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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD DATE: FEBRUARY 2, 2015 SUIT NO. NICN/LA/534/2013 BETWEEN Elizabeth Modupe Oyeduntan - Claimant AND 1. West African Examinations Council (WAEC) 2. Dr Iyi Uwadiae - Defendants REPRESENTATION Kunle Adegoke, and with are Bayo Badmus, Joseph Aketu and Miss Tomiwa Ogundipe, for the claimant. O. Osarenren, with him are C. Ukwuegbu and N. Onuoha, for the defendants. JUDGMENT The claimant by a complaint dated and filed on 3rd October 2013 instituted the present suit against the defendant. In the accompanying statement of facts, the claimant is praying for – (a) A declaration that the compulsory retirement of the claimant by the 2nd defendant is null, void and of no effect. (b) A declaration that the claimant is still in the service of the 1st defendant and is entitled to all her dues in the form of salaries, allowances and emoluments till March 2, 2017 when she can lawfully be retired from the 1st defendant’s service. (c) An order directing that the claimant be reinstated or paid all her salaries together with all other benefits and entitlements attached to the office of Senior Deputy Registrar until she attains the age of 60 years on March 2, 2017 as reflected above. The complaint and statement of facts are accompanied by list of witness(es), witness statement on oath of the claimant, list of documents and copies of the documents. The defendants entered formal appearance by filing their joint memorandum of appearance. They then filed their statement of defence and counterclaim, defendants’ written statements on oath, list of defendants’ documents and copies of the documents. By the counterclaim, the defendants claimed against the claimant the following reliefs – 1. A declaration that the retirement of the claimant from the services of the 1st defendant was an administrative and statutory matter in accordance with the extant rules of the Pension Scheme of the Federal Civil Service of the Federation of Nigeria which by virtue of Chapter 12 of the Unified Conditions of Service for International Staff of the Council of the 1st defendant apply to matters of pension affecting the claimant. 2. A declaration that the claimant ceased to be a serving officer in the employment of the 1st defendant after 1st April 2013 having served 8 years as Director in the Finance Division of the 1st defendant. 3. The sum of N4,561,619.66 (Four Million, Five Hundred and Sixty-One Thousand, Six Hundred and Nineteen Thousand, Sixty-Six Kobo) being salaries and allowances paid to the claimant from 1st April 2013 to 27th September 2013 when she had ceased to be a staff of the 1st defendant. 4. Interest on the said sum of N4,561,619.66 (Four Million, Five Hundred and Sixty-One Thousand, Six Hundred and Nineteen Thousand, Sixty-Six Kobo) at the rate of 21% per annum till the claimant liquidates the sum. In reaction, the claimant filed a reply to statement of defence & defence to counterclaim, a further witness statement on oath of the claimant, list of additional document(s) and a copy of the document. At the trial, the claimant testified on her own behalf as CW, while Stephen Bamidele Taiwo, a Human Resources Specialist working with the defendants, testified for the defendants as DW1 and Kwasi Asokwa-Boateng, Deputy Director, Human Resources Management with the defendants and who lives in Accra, Ghana, also testified for the defendants as DW2. By agreement of the parties, all the witnesses on both sides merely adopted their respective sworn depositions and no witness was cross-examined. Thereafter, parties were asked to file and serve their respective written addresses starting with the defendants. This they did. The defendants’ written address is dated 24th April 2014 but filed on 25th April 2014. The claimant’s written address is dated and filed on 27th May 2014. The defendants did not file any reply on points of law. In brief, the facts of this case are that the claimant was employed by the 1st defendant, the West African Examinations Council (WAEC) in February 1981 as an Accountant in the Finance Division and through various promotions she rose to the position of Senior Deputy Registrar, which, to the defendants, is the rank of a Director and is the last position in the career of any staff of WAEC. The claimant was No. 2 in the hierarchy of the international staff of WAEC Nigeria. The claimant was retired by the 1st defendant’s letter dated 6th August 2013 on the ground that she has served a term of 8 years as a Director in accordance with directives of the Head of the Civil Service of the Federation of Nigeria on tenure of office for Permanent Secretaries and Directors. To the claimant, being an international staff of WAEC, her appointment is guided by the WAEC Convention, the Unified Conditions of Service of International Staff and the WAEC Staff Pension Scheme Rules. DEFENDANTS’ SUBMISSIONS The defendants framed four issues for the determination of the Court, namely – 1. Whether the claimant, by virtue of the administrative structure of the 1st defendant, the WAEC, had attained the peak of her career as a Director by virtue of her promotion to the position of Senior Deputy Registrar in March 2005. 2. Whether by the combined reading of the extant provisions of the 1st defendant’s Revised Convention (Exhibit 8), the Unified Conditions of Service for International Staff of Council (Exhibit 9) and the Staff Pension Scheme (Exhibit 10), the claimant can only be retired when she attains the age of 60. 3. Whether by virtue of the decision of the Court of Appeal in West African Examinations Council v. Kazeem Saidu the defendants can apply the Pension/retirement policy of Nigeria to retire the claimant. 4. Whether the Rules of the Pension Scheme of the Federal Civil Service of Nigeria apply to the claimant being an international staff of WAEC in Nigeria. Regarding issue 1, the defendants contended that the position of Senior Deputy Registrar is the highest position in the career of any staff of WAEC and it had been ratified by council as equivalent to the rank of a Director and that staff in the position of Senior Deputy Registrar should use the designation of “Director”, referring to Exhibit B page 35, paragraph 25 (Review of staff designations paper 38WAEC/3(2)(a). In support of this contention, the defendants posited that – a) The highest position any staff of the council can be promoted to is Senior Deputy Registrar, referring to the Schedule to the WAEC (Declaration of Pensionable Offices) Order of the WAEC Act and section 4(2) of the WAEC Act LFN 2004. b) The position of Registrar is by appointment and there is only one Registrar in the whole of WAEC who is Head of Administration/Secretariat of the council with office at the council headquarters, Accra, Ghana, referring to section 4(1) of the WAEC Act LFN 2004. c) The claimant was promoted to the rank of “Deputy Registrar with functional title of Deputy Director of Finance” effective 1st April 1997.The next promotion was to the position of Senior Deputy Registrar in April 2005, referring to Exhibits 5 and 6. d) The claimant was the substantive head of the Finance Division of WAEC in Nigeria and other Deputy Registrars/Deputy directors in the Finance Division were under her control and reported to her. By memo Ref. No: L/FD/84/28 dated 10th January 2005, the former Director of Finance Rev, G. C. Ugwu wrote to the claimant and stated as follows: “With the approval of the Head of National Office, therefore, I hereby hand over to you the responsibility of the headship of the Finance Division of the Nigerian National Office”. The claimant duly signed the memo together with Rev, Ugwu, referring to Exhibit C, page 1, lines 3 – 5 as well as Exhibits A, B, D1 – D9, E1 – E6, F, H, I, J and M3. e) That all correspondences to and from staff in the Finance Division were routed through her office, as the administrative head of the division, to the Registrar or Head of National Office in Nigeria, referring to Exhibits M3 and O. The defendants went on to argue that, from the exhibits before the Court, the claimant since her promotion to Senior Deputy Registrar had represented herself as the Director of the Division and then urged the Court to discountenance the claimant’s contention that the position/rank of Director a mere internal administrative invention of the 1st defendant which is unknown to the WAEC Act. In any event, that given Exhibits 1, 2, 3 and 4 vis-à-vis the Schedule to the WAEC (Declaration of Pensionable Offices) Order of the WAEC Act LFN 2004, the claimant accepted and enjoyed the benefits of the positions of Accountant, Senior Accountant II, Senior Accountant I and Principal Accountant even when these positions are unknown to the WAEC Act. The defendants continued that by Mbachu v, AIRBDA [2006] 14 NWLR (Pt. 1000) 691 SC, they have the power to structure and restructure the chain of command of the 1st defendant for effective performance of the staff including the power to review staff designation. The defendants then submitted that by the exhibits before the Court, the claimant since 1st April 2015 was the substantive head of the finance division and had reached the peak of her professional career in the council as all other positions are not attained by promotion, urging the Court to resolve issue 1 in favour of the defendants. On issue 2 i.e. whether by the combined reading of the extant provisions of the 1st defendant’s Revised Convention (Exhibit 8), the Unified Conditions of Service for International Staff of Council (Exhibit 9) and the Staff Pension Scheme (Exhibit 10), the claimant can only be retired when she attains the age of 60, the defendants contended that WAEC does not have unified policy on retirement and pensions for its staff across West Africa hence the clear and specific stipulation in Exhibit 9 that the pension scheme of each member country shall apply to international staff of the council as if such staff was in the civil service of the member country. To the defendants, while the retirement age in Nigeria is 60 years, 35 years of service or 8 years as Director/Senior Deputy Registrar whichever comes first, it is simply 60 years in Ghana without limitation to years of service, referring to section 199(1) of Exhibit S. And that in Liberia, the retirement age is 65 hence the appointment of a certain Mr. John Y. Gayvolor who was appointed head of Liberian National Office at over 61 years of age. That he would have retired from service if he was a Nigerian in virtue of the pension scheme of the Nigerian Civil Service, referring to Exhibits R, I and U respectively. The defendants continued that while in Exhibit 10 the age of retirement was indicated as 60 years, the definitions section of the WAEC Staff Pension Scheme Rules did subordinate the operations of the Pension Scheme of the staff of the 1st defendant to what obtains in the Public Service. That it states that “Public Service” means any service or employment recognized as such by the Federal Government, and includes authorities and employment listed in Regulation 8 of the Pensions Regulations to the Pensions Act No. 102 of 1979 and already declared “Scheduled Service” under the Pensions Act No. 102 of 1979. Furthermore, that it states that ‘Pension Acts’ means Pension Act No.102 of 1979 and includes any statutory modifications thereto. To the defendants, by the definitions section i.e. from the introductory section of the Staff Pension Scheme Rules of the 1st defendant, Exhibit 10 tendered by the claimant, any statutory modification of the Pension Act in the Public Service of the Federal Government of Nigeria automatically applies to members of staff of the 1st defendant. And so since 60 years retirement age in the 1989 document has been subsequently amended, 60 years per se as retirement age has this been modified. To the defendants, by a combined reading of Exhibits 8, 9 and 10, being a Nigerian, the compulsory retirement age of the claimant from the services of the 1st defendant would be governed by any of the following regimes, whichever comes earlier – 1) 2nd March 2017 (when she would be 60 years). 2) 1st April, 2016 (35 years length of service since she joined the services of the 1st defendant on 1st April 1981. 3) 1st April 2013, having occupied the rank/designation of Senior Deputy Registrar/Director of Finance, the peak of her career in the establishment of the 1st defendant in Nigeria for 8 years. The defendants also submitted that though an international organization comprising 5 member countries (The Gambia, Ghana, Liberia, Sierra-Leone and Nigeria) for the purpose of conducting examinations in all the member countries, the 5 member countries maintain separate retirement and pension policy by virtue of chapter 12 of the 2009 Unified Conditions of Service for International Staff of Council. That the first letter of appointment of the claimant (Exhibit 1) in paragraph 4 states that “You will be governed by the rules and regulations affecting staff of Council in Nigeria and as contained in the existing Conditions of Service”. To the defendants, since the claimant had occupied the position of Senior Deputy Registrar/Director of Finance, the peak of her career (Council salary grade ECSS 15) which is equivalent to Director (GL 17) in the Public Service, for over 8 years, she is bound to retire, whether she had attained 60 years of age or not. The defendants accordingly urged the Court to hold that the claimant was rightly retired, having served 8 years as a Senior Deputy Registrar/Director and resolve issue 2 in their favour. Regarding issue 3 i.e. whether by virtue of the decision of the Court of Appeal in West African Examinations Council v. Kazeem Saidu Suit No. CA/IL/3/2011 delivered on 18th November 2011 the defendants can apply the Pension/retirement policy of Nigeria to retire the claimant, the defendants contended that the issues in WAEC v. Kazeem Saidu are different from the present matter. That the issue in Kazeem Saidu borders on the jurisdiction of the trial High Court to entertain an issue, statute bar limitation under the Public Officers Protection Act, and Agency/Principal relationship in relation to a negligent act. It is the submission of the defendants that as distinct from the issues in Kazeem Saidu, what is in contention in the present matter is not whether the defendants are public officers or whether they are covered by the Public Officers Protection Act. That the instant case is a matter wherein the Nigeria Office of WAEC applied a Nigeria policy on matters relating to retirement and pension as specifically provided in the existing Conditions of Service for international staff and as the 1st defendant had been applying over the years. That officers in the service of the 1st defendant have been retiring at age 60 and 35 years length of service. In fact, that the claimant endorsed the retirement of one Mr. G. U. Ihe, a Deputy Director who was under 60 years but who was retiring on the basis of 35 years length of service. That the claimant would be speaking from both sides of her mouth if she contends that a rule that applied to her immediate subordinate, a Deputy Director of Finance, does not now apply to her. The defendants then submitted that as distinct from Kazeem Saidu which sought protection cove under the Public Officers Protection Act, the instant case is a matter of application of clearly stated provisions of the Unified Conditions of Service for international staff of the 1st defendant. That notwithstanding the foregoing, the Court even held that though WAEC was not an agency of the Federal Republic of Nigeria for purposes of the Public Officers (Protection) Act, the Pensions Act apply to staff of WAEC. That the Court went on to state that while the power to make regulations to the Pension Act resides on the Minister or other authority of the Government, WAEC has the power to apply the provisions of the Pensions Act to staff of the Council in accordance with section 6(3) of the WAEC Act 2004, referring to paragraph 2 at page 18 of the judgment. The defendants then urged the Court to hold that the decision in Kazeem Saidu even though not of the same facts with the present case, also recognized that WAEC Nigeria applies the provisions of the Pension Act as stated in Chapter 12 of the Unified Conditions of Service for international staff of the 1st defendant to retire the claimant. On issue 4 i.e. whether the Rules of the Pension Scheme of the Federal Civil Service of Nigeria apply to the claimant being an international staff of WAEC in Nigeria, the defendant contended that the claimant’s case is that, as an international staff of WAEC, her pension is guided by the WAEC Convention 2003, the Unified Conditions of Service for international staff of council and the WAEC Staff Pension Scheme. That the claimant was employed in 1981 and the conditions of service referred to in her letter of employment (Exhibit 1) is the Unified Conditions of Service for international staff of council, as amended by the 57th Annual Meeting of Council, Headquarters, Accra, March 2009. That the said conditions of service in Chapter 12 provide for Pension Scheme of staff of council as follows – The provisions of the Pension Scheme of a member country shall, without prejudice to other provisions of the convention, apply or continue to apply to employees of the Council confirmed in office in the same manner and to same extent as the said provisions would apply to such employees if they were serving in a civil capacity in a pensionable office in the member country under the government of that member country. The defendants then referred the Court to page 26 of Exhibit 9 urging the Court to note that Exhibit 9 is the latest Rules on pension scheme affecting international staff of council having been ratified 2009 as against Exhibits 8 and 10 which were made in 2003 and 1989 respectively. To the defendants, the clear and unambiguous meaning of Chapter 12 of Exhibit 9 is that the pension scheme of a member country (in this case Nigeria) shall apply to any confirmed staff of WAEC in the same manner and extent as if such employee was in the Civil Service of the government of that country, which in the claimant’s case is the Nigerian government. The defendants then referred to section 6 of the WAEC Act LFN 2004, which to them provides as follows – (1) The National Council of Ministers may by order published in the Federal Gazette declare the office of any person employed by the Council to be a pensionable office in Nigeria for the purposes of the Pensions Act. (2) Subject to subsections (3) and (4) of this section, the Pensions Act shall in its application by virtue of the foregoing subsection to any office have effect as if the office were in the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria. (3) For the purposes of the application of the Pensions Act in accordance with subsection (2) of this section, any power exercisable thereunder by a Minister or other authority of the Government of the Federation, other than the power to make regulations under section 23 thereof, is hereby vested in and shall be exercisable by the Council and not by any other person or authority. To the defendants, section 6(2) of the WAEC Act clearly states that the Pensions Act shall apply to any staff of Council whose office is declared pensionable by the National Council of Ministers under section 6(1) as if the office were in the Public Service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria. That both the WAEC Act and the Unified Conditions of Service use the word ‘shall’ in stating that international staff of WAEC shall be treated as if he or she was in the Public/Civil Service of the government of the country in which such staff is employed for purposes of pension scheme. For the meaning of the word ‘shall’ which signifies something that is mandatory, the Court was referred to Ogidi v. State [2005] 5 NWLR (Pt. 918) 286 at 327, The State v. Nathaniel Okpala [2012] AFWLR (Pt. 617) 670, Ifezue v. Madugha [1984] 1 SCNLR 427, Vibelko (Nig.) Ltd v. NDIC [2006] 12 NWLR 280 at 295, Tanko v. State [2008] 16 NWLR (Pt. 1114) 597 at 642 and the definition in Black’s Law Dictionary 6th Edition. The defendants then referred to Nigeria Airways Ltd v. Taiwo Okutubo [2002] 15 NWLR (Pt. 790) 376 at 395 – 396, where the Court of Appeal held that where a letter of appointment of an officer either expressly or impliedly contemplates the applicability of the Public/Civil Service Rules (as stated in the letter of appointment, Exhibit 1) the provisions of the Public Service Rules become relevant in the consideration of a contract of employment. Also referred to the Court is Adekoye v. NSPMC Ltd [2009] 5 NWLR (Pt. 1134) 322 where the Supreme Court defined ‘public service’ for purposes of the Pensions Act; and the definition of “Public Service” and section 12 in Exhibit 10 (WAEC Staff Pension Scheme Rules), where the Pensions Act recognized WAEC as another public service of the Federation for purposes of transfer of service to WAEC from other public service in relation to pension benefits. The defendants continued that the provisions of a member country shall apply without prejudice to other provisions of the convention given that the phrase ‘without prejudice’ means ‘regardless’ or ‘not minding’ or ‘notwithstanding’ as held in NECO v. Tokode [2011] AFWLR (Pt. 574) 105. Chapter 12 of the Unified Conditions of Service for International Staff of Council must, therefore, fulfill its purpose. To the defendants, WAEC des not have a unified policy on retirement and pensions for its staff across member countries hence its specific and clear stipulation in Exhibit 9 that the pension scheme of each member country shall apply to international staff of the council as if such staff was in the civil service of the member country. The defendants then submitted that the drafters of the Unified Conditions of Service and the WAEC Act was to subject the international staff of council to the rules governing the pension scheme of their respective countries as if they were employed by the government of that country. The defendants, therefore, urged the Court to hold that the combined effect of the Unified Conditions of Service and the WAEC Act 2004 is to make the pension scheme of respective countries applicable to the international staff of the council as it would apply to an employee in the civil service of the government of that country. The defendants went on to urge the Court to examine Exhibits M1. M2, M3 and M4, which are correspondences from the staff of the 1st defendant giving notifications for their retirement from the service of the 1st defendant having been in service for 35 years. That all the notifications were based on the circular Ref. No. B.63216/S.IX dated 20th August 1999 issued by the Head of the Civil Service of the Federation of Nigeria, Exhibit K. In particular, that the Court should examine the handwritten note that was minuted on Exhibit M1 on 14th September 2000 which refused to grant extension beyond 35 years despite the plea of the affected officer, referring also to Exhibit N1. Also referred to the Court is Exhibit M3 which was received, acknowledged and forwarded by the claimant in furtherance of the pension rules on retirement after 35 years in service. Given Exhibit M3, the defendants submitted that the claimant cannot claim ignorance of the circulars from the Head of the Civil Service of the Federation and that neither can she claim that those rules do not apply to WAEC. Further referred to the Court are Exhibits N1, N2 and N3 where the 1st defendant duly accepted the notifications for retirement from those staff that were affected by the directive to retire upon 35 years of service. To the defendant, to hold that the pension scheme and any modifications thereto applicable to the civil service of the Federation do not apply to the international staff of WAEC is to hold that WAEC has no valid pension scheme in Nigeria. That it will amount to judicially setting aside Chapter 12 of the Unified Conditions of Service for International Staff of WAEC. That it will, therefore, invalidate all retirements that have been effected on various staff that retired from the services of WAEC based on the extant Pension Rules applicable to the Civil Service of the Federation. To the defendant, that will lead multiple actions for reinstatement of retired staff of WAEC and the fact that no staff will ever be retired from the services of WAEC as there will be no valid rule on pension. The defendants further urged the Court to look at Exhibit O, which is an internal memo from the office of the Acting Director of Administration forwarding a memo with Ref. No. 4.71L/XVIII/85 dated 17th May 2013 from the Registrar to Head National Office Lagos, Nigeria. That the said memo from the Registrar had attached to it the circular from the Head of the Civil Service of the Federation Ref. No. HCSF 1061/SI/III 168 dated 26th August 2009, which specified the tenure of office for Permanent Secretaries and Directors. That the claimant received the said Exhibit O and minuted same to all the Deputy Directors in her division instructing them to draw the attention of all Registrar cadre in their respective departments to the circular and its content. That the contention of the claimant that the circular of the Head of Service (Exhibit L) has not been approved or ratified by the Council of the 1st defendant and so cannot apply to her is untenable. The defendants went on that it has been held by this Court in Stephen Imuzei Akhiojemi & anor v. Administrative Staff College of Nigeria & anor unreported Suit No. NICN/LA/426/2012 the judgment of which was delivered on 21st January 2014 that “Public Service Rules have constitutional force and so must be read to supersede the conditions of service of the claimants especially in terms of the provisions dealing with leaving of service”. The defendants then submitted that once an employee’s pension is guided by public/civil service rules, any rule emanating from the public service in relation to the appointment, tenure and pension of such employee overrides the conditions of service of the board of such organization. The defendants urged the Court to hold that circulars from the Head of the Civil Service of the Federation do not require the approval and ratification of the Council of the 1st defendant in order to regulate the pension of the claimant or staff of WAEC. Also that the Court should resolve issue 4 in favour of the defendants. In conclusion, the defendants urged the Court to dismiss the claimant’s case in its entirety. CLAIMANT’S SUBMISSIONS The claimant framed two issues for the determination of the Court, namely – (a) Whether Exhibit L (circular with Ref. No. HCSF 1061/S.I/III/68 dated August 26, 2009) issued by the Head of Civil Service of the Federation as regards tenure of service of an employee is binding on the 1st defendant as to effectively retire the claimant as at when purportedly done. (b) Whether the purported designation of the claimant as a Director in the employment of the 1st Defendant is a pensionable office cognizable by the provisions of section 6(1) of the WAEC Act Cap. W4 LFN 2004 and the WAEC (Declaration of Pensionable Offices) Order of 1961 made pursuant thereto. Regarding issue (a), the claimant contended that Exhibit L is not binding on the 1st defendant as to compulsorily retire the claimant as at when purportedly done. Firstly, that the defendants admitted that the claimant is an international staff of the 1st defendant; and so that fact needs no proof, referring to Bunge & anor v. Governor of Rivers State & anor [2006] 12 NWLR (Pt. 995) 573 at 599 and UBA Plc v. Jargaba [2007] 11 NWLR (Pt. 1045) 247 at 269 – 270 as well as paragraph 1 of the statement of facts and paragraph 1 of the statement of defence. Also that this fact was admitted by both DW1 and DW2 in their respective witness statement on oath. That flowing from this, there is consensus between the parties that Exhibit 9, the Unified Conditions of Service for International Staff of Council is also one of the documents that govern the employment of the claimant with the 1st defendant. Further in support are Exhibits 1 and 3 both of which state that the claimant’s employment will be governed by the Unified Conditions of Service for International Staff of Council. That the implication of all this is that the claimant is an international public servant, a fact reinforced by paragraph 1.01 of Chapter 1 of Exhibit 9. The claimant then asked which other documents, laws or rules will be looked at in determining the tenure of office the claimant, age of retirement of the claimant as well as the pension scheme applicable to the claimant. Here, the claimant submitted that the WAEC Revised Convention 2003 (Exhibit 8), the WAEC Act 1973, the WAEC (Declaration of Pensionable Offices) Order and the WAEC Staff Pension Scheme Rules (Exhibit 10) are the law, order and rules to be examined in determining the tenure of office of the claimant, age of retirement of the claimant as well as the pension scheme applicable to the claimant. In relation to the tenure of office of the Registrar and other officers and servants of the Council, the claimant submitted that it is WAEC that has power to determine same given section 4(1), (2) and (3) of the WAEC Act 2004, which states thus – (1) There shall be a Registrar to the Council to be appointed by the Council to manage the affairs of the Council under its direction. (2) The Council may appoint such other persons to be officers and servants of the Council as the Council may determine to assist the Registrar in the exercise of his functions. (3) The remuneration and tenure of office and conditions of service of the Registrar and other officers and servants of the Council shall be determined by the Council (emphasis is the claimant’s). To the claimant, given section 4(3) of the WAEC Act, the tenure of office of the Registrar and other officers of the 1st defendant is the prerogative of the 1st defendant alone, the implication of which cannot be determined by any other body whatsoever. That in carrying out its powers under the WAEC Act, the WAEC Council may act through any of its committees where they are empowered to act on behalf of the Council, referring to the definition section of Exhibit 9 where the word ‘Council’ is defined as the WAEC Council or any of its committees where these are empowered to act on behalf f the Council. That while section 3 of the WAEC Act creates the Administrative and Finance Committee of the Council, section 14(1) creates National Committees of the Council in each member country, Furthermore, section 18 of the Schedule to the WAEC Act permits the creation of additional committees. It is, therefore, the submission of the claimant that from the above provisions, the 1st defendant may act or exercise any of its powers through any of its committees where they are empowered to do so. That it is the Council or any of its committees empowered to act that can take decisions on any matter within the competence of the Council. That the implication is that no person can take such decisions(s) on any matter within the competence of the Council except a committee established by the Council and properly delegated to act – the Federal Government or any of its agencies, the Head of Service inclusive cannot take such decision. The claimant continued that the implication of statutory delegation to the Council is that the Council can delegate such powers vested in it to any other person when it is statutorily so empowered to sub-delegate as the maxim is delegates non potest delegare. That the Act has maintained that it is the Council or any of its committees that shall take decisions as regards the remuneration and tenure of employment of its staff. That such powers can only be exercised by the Council or its committees and cannot be sub-delegated outside the provisions of the Act. On the rule against sub-delegation, the Court was referred to Ibadan City Council v. Odukale [1971 – 72] NSCC Vol. 7 page 531 at 536 lines 22 – 26 and NNPC & anor v. Trinity Mills Insurance Brokers & ors [2003] 9 NWLR (Pt. 825) 384 at 396. In relation to age of retirement of the claimant and pension scheme applicable to the claimant, the claimant submitted that only the Council or any of its committees properly so delegated that can fix the retirement age of the Council’s employees. In this regard, that Article 23(1) and (2) of Exhibit 8 (The WAEC Revised Convention, 2003), Chapter 12 of Exhibit 9 (Unified Conditions of Service for International Staff of Council), section 23 of the WAEC Act and Rules 4 and 5 of Exhibit 10 (i.e. WAEC Staff Pension Scheme Rules) are the relevant provisions to be considered in determining the retirement age of the claimant and pension benefit entitled to by the claimant. On the purport of Article 23 of Exhibit 8 and Chapter 12 of Exhibit 9, the claimant reproduced Article 23(1) and (2) which put the retirement age of a pensionable employee at 60 years and then stipulates that the Council shall administer its own Pension Scheme, funded by the Council. To the claimant, the reliance by the defendants on Chapter 12 of Exhibit 9 to assert the contrary is misplaced. That it is clear that it is in relation to the pension scheme that shall operate in each country and has nothing to do with respect to tenure of office and retirement age; otherwise what would be the purpose of Article 23(1) and (2) which has already fixed the retirement age at 60? That Chapter 12 of Exhibit 9 only provides as follows – PENSION SCHEME The provisions of the Pension scheme of a member country shall, without prejudice to other provisions of the Convention apply or continue to apply to employees of the Council confirmed in office in the same manner and to the same extent as the said provisions would apply to such employees if they were serving in a civil capacity in the pensionable office in the member country under the Government of that member country. To the claimant, it has nothing to do with retirement age which Article 23 of Exhibit 8 and Exhibit 10 have stated to be 60 years. The claimant went on that an important point to note in construing Chapter 12 of Exhibit 9 is the phrase ‘without prejudice’ contained therein. That the Black’s Law Dictionary, 8th Ed. at page 1632 defines the phrase to mean “without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party”. Also that Tukur v. Govt. of Gongola State [1989] 4 NWLR (Pt. 117) 517 at 565 – 566 held the phrase “subject to” to be the same as “without prejudice”. That whatever may be conferred by Chapter 12 of Exhibit 9, it is subject to “other provisions of the Convention” i.e. Exhibit 8 tendered by the claimant. In other words, Chapter 12 of Exhibit 9 must operate subject to Article 23(1) of Exhibit 8 which stipulates the retirement age to be 60 years. The claimant accordingly urged the Court to reject the wrong interpretation placed on the phrase “without prejudice” by the defendants. The claimant continued that it wrong to say that WAEC does not have a unified policy on retirement. That it is incongruous and runs contrary to spirit of the WAEC Act, Exhibits 8, 9 and 10 which clearly stipulate the retirement age to be 60 years. That if the various countries had been applying different rules, the implication is that WAEC probably is not cognizant of its own law and rules. The claimant then went on to make a number of submissions. First, that it must be noted that the Pension Reform Act does not provide for retirement age which means that pension scheme may be divorced from the tenure of office of an officer and specific circumstances may be governed by its special rules as may be applicable. Second, that given Chapter 12 of Exhibit 9, employees of the Council are neither public servants nor civil servants in Nigeria but international public servants; and so the claimant is not a public servant within the context of the Public Service Rules. The Court was additionally referred to paragraph 1.01 of Chapter 1 of Exhibit 9. Furthermore, that reference by the defendants to the definition of “Public Service” contained in Exhibit 10 is misplaced as the provision has become otiose since all statutes referred to therein have been repealed. It is the submission of the claimant that pursuant to the powers of the Council to make rules and regulations and also in line with the provision of Article 23(2) of Exhibit 8, which gives the Council the power to operate and administer its own Pension Scheme, the Council made the WAEC Staff Pension Scheme Rules admitted as Exhibit 10 and which commenced on 1st January 1989 and so governs the claimant’s employment. That it is incongruous for the defendants to say that the claimant’s employment is not governed by Exhibit 10 as this would mean rejecting the claimant’s earlier position that the claimant’s employment is no longer governed by the rules and regulations affecting the staff of the 1st defendant in Nigeria. That the law frowns at a party approbating and reprobating, referring to Anyaduba v. NRT Co. Ltd [1990] 1 NWLR (Pt. 127) 397 at 407. The claimant proceeded to examine Exhibits 8 and 10 to see when the claimant can be compulsorily retired. To the claimant, both Article 23(1) of Exhibit 8 and Rule 4 of Exhibit 10 put the retirement age to be 60 years. Therefore, that aside from the conditions under which pensions and gratuities are payable under rule 4(a) of Exhibit 10, no employee of the 1st defendant can be compulsorily retired before the age of 60 years. That since the claimant’s office is a pensionable one as recognized by WAEC (Declaration of Pensionable Officers) Order and as governed by Exhibits 8 and 10, the claimant cannot be retired other than in accordance with the provisions of the said Exhibit 10. To the claimant, her employment enjoys statutory flavour given that her employment is governed by statute, referring to Idoniboye-Obu v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 646 – 647, Ujam v. IMT [2007] 2 NWLR (Pt. 1019) 470 at 490, Azenabor v. Bayero University, Kano [2009] 17 NWLR (Pt. 1169) 96 108, Igieva v. Igbenedion [2004] 14 NWLR (Pt. 894) 467 and FMC, Ido-Ekiti v. Olajide [2011] 44 WRN 22 at 43. The claimant proceeded to submit that the defendants do not appear to understand the import and purport of section 6 of the WAEC Act when they relied on it. That the power to make the Pensions Act applicable under section 6(2) of the WAEC Act resides in the Council and is not exercisable by any other person or authority, whether Minister, Head of the Civil Service of the Federation or any other authority whatsoever. The claimant went on that the case of The Branch Controller WAEC, Ilorin & anor v. Kazeem Saidu Alade Suit No. CA/IL/3/2011 delivered on 8th November 2011 obviously supports her case given that the Court therein held that WAEC is not an agency or organ of the Federal Government, irrespective of application of the Pensions Act to staff under section 6 of the WAEC Act. Additionally, that the Court of Appeal in considering section 18 of the Interpretation Act and section 318 of the 1999 Constitution held that WAEC does not belong to any of the persons or bodies stipulated therein for the purpose of the defence under the Public Officers (Protection) Act. It is, therefore, the submission of the claimant that Exhibit L issued by the Head of Service as regards tenure of service of an employee is not applicable to the 1st defendant as to effectively compulsorily retire the claimant as at when purportedly done. To the claimant, her case is not one of wrongful termination of illegal termination or retirement contrary to the WAEC Act, Article 23 of Exhibit 8 and Exhibit 10 which state that the compulsory retirement age is 60 years. That the claimant’s illegal retirement will be said to fall within the ambit of illegal termination or dismissal. It is the submission of the claimant that since the retirement of the claimant is protected by statute, any action of the 1st defendant must be in compliance with the rules governing the claimant’s employment otherwise her retirement will be regarded as null and void and the claimant will be entitled to remain in office, referring to Achu v. CSC, Cross River State [2009] 3 NWLR (Pt. 1129) 475 at 502. In consequence, that the 2nd defendant’s purported retirement of the claimant runs contrary to the provisions of sections 1(3), 4(3), 5 and 6 of the WAEC Act, Exhibit 8 and Exhibit 10 (a subsidiary legislation regulating pension under section 6(3) of the WAEC Act). On whether the Registrar can compulsorily retire the claimant, the claimant submitted that the purported compulsory retirement of the claimant by the 2nd defendant is illegal, null, void and of no effect whatsoever for the following reasons – a. Compulsory retirement is tantamount to and not different form dismissal as it is different from voluntary retirement. It amounts to laying off a worker before his retirement age and without his consent. b. It is ultra vires the 2nd defendant to retire the claimant whose employment is governed by section 5 as it is only the Council that can do that. c. The defendants wrongly contended that the compulsory retirement of the claimant is “an administrative routine” which would not require the authority of the Council, referring to paragraph 3 of the statement of defence. d. The 2nd defendant’s notice of retirement to the claimant did not pretend to any authority from the Council, referring to Exhibit 7. It rather directed the claimant to proceed on retirement based on “the policy on Tenure of Office for Permanent Secretaries and Directors” within the Nigeria Civil Service which was issued by the Head of the Civil Service in Nigeria….” e. If compulsory retirement is tantamount to conditional dismissal, then it is only the Council that has the power to compulsorily retire in appropriate circumstances, referring to Okwusidi v. Ladoke Akintola University [2011] 48 WRN 159 at 181. That contrary to Okwusidi, the 2nd defendant, the Registrar in the employment of the 1st defendant Council, only issued the notice of retirement as “an administrative routine”, a power he does not have. That it is completely illegal. It is the appropriate authority that can issue or authorize such retirement and cannot be done by way of “administrative routine”, referring to FCDA v. NAIBA [1990] 3 NWLR (Pt. 138) 270 at 280. Furthermore, that it is beyond cavil that compulsory retirement is a punitive measure which can only be visited on an employee in accordance with the law, referring to section 5 of the WAEC Act and Nawa v. AG, Cross River State [2008] All FWLR (Pt. 401) 807 at 831. That it is clear that the claimant as an international public servant cannot be removed from office save in accordance with the provisions of section 5(1) and (2) of the WAEC Act which provides the category of officers who cannot be dismissed except by Council and also stipulates the procedure for such dismissal which requires an inquiry to have been conducted. That the 2nd defendant did not pretend that an inquiry was conducted in line with section 5(2) but unilaterally, as “an administrative routine”, removed the claimant from office. It is the submission of the claimant that the argument of the defendants to the effect that the clamant is subject to the Public Service Rules of Nigeria is out of place and should be rejected given that the claimant is an international staff of the 1st defendant and whose employment is governed by Exhibit 9. That Exhibit L accordingly is not applicable to the claimant especially as section 4(3) of the WAEC Act states that the tenure of office and conditions of service of the Registrar and other officers and servants of the Council shall be determined by the Council which the Council has done vide Exhibits 8 and 10. Furthermore, that Exhibit L is directed at specific bodies and organizations of which WAEC is not inclusive which shows the reason why it had not been used in WAEC since 2009 when it became operative in the Public Servant. The claimant wondered how an international organization like WAEC could be made subject to the civil or public service rules of a country in which it has offices; and then asked whether the Head of Civil Service of Nigeria can as well exercise disciplinary powers on staff of WAEC in view of Chapter 12 of Exhibit 12. The claimant accordingly urged the Court to uphold her contention and resolve issue (a) in her favour. On issue (b) i.e. whether the purported designation of the claimant as a Director in the employment of the 1st Defendant is a pensionable office cognizable by the provisions of section 6(1) of the WAEC Act Cap. W4 LFN 2004 and the WAEC (Declaration of Pensionable Offices) Order of 1961 made pursuant thereto, the claimant submitted that the purported designation of the claimant as Director in the employment of the 1st defendant is not a pensionable office cognizable by the provisions of section 6(1) of the WAEC Act and the WAEC (Declaration of Pensionable Offices) Order. That contrary to the argument of the defendants that the claimant had used the designation “Director” in a number of mails, it is not what the parties chose to call themselves that really matters but what the law has stipulated. That if the designation “Direction” is not legally cognizable, no legal effect can be given to it. It is the submission of the claimant that by Exhibit 6 (the claimant’s promotion letter of 21st March 2005), she was promoted to the rank of Senior Deputy Registrar and not as a Director as canvassed by the defendants. That by Exhibit 5 (the claimant’s promotion letter of 5th March 1997) the claimant was promoted to the rank of Deputy Registrar with the functional title of Deputy Director of Finance. That the implication is that the claimant only had a functional title of Director of Finance when she was promoted to the rank of Senior Deputy Registrar. It is the submission of the claimant that there is no office whatsoever in the 1st defendant’s organization with the appellation “Director”, “Deputy Director”, “Senior Director” or “Senior Deputy Director”. That this is confirmed by section 6(1) of the WAEC Act and the WAEC (Declaration of Pensionable Offices) Order that listed the offices of the 1st defendant in Nigeria that are pensionable. The claimant then urged the Court to note that the WAEC (Declaration of Pensionable Offices) Order was made pursuant to section 6(1) of the WAEC Act. To the claimant, a careful perusal of section 2 of the WAEC (Declaration of Pensionable Offices) Order and the table specified in the First Column of the Schedule to the Order shows that there is no office in the 1st defendant’s organization in Nigeria with the appellation “Director of Finance” or “Deputy Director of Finance”. That if this is the case then the purported designation of the claimant as a Director in the employment of the 1st defendant is not known to law and consequently not a pensionable office cognizable to by the WAEC Act and the WAEC (Declaration of Pensionable Offices) Order. To the claimant, the law is that where a legislation lays down a procedure for doing a thing, there should be no other method of doing it, referring to Ibrahim v. INEC [1999] 8 NWLR (Pt. 614) 334 at 352 and Cooperative Commerce Bank (Nig.) Plc v. AG, Anambra State of Nigeria & anor [1992] 10 SCNJ 137; [1992] 8 NWLR (Pt. 261) 528. It is the submission of the claimant that the only offices created by the National Assembly in the 1st defendant’s Council are contained in section 2 of the WAEC (Declaration of Pensionable Offices) Order and it will take the National Assembly to amend same before such offices can be replaced with any other designation like “Director”, “Deputy Director”, etc. To the claimant, it is conclusive to say that Exhibit L cannot apply to the claimant who was employed as Senior Deputy Registrar, an international staff of the 1st defendant. In conclusion, the claimant submitted that she is entitled to her reliefs and urged the Court to so hold. ORAL ARGUMENTS OF BOTH PARTIES The defendants did not file any reply on points of law; but in orally adopting their written address, counsel to the defendants drew the Court’s attention to the Court of Appeal decision in The West African Examination Council v. Mr. King Udika unreported Suit No. CA/PH/415/2012 the judgment of which was delivered on 17th September 2014. In reaction, counsel to the claimant orally prayed the Court to note that – 1. WAEC v. King Udika was decided without reference to The Branch Controller WAEC, Ilorin & anor v. Kazeem Saidu Alade & anor unreported Suit No. CA/IL/3/2011 the judgment of which was delivered on 18th November 2011. 2. Kazeem Saidu Alade is a comprehensive interpretation of the provisions of the WAEC Act, which are all relevant to the instant case. King Udika only considered the question whether or not WAEC is a public officer for purposes of the Public Officers Protection Act, section 318 of the Constitution was not even considered in King Udika. 3. While Kazeem Saidu Alade turns on whether WAEC is an agency of the Federal Government for purposes even beyond the Public Officers Protection Act, King Udika is limited to the narrow compass of the Public Officers Protection Act, referring to page 22 of King Udika. 4. Stare decisis does not apply in a blind fashion. Once a case is distinguishable, it is not binding on the Court. COURT’S DECISION I heard learned counsel and considered all the processes filed in this case. In considering the merits of the case, I must point out that while the defendants counterclaimed against the claimant, praying thereby for 4 reliefs, save for reliefs 1 and 2 which are implied in the defence of the defendants regarding the claims of the claimant, no specific arguments were led by the defendants regarding especially reliefs 3 and 4 of their counterclaim. Since no arguments were led in that regard, reliefs 3 and 4 of the defendants’ counterclaim must stand or fail depending on how the case of the claimant goes. This of course means that all the reliefs as per the counterclaim of the defendants will stand or fall depending on the outcome of the claimant’s case itself. The case of the claimant is that she was compulsorily retired on the basis of the 8-year tenure rule applicable to Permanent Secretaries and Directors of the Public Service of Nigeria when such a rule should not be made applicable to her given that she is an international public servant of the 1st defendant, not a public officer in the Public Service of Nigeria. In resolving the case at hand, it will be necessary to, therefore, determine whether or not the 1st defendant is one that comes within the institutions that the 8-year tenure rule applies to. The 8-year tenure rule is Rule 020810(iv) of the Public Service Rules (2008 Edition) of 25th August 2009 applicable in Nigeria. See Ambassador D. C. B. Nwanna v. National Intelligence Agency & ors unreported Suit N. NICN/ABJ/123/2011 the judgment of which was delivered on December 16, 2013 and Stephen Imuzei Akhiojemi & anor v. Administrative Staff College of Nigeria & anor [2014] 43 NLLR (Pt. 135) 240. Exhibit L is the circular from the Head of the Civil Service of the Federation communicating the 8-year tenure policy of the Federal Government and upon which Exhibit 7 retiring the claimant was issued. I must quickly point here that of the addressees on Exhibit L, the head of WAEC i.e. the head of the 1st defendant is not listed as one. The closest one finds is “Directors-General and Chief Executives of Parastatals”. Is the 1st defendant a Parastatal? Rule 160101 of the Public Service Rules (2008 Edition) of 25th August 2009 states that – A Parastatal is a government-owned organisation established by statute to render specified service(s) to the public. It is structured and operates according to the instrument establishing it and also comes under the policy directives of Government. Is the 1st defendant a government owned organisation, structured and operating according to the instrument establishing it and also comes under the policy directives of Government? WAEC, the 1st defendant is a creation of the WAEC Act Cap. W4 LFN 2004. In this sense, it is statutory. It is structured and operates in accordance with the instrument establishing it, the WAEC Act. But is it a government owned organisation? Does it come under the policy directives of Government? The last two are the key questions to resolving the jig-saw puzzle that we have in this case; and central to resolving the puzzle are inter alia the Court of Appeal cases of The Branch Controller WAEC, Ilorin & anor v. Kazeem Saidu Alade & anor unreported Suit No. CA/IL/3/2011 the judgment of which was delivered on 18th November 2011 and The West African Examination Council v. Mr. King Udika unreported Suit No. CA/PH/415/2012, the judgment of which was delivered on 17th September 2014. Both cases dealt with the question whether WAEC is a public institution as to benefit from the Public Officers Protection Act. While, King Udika held that it is, Kazeem Saidu Alade held that it is not. But Kazeem Saidu Alade went further to also consider whether WAEC is a Federal Government agency for purposes of the jurisdiction of the Federal High Court under section 251 of the 1999 Constitution, as amended, and held that it is not. Between Kazeem Saidu Alade and King Udika, which case is more relevant for purposes of the instant suit? To my mind, Kazeem Saidu Alade is more relevant. Like counsel to the claimant contended Kazeem Saidu Alade considered more relevant provisions of the law in determining whether WAEC qualifies as an organ of the Federal Government. In holding that it is not, the Court of Appeal through His Lordship Hon. Justice Joseph Shagbaor Ikyegh, JCA who delivered the lead judgment held (regarding WAEC who was the 2nd appellant in the case) in words vital to determination of the instant case that – 1. “By sections 14(1)(a) and 24 of the WAEC Act, the sovereign nations of the Gambia, Ghana, Nigeria and Sierra Leone are member states of the 2nd appellant, showing the Federal Government of Nigeria does not own the 2nd appellant as its organ. Its operation in Nigeria as an autonomous body is guaranteed or recognised by section 1(1) and (2) of the WAEC Act…” (italics is this Court’s). 2. “The proviso to section 1(1) of the WAEC Act…gives the President of Nigeria limited powers confined only to his having prior discussion with the 2nd appellant on the nature of examinations to hold in Nigeria…without making the 2nd appellant accountable to the Federal Government as its agency or organ. It is logical to conclude that by having prior consultation with the 2nd appellant under section 1(1) of the WAEC Act, the 2nd appellant cannot be said to be an appendage of the Federal Government, as one is not required or expected to consult with another under him before taking a decision on something” (italics is this Court’s). 3. “…the composition and conditions of service of its staff in sections 4 and 5…are exclusively vested in the 2nd appellant, not in the control or supervision of the Federal Government” (italics is this Court’s). 4. “Sections 12 and 13 of the WAEC Act further enhance the autonomy of the 2nd appellant…” 5. “Even the application of the Pensions Act to the staff of the 2nd appellant under section 6 of the WAEC Act does not transform the 2nd appellant into an organ of the Federal Government when it used the words “as if” the office were in the Public Service of the Federation within the meaning of the Constitution…” (italics is this Court’s). 6. “…the Federal government merely provided the legal frame-work in the WAEC Act to give the 2nd appellant statutory existence as an independent legal entity to facilitate the execution of its educational objectives of conducting public examinations in Nigeria under the watch, not control, of the Federal Government; as distinct from its ownership by the Federal Government as its ministry, department, agency or arm/organ” (italics is this Court’s). 7. “The 2nd appellant and the 1st appellant who exists under the 2nd appellant are, therefore, not an agency or part of Federal Government structure/body; nor do the appellants have any connection with the affairs and/or the running of the Federal Government…” (italics is this Court’s). 8. “…the appellants…do not serve in any capacity in respect of the Government of the Federation; nor are they shown to be established, financed and controlled by the Federal Government” (italics is this Court’s). The sum total of all these statements by His Lordship Hon. Justice Ikyegh, JCA is that WAEC is autonomous of the Federal Government, it is not accountable to the Federal Government, it is not financed by the Federal Government, it is not controlled by the Federal Government and more importantly, the composition and conditions of service of its staff are exclusively vested in WAEC, not in the control or supervision of the Federal Government. And all of this remains so despite that the statements were made regarding the questions whether the Public Officers Protection Act is applicable and whether it is the Federal High Court that has jurisdiction over cases involving WAEC. This being the case, my finding and hence holding is that WAEC is not a Parastatal as defined by Rule 160101 of the Public Service Rules for purposes of the 8-year tenure rule as per rule 020810(iv). Even when section 318 of the 1999 Constitution, as amended, defines “Public Service” to include service as staff of any educational institution established or financed principally by the Government of the Federation, this cannot be read to include WAEC given that WAEC may not even qualify as an educational institution; and even if it does, it is not one “established or financed principally by the Government of the Federation”. So if WAEC is not a Parastatal, the directive of the Head of the Civil Service of the Federation as per the 8-year tenure policy cannot apply to it. This means that the retirement of the claimant on the basis of the 8-yrear tenure rule (see Exhibit 7) is null and void. Accordingly, the claimant has succeeded in establishing her claim to relief (a) i.e. “a declaration that the compulsory retirement of the claimant by the 2nd defendant is null, void and of no effect”; and I so find and hold. I must clarify on a point argued by the claimant. In support of her claim, the claimant had argued that she was never appointed a Director in the 1st defendant’s organization and that equating her accordingly with that rank as the defendants argued is wrong. I must state that the position of Senior Deputy Registrar, which the claimant occupied, is an equivalent rank to that of a Director. If this Court’s finding had been that WAEC is a Parastatal and so an agency of the Federal Government, arguments of the claimant to the effect that she was not a Director and as such the 8-year tenure rule was inapplicable to her would accordingly have gone to no issue. See Mahmud Bayo Alabidun v. President of the Federal Republic of Nigeria & anor unreported Suit No. NICN/LA/74/2014 the judgment of which was delivered on January 30, 2015. In reliefs (b) and (c), the claimant is praying for “a declaration that the claimant is still in the service of the 1st defendant and is entitled to all her dues in the form of salaries, allowances and emoluments till March 2, 2017 when she can lawfully be retired from the 1st defendant’s service” and “an order directing that the claimant be reinstated or paid all her salaries together with all other benefits and entitlements attached to the office of Senior Deputy Registrar until she attains the age of 60 years on March 2, 2017”. In her argument especially at paragraphs 3.43 – 3.50 of her written address, the claimant argued that her employment is one with statutory flavour. A number of case law authorities have made pronouncements and hence indicated the yardsticks to be considered in determining whether an employment is one with statutory flavour. The authorities are all agreed on the following: the fact that an employer is the creation of statute does not elevate its employees to the status of employment with statutory flavor; there must be some preconditions on which a valid appointment or determination must be predicated for the employment to have statutory flavor; where the contract is determinable by the agreement of the parties simpliciter there is no question of the contract having statutory flavor; the fact that the other contracting party is the creation of a statute does not make any difference. See, for instance, Fakuade v. OAUTH [1993] 5 NWLR (Pt. 291) 47. The case of FMC, Ido-Ekiti v. Olajide [2011] 11 NWLR (Pt. 1258) 256 CA proceeded to add that for an employment to enjoy the status of statutory flavour, the manner of employment and termination must be specifically provided for in the statute creating the employment. In fact Imoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303 held that the fact that an appointment is pensionable or made by a statutory body does not mean that an appointment enjoys statutory protection or is one with statutory flavour. See also Jirgbagh v. UBN Plc [2001] 2 NWLR (Pt. 696) 11 CA, NEPA v. Adesaaj [2002] 17 NWLR (Pt. 797) 578 CA and Iloabachie v. Plilips [2002] 14 NWLR (Pt. 787) 264 CA. The more recent Supreme Court decision in PHCN v. Offoelo [2013] 16 WRN 28 is quite emphatic that the mere fact that an employer is a creation of statute or that it is a statutory corporation or that the government has shares in it does not elevate its employment into one of statutory flavour. Rather, there must be a nexus between its employee’s appointment with the statute creating the employer or corporation. To illustrate the kind of nexus required before an employment is branded statutory, in PHCN v. Offoelo, the Supreme Court found that a finding of the trial court which was not disputed is that the respondent was employed by the appellant since 1966 and that the conditions of his contract of employment are contained in the “Conditions of Service of Employees of National Electric Power Authority” tendered as Exhibit A. The Court held that section 4 and paragraph 9 of the Schedule to the NEPA Act are the connection and authority, which empowers the appellant to make Exhibit A (conditions of the employment of the appellant’s staff). As such Exhibit A has the force of law as NEPA Act, which established the appellant and the appointment of staff made therein consequently attracts statutory flavour. In this case, the Supreme Court was quite emphatic that in retiring the respondent with “immediate effect” the conditions of service was not complied with since there is no provision in the conditions of service sanctioning retirement with “immediate effect” or for payment of entitlements in lieu of notice. That all the conditions of service required is that all established employees shall be put on three months’ notice before the retirement takes effect. The Supreme Court then agreed with the trial Court that the appellant did not follow these provisions of the conditions of service in terminating the appointment of the respondent. It must be stressed, however, that the Supreme Court arrived at this conclusion having first held the employment of the respondent to be statutory; for only in that regard is the duty on the appellant to follow strictly the applicable conditions of service. By Idoniboye-Obu v. NNPC [2003] NWLR (Pt. 805) 589, conditions of service which will give statutory flavour to a contract of service cannot be a matter of inference. They must be conditions which are expressly set out by statute. That the rules and regulations, which are claimed by an employee to be part of the terms of his employment capable of giving it statutory flavour and be of protection to the employee, must – a) have statutory reinforcement or at any rate be regarded as mandatory; b) be directly applicable to the employee or persons 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 before they can be relied on to challenge the validity of that determination. See also Ogieva v. Igbinedion [2004] 14 NWLR (Pt. 894) 467 CA. Azenabor v. Bayero University, Kano [2009] 17 NWLR (Pt. 1169) 96 CA additionally held that all the above factors must be in existence before they can be relied on to challenge the validity of the determination. More specifically, Ujam v. IMT [2007] 2 NWLR (Pt. 1089) 470 CA held that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute or by a section(s) of the statute delegate power to an authority or body to make regulations or conditions of service as the case may be. In the case of the latter, the section(s) of the statute must clearly and unequivocally govern or regulate the employee and must be unmistakably clear in the provisions as to delegated legislation. That the regulations and/or the conditions of service must be implicitly borne out from the section(s) delegating or donating the authority. In other words, there must be clear nexus between the delegating section(s) and the regulation or conditions of service conveying a legal instrument or document which is of similar content. In such a situation, the regulations or conditions of service must commence with the provision of the enabling statute. Given these case law authorities, can it be said then that the claimant has shown to this Court that her employment is one with statutory flavour? A look at sections 1(3), 4(3), 5 and 23 and WAEC (Declaration of Pensionable Offices) Order in making provisions as to conditions of service, discipline and dismissal, etc of staff, all indicate that the claimant’s employment is statutory; and I so find and hold. I am accordingly satisfied that the claimant in paragraphs 3.43 – 3.50 of her written address successfully made out the case that her employment is statutory. Being statutory, the retirement of the claimant was not in accordance with the terms and conditions of her employment. Exhibit 8, The Revised Convention Establishing the WAEC and Exhibit 9, the Unified Conditions of Service for International Staff of WAEC applicable to the claimant (see paragraph 8 of her sworn deposition of 3rd October 2013), make no provision for the 8-year tenure rule. Instead in Article 23(1) of Exhibit 8, it is provided that a pensionable employee of the Council confirmed in office shall on reaching the age of 60 years retire from the service of the Council and shall be paid pension and gratuity in accordance with the conditions of service. Rule 4 of Exhibit 10 also provides that the compulsory age of retirement shall be 60 years. In paragraph 17 of her sworn deposition, the claimant deposed that she was born on 2nd March 1957 and so would not be 60 years old until 2nd March 2017. The retirement of the claimant as per Exhibit 7 was made before the claimant clocked 60 years; and it was not for any reason known to the claimant’s conditions of service or the WAEC Act. Accordingly, the claimant’s retirement is null and void and of no effect whatsoever. This being the case, the claimant is entitled to reliefs (b) and (c) as claimed. Having found in favour of the claimant, the counterclaim of the defendants cannot accordingly be granted since the claimant is still a bona fide staff of the defendants, and entitled to be treated as such with all rights and privileges. The defendants had argued that if the claimant is reinstated, then all staff of WAEC who were retired as per the 8-year tenure policy will ask to be recalled. In the first place, only the claimant is before this Court, no other staff is. Secondly, where a wrong is committed and a right infringed, for which a claimant came to Court, I am not aware that a Court of law should worry itself that to put right that wrong would encourage others who were equally wronged to come to Court. In other words, I am not aware of the rule of law which says that a wrong should not be remedied simply because doing so would encourage others who were equally wronged to come to Court. The argument of the defendants that the retirement of the claimant should be upheld simply because to do otherwise would mean that other employees of WAEC wrongly retired would ask to be recalled and reinstated remains unsubstantiated and so goes to no issue; and I so hold. On the whole, and for the avoidance of doubt, the claimant’s case has merit and succeeds, while the defendants’ counterclaim has no merit and so fails. The counterclaim of the defendants is accordingly and hereby dismissed. In regards to the claimant, it is hereby declared and ordered as follows – 1. The compulsory retirement of the claimant by the 2nd defendant is null, void and of no effect. 2. The claimant is still in the service of the 1st defendant and is entitled to all her dues in the form of salaries, allowances and emoluments till March 2, 2017 when she can lawfully be retired from the 1st defendant’s service. 3. The claimant is hereby reinstated without the loss of any right or privilege. She is to be paid all her salaries together with all other benefits and entitlements attached to the office of Senior Deputy Registrar until she attains the age of 60 years on March 2, 2017. 4. Cost of this action is put at Fifty Thousand Naira (N50,000) only payable by the defendants to the claimant within 30 days of this judgment. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip, PhD