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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B.B. Kanyip - Presiding Judge Hon. Justice V. N. Okobi - Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice O. A. Obaseki-Osaghae - Judge Hon. Justice .1, T. Agbadu-Fishim - Judge Date; 2nd April, 2009 SUIT NO. NIC/28/2007 BETWEEN 1) Mrs. Olufunmilayo Fadairo 2) Kabiru Adewale Yusuf 3) Adedapo Deko 4) Mrs. A. A. Modupe Adegunde 5) Adegoke Olusola 6) Alfred Sunday Oguntuase 7) Lateef Ololade Akilo (S) Isola Abel Oyedeji 9) Ayodele Raufu 10) Johnson Oke 11) Timothy Akinremi Applicants AND Lagos Building Investment Company Limited Respondent REPRESENTATION Prince Ademola Adewale, for the applicants Gani Bello, for the respondents JUDGEMENT The applicants brought this action by way of an originating summons dated 11th June 2007 praying for the following reliefs: 1) A declaration that the employment of the applicants is governed by their respective contract agreement as well as the respondent's employee handbook and collective agreement. 2) A declaration that the purported verbal transfer/redeployment of the applicants lo the mainstream of Lagos State Civil Service is unlawful and ineffective. 3) A declaration that the applicants are still in the employment of the respondent company and are thus entitled to salaries and allowances till date and beyond then- appointment having not been lawfully determined. (4) A declaration that the applicants on record are still in the employment of the respondent company and accordingly entitled to their salaries, allowances, and other benefits as other workers of the same grades in the company up till date and beyond. 5) An order directing the respondent to pay to the applicants all their salaries, allowances and other perquisites from February 2006 to date at the current rates paid to other workers of the same grades in the company and or in the alternative pay the applicants due compensation on the ground of lawful retirement. 6) An order declaring the purported verbal transfer exercise by the respondent as illegal, null and void and of no effect whatsoever. The grounds upon which this summons is predicated are: 1) The respondent is not under any obligation to transfer the applicants to any other establishment other than the respondent company. 2) The appointment of the applicants is governed by their respective contract of service together with the employee handbook of the respondent. 3) The purported transfer of service to the mainstream Civil Service of Lagos State in 2006 as they affect the applicants is not in consonance with the applicants' terms of employment. 4) The respondent is an autonomous limited liability company under CAMA 1990 and licensed by the Federal Mortgage Bank and CBN to carry on mortgage financing and is, therefore, distinct in structure and form from the Lagos Slate Civil Service. The applicants went further to state that they shall seek the following reliefs: 1) A declaration that the employment of the applicants is governed by their respective contract agreement as well as the respondent employee handbook, collective agreement. 2) A declaration that the respondent verbal directive to the applicants to embark on transfer of service to the Lagos State Civil Service is in breach of the contractual relationship between the applicants and the respondent. 3) An order declaring the purported verbal transfer of service of the applicants by the respondent to the Lagos State Civil Service as invalid, null and void and of no effect whatsoever. 4) An order directing the respondent to reinstate the applicants immediately to their respective posts in the respondent's employment without loss of status OR in the alternative payment of due statutory compensation/benefits clue to the applicants on the ground of normal retirement. The originating summons is supported by a 26-paragraphed affidavit sworn to by Mrs. Elizabeth Olufunmilayo Fadairo and to which is attached Exhibits A - K. Upon service of the originating summons, the respondent filed a notice of preliminary objection dated 10th September 2007 challenging the jurisdiction of the court to hear the applicants' suit. This notice of preliminary objection was subsequently withdrawn by respondent's counsel at the sitting of the 9th October 2007 and was accordingly struck out. Thereafter the respondent filed a 36-paragraphed counter-affidavit dated 1st February 2008 which was sworn to by Mojeed Adekunle Akindele to which are attached Exhibits. The applicants in response filed a 10-paragraphed reply to the counter-affidavit, which was sworn to by Timothy Akinremi on the 25th February 2008, A further and better counter-affidavit sworn to on the 28th March 2008 by Mojeed Adekunle Akindele consisting of 7 paragraphs was filed by the respondent. A 16-paragraphed reply to the further and better counter-affidavit was filed and sworn to by Timothy Akinremi on the 5th December 2008. Both parties agreed that this suit be settled on the record and in furtherance of this, they filed and exchanged written addresses. The applicants' written address is dated 22th February 2008 while the respondent's written address is dated 27th March 2008. The applicants also filed a reply on points of law which is dated 4th December 2008. The parties adopted their written addresses and made oral submissions to further explain issues raised therein. The applicants' counsel began by relying on all the paragraphs of both their affidavits and the exhibits attached thereto, and stated that the applicants were employees of the respondent, a mortgage banker, and carried out duties in various departments of the company. That they have served the respondent in various capacities which have earned them promotions and merit awards and that their employment was governed by the company's handbook and the collective agreement between the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSIBIFI) and the Nigeria Employees Association of Banks, Insurance and Allied Institutions (NEABIAI). Counsel stated that the respondent company by a memo dated 20th February 2006 to "All members of staff subject: RE: Transfer of Service" purportedly transferred the applicants along with some others to the mainstream of Lagos State Civil Service contrary to the contract of service between the applicants and the respondent. That the applicants felt aggrieved with this decision and after various appeals, nothing was done to correct or assuage their grievances. They, therefore, decided to approach this court to seek the reliefs sought for in the originating summons. The applicants' counsel formulated the following issues for determination: (i) Whether the applicants who were employed directly by the respondent, a limited liability company incorporated in Nigeria without reference to or connection with the Lagos State Civil Service, can lawfully be transferred from the service of the respondent company simply in compliance with Lagos State Civil Service directive as purported to be in the respondent's memo dated 20th February 2006. (ii) Whether the applicants, employed by the respondent company with appointment letters issued to them and who at all material times have remained in the employment of the respondent company without any termination of appointment or retirement from the service of the respondent company being communicated to them, are presently not staff of the respondent company and thus entitled to salary and allowances from the respondent up to date and beyond as long, as they remain employees of the respondent company.- (iii) Whether persons whose employment contract has not been determined can by taking a benefit (e.g. contribution to welfare fund) arising from the purported transfer cure any invalidity or illegality in their employees' contract. On issue 1, the applicants' counsel submitted that the respondent has no power, whether statutory or contractual, to lawfully transfer the applicants to the Lagos State Civil Service simply in compliance with the Lagos State Civil Service directive as stated by the respondent in paragraph 5 of its counter-affidavit. He cited the Supreme Court decision in the case of Okomu Oil Palm Co Ltd v. Iserhienrhien [2001] 3 SC 1 at 163 paragraphs 25 - 34 where it was stated as follows: Besides, having a controlling number of shares in a company is not synonymous with its ownership once it is incorporated as an entity of its own and having its own separate legal existence. Whatever impression was given in this case that the Federal Civil Service Commission sat in the background and maintained a direct or remote control over the activities of the appellant by applying thereto its rules - a corporate entity with its own legal existence - must be rejected as a wrong and ill conceived legal position. Counsel further submitted that as there was no contract of service between the applicants and the Lagos State Civil Service, the respondent cannot rely on the directive of the Lagos State Government as claimed in paragraph 5 of the respondent's counter-affidavit and the respondent's Exhibit A to transfer the applicants contrary to their employment contract with the respondent. He argued that since the respondent failed to exhibit the said directive, there was no such directive. Counsel then cited the case of Ekanem v. NNMC [2004] 1 NLLR 357 at 366 and submitted that the failure of the respondent to exhibit the Governor's directive was offensive to section 149(d) of the Evidence Act LFN 1990 and that even if the Governor's directive existed, the carrying out of such a directive by the respondent is ultra vires the powers of both the Governor and the respondent and, therefore, null and void. On issue 2, the counsel submitted that the applicants are still in the employment of the respondent company having not been formally terminated or retired by the respondent up till date and that mere notice of transfer cannot be the same as a letter of determination. He relied on the case of Ekanem and ors v. NNMC, supra, at page 366 Ratios 12 and 13 and Okomu Oil Palm Co. Ltd v. Iserhienrhien, supra. Counsel further submitted that the respondent in paragraph 6 of its counter-affidavit had admitted that the applicants' services were not terminated but transferred to the Lagos State Civil Service'. That the respondent has not denied the facts staled in paragraphs 7 and 8 of the applicants' affidavit in support of the originating summons which is tantamount to admission. The applicants' counsel also submitted that the respondent has admitted that the applicants' Exhibit B, which is the respondent's handbook, is what governed the employment of the applicants. He referred to chapter 5 of the handbook particularly pages 8, 9, 10 and 11 and submitted that no where in the handbook is there provision for transfer outside the respondent mortgage bank and;' therefore, the transfer is illegal null and void. Learned counsel urged the court to hold that the respondent's action is not in compliance with the provisions of the handbook and submitted that the applicants are still in the employment of the respondent company until their employment is lawfully determined in accordance with Exhibit B, the handbook, and are, therefore, entitled to their salaries and other allowances. He further submitted that there was no valid act of transfer or determination and urged the court to hold that the appointment of the applicants is still subsisting in the absence of any lawful determination of the appointment of the applicants. On issue 3, counsel submitted that parties cannot by agreement legalise an illegality and that the respondents' Exhibits D - L which is a mere demand of the applicants' own contribution to the staff welfare fund cannot be termed to be an acceptance of transfer neither is it sufficient to bring a contract of employment to an end or be a waiver. He cited the cases of Adeniyi v. Governing Council Yaba College of Technology [1993] 6 NWLR (Pt. 300) 426 and Military Administrator of Benue. State v. Ulegede and anor [2006] 5 NLLR (Pt. 11) 1 at 8 Ratio 5 where it was held that - The compulsory retirement of an employee whose employment has statutory flavour even on grounds of misconduct, and when same is void cannot be rendered valid because the employee applied for benefits thereunder. Finally, the applicants urged the court to hold that the transfer carried out by the respondent was ultra vires and to grant all the reliefs sought by the applicants. The respondent began its defence by adopting its brief and relying on all the exhibits and facts deposed to in its counter-affidavit and its further and better counter affidavit. The respondent's counsel began by stating that the applicants were employed on different dates and in different circumstances. That (he 1st, 3th and 8lh applicants were employed by the respondent company while the 6lil, 7lh, 9th, 10th and llth applicants were employed by the Lagos Building Investment Corporation, lie stated that the letters of employment of the 2nd, 4lh and 5th respondents were not exhibited. That by an internal memo dated 20th February 2006 issued by the respondent company, whic1 is the respondents' Exhibit A, pursuant to the directive of the Executive Governor of Lagos State, 37 members of staff of the respondent were transferred to the main stream of the Lagos State Government i.e. the Lagos State Civil Service and the 11 applicants in this case were part of the 37 members of staff of the respondent who were so transferred. That apart from the 11 applicants herein all other members of staff who were transferred per Exhibit A have settled in the Lagos State Civil Service where they were placed on commensurate salary grade levels. Counsel stated that the applicants herein also reported in the office of the Lagos State Head of Service as directed. That in April 2006 they requested for their contributions to the welfare development fund, which was paid and in September 2006. That the applicants wrote two different letters to the respondent wherein they demanded for 3 months arrears of salary and allowances which the respondent refused to pay as contained in applicants' Exhibits E and F. That the applicants have now resorted to this suit after the respondent maintained in its letter dated 1st March 2007 that it is not indebted to the applicants; this letter is marked as applicants' Exhibit K. The respondents' counsel then formulated two issues for determination which are as follows: (i) Whether in the circumstances of this matter the respondent company is not empowered by law to transfer the services of the applicants to the mainstream of Lagos State Government (i.e, Lagos State Civil Service), (ii) Whether the applicants have not ceased to be employees of the respondent with effect from 2006. On issue 1, the respondent began by admitting that it is a limited liability company and that the applicants' employment with the respondent is governed by the respondent's employee handbook. That the transfer to the Lagos State Civil Service having been effected pursuant to the directives of the Lagos State Governor was lawful and in accordance with due process. That Lagos State Government has controlling shares in the respondent company and that the provisions of chapter 4 of the respondents' handbook (Exhibit B) captioned Government Legislation states that: the general staff rules and regulations are subject and subordinate to legislation enacted by the Government of Nigeria and Lagos State Government. The respondent's counsel then submitted that under and by virtue of Lagos State Legal Notice (LSLN) No 15 tilled "Standard Condi lions of Service for Lagos State Parastatals" published as Lagos State of Nigeria Official Gazelle No. 36, Vol. 14 of 17lh July 1981, the power of the respondent to transfer the applicants to Lagos State Civil Service is clearly stated without ambiguity. That Regulation 1 of the legal Notice states that the conditions of service for Lagos State Parastatals "shall be read m conjunction with circular instructions and Gazette Notice" and in Regulation 3(1) under interpretation, " Parastatals " is defined as "Corporations, Commissions, Councils, Authorities, Boards and Committees established under the Laws of Lagos State and Companies fully or predominantly owned by the Lagos State Government". That the letters of employment of the applicants were not all issued by the respondent as some were issued by the Lagos State Building Investment Corporation, the predecessor of the respondent. Consequently, the respondent submitted that the applicants are bound by and subject to the provisions of the Standard Conditions of Service for Lagos State Parastatals -LSLN No. 15 of 1981. Counsel also submitted that Regulations 90.1 and 90.2 of LSLN No.15 of 1981 deal with movement of officers to the service of another Parastatal or Civil Service and that such movement which could be at the request of the officer or by directive is referred to as secondment. He further submitted that transfer and secondment are the same and both can be used interchangeably. Counsel argued that since the transfer was pursuant to the directives of the Governor, it was in the public interest and that there is no affidavit evidence to deny the directive of the Lagos State Governor, lie referred to the case of Arabambi v. A.H.I. Ltd [2006] 3 MJSC 61 at 100 where Kalgo, JSC stated as follows - I think it is now settled that a court can properly accept and rely upon any evidence before it which is unchallenged and uncontroverled provided that it is relevant to the issue before it. Counsel further argued that the directive of the Governor is self evident in Exhibit A and that if the transfer of the 37 members of staff of the respondent was not pursuant to the Governor's directive, it would not have been possible to absorb the 26 members of staff of the respondent company into the Lagos State Civil Service on commensurate salary grade levels. He cited the case of Akintola and anor v. Solano [1986] 4 SC 141 at 184 to the effect that if a thing is self evident, it does not require evidence. Learned Counsel also referred to section 74 of the Evidence Act and submitted that it is the duty of the court to take judicial notice of Nigerian laws, enactments and other subsidiary legislation like the Standard Conditions of Service for Lagos State Parastatals LSLN No. 15 of 1981. He cited Abaye v. Ofili [1986] 1 NWLR (Pt. 15) 134 and Ado Ibrahim & Co v. Bendel Cement Coy Ltd [2007] 4 SC (Pt. 1) 33 at 54. He also submitted that the language of Standard Conditions of Service for Lagos Parastatals LSLN No. 15 of 1981 is plain, clear and unambiguous and the court should give effect to the provisions of the enactment in their literal interpretation. He referred to the cases of Obi v. INEC and ors [2007] 7 SC 268, Action Congress and anor v. INEC [2007] 6 SC (Pt. 11) 212 at 228, Uwazurike & Co v. AG Federation [2007] 2 SC 169 at 179, Global Excellence Comrn. Ltd and ors v. Duke [2007] 7 SC (Pt. 11) 162 at 176, Nnonye v. Anyichie [2005] 3 MJSC 1 and FRN v. Osahon [2006] 4 MJSC 1. Counsel then urged the court to resolve issue 1 herein in favour of the respondent and hold that by the combined effect of the applicants' Exhibit B i.e. the respondent's handbook and the Standard Conditions of Service for Lagos State Parastatals LSLN No. 15 of 1981, the respondent has power to transfer the applicants to the Lagos Slate Civil Service. On issue 2, counsel submitted that by virtue of section 134 of the Evidence Act, the onus is on the applicants to prove that they are still in the employment of the respondent. He referred to the dictum of Pats Acholonu, JSC in the ease of Adebayo v. Shogo [2005] 4 MJSC 35 at 40 to the effect that - Facts are the bedrock, nay the fountain head of law. The court does not apply law in a nebulous clime. In other words, it has to scrupulously subject all the facts pleaded and elicited in the evidence to merciless scrutiny to determine which party's case preponderates over the other. The facts are tools in the hands of a great advocate. The respondent's counsel further submitted that upon the issuance of the internal memo (respondent's Exhibit A), which announced the transfer of 37 members of staff to the Lagos State Civil Service, the applicants ceased to be on the pay roll of the respondent. That the applicants' Exhibits E and F confirm that they have been transferred to the Lagos State Civil Service with effect from February 20th 2006. Counsel then argued that the applicants' Exhibit D, being a Newspaper not published by the applicants or issued by the respondent, has no probative value and urged the court not to rely on it. He submitted that the claim by the applicants that they are still in the employment of the respondent cannot be sustained having expressly admitted that they have been transferred. He cited the case of Civil Design Construction Nig. Ltd v. SCOA Nig. Ltd [2007] 2 SC 195 and argued that in light of the respondent's Exhibits B to L, which are the applicants requests for payment of their contribution to the staff welfare fund, and which was paid to them, the applicants' contention that they are still in the employment of the respondent cannot hold in the face of this evidence. The respondent's counsel also argued that after the transfer of the applicants to Lagos State Civil Service, the issue of their salaries, allowances and terminal benefits should be directed to the Lagos State Civil Service and not the respondent company as the applicants ceased to be staff of the respondent with effect from February 2006. The applicants, he submitted, are not entitled to claim for their salaries and allowances from the respondent from February 2006 up to date. Counsel further submitted that the applicants' alternative claim for due compensation on the ground of lawful retirement is misdirected as the applicants were not-retired by the respondent but transferred. That having admitted the transfer of their services to Lagos State Civil Service, they cannot turn to the respondent for retirement benefit or compensation and that whatever happens between the applicants and Lagos State Civil Service is not the concern of the respondent. Counsel also submitted that issue 3 raised by the applicants' counsel in his written address is irrelevant as it does not arise from the affidavit evidence before the court and urged the court to discountenance it. Finally, he submitted that the applicants are not entitled to any of the reliefs claimed in the originating summons and same ought to be dismissed. He cited the case of Obi v. INEC, supra. In reply on points of law, the applicants' counsel drew the court's attention to the fact that the respondent filed along with its written address, a further and better counter affidavit where new facts were deposed to. That arising from the fresh facts is the following issue: Whether the respondent followed due process or complied with the enabling laws in force in their purported transfer of the applicants to the mainstream of Lagos State Government. Learned counsel to the applicants submitted that Regulations 90.1 and 90.2 of LSLN No. 15 of 1981, which the respondent counsel relied, or deal with secondment and not transfer, and do not apply to the applicants as they are not on secondment to any establishment. That Regulation 90.1, which deals with secondment, provides that it is at the request of the officer concerned and it makes provision for specificity of assignment. Counsel agreed that there is the Standard Conditions of Service for Lagos State parastatals LSLN No. 15 of 1981 and referred to the interpretation section for the meaning of Parastatals, Secondment and Transfer. He also drew the court's attention to Regulation 13, which deals with continuity of service. Counsel also submitted that as there is no provision in the Regulations of Standard Conditions of Service for Lagos State Parastatals LSLN No. 15 of 1981 for the mode, method or procedure for transfer of officers from Parastatals to Civil Service, recourse has to be to the Lagos State Civil Service Commission Regulations LSLN No. 26 of 1980. He referred to the interpretation section for the meaning of public service of the State and also made reference to Part IV of this Regulation particularly Regulations 2.4…8. Counsel submitted that having regard to the totality of these Regulations i.e. the measure, mode and procedure of transfer spell out, the respondent has not established the basis of transfer neither was the transfer in compliance with the enabling laws of Lagos State being relied on by the respondent. lie referred to the case of E. P. Iderima v. Rivers State Civil Commission |2005| 16 NWLR (Pi. 951) 378 at -101 para L - C and submitted that on the basis of the decision in this case, any transfer action taken against any employee pursuant to Regulations of Standard Conditions of Service for Lagos State Parastalals LSLN No. 15 of 1981 'must be in full compliance with the Lagos Stale Civil Service Commission Regulations LSLN No. 2.6 of 1980. That this condition precedent is clearly stated in Regulation 28(1 l)(a) of LSLN No. 26 of 1980. Counsel further submitted that the respondent did not comply with the Regulations and, therefore, the purported action is void ab initio. lie urged the court to hold that the internal memo of transfer of applicants without due compliance with the Regulations is illegal, null and void and of no effect as there is no provision in LSLN No. 15 of 1981 that transfer of officers from parastatal to civil service should be by internal memo. He referred to the case of CBN find anor v.Igwillo 120071 14 NWLR (PL. 1054) 393 at 420 para D, 421 para D - E, 422 para C -11, and 423 para A-E. Counsel also submitted that the employment of the applicants is governed and protected by statute and where their employment is wrongly transferred, the applicants are entitled to be reinstated and in addition damages representing their salaries and emoluments during this period of their purported transfer should be paid, lie argued that the non-attachment of the said directive of the Executive Governor of Lagos State made that paragraph of the respondent's affidavit unbelievable, and urged the court not to believe the said paragraph. He cited the case of Okoye v. Centre Point Merchant Bank [2008] 15 NWLR (Pt. 1110) 335 at 362 para H -- C where the Supreme Court stated that: Affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ascertain its veracity and or authenticity. Accordingly, though uncontradicted affidavit evidence should be used by the court, it should not turn a blind eye at an obvious lie in such affidavit evidence. Counsel submitted that paragraphs 3(iv) and 3(v) of the respondent's further and belter counter-affidavit is borne out of malice because the respondent in paragraph 3(v) averred dial the alternative to transferring the 37 members of staff of the respondent was to dispense with their services with "ignominy". He referred to the Blacks Law Dictionary 8th Edition for the definition of ignominy which is "public disgrace or public dishonour". That the inference to be drawn from the offensive paragraph is that the whole exercise of the said transfer was done mala fide. He cited the case of Akaninwo and 4 ors v. Nsirimi and 3 ors [2008] 1 SC (Pt. Ill) 151 at 198 - 199 para 35 - 5 where mala fide was defined. Counsel slated that the respondent has not shown any where the applicants were criminally indicted to warrant dispensing with their services with ignominy, and urged the court to hold that, the purported transfer of the applicants was borne out of malice and, therefore, mala fide. Finally, the applicants' counsel urged the court to hold that the purported transfer as contained in the internal memo (Exhibit A) was made without due compliance with the enabling Laws and Regulations governing the contract of service between the applicants and the respondent and order re-instatement to their offices and in addition pay their outstanding salaries and allowances. We have carefully considered all the submissions, arguments and exhibits tendered by both parties. The sole issue to be resolved by this court is whether the transfer of the applicants to the Lagos Slate Civil Service by the respondents company is valid. In other words, was the transfer carried out in compliance with all the relevant: laws'? The applicants are all employees of the respondent company. Some were employed by the respondent and others by its predecessor the Lagos Building investment Corporation (LBIC) as drivers, driver/mechanics clerical officers and cashiers. Their letters of appointment, which is (he contract of employment issued by the respondent company and its predecessor LBIC lo the applicants, contain the same terms and conditions of service regulated by the respondents' employee handbook. An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulation made to govern the procedure for employment and discipline of an employee. See the eases of Momoh v. CBN [2007] 14 NWLR (Pt. 1055) 504 and CBN v. Igwillo 2007] 14 NWLR (Pi. 1054) 393. We find that the applicants' employment is not governed and protected by statute as submitted by (he applicants' counsel. They are not statutory employees. The applicants' case is that they were directly employed by the respondent, a limited liability company and, therefore, their services cannot lawfully be transferred to the Lagos Stale Civil Service, a different employer, in compliance with a directive referred to in the respondent's internal memo, dated 20" February 2006. While considering whether the respondent can transfer the applicants, regard must be given to the contract of employment of the applicants and the respondent's employee handbook, which is binding on both parties. Paragraph 4 of the applicants' contract of employment is reproduced as follows: That as long as you remain in the company's service, you will be prepared to .serve in any of the company's offices in any part of the federation and in any capacity as the exigencies of 'the service may demand. The provisions of chapter 4, page 7 of the respondent's employee handbook titled, "General Staff Rules and Regulations" states that 'these rules are subject and subordinate to any law which may be in force at the time in the Republic of Nigeria or Lagos State.' The relevant provisions of the Standard Conditions of Service for Lagos Slate Parastatals LSLN No. 15 of 1981 are hereby reproduced as follows beginning from section 3, which is the Interpretation section: " Parastatals " means Corporations, Commissions, Councils, Authorities, Boards and Committees established under the laws of Lagos State and Companies fully or predominantly owned by the Lagos State Government. "Secondment means the temporary release of an officer from the service of one Parastatals to another or from the civil service to the service of a Parastatal or vice versa for a specific period. "Transfer" means the permanent release of an officer from the service of one parastatal to another or from the civil service lo the service of a parastatal or vice versa. 90. 1 Secondment at Officer’s request Secondment of an officer lo the service of another Parastatal or Civil Service at his own request shall be for a maximum period of three years, during which period he will be required to elect lo be permanently released to the service of which he had been seconded or revert to his former post. Me will be entitled to notional increment during the period of his secondment and may be granted notional promotion by the Governing Body on his desecondment in order to restore his seniority as a result of the promotion of others during his absence. 90.2 Secondment in the public interest If it is in the public interest to second an officer to the service of another Parastatal or Civil Service, the period of secondment shall not be limited and the officer shall continue to hold his substantive post and be entitled to increment and promotion by the service to whom he belongs, and will be treated as having been posted or, special duty. From the above provisions it is clear that the respondent company is a parastatal of the Lagos Stale Government and, therefore, both the applicants and the respondent are bound by the Conditions of Service for Lagos State Parastatals LSLN No. 15 of 1981, Lagos Slate Civil Service Commission Regulations LSLN No. 26 of 1980, together with the respondent's handbook and (he applicants' contract of employment. Regulations 90.1 and 90.2 LSLN No. 15 of 1981 deal with secondment of an officer and not transfer of an officer. Secondment and transfer have two separate definitions and meanings as can be seen from the interpretation section and, therefore, are not the same and cannot be used interchangeably as submitted by respondents' counsel. The gravamen of this case is Transfer and not Secondment. We, therefore, hold that Regulations 90.1 and 90.2 are not applicable to the applicants in this case. Since there is no provision for the Standard Conditions of Service for Lagos State Parastatals LSLN No. 15 of 1981 for the procedure of transfer from a parastatal to the civil service, we agree with the submission of the applicants' counsel that recourse should be to the Lagos State Civil Service Commission Regulations LSLN No. 26 of 1980 particularly Regulations 24 - 28 contained in Pan IV. These regulations provide that an officer must apply for a transfer or secondment and where he has not applied for such his own views shall be obtained and forwarded to the State Civil Service Commission. His consent to the transfer or secondment must also be obtained. The transfer of the applicants did not meet any of the requirements of these Regulations. Section 10 of the Labour Act Cap. L1 LFN 2004 also provides the procedure for transfer to another employer as follows: 10(1) The transfer of any contract from one employer to another shall be subject to the consent of the worker and the endorsement of the transfer upon the contract by an authorized labour officer. (2) Before endorsing the transfer upon the contract, the officer in question (a) shall ascertain that the worker has freely consented to the transfer and that his consent has not been obtained by coercion or undue influence or as a result of misrepresentation or mistake. The position of the law is, therefore, clear that no employee can be transferred from one employer to another without his consent. It does not appear to us that the applicants have been given a choice; their views were not sought neither was their consent obtained. They were not even given individual letters of transfer. The respondent seems to be trying to force the applicants to transfer their services to another employer, the Lagos State Civil Service. The reason given by the respondent that the transfer was to provide employment security for the applicants as their level of performance could not be tolerated or accommodated within the respondent company is irrelevant and in any case not proven. On the allegation of mala fide raised by the applicants against the respondent company, they failed to discharge the burden of proof which is on them. The allegation was not duly established. The Lagos State Laws, the contract of employment and the respondent's handbook are binding on both the applicants and respondent and cannot be violated to the prejudice of one or the other. That is the sanctity of service conditions. The respondent's right to transfer the applicants without their consent is limited to the respondent's offices within Nigeria as provided in the contract of employment. There is no provision for transfer outside the respondent company. Consequently, we hold that the transfer of the applicants carried out vide the respondent's internal memo dated 20th February 2006 is null and void not being in accordance with the contract of employment, Standard Conditions of Service for Lagos Stale Parastatals LSLN No. 15 of 1981, Lagos State Civil Service Commission Regulations LSLN No. 26 of 1980 and section 10 of the Labour Act LI LFN 2004. Statutory provisions cannot be waived under any circumstances. See Raji v. Unilorin [2007] 5 NWLR (Pt. 1057) 259 and Menakaya v. Menakaya [2001]16 N\v, Jl (Pt. 73 8) 203 at 236 para B - C. We do not think that the fact that the applicants requested for and collected their own contributions to the staff welfare committee amounts to them acquiescing in an order of transfer, which to their knowledge was not in accordance with their contract of employment. The applicants also demanded for their salary arrears which was ignored by the respondent company. We do not see these demands by the applicants as amounting to conduct by which they represented to the respondent company that they had consented to a violation of their rights. Hence the submission by the respondent'1; counsel that the applicants' receipt of their contributions indicates their assent to the transfer is rejected and is an attempt to stifle the legitimate voice of the applicants. See Adeniji v. Governing Council of Yaba College of Technology \ 1993J 6 NWLR (Pt. 300) 426. We hold that in the absence of any letter of determination of the services of the applicants, all the applicants are still employees of the respondent company. Accordingly and for the avoidance of doubt we make the following orders: 1. An order directing the respondent Company to pay the applicants all their salaries, allowances and other benefits from February 2006 to date. 2. An order directing the respondent company to immediately recall the applicants without loss of status. Judgment is entered accordingly. Hon. Justice B. B. Kanyip Presiding Judge Hon. Justice V. N. Okobi Hon. Justice F. I. Kola-Olalere Judge Judge Hon. Justice O. A. Obaseki-Osaghae Hon, Justice J. T. Agbadu-Fishim Judge Judge