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REPRESENTATIONS 1. ANYEBE IMABENI Esq., for the Claimant 2. OGECHI OGBONNA Esq., for the Defendant J UD G M E N T By a General Form of Complaint dated 13th September, 2012 the Claimant instituted this action against the Defendant claiming the following: A DECLARATION that the purported retirement of the Claimant is illegal, null and void and ultra vires the power of the Defendant. AN ORDER of this Honourable Court directing the Defendant to release the promotion results of the Claimant for 1999 and 2002 withheld by the Defendant. AN ORDER of this Honourable Court directing the re-instatement of the Claimant to his office in line with the directive of the Head of service of the Federation contained in Exhibit T, and which was based on the terms and condition of his employment and further order directing the Defendant to pay all his salaries arrears from the time of his purported retirement until the time of judgment or in the alternative: AN ORDER of this Honourable Court directing the Defendant to normalize the promotion of the Claimant and compute his retirement benefits and allowances on the basis of his withheld promotion as well as paying arrears of his salary based on his withheld promotion from 1999 until the time of judgement in this suit. General damages of five million Naira (5,000,000.00) The complaint, alongside particulars of claim, witness statement on oath, was filed on 13th September, 2012. On receipt of Claimant’s Originating Processes, Defendant joined issues with Claimant by filing his processes including a Statement of Defence and a Counter – Claim dated 5th February, 2013 and filed on 6th February, 2013. Hearing commenced on 25th November, 2013. The Claimant testified for himself and through him Exhibits A1, A2, A3, A4, A5, A6, A11, A12, B1, C2, C3, DF were tendered and admitted in evidence. Thereafter Claimant closed his case on 13th March, 2014. However, on the next adjourned date of 4th June, 2014 Defendant informed the Court they had an Application by way of Motion on Notice to amend their Statement of Defence. In the same vain, Claimant’s Counsel also informed Court they had an application for the amendment of their particulars of claim. The prayers of the Defendant and that of Claimant were accordingly granted. The amended Statement of Defence is dated 24th day of April, 2014 and filed on 25th day of April, 2014. Moreso, the amended particular of claim was dated 28th May, 2014 and filed on 4th June, 2014. Consequently, the Claimant re-opened his case on 4th November, 2014 whereat Exhibit G1 –G5 were tendered and admitted in evidence. Thereafter, the Claimant closed his case. Defendant opened its case on 11th December, 2014 by calling its sole witness, one Akintade Ajao, who testified on behalf of Defendant and relied on the documents already tendered by the Claimant including: Letter of employment Letter of Reference dated 20/12/06; etc. Defendant closed its case on 15th October, 2015. Subsequently, and in compliance with the Rules of Court, both Counsels were ordered to file and exchange their final written addresses and case adjourned for adoption of same. At the next adjourned date of 30th November, 2015 Claimant’s Counsel was absent. No reason for his absence was adduced. He did not file nor serve on the Defendant his final written address and no reason whatsoever was adduced for this failure. Consequently, Defendant’s Counsel, who had filed and served his final written address on Claimant’s counsel urged this Honourable Court to foreclose Claimant from doing same. Accordingly, Defendant’s Counsel adopted his Final Written Address while Claimant was foreclosed. SUMMARY OF FACTS FROM THE STATEMENT OF CLAIM The Claimant avers that until the time Defendant unlawfully retired him compulsorily, he was a staff of the Securities and Exchange Commission from September 6, 1996 to December, 2006. It is the case of the Claimant that besides the unlawful termination of his appointment by Defendant, the Defendant neglected/failed to promote him for the period he worked with them despite he was due for such promotions. That the failure /neglect to promote him during the pendency of his employment and the subsequent termination of his employment were unlawful and unjust. Hence, he seeks redress in this Court in accordance with the reliefs sought in his process. SUMMARY OF FACTS FROM STATEMENT OF DEFENCE The Defendant, while admitting that the Claimant was a staff of the Securities and Exchange Commission (SEC), denied the Claimant’s employment was unlawfully terminated. It is the case of the Defendant that Claimant was lawfully retired in December, 2006; that 3 months’ salary was paid the Claimant in lieu of notice; that the Claimant has been collecting his monthly pension from Defendant till date On the promotion of the Clamant, the Defendant posited that there was no time Claimant qualified for promotion and he was denied by the Defendant. Moreso, that even if at any time such recommendations were made, Defendant was not bound to promote him, based on such recommendations. Furthermore, Defendant raises the objection that this suit as presently constituted is statute barred and an abuse of Court processes. The Defendant also filed a counter- claim asking for the following reliefs: A DECLARATION that the suit of the Claimant is an abuse of court process and an order dismissing same. A DECLARATION that the claim of the Claimant has been defeated by waiver, accord and satisfaction. A DECLARATION that the Claimant has failed to prove his claim against the Defendant. A DECLARATION that the claims of the Claimant are statute barred and to dismiss suit on same ground. AN ORDER granting the claims of the Defendant in terms of the counter –claim. The Claimant did not file any reply to Defendant’s counter – claim. DEFENDANT’S FINAL WRITTEN ADDRESS The Defendant, in its final written address submitted six (6) issues for determination before this Honourable Court to wit: Whether this action is an abuse of court process and if so the consequences of same. Whether the claims made by the Claimant are defeated by waiver, accord and satisfaction Whether the Defendant can in law be forced to retain the services of the Claimant or have any relationship with the Claimant (i.e whether a willing retired former employee of the Defendant can be foisted on the Defendant, an unwilling formal employer. Whether the Claimant has proved his case including by the photocopy of public documents tendered by the Claimant and admitted in evidence despite the opposition by the Defendant Whether this Honourable Court can accord any credibility and weight to the evidence led by the Claimant who lied about the issues in controversy. Whether this action is statute –barred. ON ISSUE 1 The Defendant submitted that this suit was commenced by the Claimant in this Honourable Court despite a pending suit on same subject matter at the Federal High Court, a fact the Defendant admitted to during cross – examination. Referring the Court to Exhibit E2, E5, E6 and also the hearing notice admitted to by the Claimant, the Defendant posited that while this present suit was ongoing in this Court, same was ongoing at the Federal High Court. He further submitted that this amounts to abuse of Court processes. Relying on Yakubu v. Ajaokuta Steel Company Limited (2010) 2NWLR Pt 1177 page 167 at page 179 paragraph E; Arubo v. Aiyeleru (1993) 3NWLR pt. 280 page 126; African Re- insurance corporation v. JDP Construction Limited (2003) 13NWLR pt. 838 page 605@635 paragraphs F-G and page 632paragraph D, he urged this Honourable Court to so hold. Defendant’s counsel further posited that assuming without conceding that Claimant had a cause and right of action in this suit, the manner in which that right was exercised is an abuse of Court process; hence the only option available to this Honourable Court is to dismiss the suit. Counsel relied on the authority of Dingyandi v. INEC (No. 2) (2010) 18 NWLR pt. 1224, page 154@201, paragraph B-C page 222 paragraph F It is the case of the Defendant that an abuse of Court process is an illegality that cannot be condoned by this Honourable Court. He therefore urged this Honourable Court to dismiss this suit. ON ISSUES 2 AND 3 The Defendant’s counsel, while arguing issues 2 and 3 together, submitted that it is on record that Claimant was solely employed by Defendant and he drew his emolument solely from Defendant; that Defendant has consistently paid Claimant his pension monthly and Claimant admitted he has been collecting same and has never returned same, inclusive of quarterly medical allowances. That claimant, having been receiving the foregoing and never returning same constitutes waiver of his right to challenging his retirement by Defendant as such right has been extinguished by accord and satisfaction. He referred the court to Anyawoko v. Okoye (2010) 5 NWLR Pt. 1188 page 497@page, paragraphs B-C where the Court held –……..waiver, which is defined by the Black’s law Dictionary 5th Edition, as the intentional or voluntary relinquishment of a known right, the renunciation, repudiation, abandonment or surrender of some claim, rights privilege or the opportunity to take advantage of some defect, irregularity or wrong. The Defendant’s counsel, while enunciating further on accord and satisfaction, referred this Honourable Court to the case of Shell Petroleum Development Company v. Federal Board of Inland Revenue (1996)8NWLR Pt 466 page 256@285 para F where the court held:- Accord and satisfaction is the purchase of release from an obligation whether arising from contrast or tort by means of any valuable consideration not being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes it operative…….although the definition talks of obligations arising from contract or tort, yet the principle of accord and satisfaction extends to all obligations irrespective of their source, according to the learned authors of principle law of contracts by Salmon and Williams, 2nd Edition page 496â€. Furthermore, the Defendant further submitted that Claimant having collected his letter of retirement, and since then, has been collecting his retirement/terminal benefits and regular pension without reporting for work, should be deemed to have estopped himself from seeking re-instatement. He refers the court to NEPA V Eboigbe (2009) 8 NWLR pt 1142 page 150@pages 163-164 part G-B quoting His Lordship, Justice Nwosu-Iheme “it is my view that having collected his letter of retirement and consequent upon that, the respondent stopped coming to work, he has by his conduct accepted the letter and its content†It is also the case of the Defendant that an unwanted employee cannot be foisted on an unwilling employer. He referred the Court to NEPA V Eboigbe (Supra); Angel spinning & Dyeing Limited v Ajah (2000) 13 NWLR pt. 685 page 523. Counsel further submitted that it behooves the Court to respect the terms of contract mutually agreed to by parties. For this purpose, he referred the Court to: Section 15(4) Investment and securities Act, 2007 Union Bank Plc v. Soares (2012) 11NWLR, Pt. 1312 page 550@ pages 568 paragraph A-B, 578 paragraph G-H; 679 paragraph A-C College of Education, Ekiadilor v Osayande (2010) 6NWLR, pt 1191 page 423@ page 449 paragraph B. It is the case of the Defendant that the most important document on which parties relate to on employment matter is the letter of employment. That the letter of employment, in this case, does not preclude termination of the relationship between the Claimant and the Defendant by retirement, irrespective of whether the Claimant could be allowed to work for 35 year or 60 years under any rule. That the length of service is the sole prerogative of the parties, whose relationship continues until it is determined by either party one way or the other. He referred the Court to Olaniyan v. University of Lagos (1985) NWLR page 363 paragraph 2. Finally on this issue, Defendant’s counsel submitted that equity cannot approbate and reprobate i.e. collect terminal benefits, appropriate and trade with same as he deems fit, hold into same till date, receive pension paid to him every month and still challenge the process that led to the payment of these benefits. He refers the court to Suberu v. State (2010) 8NWLR pt. 1197 page 586@ pages 612-613, paragraph G. Defendant’s Counsel argued that what Claimant intends to do is to foist himself on an unwilling employer, a situation which the court cannot avail him ISSUE 4 On this issue the Defendant posited that it is settled law that he who alleges must prove and must do so by legally admissible evidence – Defendant relies on Section 132, 133, 135 and 20 of the Evidence Act, 2011 that materiality and relevance alone do not make evidence admissible. That on the authorities of Okoyi v. Njokana (1999) 14NWLR pt. 638 page 250; E.T.& EC v Nevico (2004) 3NWLR pt 860 227@ page227 paragraph F, the main criteria govern admissibility are: Is the document pleaded (ii) Is it relevant to the inquiry being tried by the Court and (iii) Is it admissible in law That the Evidence Act, 2011 is the only law which governs admissibility of evidence. As such, any law, especially Section 12(2) of the National Industrial Court Act, 2007, in as much as it allows this Honourable Court to depart from the provision of the Evidence Act, cannot be applicable. Defendant further opines that Exhibits B1, C and D are public documents by virtue of Sections 104(1)(2) and 102 of the Evidence Act, 2011. Furthermore, that by the combined effects of Sections 89 and 90 of Evidence Act, 2011, only the CTC can be admissible. That even when photocopy of same is admitted, court should not rely on such photocopies. He refers the court to Okoreaffia V. Agwu (2012) 1NWLR Pt.1282 Pg.125 @Pg.453 paragraph D-F, with quote “public document must be certified to be admissible in evidence. It is immaterial whether they were pleaded and were relevant to the proceedings. This was made clear in Buhari v Obasanjo (2005) 13NWLR (1941) page 1@ page 177 where the Supreme Court rejected the 140 unit results because the results being uncertified by INEC were not tendered by the makers†That the alleged aforementioned admitted public documents should be discountenanced by this Honourable Court. Moreso, that Exhibit E4 is self-explanatory and does not impose any duty on Defendant to reinstate the Claimant. That Claimant has failed to prove his case. Accordingly, he urged this Honourable Court to dismiss Claimant’s claim. ISSUE 5 Defendant posited that Claimant gave false evidence on the issue in controversy. Defendant’s counsel laid emphasis on Claimant’s pleadings and testimony on oath that he was born in 1960 whereas the date of birth on Claimant’s Baptismal Card, i.e.Exhibit F is 11th November, 1957. Moreso, that on cross –examination on the 4th of November 2014, Claimant admitted that as at November 1967, he was 10 years old that is a further confirmation Claimant was born 1957 and not 1960. Defendant’s Counsel further submits that in the circumstances, Claimant cannot be accorded any credibility nor is the Court at liberty to choose and pick which evidence to believe and which to disbelief. He refers the court to Nnajofor v. Ukonu (1986) 4NWLR page 505@page525 para. G and Doma v. INEC (2012) 13NWLR page 297 @pages 322-323, para G-B. ISSUE 6 Defendant’s counsel submitted that assuming but not conceding that Claimant has any cause of action (proven or unproven), the judicial enforcement of same has been defeated. Learned Counsel, while anchoring his argument on Section 2Public Officers Protection Act (POPA); A.G. Federation v. Abacha (2010) 17NWLR pt 1@ 24 paragraphs D-E; Sani v. President, Federal Republic of Nigeria (2010)9NWLR pt. 1198 page 153@page 170 para C-D, submitted that Claimant having failed to file this action within three months of the time the cause of action arose has been statute barred from instituting this action. That consequently, this Court cannot be seised with jurisdiction to entertain same. That Claimant slept over his right and failed to activate the machinery of justice within time and thus waived his right to so do having been caught by the statute of limitation. He referred the court to Olagunju v. PHCN Plc (2011) 10NWRL pt. 1254 page 113@126 para C-E It is the submission of Defendant’s counsel that failure of Claimant to file this action within time robs this Honourable Court of jurisdiction to entertain same. He refers the court to Madukolu v. Nkemdilim (1962)23 CNR 341, and urged this Honourable Court to dismiss this suit. CLAIMANT FINAL WRITTEN ADDRESS Claimant’s Counsel, in his final address, submits two issues for determination, to wit: Whether the Claimant’s suit is properly brought before this Honourable Court and whether this Honourable Court has the jurisdiction to entertain same. Whether the retirement of the Claimant by exhibit A6 was in line with the terms of his employment, and if not, whether he is entitled to the reliefs contained on the face of the complaint and the particulars of claim. ON ISSUE 1 Claimant’s Counsel draws Court’s attention to paragraph 2 of the Defendant’s written address and the five grounds upon which Defendant predicated his preliminary objection. Claimant’s Counsel, while agreeing with Defendant’s Counsel that this action was instituted outside the 3 months as stipulated by Section 2(a) POPA, however posited that there are exceptions to the said section and the facts of this case place it in line with such exceptions. Therefore, cases cited by Defendant’s Counsel cannot be applicable in the circumstances. He refers the court to University of Lagos v. Adeniran (2000) 1NWLR, pt. 1031 pp4987, particularly at 535-536paragraph A-E where the Court held as follows: The public Officer protection Act is meant to protect officers who act in good faith and does not amount to acts done in abuse of office as and with no semblance of legal justification. Consequently, the Act will not apply if it is discovered that the Defendant abused his office for the purpose of acting maliciously. In that case, he has not acted bonafide within the terms of the statutory or legal authority in such a state of facts he has abused his position for the sake of doing wrong and the protection of the Act will not apply to such a case….. Claimant’s Counsel, while still relying on the Supreme Court decision above and with particular reference to P.535 para E.G., given instances of malice as follows: The issue of malice may arise in connection with section 2 of P.O.PA. in two circumstances: The public Officer might have done an act pursuance to the execution of a law or his public duty with ulterior motive such as helping himself or his friend or injuring the plaintiff, or A public Officer may while a public officer and under cover of the office do an act contrary to or not authorised by law in accord with his public duty. If such acts result in an injury to a plaintiff, it may be said that they were done maliciously. By way of further exceptions to Section 2 P.O.PA, Learned Counsel refers Court to Adejumo V. Olawaiye (2014)31WRN page 1 (pp. 29-30) lines 45 –5 where the Supreme Court held:- “A party though would not be allowed to take advantage of the limitation law, where there is clear evidence of disability mistake, fraud and in certain cases involving personal injury and death.†Claimant’s Counsel argues that Section 2(a) POPA cannot avail a public officer who acted ultra vires and outside the confines of their legal duty. While referring this Honourable Court to N.SP.R.I.V. BIR Kwara State (2014)15WRN 81 AT pp.109, particularly paras 5-4, LearnedCounsel posits that the purported retirement of the Claimant by Exhibit A6 was unlawful and done in bad faith. In answer to Defendant’s Counsel position on Section 15(4)of I.S.A. 2007 and his analogy that Claimant’s letter of employment does not preclude the termination of the Claimant’s employment by Defendant whether or not he has worked for 35 years or become 60 years, Learned Counsel to Claimant posited that Defendant’s Counsel seemed to be oblivious of the distinction between TERMINATION of employment and RETIREMENT. It is the case of Claimant that termination of appointment and retirement are distinct and governed by different laws, rules and regulations under Claimant terms of employment with Defendant. Furthermore, Claimant’s counsel argued that by virtue of paragraph 4 of Exhibit A2, i.e. Letter of Employment, it is clear and manifest that Claimant’s employment is governed by REGULARTIONS FROM TIME TO TIME IN FORCE AT THE COMMISSION. Learned Counsel therefore refers Court to the staff manual which was tendered and admitted as Exhibit C. That paragraph 5, Chapter 19 of the Staff Manual provides as follows: “The Securities and Exchange commission, being an agency of the federal government is subject to the rules and regulations of government as contained in the public service Rules for issue that are not adequately provided for or for which no provision has been made at all the rules of the public service shall apply†That the import of the foregoing is that in considering Claimant’s terms of employment recourse must be had to letter of employment (ExhibitA2), Staff manual (Exhibit C) as well as the public service Rules and Regulations as issues of retirement are not exhaustively dealt with in the staff manual (Exhibit C). That the appointment of the Claimant, being permanent and pensionable, Defendant lacked the power to retire the Claimant compulsorily. That Chapter 2, section 8, paragraph 020810 of the public service Rules provides as follows: The compulsory retirement age for all grades in the service shall be sixty years or thirty five years of pensionable service, whichever is earlier No officer shall be allowed to remain in service after attaining the retirement age of sixty years or thirty five years of pensionable service, whichever is earlier. …………………………………….. …………………………………….. Learned counsel also referred the Court to chapter fourteen, paragraph 195 of the Staff Manual (Exhibit C). Learned counsel argued further that as at the time Claimant was compulsorily retired he had not put in 35 years of service nor attained 60 years. That in Olaniyan v. University of Lagos (2000) 1NWLR (Pt.1031) Pg.4987, the supreme Court considered a clause similar to Clause 3 of Exhibit A2 and Concluded that while both parties had the right to terminate the contract of service by giving 6 months’ notice or 6 months in lieu of notice, the Defendant could not come under the protection of that clause once the reason for the termination was on disciplinary ground. That the Court held that all the procedure relating to disciplinary process must be adhered to, and Court proceeded to invalidate the purported termination. That being that Claimant’s purported retirement was not in line with the terms of his employment or the law, same is ultra vires the powers of the Defendant. Also, Defendant cannot seek protection of POPA after their unlawful Act. On Defendant’s insistence on pre-action Notice, Claimant argues they are not entitled to pre-action notice for by virtue of Section 289(1) of the Investment and Securities Act, 2007 pre-action notice is limited to matters at the Tribunal and not Court. That even where pre-action Notice is required and none is given, it does not abrogate the Claimant’s right. He refers Court to Eze v. Okechukwu (2003)8 WRN p1at Pg.17, lines 5-10. On Defendant’s submission that there is a pending suit at the Federal High Court on the same subject matter between both parties and that this amount to abuse of Court process, Claimant’s Counsel posited that Exhibit A11 and A12 put the matter to rest as the suit at the Federal High Court was withdrawn before instituting this present one. That in any event, the burden of proving the pendency of the said suit is on Defendant. He refers Court to Abu v. Molokwu (2004) 2WRN p. 166 particularly@ p. 184, lines 20-40. On accord and satisfaction put up by the Defendant, Claimant argues that Defendant created the situation and should not be allowed to benefit from same. He referred Court to Olaniyan v. Unilag (Supra)@pp91-92 para 40-10. On the plea of waiver put forward by Defendant, Claimant’s Counsel submits that supreme Court has put this matter to rest in Okomu Oil Palm Ltd v Iserhienrhien (1996)1NWLR(pt. 422)@p. 94 where it held: “That the payment of terminal benefits to the Respondent in this appeal did not validate his illegal removal from office†That the Court went further to state that Appellant’s failure to comply with the provisions of the Civil rules, as applicable to the company ( a company wholly owned by the Federal Government), rendered the purported termination of Respondent’s appointment null and void. On Defendant’s submission that Defendant was under no obligation to continue with an unwanted employee and may terminate his services at any time, Claimant submits that it seemed it escaped the notice of Defendant that Defendant being a creation of law must act in consonance with law and not just whimsically and capriciously. He refers Court to Olaniyan v. University of Lagos (Supra). Furthermore, learned counsel submitted that Claimant’s promotion from 1999-2002 was unlawfully withheld: By way of conclusion, Learned Counsel referred Court to the dictum of Hon Justice Adejumo, President of the National Industrial Court, reported at page 168-169 of Nigeria Employment and Labour Relations Law and practice by Chioma Kanu Agomo where his Lordship held: “The Respondent also argued that it has the right to terminate the employment of any of his employeesfor reason or no reason at all. While we do not have any problem with this at all, the point may be made that globally, it is no longer fashionable in industrial relationship to terminate without adducing any reason for such a termination. The problem we however have is when a reason is given for the termination whether the affected staff cannot contest the reason. It is our opinion that when an employer terminates an employment and gives a reason for such termination, the employee has the right to contest the reason. Learned Counsel concludes that Claimant has been able to establish his claim. He therefore, urged Court to grant same in the interest of justice. DEFENDANT’S REPLY ON POINT OF LAW Defendant filed a reply on point of law dated 22nd February, 2016 and filed on 25th February, 2016. On Claimant submission that limitation of action as provided in the Public Officer Protection Act is inapplicable where there is clear evidence of disability, mistakes, fraud and, in certain circumstances, injury and death, Defendant’s Counsel posited that this cannot be sustained, for, given the facts in this case, there is no disability, mistake, fraud, injury or death. He refers Court to Omidiora v. Federal Civil Service Commission & 3 Ors (2007) 14NWLR (pt. 1053) page 31, paragraph H. That issue of whether an action is done in bad faith or ultra vires does not arise when a suit challenging the acts of a public officer is filed out of time. He refers Court to Sulgrave Holdings v. FGN & Ors (2012) 17 NWLR (Pt. 1329) page 335 paragraph E where the Court held “………as long as the Public Officer Acts in the usual function of his Office, whether he does it correctly or wrongfully, he is protected by the section. It is not open to the Court to pry into his conduct in carrying out his official assignment in order to determine whether the Act applied†On retirement, learned Counsel posited that the Public Service Rules only provide the peak at which a Public Servant can retire but does not preclude retirement before the peak. Those words should be given their ordinary meaning. He refers Court to SEC v. Kasunmu (2009) 10NWLR (Pt. 1150) pg. 509@537paragraph D. Learned Counsel went further to adumbrate on some points already addressed in their final written address. On the Certified True Copy of Hearing Notice and Affidavit of Service tendered by Defendant in proof that there is a pending suit at the Federal High Court, Learned Counsel argues that evidence of a pending litigation is satisfied by the production of Hearing Notice and Affidavit of service. On waiver, Learned Counsel submitted that Okomu Oil Palm Company Ltd (Supra) is distinct from the case herein in that it was not on monthly payment of pension but payment in lieu of notice. On the impropriety of Exhibit B admitted by the Court, Learned Counsel submits that Court lacks jurisdiction to act on inadmissible evidence. He relied on Buhari v. INEC (2008) 4 NWLR (Pt. 1078)page 546@644 paragraphs G-H; Orji v. Oguchukwu (2009) 14 NWLR (Pt. 1161) page 207@ 306-307 paragraphs D-H. Learned Counsel therefore urged Court to uphold Defendant’s argument and dismiss this suit. COURT Having gone through the Claimant’s Claim, Defendants defence, written addresses by both Counsel; issues raised and arguments canvassed thereon, this court, besides adopting all the issues raised by both counsel, has distilled the following issues for the just determination of this suit, to wit: Whether the Defendant has the power to determine the employment of the Claimant, and the extent of such power Whether this suit is properly brought before this Honourable Court and whether the Court has jurisdiction to entertain same. This Court wishes to state that having adopted all the issues raised by both counsel, same will be resolved, when necessary, in the body of this judgment. ISSUE 1 “Whether the Defendant has the power to determine the employment of the Claimant and, or the extent of such power.†In employment matters, there are three basic categories of employment: (i) employment with statutory flavour (ii) contract employment (iii) master –servant employment. Under employment with statutory flavour, the manner and way of determining the employment is not limited to what is stated in the employment letter but extends to the manner and way provided for by law or statute governing the employment. The import is that the Court must pierce the veil of the employment letter and look beyond it to the statute governing the employment. On the other hand, contract employment, by nature, is a temporary and non-pensionable appointment for a specific period as distinct from appointment on pensionable terms. See Mobil producing (Nig) Unild v. Asuah (2001) 16NWLR (Pt. 740) 723. Contract of employment is usually embodied in a formal document which provides for the manner and way such employment is determined. Lastly, master –servant employment is an employment relation which can be determined at any time at the pleasure of the employer. This is derived from the saying – he who hires, has the power to fire at any time. Master-servant relation is prevalent in the private sector. In Master –Servant employment, whether or not an employee’s appointment is terminated with reason, the Court does not compel reinstatement; for you cannot force an employee on an unwilling employer. Hence, the remedy available to the employee is damages where the court finds that the termination of his employment was unlawful. See Imoloame v. WAEC (1992)9NWLR (pt. 265) 303. That said, it is not in dispute in the case herein that the employment of the Claimant is that which enjoys statutory flavour. What is in dispute, however, is that by compulsorily retiring the Claimant, Defendant acted ultra vires their power to so do. In resolving this, the Court shall look at the letter of appointment (Exhibit A2), and any other law or statute regulating the employment as well as the relevant provision of the Investment and Security Act, 2007, and the provisions of the Securities and Exchange Commission staff Manual (Exhibit C).As earlier said, in employment which enjoys statutory flavour, the Court is bound not only to look at the employment letter but the law or statute governing the employment. By virtue of paragraph 3 of the letter of employment (ExhibitA2) the appointment of the Claimant was pensionable and terminable upon the giving of one month notice in writing by either party or payment of a month salary in lieu of notice. By virtue of paragraph 4, Claimant’s Service with the Commission was to be governed by regulations in force at any time in the commission. Chapter 19, paragraph 5 of SEC Staff Manual provides that the securities and exchange commission, being an agency of the Federal Government, is subject to the rules and regulations of government as contained in the Public Service Rules.Chapter 2, Section 8, paragraph 020810 of the Public Service Rules provides, inter alia, as follows: The Compulsory retirement age for all grades in the service shall be sixty years or thirty five years of pensionable service, whichever is earlier No officer shall be allowed to remain in service after attaining the retirement age of sixty years. The above provision raises the issue of both the age of the Claimant and how many years he put in service before his compulsory retirement. Whereas parties did not contest the years of service of Claimant which is put at ten (10) years, parties keenly contested the age of the Claimant. The position of the Defendant on this is that Claimant gave false evidence having claimed in his pleading and testimony that he was born 1960 whereas the date of birth on his Baptismal Card tendered as Exhibit F States Claimant was born 1957. This Court wishes to state that where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting versions to follow. See Mogaji v. Cadbury (1985)SC (Reprint) 31. Consequently, the entire evidence touching on Claimant’s date of birth is hereby rejected, and I so hold. On retirement at 10 years of service, Chapter 2 of SEC Staff Manualprovides that staff members who have served for a minimum of 10 years and wish to retire from service must give three months’ notice or pay three months’ salary in lieu of notice. The staff manual does not make any provision on what obtains should Defendant want to retire Claimant compulsorily. Paragraph 3 of the letter of appointment reads, inter alia “The appointment is pensionable and terminable………†The word terminable is the adjective of the verb ‘terminate’ which noun is termination. Termination is the act of ending something, conclusion or discontinuance. See Black’s law Dictionary Ninth Edition. Whereas there is a legal distinction between termination of appointment and dismissal, there is no clear-cut distinction between termination of appointment and compulsory retirement. This is so because in termination, either party can give notice to that effect as well as in compulsory retirement. Therefore, it is the view of this Honourable Court that the word ‘terminable’ as used in Claimant’s employment letter envisages instances of termination of appointment as well as compulsory retirement, and I so hold. From the foregoing, I have no doubt in my mind that both the Defendant and the Claimant have the power to determine the employment be it by way of termination of appointment or compulsory retirement. Learned Counsel for Defendant, while arguing their issues 2 and 3 together, submitted that an unwanted employee cannot be foisted on an unwilling employer. He referred Court to NEPA v. Eboigbe (2009)8NWRL (pt.1142) page 150. This Court wishes to state that whereas the above can avail the Defendant in master-servant employment, it cannot avail the Defendant in employment with statutory flavour. Therefore, if the Court finds that the compulsory retirement of the Claimant was wrongful and unlawful, it can order the reinstatement of the Claimant. The Object of employment with statutory flavour is to protect the employee who is in a vulnerable position, in most cases, from the excesses of the employer. As prevalent as unemployment is now, it will be unfair and unjust for a pensionable worker whose employment has statutory flavour to wake up one morning to discover that he has been retired compulsorily. The point here is that even though it lies in the power of the Defendant to hire, it does not lie in its power to fire at will. If the Defendant, a public institution, is allowed to fire without recourse to laid down procedure or without giving reason as it obtains in the private sector, it means every employee in the public sector is in a precarious position as well as the Courts for what the Court looks at in termination or dismissal is whether the laid down procedure was adhered to, or the reason given is cogent enough to warrant the termination or dismissal. Therefore, even though the Defendant has the power to determine the employment of the Claimant, the extent of that power is limited to adhering to laid down rules of procedure, and I so hold. ISSUE 2 “Whether this suit is properly brought before this Honourable Court and whether the Court has jurisdiction to entertain same†The mind of the Court is that issue 2 cannot be properly resolved without addressing the issues of statute of limitation, accord and satisfaction and abuse of Court process raised by the Defendant. By virtue of Section 2(a) of the Public Officer Protection Act, any action against a public officer ought to be brought within three (3) months of the time the cause of action arose. Any action instituted after three months is statutorily barred and robs the Court of Jurisdiction to entertain same. However, the Courts, in the course of time, have created certain exceptions to mitigate the harshness of the limitation Act. Such exceptions include where the injury is a continuous one, the public officer acted malafide and ultra vires his power etc. see University of Lagos V. Adeniran (2000) 1NWLR (Pt.1031) PP498; Adejumo V. Olawaiye (2014) 31WRN P.1. The object of statute of limitation is to protect public officer from spurious litigation which may distract them in the course of their public duty. This is why the law provides for a limitation period to which you can bring an action against them. That said, I do not think that the exceptions created by the Courts on Section 2 (a) POPA inures a party for ever. For if it does, technically speaking, it means the Courts have repealed Section 2 (a) POPA in its entirety. To my mind, the exceptions avail a party who brings an action within reasonable time after the expiration of the three months. This Court will be hard put to rule in favour of a party who fails to bring an action until over sixty months later after the cause of action has arisen, especially when there is no evidence before the Court to suggest that the delay was occasioned by the acts of the Defendant. He who comes to equity must come with clean hands. On accord and satisfaction, Defendant’s Counsel argued that since the compulsory retirement of the Claimant, he has been collecting his pension monthly, inclusive of quarterly medical allowances, the legal principle of accord and satisfaction should apply and Claimant should be deemed to have forfeited his right in challenging his compulsory requirement. He refers Court to SPDC V. Federal Board of Internal Revenue (1996) 8NWLR (Pt.466) P.256; NEPA V. Eboigbe (supra) On their part, Claimant’s Counsel argued that the mere fact that Claimant collected all those benefits after compulsory retirement does not estop him from challenging his unlawful retirement. He referred Court to Okomu Oil Palm Company Ltd V. Iserhienrhien (1996) 1NWLR (Pt.422) P.94 In Grayshot Enterprise Ltd V. The Honourable Minister of Agriculture, (2002) 9NWLR (Pt.771), the Court defined accord and satisfaction “as a release from an obligation whether arising from contract or tort by means of any valuable considerationnot being the actual performance of the obligation itself. The accord is the agreement by which the obligation is discharged†From the foregoing, it is clear that even though the Claimant reasonably believes that what he was paid as pension was not what he ought to be paid, the fact that he kept collecting it and kept mute for five years before instituting this suit, is a pointer that he was satisfied with what he was paid. This discharges Defendant from any actual obligation. Granted, it is the attitude of some employees to collect the money which is usually paid in lieu of notice, and thereafter, institute an action in Court challenging the termination of their appointment. It is also the attitude of some not to collect the money so that it will not look as if they have consented or acquiesced to the termination. This was the case in Okomu Oil Palm Company Ltd (Supra) where the Court came to the conclusion that the question of waiver of right would not arise on the basis that the Respondent had collected three months’ salary in lieu of notice. I have doubt in my mind that had the question been that of waiver by reason of Respondent collecting his pension for a period of five years and still counting, the Court would have arrived at that conclusion. It seems to me that the Claimant herein was comfortable with what he was earning as pension until it dawned on him that with a dint of luck he could be earning more. Be that as it may, he instituted this matter outside the 3months provided by Section 2 (a) POPA, and in order to benefit from the equitable remedy which are the exceptions created by the Court to Section 2 (a) POPA, Claimant was supposed to act timeously rather than sleeping over his right for such a long time of over 60 months. Having slept over his right for a period of over 60months, Claimant cannot invoke the jurisdiction of this Honourable Court for equity, itself, does not aid the indolent, and I so hold.This Court is also mindful that the Claimant’s claim is not predicated on alleged wrongful retirement alone but on his withheld promotion during the pendency of his employment. To Claimant, his promotion was withheld several times before his eventual compulsory retirement. This Court is aware that in certain public institutions, statute or regulation provide for periodic promotion subject to terms and conditions. In such a situation, the Court is bound to enforce such statute or regulation once it is proved that the Claimant has satisfied the terms and conditions for such promotion. However, in the absence of statute or regulation, each case can best be determined by the circumstances of the fact. The circumstances of this suit is such that this Court finds that by virtue of Exhibits G1 – G5, Claimant was recommended for promotion but there is no evidence that after recommendation, the recommendation was approved by the appropriate body. This Court is of the view that recommendation for promotion does not translate into promotion until such recommendation is approved. Therefore, a recommendation for promotion does not have any force of promotion hence, this Court cannot enforce same, and I so hold. On the abuse of Court process, this Court wishes to make the following observation: i. There is evidence in this Court that a suit was instituted at the Federal High Court. ii.There is evidence that Plaintiff was written to by one Anbrose Unaeze, Special Assistant to the Chief Judge of the Federal High Court to withdraw same if he so wishes. See Exhibit A11 and A12 tendered by the Claimant. On the other hand, there is evidence that during the pendency of this suit before this Honourable Court, a hearing notice was issued in respect of the suit at the Federal High Court and affidavit of service deposed to in respect of same. See Exhibit E1 and E2. This Court wishes to state that by the letter dated 3/04/12 allegedly written by the Special Assistant to the Chief Judge of the Federal High Court acknowledging the Application letter for transfer of suit dated 19/03/12 and stating that Claimant was at liberty to withdraw suit, the suit at the Federal High Court was not validly withdrawn. Defendant’s Exhibit E1 and E2 put a dent on Claimant’s submission that the suit was validly withdrawn. Claimant argued that as at the time of instituting this suit in this Honourable Court, the Federal High Court no longer had jurisdiction in the subject matter. What this Court is not comfortable with is if Claimant was aware Federal High Court no longer had jurisdiction and he had the honest intention of not maintaining dual actions – one at the Federal High Court and the other at the National Industrial Court, nothing stops him from applying by way of a motion (not letter) for transfer pursuant toSection 22 (2) of the Federal High Court Act and Order 49 Rule 5 of the Federal High Court(Civil Procedure) Rules, 2009 ( a provision which the Federal High Court has always relied on in transferring cases to the National Industrial Court). If he had done this, he could have secured a valid order of the Federal High Court transferring the suit to this Honourable Court rather than relying on a letter from the Personal Assistant to the judge and concluding with that letter the case has been withdrawn whereas hearing notice was still be issued in that regard. On the Claimant’s position thatExhibit E5 and E6are not enough to prove the pendency of a suit at the Federal High Court, this Court wishes to state that the proof of one’s case is not determined by the quantity of evidence but quality of evidence. From Exhibits E5 and E6 (Certified True Copy of Hearing Notice and Affidavit of Service) this Court is satisfied that despite Claimant’s assertion that the suit was withdrawn at the Federal High Court, it was not validly withdrawn, and I so hold. For all the findings and holdings of the Court above, the Claimant Suit fails and same is hereby dismissed. With regards to Defendant’s Counter Claim, the Court has sufficiently dealt with the reliefs sought in the Counter Claim in the body of its judgment which are same as the objections raised by Defendant in their written address. Therefore the Court will not proceed further on it as it can only act within the limit of the reliefs sought. Judgment is hereby entered accordingly. ………………………………........ HON. JUSTICE M. N. ESOWE