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Akure --His Lordship, Hon. Justice O. O. Oyewumi of the National Industrial Court of Nigeria, Sitting in Akure, Ondo State on Thursday 7th November 2018 in a judgment delivered declared the purported retirement of FOWOWE ADEROGBA (claimant) as Unlawful, null, void and of no effect; ordered that the claimant be reinstated back to the employment of the ENGINEERING MATERIALS DEVELOPMENT INSTITUTE, AKURE ONDO STATE (2nd defendant) with immediate effect.
This matter was transferred from Federal High Court to this Court on the 26th of June, 2013 and the claimant sought against the defendants among others; AN ORDER of the Court that a letter of retirement dated 24/12/2010 with reference No. EMDI/AK/PF090 retiring the plaintiff from service is null, void and of no effect as it was borne out of malice. A Declaration that the retirement of the plaintiff from the service is improper as it failed to follow the guidelines of the 1st and 2nd defendants as to the retirement of their officers. Likewise, AN ORDER commanding the defendants to recall the plaintiff and pay up all his salaries and allowances from November 2010 to when he will be called back.
It is the claimant’s case that he was a former employee of the FEDERAL MINISTRY OF SCIENCE AND TECHNOLOGY, ENGINEERING MATERIALS DEVELOPMENT INSTITUTE, AKURE ONDO STATE (1st and 2nd defendants) before he was retired by the ENGINEER B.A OLUNLADE (3rd defendant) sometimes in December, 2010. He continued that the management brought some vouchers of some equipment and materials that were not supplied for him to sign as the senior officer which he refused. That he reported to the Board of the 2nd defendant but they refused to take any action, but in December, 2010 he was unjustly retired contrary to the Public Service Rules 2008. He contended that the 3rd defendant is not competent to sign his retirement letter as it is supposed to be done with the approval of supervising Minister of the 1st defendant in compliance with the Public Services Rules.
According to the 2nd and 3rd defendants, sometimes in October 2009 the claimant through his solicitors wrote a petition containing unfounded allegations of fraud against the management of the 2nd and the 3rd defendants to EFCC without routing same through appropriate channels.
That the Director-General of NASENI set up panel of enquiry to look into the allegations. That the claimant was invited and questions were put to him but he could not back his allegations with evidence. That while at the store it was discovered that some items were missing and it set up a panel to that effect, that when the claimant was asked on the missing item, he had no substantial explanation to give.
It is the defendants’ further evidence that in view of the disciplinary actions against the claimant and his dissatisfactory response, the Senior Staff Committee recommended that he should be retired immediately and this was approved by the Director-General of NASENI.
The defence counsel submitted that the retirement of the claimant followed the appropriate guideline of NASENI and does not have to follow that of the 1st defendant as NASENI has its own Act governing the retirement.
The defendants objected further that this suit is incompetent as the defendants are not necessary parties to this suit, the condition precedent to invoke the Court’s jurisdiction has not been met by the claimant and that no notice of the claimant’s intention to sue was served on the 2nd and 3rd defendants. They urged the Court to hold that claimant’s claim against them is frivolous, incompetent and should be dismissed with substantial cost.
In reply, Learned counsel posited that the Director General of NASENI, the supervisory agency, being an agent or delegate of the Governing Board of NASENI cannot competently further delegate the powers or duty to the 3rd defendant. He stated that the act of the 3rd defendant signing claimant’s letter of retirement is ultra-vires his duties as he does not have the power to so do rather it is the Vice Chairman of NASENI with the approval of the Board which the 3rd defendant is not a member.
After careful analysis of all the processes filed, the evidence led and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice O. O. Oyewumi resolved and held that the claimant has complied with the provision of Section 32 of NASENI Act and expressed thus;
“A contract of employment in which the condition for appointment and determination of such appointment are governed by prescribed conditions in the relevant statute so that the terms are regulated by the provisions of the statute, is a contract with statutory flavour.
“…a report from the Internal Management Committee should be submitted to the Board of Directors of the 2nd defendant, after an enquiry by the internal management Committee, rather what is before the Court is a recommendation from the Senior Staff Committee informing the 3rd defendant to retire the claimant immediately and not a report as the defendant would want the Court to believe.
“This is in view of the fact that the procedure through which the claimant was retired from the employment of the defendant is defective as there is a clear indication that the defendants failed to follow the procedure listed in the Act, in determining its relationship with the claimant. It is also plain that the claimant was not afforded fair hearing when the defendants skipped the required stages as provided for in item 6 of the second schedule of the Act.
“Neither the 3rd defendant nor the Senior Staff Committee of the 2nd defendant can arrogate to themselves power not donated to them in brazen disregard to the statute. It is upon this basis that I find that the claimant’s letter of retirement dated the 24th of December, 2010 is null, void and of no effect, it is accordingly, set aside. I so hold” Justice Oyewumi Ruled.
The court ordered that the claimant be reinstated back to the employment of the 2nd defendant with immediate effect.
