IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON WEDNESDAY 19TH DAY OF JUNE, 2019
BEFORE HIS LORDSHIP: HON. JUSTICE SINMISOLA ADENIYI
SUIT NO: NICN/KD/49/2017
BETWEEN:
ALH. MU’AZU ZAID ALIYU………………………CLAIMANT
AND
1. KADUNA STATE TRANSPORT
REGULATORY AUTHORITY (KADSTRA)
(Formally Kaduna State Transport Authority K.S.T.A)}
2. KADUNA STATE MIN. OF WORKS,
HOUSING AND TRANSPORT
3. GOVERNOR OF KADUNA STATE…………DEFENDANTS
J U D G E M E N T
The Claimant was the former Director of Administration of the 1st Defendant. The summary of his claim against the Defendants, from facts garnered from the processes filed to commence the instant action, is that sometime in 2006, the 1st Defendant offered him appointment; that he was subsequently promoted and rose through the ranks to the position of Director of Administration. The Claimant contended that his appointment was unlawfully terminated by the Defendants in April 2017; that he was not up to fifty – five (55) years when his appointment was terminated; and that the Defendants did not serve him with the six months’ retirement notice as required by the Kaduna State Transport Authority (Staff) Regulations, 1978 (the Regulations). The Claimant further contended that the ground for the termination of his appointment has no basis in the Regulations.
2. Being thereby aggrieved by the actions of the Defendants, the Claimant instituted the present action by Originating Summons filed in this Court on 05/10/2017, whereby he raised a sole issue for the determination of the Court, that is:
“Whether the letter of termination of appointment dated the 24th day of April, 2017 and signed by one Hon. Mohammed Bello Shuaibu could be said to be valid in view of the fact that there is no such recognizable ground (i.e. structural reorganization) contained in the letter of termination of appointment as required by the Kaduna State Transport Authority (Staff) Regulations, 1978.”
3. Upon the determination of the question set out in the foregoing, the Claimant thereby claimed against the Defendants the reliefs set out as follows:
1. A declaration that the letter of termination of appointment dated 24th day of April, 2017 is null and void as it was issued contrary to the conditions of service as contained in the Kaduna State Transport Authority (Staff) Regulations 1978 made pursuant to the Kaduna State Transport Authority Edict, 1978.
2. An Order setting aside the said letter of termination of appointment dated 24th day of April, 2017.
3. A Consequential Order reinstating the Claimant as a staff of Kaduna State Transport Authority (K.S.T.A) now Kaduna State Transport Regulatory Authority (KADSTRA) with the payment of all his outstanding salaries and entitlements till date.
4. The Defendants opposed the Summons by filing a Joint Counter - Affidavit on 01/03/2018, whereby they denied the entirety of the Claimant’s claim.
The Claimant thereafter filed a Further and Better Affidavit to the Defendants’ Counter - Affidavit and Reply on Points of Law in support of his claim on 08/02/2019.
5. In the meantime, the Defendants, on 07/02/2018, filed a Notice of Preliminary Objection to the present action by which they sought an order to strike out the suit in limine on the ground that the same is statute barred.
The Claimant, in turn, filed a Reply on Points of Law to the Defendants’ objection on 14/02/2018.
6. I had carefully considered the totality of the facts deposed to support the Defendants’ objection and the entirety of the written and oral arguments of learned counsel on both sides of the divide with respect to the objection.
The learned counsel for the Defendants, Halima Ladan Esq., had hinged her arguments principally on the ground that the limitation law, that is Section 2 (a) of the Public Officer’s Protection Law Cap 126 Laws of Kaduna State, caught up with the suit, in that the Claimant commenced the action after the time permitted for filing an action against the acts of a public officer complained of had lapsed. The Defendants’ counsel argued that, the Claimant’s cause of action as disclosed in the Affidavit in Support of Originating Summons, arose on 24/04/2017, the date the Claimant was served with his letter of termination of appointment.
Citing inter - alia the cases of Ibrahim Vs Judicial Service Committee [1998] 12 SCNJ 255 @ 272; Hassan Vs Aliyu [2010] All FWLR (Pt. 539) 1007; Jibo Vs Ministry of Education & Ors [2016] LPELR 40616 the Defendants’ learned counsel further submitted that where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Learned counsel submitted further that the action is statute barred having been instituted outside the three (3) months allowed by the POPL that is, from the date of the accrual of the cause of action. She finally urged the Court to dismiss same for want of jurisdiction.
7. The principles that guide the Court in determining whether an action is statute barred are well settled and well too known. These principles have also been adequately captured and canvassed by learned counsel on both sides in their respective written addresses. Without having to recapitulate these principles, it suffices to restate that the overriding factor or consideration is that the essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore, a cause of action is statute-barred if legal proceedings are not commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and thus could not give rise to a cause of action. See Yare Vs National Salaries, Wages and Income Commission [2013] LPELR 20520 (SC)
8. Now, I should remark that the authorities of Ibrahim Vs Judicial Service Committe (supra); Egbe Vs Adefarasin [1985] 1 NWLR (Pt 3) 549 relied upon by learned counsel for the Defendants to convince this Court that the Claimant is totally barred from proceedings against the Defendants who are public officers no longer represent the current or correct position of the law on the issue. This is in view of the more recent decision of the Apex Court in the case of National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors Vs Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt 1656) 247 at 270 which is applicable to the circumstances of the present case. The current position of the Apex Court per Ariwoola JSC at Page 271 is stated as follows:
“I have no slightest difficulty in holding that the Appellant are not covered by the provisions of the Public Officers Protection Act as to render the Respondents’ action statute barred. In sum, I hold that the learned Justices below are right in holding that the Appellants do not enjoy the umbrella of Public Officers’ Protection Law in the contract of service involving the Respondents…”
(Underlined portions for emphasis)
9. It is perhaps significant to state that by reviewing the previous position of law as it relates to the application of the POPA (and by implication, the POPL), it is the view of this Court that, it is in order to prevent the untold hardship inherent in the application of the POPA that precipitated the current position that the POPA does not apply to or does not provide a shield for public officers and/or institutions from liability for their acts.
Therefore, being the most recent decision of the Apex Court on the application of the POPA to employment contracts, the contention by learned counsel for the Defendants that the Claimant’s suit is incompetent on the ground that it is statute barred no longer represent the correct legal position. I so hold.
Without any further ado, the result is that, the Defendants’ preliminary objection although well taken, is unsustainable.
Accordingly, I hereby overrule the objection and the same is hereby accordingly dismissed.
10. I now proceed to determine the main action. In proceeding to determine this suit, l should say that l have had a good privilege of the written and oral submissions of the respective learned counsel for the contending sides which was argued on 22/03/2019. I shall endeavor to make reference to their submissions as l deem necessary in the course of this judgement.
By my understanding of the totality of the case of the Claimant and the defence put forward by the Defendants in their Counter Affidavit, it seems to me that the basic, essential and relevant facts upon which the Claimant has predicated his claim, and which are largely conceded by the Defendants, could be enumerated as follows:
1. That there existed an employer - employee relationship between the Claimant and the 1st Defendant, whereby the Claimant was offered a provisional appointment on 31st January, 2006.
2. That he was later offered a permanent appointment by the 1st Defendant on 24th November, 2006.
3. That he was promoted and rose through the ranks to the position of the Director of Administration on 1st January, 2010.
4. That he was served with a letter of termination of appointment on 24/04/2017.
5. That he was not up to fifty – five (55) years when his appointment was terminated and he was not given a retirement notice before his appointment was terminated.
11. To further support his case, the Claimant annexed to his Affidavit, the following documents:
i. Letter of offer of provisional appointment dated 31st January, 2006
ii. Letter of offer of permanent appointment dated 24th November, 2006
iii. Notification of promotion dated 12th April, 2010
iv. Letter of termination of appointment dated 24th April, 2017
v. Copy of the Kaduna State Transport Authority (Staff) Regulations, 1978
vi. Copy of the Claimant’s pre-action notice dated 10th May, 2017.
12. Upon a proper examination of the Counter Affidavit of the Defendants, it seems to me that the only areas of dispute of the Claimant’s claim are as follows:
1. That due to the deplorable condition of the 1st Defendant, the new government which came into power in 2015 reorganized the structure of the 1st Defendant to save it from total collapse.
2. That the Claimant was the overseer of the 1st Defendant at the time of the restructuring, but that the Claimant became redundant after he was deployed to the Head of Service.
3. That from the investigation conducted by the Kaduna State Government into the activities of the 1st Defendant, it was discovered that there was a high rate of inefficiency and mismanagement of government resources under the management of the Claimant.
4. That due to the restructuring and reorganization of the 1st Defendant, a new law establishing new structure was promulgated and some of its personnel including the Claimant were retired.
13. From my appraisal of the facts set out in the foregoing, the questions that seems to me to have arisen for resolution in the present suit can be distilled as follows:
Whether the Claimant clearly established that the termination of his appointment from the employment of the 1st Defendant was unlawful to entitle him to the reliefs he sought in this suit.
It is a universal evidential principle that he who asserts proves his assertion; he who claims proves his claim. It is needless to cite authorities for this well known principle. It is also settled law that a Claimant who alleges unlawful dismissal or termination from employment must plead and prove the following facts to succeed in his claim:
i. That he or she is an employee of the Defendant
ii. Place before the Court the terms of his or her employment and the terms and conditions of the employment,
iii. State who can appoint and who can remove him,
iv. In what circumstances his or her employment can be determined, and
v. In what manner the said terms of the employment were breached by the Defendant.
See Oloruntoba - Oju Vs Abdul - Raheem [2009] All FWLR (Pt. 497) 1 at 42; Imasuen Vs University of Benin [2011] All FWLR (Pt. 572) 1791 at 1809.
In order to establish that there was a contract of employment with the 1st Defendant, the Claimant referred to his letter of offer of provisional appointment, letter of offer of permanent appointment and letter of promotion. These were exhibited to the Affidavit in Support of Originating Summons as Exhibit A, Exhibit B and Exhibit C respectively.
14. The fact that the Claimant was an employee of the 1st Defendant is not in issue in this case. The Claimant deposed in paragraphs 2 and 12 (j) of the Affidavit in support that his employer, the 1st Defendant, is a creation of statute and that his employment with the 1st Defendant is regulated by the Kaduna State Transport Authority (Staff) Regulations, 1978 which was promulgated pursuant to Section 67 of the Kaduna State Authority Edict, 1978. The said Regulation, (copies of which is attached as Exhibit E) provide for the procedure for termination of appointment of members of staff of the 1st Defendant. The conditions of the Claimant’s appointment are stated in Exhibit B attached to the Affidavit in support of the Originating Summons. It is stated in paragraph 2 (vii) that:
“That you will be subject, in all respect, to all conditions of service stipulated in the Authority’s staff regulations and instructions”
It is trite that where the terms and conditions of a contract of employment of service are specifically provided for by statute or regulations made there under, then the contract is protected by statute or, in other words, the employment is one with statutory flavour. See Olaniyan Vs University of Lagos [1985] 2 NWLR (Pt. 9) 599; Eperokun Vs University of Lagos [1986] 4 NWLR (Pt. 34) 162; Bamgboye Vs University of Ilorin [1999] 10 NWLR (Pt. 622) 290; U.M.T.H.M.B Vs Dawa [2001] 16 NWLR (Pt. 739) 424; Shitta-Bey Vs F.R.S.C. [1981] 1 SC 40.
The question of whether a contract of employment is governed by statute or has statutory flavour depends on the construction of the contract itself and the relevant statute. The duty to construe an appointment with statutory flavour is the exclusive preserve of the Courts. From the facts of case of the Claimant and the Exhibits attached thereof, I hold the view that the Claimant’s employment is a statutory employment.
15. Now, in determining an employment governed by statute, the procedure laid down in the statute must be complied with. The provisions of the applicable regulations and the memorandum of appointment must be followed to the letter as any breach would render the exercise of termination null and void. See Adeniyi Vs Governing Council, Yaba College of Technology [1993] 6 NWLR (Pt. 300) 426; Raji Vs University of Ilorin [2008] All FWLR (Pt. 435) 1832
16. As rightly submitted by the learned counsel for the Claimant, the Kaduna State Transport Authority (Staff) Regulations, 1978 states the terms and conditions the Claimant’s employment.
I have carefully perused the procedure for terminating the appointment of a confirmed staff from service of the 1st Defendant and I have arrived at a tacit understanding that Section 78 (1) of the Staff Regulations provides five grounds for the termination of a confirmed officer of the Authority. The general grounds of inefficiency by which the Authority (the 1st Defendant) can terminate the appointment of an officer who is confirmed are, if the officer:
1. Had been warned in writing at least once that his work has been unsatisfactory;
2. Failed to pass any technical, trade or Authority test;
3. Becomes financially embarrassed and such embarrassment is caused by imprudence or reprehensible cause;
4. Have been persistently absent from, or late for duty without adequate excuse and have been warned in writing at least once;
5. His increment has previously been withheld or deferred.
Section 78 (2) further provides that:
“The appointment of a confirmed officer shall not be terminated until he has been given an opportunity of submitting representations through his Head of Department to the Authority and until such representations have been considered by the Authority.”(Underlining for emphasis)
17. In the case at hand, the Claimant’s appointment was terminated as a Director of Administration, an officer who has been confirmed by the 1st Defendant. Exhibit D is the Claimant’s letter of termination. The reason proffered by the 1st Defendant is that the Claimant’s “services are no longer required”.
For ease of reference I shall reproduce the relevant portion of Exhibit D
“Following the reorganization of the structure of the Kaduna State Transport Authority, I wish to inform you that your services are no longer required.
In view of this, your appointment with the Kaduna State Authority is hereby terminated with effect from the date you were deployed to the Office of the Head of Service.” (Underlining for emphasis)
17. In denying the allegation that termination was unlawful, the Defendants deposed in paragraph 4 (j), (m) and (n) of their Counter Affidavit as follows:
“4 (j) That the Defendants are entitled to terminate the appointment of any officer based on the need to restructure and reorganize a Ministry, Department or Agency of the State.
4 (n) That there was a high rate of inefficiency and mismanagement of government resources in the 1st Defendant under the Claimant’s watch
4 (o) That due to the restructuring and reorganization of the 1st Defendant, with the promulgation of a new law establishing new structures to better achieve the purpose for which it was originally intended: being a self financing entity, some of the personnel including the Claimant, who were square pegs in round holes were to be retired.
There is no doubt that the circumstances which prevailed in the relationship between the parties in this case are contractual, a contract of employment. It is trite that the applicable law to any contractual relationship of parties is invariably the law in force at the time the contract was entered into and not the law applicable when the case was instituted. Adesoye Vs Governor of Osun State [2005] 16 NWLR (Pt. 950)1
It is therefore safe to hold that the Kaduna State Transport Regulatory Authority Law 2017 (KADSTRA) was not operative law at the time as the learned Defendants’ counsel had assumed.
18. As I had earlier stated, an employer which is clothed with statutory flavor as in this case must be terminated in a way and manner prescribed by the relevant statute and any other manner of termination which is inconsistent with the statute will be null and void and of no effect. Ibama Vs SPDC (Nig) Ltd [2005] 17 NWLR (Pt. 954) 364; UBN Ltd Vs Ogboh [1995] 2 NWLR (Pt. 380) 647
This brings me to the argument of the Defendants that the Claimant’s employment was terminated on the ground that his services were no longer required.
With due respect, I do not think that the Claimant can be removed from office outside the ambit of Section 78 of the Staff Regulations. “Services are no longer required” is not one of the reasons provided for by Regulations for the removal of the Claimant since his employment was not guided by master/several relationship. Any action by the Defendants contrary to the Regulations is an infraction of the said Regulations. See NEPA Vs Ango [2001] 15 NWLR (Pt 737) 672 at 647 - 648. Where the Court held that:
"An employee of an employer with statutory flavor has no right to terminate his appointment at will because the employee does not hold the appointment at pleasure of such an employer. To terminate the appointment, the employer has a duty to comply with the conditions precedent laid down in the conditions of appointment failing which such termination will be held to be ineffectual and void."
In my opinion the ground of restructuring stated by the Defendants as the reason for the termination of the Claimant’s appointment is to my mind an afterthought and an excuse to remove any unwanted officer at its whims and caprices.
19. Furthermore, the Claimant deposed to facts that he was not issued writing notice as required by the Staff Regulations. The Claimant was never accused of any ground of inefficiency stated in Section 78 (1) of the Staff Regulations, neither was he accused of misconduct. It cannot be said that the Claimant was given any opportunity of being heard. There was no denial from the Defendants.
The termination of the Claimant’s appointment is a clear breach of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He ought to have been given an opportunity of submitting representations through his Head of Department and the representation must have been considered by the 1st Defendant before his appointment was terminated.
20. Again, I agree with the submission of the learned Claimant’s counsel that the termination of the Claimant’s appointment cannot be retrospective. In other words, the Defendants have no powers under the Staff Regulations to back date the termination of appointment of Claimant “with effect from the date he was deployed to the Office of the Head of Service”.
In Underwater Engineering & Anor Vs Daruua Dubefon [1995] 6 NWLR (PART 400) 156 at 164 OGWUEGBU, JSC held as follows:
"The next question is whether the dismissal or termination of the respondent with retrospective effect was proper. In which case, he would not be entitled to remuneration from May to October, 1982. The contract was oral and the respondent's basic annual salary is N4,800.00 at N800.00 per month. His salary became due and his right to it vested at the end of each month. The respondent's employment was in fact existing up to 12th October, 1982 when he was told that his services were no longer required. The right of the appellants to terminate the employment by reason of antecedent misconduct which was known to the appellants all along and for which the respondent had been tried and acquitted did not entitle them to treat the contract of employment as having been determined in May, 1982. The respondent was therefore entitled to recover his salary up to 12th October, 1982. I agree with the Court below that the effective date of the respondent's dismissal was 12th October, 1982 and not earlier”
21. In view of the non-compliance by the Defendants with statutory provisions governing the Claimant’s employment with the 1st Defendant, I do not think it is necessary to waste further time on this matter. I am satisfied that the Claimant has established his case. I find that the termination of the appointment of the Claimant did not follow the procedure as laid down in the Staff Regulations. The result is that the termination of the Claimant from the 1st Defendant’s employment is unlawful, null and void and ought to be set aside. I so hold.
22. Furthermore, it is trite that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office. In such a situation, the Court has the power to set aside the termination and order the reinstatement of the employee. See Kwara Polytechnic Ilorin Vs Oyebamiji [2008] All FWLR (Pt. 447) 141; Olaniyan Vs University of Lagos (supra); Omidiora Vs Federal Civil Service Commission [2008] All FWLR (Pt. 415) 1807.
In the circumstance of this case, the Claimant is entitled to a consequential relief of reinstatement and payment of his outstanding salary from the time his employment was unlawfully terminated. I so hold.
23. Based on the foregoing analysis therefore, it is hereby declared that the letter of termination of appointment dated 24/04/2017 signed by one Hon. Bello Shuaibu is illegal, unlawful, null and void and of no effect whatsoever, it is hereby accordingly set aside.
Consequently, the Court orders as follows:
1. The Claimant shall be reinstated forthwith to the employment of the 1st Defendant.
2. The Defendants shall within thirty (30) days pay to the Claimant all his outstanding wages, salaries, allowances and other emoluments accruing to him from the date of the unlawful dismissal till the date.
3. Cost of N250,000.00 is awarded against the Defendants.
SINMISOLA O. ADENIYI
(Presiding Judge)
19/06/2019
Legal representation:
A. Suleiman Esq. for Claimant
Halima A. Ladan Esq. for Defendants
