IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON WEDNESDAY, THE 23RD DAY OF FEBRUARY, 2022
BEFORE THEIR LORDSHIPS:
OBIETONBARA O. DANIEL-KALIO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
ADEBUKUNOLA ADEOTI BANJOKO JUSTICE, COURT OF APPEAL
APPEAL NO. CA/L/410/2017
BETWEEN:
NIGERIA SECURITY PRINTING & MINTING PLC---- APPELLANT
AND
CHARLES UMOH -------------------------------------- RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This appeal is against the judgment of the National Industrial Court of Nigeria, delivered by Honourable Justice Obaseki-Osaghae in Suit No. NICN/LA/376/2012 on 07/06/2016. Dissatisfied with the said judgment, the Appellant activated the appellate jurisdiction of this court by filing a Notice of Appeal on 08/08/2016 and, with the leave of court, an Amended Notice of Appeal on 06/11/2017 predicated upon five grounds of appeal. The appeal challenges the decision of the lower court which faulted the termination of the Respondent’s appointment with the Appellant and reinstated him to his employment without loss of seniority, with an order that all his salaries, allowances and entitlements be paid to him.
In line with the practice in this court, parties filed and exchanged their respective Briefs of Argument. Appellant’s Brief of Argument was filed on 13/03/2019 while the Reply Brief though filed on 26/02/2021, was deemed properly filed on 30/11/2021, shortly before the appeal was argued. The two Briefs were settled by Dr. Olisa Agbakoba, SAN, Babatunde Ogungbamila and Chinonso Okafor. On the other hand, the Amended Respondent’s Brief of Argument filed on 12/01/2021 but deemed properly filed on 30/11/2021, was settled by Enobong Etteh, Abiodun Akanni, Damilola Ojopagogo and Moronke Olatunji.
In the Appellant’s Brief of Argument, three (3) issues were formulated for determination, as follows:
On the part of the Respondent, two issues were distilled thus:
Argument
Arguing issues one and two together, Appellant’s counsel referred to an extract of the lower court’s judgment, to submit that the interpretation the lower court gave section 318(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is directly at variance with the Supreme Court’s interpretation of the section in the case of Okomu Oil Palm Co. Limited vs. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660. Learned counsel noted that the Supreme Court categorically stated that the definition of public service of federation as used in that section “is not intended to be general definition for all purposes or to apply to any circumstance outside the reference made in the Constitution to the expression.” He submitted that there is no where in section 318(1)(g) of the Constitution that the persons within the definition of the public service of the federation are public officers.
Counsel submitted, citing FAKUADE vs. OAUTH (1993) 5 NWLR (Pt. 291) 47, that the court must confine itself to the terms of contract of service between the parties which provides for their rights and obligations, and that the fact that a person is employed by a company in which the federal government has controlling shares would not ipso facto confer statutory flavour on the person’s employment or make that person a public officer. He further submitted that even though the decision of the Supreme Court in the case of Okomu Oil Palm Co. Ltd vs. Iserhienrhien (supra) was not brought to the attention of the lower court, since the law resides in the bosom of the court, the lower court ought to have taken into consideration all the laws and facts in relation to a case before arriving at its decision, citing the case of Obiuweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465 at 497. He also relied on the case of Osakwe vs. FCE, Asaba (2010) 10 NWLR (Pt. 1201) 1 at 34, on the doctrine of stare decisis and finally urged the court to abide by the decision in the case of Okomu Oil Palm Co. Ltd vs. Iserhienrhien (supra).
Arguing further, Appellant’s counsel said that for an employee to be regarded as a public officer for the purpose of Public Service Rules, it must be shown that such employee was employed as a staff of the Federal Civil/Public Service Commission, the federal government or any of its agencies. It is the submission of counsel that by Rules 010103 and 020101(a) of the Public Service Rules, a public officer is a staff employed by the federal government or the Federal Civil Service Commission. Counsel said that in this case, there is no evidence that the Respondent was employed by the Federal Government or the Federal Civil Service Commission, but that the Respondent clearly admitted in his pleadings at the lower court that he was employed by the Appellant, a limited liability company.
In addition, counsel argued that the Respondent was not employed under the authority of the Federal Civil Service Commission by a letter written under the direction of the Commission or by formal agreement between the Respondent and the Federal Government or any of its appointed agents as provided in Rule 020201(a)(b) of the Public Service Rules and there is no authorisation of the Respondent’s appointment from the office of the Head of Service of the Federation and supervisory board or any of its parastatals. Citing the case of Idoniboye-Obu vs. NNPC (2003) 2 NWLR (Pt. 805) 589 at 620, Appellant’s counsel submitted that the fact that an organisation or authority is a statutory body does not mean that the conditions of service of its employees must be of special character such as to make the employment one with statutory flavour. The case of Fakuade vs. OAUTH (supra) was cited to submit that the court must confine itself to the terms of the contract of service between the parties which provides for their rights and obligations.
It was further submitted that the Respondent relied on the Public Service Rules as the document that regulates his employment with the Appellant, without showing how his conditions of employment fall under the Public Service Rules. Counsel contended that the decision that the Respondent’s employment was governed wholly by Public Service Rules was not founded on any evidence; therefore the question of whether or not his employment is governed by the provisions of the Public Service Rules relating to termination of employment cannot arise. In the same vein, counsel contended that the lower court came to a wrong decision when it held that the Respondent is a public servant/officer merely because he was employed by the Appellant, an entity in which the Federal Government has controlling shares. Counsel said that by the decision of the Supreme Court in the case of Okomu Oil vs. Iserhienrhien (supra) an employee of a company, such as the Appellant, in which the Federal Government has controlling shares is only a public servant for the limited purpose of the code of conduct, and not in relation to his employment. He finally concluded that the Respondent is not a public officer for purposes of the Public Service Rules, nor was he employed in accordance with provisions of the Public Service Rules.
On the third issue, Appellant’s counsel noted that the reason the lower court held that the Public Service Rules supersedes the Employee Handbook and the letters of employment was that these documents were not authorised by the Federal Government and this conclusion was reached after the court had erroneously held that the Federal Government owns the Appellant. Learned counsel said that if the reasoning and conclusion of the lower court that the Federal Government owns the Appellant is conceded, then the court ought to have held that the letters of employment and the Appellant’s Employee’s Handbook were issued with the approval of the Federal Government, since the Appellant’s act will be deemed in law as the act of the Federal Government.
He submitted there was no burden on the Appellant to show that the letters of employment and Employment Handbook were authorised by the Federal Government because the lower court ought to have relied on section 122(2)(i) of the Evidence Act, 2011 to take judicial notice that the Federal Government acted through the Appellant when the letters of employment and the Employee Handbook were issued. He argued that the issue was raised and decided suo motu by the lower court since there was no evidence before the court to support the finding made that the Employee Handbook was not authorised by the Federal Government and the Respondent did not lead any evidence to support the allegation that the Employee Handbook was not approved by the Federal Government. He relied on the case of Dairo vs. UBN Plc (2007) 16 NWLR (Pt. 1059) 99 at 137-138, paras H-A; 139, paras D-E on the need for the lower court to give parties equal opportunity to be heard in respect of issues raised suo motu. Counsel said that since the lower court failed to give the parties opportunity to address it on the said issue, its decision is a nullity and should be set aside.
In response, the Respondent submitted that the arguments canvassed by the Appellant are not applicable to this case. According to the Respondent’s counsel, the confusion regarding the provision of section 318(1)(1)(g) of the Constitution in relation to the Appellant and its employees has been put to rest by the Supreme Court in the case of Adekoya & Ors. vs. Nigerian Security, Printing and Minting Company Limited & Ors. (2009) 5 NWLR (Pt. 1134) SC 322 at 341-342, paras F-B. Counsel said that there is no dispute that the Appellant is owned by the Federal Government through the Central Bank of Nigeria and Bureau of Public Enterprises, although formed as limited liability company under the Companies and Allied Matters Act. He also submitted that the letters of offer of employment and confirmation of the Respondent made the Respondent’s service pensionable and the Central Bank letter of 17th February 2011 shows that the Appellant was under the cord of the Federal Government.
On how appointments to public offices of the Federal Civil Service are made, learned counsel relied on the decision in the case of FMC, Ido-Ekiti vs. Alabi (2012) 2 NWLR (Pt. 1285) 411. He also submitted that the Respondent is entitled to earn pensions and gratuity under the provision of the Pensions Act and citing section 4(c) of the Statutory Corporations Pensionable Officers (Retiring Age Limit) Act, Cap 419, Laws of the Federation of Nigeria, 1990, counsel contended that the Respondent’s contract of service with the Appellant is brought under the ambit of the Federal Public Service and his employment garnished with statutory flavour. He further relied on the decision of this court in the case of New Nigeria Newspapers Limited vs. Mr. Felix Atoyebi (2013) LPELR-21489 (CA).
It is further submitted that in line with the decision of the Apex Court in the case of Adekoye & Ors. vs. Nigerian Security, Printing & Minting Company Limited & Ors. (supra), the fact that the Appellant is an agency of the Federal Government by constitutional provision, qualifies its member of staff as a public servant in pensionable employment and such employment ought to be determined in line with the relevant provisions of the extant Public Services Rules. He relied on the case of Lafia Local Government vs. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 142, paras A-C to submit that since the Constitution has conferred the status of a public service on the Appellant, it follows that any law, contract, rules, decision and agreement inconsistent with the provisions of the Constitution, including contract of employment and the Appellant’s handbook, shall to the extent of its inconsistency be void.
It is also the submission of counsel that the case of Okomu Oil Palm Co. Limited vs. Iserhienrhien (supra) is distinguishable from the facts of this case since there is no evidence that Okomu Oil Palm Co. Limited operates conditions of service which are similar to (or are in accordance with) the Federal Civil Service Rules or that they have by law been imposed on it; while the Respondent in this case has pleaded facts to show that he is a public officer employed by an agency of the Federal Government under the control of the CBN and BPE. Learned counsel further contended that where the court is faced with two conflicting decisions of the Supreme Court on issue, the court is bound to follow the latest, citing GlaxoSmithkline Plc. vs. Ali Zakari Jiya (2014) LPELR-22902; Dahiru vs. Kamale (2005) 9 NWLR (Pt. 927); Osakwe vs. Federal College of Education, Asaba (2010) 10 NWLR (Pt. 1201) 1. He then submitted that this court is bound to follow the latest decision of the Supreme Court in the case of Adekoye & Ors. vs. Nigerian Security, Printing & Minting Company Limited & Ors. (supra) which is specific to the Appellant company herein.
The Respondent’s counsel submitted that the Respondent’s contention at the lower court that the alleged termination of his employment by the Appellant for services no longer required is not a valid ground for termination of a pensionable public officer under the Public Service Rules. He noted that the evidence before the court is that the Respondent responded to a query issued to him by his superior officer and by a report dated 23rd July 2009, he was absolved of all wrongdoing. Counsel said that Rules 030302(a) of the Public Service Rules (PSR) provides that in such a case, no further action shall be necessary. However, this was not done in this case, as the Appellant through its Managing Director caused a disciplinary committee to be set up in July 2009 to further fish for wrongdoing against the Respondent. He also submitted that the Respondent was not allowed to put questions to his accusers regarding the allegations that were made against him. It is the further submission of learned counsel that the Respondent has placed sufficient evidence before the lower court to prove that his employment is governed by the Public Service Rules and that the Appellant purportedly terminated his employment without recourse to the provisions of Rules 030302(a), 030307(vii), 030307(xiii) and 030307(viii) of the Public Service Rules, 2008. The cases of Haruna vs. Uniagric, Makurdi (2005) 3 NWLR (Pt. 912) 274-275, paras D-G; and Ugwuanyi vs. NICON Insurance Plc (2013) 11 NWLR (Pt. 1366) 608, paras A-C were relied upon by counsel before urging the court to resolve this issue in favour of the Respondent.
On the second issue formulated, the Respondent’s counsel made reference to the relevant paragraphs of the parties’ pleadings to submit that the Appellant and Respondent in their pleadings at the lower court joined issues on whether the Appellant’s employee handbook was approved or not and parties had the opportunity to address the court in their respective final written addresses before the lower court delivered its judgment. Counsel further submitted that it is not enough for the Appellant to assert that the Respondent’s statutory employment is governed by employee handbook and letters of employment, it must show to the satisfaction of the court that the Federal Government approved the said handbook and that same contains the Respondent’s terms and conditions of service which terms are not in conflict with the Public Service Rules, citing section 131(1) of the Evidence Act, 2011. He cited the cases of Coker vs. Adetayo (1992) 6 NWLR (Pt. 249) 612 at 615; Ojumo vs. Adalemo (2011) WRN 177 at 180; Ushae vs. COP (2005) 2 NWLR (Pt. 937) 531; Ila Ent. Limited vs. Umar Ali & Co. Limited (2013) 15 NWLR (Pt. 1376) 201-203, on the position that the court cannot speculate on an issue not placed before it.
In the Reply Brief, the Appellant submitted that the Supreme Court’s decision in Adekoye’s case is distinguishable from Okomu’s case and that Adekoye’s case is completely irrelevant and inapplicable to the present appeal. Counsel noted that unlike in Adekoye’s case, the present appeal has nothing to do with pension, but it is purely on the interpretation of section 318(1) of the Constitution that was construed in Okomu’s case. Counsel said that there is no conflict between the decision of the Apex Court in the Adekoye’s case and Okomu’s case. He further noted that while Adekoye’s case decided that the Appellant herein is an agency of the Federal Government and disputes arising from its administration, management and control fall within the exclusive jurisdiction of the federal high court and not the state high court, Okomu’s case decided that simply because a person is an employee of the a company in which the Federal Government has controlling shares, does not make such person a public officer to make the Public Service Rules become applicable to such employee’s employment. It was also submitted that the decision of the Supreme Court in the case of Osakwe vs. FCE, Asaba (supra) is only to the effect that the court is bound to follow the latest decision of the Apex Court, if the circumstances are the same.
It is the further submission of the Appellant’s counsel that the Supreme Court in the recent case of Avre vs. Nigerian Poastal Services (2020) 8 NWLR (part 1727) 403 held that where an appointment is not governed by any statutory provision, it does not enjoy statutory protection and cannot be said to have statutory flavour. The case of FMC Ido-Ekiti vs. Alabi (2012) 2 NWLR (part 1285) 411, were also relied upon by counsel.
Resolution
I have given due consideration to the issues crafted for determination from the grounds of appeal by each party in their respective Briefs as well as the arguments canvassed by the parties. The issues raised are not dissimilar in context, but for clarity and lucidity, I prefer the issues raised by the Respondent’s counsel and I adopt them for my determination of this appeal.
The first issue is whether the Respondent’s employment with the Appellant is governed by the Public Service Rules of the Federation and is the Appellant accordingly bound by the Public Service Rules, 2008? As a background to the determination of this issue, I believe it will suffice to briefly state the material facts of this case. The Respondent was employed by the Appellant, the Nigerian Security Printing and Mining Company Limited, as a Security Assistant vide an offer of employment dated 12th October 1995 and his appointment was confirmed by a letter dated 2nd May 1997. However, by a letter dated August 30, 2010, the Appellant terminated the Respondent’s employment stating that his services were no longer required. See page 57 of the Record of Appeal. The Appellant then calculated the Respondent’s severance benefits and set off all unearned allowances from the severance benefits. Peeved by the Appellant’s decision to terminate his employment, the Respondent instituted an action at the lower court, National Industrial Court of Nigeria seeking inter alia; a declaration that by virtue of section 318(1)(g) of the 1999 Constitution, the Respondent is a public officer and as such, his condition of service with the Appellant is regulated by the Public Service Rules, 2008, so that the termination of his employment by the Appellant is null and void for failing to comply with the relevant provisions of the Public Service Rules.
It is trite law that parties to a contract are bound by its terms. The express terms of a contract of employment govern any aspect of the relationship between an employer and the employee. See Olaniyan & Ors vs. University of Lagos & Anor (1985) LPELR-2565 (SC); Nigeria Security Printing & Minting Plc vs. Olaleye (2020) LPELR-50409 (CA). On this premise, the terms of the contract of employment are the bedrock of a Claimant’s claim where the issue of wrongful termination of employment calls for determination. In such a claim, the onus is generally on the employee to place before the court the terms of the contract of employment and secondly, prove in what manner the said terms were breached by the employer. Therefore, the law envisages that it is not the duty of an employer who is a Defendant in an action for wrongful termination to prove any of these facts. The Claimant must rely on the strength of his own case and not on the weakness of that of the defendants. See Katto vs. CBN (1999) 6 NWLR (Pt.607) 390 at 405; (1999) LPELR-1677 (SC); Amodu vs. Amode (1990) 5 NWLR (Pt.150) 356, (1990) LPELR-466 (SC); Aji vs. Chad Basin Development Authority (2015) LPELR-24562 (SC).
In the instant appeal, the Respondent as claimant in a bid to establish his contractual relationship with the Appellant as defendant tendered exhibit C1, which is the offer of employment and confirmation of appointment issued to him by the Appellant. The first document dated October 12, 1995, is the offer of employment signed by A. Garba (AGM, Personnel Services) for Managing Director & Chief Executive at pages 29 to 30 of the Record of Appeal, and it reads:
“OFFER OF EMPLOYMENT
Further to your application for employment, with the company and subsequent interview you attended recently, we are pleased to inform you that you have been offered employment as Security Assistant in Security Control Department…
You will be on a probation for a period of twelve (12) months. If during this period your efficiency and conduct are considered to be unsuitable for the post in which you have been employed, your services may be terminated forthwith without any warning… But if your work and conduct are found to be satisfactory at the end of your probation, your appointment may be confirmed and you will be eligible to join the company’s Gratuity and Pension Scheme.
We would emphasize that service with this company involves your acceptance of the right of the company to a search. Furthermore, you will be required to abide by the security regulations of the company and such other directives as may from to time be issued by our Security Control Department….”
The Confirmation of Appointment dated 2nd May, 1997 signed by A. Garba (AGM, Personnel Services) for Managing Director & Chief Executive, can be found at page 31 of the Record of Appeal and it reads:
“CONFIRMATION OF APPOINTMENT
Following the recommendation by your Head of Department on your satisfactory performance during the probationary period and favourable confidential reports received on you so far, management has approved the confirmation of your appointment under the terms and conditions of employment with the company…
As a confirmed employee, you automatically become a member of the Company’s Gratuity and Pension Scheme and should obtain from Human Resources Department (Pension Admin Section) a copy of the Trust Deed of the Scheme which contains a nomination form to be completed and returned to the Section. You will be entitled to such benefits hitherto enjoyed by you and others that may be approved from time to time by the Board of Directors for those in your grade. On your part, we expect you will do your utmost to give the best of your services to the Company.
It will be emphasized here that the Company has the right to terminate your services at any time by giving you notice of one month of its intention to do so or by payment of one month’s salary in lieu. Similarly, you may terminate your services with this company by giving one month’s notice or one month’s salary in lieu. The company is under no obligation to warn employee in cases of summary dismissal and the employee concerned may lose the notice pay and final entitlements.”
At paragraphs 2 and 4 of the Respondent’s Statement of Facts found at pages 4 to 14 of the Record of Appeal, the Respondent averred that the Appellant “is a public company in the Public Service of the Federation with the Federal Government of Nigeria having 97.06% controlling shares” and that “Since the coming into force of the Public Service Rules, 2008, the Claimant’s employment with the Defendant being a Public Service entity is now regulated by the provisions of the Public Service Rules pursuant to Rule 010101 thereof.” It is on this basis that the Respondent contended that his employment with the Appellant is regulated by the Public Service Rules. On the other hand, the Appellant denied these averments (see paragraph 2 of the Statement of Defence at pages 71 to 228 of the record of appeal). At paragraph 4 of the Statement of Defence, the Appellant averred that the Respondent’s contract of employment was governed by the terms and conditions of employment contained in Exhibit C1 as well as those stipulated in the Employee’s handbook admitted as Exhibit D1. It is on this basis that the Appellant argued that the Public Service Rules do not apply to the Respondent and the Rules apply only to officers employed by the Federal Government or the Federal Civil Service Commission, who have been employed in accordance with the procedure spelt out in Rules 020101(a) and (b) and 0200205(f) of the Public Service Rules, which reads:
“Appointments to public offices in the Federal Civil Service are made on the authority of the Federal Civil Service Commission. These appointments are made either:
No officer shall be appointed into the Federal Public Service without authorisation for appointment from the Office of the Head of the Civil Service of the Federation and supervisory Boards in the case of Parastatal.”
The learned trial Judge appeared to have been swayed by the Respondent’s position when she held at pages 447 to 448 of the Record of Appeal as follows:
“From the pleadings exchanged by the parties, the defendant accepts that it is a public limited company with the Federal Government holding the controlling shares. It has put in evidence its certificate of incorporation Exhibit D1. There is therefore no doubt or dispute that the defendant is a Federal Government owned company; and that it falls within the definition of public service in Section 318 of the Constitution as amended…
It follows that the claimant as a staff of the defendant is in the Public Service of the Federation. I find him to be Public Servant/Officer and I so hold…
The Public Service Rules have been made pursuant to the powers conferred by the Constitution. In other words, they have constitutional force and govern the conditions of service of Federal Public Servants. They invest the public servant over whom they prevail, a legal status, which places their employment over and above the common law relationship of master and servant; and introduces in such employment relationship, the vires element of administrative law. What this means is that a fortiori the Public Service Rules are a product of the Constitution and so have constitutional force.
The question that arises is whether the conditions of service of the defendant can supersede the Public Service Rules. By virtue of the doctrine of supremacy of the Constitution, the Public Service Rules must be read to supersede the defendant’s employee handbook and conditions of service. The defendant has not led evidence to show that its employee handbook or any of its terms has been approved by the Federal Government as stipulated in Rule 010101. This is especially so in terms of the provisions dealing with discipline and separation. I find that the claimant’s contract of service is governed wholly by the Public Service Rules….”
Indeed, I do not think it can be seriously contended that the Appellant herein is not part of the public service of the Federation, in light of the provision of the interpretation section of the 1999 Constitution, section 318(1)(g) which defines “Public Service of the Federation” to mean the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest.” At paragraph 4(i) of the Appellant’s Statement of Defence, it is admitted that two Federal Government agencies – Central Bank of Nigeria and the Bureau of Public Enterprises, collectively hold controlling shares in the Appellant, and by this token, the Appellant’s staff are deemed to be public service employees. Having been adjudged public officers, can it then be said that the Federal Public Service Rules applies automatically to every officer in the public service of the Federation including persons in the category of the Respondent? I think NOT! And my reasons are not far-fetched.
First, there is no doubt that the Public Service Rules, 2008 is not an enactment made by the National Assembly in the exercise of its legislative powers. Rather, the said Rules was made by the Head of Service of the Federation, and in the loose sense, can be seen as a delegated legislation. However, delegated legislation also called subsidiary legislation or statutory instrument is that legislation which is made under a delegated authority. It is the exercise of power to legislate conferred by or under an Act of Parliament to the executive or other administrative authorities. Section 37(1) of the Interpretation Act defines subsidiary instrument to mean: “any order, rules, regulation, rules of court, bye laws made either before or after the commencement of this Act in exercise of powers conferred by an Act.” By this definition, it is clear what amounts to delegated legislation in Nigeria. These legislations derive their legitimacy from Acts of Parliament, and they can only be made where there is express provision in the Primary Legislation to do so. In her judgment, the learned trial Judge pointedly held that the Public Service Rules which the Respondent relied upon in this case, was made pursuant to the powers conferred by the Constitution. It is not in doubt that the Public Service Rules, 2008 was issued by Ms. A.I. Pepple, CFR in her capacity as the Head of the Civil Service of the Federation.
I have combed the entire 320 provisions of the 1999 Constitution, and I do not see any provision which confer the power on the Head of Service of the Federation to make the Public Service Rules, ditto a provision of an Act of the National Assembly, so that same can be properly deemed to be a delegated legislation with the attendant force of law. By way of inference, sections 254, 259 and 274 of the 1999 Constitution are example of instances wherein the Constitution expressly confers powers on persons to make rules in the nature of delegated legislations, to wit, to regulate the practice and procedure of the body they superintend upon. In this case, the power of the Head of Service of the Federation to make the Public Service Rules, does not emanate from any provision of the Constitution or any Act of the National Assembly and it cannot then be deemed to be a delegated legislation. It is at best the employee handbook applicable to public officers and which must be incorporated into specific employment contracts, before it can be deemed to regulate the employment relationship between the Appellant and the Respondent.
The contents of a contract of employment like any other contract would consist essentially of the terms and condition regulating the relationship of the parties. To a large extent this will depend on the intention of the parties though certainty sometimes it does go beyond the intentions. However, the court must confine itself on the ascertained terms of the contract of service between the parties whatever they are, for it is that contract that provides for their rights and obligations. See Udemah vs. Nigeria Coal Corporation (1991) 3 NWLR (part 180) 477. Where the terms are clear and unambiguous the parties cannot move out of them in search of more favourable terms or greener pastures. However, where the terms of contracts are not clear and ambiguous, a court of law can move out of them and invoke the general rules of contract applicable to the contract of service. In this case, the terms and conditions contained in Exhibits C1 are very clear and unambiguous; it ought to leave no one in doubt that the parties do not have any intention that the provisions of the Public Service Rules will become applicable in their contractual relationship. In this appeal, both parties are ad idem on the fact that the Respondent was employed by the Appellant vide Exhibit C1 and that the said Exhibit C1 formed the bedrock of the contractual relationship between the parties. Indeed, there is no evidence on record to support any inference that the Appellant company operates a condition of service which is in accordance with the Public Service Rules or that the Appellant adopted the provisions of the Public Service Rules and incorporated it into its employment relationship with the Respondent. As a matter of fact, I readily accept the guidance of the Supreme Court in in the case of Okomu Oil Palm Co. Limited vs. Iserhienrhien (2001) LPELR-2471 where Uwaifo, JSC held at pages 14-18 of the e-report, as follows:
“It is true the consensus is that the company is owned by the Federal Government. Upon that fact, it was assumed, it seems, by the plaintiff (and the two courts below) that because the plaintiff was classified as a public servant, the Federal Civil Service Rules as per Exhibit J regulated his employment. The trial Court specifically made reference to Rule 04102 of those rules in its judgment while the court below indirectly referred to it in its judgment per Ubaezonu, JCA when he said: “The question now is – did the appellant comply with the provisions of Exhibit J the Civil Service Rules in terminating the appointment of the respondent? The answer is of course, No.” The said Rule 040102 relied on provides that: “The power to dismiss and to exercise disciplinary control over servants holding offices in the Federal Public Service of the Federation is vested in the Federal Public Service Commission. This power may be delegated to any member of the Commission or any officer in the Federal Public Service.” In order to be able to reach any conclusion that the said Rule 04102 applies to the plaintiff, it must be shown, in my view, that he was a public officer employed by, or with the authority of, the Federal Civil Service Commission…. Although exhibit J is regarded as the Civil Service Rules, references are made therein to the Federal Public Service Commission as it still exists as a body. For the purposes of the present case, reference to the Federal Public Service Commission may be understood as the Federal Civil Service Commission.
The implication of the lower Court’s finding that the applicant was bound to comply with the provisions of the Federal Government Civil Service Rules before terminating the appointment of the respondent is far-reaching. That would suggest strongly on the face of it and by logical thinking that the respondent was employed by the Federal Civil Service Commission and that his employment can only therefore be brought to an end under the authority, or by the direct act, of the Federal Civil Service Commission. Now, under the said rules, authority to appoint to public offices is stated in Rule 02101 as follows:…
It seems to me a fair conclusion to say that it is when it has been satisfactorily established that an employee was appointed under the Federal Government Civil Service Rules as provided above that the question of his removal in compliance with the relevant provisions of the said rules can arise. There is no evidence that the respondent was employed by the authority of the Federal Public/Civil Service Commission by letter written by the direction of the Commission or by formal agreement between the respondent and the Federal Government or its appointed agents as provided in Rule 02101. There is no evidence that the procedure for appointment to the public service by the authority of the Commission was followed by, or was applicable to, the respondent or the appellant company, nor the appellant company is an appointed agent of the Federal Government…. he has failed totally to prove the terms of his contract of service and that those terms require that his employment could be terminated only by the Federal Civil Service Commission which must also do so in compliance with the Civil Service Rules. Or that his conditions of employment are synonymous with the Civil Service Rules. All that we have is the assumption by him (and the two Courts below) that they are synonymous, or that it follows that since the respondent is classified as a public servant the Civil Service Rules apply to him….”
I believe that what the learned law lord, Uwaifo, JSC said above is apposite and fits properly and well into the instant appeal. The mere fact that the Respondent was employed by the Appellant who is deemed to be part of the public service of the federation, does not automatically make the Public Service Rules to apply to the Respondent’s employment, in the absence of any evidence to show that the Appellant’s condition of service is the same as the Public Service Rules, or that the Public Service Rules has been incorporated by reference in the Respondent’s contract of employment. In the case of Avre vs. NIPOST (2020) 8 NWLR (part 1727) 403 at 421, the Apex Court, per Sanusi, JSC held that the fact that an employee was employed by a statutory body, does not ipso facto mean that the condition of service of the employer is covered by a statute to render the employment a statutory employment.
Therefore, I cannot subscribe to the Respondent’s view that his employment is garnished with statutory flavour merely because the Appellant forms part of the public service of the federation. As the Appellant’s counsel rightly argued, the decisions in the case of Adekoye & Ors. vs. NSPMC Limited (supra), also reported as (2009) LPELR-106 (SC) and FMC, Ido-Ekiti vs. Alabi (2012) 2 NWLR (part 1285) 411 at 441, are distinguishable and inapplicable to this case. Contrary to the argument canvassed by the Respondent’s counsel, the Supreme Court in Adekoye’s case did not declare that any person who is employed in the Appellant’s company or a company wherein the Federal Government holds controlling shares (deemed to be part of the public service of the federation), is a statutory employment. Rather, the main issue that was considered in the said appeal is whether in view of the Appellant’s public service status, a State High Court has jurisdiction to entertain and determine the claim for pension against the Appellant herein who was the 1st Respondent in that case. The leading judgment was delivered by Onnoghen, JSC (later CJN) who held as follows:
“From the above, it is very clear that by constitutional arrangement, the 1st respondent/cross appellant as well as its members of staff form part of the public service of the federation and that the 1st respondent in particular is an agency of the Federal Government as it is not disputed that the Federal Government owns a controlling share in the 1st respondent/cross appellant.
I therefore hold the view that the 1st respondent/cross appellant is an agency of the Federal Government contrary to the views of the lower court.
I hold the further view that the issue of payment of pension to qualified public servants in Nigeria with particular reference to those employed in the 1st respondent/cross appellant has to do with the administration, management and control of the 1st respondent/cross appellant as an agency of the Federal Government. It is therefore erroneous to hold that the 1st respondent/cross appellant is only an agent of the Federal Government in respect of specific functions.
I therefore hold that the question of payment of pension to public servants or entitlement to payment of pension under the provisions of the Pensions Acts Cap 346, Laws of the Federation, 1990 is an issue within the administration, management and control of the 1st respondent/cross appellant within the provisions of section 230(1) of the 1979 Constitution supra and consequently that where an issue has arisen as in the instant case, between the 1st respondent and its staff or former employees, only the Federal High Court has the exclusive jurisdiction to hear and determine the dispute, not a State High Court.
In the circumstance, I hold that the sole issue in the cross appeal be and is hereby resolved in favour of the cross appellant.”
Indeed, the question as to nature of employment of a person who is employed by a company regarded, by dint of section 318(1) of the Constitution, as part of the Public Service of the Federation was not considered by the Apex Court in the above case. Therefore, the case cannot form precedent on the issue at hand. Meanwhile, the case of FMC, Ido-Ekiti vs. Alabi (supra) is unhelpful to the case of the Respondent herein. On the contrary, the decision of this court in that case supports the reasoning earlier enumerated in this judgment that before the Public Service Rules can be construed as regulating an employment, there must be credible evidence to show that parties intended that it will be applicable and as such, have incorporated same in the employee’s condition of service. In that case, this court found as a fact that the contract of employment admitted as exhibit D1 stipulated that the employee’s conditions of service, shall be in accordance with cognate institutions within the Federal Public Service. It is in this regard that Abba Aji, JCA held as follows:
“It is crystal clear the respondent’s letter of appointment stipulated that the respondent’s conditions of service shall be in accordance with those applicable in cognate institutions. Also in querying the respondent, the appellants with regard to the misconduct, stated that, “this is a gross misconduct in accordance with the Public Service Rule No. 04406 and punishable by summary dismissal.” It is therefore clear that the appellants intended Public Service Rules to govern the contractual agreement between the parties…
… if the appellant did not want the Public Service Rules to govern their relationship, then why would the appellants query the respondent under the Public Service Rules? I am therefore of the humble view that the respondent has established before the court that the Federal Service Rules govern the relationship between the appellants and the respondent….”
Unlike in the above case, there is no evidence on record to substantiate the fact that the Respondent’s contract of employment was governed by the Public Service Rules. I have, after saying this much, resolved to terminate further discourse on this issue and indeed this appeal, in the light of the conclusion that, on the state of the evidence on Record, it has not been established that the Public Service Rules is applicable in this case and regulates the Respondent’s employment with the Appellant. The reasonable conclusion is that the other issues in this appeal have become academic and of no material relevance.
In the circumstance, I find merit in the Appellant’s appeal and it is hereby allowed. The judgment of the National Industrial Court of Nigeria, coram Obaseki-Osaghae, J. in Suit NICN/LA/376/2012 delivered on 7th June, 2016 is hereby set aside. Parties to bear their respective costs.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Babatunde Ogungbamila Esq for the Appellant.
Respondent not represented by counsel.
