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P.H.C.N. Plc v. Offoelo

POWER HOLDING COMPANY OF NIGERIA, PLC

V

MR. I. C. OFFOELO

SUPREME COURT OF NIGERIA

I. TANKO MUHAMMAD JSC ( Presided and Read the Lead Judgment )

JOHN AFOLABI FABIYI JSC

MARY UKAEGO PETER-ODILI JSC

OLUKAYODE ARIWOOLA JSC

KUMAI BAYANG AKA’AHS JSC

SC.7/2006

FRIDAY, 14 DECEMBER 2012

CONTRACT - Contract of service with statutory flavour - Written terms and conditions thereof - Bindingness of - Principles guiding termination of

JUDICIAL PRECEDENT - Stare decisis - Import of - Attitude of courts thereto

JUDICIAL PRECEDENT - Stare decisis - Import of - Attitude of courts to

LABOUR LAW - Contract of service with statutory flavour - Written terms and conditions thereof - Bindingness of - Principles guiding termination of

LABOUR LAW - Employment - When clothed with statutory flavour

LABOUR LAW - Employment by statutory body - Whether automatically connotes employment with statutory flavour

MASTER AND SERVANT - Employment - When clothed with statutory flavour

MASTER AND SERVANT - Employment by statutory body - Whether automatically connotes employment with statutory flavour

MASTER AND SERVANT - Employment clothed with statutory flavour -  Termination summarily - Impropriety of

MASTER AND SERVANT - Retirement of serving officer under section 4(2)  Pensions Act, Cap. 346, Laws of the Federation of Nigeria, 1990 -  Precondition for - Failure to follow - Effect thereof

STATUTE - Pensions Act, Cap. 346, Laws of the Federation of Nigeria, 1990 , section 4(2) thereof - Retirement of serving officer under -  Precondition for - Failure to follow - Effect

WORDS AND PHRASES - Stare decisis - Import of - Attitude of courts to

Issue:

Whether taking the totality of the respondent’s case into consideration, the judgment of the Court of Appeal that the contract of service between the respondent and the appellant had statutory flavour should not be upheld.

Facts:

The plaintiff, now respondent was employed by the defendant, now appellant on 1 February 1966 as an electrical technologist. Sometime in 1974 , by virtue of his grade as a principal technical officer and serving as an undertaking manager, he was allocated a 3 bedroomed flat at No. 155, Idowu Street, Olodi Apapa, Lagos. In April 1987, he was posted to the defendant’s Benin Zonal Office as an area commercial officer. However, while in Benin, he was responsible for his accommodation. Sometime in 1989 , he received a letter dated 8 March 1989 stating that he was to pay the sum of N300.00 (three hundred naira) with effect from 15 March 1989 as economic rent and that the sum had been deducted from his salary.

In September 1991, when the plaintiff was on a routine visit to the defendant’s Lagos office, he was orally informed by the defendant’s admin officer in charge of the Benin Zonal Office that he (plaintiff) had been retired from the service of the defendant with effect from 1 September 1991  and his salary stopped. This was also confirmed by the Benin Office. Pursuant to the plaintiff’s termination, the defendant, in January 1994, via a letter, informed the plaintiff to vacate his residential premises at No. 155, Idowu Street, Olodi Apapa, Lagos, following which plaintiff averred that the defendant, on 24 June 1994, sought to forcefully eject him from the said apartment, thus breaching the terms of employment between them (the plaintiff and the defendant), to which the defendant vehemently denied. The plaintiff thereafter claimed against the defendant at the High Court of Lagos, the following reliefs; a declaration that his employment with the defendant is still valid and subsisting; declaration that the purported retirement of the plaintiff from the services of the defendant is null, void and of no effect as it contravenes the Civil Service Rules of the Federal Republic of Nigeria; declaration that the letter dated 4 January 1994 and served on the plaintiff’s wife is not a quit notice and is therefore null and void as it contravenes sections 16 and 17 of the Rent Control and Recovery of Residential Premises Edict, 1976; declaration that the resort to self-help by the defendant, and without a court order in attempting to eject the plaintiff from his residential premises at No. 155, Idowu Street, Olodi Apapa, Lagos on 24 June 1994 and the threat to eject the plaintiff by the same process by the end of July 1994 is unlawful, intimidatory, unconstitutional, malicious and void; injunction restraining the defendant, its servants or agents from ejecting the plaintiff without the due process of law and from committing further acts of illegality, intimidation and malice against the plaintiff in respect of the plaintiff’s tenancy at No. 155, Idowu Street, Olodi Apapa, Lagos; the sum of N1,000,000.00 (one million naira) representing general damages for trespass on the plaintiff’s premises on 24 June 1994 and for breach of contract of employment; order reinstating the plaintiff into the service of the defendant. The defendant on the other hand stated that there was in fact no breach of terms of employment as, according to the condition of service, the plaintiff could be retired on attaining the age of 45 years. The defendant applied that the plaintiff’s action be dismissed, and counterclaimed for the sum of N150,000.00 (one hundred and fifty thousand naira) per annum being cost for the rent and occupation of the 3 bedroomed flat situate at No. 155, Idowu Street, Olodi Apapa, Lagos, from 1 September 1991 till possession is finally given up to the defendant; special and general damages. Both plaintiff’s claim and defendant’s counterclaim were dismissed by the trial court.

Aggrieved, plaintiff filed his notice of appeal in the Court of Appeal, Lagos division where all his reliefs save one were granted.

Dissatisfied, the defendant, now appellant filed his notice of appeal. Parties adopted their respective briefs of argument with prayers either allowing or dismissing the appeal. In the determination of this appeal, the apex court considered the following enactments:

Section 4 of the National Electric Power Authority Act, Cap. 256, Laws of the Federation of Nigeria, 1990:

4.         The Board shall, subject to the provisions of this Act, have power:

  1. to appoint such other officers and servants of the authority as it may determine
  2. to pay its officers and servants such remuneration and allowances as the board may, with the approval of the Minister, determine; and
  3. as regards any officers or servants in whose case it may determine so to do, to pay to or in respect of them such pensions and gratuities or to provide and maintain for them such super-annuation schemes (whether contributory or not) as the board may determine. and subject as aforesaid, the transitory and supplemental provisions relating to officers and servants of the authority set out in Part III of the Schedule to this Act shall apply accordingly.

Paragraph 9 of Part III of the Schedule to the National Electric Power Authority Act, Cap. 256, Laws of the Federation of Nigeria, 1990:

9. “The board may, with the approval of the National Council of Ministers by bye-laws, make provisions for matters connected with the foregoing, and also in relation to the appointment, promotion and discipline of the officers and servants of the authority.”

Chapter 13 of the National Electric Power Authority Act, Cap. 256, Laws of the Federation of Nigeria, 1990:

131.01 -  Retirement after attaining the age of 45 years. All established employees shall, on three months notice, at any time after attaining the age of 45 years i.           have the option to retire or ii.   be liable to be called upon by the authority to retire.

131.02 -  Compulsory retirement.

An employee will be required to retire from the service on attaining the age of 55 years provided that, if it is in the interest of service, the authority may defer his retirement for one or more periods of year subject to a certificate of medical fitness at the beginning of each extension.” (Italics supplied for emphasis)

( A post script is made as an addendum to this chapter which reads as follows:

“with effect from 1 April 1977, the compulsory retiring age is 60  years. (see Headquarters Circular No.23178 dated 14 April

1978) .”