IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

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

 

DATE: THURSDAY OCTOBER 17, 2024              SUIT NO: NICN/EN/15/2019

 

 

BETWEEN:

 

MR. AMADI NWAGBOSO…………………………………………..CLAIMANT

 

AND

1. ENUGU STATE POLYTECHNIC

2. THE COUNCIL, ENUGU STATE POLYTECHNIC     DEFENDANTS

3. IJEOMA UGWU, THE REGISTRAR,                            

    ENUGU STATE POLYTECHNIC

 

 

APPEARANCES:

1.                 LEARNED M.I. IGWE – FOR THE CLAIMANT.

2.                 LEARNED T.K. IGBONEKWU – FOR THE DEFENDANTS.

 

JUDGMENT

INTRODUCTION

COMPLAINT commenced this suit April 5, 2019. The Statement of Facts [SF] filed alongside the Complaint sets out the following reliefs at para 15 thereof:

1. AN ORDER of Court that the retirement of the claimant by the defendants is illegal, unlawful, wrongful, null and void and of no effect.

2. AN ORDER of Court setting aside the purported retirement of the claimant by the defendants.

3. AN ORDER of Court reinstating the claimant to his position under the employment of the 1^st defendant with all his benefits, entitlements, promotions and other things that is due to him by virtue of such position and directing the defendants to pay the claimant all his unpaid salaries, benefits and entitlements during the period of the said purported retirement.

4. General damages of N1, 000, 000 (One Million Naira)

 

The defendants reacted via a Statement of Defence [SD] filed April 23, 2019. The claimant in response filed a Reply to the Statement of Defence [RSD] May 2, 2019, therefore, issues were joined on the RSD. I shall now proceed to the summary of the pleadings.

 

SUMMARY OF PLEADINGS

The claimant pleaded that he was employed as Admin Officer without indicating the retirement age but that subsequently, the Retirement of Staff of Polytechnics and Colleges of Education Harmonization Act, 2012 [Harmonization Act] made his retirement to be 65 years of age and that he was illegally retired retroactively at the age of 60 years thus, this action. The defendants counterpleaded the claimant’s conditions of service was contained in the Public Service Rule 02809 and that the Harmonization Act was not applicable to Enugu State Polytechnic but that the AG Enugu State had clarified the claimant’s retirement age in a letter to that effect and that the claimant was lawfully retied at the age of 60 and therefore prayed that the case be dismissed with cost. The claimant filed a reply pleading without any significant thing as issues were totally joined on the SF and SD.

 

SUMMARY OF PROCEEDINGS

The matter came up before me for the first time July 2, 2019. The claimant’s counsel informed the court that parties have exchanged pleadings and the case was adjourned to November 5, 2019 for hearing. The matter came up as adjourned and different lawyers appeared for the same defendant in the matter. The learned V. O. Dingwu informed the court that; she was the one who filed the processes and appeared in the matter on the last adjourned date and also that she was served with a notice of discontinuance. 

The learned counsel further informed the court that he is the legal officer to the 1^st defendant and was briefed by the three parties to take over the matter but if they have briefed another counsel, the proper procedure in Order 54 Rule 1 ought to be followed. The learned counsel insisted that in the absence of a notice of change of counsel, he remains the counsel to the defendants. The other counsel; learned Ene, who appeared for the defendants as well, informed the court that his office was engaged to defend the suit but that he informed his learned friend that they should do it together. The court advised parties to settle this issue amicably before the next date and the matter was adjourned to 12/11/2019 for hearing of the Notice of discontinuance.

Again, the matter came up as adjourned and the claimant’s counsel notified the court of the Notice of Change of Counsel filed and served on parties. The learned Diugwu sought to tender from the bar his letter of authority to represent the defendants. The claimant’s counsel informed the court that the circumstances warranting the filing of the notice of discontinuance have been defeated and they applied to withdraw it. The learned counsel addressed the court on the reason he was prompted to file the said process. The learned counsel for the defendants addressed the court on the issue of representation and equally reacted to the withdrawal of the notice of discontinuance made by counsel to the claimant. Consequently, the matter was adjourned to 15/11/2019 for Ruling.

The matter came up as adjourned and the Court delivered its ruling, allowing the withdrawal of the notice of discontinuance, and the case was adjourned to 25/2/2020 for hearing. It came up as adjourned and the claimant’s counsel informed the court that the defendants counsel called to inform him that he travelled outside the country. Therefore, the case was adjourned to 4/5/2020 for definite hearing. It came up on the 9/12/2020 and it was adjourned again to the 10/2/2021 for hearing. It came up as adjourned and the matter could not proceed due to a letter of adjournment from the defendant’s counsel, the case was adjourned to 22/3/2021 for hearing.

It came up on the 22/3/2021 and the defendants’ counsel informed the court of their challenge in getting the former counsel to hand over the case file to them and requested for an adjournment. Therefore, the case was adjourned to 11/5/2021 for hearing but the matter could not proceed on this date due to the JUSUN strike. It came up next on the 23/6/2021 and the learned Diugwu informed the court that the previous counsel has withdrawn from the suit, which is why he came to court. The claimant’s counsel informed the court that he caused the confusion of dates and asked for an adjournment. The counsel informed the court that the office of J.C. Ene is still the counsel in the matter. The matter was adjourned to 14/7/2021 for definite hearing and a cost of N5,000 was awarded against the claimant’s counsel personally.

It came up as adjourned and the claimant’s counsel informed the court that he was served with a notice of change of counsel, which had been served on all parties, including the outgoing counsel. The matter was then adjourned to Nov 1 and 2, 2021 for definite hearing. It came up next on the 2/11/2021. The case was then opened with the claimant himself, who testified as CW1. CW1 adopted his Written Statement on Oath [WSO] dated 5/04/2019. CW1 tendered the following exhibits C1, C2, C3 and C4 respectively without any objection. CW1 sought to tender his declaration of age dated 31/01/2011, which was objected to and the claimant’s counsel withdrew it. The case was adjourned Jan 26 and 27, 2022 for continuation of trial. It came up on 27/1/2022 and CW1 was reminded of his oath and adopted his additional WSO dated 2/5/2019 tendered Exhibit C5. CW1 sought to tender a letter dated 14/11/2018, which was objected to, but was admitted as Exhibit C6. The case was then adjourned to March 10 and 16, 2022 for further hearing and defence.

The matter came up as adjourned. Under XX, CW1 stated that he is a State civil servant and that; the 1^st defendant is both under the control of the HOS Enugu State and the HOSF. CW1 also stated that the 1^st defendant is a State Polytechnic and the HOSF wrote Exhibit C6 to Federal Polytechnics. He explained that the said exhibit was written to all polytechnics in which it did not specify whether it is for Federal Polytechnics or Colleges of Education. He added that he did not know whether it was addressed to the Federal College of Dental Technology or whether it was addressed to the 1^st defendant or any other Polytechnic in Enugu.

CW1 denied the fact that it was as a result of a letter written to another institution that led to the action and that he had never heard about the concurrent, residual and exclusive legislative list. He also did not know whether pay packages of Federal and State Polytechnics are from the same coffers or that the Enugu State House of Assembly makes laws that regulate the 1^st defendant. Again, CW1 said he was not aware that the Federal legislature makes laws that govern federal polytechnics but he confirmed that he knew everything about his case.

CW1 also denied being aware that the HOS Enugu State has clarified the position on the issue of retirement age of non-academic staff of Polytechnics and that; the AG of Enugu State gave a legal opinion on this same issue in 2014. CW1 stated that it is not true that he is scouting for what he can get from the 1^st defendant. CW1 also stated that it is the federal that supervises what happens in the State and that his retirement did not follow procedure by virtue of the date on the notice bearing March 2017. CW1 explained that the notice was supposed to take effect in 2019 but the letter was dated 27/3/2017 and he only attained 60 years of age in 2019. He went further to explain that the age of retirement for Polytechnics was not specified in their handbook and that; the notice was improper, as it should be months notice and not years. CW1 pointed out that the learned counsel has not mentioned the circular from the AG of Enugu State, which states that notice should be given months before retirement.

The claimant’s counsel re-examined CW1 on the subject of when Exhibit C4 was dated/issued, which was objected to and overruled by the court. CW1 responded that it was issued after. The claimant closed its case and the matter was adjourned to the outstanding date given for defence. It came up as adjourned but the court informed parties of the Rules committee meeting scheduled for 2pm and it was then adjourned to 1/6/2022 for defence. It came up as adjourned and the defence opened with Lady Ijeoma Ijunwa who testified as DW1. DW1 sought to adopt her Written Statement on Oath [WSO] dated 18/04/2019 but due to the confusion in date, the defendants’ counsel requested adjournment to rectify the issue. Therefore, it was adjourned to 7/7/2022 for continuation of defence.

The matter came up as adjourned and the counsel for the defendants addressed the court and applied that the WSO be deemed as proper which was objected to and the court upheld the objection and the case was thereafter adjourned on the request of the defence counsel to 25/10/2022 for continuation of defence with cost of N10,000 awarded against the defence counsel personally. The case came up as adjourned but the matter could not proceed as the defendants’ counsel informed the court about the ill health of the witness and it was therefore adjourned to 6/12/22 for defence. Again, it came up as adjourned and the defendants’ counsel informed the court that the sole witness is still sick and sought an adjournment, which was objected to. The court granted the adjournment to 9/2/2023 for definite defence. The matter came up on 9/2/2023 and the defendants’ counsel’s application dated 30/01/2023 for substitution of their witness was granted unopposed. The defence opened with Mr. Nichodemus Ifeanyi Ozomena who testified as DW1. DW1 adopted his WSO dated 03/02/2023. DW1 tendered the following exhibits D1 and D2 respectively without any objection.

Under XX, DW1 stated that it is the Enugu State Polytechnic Law 2015 that established the 1^st defendant and that; the law specified the age of retirement of non-academic staff. He confirmed that he was not the one who signed exhibit C4 but that; it was probably served on the claimant by a staff of the 1^st defendant but he did not know who actually served it or when it was served. The XX of DW1 came to an end with no re-examination. Consequently, the matter was adjourned to 20^th April 2023 for adoption of Final Written Addresses [FWAs]. The case came up on the 23^rd of July 2024 instead, and the defendants’ counsel adopted its FWA dated 28/2/2024 and filed 02/3/2024 and intimated the court on the claimant’s FWA which was filed out of time. The court granted a conditional extension of time and conditionally deemed it as properly filed and served. The claimant’s counsel went ahead to adopt its FWA dated 14/4/2024 and filed 18/4/2024 and the case was adjourned to Oct 10, 2024 for judgment. That ends the summary of the proceedings, I now move to the FWAs.

 

SUMMARY OF FINAL WRITTEN ADDRESSES

A.        Defendants’ Final Written Address

Learned T. K. IGBONEKWU franked the defendants’ FWA and formulated one issue for determination of the case thus:

Whether the retirement of the Claimant by the Defend-

Ants’ is illegal, unlawful, wrongful, null and void and of

no effect?

 

The learned counsel stated that Exhibit C shows that the claimant attained the age of 60 years and Exhibit C4 also shows that he was retired exactly when he attained 60 years. The learned counsel cited S. 19(3) of the Enugu State Polytechnic Law 2015 and argued that; it is clear that the 2^nd defendant in conjunction with the State Civil Service Commission [SCSC] and not the Federal Civil Service Commission [FCSC] determines the tenure of the claimant. The learned counsel argued that Exhibits D1 and D2 show that 60 years is the proper age of retirement for the claimant and urged the court to hold same. The learned counsel submitted that 65 years is not the retirement age of the claimant and that; exhibit C6 has no nexus, as it did not emanate from the SCSC and was meant for a federal institution not the defendants. The learned counsel urged the court to dismiss the suit and cited the case of Ikenta Best (Nigeria) Limited v Attorney General of River State (2008) LPELR-1476 (SC) and Mrs Rosemary Onwusor v Yahi Maina & Ors (2021) Legalpedia (CA) 11919.

 

B.        Claimant’s Final Written Address

Learned C. M. OKAFOR franked the claimant’s FWA and submitted two issues for the determination of the case:

1.        Whether or not the notice of retirement served on the claimant by the defendants Twenty Seven days after his retirement was said to have taken effect fell short of statutory requirement and amounts to nullity, despite the date on the notice.

2.        Whether facts admitted needs further proof

           

On issue 1, the learned counsel argued that statutory institutions are bound to comply with statutory provisions when removing or retiring an employee and any procedure that is outside the scope of regulation will be illegal, null and void. The learned counsel cited the case of Akinyanju v Unilorin (2011) 2 FWLR Pt. 567 pp. 1080 at 1147 in support.  The learned counsel argued that the defendants in para 4 of their WSO averred that para 10 of the SF was true, which implies that the defendants admitted that exhibit C4, which was supposed to take effect from March 1, 2019 was served on the claimant on 28/3/2019, which is twenty-seven days after it took effect and cited the case of Olaniyan & Ors v Unilag (1985) 2 NWLR Pt. 9 pp. 599. The learned counsel further argued that effective date of retirement was not in conformity with the issuance and service of the notice of retirement procedure in a contract with statutory flavor and cited S. 30(1) of the Enugu State Polytechnic Law, Cap ESN Law No.1 2015 [ESPL], which made service of notice a condition precedent before removal or retirement of any of its academic or non-academic staff. Also, the learned counsel cited the case of SPDC Nigerian Limited v Addico (2016) All FWLR Pt. 816, 436 at 456 and argued that the defendants cannot claim to have adequately notified the CW1 via Exhibit C4 when the existence of the said Exhibit C4 came to the knowledge of the CW1 twenty-seven days after the effective date of the claimant’s retirement notice had passed.

On issue 2, the learned counsel cited the case of Mr. Kwasi Karikari Adusei & Anor v Mr. Toyin Adebayo (2012) LPELR-7844 SC and argued that DW1 averred in para 4 of its WSO that para 10 of the SF is true and also under re-examination, CW1 made it clear that Exhibit C4 was issued and served on him after its effective date of 1/3/2019 had passed. The learned counsel also cited S. 123 of the Evidence Act and argued that the defendants in their pleading admitted that Exhibit C4 which took effect on 1/3/2019 only came to the claimant’s notice and knowledge on 28/3/2019 as well as the fact that it was served on CW1 27 days after it had taken effect, which impliedly admits that their action was unlawful, illegal and contrary to statutory provision and as such, requires no further proof.

Finally, the learned counsel submitted that the contract of service between the 1^st defendant and CW1 is one with statutory flavour and therefore, the retirement of CW1 from service of the 1^st defendant without compliance with the requisite statutory provisions on notice renders such action null, void and of no effect. That ends the summary of the FWAs. I therefore proceed to give my decision.  But before then, I wish to state that I have carefully read and digested all the processes as my summaries above demonstrated. I have also carefully listened to the testimonies of the witnesses from both sides and noted their demeanours. I have noted the relevant authorities cited from both sides. I have also conducted further researches on relevant authorities to enable give a good decision. There I go

 

COURT’S DECISION AND THE RATIONALE

I fuse the issues formulated by both sides into just one short issue: whether the claimant was lawfully retired? My answer to this poser is no. And my reasons for the “no” answer are provided hereunder.

First of all, I need to say preliminarily that both the NASS and the HOSF and likewise, the AG of Enugu State, have no jurisdiction to interpret any law for the sole purposes of making such interpretations binding on the courts. While they can give their opinions for the purposes of enforcement or implementation or application of laws, that is where it ends. Once a matter gets to court, such interpretations done for the parochial use of the entities concerned and not for the court have no use in the court. Hence, what the NASS has the power to do is to amend a law it made, if it finds it did not quite carry out its intention and not to usurp the powers of the courts and the Interpretation Act, to interpret the laws. So, Exhibits C6 and D1 are non-consequential in this case. They are mere opinions of persons who are neither parties nor counsel to the parties in the instant case. Both exhibits are accordingly discountenanced for attempting to foist parochial or partisan interpretations of the Harmonization Act on the court. Let me now go to the real business.

It is necessary to point out preliminarily too that, by virtue of paras 27-30 of the Second Schedule of the Constitution, the legislative jurisdiction to make laws for universities and polytechnics falls within the concurrent legislative list and the law is that, where both the State House of Assembly [SHA] and the NASS make laws on the same issue on the concurrent list as this, and there is conflict, the federal law supersedes. This is encapsulated in S. 4(5) of the Constitution, as adumbrated by the Court of Appeal in Airtel Networks Ltd v. AG Kwara State (2014) LPELR-23790 (CA) 28, B-C:

“The supremacy of the law made by the National Assembly is asserted with the following provision in Section 4(5) thereof that; ‘(5) if any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.”

 

Therefore, the defendants’ learned counsel’s XX on this account is consequently of no use because, a question of law is deterministic and the answer is constant and not variable, and applies once the set of facts occurs. As I have shown above, both the NASS and the SHA have the vires to legislate on polytechnics and, the NASS has legislated on the issue of the retirement age of polytechnic staff in the annexure to Exhibit D1, which has earlier in this judgment, been christened Harmonization Act. It provides thus:

1.                            “The retirement age for staff of Polytechnics and Colleges of Education is harmonized.

2.                            A law or rule requiring a person to retire from the Public Service after serving 35 years shall not apply to staff of Polytechnics and Colleges of Education.

3.                            (1) Notwithstanding anything to the contrary in the Pension Act, the compulsory retirement age of an academic staff of Polytechnics and Colleges of Education shall be 65 years.

(2) A law or rule requiring a person to retire from the Public Service after serving for 35 years shall not apply to an academic staff of Polytechnics and Colleges of Education.

4.              The Bill may be cited as the Retirement Age of Staff of Polytechnics and Colleges of Education (Harmonized) Act, 2012.”

 

I have to sound a pedestal now. From the inception of the Third Alteration Act in 2011, all labour related statutes, to retain validity, must be interpreted in conformity with the constitutional provisions of S. 254C-(1)(f)-(h) & (2) of the Constitution. They are non-obstante. The preamble says the Harmonization Act is: “An Act to harmonize the retirement age of staff of Polytechnics and Colleges of Education and for related matter.” It talked about harmonising the retirement age and not the harmonization of the length of service. And no distinction was made between academic and non-academic staff and likewise, no distinction were made with regard to the types of polytechnics and colleges of education envisaged: both state and federal institutions were therefore captured. In a nutshell, the Harmonization Act covers the field on the issue. When the provision of S. 1 is construed with those of S. 3 and the preamble and S. 4, there is obvious ambiguity [distinct from conflict] as to the ambit of the retirement age of 65 attached specifically to academic staff alone in S. 3, which by the doctrine of specific mention, seems to exclude the non-academic staff, whereas S. 2 incorporates both academic and non-academic staff with regard to 35-year length of service but not the retirement age, which the statute clearly sets out to harmonize.

And the essence of S. 2 is obviously to provide secured ground for the age of retirement as the only desideratum to determine the exit of staff of polytechnics and colleges of education throughout Nigeria. S. 2 skillfully omits the adjectival word “academic” that appeared in S. 3(1)&(2), which is the real cause of the ambiguity. In this wise, a distinction must be made between ambiguity and absurdity at one hand and, conflict, on the other hand. In fact, the confoundedness is heightened when it is realised that S. 3(1) is totally irreconcilable with S. 2 by the addition of the adjectival word “academic” to “staff”, which follows it. It clearly makes S. 2 to give a benefit by one hand, which, S. 3(1), as the other hand, immediately takes away. It is a clear case of absurdity. And S. 3(2) is not necessary at all in view of S. 2, which already covers the same field. S. 3(2) appears to negate the blanket cover of both academic and non-academic staff earlier covered by S. 2. This shows a confounding confusion in the statute. The Harmonization Act cannot set out to harmonize the retirement age of staff of the polytechnics and colleges of education for which it removes the clog of the length service which could have affected the retirement age, and now turns round to make provisions for the retirement age of the academic staff alone, and leaves out the non-academic staff! It is clearly absurd because, that is contrary to the essence of harmonization.

By failing to mention a distinctive retirement age for the non-academic staff of the polytechnics and colleges of education while it has mentioned that the 35 years in service was not applicable to the non-academic staff like the academic staff, it is clear that an absurdity exists. The question is: what is now the retirement age of the non-academic staff, which the Harmonization Act sets out to harmonize with that of the academic staff? Does it mean, if the 35 years length of service is not applicable to the non-academic staff, as it obviously is, that the non-academic staff can serve ad infinitum till death or infirmity severs them from service, even more than the 65 years earmarked for the academic staff? Thus: the confoundedness! By dint of harmonization, dichotomy cannot exist in the retirement age of both sets of staff. They must have one and the same retirement age.     

And the purpose of the Harmonization Act, as clearly stated in S. 1 and the preamble and, accentuated in S. 4, which is the long title, is to harmonize the retirement age of staff of the polytechnics and colleges of education and we have, basically two types of staff in the two types of institutions captured: academic and non-academic. And S. 2 of the Act makes it very abundantly clear by saying service by length of years shall not be applicable to both academic and non-academic staff of both types of institutions, which means, only retirement age shall be applicable to both alike. It follows that in tune with harmonization, that one and the same retirement age shall be applicable to both academic and non-academic staff. Since S. 3(1) nominates the retirement age of 65, mutatis mutandis, it is applicable to the academic and non-academic staff alike in line with S. 1, which proclaimed unambiguously that the retirement age of these staff is harmonized, which proclamation, S. 2, the preamble and S. 4 accentuate thus, manifesting the main purpose of the statute to give these two cadres of staff exactly the same retirement age of 65.

It is obviously clear beyond arguments that the purpose of the statute is to harmonize the retirement age of both staff as distinct from their length of service and that, the harmonization of the length of service by doing away with its limitation to 35 years, is to bring both types of staff at par with regard to their age of retirement and have a uniform age of retirement for both types of staff. That is to say, only age shall be deterministic of when both academic and non-academic staff shall retire in both polytechnics and colleges of education and the age shall be the same: 65 years. To harmonize means to unify and remove discrepancies or differences and make two or more hitherto different things the same or similar to enable them work together harmoniously.

While it could be argued the preamble and title cannot dictate the meaning of a statute, it cannot be argued that a provision of a statute is not part of it. As it is, SS. 1, 2 & 4 agreed by working together to the true intents of the statute to harmonize the retirement age of both academic and non-academic staff but only S. 3 does its own thing differently and contrary to the avowed intendment of the statute. The situation here depicts confusion and ambiguity leading to absurdity, as distinct from conflict, in the disparate provisions and such, ambiguity and absurdity are resolved in a statute by resort to both mischief and purposeful rules of interpretation to bring into reality the legislative intendment – Sheriff & Anor v. PDP & Ors (2017) LPELR-41805 (CA):

“…It is only where there is doubt or ambiguity that recourse is made to other canons of interpretation…The literal construction must be followed unless this would lead to absurdity and inconsistency with the provisions of the statute as a whole…”

 

In line with the last sentence of the above quotation, we have seen that there is ambiguity and absurdity inherent in the disparate provisions of S. 3 when construed along with the other provisions of the Harmonization Act as a whole. Thus, literal interpretation is not feasible because, it would unwittingly strengthen the absurdity.  Thus, there is the call for the invocation of other rules of interpretation that would remove the ambiguity and absurdity. This Court held in Umah I. Orji & Ors v. University of Nigeria & Ors[1]:

“The law is that, the legal meanings of words may differ from their grammatical meanings. The legal meanings of words are derived from the contexts of their usages and the purposes of the laws or rather, the real intentions of the legislatures or the contracting parties in drafting the statutes or the agreements – see Halsbury’s Laws of England (4^th edition) Vol. 44(1) (London: Reed Elsevier (UK) Ltd, 1995) at 835-836, paras. 1372-1374; Akpan v. Julius Berger [Nig.] Plc (2002) 17 NWLR [Pt. 795] 1 at 25, E-G and, Abacha v. Fawehiunmi (2000) 6 NWLR (Pt. 660) 228 at 326, G-H.”

 

Going by the above authorities, the courts are allowed to substitute words in the provisions of statutes or to remove words in the provisions of statutes or give different meanings to words than their everyday meanings to align with the legislative intendments in order to avoid ambiguity and absurdity. I have shown the ambiguity in the provisions of S. 3 of the Harmonization Act in combination with the other provisions of the whole statute and that if literal rule is utilized, absurdity is certain. It is therefore clear that to leave the provisions of S. 3 as they are would lead to absurdity and defeat the objective of the statute. This Court in Engr. Chibuzor Albert Agulana v. Dr. Fabian C. Okonkwo[2] cited how the New Zealand Supreme Court treated similar problem:  

“Reflecting the contemporary thinking on labour court’s jurisdiction over workplace torts, the New Zealand Supreme Court [NZSC] even decided in FVM v. TZB[3] that the Employment Relations Authority [ERA], an inferior tribunal[4], had exclusive civil jurisdiction over workplace defamation and workplace torts generally, in so far the claims were framed around “employment relations problems” or “work context” over which S. 161(1) of the Employment Relations Act grants the ERA exclusive civil jurisdiction, notwithstanding that S. 161(1)(r) of the Act excludes its jurisdiction over torts. S. 161(1)(r) was deemed as producing an ambiguity resulting in absurdity against the legislative tenor marshaled out in S. 161(1).”

 

The New Zealand Supreme Court simply made inoperative the entire provisions S. 161(1)(r) of the Employment Relations Act to enable S. 161(1), which it considered to be in tune with the tenor of the Act, to have its full effects, in order to avoid the absurdity inherent in adopting literal interpretation in the situation. Going by this and the other authorities cited above, I therefore make the word “academic” that appeared in S. 3(1)&(2) of the Harmonization Act silent, inoperative and without effect in order to allow the word “staff” that immediately follows it to attain generic incorporative effect encompassing both academic and non-academic staff in consonance with SS. 1, 2&4 of the statute and its preamble.

And going by the contra proferentem rule, an ambiguity in an employment contract or instrument must be resolved in favour of workers/employees – New Nigeria Development Company Limited v. Daniel Ugbade [Unreported Suit No. SC. 591/2017 – Delivered Dec 20, 2021] p. 24, wherein the Supreme Court articulated the doctrine thus: “Any ambiguity regarding the payment of any entitlement to an employee must be resolved in favour of the employee.” See also Achkar Law, “Contra Proferentem in Ontario – Ambiguity in Employment Contracts” at https://www.achkarlaw.com [June 15, 22]. The ambiguity discovered in S. 3 of the Harmonization Act, which has the effect of nullifying the intended harmonization of the retirement age of the staff of polytechnics and colleges of education must be resolved in favour of the claimant in order not to deprive him [a non-academic staff] of a benefit to which he is entitled. Adopting this interpretation is in sync with the need to avoid unfair labour practices and enthrone international best practices in labour relations in Nigeria as encapsulated in S. 254C-(1)(f)-(h) & (2) of the Constitution. To interpret otherwise is to enthrone discrimination between the academic and non-academic staff that has no iota of bearings on their performances at work contrary to S. 254C-(1)(g) of the Constitution and the ILO C111, which shall be examined in more details anon.    

That the identified ambiguity must be resolved in the claimant’s favour is accentuated by Exhibit C1 [Offer of Appointment], which conspicuously omitted to state the terms as relate to the claimant’s length of service and his retirement age and also, mysteriously omitted to specify the particular conditions of service applicable to the claimant. In this wise, the defence argument that the PSR is applicable is nonstarter because, the appointment letter did not incorporate it. Besides, by virtue of S. 318(1) of the Constitution [the interpretation section] at “public service of a State”, the 1^st defendant [Enugu State Polytechnic] is a juristic independent personality incorporated by a statute – S. 3 and 19(3) of the ESPL. It is therefore not ordinarily subject to the PSR, which is meant for the civil service of the state and not its public service to which the polytechnic belongs. And it has not been shown to me that there are any such conditions of service made in accordance with S. 19(3) of the ESPL. And more importantly, the Harmonization Act covers the field of the retirement age of both academic and non-academic staff of all polytechnics and colleges of education in Nigeria and therefore, nullifies anything that is contained in the PSR to the contrary – Airtel Networks Ltd v. AG Kwara State [supra].

Therefore, since the contract between the parties did not contain any term or condition as to the length of service and the retirement age, the claimant could serve ad infinitum until death or infirmity interferes, which is not unheard of in the academic circles and administrative works, which demand mainly intellects and mental capacities and, where experience is valued, and not physical energies, except that, the claimant had, himself, chosen 65 years as his retirement age and is therefore bound by his election. Otherwise, age discrimination is against international best practices in labour relations. In this respect, I cite Umah I. Orji v. UNN [supra] once more:

“In fact, the international best policy demands that Age Discrimination Legislations…unconnected with performance on the job be discouraged the world over – Naj Ghosheh, “Conditions of Work and Employment Programme – Age discrimination and older workers: Theory and legislation in comparative context”, in Conditions of Work and Employment Series No. 20 at https://www.wcm_travail_pub_19 (3 of 3) [accessed March 13, 2022]... [P. 25-26, para 3]

It is either the CBA is binding on the UNN like other federal universities or not. If it is binding, the UNN has no option than to obey it. To now single out UNN staff for non-implementation of the CBA, would be discriminatory against them amongst equals, without any justifiable reason, contrary to ILO C111 and S. 254C-(1)(f)&(g) of the 1999 Constitution [as altered]. This Court has the sacred double mandates to prevent unfair labour practices and, to also enthrone international best practices in labour relations and, Nigeria has the additional obligation to the ILO to prevent discrimination in employment relations by virtue of S. 254C-(1)(g)-(h)&(2) of the 1999 Constitution [as altered]. Nigeria ratified C111 October 02, 2002. Apart from the ILO obligations, this Court has a special obligation to look into cases of discrimination, pursuant to S. 254C-1(g) of the 1999 Constitution [as altered]” – [P. 27, para 1.]

 

There is no evidence of any infirmity alleged against the claimant not to talk of infirmity that interfered with his performance at work. There was therefore no rational basis for the sudden retirement of the claimant. The claimant was simply retired unlawfully at the prime of his productivity. It must be noted that gone were the days when employers of labour do what they like without regard to the feelings and rights of their employees/workers. From the inception of the Third Alteration Act in 2011, all labour related statutes or instruments or contracts or conducts must be interpreted to be in conformity with the constitutional provisions of S. 254C-(1)(f)-(h) & (2) of the Constitution and anyone that could not be so construed to be in conformity stands struck down.

The foregoing quotation from Orji’s case shows that, the modern public policy of Nigeria is that, age discrimination unrelated to performance on duty is frowned at and heavily discouraged to eschew unfair labour practices and enthrone international best practices as the currency of labour law and practice in Nigeria. Thus, unfair labour practices involved in age discrimination at work unconnected with performance must be eschewed and the Harmonization Act and the contract in issue must be construed accordingly. Therefore, the facts that the contract between the parties did not specify the age of retirement and the length of service coupled with the ambiguity in the Harmonization Act, make it beyond rational argument that the claimant had unfettered contract of service till age 65.

In this connexion, it may be cited that the purported notice of retirement served on the claimant was served 27 days after he clocked the purported 60-year retirement age. This brings about the legal effect of S. 169 of the Evidence Act and makes the doctrine of estoppel by conduct fully applicable and proved to the hilt that the true retirement age was not fixed originally and was at the very least, 65 years as posited by the claimant - DMN (Nig) Ltd v. NPA (2019) 1 NWLR (Pt. 1652) 163 at 183-184 and Re-Apeh (2017) 11 NWLR (Pt. 1576) – and that the notice of retirement served on the claimant was actually a malicious afterthought and amounts therefore, to a nullity. The lone issue is thus resolved in the claimant’s favour and against the defendants. It now remains to consider the reliefs framed for the case.

In considering the reliefs framed, I take cognisance of the fact that the claimant clocked 65 years Mar 01, 2024 and is therefore deemed retired at that age. Therefore, the reliefs to be granted take into consideration this salient fact. I accordingly grant reliefs (1) & (2) in full. I grant relief (3) only to the extent that the claimant is reinstated with his salaries and leave-bonuses till Mar 01, 2024 when he was deemed to have retired at age 65. I am not unmindful that I have found that there is no proof of the applicable conditions of service other than the Harmonization Act, which only dealt with the age of retirement. But the fact remains that whether or not the employment is clothed with statutory flavour, there is a contract to the effect that, the retirement age of the claimant is 65 and he was retired unlawfully before that date in breach of the statutory provisions contained in the Harmonization Act, S. 254C-(1)(f)-(h)&(2) of the Constitution and the ILO C111. The claimant, who had a fixed contract till age 65, is therefore entitled to payment of the residue of his unexpired period at the rate of his salary as if he was never unlawfully retired – Shena Security Company Ltd v. Afropak Nigeria Ltd & Ors (2008) LPELR-3052 (SC) 26, A-C:

“This is where the term of service is pre-determined at the commencement of the contract. Notice may or may not be in the contemplation of the parties. The proposition here is that in such a contract the employee cannot be removed during the period of the term contracted except for misconduct or where the employer [sic] dies…”

 

This is more so because of the egregious breach of the constitutional fundamental employment rights against discrimination and unfair labour practices, which are the few instances, a labour court can grant reinstatement notwithstanding that an employment has no statutory flavours. Be that as it may.

The relief relating to promotion is refused in its entirely as promotion is not granted as a matter of course but upon concrete evidence of being so entitled and vindictively denied - Oreka Maiya v. The Incorporated Trustees of Clinton Health Access Initiative Nigeria & Ors[5]. There is no such pleading and evidence before me. Relief (4) is granted in full considering the psychological trauma and mental agonies the claimant suffered, inferable without proof from the circumstances of the case and in line with international best practices, as a result of the unconscionable termination of his employment. I rely on SS. 13, 14, 15 & 19(d) of the NICA and 254C-(1)(f) of the Constitution; the Israeli case of Harmon v. State, reviewed in Luth Levush, “Israel: National Labor Court Quintuples Compensation in Occupational Harassment Case[6]”; the ILO, “Judgment 121: Twentieth Ordinary Session of the Administrative Tribunal of the League of Nations[7], 1968[8]”, involving Agarwala v. United Nations Food and Agricultural Organization [FAO]; the Nigerian cases of Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) and, Adegboyu [Adegboye] v. UBA[9].

All these authorities are to the effect that unlawful termination of employment attracts damages apart from payment of the earned monies to which the victim is ordinarily entitled and that, the courts must take into consideration and redress same by damages, issues of mental and psychological traumas suffered as a result of termination of employment. Pursuant to SS. 13&15, 14 & 19(d) of the NICA and 254C-(1)(f) of the Constitution, I also make an order that the claimant’s pension and gratuity be computed on the basis of retirement at age of 65 on Mar 01, 2024. Cost follows events. I accordingly award cost, which I assessed at N500,000 [Five Hundred Thousand Naira] only, taking into consideration the inflationary trends in Nigeria since the suit was filed in 2019 to date. Pursuant to O. 47, R. 7 of the NIC Rules, I equally grant the consequential relief of 25% simple interest rate per annum on the judgment sums till they are fully paid. The judgment takes effect one full month from Oct 17, 2024: that is, it takes effect Dec 01, 2024. Having treated all the reliefs and granted those that are grantable, the judgment must now come to an end.

 

CONCLUSION

I reiterate the reliefs granted as follows:

1.     AN ORDER of Court that the retirement of the claimant by the defendants is illegal, unlawful, wrongful, null and void and of no effect.

2.     AN ORDER of Court setting aside the purported retirement of the claimant by the defendants.

3.     AN ORDER of Court only reinstating the claimant to his position from the date of the illegal retirement to Mar 01, 2024 with his arrears of salaries and leave-bonuses covering the period calculated and paid accordingly.

4.     The claimant terminal benefits to also reckon with the Mar 01, 2024 retirement date.

5.     General damages of N1, 000, 000 (One Million Naira) only for mental agonies and psychological traumas.

6.     Cost of N500,000 (Five Hundred Thousand Naira) only.

7.     25% simple interest rate per annum on the judgment sums until fully liquidated.

8.     The judgment takes effect Dec 01, 2024.

 

Having got to this juncture, it is fitting to enter the decision and sign off. I, accordingly this day, Thursday Oct 17, 2024, under my very hand as the presiding judge, enter this decision.

 

……………………………

HON. JUSTICE Oluwakayode Ojo AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA