➥ CASE SUMMARY OF:
Mr. A. O. Afariogun v Federal University Of Technology Akure & 4 (2020) – NIC
by B.C. “PipAr” Chima
➥ COURT:
National Industrial Court of Nigeria – NICN/AK/41/2017
➥ JUDGEMENT DELIVERED ON:
3rd February, 2020
➥ AREA(S) OF LAW
Retirement age;
Statutory flavoured employment;
➥ NOTABLE DICTA
⦿ DUTY OF CLAIMANT TO PROVE CONTRACT OF EMPLOYMENT
It is the well settled position of law that a contract of employment is the bedrock upon which all employment relationships are formed and an aggrieved employee bears the evidential burden to place before the court his contract of employment and show in what way the terms and conditions were breached by the defendant. See F.M.C. Ido-Ekiti & Ors. v Alabi (2011) LPELR 4148 (CA). — Adewemimo J.
⦿ NATURE OF A STATUTORY EMPLOYMENT – CONDITIONS
Statutory employment has been explained to mean an employment in which the procedure for employment and discipline are governed by statute. See Nigeria Institute of International Affairs v Mrs. T.O. Ayanfalu (2007) 2 NWLR (Pt. 1018) p. 246. In addition to the above, it is the position of the law that it is not all persons employed by a statutory body or government agency that is in a statutory flavored employment. Uwa JCA, explained this in Federal Medical Centre, Ido-Ekiti & Ors. v Isaac Olukayode Olajide (2011) LPELR-4150 (CA), when he held thus: “In agreement with the submissions of learned counsel to the 1st set of appellants to the effect that for an employment to be held to have statutory flavour the following conditions must be met: 1) The employer must be a body set up by statute. 2) The establishing statute must make express provisions regulating the employment of the staff of the category of the employee concerned. In a plethora of legal authorities in recent times, the Apex Court has given a clear distinction between employment with statutory flavour and other employment. In employments covered by statute, procedures for employment and discipline (including dismissal) of an employee are clearly spelt out, whereas any other employment outside the statute is governed by terms under which parties agreed to be master and servant.” — Adewemimo J.
⦿ STATUTORY EMPLOYMENT IS GOVERNED BY STATUTE
A statutory employment is as a matter of course governed by statute and so also is the procedure for employment and discipline provided for in the statute. See Nigeria Institute of International Affairs v Mrs. T.O. Ayanfalu (SUPRA). — Adewemimo J.
⦿ TO DETERMINE RIGHTS IN A CONTRACT, COURT MUST RESPECT CONTRACT MADE BY PARTIES
The position of the law is that in determining the rights and obligations of parties to a contract, the court must respect the sanctity of the contract made by them. They are bound by the terms thereof and the court will not allow any extraneous term to be read into it. See Adams O. Idufueko v Pfizer Products Limited & Anor. (2014) LPELR-22999 (SC). — Adewemimo J.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice A.A. Adewemimo
➥ APPEARANCES
⦿ FOR THE APPELLANT
O. Ayenakin
⦿ FOR THE RESPONDENT
Prof. O.J. Jejelola
➥ CASE HISTORY
The claimant by a General form of Complaint filed on the 18th December 2017 and amended by order of court on 21st March, 2018, claims against the defendants the following reliefs:
A Declaration that the claimant’s employment with the 1st, 2nd and 5th defendants is under FUTA Act and as such is statutorily flavoured.
A Declaration that the retirement age of the claimant is 65 years and not 60 years as the claimant’s employment falls into category of non-academic staff of the 1st defendant.
An Order setting aside the retirement of the claimant since the same is wrongful, illegal and void.
An Order directing the defendants to reinstate the claimant to his appointment or employment and pay all claimant’s salaries, allowances and emoluments from the date of purported retirement to the date of judgment and thereafter.
An Order of Court restraining the defendants from forcing the claimant to retire from the employment of the 1st defendant at the age of 60 years.
Alternatively, An Order directing the defendants to pay claimant’s gratuity and pension that is due to him upon his retirement from work.
➥ ISSUE(S) & RESOLUTION
[CASE SUCCEEDED]
I. Whether or not the claimant is in employment of the Federal University of Technology Akure & statutorily flavoured?
RULING: IN CLAIMANT’S FAVOUR.
A. It is undisputed that the claimant was employed vide Exhibit FF2, wherein it was stated in paragraph 2 thereof as follows: “The appointment is subject to the provisions of the Act, Statutes and Ordinances, made hereunder, and to regulations governing the conditions of appointment of Senior Staff made by the FUTA Staff Secondary School Management Board from time to time. The provision above clearly implies that the claimant’s employment is guided by the FUTA Act, statutes, and ordinances, but in addition regulations made by the FUTA Staff Secondary School Management Board from time to time. In the case of Lawrence Jirgbagh v Union Bank of Nig. Plc. (2000) LPELR-5802(CA), it was held that where the conditions of service are derived from regulations that emanates from statutory provisions, they invest the employee with a legal status higher than an ordinary master/servant employment, and the employment will be held to be statutorily flavoured and the employee is considered to be a public officer.
B. However in the instant case, considering the plethora of facts in this case, the legal authorities cited and documents tendered particularly Exhibits FF1, FF2, FF5, FF6, FF11, and a holistic analysis of same, I find that there is sufficient evidence to indicate that the claimant is in a statutory employment with the defendants, and as conceded by the defence counsel.
.
.
II. Whether or not the retirement age of the claimant is 65 years?
RULING: IN CLAIMANT’S FAVOUR.
The provisions of Exhibits FF2 specifies that the claimant’s retirement age is 60 years, and further to this, paragraph 6 of Exhibit FF2 (letter of offer of employment) states: “Your appointment will be for a period of three (3) years in the first instance after which it will be confirmed, subject to satisfactory performance, to the retirement age of 60. If the appointment is not confirmed at the end of the period, it will be determined by three months’ notice, or payment in lieu.”
This will lead to a thorough scrutiny of Exhibit FF11, particularly Paragraph 4(1) of Chapter V thereof which provides as follows; “A member of staff shall retire from the service of the University upon attaining 65years for non-teaching and 70 years for Academic Staff in the professorial cadre (Academic Librarians inclusive) or 65 years for academic staff below the professorial cadre,” It is therefore established that the 1st defendant has reviewed the conditions of service of its employees on CONTISS 06/CONUASS 01 and above, but failed to introduce a similar provision in the Staff Secondary School staff conditions of service This is despite the fact that staff of the school are members of Senior Staff Association of Nigerian Universities, and the staff school is regarded as a department under the 1st defendant.
The 1st defendant having incorporated the retirement age of its staff in Exhibit F11 is so bound by the provision and cannot hide under the guise of a regulation to vitiate the provisions of Paragraph 4(1) of Chapter V of Exhibit FF11 with regards to the claimant’s retirement. It is based on the foregoing that this court finds that the retirement age of the claimant is 65 years and therefore his purported retirement by the defendants in this suit is premature and unlawful. I so hold.
.
.
III. Whether the claimant is entitled to the reliefs sought?
RULING: IN CLAIMANT’S FAVOUR.
On the third issue, it is trite law that in a statutory flavoured employment, once the employee succeeds in establishing a breach of the statute guiding his employment, he will be entitled to reinstatement and arrears of his salary for the period of the breach. In other words, it is within the powers of the Court to restore the aggrieved party to his original position by making an order of reinstatement and payment of his arrears of salary. See Nongu v Local Government Service Commission & Anor (2011) LPELR-4851(CA).
Having held that: the claimant is a staff of the 1st defendant; the claimant is in a statutory employment; and iii. the claimant’s retirement age is 65 years.
I am convinced that the claimant is entitled to the main reliefs sought in this suit. The claimant is entitled to be reinstated to his employment with the 1st defendant and for the arrears of his allowances and emoluments from the date of his purported retirement i.e. December 2017, be paid till he is finally reinstated. I so hold.
In all, I find that the claimant’s action succeeds and for the avoidance of doubt, I declare and order as follows:
The claimant is an employee of the 1st defendant The claimant’s employment with the defendants is statutorily flavoured.
The retirement age of the claimant is 65 years.
The purported retirement of the claimant by the defendants is premature, unlawful, and void and same is hereby set aside.
The defendants are hereby ordered to reinstate the claimant to his employment and pay all his, allowances and emoluments from the date of purported retirement i.e. December, 2017 to the date of judgment and until he is finally reinstated.
The defendants are hereby restrained from forcing the claimant to retire before the statutorily provided age of 65 years.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
FUTA Act,
Public Service Rules (2008).
➥ REFERENCED (CASE)
⦿ COURT PROCESS IS TO BE FILED AS FOLLOWS
This position is further reinforced by the case of; Daniel Ihibe Omede v Umion Bank of Nigeria Plc. (2013) LPELR-22793(CA) where Abdullahi JCA held as follows; ‘’All processes filed in Court are to be signed as follows: a) The signature of counsel, which may be any contraption, b) name of the counsel clearly written, c) the party counsel represents, d) name and address of law firm.”
⦿ NO NEED TO MARK NAME OF LEGAL PRACTITIONER IF WHO SIGNED THE PROCESS IS LEGIBLE
Also, Kekere-Ekun JSC went further on this issue in Williams v Adold/Stamm Int’l (Nig.) Ltd. (2017) 6 NWLR (Pt. 1560) Pg. 1 at 19-20, where his Lordship held that; “A process prepared and filed by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his firm where he carries out his practice. The grouse of the respondents appeared to be that there was no mark beside either of the two names to identify which of them signed the process however the name Ladi Williams, though handwritten, was very clear and legible. The court was satisfied that there was no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll. The omission to place a tick beside the name of Chief Ladi Rotimi Williams SAN did not mislead the respondents or the court as to who signed the process and such omission cannot invalidate it.”
⦿ THE PRINCIPLE OF PRINCIPAL & AGENT IN AGENCY RELATIONSHIP
Agency has been defined in the case of SDV Nigeria Limited V Phillip Kayode Olusegun Ojo & Anor (2016) LPELR-40323 (CA), where Nimpar JCA, explained thus; “Agency is a relationship that exists between a principal and another called “agent” under which the agent has authority to act on behalf of the principal. Several authorities defined agency relationship, one of which is the case of OKWEIJIMONOR V GBAKEJI (2008) NWLR (Pt. 1079) 172 where the Apex Court held thus: “The general law relating to agency however , may be defined as the relationship which exists or arises where one person has the authority or capacity to create legal relations, i.e. the ‘agent’ who acts on behalf of another called the ‘principal’ whereby the latter undertakes to be answerable for the lawful acts of the former with a third party; provided it was done within the scope of his authority or ratified later by the latter. The fundamental element in agency relationship is authority of the agent to act on behalf of the principal.”
➥ REFERENCED (OTHERS)
