactful here. They jointly insist that an employment can only be terminated for a valid reason and that; this is after the employee must have been heard before the discharge. Though, the claimant’s appointment was not terminated but what the defendants did is similitude to constructive discharge, as the clamant was suddenly demoted without being fixed into any office and definitely to serve under his juniors without hearing so that he could be frustrated out of office. So these articles are applicable by analogy – Ganelang’s case [supra] on constructive discharge.

Art 9 of the ILO C158 says the court shall inquire into the circumstances surrounding the discharge and that; it is the employer’s duty to proof valid reason for the termination. This nullifies the common law in Nigeria that an employer can discharge without giving reason and that it is entirely the employee’s duty to plead the terms of his employment violated in the unlawful termination. Burden of proof has been inverted. In a nutshell, strict pleading of the terms breached is no longer sacrosanct. It is enough to plead in plain language the grievances. It becomes the employer’s duty to state what rules or law justifies his alleged wrongful/unlawful actions. That is the extant of international best practice relating to termination of employment in civilized nations around the world and by virtue of SS. 254C-(1)(f)&(h) of the Constitution and 13&15 of the NICA, they are applicable under the equitable, fair labour practices and international best practices jurisdiction of the NIC - Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) and Adegboyu v. UBA [supra], which both approved NIC’s jurisdiction to apply international best practices.

Thus, that is the modern jurisprudence in this area of the law in Nigeria, and I so hold. So, the sudden demotion of the claimant and reduction of his salary and the consequential intention to base his pension on the downgraded rank, which I considered as constructive discharge, is against the ILO C158 and the demotion, reduction in salary and the consequential effects on the pension are accordingly a nullity. That is all about issue 1. The issue is accordingly resolved in the claimant’s favour and against the defendants. I now examine the CC. I need not waste time on the so-called CC. It has no life of its own, as it is entirely dependent on the dismissal of this suit. This suit, having not been dismissed, the CC dies a natural death and, it is accordingly dismissed. I move to issue 2.

Issue 2 deals with the consideration of the reliefs. By virtue of my findings and holdings as reflected above, SS. 10 & 29-30 of the IMT Law; 210 & 254C-(1)(f)-(h) of the Constitution; 13-15 of the NICA, the claimant’s employment has statutory flavour and his employment is pensionable and, not tenured. He is therefore, entitled to his full salary as DWS, his pension on the basis of his salary as DWS and also, injunction against further payment of reduced salary to him on the wrong position and Grade Level of Chief Engineer and, also to the refund of all the arrears of the withheld portions of the DWS salaries to which he is entitled by law to date. The claimant is also eminently entitled to his pension being based on the position of DWS.

Consequently, I hereby grant reliefs (I), (II) & (III) as claimed in full. In line with Order 47, R 7 of the NIC Rules, I grant relief (IV) in full as claimed but add, placing further reliance on S. 14 of the NICA that, the 10% simple interest rate per annum shall also cover the cost to be granted. Cost follows events. I grant cost of N1Million [One Million Naira] only against the defendants in favour of the claimant. I took into consideration the extreme inflationary trends that have swept through the economy of this nation since the suit was filed six years ago in assessing the cost. The judgment takes immediate effect. That ends the reliefs granted. The case must therefore come to an end, having granted all the reliefs claimed in full and the other consequential reliefs added.

CONCLUSION

In reiterate that I granted all the reliefs claimed without exception in full and in addition, granted, cost of N1Million [One Million Naira] only and that, the decision takes effect immediately. I equally granted 10% simple interest per annum on the all the judgment sums granted from the date of this judgment until fully paid. In line with tradition, having reached the end of the decision, I, today, Tuesday Aug 20, 2024 and, under my very hand and signature, enter this decision.

……………………………….

HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

[1] Achkar Law, “Contra Proferentem in Ontario – Ambiguity in Employment Contracts” at https://www.achkarlaw.com [accessed Jun 15, 2022].

[2] Unreported NICN/ABJ/296/2013 – delivered Apr 15, 2016.

[3] Delivered May 21, 2024 at https://www.nicnadr.gov.ng/nicnweb/display2.php?id=8955 [accessed Aug 20, 2024].

[4] At https://www.primerus.com [accessed Dec. 5, 2021].

[5] At http://citeseerx.ist.psu.edu and [accessed Dec. 5, 2021].

[6] Unreported Suit No. NICN/ABK/02/2021 – delivered Dec 15, 2024.

[7] https://indiankanoon.org/doc/72602775/ [accessed Jul 8, 2024].

[8] At https://www.nicnadr.gov.ng/nicnweb/display2.php?id=9170 [accessed Aug 18, 2024].

[9] Suit No. CA/IL/2021 – delivered by the Ilorin Division, Court of Appeal Apr 14, 2022.

[10] Industrial Court of the Republic of Botswana, Mapho C. Ganelang v. Tyre World Ltd, Case No. IC 169/13 at https://compendium.itcilo.org/en/compendium-decisions//industrial-court-of-the-republic-of-botswana-mpho-c-ganelang--v-tyreworld-ltd--case-no-ic-169-13 [accessed Aug 8, 2024] p. 10-12.

[11] [Unreported NICN/LA/178/2002 delivered July 28, 2022] 30-31, para. 109-110, especially, para. 109.

[12] Arturo Bronstein– “The Role of the International Labour Office in the Framing of National Labour Law” [2005] 26 Comparative Labor Law & Policy Journal 339 at page 346”.

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