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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Tuesday 20th May, 2014 SUIT NO: NICN/ABJ/217/2013 Between: Engr. Soibi Dede PHD Claimant AND National Office for Technology Acquisition and Promotion (NOTAP) and Another Defendants REPRESENTATION Claimant present; Defendant is represented by Mrs. Ada Onyeka Chief Legal adviser to the 1st defendant, Micheal Eleyinmi Esq. with Sunday Elufioye Esq., N. E. Iwule Mrs. For the claimant. I.N Ndukwe (Mrs). For the defendants; JUDGEMENT By an originating summons filed by the claimant on the 27th of August 2013, the following questions for determination are being sought (1) Whether upon the true and proper construction and interpretation of sections 4, 6,9,10 and 11 of the National Office for Technology Acquisition and Promotion (NOTAP) ACT CAP 62 LFN, 2004 and letters from the office of the Head of Civil Service of the Federation to the 1st Defendant dated 12th June, 2008 and 15th May, 2013 respectively the claimant as Director, Technology Acquisition and Research in NOTAP is a Research Academic Cadre Staff? If the answer to the above is yes; (2) Whether upon the true constructions of; section 4, 6, 9, 10 and 11 of National Office for Technology Acquisition and Promotion (NOTAP) Act CAP 62 LFN, 2004, and letters from the office of the Head of the Civil Service of the Federation the 1st Defendant dated 12th June, 2008 and 15th May, 2013 respectively; the claimant being a Research Director in a Federal Research Institute/Parastatal could continue in service till the attainment of 65 years of age, and is therefore not affected by the 8 years tenure policy for Directors in other Cadre of Civil/ Public Service. Upon the courts determination of the above questions, the claimant proceeded to seek the following reliefs: (a) A declaration that the 1st Defendant is a Research institute/Parastatal funded by the Federal Government of Nigeria and therefore its “Research Academic Cadre staff may continue in office until they attain 65 years of age”. (b) A declaration that the claimant as the Director, Technology Acquisition and Research of the 1st Defendant, is a Research Academic Cadre staff and may continue in office until he attains 65 years of age, and is therefore, not affected by the 8 year tenure policy. (c) An order of injunction restraining and stopping the Defendants particularly the 1st Defendant from forcefully retiring the claimant and withdraw all the retirement Notices already served on the claimant without delay. (d) Such further order (s) and reliefs as the Honourable Court may deem fit to make in the circumstances of this suit. The claimant supported his originating summons with a 23 paragraph affidavit depose to by the claimant himself, 8 Exhibits and a written address wherein the claimant counsel, Michael Eleyinmi Esq. formulated two issues for determination namely:- (1) Whether upon the true and proper construction and interpretation of sections 4, 6, 9, 10 and 11 of the National Office for Technology Acquisition and Promotion (NOTAP) Act Cap N 62 LFN 2004, and letters from the office of the Head of civil service of the Federation to the first defendant dated 12th June 2008 and 15th May 2013 respectively, the claimant as director, Technology Acquisition and Research in NOTAP is a research Academic Cadre staff? If the Answer to the above is yes! (2) Whether upon the true construction of section 4, 6, 9, 10, and 11 of the National Office for Technology Acquisition and Promotion (NOTAP) Act Cap N62 LFN 2004, and letters from the office of the Head of Civil Service of the federation to the 1st defendant dated 12th June 2008 and 15th May 2013 respectively, the claimant being a Research Director in a Federal Research Institute / parastatal could continue in service till the attainment of 65 years of Age, and is therefore not affected by the 8 years tenure policy for directors in other cadre of civil/public service? On issue one, Mr. Eleyinmi referred the court to section 4 of the National Office for Technology Acquisition and Promotion (NOTAP) Act Cap N62 LFN 2004 and urge the court to hold that NOTAP, the 1st defendant is a Federal Research and Development Institution or Parastatal under the Federal Ministry of Science and Technology, the 2nd defendant. Counsel further urged the court to adopt a liberal interpretation to the wording of section 4 of the Act in question since the wordings are not ambiguous. Counsel cited the case of City Engineering Ltd Vs. A.G. Federation 2001 FWLR Pt. 34 P.499 @ 510. On issue 2, counsel submitted that from the wording of the two letters from the office of head of service namely the one dated 12th of June 2008 and 15th May 2013, and upon a liberal construction, the claimant who is a director of Academic cadre and a researcher is permitted to retire at the age of 65 years and as such not affected by 8 years policy of the Federal Civil Service; counsel submitted further that the principles of interpretation of statute are the same as that of interpretation of documents. Counsel called in aid the cases of Adams Vs. Umar 2009 21 WRN 81 @ 158; Garji (2007) All FWLR (PT. 346) 494@ 495. Counsel urged the court to grant the prayers of the claimant as per his summons; In reaction, the defendants filed a counter affidavit of 4 paragraphs (all sub paragraphs inclusive), 6 exhibits on the 13th of January 2004. The counter affidavit is deposed to by one Alex Ajogwu, a litigation secretary with the 2nd defendant. The defendant, on the 15th of January 2014 also filed a further and better counter affidavit to the claimant suit. The affidavit which is inappropriately headed as a reaction to claimant motion” is essentially the same in content as the counter affidavit. This further and better affidavit also has 4 paragraphs (all sub paragraphs inclusive) deposed to by one Alex Ajogwu, a litigation secretary in the legal unit of the 2nd defendant, with six exhibits. On the 29th of January 2014, the defendants filed a motion to regularize all processes in response to this suit including what they tagged as 1st and 2nd defendant, written address in opposition of motion; apparently referring to the claimants summons as a motion. The motion to regularize was granted including the written address of 5 pages which is undated, wherein, the defendants counsel Ijeoma A. Ndukwe formulated two issues for determination namely: (1) Whether the claimant is suppose to remain in office after 31st of August 2013 which is his retirement date? (2) Whether the claimant is a research director by virtue of his occupying the position of Director, Technology Acquisition and Research (TAR)? In arguing her written address, it appears, the counsel to the defendants Mrs. Ndukwe, presented her submissions on the two formulated issues together. She contended strenuously and vehemently too from the language on paper that the condition of service for the Federal Research Institute, College of Agriculture and Allied Institutions and the Federal Government provision on scheme of service has clarified the 8 years tenure of directors and the 65 years limit for research directors, as follows: (1) (a) a PHD qualification must be posses (b) Must have spent four years on the grade before promotion from Associate Chief Research follow- Conraiss 14 (c ) At least 17 reputable journal publications (d) Additional conference papers (e) Evidence of community service. (2) (a) Possession of PHD (b) Must have spent at least four years on the grade as a qualified chief research fellow: (c) At least 25 reputable publications (d) Additional conference or seminar papers. Counsel posited that the claimant do not possess any of these requirements particularly the publication element considered as a key requirement which has been confirmed by the assessment done in 2011 by the Nigerian Building and Road Research Institute (NBRRI) on the claimant . Counsel submitted that the claimant was the only substantive director in the 1st defendant as the two other directors retired from service after the 8th year’s tenure policy for directors. Mrs. Ndukwe contended further that the letter of May 15 2013 with reference No. HCSF/EPO/RR/64677/111/131 from the office of the Head of Civil Service of the Federation (HCSF) which says that the claimant ‘may’ continue in office until he attains the age of 65 years being a research Cadre director is erroneous. She posited further that this office was recognized and reformed in 2009 to Technology Acquisition and Research (TAR) department to clarify the department’s role in coordinating, documentary and assessing the dynamics and output of the Technology Acquisition and Research system in Nigeria. Counsel alluded to the fact that the office of the Head of service in writing the letter of may 15 2013 did not consult either the Agency or the ministry i.e the defendants before doing so. It is the opinion and submission of counsel that the word ‘may’ used by the letter of the head of the civil service of the Federation dated 15th May 2013 is only an advise and not a directive as the claimant cannot be of any academic value to the defendant even in retirement. Mrs. Ndukwe, counsel to the defendant invited the court to the fact that qualified Research fellows and directors are actually in high demand in Nigerian Universities, research institutes and polytechnics and advised that if the claimant is so qualified, he can avail himself of these opportunities but certainly not in National Office for Technology Acquisition and Promotion (NOTAP). The 1st defendant whose mission, vision, and mandate cannot accommodate the claimant. Counsel added that the continuation of the claimant in National Office for Technology Acquisition and Promotion (NOTAP), the 1st defendant will not add value to the agency, the nation and to the claimant himself as the 1st defendant do not have the infrastructure to support Core Scientific Research activities. Counsel drew the court attention to the fact that an attempt made by the claimant to transfer his service to the Nigerian Building and Road Research Institute (NBRRI) as a research director either by appointment or promotion failed because the claimant was not suitable or qualified as he is not a research director material as he claimed. Counsel urge the court to strike out this suit for lack of merit as the claimant is not suppose to stay a day longer than 31st August 2013 as this suit was dead on arrival. As I have earlier said, the defendants filed a further, further and better counter affidavit which they referred to as further and better counter affidavit II to the claimants summons. The further, further and better affidavit has 7 paragraphs deposed to by Alex Ajogwu, a litigation secretary in the legal unit of the 2nd defendant. The affidavit has a written address of 3 pages wherein the defendant submitted that they have just received a document made during the pendency of this suit which they claim will assist the court in adjudicating on this suit; the said document is attached to the affidavit and marked Exhibit ‘AA’ dated 9th January 2014. The defendant raise a sole issue for determination as follows: Whether the 1st respondent is a research institute as posited by the claimant? Counsel answered this issue in the negative as no innovation based on any research and developed product have been made by it since inception. Counsel submitted further that the 1st defendant has no laboratory and if the claimant is returned to the 1st defendant by the court, about 5 Million Civil Servants who have retired on the 8 year tenure policy will come back to their various ministries, departments and agencies. Counsels urge the court to strike out the claimants case. On the 5th of February, 2014 the claimant‘s counsel filed a further and better affidavit in support of his originating summons. This affidavit deposed to by the claimant himself has 12 paragraphs five exhibits and a written address dated 4th of February 2014. This address which is a reply to the defendants written address referred the court to rule 020810 (i)-iv of the Federal Government Public Service Rules to show that the claimants exhibits 1 and 2 and exhibit D attached to the further and better affidavit of claimants affidavit are the three letters buttressing the same position. Mr. Eleyinmi posited that there is no letter from the defendant showing and pointing that the head of the civil service of the Federation has directed the retirement of the claimant. Counsel cited the cases of Adegoroye Vs. Adegoroye 1996 2 NWLR (Pt 433) at 712 and Fawehinmi Vs. Abacha 1996 5 NWLR (Pt. 447) at 198 to show that facts which are not denied by way of counter affidavit are deemed admitted; as the content of the three letters from the office of head of service are not denied. Counsel referred the court to exhibit C of the claimant further and better affidavit in support of summons to show that the Director General of the 1st defendant was employed under the research cadre as the condition of service in the said exhibit ‘C’ reflects the condition of service for similar institutes existing as research institutions. Counsel further referred the court to the dictionary meaning of the word “RESEARCH” and the phrase “Research and Development in Industry” and posited that the mandate of the 1st defendant is consistent with the meaning of Research and as such it is a research institute. Counsel urged the court not to be deceived by the antics of the 1st defendant who do not want the claimant to be the Director General for fear of probe as all staff of the first defendant collect salaries and emolument of research institutes. Counsel also submitted that the claimant belongs to the Trade Union of Senior Staff Association of University Teaching Hospitals, Research Institutes and Associated Institute of which the 1st defendant belong. Counsel finally urged the court to grant the prayers of the claimant; I have carefully and painstakingly gone through the originating summons of the claimant, the various affidavits in support, the multiple and variegated counter affidavits, further and further and better affidavits of the defendants, the various multifaceted exhibits and the legal arguments, submissions, authorities including the sentiments, passions and emotion expressed as can be glean from the tone of the written submissions of the defendants. For the avoidance of doubt and for the purpose of clarity and simplicity I shall adopt the two issues raised for determination by the defendants in their written address of 29th January 2014; I merge and condense the two as follows: Whether the claimant is a research director by virtue of his position as Director Technology Acquisition and Research (TAR) and as such he is suppose to remain in office beyond his retirement date of August 31st 2013? Before I proceed to determine this one question raised above, let us look at the facts of the case in brief; The claimant was appointed an Assistant Director in the National office of the 1st defendant on the 2nd of November 2000. That appointment was confirmed on the 20th of May 2003 to take effect from 8th November 2002. The claimant was subsequently appointed a Director in the same National office of the defendant through a letter dated September 19th 2005 but to take effect from 1st September 2005. In a letter dated 14th May 2009 the claimant was transferred to the Nigerian Building and Road Research Institute (NBRRI), a Federal Research Agency by the Honourable minister in charge of the 2nd defendant as a director; the Director General of the 1st Defendant confirmed that transfer on the May 18th 2009. The claimant, on the 7th of November 2012 through a letter was notified of his retirement after 8 years of his tenure as a director with the 1st defendant since he became a director on the 1st of September 2005. It is this letter that has sparked a lot of controversies degenerating into several correspondences up to the level of Commander in Chief of the Armed Forces and President of the Republic of Nigeria that has culminated into this suit; The claimant filed a 23 paragraph affidavit in support of his originating summons. He also filed a 12 paragraph further and better affidavit in support of his originating summons. The defendant filed a 4 paragraph counter affidavit, a 4 paragraph (again) almost the same further and better counter affidavit and a 7 paragraphs further, further and better counter affidavits. Order 9 rules 3 and 4 of the rules of this court as enshrine in the practice direction 2012 only permits and put an end to filing of processes at the level of a reply to a counter affidavit; and written address on point of law only. All the further, further counter affidavit or the further and better affidavit’s filed by the parties are not contemplated by the rules of this court; However for the sake and interest of justice I shall depart from the rules of this court by virtue of order 5 (3) to admit and consider those affidavits and I so depart. Secondly, the various exhibits of the parties particularly those of the parties that are public documents are not certified in compliance with the provisions of the Evidence Act 2011 as amended. Again, in the interest of justice and fair play, I shall depart from the strict observance of the provisions of the Evidence Act by virtue of section 12 (2) (b) of the National Industrial Court Act of 2006 and I so hold; the affidavits of the defendants contravens section 115 (2) of the Evidence Act as it contains a lot of extraneous matters, objections, prayers and legal arguments including conclusions but I hereby depart from invoking the provisions of the Evidence Act on them as this court is enjoins to do substantial justice; I am fortified by this position by the wordings and provisions of section 12 (2) (a) of National Industrial Act (NICA) 2006 and section 37(3) which give this court the discretion to regulate its Procedure and Proceedings as it think fit; The three affidavits of the defendants referred to above, did not in any way specifically deny or traverse the depositions and the averments of the claimant in his supporting affidavits; In the recent case of FCDA Vs. Nzelu 2014 5 NWLR Pt. 1401 565, the court of appeal held that “ An unchallenged and uncontradicted evidence ought to play against that party who would have challenge or contradicted it but has failed to do so” By the provision of section 4 of the National Office for Technology Acquisition and Promotion (NOTAP) Act Cap N62 LFN 2004, the function of the National Office are clearly stated which includes (1) The encouragement identification and selection of foreign technology to Nigeria; (2) Developing negotiation skill for Nigerians entering into contract and agreement for transfer of foreign technology into Nigeria (3) Facilitating the registration of all contracts bordering on use of trademarks, patents, technical expertise, basic or detail engineering, machinery and plant, training of personnel among others. Section 6 of the Act deals with the procedure of registration of such contracts and agreement for the transfer of technology to Nigeria by the Director who happens to be the claimant in this case. The entire gamut of the law in question involves the knowledge of science, technology, deep insight and understanding in the area of scientific research and applications. In the claimants offer of appointment letter dated November 2, 2000 which is exhibit I or annex I attached to the defendants counter affidavit, paragraph 4 reads; “Other conditions of service governing your appointment are applicable in the public service of the Federation and as determined by the Governing Council of the National Office” The same words or paragraph is repeated in the letter of offer of appointment as director dated 19th of September 2005 given to the claimant. This letter is part of annex IV attached to the defendants counter affidavit. By the letter dated 14th May 2009 and 18th May 2009 which are part of exhibit /annex IV attached to defendant counter affidavit, the claimant was transferred to the Nigerian Building and Road Research Institute NBRR1 as a director on secondment. If the claimant is not an academic, why should the 1st and 2nd defendant sent him to the research institute on secondment? By annex VI dated 15 May 2013, in paragraph 3 and 4 the office of the civil Service of the Federation has this to say: 1. “it is clear from the designation of the officer as Director Technology Acquisition and Research of National Office for Technology Acquisition and Promotion (NOTAP), that he/ she is a Research Cadre Director 2. Accordingly the officer may continue in service till the attainment of 65 years of age, and is therefore not affected by the 8 years tenure policy” In the said document, this letter of 15th may 2013 was copied to the claimant specifically and address as follows: Cc: Engr. Soibi Dede Director, Technology Acquisition and Research, National Office of Technology Acquisition and Research (NOTAP) 4, Blantyre Street, Wuse 2 P.M.B. 5074 Wuse. In annex III, a letter dated 5th of December 2013 attached to the 1st and 2nd defendants further and better counter affidavit reads in paragraph 2 and 3 as follows; 2. “Having examined the appeal which borders on the eight year tenure policy for research Directors in the Federal Research Institute/Parastals as approved by the Head of the civil service of the Federation, this office has observed that in line with the provisions of the conditions of service for research institutes and with particular reference to our earlier letter ref. No. HCSF/EPO/EIR/62307/T2/90 dated 12th June 2008 which stated that “Research Academic Cadre staff may continue in office until the attainment of 65 years of age”. Engr. Soibi Dede is therefore not affected by the eight year tenure policy and should remain in service till the attainment of 65 years of age” 3. “To this end, the head of the civil Service of the Federation has directed your Ministry to ensure full implementation of the above directive with a view to restoring normalcy in (NOTAP) By this letter, the head of the civil service of the federation who heads all civil servants in the federal setup is interested in peace justice and normalcy in the 1st defendant occasioned by this crisis generated by the letter of retirement of the claimant. By exhibit A attached to the claimants further and better affidavit to the summons, the age of the claimant as at 2014 is 58 years old having been born in 14 April , 1956. By that exhibits, he also belongs to the Senior Staff Association, University Teaching Hospital Research Institutions and associated Institutions. In exhibit C attached to the claimants further and better affidavit, new Nigerian newspaper page 27 of 22nd /14/ 2008 duly certified stated under the condition of service for an applicant for the post of Director General/Chief Executive officer of the 1st defendant as follows; “The post is for 4 years tenure renewable upon satisfactory performance. Condition of service are the same with those existing in research Institute and other similar Institutions” Rules 020810 (1) of the public service rules 2009 says that all gardes of public servants in the service shall retire at the age of 60 years or 35 years of service whichever is earlier; but Sub rule III of the same rule says: “The provision of (I) and (ii) of the rule is without prejudice to prevailing requirements for judicial officers and academic staff of Universities who retire at 70 years and 65 years respectively.” The various exhibit quoted earlier in the judgment referred to the position of the claimant as belonging to Research Academic Staff Cadre whose condition of service is similar to staff of research Institutions and other similar institutes. In this context and construing it edjusdem generis, the claimant is an academic who comes under the provision of Rule 020810 (iii) of the public service rules. The defendant referred this court to the letter from the Accountant General of the Federation dated 6th of November 2013 seeking for clarification on status of research directors. This letter of inquiry is of no moment as it cannot supersede the position of the head of service of the federation. Moreover, the letter which is exhibit /annex III attached to the defendants further and better counter affidavit is only a letter of inquiry and nothing more. The same fate befalls Annex (III) of the defendant letter of 4th December 2013, 10th December 2013 (on the same issue and the same content) and the letter of 27th December 2013 annexed to their further and better counter affidavit. Exhibit ‘AA’ attached to the defendants further and better counter affidavit II dated the 9th of January 2014 is coming belatedly without revoking the earlier letters of 12th June 2008, and 15th May 2013. Moreover, this letter of 9th January 2014 did not specifically relate to the claimants position which has been settled in the earlier letters. Again, this letter of 9th January 2014 which the defendant claim included the claimant among the 8 year tenure limit of directors in public service was made during the pendency of this suit; The evidence of the claimant in this case appears credible and consistent with all the documentary evidences before me in this case; In the case of State Vs. Rabiu 2013 8 NWLR Pt. 1357 SC 585, the Supreme Court said; “Evaluation of evidence entails more than a mere review of same. It is a reasoned belief of one set of facts and the rejection of the other set.” It is a reasoned preference of one set of facts to another set of facts. And the exercise must leave an indication in the record on how the court arrives at its conclusion. See also the case of Onwuka Vs. Ediala 1989 I NWLR Pt. 96 182 Akintola Vs. Balogun 2000 I NWLR Pt. 642 532 . In the case of FCDA Vs. Nzelu (supra) the Supreme Court held as well in the following words:- “If a trial court finds the evidence led by a plaintiff believable reliable and it accept it, and the evidence support the case of the plaintiff, then he will be entitled to judgment in that regard” The defendant in this case has argued strenuously and vehemently too that the Head of the civil service of the Federation did not consult the defendant before issuing the letter of 15th of May 2013. I do not think, with due respect that the head of service need to consult any parastatal, ministry or agency before clarifying an issue that falls squarely within his domain. Moreover, the letter/circular in question mandating directors that have spent 8 years to proceed on retirement was said to have emanated from him. It is also very sad and unfortunate that the defendant who is relying so much on that purported letter of 8 years tenure limit of directors did not present the letter/circular as exhibit for the court to see. It should be noted that he who asserts must prove. See section 135 of the Evidence Act 2011 as amended. The defendant also argued that the word ‘may’ used by the head of service in his letter under reference do not import any mandatoriness as it is merely advisory. I disagree with counsel with due respect; the wordings of the letter for avoidance of doubt is herein repeated: “Research academic Cadre Staff may continue in office until the attainment of 65 years of age” The word “may” to me means the staff have the right to voluntarily retire or decide to stay. The letter of 12th June 2008 from the Head of Service also went further to say “Engr. Soibi Dede is therefore not affected by the eight year tenure policy and should remain in Service till the attainment of 65 years of age” I think this document is direct express and unequivocal. In the case of FCDA Vs. Nzelu (Supra) decided by the Supreme Court recently this year, the court has this to say; “the principle followed in the interpretation of statute are the same as those for the Interpretation of documents” ………….. words in a statute are to be given their plain, natural and ordinary meaning where there are no ambiguity……..” I have carefully applied this principle to the interpretation of National Office for Technology Acquisition and Promotion (NOTAP) Act Cap N62 LFN 2004 Particularly section 4 and 6 and the letters of 12th June 2008 and that of 15th May 2013 and I have come to the irresistible conclusion that the claimant in this case is a research academic staff. In the recent case of Yabatech Vs. MC and D.Ltd 2014 3 NWLR (Pt 1395) 616 the Supreme Court said; “the evaluation of evidence and the ascription of probative value thereto are the primary duties of the trial court” Consequently, I believe the evidence of the claimant in his affidavits which has not been specifically denied or controverted coupled with the documentary evidence before me; consequently the question raised in the claimants originating Summon for determination are answered in the affirmative. I also hold that the action of the defendants in this case runs contrary to section 254 c (I) (f) of the 1999 Constitution of Nigeria as amended which forbids unfair labour practice as it is also against intentional best practice on labour. From the content of the defendants’ affidavits and argument, it appears they have a high level of contempt for the claimant. They alluded to so many issues which borders on sentiment but let me single out the issue of change of Name. If an employee decides to change his name and the employer is suspicious of it or his conduct is found likely to be unbecoming of an officer of his status, due process can be initiated honourably without descending into the arena of arbitrariness and impunity. The courts are here for everybody to ventilate grievances as we cannot be used by anybody as an instrument of vendetta; For the various reasonings and conclusions in this matter, the court hereby order as follows: (1) The claimant, being a director of Technology Acquisition and Research at the National office for Technology Acquisition and Promotion, an agency of the 2nd defendant is not affected by the 8 year tenure policy being a research academic staff, and as such, he may continue in office until he attains the age of 65 years. (2) The defendant is hereby restrained from forcefully retiring the claimant from the services and employment of the defendants. (3) I direct the 1st defendant to withdraw all the retirement notices and restore to the claimant all his rights, benefits, emoluments, salaries and entitlements attached to his office as a director of the first defendant Forthwith. Judgment is hereby entered accordingly. ------------------------------ Hon. Justice P.O Lifu (JP.) Judge