IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ENUGU JUDICIAL DIVISION HOLDEN AT ENUGU BEFORE HIS LORDSHIP, HONOURABLE JUSTICE A. IBRAHIM DATE: 23rd June, 2015 SUIT NO.: NIC/205/2012 BETWEEN: 1. ASSOCIATE PROF. F. C. UZOR 2. CHIEF G. C. AKAGHA 3. O. A. INYANG 4. A. A. OBI 5. A. O. NZERIBE 6. MR J. C. OKORO 7. CATHERINE EKEZIE=================CLAIMANTS AND 1. IMO STATE POLYTECHNIC UMUAGWO 2. ATTORNEY-GENERAL IMO STATE 3. THE RECTOR, IMO STATE POLYTECHNIC UMUAGWO============DEFENDANTS REPRESENTATION: D. C. Denwigwe, SAN, appeared with G. B. Madugba Esq. for the Claimant. S. N. C. Kamange Esq. appeared for the 1st and 3rd Defendants. A. D. Anyalemechi Esq. Assistant Chief State Counsel, Ministry of Justice, Imo State for the 2nd Defendant. JUDGMENT The Claimants commenced this suit by way of a Complaint dated 21st November, 2012 but filed on 30th November, 2012. The Claimants claim the following reliefs against the defendants: (i) A Declaration that the purported retirement or attempt to retire the claimants before they are due for retirement is unlawful, ultra vires, null and void. (ii) An order setting aside the Imo State Polytechnic Memo reference IMPOLY/CR.84/11/95 dated 5th September, 2012 as it affects the claimants by which the Polytechnic published the name of the Claimants as due for retirement. (iii) An Order of injunction restraining the defendants, their servants, agents and/or privies from implementing the contents of the said Imo State Polytechnic Umuagwo Memo reference: IMPOLY/CR.84/11/95 dated 5th September, 2012 as relates to the claimants or taking any step to retire them before their retirement is actually due. (iv) An Order setting aside the directive of the Imo State Government to retire the Claimants as ultra vires, unlawful, null and void. The said Complaint was accompanied with a Statement of Claim, Claimants’ list of witnesses, witnesses’ statements on oath, Claimants’ list (and copies) of documents relied upon at trial. The claimants with leave of court amended their witnesses statements’ on oath. The Defendants entered appearance in the case and filed statements of defence. The 1st and 3rd defendants were represented by one counsel while the 2nd defendant was also represented by a different counsel. Parties joined issues and the case proceeded to trial. At the close of the case for each of the parties, learned counsel filed final written addresses which they respectively adopted and the case adjourned for judgment. In his written address the learned counsel for the 1st and 3rd Defendants formulated and argued the following issues: 1. Whether by a holistic view of the Complaint the Honourable Court has the jurisdiction to entertain same? 2. Whether the proprietor of the 1st defendant has powers to set up a panel to look into the affairs of the institution? 3. Whether the claimants have been able to prove their case? On his own part the learned counsel for the 2nd defendant formulated and argued the following issues for determination: (a) Whether the employment of the claimants is not one with statutory flavour? (b) Whether the act/directive of the Imo State Government is illegal? (c) Whether a cause of action has arisen in relation to the directive of Imo State Government or against the 2nd defendant. (d) Whether the claimants are entitled to their claims? The learned claimant’s Senior Counsel formulated and argued the following issues for determination: 1. Whether this Honourable Court has jurisdiction to entertain this suit? 2. Whether the defendants have justified the retirement of each of the claimants complained of in this suit? If not then 3. Whether the claimants are respectively entitled to the respective reliefs which they have respectively claimed in this suit? The learned counsel for the 1st and 3rd defendants in his written address has raised the issue of jurisdiction of the court to entertain the subject matter of the dispute in this case. As can be seen from the response of the learned senior counsel for the claimant he did react to the issue and so I shall deal with it before moving on, if necessary, to go into the substantive suit. The issue raised is whether the Court has jurisdiction to hear this matter. In his argument, the learned counsel for the 1st and 3rd Defendants stated that the claims of the claimants are contained on page 18 of the Complaint filed in this court on the 30th of November, 2012. That a close examination of the memo complained about, i.e., IMOPOLY/CR.84/11/95 of 5th September, 2012 shows that it is predicated on and rests entirely on prayer No. iv as the origin. The source of the directive complained about is the report of the panel set up by the Government of Imo State and it is Exhibit D1 before the court. In other words, the claimants are challenging the report of the panel. He then submitted that the report is not a labour issue and therefore does not come within the jurisdiction of the Honourable Court. For a court to have a jurisdiction one of the conditions that must be present is that the subject matter must fall within the jurisdiction of the court. He referred to the cases of Ajao vs Obele (2005) 5 NWLR (Pt. 918) 400 at 414 and C.B.N. vs S.A.P. (Nig) Ltd (2005) 3 NWLR (Pt. 911) p. 152. Learned counsel further submitted that the subject matter of this suit is the annexure to Exhibit CLD3 i.e. Appendix B to the report of the panel set up by the Imo State Government on Staff Audit of the 1st defendant. It is that report that the claimants are complaining about. The claimants in their evidence in chief and under cross examination denied that there was a panel set up by the State Government but in their prayer iv they asked the court to declare as ultra vires unlawful, null and void the directive contained in the report of the panel which they claim does not exist. Counsel added that they also contended that the Government of Imo State has not such power to set up the panel. They cannot blow hot and cold, or approbate and reprobate, counsel contends. He further went on that the relevant things to be considered by the court in determining the issue of jurisdiction are the facts deposed to in the affidavit, the writ of summons and the statement of claim, relying on Usman vs Baba (2005) 5 NWLR (Pt. 917) 113. According to counsel, paragraph 3 of the statement of claim states the facts upon which this suit is based. He also drew the court’s attention to paragraphs 14 to 18 of the Statement of Claim. The complaint here is not that the Government of Imo State did not give any directive to the 1st defendant but this time that the Government of Imo State is not the appropriate office to issue such directive. He submitted that the subject matter of this suit is the report of the review committee Exhibit D1 and the court has to first determine whether or not it has jurisdiction to entertain same, referring to CBN vs S.A.P. (Nig) Ltd, supra, and Madukolu vs Nkemdilim (1962) 1 SC 6. He further stated that in determining the subject matter jurisdiction it is only the writ of summons and statement of claim of the claimant that are considered, referring to Governor of Kwara State vs Lafiagi (2005) 5 NWLR (Pt. 917) 139 at 151. Furthermore, learned counsel submitted that a suit challenging the report of a Staff Audit/Review committee set up by Imo State Government on a tertiary institution established and funded by her cannot be about labour. He referred the court to its decision in the case of NIC/EN/21/2011, D.O. Egbujor vs Imo State Polytechnic & Anor. He continued that Section 254C of the Constitution of the Federal Republic of Nigeria, inter alia, states that the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and …. a. relating to or connected with any labour, employment, trade unions, Industrial relations and matters arising from workplace The conditions of service including health, safety, welfare of labour, employed work (sic) and matter incidental there to or connected therewith. To the learned counsel, a report of a panel set up by the Government is certainly not. He urged the court to decline jurisdiction. Reacting to this issue of jurisdiction learned Senior Counsel for the Claimants stated that each and every relief in this suit complains against pre-mature retirement of the claimants from their respective employment. No defendant to this suit disputed the fact that each of the claimants was employed by the 1st defendant with statutory colouration. He referred to paragraphs 1, 2 and 4 of the Statement of Claim. He proceeded to state that “Retirement” is defined as:- Termination of employment, service, trade or occupation upon reaching retirement age, or earlier at election of employee, self-employed or professional. See Blacks’ Law Dictionary-Sixth Edition. Furthermore that the same dictionary defines “labour dispute” as:- Any controversy between employers and employees concerning terms, tenure, hours, wages, fringe benefits or conditions of employment…. To the learned Senior Counsel the Statement of claim shows abundantly that every relief sought in this suit is a remedy against the retirement from employment which the claimants are complaining of. He referred the court to Usman vs Baba (2005) 5 NWLR (Pt. 917) 113 at 134 Paras A-B, C.B.N. vs S.A.P. (Nig) Ltd (2005) 3 NWLR (Pt. 911) at 176 paras C-F. He added that the jurisdiction of this court spelt out in Section 254C(1)(a) of 3rd Alteration to the Constitution of the Federal Republic of Nigeria, 1999 as amended covers this suit absolutely. He stated further that the 1st and 3rd defendants have not demonstrated any basis on which they have challenged the jurisdiction of the court in this suit. He therefore urged the court to resolve the issue against them. I have considered the processes of the parties, the arguments advanced as well as the submissions made on the issue of the jurisdiction of this Honourable Court to hear this suit. The basis of the objection is on the subject matter of the suit. To the 1st and 3rd defendants, the suit is outside the purview of the jurisdiction of this Court because it is not about a labour matter but rather the challenge to the report of the panel set up by the Government of Imo State, tendered and admitted in evidence as Exhibit D1. On the other hand, to the claimant, the subject of this suit is about labour and therefore fully within the jurisdiction of the Honourable Court as stipulated in the provisions of Section 254C of the Constitution of the Federal of Nigeria, 1999 as amended. In determining the issue, the appropriate processes to consider are the originating processes of the claimant, particularly the statement of claim. In this regard, the learned counsel for the objectors has drawn the court’s attention to paragraphs 14 to 18 of the Statement of Claim. The said paragraphs read as follows: 14. On the basis of the said false document of dates of birth the 3rd defendant purportedly on the directive of the State Government has published a document in the name of the 1st defendant to the effect that each of the claimant (sic) should proceed on retirement. That document titled “Retirement of some staff from the service of Imo State Polytechnic by government Directive” reference IMPOLY/CR.84/11/95 dated 5th September, 2012 is pleaded and notice is given to the defendant to produce it at trial. 15. The 3rd Defendant claims that the Governor of Imo State directed him to carry out the action complained of in this suit. 16. The authority to retire and to discipline staff of the 1st defendant of the rank of the claimants is vested in the Governing Council of the 1st defendant and not on (sic) the Governor of Imo State or the 3rd defendant. 17. No provision of the statute which regulates the employment of the claimants by the 1st defendant empowers the Governor of Imo State to direct the retirement of the claimants. 18. The acts of the defendants complained of in this suit was (sic) directed or authorized by the appropriate office or officer of the 1st defendant. Having examined closely the above paragraphs of the statement of claim, it is clear that the main grouse of the claimants is that their retirement was not properly done having been based on the directive of the Imo State Governor and not the Governing Council of the 1st Defendant. The grouse of the objectors is hinged on the fact that the directive of the Imo State Governor led to the directive made in relation to the claimants retirement and further that the said retirement was based on the report of the panel set up by the Governor. The argument of the objectors is that the suit is about the challenge to the power of the Imo State Governor to set up the panel which produced the report on the Claimants and not their retirement. However, my close examination of the totality of the paragraphs of the Statement of claim, along with the reliefs sought therein, shows that the suit is about the wrongness in the retirement or attempted retirement of the claimants in this matter. This view I so find and hold because the dispute is about the purported retirement of the claimants and in order to determine whether the Imo State Governor’s directive to retire them was lawful or not, the issue of the report of the panel set up by the Governor must be considered. This cannot, with all due respect to counsel for the objectors, be said to have removed the matter from the purview of labour and hence outside the jurisdiction of this Honourable Court. By being a dispute relating to the propriety or otherwise of the retirement of the claimants, I have no difficulty in holding that this court has the jurisdiction to hear and determine this suit. The objection therefore fails and is dismissed. Having determined the objection and it has failed, I now turn to the main suit itself. But then let me further deal with another preliminary point made by the learned Senior Counsel for the Claimants and reacted by the defendants. It is that of the fact that the 3rd and 7th Claimants have not given evidence in this case and must therefore be held to have abandoned their case. Here, there is consensus on the part of the parties and I accordingly strike out their claims for failure to prosecute same. The suit was therefore prosecuted by the 1st, 2nd, 4th, 5th and 6th Claimants. The reliefs sought by the claimants have been stated earlier on in this judgment. Put briefly, the facts of the case are that the claimants were each employed by the 1st defendant which is established and governed by the Imo State Polytechnic Law, 2007. The Claimants therefore averred that their employments were each governed by statute. The claimants averred further that the defendants embarked upon the unlawful retirement of the claimants purportedly on the directive of the State Government which directive is not supported by the law governing the institution, the 1st defendant. The said retirement or attempt to retire the claimants, the claimants averred, should be declared void, ultra vires and of no effect. On their own part, the 1st and 3rd defendants averred that the actions of the defendants in verifying the respective ages of the claimants as well as the decisions to retire them were within the law and practice of the institution and powers of the state government. The bulwark of their defence is to be found in the letter from the office of the Governor dated 23/4/2012, report of the staff Audit/Review Committee dated 26/6/2012, another letter from the office of the governor dated 24/8/2012, the Imo State Polytechnic Manual 2009 and the Government White paper on rightsizing of July 2010. The 1st and 3rd Defendants filed an amended statement of defence. The 2nd defendant also averred in its defence that government of Imo State is authorized to verify the ages claimed by staff of the 1st defendant and consequently all decisions reached were intra vires the powers of the government. I have carefully considered the pleadings, evidence led, arguments and submissions of the parties in this case. The issues that arise for determination in this case are: 1. Whether the employment of each of the claimants is statutorily flavoured? 2. Whether the act of the defendants complained of in relation to the retirement of the claimants was lawful? 3. Whether the claimants are entitled to their reliefs? On the first issue it is the contention of the Claimants’ that their respective appointments are statutorily flavoured and this means that the 1st defendant must comply strictly with the provisions of the statute in bringing the relationship to an end. The point of statutory flavour of the claimants has been made by the claimants themselves as well as emphatically by the 2nd defendant. Both counsel to the parties have relied on the decision of the Supreme Court in the case of PHCN vs Offoelo (2013) 4 NWLR (Pt. 1344) 380. The Supreme Court in that case pointed out 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 with statutory flavour. Rather, there has to be a linkage or nexus between the employee’s appointment with the statute creating the employer or corporation. In the instant case the claimants have by their respective letters of appointment shown that they are staff of the 1st defendant, which is also a creature of statute and was actually created by the Imo State College of Agriculture Law, No. 11 of 1979. By the provisions of Section 22(1) and (2) of the said Law the employees are subject to the conditions of service as may be made by the Council. The section reads: 22. (1) All academic and non-academic staff of the College shall be employees of the College unless the Council specifically authorizes the contrary. (2) The staff of the College shall be paid directly from funds appropriated to the College under its approved recurrent estimates, and shall be subject to the conditions of service, rules and regulations laid down by the Council. This provision clearly shows that the members of staff of the 1st Defendant have Conditions of service rooted in and protected by statute. By further statutory enactment the institution became the Imo State Polytechnic Umuagwo and pursuant to the powers to regulate the Conditions of service of the staff the 2009 Staff Regulations were made. More specifically Chapter 6 of the said Conditions of service makes provisions for retirement amongst others. In this regard it is quite clear that the employment of the claimants is statutorily flavoured and I so find. The 1st issue is accordingly resolved in the positive. This takes me to the second issue. In the case of PHCN vs Offoelo(2013), supra, the Supreme Court pointed out that where an employee’s contract of employment is governed by a statute directly or by Rules, Regulations, bye-laws, etc, made pursuant to a statute, the service contract is said to enjoy statutory flavour. Furthermore, where the employment relationship is to be brought to an end it must be in accordance with the provisions of the statute. See Fakuade vs O.A.U.T.H.M.B. (1993) 5 NWLR (pt. 291) 47. The Claimants have pleaded that their retirement was not proper because there was no compliance with their conditions of service. The most critical pleading though is that the respective retirement dates of the claimants are not correctly stated by the 1st defendant in its document with reference No. IMP/S./128/11 dated 28th March 2012 and therefore no justification for the retirement of the claimants as directed in document no. IMOPOLY/CR.84/11/95 dated 5/9/2012. See paragraphs 14 and 15 of the Statement of Claim. Furthermore, the claimants have averred what they claim as their rightly declared ages as well as the due dates for each of them to retire. This is how it is stated in paragraph 5 of the Statement of claim as well as paragraph 5 of each of the statements on oath of the Claimants. NAME DATE OF BIRTH DATE OF APPOINTMENT DUE DATE OF RETIREMENT i. Ass. Prof. F.C. Uzor 4/10/50 2/8/82 4/10/2015 ii. Chief G.C. Akagha (Non-Academic) 11/12/58 12/1/82 11/12/2018 iii. Catherine Ekezie (Non-Academic Staff) 25/9/63 11/9/80 19/9/2013 iv. A. A. Obi (Academic Staff) 10/08/50 15/11/79 10/08/2015 v. O. A. Inyang (Academic Staff) 13/03/50 1/6/82 13/03/2015 vi. A. O. Nzeribe (Academic Staff) 15/7/50 1/11/81 15/8/2015 vii. Joseph C. Okoro (Non-Academic Staff) 25/02/54 1/3/82 1/3/2014 On their own part the 1st and 3rd defendants, in their amended statement of defence, paragraph 3 thereof, reacted to the said paragraph 5 of the Statement of Claim in the following words: 3. The 1st and 3rd defendants admit paragraph 5 to the extent that the retirement age of the various categories of staff are stated in the polytechnic staff manual 2009 and other documents but the same documents states (sic) categorically that the retirement ages may be reviewed by government circular from time to time (chapter 6 of this manual) that is simply what the government did. In further averment in relation to this the 1st and 3rd defendants stated that they did not ascribe any false ages or dates of birth to the claimants but rather that the publication in question was sent to the 1st defendant to be communicated to affected staff. But the 1st and 3rd defendants equally added that by the powers vested in the Government of Imo State as the proprietor of the 1st defendant and the relevant law of the institution, the government is authorized to verify the ages claimed by the staff of all institutions under her including the claimants at any time. This is what the Government did in this case and it was not targeted at the claimants as other institutions of government had been verified before the 1st defendant. For the 2nd defendants in reacting to the averment in paragraph 5 of the Statement of claim of the claimants averred in paragraph 3 of its Statement of Defence as follows: 3. The 2nd Defendant admits paragraph 5 of the Statement of Claim only to the extent that the retirement age of the various categories of staff of the 1st defendant is provided at the Polytechnic Staff Manual 2009, but avers that the same document allows the government which the 2nd defendant represents in this suit to review their retirement age from time to time through its circulars. This averment is in substance not different from that made by the 1st and 3rd defendants. The point though from the pleadings and evidence led is that the claimants are hinging their claims on the fact that going by the respective ages the claimants declared to the 1st defendant and which were published in Exhibit CLD6, the 1985 Nominal Roll of Staff, their respective retirement ages subsequently published in 2012 by the Defendants, Exhibit CALD3 is not correct. Let me outline the case for each of the claimants as follows: 1. In the case of the 1st Claimant, Dr F.C. Uzor, by the 1985 Staff Nominal Roll, his date of birth is 4/10/50 and he pleaded his retirement date as 4/10/2015, but the 1st Defendant in Exhibit CALD3 did not give his date of birth but simply put his due date for retirement as 4/10/2010. 2. For the 2nd Claimant, Chief G. C. Akagha, too his date of birth in Exhibit CLD6, the 1985 Nominal Staff Roll list, is 11/12/58 and he pleaded 11/12/2018 as his year of retirement but the 1st defendant puts his date of birth in Exhibit CALD3 at 11/12/1951 while his retirement date was put at 11/12/11. 3. For the 4th Claimant, A.A. Obi, an academic staff, by Exhibit CLD6 his date of birth is 10/08/50 and his retirement date is pleaded as 10/08/2015 but the 1st Defendant by Exhibit CALD3 puts his date of birth as 10/8/1944 while his retirement date as 10/8/2009. 4. For the 5th Claimant, O.A. Inyang, an academic staff, by Exhibit CLD6 his date of birth is 13/03/50 while his retirement date was pleaded as 13/03/2015 but the 1st Defendant in Exhibit CALD3 did not give his date of birth but stated his retirement date as 13/3/2011. 5. For the 6th Claimant, A. O. Nzeribe, by Exhibit CLD6 his date of birth is 15/7/50 and his retirement age is pleaded as 15/8/2015 but the 1st Defendant in Exhibit CALD3 gave no date of birth and stated his due retirement date as 15/8/2010. From the evidence before the court, the defendants have not been able to show the basis upon which the respective retirement ages of the claimants changed from what they themselves have stated. The defendants have basically relied on the stipulations in Chapter 6 of the Staff Conditions of Service (The Polytechnic Manual of 2009) which gives the 1st defendant the power to review the retirement ages of the employees including the claimants. I have studied the said Chapter 6 of the Conditions of Service of the 1st Defendant. It indeed provides for the review of the retirement ages of employees. However, what we are confronted with in this suit is the fact that the Claimants respective retirement ages were factually altered by the Staff Audit/Review Committee set up by the Government of Imo State, represented by the 2nd Defendant. When the Committee concluded its work the report was published and the claimants notified that their retirement was now in accordance with the published information. The critical point here is that the Claimants have contended that the said committee did its work in violation of the fundamental right of the claimants to fair hearing. In other words they were not given the opportunity to appear and justify their respective ages but rather decisions were taken upon their supposed dates of birth, dates of employment, as well as dates of retirement. The defendants have contended that notices were put out to enable members of staff of the 1st Defendant to appear and that that was sufficient opportunity. Here I do not agree with the defendants. In matters of fundamental right to fair hearing as well as fair labour practice, where an indictment is to be made against an employee, it is only proper and reasonable that he should be given an opportunity to react to same. I agree that it may be adequate to give a general notice to the members of staff over an exercise such as staff audit, but would it be fair and reasonable for the employer to proceed to take decisions against the employee, where it intends to make specific decisions without informing him about the intended step. In other words, having discovered that the claimants had not given correct information about their respective details as to date of birth, date of appointment and possible retirement, is it not necessary to confront them with those allegations before taking the next step of publication and notification of the decision to retire them based on the new finding? I answer this question in the affirmative. The provisions of Chapter 6 of the Polytechnic Manual only give the defendants the power to review the ages for retirement, and not the power to factually adjust the details of an employee without affording such an employee the opportunity of being heard. Therefore, I am in agreement with the learned Senior counsel’s submission which is in line with the decisions in Okafor vs A-G Anambra State (1991) 6 NWLR (Pt. 200) and Enigwe vs Akaigwe (1992) 23 NSCC 303 (Pt. 1), that the actions of the 1st defendant cannot be justified in view of the breach of the claimants’ right to fair hearing. See also the case of Olufeagba vs Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384. Furthermore, there is the defence raised by the 1st and 3rd Defendants that the Imo State Government had the power to set up the Panel that conducted the Audit/Review at the 1st Defendant. I have perused the submissions of the 1st and 3rd defendants as well as the processes filed, and I have not seen any statutory justification or instrument that authorized the action. The only point made is that there was no Governing Council in place and a pointer equally made to Chapter 6 of the Staff Handbook of the 1st defendant. The absence of Governing Council cannot justify the taking of any action that would lead to the breach of the rights of the claimants in the institution by the Government of Imo State. I have also earlier found that the action cannot be justified on grounds of provisions of Chapter 6 of the Staff Hand book because it does not authorize the unilateral change of the factual details of the claimants in the name of a review. It must also be emphasized that every executive act of the Government particularly which affects the rights of the citizens must be justified and have its validity rooted in an enabling legislation. This is more so where employment or labour rights are concerned, as in the instant case, which have been protected by statute. See A-G Bendel State vs Aideyan (1989) 4 NWLR (Pt. 118) 646 at 671-672 H-A. In the circumstance, the issue is resolved in favour of the Claimants. On the 3rd issue, which is whether the Claimants are entitled to their reliefs, which I have earlier set out at the beginning of this judgment, it is my humble view that the claimants have made sufficient case to entitle them to the reliefs sought. I only have to add here that the contents of the Retirement Age of Staff of Polytechnics and Colleges of Education (Harmonization) Act, 2012 has been drawn to the attention of the court. By Exhibit CALD1, the 1st Defendant has been notified of the said content which is to unify the retirement ages of both academic and non-academic staff. The non-academic staff in this case whose retirement date had not fallen due before the coming into effect of the new Act must be entitled to retire in accordance with it. In the circumstance and for all the reasons given, I hereby find and hold as follows: 1. The retirement of the 1st, 2nd, 4th 5th and 6th Claimants before they their due date is hereby declared null and void. 2. The Imo State Polytechnic Memo reference number IMPOLY/CR.84/11/95 dated 5th September, 2012 as it affects the 1st, 2nd, 4th, 5th and 6th Claimants is hereby set aside.