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JUDGMENT. The claimant commenced this action vide a general form of complaint dated the 14th day of December 2017 and filed on the 18th day of December 2017, praying for:- 1. A declaration that the non-confirmation and non-regularization of the employment of the claimant after the contract period had elapsed is unlawful, ultra vires and run afoul of the 1999 Constitution (as amended); the Public Service Rules as well as the NNPC’S Corporate Policy and procedure Guide, (CPPG). 2. A declaration that by keeping the claimant in its employ and continued payment of monthly salary to him after the contract period had expired, the defendant, by operation of the law, is assumed to have confirmed and regularized the said contract (sic) employment of the claimant, and therefore estopped from terminating claimant’s employment, let alone treating the claimant as if he was a temporary/contract staff. 3. A declaration that the unceremonious termination of the employment of the claimant is unlawful and ultra vires the defendant, the defendant having allowed the claimant to continue to work and earn salary for a period of 5 years and six months after the contractual period had elapsed, thereby giving the impression that the claimant has satisfactorily completed the contractual period and have been regularly appointed/employed as permanent staff member of the defendant agency. 4. A declaration that it was unlawful and ran afoul of the public service rules for the defendant to have kept the claimant on grade level SS6 Step 1, and without promotion throughout claimant’s five years and six months meritorious service to the defendant. A mandatory order of this Honourable court directing the defendant to absorb and reinstate the claimant as a permanent staff member of the defendant agency and placed on the appropriate grade level and step, calculated in line with the spirit and letter of the public service rules and from March 2012. 5. AN ORDER of this Honourable court Directing the defendant to pay over to the claimant, the shortfall of his accrued salaries from march of 2012 when the defendant is presumed to have regularized and confirmed the appointment of the claimant to the 25th day of September, 2017 when his employment was terminated, calculated based on the appropriate Grade Level and Step 6. An order of this Honourable Court directing the defendant to pay over to the claimant, all the benefits, entitlements and allowances that should ordinarily have accrued to the claimant as a corollary of the various promotion that ought to have been accorded the claimant, but were denied him as averred n paragraphs 20-24 of the statement of facts. 7. An order of this Honourable court directing the defendant to pay over to the claimant, his accrued salaries, benefits, entitlements and allowances from the 25th day of September, 2017 when the employment of the claimant was unlawfully terminated by the defendant to the day judgement is delivered in this matter, calculated based on the appropriate Grade Level and Step. 8. Am order of this Honourable court directing the defendant to pay the sum of N200,000,000,00K (Two Hundred Million Naira) only to the Claimant as exemplary and aggravated damages as a result of the unlawful termination of the employment of the claimant. 9. An order of this Honourable Court awarding interest of 10% per month on the total judgement sum form the day judgement is delivered in this case until the judgement debt is finally liquidated by the defendant. The claimant testified for himself as CW1 and sought to tender 8 exhibits in evidence. Seven out of the 8 tendered exhibits were admitted in evidence and marked as exhibits CW1A – CW1G. The eighth document was marked tendered and rejected. One Muazu Yusuf, testified for the defendant as DW1 and tendered 13 exhibits marked as exhibits DW1A – DW1O. At close of the evidence parties were directed to file their final written address beginning with the defendant and then the claimant. The defendant’s final written address filed on 26/9/18 was deemed properly filed and served on 29/11/18. The claimant filed his final written address on 19/12/18. A reply on points of law was filed on 4/2/18 by the defendant. THE CASE FOR THE CLAIMANT. The claimant after being affirmed testified as CW1. He informed the court that he is the claimant in this case and after identifying his witness statement on oaths adopted it as his evidence in this case. The claimant testified that he was employed as a temporary staff by the defendant for a period of six months. Vide exhibit CW1A the claimant’s temporary appointment was renewed for another period of 6 months vide exhibit CW1B. However, at the expiration of the renewed period of engagement no letter was issued to the claimant terminating or renewing the contract of employment. The claimant continued to work for the defendant and the defendant continued to pay the claimant his monthly salaries until September 2017, when the defendant terminated the appointment of the claimant. The claimant also stated that the defendant encouraged him to continue to work for the claimant by paying him monthly salary. The claimant tendered exhibits CW1G 1-21 to support this assertion. The claimant further stated that the defendant introduced him to the embassy of the Netherland as its Senior staff and sponsored the claimant to attend seminars and conferences. Exhibits CW1C, CW1D and CW1E. The claimant urged the court to order his reabsorption into the service of the claimant and payment of his salaries and entitlement. Under cross-examination, the claimant testified that; I have a degree in petroleum Engineering. I know the difference between temporary and permanent staff. One is temporary one is permanent as the name implies. I was issued a temporary letter yes I was a temporary staff. When my 6 months temporary appointment expired I was given another six months temporary appointment. When the second temporary appointment expired, we were asked to continue working and I was nominated for training. And I was not advised to stop working. After the expiry I kept going to work they were still paying my salary for another five years. Yes I was placed on salary SS6. After March 2012 I was not given any letter of appointment. I do not have any official information that the defendant is making frantic effort to seek appointment for us. Throughout the period I worked I was paid. In exhibit CW1C I was not referred as a permanent staff. It was not there. Exhibit CW1H, page 74 paragraph 18.43 was read by witness and stated he cannot answer question on it. CW1 adopted his witness statement on oath. CASE FOR THE DEFENDANT. Yusuf Muazu, Manager Human Resources testified for the defendant as DW1. The witness after taking oath adopted his witness statement on oath as his evidence in this case. DW1 testified that the defendant gave express approval of renewal of the contract of employment of the claimant and other contract staff on monthly basis until the Petroleum Industry Bill is passed. Exhibit DW1 J 1-4, DW1K1-3, were tendered as evidence of renewal on monthly basis. The claimant was never encouraged by the defendant to continue to work as if he was a permanent staff. The claimant was placed on salary grade level SS6 step 1 with a consolidated monthly salary of N3,444,226.00 (Three Million Four Hundred and Forty Four Thousand Two Hundred and Twenty Six Naira) only and monthly basic salary of N287,018.83 (Two Hundred and Eighty Seven Thousand and Eighteen Naira Eighty Three Kobo) right from the beginning of his temporary appointment and not as from March 2012 but as from his first temporary appointment. Exhibits DW1 A and DW1B were tendered in support. The defendant at no point in time ever continually and repeatedly assured the claimant that it was making serious efforts at securing requisite presidential/governmental approval to recruit permanent staff and never assured the claimant that he will be given preference and right of first refusal when the defendant is aware that the Federal government has placed embargo on employment. The defendant never converted the claimant to a permanent staff member, because due process was not followed in the engagement of the claimant as a temporary staff in the first place and the use of temporary appointment as a prelude to permanent employment is forbidden by the corporate policy and procedure guide (2003) and there is no provision for temporary appointment in the 2006 version. Exhibit DW1Q. The defendant never got requisite presidential approval to recruit new permanent staff as alleged by the claimant. The defendant cannot use temporary appointment as a prelude to permanent employment is The federal character commission wrote the defendant concerning alleged illegal recruitments on 20/2/15 when it got wind of the claimant and other temporary staffs’ outcry for regularization of their temporary appointment. The defendant is not in a position to regularise the appointment of the defendant because the use of temporary appointment as a prelude to permanent employment is forbidden by the corporate policy and procedure guide (CPPG). The defendant never gave the claimant impression that his appointment has been regularised or confirmed and never introduced him to British High Commission in Nigeria and Netherlands High Commission as a Senior staff and that all those visas he procured at the two Commissions were for his personal use and was never at the instance of the defendant. The claimant was never a permanent staff to enable him attain career progression. The claimant cannot base his conformation on payment monthly salary. The claimant’s appointment is at the pleasure of the management. The claimant’s termination of appointment was not unceremoniously, it was approved by board and 50% of his consolidated annual salary was paid to him as welfare package which he collected without complaining he even thank the defendant for the good gesture. The defendant had good reasons for termination of his appointment which include restriction placed on recruitment by government, violation of CPPG and prohibition of casual and temporary appointment. See exhibit CW1H. The claimant as a temporary staff was not entitled to promotion. The temporary appointment of claimant and other was to assist them after their national youth service with the defendant pending when they secure permanent employment elsewhere. Under cross-examination DW1 testified to the effect that I am a manager with the defendant have been in the employment of the defendant since January 2004. I am conversant with the internal workings and procedures of the defendant. I am conversant with the administrative procedures of the defendant. If a person is employed whether temporary or permanent the person is issued with letter of employment. The letter contain terms of employment. It was admitted that the claimant was offered temporary appointment for 6 months. At the expiry the appointment it was renewed for another 6 months. According to DW1, the defendant renewed the temporary appointment of the claimant on monthly basis. But there was no formal letter of renewal issued to the claimant. DW1, further stated that the nature of claimant’s appointment did not allow for regularisation of the said appointment as the defendant is prohibited from doing so. There was no need for communicating circular it is in the file. The CPPG is very clear that under no circumstance should temporary appointment be use as basis of regularisation. At no time did defendant give the claimant impression that he has been confirmed as permanent staff. Exhibits CW1C, CW1D & CW1E clearly stated that at end of expiration it will be renewed but not regularisation. THE SUBMISSION OF THE DEFENDANT. ISSUE FOR DETERMINATION: The defendant formulated twin issues for determination, as follows:- 1. Whether the Claimant has proved his case to render the termination of his temporary employment which has no statutory flavour to be unlawful and ultra vires. 2. Whether the Honourable Court can order specific performance by way of directing the Defendant to absorb or reinstate the Claimant as a permanent staff member of the Defendant when the Claimant was never employed as a permanent staff. LEGAL ARGUMENT ON ISSUE ONE: Whether the Claimant has proved his case to render the termination of his temporary employment which has no statutory flavour to be unlawful and ultra vires it is submitted by counsel that the termination of •the Claimant's temporary employment was not unlawful neither was it ultra vires, his temporary employment with the Defendant was properly terminated. Ordinarily a master has the right to terminate his servant's employment for good or bad reasons or for no reasons at all, the basic issue that calls for resolution in a dispute arising between a master and his servant is whether the contract of service or employment is one with statutory flavour or whether the contract was governed by an agreement of the parties and not under any statute. In support of this contention counsel relied on the case of NIGERIA OIL MILLS V DAURA (1996) 8 NWLR (Pt.468) 601 AT 607 Counsel also submitted that what the law says about a contract with statutory flavour and a contract of service, in other word a master and servant relationship. An employment is said to have statutory flavour when the appointment is protected by statute and an employment is said to be protected by statute when statutory provisions govern the appointment and termination of such appointment. In an employment governed by statute the procedure for employment and discipline of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Where an appointment is not governed by any statutory provision, like the case of the Claimant whose appointment was temporary appointment renewable monthly, it does not enjoy statutory protection and cannot be said to have statutory flavor The Claimant's employment did not enjoy statutory flavour that requires laid down procedures or way and manner to be followed before the termination of his contract of service or employment. The Claimant cannot allege that his temporary appointment was unlawfully terminated, the law placed on the Claimant the onus of proving that the termination of his employment by the Defendant was unlawful or ultra vires. It is the duty of the Claimant to plead in his Statement of Facts, facts which establish the requirement of the law and upon which the Court will rely on in finding in his favour The Supreme Court of Nigeria has set out in the case of MUROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990 )4 N. W.L.R.(PT.145) 506 AT 525- 527, what a Plaintiff or Claimant in a declaratory action, that the termination of his appointment is a nullity, unlawful or ultra vires must plead and prove as a material facts. These are: I. He is an employee of the defendant. II. How was he appointed and what are the terms and conditions of his appointment. III. Who can appoint him and who can remove him. IV. What are the circumstances under which his appointment can be terminated. It is submitted with greatest respect that the claimant in this case has failed to plead and prove the terms and conditions of his appointment, who can appoint him, and who can remove him and what are the circumstances under which his appointment can be terminated. Therefore the failure of the claimant to plead and establish these materials facts by way of evidence are detrimental to his case which left the court with no option than to dismiss his suit against the defendant. On this submission counsel also relied on the cases of AKINTOLA SALAMI (1986) 2 NWLR (PT.2-1) 598 @ 623, WILLIAMS V WILLIAMS (1995) 2 NWLR (PT.375) 1. The contract of employment of service as the case may be are by and large determinable by the parties simpliciter, the mere fact that the Defendant is a creation of statutes does not make any difference or make the employment of the Claimant automatic or to enjoy statutory flavour or that no master and servant relationship between the Claimant and the Defendant. The Defendant Agency as rightly stated by the Claimant in paragraph 2 of his Statement of Facts is a 'creation of statute that is the Petroleum Products Pricing Regulatory Act, 2004, this status of the Defendant does not mean the Claimant employment enjoys statutory flavor. In support of this contention counsel relied on the case of FAKUADE V. OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL COMPLEX MANAGEMENT BOARD (1993)5 N. W.L.R. {PT. 291) 47 AT 63 where the learned judex Karibi Whyte,J.S.C said: - "The fact that the respondent is the creation of a statute does not relevant all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their employment must necessarily have a statutory flavour.’’ Counsel also referred to the case of MR LAWRENCE AZENABOR V. BAYERO UNIVERSITY, KANO & 1 OR (2009)17 NWLR (PT.1169) 96 AT 100. The Court of Appeal held thus: "The fact that an organization is a statutory body does not mean that the conditions of service of its employees are protected by statute. Thus, it is not enough to merely prove that the employer is a creation of statute, there must also be proof that the employment is directly governed or regulated by a statute or a section of the statute delegate power to an authority or body to make the regulations or conditions of service as the case may be. The rules and regulations which are claim by an employee to be part of the terms and conditions of his employment capable of giving statutory flavor and to of protection to employee must: a. Have statutory reinforcement or be regarded as mandatory; b. Be directly applicable to the employee or person of his cadre; c. Be seen to be intended for the protection of that employment, and d. Have been breached in the course of determining the employment. All the above must be in existence before they can be relied on to challenge the validity of determination. There are no averments whatsoever in the statement of facts where the Claimant states the procedure or the way and manner to be followed before the termination of his contract of employment neither did he states any terms of the temporary contract of employment that was breached by the Defendant in terminating his employment. In the whole of the averments as contained in the statement of facts have not establish any breach. The quarrels of the claimant is that the Defendant gave him the impression that his temporary employment has been regularized and converted to a full-fledged permanent staff member of the Defendant Agency. As the Defendant eventually got requisite presidential Governmental approval to recruit new permanent staff but failed to employ him or accord him the right of first refusal. The Claimant did not produce before this Honourable Court any documentary evidence of that impression or any document that' his temporary employment has been converted to a permanent staff of the Defendant Agency or any evidence that the Defendant got the requisite presidential Governmental approval to recruit new permanent staff, neither did the Claimant mention any new staff that was employed by the Defendant. The onus of proof of wrongful termination of contract of employment lies on the shoulder of the Claimant and the Claimant in the instant case has woefully failed to discharge this burden placed on him by law. To buttress the point being made counsel cited the case of NIGERIA AIRWAYS LIMITED V. AHMADU (1991) 6 N.W.L.R.{PT.198) 492 AT 499 where Mohammed J.C.A held thus: "Where an employee alleges that his master has wrongfully terminated his employment, it is his duty to prove that he was wrongfully removed from office" The burden of prove placed on the Claimant was also buttressed in the case of MR LAWRENCE AZENABOR V. BAYERO UNIVERSITY, KANO & 1 OR (2009) 17 NWLR. (PT.1169) 96 AT 102. The Court of Appeal held thus: ‘‘A plaintiff cannot assume that he is entitled to automatic judgment just because the other party had not adduced evidence before the trial court. In order words, failure on the part of a defendant to give evidence does not automatically mean that judgment must be given in favour of a plaintiff, who has a duty to prove his case. Where a plaintiff fails to prove his case on the balance of probability or on preponderance of evidence, his case will be thrown out, notwithstanding the fact that the defendant did not give evidence. A plaintiff who desires a court to enter judgment in his favour must not only file and plead the necessary facts that would sustain his claim he must lead credible evidence in proof of those facts. Where he fails to lead such credible evidence to prove his averments in. his pleadings, the case must fail despite the fact that the defendant did not call evidence notwithstanding. This is so because a plaintiff must succeed on the strength of his own case and should not rely on the weakness of the defendant's case except the defendant's case support his case. The burden of proof is on the plaintiff. The plaintiff must discharge the minimal evidential requirement. In the instant case, the appellant failed to discharge the burden of proving his case with at least a minimum standard, and the trial court was right to have dismissed his case. " From the above authorities it was submitted that the onus is on the claimant who complained before this court that his employment has been wrongfully terminated to place before this Court the terms of the contract of his employment with the defendant and to prove in what manner the terms has been breached and where the Claimant fails to do so his case against the Defendant is bound to fail like a pack of cards. Counsel urged the court to so hold that the Claimant has failed to prove his case against the Defendant and resolve this issue in favour of the defendant. ISSUE TWO: ‘‘Whether the Honourable Court can order specific performance by way of directing the Defendant to absorb or reinstate the Claimant as a permanent staff member of the Defendant when the Claimant was never employed as a permanent staff.’’ It is the contention of counsel that the Court cannot order specific performance by directing or compelling the Defendant to indirectly employ the Claimant by way of absorbing or reinstating the Claimant. This is based on the notion that no servant can be imposed by the Court on an unwilling master, even where the master's behaviour is wrong. In support of this point counsel placed reliance on the case of GEIDAM V. N.E.P.A. (2001) 2 N.W.L.R.(PT.696) 45 AT 57-58 where Muhammad JCA. held thus: "My learned brother in the lead judgment has given a good exposition on the law of master and servant, especially the proposition that in simple master and servant contracts, with no statutory flavour, the Court cannot compel an unwilling employer to accept or keep a willing" servant he does not like. This is so because the Courts cannot also prevent a servant who has seen a better job elsewhere from resigning his former employment to go for the greener pastures. Also in the cases of wrongful dismissal, the measure of damages is the salaries and allowances he would have received during the period of notice.’’ Also in the Supreme Court authority of CHUKWUMAH V. SHELL DEVELOPMENT COMPANY OF NIGERIA LIMITED (1993) 4 N.W.L.R. (PT.289) 512 at 543. 0gundare J.S.C delivering the leading judgment stated thus: "The general rule is that the Court will not grant specific performance of a contract of service. Therefore a declaration of effect that a contract of service still subsists will rarely be made. Special circumstances will be required before a declaration is made and its making will normally be in the discretion of the Court. There is a long line of cases in support of this preposition of law. Such special circumstances have been held to arise where the contract of employment has a legal or statutory flavour" thus putting• over and above ordinary master and servant relationship.’’ It is the submission of counsel that, it is not in dispute that the relationship between the Claimant and the Defendant is that of master and servant, in other words, a contract of service without statutory flavour, which means the Court, will not foist the willing Claimant on an unwilling Defendant. This is so because the Claimant's employment ab initio was temporary in nature, this is evidenced by exhibits CW1A & CW1B which are letters of temporary employment tendered by the Claimant. The Claimant's name is not on exhibit DW1L 1-8 which is PPPRA comprehensive nominal role for permanent staff of the Defendant, the Defendant also tendered before this Honourable Court exhibit DW1JJ1-4 which is an Internal memorandum dated 5th April, 2012 which contained all the Minutes and subsequent approval for the monthly renewal of the Claimant and other temporary staff employment with the Defendant, exhibit DW1J1-4 is a clear proof of the monthly renewal of the Claimant's temporary employment, Furthermore the Claimant did not tender before this Honourable Court any documentary evidence to show that he was given permanent employment by the Defendant, in fact the Claimant in his Statement of Facts particularly paragraphs 11,12,13,14 and 17, which were supported by the Witness Statement on oath of the Claimant, the Claimant alleged that the Defendant gave him the impression that his temporary appointment had been regularized, this impression is only within the knowledge of the claimant. It is further submitted that the Claimant's impression only existed in his mind, there is no evidence before the Court from the Claimant to show that he made any effort by way of writing to the defendant to find out the status of his impression or the status of his temporary appointment with the Defendant. It is our further submission that the Claimant's case is made worst by exhibits DW1H and DW1Q which is Corporate Policy and Procedure Guide, 2003 & 2006 versions. The 2003 version in clause 18.4.3 prohibits and makes it illegal the use of temporary appointment as a prelude to permanent employment, while the 2006 version in clause l8.4 classified types of appointment to be Permanent Appointment, Contract Appointment and Sabbatical employment and no provision at all for temporary employment. Furthermore exhibit DW1C which is letter from Federal Character Commission dated 20th February, 2015, exhibit DW,F is a letter from Ministry of Petroleum Resources dated 7th March 2012 and exhibit DW R, is another letter from Federal Character Commission dated 14th June 2018 all these exhibits prohibit and makes the appointment or the conversion of the temporary appointment of the claimant without following due process illegal. It is also the submission of counsel that when the contract on which a party sues is ex facie illegal, the Courts will decline to enforce it, for Courts exercise their jurisdiction only to administer the law of the land. Courts do not exercise their jurisdiction to help a party or Plaintiff or Claimant break the law. Whether such an illegality has been pleaded or not, the Court will not close its eyes against it. For it takes the view that it is the duty of every Court to refuse to lend its stamp of authority on any illegal transaction. It is settled that where a contract is tainted with illegality the Courts will not enforce such a contract. The principle is founded on public policy and expressed in the latin maxim ex turpi causa non oritar action, meaning an action cannot arise from a bad cause. To support this submission counsel relied on the cases of GEORGE & ORS V. DOMINION FLOUR MILLS LTD (1963)1 ALL NLR 71. BARCLAYS BANK D.O.C.V. MEMUNATU HASSAN (1961) ALL NLR 836. IBRAHIM V. OSIM (1988) N.W.L.R. 257. It is the submission of counsel that the Claimant is attempting to make this Court employ him into the Agency of the Defendant through the back door based on illegal contract of service, when exhibit DW,Q which is Corporate Policy and Procedure Guide, 2003 version iii clause 18'.4.3 prohibit and make illegal the use of temporary appointment as a prelude to permanent employment, therefore based on the above cited authorities the Court cannot enforce such an illegal contract of service by compelling the Defendant to reinstate or absorb the Claimant. Counsel urged the court to also resolve this issue in favour of the Defendant. Finally, it is submitted that the Claimant cannot complain of wrongful termination of his temporary contract of employment, he cannot also ask the Court to reinstate or absorb him into the employ of the Defendant when he has collected from the Defendant Agency his final settlement package which is 50% of his salary assuming without conceding that the claimant is entitled to termination letter or notice, by this singular action of the claimant of not rejecting the welfare package of settlement, he has waived his right of complain. In support of this submission counsel placed reliance on the case of B. A. MOROHUNFOLA V KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT.145) 506. It is submitted that the claimant did not deny he had collected his severance welfare package by filing a reply to the defendant’s statement of defence to deny this averment contained in paragraph 114 of the statement of defence which was backed up by exhibit DW O12, it is trite law that where averment are not challenged or controverted it is an admission against the party who ought to have denied or challenged the averment. In concluding submission counsel urged the court to refuse the claim of the claimants as he failed to prove same. THE SUBMISSION OF THE CLAIMANT. The claimant submitted two issues for determination. They are:- 1. ‘‘In view of the fact and circumstances of this case, and having regard to the decisions in OBAFEMI AWOLOWO UNIVERSITY V. ONABANJO (1991) 549 at 570 and DR. ADEWUNMI BiLl RAJI V. OBAFEMI AWOLOWO UNIVERSITY (2014) 22 WRN 45 at 53, whether the defendant, by the operation of the law, is not assumed to have confirmed and regularized the claimant's contract employment, and thus estopped from terminating same.’’ 2. ‘‘If Issue 1 is resolved in claimant's favour, whether this Honourable Court will therefore not consequently grant claimant's reliefs (e) (f), (g), (h), (i) & (j) as indorsed on the writ and as captured vide paragraphs 30 (e) – (j) of the statement of fact.’’ ARGUMENT ISSUE 1. In view of the facts and circumstances of this case and having regards to the decision in OBAFEMI AWOLOWO UNIVERSITY V ONABANJO (1991) 5 NWLR (pt.193) 549 at 570 and DR. ADEWUMI BILI RAJI V OBAFEMI AWOLOWO UNIVERSITY (2014) 22 WRN 45 at 53, whether the defendant by the operation of the law, is not assumed to have confirmed and regularized the claimant’s contract employment and thus estopped from terminating same. It is the submission of counsel that at the expiration of the contract of the claimant in March 2012, the defendant ought to have either terminate or expressly confirm/regularize the contract employment of the claimant. The defendant did not do either of these but encourage the claimant to continue to work in the defendant employment by placing the claimant on salary grade level SS6/step 1, with a consolidated salary of N3,444,226.00 (Three Million Four Hundred and Forty Four Thousand Two Hundred and Twenty Six Naira) as well as Monthly basic salary N287,018.83 (Two Hundred and Eighty Seven Thousand and Eighteen Naira, Eighty Three Kobo). An amount which claimant earned from April 2012 through September 2017 in the defendant’s employ. By this singular act the defendant has encouraged to continue to work in the defendant’s employ and give impression that that the claimant’s employment has therefore been regularized and converted to full-pledged permanent staff of the defendant agency. Counsel urged the court to take interest in exhibit CW1C a letter from the defendant introducing the claimant to the Netherlands High Commission in Nigeria as a Senior Staff of the defendant. Counsel also referred to exhibit CW1D and CW1E which are letters of nomination for claimant to attend courses/training on Petroleum Import Documents Processes/Procedure’’ and ‘‘Facility Stock Management Control.’’ In 20`12 and 2013respectively. Counsel further referred to exhibits CW1G1-21, being pay slips for April 2012, May 2012, June 2012, December 2012, January 2013, February 2013, June 2013, July 2913, August 2013, July 2015, August 2015, September 2015, October 2015 and December 2015 respectively. Counsel submitted that these exhibits goes to show encouragement on the part of the defendant for the claimant to continue to stay at the defendant agency as the gesture represented by these exhibits. In other words by the action of the defendant in keeping the claimant in its employ after claimant’s contract of employment had elapsed by effluxion of time in March 2012; its continued payment of in Nigeria as a senior staff of the defendant agency, the Claimant was giving a reasonable impression that his employment had been regularized and confirmed as a permanent staff of the defendant's agency. It is the submission of counsel that in the course of cross-examination of DW1 Mr. Yusuf Muazu he admitted that when the claimant's 6 months renewed contract lapsed, the defendant did not issue a letter of renewal of contract employment as it did 28th September, 2011. Upon the expiration of claimant's renewed contract, the defendant ought to have either expressly regularized the employment of the claimant or disengage/terminate same, and should not have allowed and encouraged the claimant to continue working for a stretch of 5 years and 6 months as done by the defendant in the instant case. Counsel also stated that under cross-examination DW1 had reiterated that the reasons stated in paragraph 12 of witness statement on oath was what prevented regularization of claimant’s employment and that there was no communication to the claimant that the circulars made it impossible to regularize his employment. Counsel argued that the necessary implication of the testimony of DW1 under cross-examination are that; the defendants having known about these circulars continued to engage the service of the claimant for a stretch of 5 years and 6 months after his 6 months contract has lapsed; ii the defendant knew all along since 2012 when it became aware of these circulars and their implications, that the claimant had no future or possible career path with it, yet rather engage the claimant’s services for 5 years and 6 months after the contact employment had expired and iii. It was known to the defendant that there existed some circulars that may prevent the defendant from regularizing his employment, therefore, claimant can’t be said to have acquiesced to the action and inactions of the defendant. It is the contention of counsel that the facts and circumstances of this case has fascinating precedent upon which the court can find for the claimant and upon which this court is humbly urged to do so. The cases are OAU V ONABANJO (1991) 5 NWLR (PT.193) 549 at 570 and the case of DR. ADEWUNMI BILI RAJI V OBAFEMI AWOLOWO UNIVERSITY (2014) 22 WRN 45 at 53. It is the contention of counsel that the court in the cases invoke the doctrine of estoppel and held that the respondent confirmed the appointment of the appellant by conduct. These cases are on all fours with the claimant’s contention that the defendant herein by conduct have confirmed the employment of the claimant by placing the claimant on grade level SS6; step 1 with a consolidated salary of N3,444.226.00 It is the contention of counsel that on the authority of the case cited the defendant herein having made the claimant to so believe that his employment has been confirmed and regularized cannot now rescind to say the contrary. The defendant is estopped from denying that the claimant’s employment has not been regularized. On the applicability of estoppel to this suit counsel further relied on the cases of JOE IGA V EZEKIEL AMAKIRI & ORS. (1976) 11 SC 1, CHUKWUMA V IFALOYE (2009) 10 WRN 1, (2008) 18 NWLR (Pt118) 204; (2008) 12 SCM 325; (2009) ALL FWLR (Pt.460) 629. Counsel based on the argument canvassed urged the court to resolve issue one in favour of the claimant. ISSUE TWO; Whether this Honourable court will not consequently grant claimant’s reliefs (e), (f), (g), (h), (i) & (j) as indorsed on the writ and as captured vide paragraphs 30 (e) – (j) of the statement of facts. It is the contention of counsel that if issue one is resolved in favour of the claimant, then this court should proceed to grant the claimant’s reliefs (e) – (j). it is the contention of counsel that the necessary implication of resolving issue one in favour of the claimant is that his contract of employment has been confirmed and regularized by the defendant’s actions and or inactions and hence same have legal status/statutory flavor or as to invest this court with vires to order the absorption and reinstatement of the claimant as a permanent staff member of the defendant and placed on the appropriate grade level and step, calculated in line with the spirit and letter of the public service rules from March 2012 when by the operation of the law claimant transited from a contract employment to a full-fledged staffer of the defendant agency. It is submitted that one of the ingredient that must exist before an employment may be said to enjoy statutory flavor is that there must be express statutory provisions regulating the particular employment, especially in matters of discipline and disengagement. See IDONIBOYE V NNPC (2003) 9 NWLR (PT.805) 598; (2003) 1 SCNJ 87. It is also contended by counsel that employment of staffers of the defendant agency is garnished with statutory flavor having regard to the provision of section 9 (1) and (2) of the Petroleum Product Pricing Regulatory Agency (Establishment) Act, 2003 which clearly provides for the mode of employment and of the power delegated to the Board of the defendant agency to make regulations or conditions of service of officers and employees of the defendant. Counsel submitted that if issue one is resolved in favour of the claimant, logically the relationship that existed between the claimant and the defendant was not and cannot be by any stretch of imagination be classified on the simple archetypal and run-of-the-mill master and servant relationship but a relationship created by conditioned by and subject to the express provisions of the Petroleum Product Pricing Regulatory Agency (Establishment) Act 2003 on this contention counsel relied on the case of OLANITAN V UNIVERSOTY OF LAGOS (1986) (supra). Counsel submitted that this court is vested with power to grant reinstatement as prayed by the claimant. The law is firmly established that the court is bound to order reinstatement in cases of non-compliance with the legal procedure for the termination of employment with statutory flavor. On this submission counsel placed reliance on the case of NIGERIA GAS COMPANY LIMITED V DUDUSOLA (2005) 36 WRN 16. Counsel submitted since it is trite, cost follow event, this court is empowered to direct defendant to consequently grant reliefs (f) (g), (h), (i) and (j) by paying over to the claimant the shortfall of his accrued salaries from March 2012 when the defendant is presumed to have regularized and confirmed the employment of the claimant to the 25/9/17 when claimant’s employment was terminated, calculated on the appropriate grade level and step. On exemplary and punitive damages of N200,000.000.00 (Two Hundred Million Naira) only claimed by the claimant, on favourable determination of issue one claimant is entitled to exemplary and punitive damages. It is submitted nothing could be more arbitrary than the action of the defendant in relation to the violation of the claimant’s right. It is granted in cases of oppressive, arbitrary or unconstitutional acts by government servants as in the instant case. On this counsel relied on the case of ODIBA V MUEMUE (1999) 10 NWLR (pt.622) 174. In concluding his submission counsel urged the court to resolve the two issue in favour of the claimant and grant claimant’s reliefs as prayed. REPLY ON POINTS OF LAW The Defendant's reply on points of law is to the effect that in specific response to paragraph 3.2 of the Claimant's written address. It is submitted that the word as used "senior staff' implied the capacity to which Claimant work in the office. The Agency considered it as excessive to describe the Claimant to the commission as a "temporary senior staff'. The said letter was not directed to claimant as a confirmation of his employment as a permanent staff but a way of describing the strength of his engagement in Agency to the Commission which describing him as temporary or permanent staff in this regard will not be necessary. It is trite that the statement that an estoppel must be clear, precise or unambiguous primarily refers to the representation on which an estoppel by conduct may be founded and must have led a reasonable man to belief that such expression can be interpreted to mean confirmation of terms of employment as permanent. In the case of OLALEKAN V. WEMA BANK PLC (2006) 13 NWLR (pt.998) 617 at 625 - 626 paragraphs H - G (referred), the Supreme Court held that the doctrine of estoppels by conduct operates and apply in the following circumstances: (a) If a man by his words or conduct willfully endeavours to cause another believe in certain state of things, which the first know to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is stopped from averring 'afterwards that such a state of things does not exist at the time. (b) Also, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way in the belief of the existence of such a state of facts, to the damage of him who so believes and acts the first is estopped from denying the existence of such a state of facts. (c) Thirdly, if a man, whatever his real meaning may be, so conduct himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation of facts and the letter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage the first is estoppel from denying the facts as represented. The Supreme Court further at page 625 paragraphs F - H as follows: 'Estoppel is an admission or something which the law treats as equivalent to an admission of an extremely high and- conclusive nature that the party whom it affects is not permitted to aver against it or offer evidence to controvert it." Per BAGE, J.C.A. (Pp.22-23, Paras.F-G). Counsel argued that the issue in this case can be distinguished from that of OAU V. ONABANJO (1991) 5NWLR (pt.193) 549 at 570 and DR. ADEWUNMI BILl RAJI V OBAFEMI A WOLOWO UNIVERSITY (2014) 22 WRN 45 at 53 which were relied on by the Claimant, where there were no communication as to the reason for non-confirmation of his probationary employment to a permanent staff. In the instant case the Claimant is aware that the confirmation of his employment is conditioned on the approval of the government which he pleaded in paragraph 8 of his statement of fact. Having such knowledge, he is estopped by the doctrine of standing by, from denying that he belief he has been converted to a full-fledged permanent staff, where the condition precedent has not been achieved. Also, the claimant did not show or present to this court by way of evidence that he has written any letter to the defendant to request for his confirmation or otherwise the status of his contract of employment which is incumbent on him to do so. The general rule of standing by was laid down CAIRNCROSS V. LORIMER (1960) 3 L.T. 130, was adopted with approval by the West African Court of Appeal in MORAYO V. OKIADE AND OTHERS 8 W.A.C.A 46 at 47 and reads as follows "it is a rule of universal law that if a man either by words or conduct has intimated that he consents to act which has been done and that" he will offer no opposition to it although it could not have been lawfully done without his consent and he thereby induces that other to do that from which they otherwise might have abstained, he cannot question the legality of acts he has so sanctioned to the prejudice of those who have given faith to his words or fair inference to be drawn from his conduct. In such cases of proof of positive assent or concurrence is unnecessary, it is enough that the party had full notice of what was being and the position of the other party. Conflicting estoppel cancelled each other. On this counsel relied on Prof. Coke’s statement that ‘‘Estoppel against estoppel both put the matter at large’’ W. S. HOLDSWORTH A HISTORY OF ENGLISH LAW 151 (1926). Where a contract is conditioned precedent it can only be fulfilled upon the condition as stated in ORAKUL RESOURCES LIMITED & ANR. V. NIGERIAN COMMUNICATIONS COMMISSION & ORS (2007) ALL FWLR (Pt.390) that a "condition precedent" is one which delays the vesting of a right until the happening of an event. See ATOLAGBE V. A WUNI (1997) 9 NWLR (Pt. 522) 536 562 para F" Per ODILI, J.C.A. (P. 38, para; B-C) the condition precedent could not be achieved because of government directives which were pleaded in paragraph 12 of the defendant's statement of defence. The expressions of the Claimant that were not back with evidence are mere conjectures and speculations which he intends to draw the court into speculations. This Court cannot speculate as it is not a metaphysician, but to make use of cold facts properly presented before it. See ADISA V. STATE (1991) 1 NWLR (Pt. 168) 490 at 498, the court held thus, "Judges are not allowed by law to speculate or conjecture on possible facts. They are to make use of cold facts of the case as presented by the parties in the open court and use them. A judge is not a metaphysician; he is not even a soothsayer. He is simply a judge of law." What we mean simply is that, the Claimant has never shown any evidence that any of the other 37 persons affected were re-confirmed as permanent staff. More so, the Claimant cannot eat his cake and have it. The Claimant has collected his parting gifts without complaints as exhibited in DW01&2 by the defendant. By this singular act, the Claimant has compromised his position or right to ask for reinstatement. Finally, we urge your lordship to dismiss this suit. COURT’S DECISION: I have carefully perused the content of the processes filed in this court and the submissions of counsel for both parties. It is clear from the pleadings and the evidence adduced before the court that the claimant’s case is hinged on his belief that despite the expiry of his renewed six months temporary appointment, the defendant’s allowing the claimant to continue to work for the defendant and being paid salary for work done for a period spanning five years six months, is a pointer to the fact that the claimant’s contract of employment had been confirmed and regularized by the claimant. By implication the claimant is now a permanent staff of the defendant and his contract being that with statutory flavor and the purported termination of his appointment on 25/9/17 was ultra vires the power of the defendant. For the defendant, the claimant is a temporary employee of the defendant and that the termination of temporary appointment of the claimant was not unlawful neither was it ultra vires. The contract of employment was properly determined being one of master and servant relationship. It was also the position of the defendant that the claimant has not pleaded facts that will prove that the termination was unlawful. By his conduct and lack of proof the claimant is not entitled to the reliefs being sought and that the contract was ex facie illegal and therefore unenforceable. The defendant further maintained that the court cannot order reinstatement of claimant as court cannot impose willing employee on unwilling employer. Since the contract is that of master and servant relationship. The claimant placed heavy reliance on the cases of OAU v ONABANJO (supra) and that of (RAJI V OAU (supra) in urging the court to hold that his contract of employment with the defendant has been confirmed and regularized by conduct of the defendant in continuing to pay him salaries, nominating him to attend training and introduction to Netherlands Embassy as senior staff. According to the claimant these are the conduct of the defendant that encouraged him to continue to work for the defendant which gave him the impression that his appointment has been confirmed and regularized. It is pertinent at this juncture to consider the nature of the employment of the claimant and the evidence adduced before the court and see whether the case of the claimant can be supported. The provision of section 9 (1) & (2) of the Petroleum Pricing Pipeline Regulatory Agency, Act 2003, clearly conferred on the Board of the defendant power to appoint and discipline erring members of staff of the defendant. It is in the exercise of the powers conferred by section 9(1) & (2) of the Petroleum Product Pricing Regulatory Agency (Establishment) Act, 2003 that the claimant was given temporary appointment for a period of six month vide exhibits CW1A & DW1A. The temporary appointment of the claimant was renewed for another period of six Months vide exhibit CW1B & DW1B. It is to be noted that the conditions for appointments in the two situations differs. In exhibit CW1A & DW1A the contract is to be governed by the Public Service Rules and the NNPC’s Policy and Procedure Guide (PPPG). While vide exhibits CW1B & DW1B the contract of employment is at the pleasure of the Board of the defendant. Exhibit CW1H the Corporate Policy & Procedure Guide (CPPG) (2003) clearly supported this temporary appointment. It is without any doubt that by effluxion of time the initial temporary employment of the claimant as well at the renewed temporary contract have all been determined. The reason being that they were to last for specified period of six Months. With the expiration of the two terms of six Months each of the said contracts of employment as encapsulated in exhibits CW1A, CW1B, DW1A and DW1B have been extinguished for having been spent. It is the view of this court that there is nothing remaining of the contracts depicted in these exhibits for having been performed. This is because a contract can be determined by performance or lapse of the period of performance, as has been with the temporary appointment of the claimant. Going by the Supreme Court decision in the case of THOMAS V LOCAL GOVERNMENT SERVICE BOARD (1965) LPELR-25204(SC), (1965) 1 ALL NLR 174, temporary appointment can be justified as the law allows making of such appointment. The reason being that the power to make an appointment includes both the power to appoint for an indefinite period and the power to appoint for a fixed period; the apex court gave example to the effect that a school teacher might, for example, be appointed for one term, or an engineer for the duration of a particular piece of work or on probationary. These are appointments that are recognized by a well-known practice. This case is an authority for the view that the claimant ceased to be an employee of the defendant on 31st March 2012 as per exhibits CW1B and DW1B when his last appointment expired, and that this action, being based on the assumption that his temporary appointment was still subsisting in April 2012 when defendant decided to allowed him to continue to serve defendant and get paid salary up to 25/9/17, is totally misconceived. Having determined that there is nothing left of the contracts created by exhibits CW1A, CW1B, DW1A and DW1B, the next question to answer is the status of the services rendered by the claimant to the defendant from April 2012 to 25/9/17, when the defendant determined the claimant’s contract. The answer to this question is very necessary and it is what will determine whether the claimant is entitled to the reliefs being sought or not. It is pertinent to note that in law contract of employment like all other contracts can be created in writing, by conduct of parties or orally. See section 91 of Labour Act. An employee is a person who has entered into, or works under a contract of employment. A contract of employment on the other hand, means any agreement whether oral or in writing, express or implied whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. See SCC LTD V AFROPAK NIG. LTD (2008) ALL FWLR (PT.4256) 1827; IYERE V BENDEL FEEDS AND FLOUR MILLS LTD (2009) ALL FWR (PT. 453) 1217; It is clear from the facts as disclosed by the pleadings of the parties and evidence before the court that, the continuation by the claimant to work for the claimant after the expiration of his temporary appointment and the continuation of payment of salaries for work done by the defendant, is a clear proof that the claimant and defendant have entered into a fresh contract of employment. However, what is baffling is that the contract created was not in writing to have specified terms of the engagement. It was also not orally agreed by the parties. Rather the contractual relationship was created by conduct of the parties. This is evident in the claimant rendering service to the defendant and the defendant paying for the services rendered. The defendant claimed that vide exhibit DW1J1-4 and DW1K1-3, the defendant renewed the temporary appointment of the claimant on Monthly basis. For the claimant the continuance of payment of his salaries by the defendant vide exhibit CW1G1-21, clearly shows that the defendant has confirmed and regularized his appointment to that of permanent staff. I have perused the content of exhibits CW1A, CW1B, DW1A and DW1B, there is nothing in them to suggest that the defendant has intended to confirm or regularize the claimant’s temporary appointment to that of permanent employee. As earlier pointed out in this judgment the contract created by the temporary appointment has been extinguished by effluxion of time. This means the continuation of rendering services by the claimant to the defendant and getting salary for it goes to establish a fresh new contract of employment between the claimant and the defendant. By the evidence of the claimant it can be deduced that he continued to work in anticipation of him being employed whenever there is approval from government to recruit employees for the defendant. And there is no evidence to establish that the defendant has gotten government approval to recruit and denied the claimant opportunity of being employed as per the anticipation of the claimant. The dependent through DW1 has stated that the contract of employment of the claimant was renewed on Monthly basis. This submission on purported renewal of contract by exhibit DW11-4 and DW1K1-3, is no renewal the reason being that the initial contract granted to claimant was for six months which was renewed and expired on 31/3/12. If the defendant had wanted to renew the claimant’s contract of employment it would be for another six month and not on Monthly basis as DW1 want the court to believe. Another problem with the purported renewal is that it was never communicated to the claimant. In the circumstance what the payment of salary goes to show is that there is a new contract of employment created. In contract of employment the relationship between employer and his employee is a contractual one and is governed by the terms and conditions of the contract between them. This means an employee is only entitled to make claims from his employer based on stipulations contained in the terms and conditions of the contract. See NWAUBANI V GOLDEN GUNEA BREWERIES PLC (1995) 6 NWLR (Pt.400) 184. The provisions of section 9(1) and (2) of the Petroleum Pricing Regulatory Agency Act 2003 unequivocally conferred on the Board of the defendant with powers to employ and take disciplinary action against any member of staff of the defendant that deviate. The Board of the defendant has not made any regulations to govern the employment and disciplinary measures to be taken in any event where the case for doing so arises. The position taken by the claimant and the defendant regarding the nature of employment of the claimant may have been because the claimant’s employment was not reduced into writing. However, the payment of monthly salary by the defendant to the claimant spanning the period April 2012 to 25/9/17, clearly goes to show that the claimant’s appointment is a permanent one. This position is strengthened by the fact that the engagement was not seasonal or intermittent, rather it was continuous and carried out at the premises or workplace of the employer. The evidence before the court clearly shows that the claimant served the defendants for over three years, this has made his contract of employment permanent and entitled him to all the rights and privileges of a permanent worker under the Labour Act. This is because there is no written contract between the parties. Section 7(1) of the Labour Act provides as follows:- ‘‘Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying:- 1. The name of the employer or group of employers, and where appropriate, of the undertaking by which the worker is employed; 2. The name and address of the worker and the place and date of his engagement; 3. The nature of the employment; 4. If the contract is for a fixed term, the date when the contract expired; 5. The appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to section 11 of this Act. 6. The rate of wages and method of calculation thereof and the manner and periodicity of payment of wages; 7. Any term and conditions relating to:- (i) hour of work; or (ii) holidays and holiday pay; or (ii) incapacity for work due to sickness or injury, including and provisions for sick pay; and any special conditions of the contract’’. Applying the above provisions of the law, to the facts of this case one can without any fear of contradiction state that the claimant in this case has proved the existence of contract of service between the claimant and the defendants which was not reduced into writing, but entered into by conduct of parties. It is apparent from the evidence before the court that the defendant has breached the provisions of section 7(1) of the Labour Act, for not providing the claimant with written terms and condition of service required to be made available to the claimant not later than three months after the beginning of his work with the defendants. In view of the state of pleadings and evidence in proof showing that the claimant has worked continuously for over three years for the defendants, he is in the eye of the law not a temporary worker, but a permanent employee as against the position of the defendants. Having shown from the pleadings of the parties and their testimony, the existence of contract of service between the claimant and the defendant, what remain to be shown is whether the claimant has established the condition of service and how the contract was breached by the defendant. The law is trite that where the contract of service was entered into by way of conduct, and where there are no express words available, the terms and conditions will be inferred from the evidence and circumstances surrounding the case as well as conduct of the parties and statutory provisions See DANIELS V SHELL BP PETROLEUM DEVELOPMENT (1962) 1 ALL NLR 19, B. STABILINI & CO. LTD V OBASA (1997) 9 NWLR (PT.520) 293, BUHARI V TAKUMA (1994) 2 NWLR (PT.325) 183, the court in this case held that where there is no written document evidencing contractual relationship, the court will fall back on the circumstances surrounding the relationship between parties as narrated by both of them to determine whether there was such a contract. Also in IBAMA V SHELL PETROLEUM CO. NIG. LTD 1998 3 NWLR PT.542 493, the court lucidly stated that in certain contracts where no such express words are available, then implied terms may be imported into the contract in so far as they do not contradict the express terms of particular contract. There is no doubt the admission of the defendant that the claimant’s appointment was renewed on Monthly basis coupled with the admission under cross-examination by DW1 of not issuing letter of renewal to the claimant and provisions of section 91 of Labour Act have established existence of contractual relationship between the claimant and the defendant. The absence of written agreement to that effect notwithstanding. In any event where there is absence of conditions of service, like in the present case, the court will be right to look into the surrounding circumstances of the case vis-à-vis the accepted practice or custom regulating the employment. The court will in the absence of any condition of service resort to the provisions of labour Act and case law in deciding the dispute between the claimant and the defendants in this case. In view of the absence of regulations made by the Board and absence of written terms of the contractual agreement of the parties, this court has no choice than to resort to the provisions of Labour Act to determine the status of the claimant’s engagement with the defendant. The claimant has averred that the defendant contrary to Public Service Rules and the Corporate Policy and Procedure Guide, unceremoniously terminated his appointment despite the fact that the conduct of the defendant has given him impression that he has been confirmed and regularize his position. The claimant also maintained that his contract of employment has statutory flavor. The defendant on the other hand insisted that the relationship between the claimant and the defendant is that of master and servant and that the defendant has every right to determine the contract of employment for good or bad reasons. It is trite law that he who assert has the burden of proof see section 131 of the Evidence Act and the case of VEEPEE INDUSTRIES LIMITED V COCOA INDUSTRY LIMITED since the claimant asserted that his employment has statutory flavor he has the burden of proving that assertion. See section 132 Evidence Act 2011. It is the claimant that must prove that his employment has a statutory flavor rather than the defendant. So also must he prove that termination of his appointment was wrongly? See Nigeria Gas Co. Ltd vs. Audusola (2005) 18 NWLR (Pt.957) page 292. Two of the vital ingredients that must coexist before a contract of employment may be said to import statutory flavor include the following: (a) the employer must be a body set up by statute; and (b) the stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline. See P.C Business Pred Ltd vs. Gray (1977) ICR 858. The defendant in the case at hand was indeed created by statute but the claimant failed to show where the statute provided for the procedure for employment, termination, retirement or indeed dismissal of the employee. It would appear from the above that power resides in the board of the Appellant See 9(1) & (2) of the Petroleum Pricing & Regulatory Agency, Act 2003 which provides thus: (1) "The Board shall appoint for the agency, such officers and other employees as it may from time to time, deem necessary for the purpose of the agency. (2) The terms and conditions of service (including remuneration, allowances, benefits and pension) of officers and employees of the agency shall be determined by the Board.’’ The above provisions of the law does not show that the claimant’s employment enjoyed statutory flavor to entitle him to a reinstatement. A party who complains that his employment has been wrongly brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful. Okomu Oil Palm Co. Ltd vs. Iserhienrhien (2001) 6 NWLR (Pt.710) 660, Idoniboye-Obu vs. N.N.P.C (2003) 2 NWLR (pt. 805) 589. It is indeed, the Claimant who has the burden of proving that his employment has a statutory flavor. An employment is said to have a statutory flavor when the appointment and termination is governed by statutory provisions. In other words, where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, it invests the employee with a legal status higher than the ordinary one of master and servant. Hence, such an employment is said to enjoy statutory flavor. See Auchi Poly V. Okuoghae (2005) 10 NWLR (pt.933) 279 CA, Olaniyan vs. University of Lagos (1985) 2 NWLR (pt. 9) 599, Shitta-Bey V Federal Civil Service Commission (1981) 1 SC 40, Ridge Vs. Baldwin (1963) 2 All ER 66. In the case at hand it is the claimant who must prove that his employment has a statutory flavor rather than the defendant. So also must he prove that the termination of his employment was wrongly? See Nigeria Gas Co. Ltd vs. Audusola (2005) 18 NWLR (Pt.957) 292. From the authorities dealing with statutory flavor two of the vital ingredients that must coexist before a contract of employment may be said to import statutory flavor include the following: (a) the employer must be a body set up by statute; and (b) the stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline. See P.C Business Predd Ltd vs. Gray (1977) ICR 858. The defendant in this suit was indeed created by statute but the claimant failed to show where the statute provided for the employment, termination, retirement or indeed dismissal of the employee. It would appear from section 9(1) 7 (2) the power resides in the board of the defendant. The claimant complaint and without promotion throughout claimant’s five year and six months meritorious service to the defendant and seeking for mandatory order of this Honourable Court directing the defendant to absorb and reinstate the claimant as a permanent staff member of the defendant agency and placed him on the appropriate grade level and step, calculated in line with spirit and letter of the public service rules as from march 2012, this clearly shows that the claimant is oblivious of his contract of service with the defendant. The assertion of the claimant that the defendant is in breach of the public service rules regarding non-confirmation, regularization of claimant’s employment is bereft of facts to support the assertion. The reliefs being sought on the basis of public service rules seems to be suggesting that the claimant’s contract of employment was made or that he was employed under the Federal Civil Service Commission and that his employment can only be treated for all intent and purposes under the public service rules. Under the public service rules appointment is done by the authority of Federal Civil Service commission. The appointment is made either by letter written by the direction of the Federal Public Service Commission; or by formal agreement between the officer and the Federal Government or its appointed agents. See Rules 020101 of the Public Service Rules. Subject to Rules 02205, 02206, and 02207, Heads of Departments are authorised to appoint eligible candidates to posts in respect of which the powers of appointment have been delegated to them. Rules 02205, 02206 and 02207 referred to deal with eligibility for appointment and procedure for appointment. Rule 02207 (a) provides that: "All applicants for senior posts are required by the Federal Public Service Commission to complete Form No. FC.2 as a result of which their antecedents are carefully scrutinized before they are invited for an interview for appointment." There are similar provisions for junior posts. The candidate may thereafter be made an offer of appointment. The provisions then following made in Rule 02207(b)(iii) and (iv) read thus: "(iii) If the candidate accepts the offer by returning within the specified time limit, Form No. Gen. 75 completed in EVERY PARTICULAR he should be issued with a letter of appointment on Form No. GEN. 69C, copies of which should be endorsed to the Permanent Secretary to the Ministry of Establishments and Service Matters, and to the Accountant-General of the Federation and the Auditor-General of the Federation. (iv) In the case of an appointment to the pensionable establishment, Form No. Gen. 60 should accompany the copy of Form No. Gen. 69C sent to the Ministry of Establishments." It is clear as day light that to say that it is when it has been satisfactorily established that an employee was appointed under the Federal Government Civil Service Rules as provided above that the question of his removal in compliance with the relevant provisions of the said rules can arise. In the case at hand there is no evidence adduced before the court to the effect that the claimant undergoes through the above stated process of appointment into the Federal Civil Service Commission, nor was there any evidence that the claimant was employed by the authority of the Federal Public/Civil Service Commission by letter written by the direction of the Commission or by formal agreement between the respondent and the Federal Government or its appointed agents as provided in Rule 02101. There is no evidence that the procedure for appointment into the Federal Civil Service by the authority of the Commission was followed by, or was applicable to, the claimant or the defendant. The claimant himself said that he was not employed via a written agreement. So how then could the claimant claim under the public service rules? All that is before the court is assumption and figment of imagination by the claimant. In view of absence of credible evidence to establish that the claimant was appointed under the Federal Civil Service Commission, I hold that his employment is not governed by the provisions of Public Service Rules. This finding equally applied to the NNPC’s Corporate Policy & Procedure Guide (CPPG), as the claimant was not appointed under that policy he cannot rely on it to make a case under it. In view of the finding that this case is not governed by Public Service Rules, or the Corporate Policy & PROCEDURE Guide (CPPG) and that the employment of the claimant is not one that has statutory flavor since the provisions of section 9(1) 7(2) of the Petroleum Pricing & Regulatory Agency, Act 2003 did not expressly make provisions for appointment and discipline of the employee of the defendant, the claimant contract of service is governed by the common law and labour law. And I so hold. As pointed out earlier at common law a master can at any time for any or no reason terminate the employment of his employer. All that is required is for necessary notice of termination to be given or payment in lieu of notice. There is no evidence before the court to show that notice of termination was given or payment in lieu of notice has been made. In the circumstance I shall in line with the provision of section 11 of Labour Act, considering the length of service put in by the claimant with the defendant, the defendant is to pay one month salary in lieu of notice to the clamant as what the claimant is entitled to in law. Before I end this judgment it is incumbent on me to comment of the issue of heavy reliance placed by the claimant on the cases of ONABANJO V. OAU (supra) and RAJI V OAU (supra) on deeming of contract of employment confirmed. These cases are not applicable to the case at hand. The two cases dealt with situation of appointment on probation and not temporary appoint as was the case of the claimant in this suit. In the two cases relied by the claimant to make case for estoppel by conduct, the claimants in those cases were specifically employed under provision for certain period. While in the case of the claimant in this case he was not appointed under probation, his appointment was for a specified period of time precisely six months in the first instance and it was renewed for another period of six months. In view of the foregoing, it is hereby ordered as stated below:- 1. There is nothing in the public service or Corporate Policy & Procedure Guide that mandate the defendant to confirm or regularize a fixed term of contract of service not governed by public service rules or the policy. 2. The defendant’s keeping of the claimant in its employ and paying claimant salary after the expiry of fixed term cannot amount to confirmation or regularization of the fixed terms of contract of service that has expired as there was nothing left to confirm or regularized. 3. The keeping of the claimant in the employ of defendant amount to creation of a fresh new contract of service between the claimant and the defendant by conduct of the parties governed by the common law and the labour law. 4. The new contract created by conduct having not been provided for in the rules and regulation of the defendant or terms specificied in writing cannot be said to have statutory flavor. Rather it is a master and servant relationship that was created. 5. Generally, promotion in service is not automatic it is earned. The claimant has not adduced evidence for earning promotion to warrant the court granting him promotion. 6. There is also no evidence to establish alleged shortfall in the claimant’s pay. 7. The claimant is not entitled to payment N200,000,000.00 damages as there is no proof to that effect. The claim is vague as there was no particularization. 8. The defendant is hereby ordered to pay the claimant one month salary in lieu of notice for wrongful termination of appointment without giving claimant notice. 9. Cost in the sum of N500,000.00 is hereby awarded to the claimant against the defendant. 10. All judgment sums shall be paid within 21 days from today, failure of which will attract 10% interest per annum.. Judgment entered accordingly. Sanusi Kado, Judge.