NARD woefully loses in a pension suit against FG

Dr Paul John ,mazipauljohn@gmail.com,Port Harcourt

When Legal profession was legal profession ,one’s lawyers would advise one before embarking on any legal suit. However, these days once a client briefs a lawyer ,the lawyer will immediately advise for a legal action against the accused/defendant after all there must be professional charges like filing fees and appearance fees hence if the lawyer goes ahead to advise the client against instituting the legal process such charges will not be paid by the client .

The lawyers hired by NARD should have made it clear to NARD that the extant Public Service Rules do not confer any right to pension on residents as per the residency per se. The officials of NARD should have been advised to seek for the amendment of the current Public Service Rules instead of embarking on what lawyers called brutus fulmen which means effort in futility . The NARD lawyers never informed them that the  right that is conferred on residents by the Public Service Rules is a right to prospective-retroactive pension and gratuity contingent on successful completion of the residency programme and securing public service employment within 6 months thereof.

The law and court are not biased hence matters that lack merits truly lack merit

To tell you that the premise upon which NARD lawyers initiated  the suit was faulty ,despite the fact that the defendants were not serious with the case ,the defendants still won the case . That  is very rare occurrence  in Nigerian judicial system and that tells you that the matter genuinely lacks merit .That is  what healthcare workers  call B.I.D meaning brought in dead .

The presiding judge could not betray his emotion and disappointment over the unmerited suit when he declared in the open court thus : ”The case is therefore dismissed as totally lacking in merit. Nonetheless, I am inclined not to award cost against the claimants in view of the lackadaisical attitude of the defendants to the prosecution of the case. In fact, half of them did not file any process at all; and of those that filed, only one came to Court to adopt the process.”

For the refusal of some of the defendants to either come to court or even adopt their written addresses ,that is enough legal points for NARD to have hit them under the belt but that was not possible as their matter was already dead on arrival ,having been ill-advised by their lawyers .

If it were a medical doctor that gave a piece of medical advice to a patient and at the end , the advice misled  the patient the lawyers would  call it medical/professional negligence as contained in rule 29 of Codes of Medical Ethics (COME)  and Medical Malpractice as contained in rule 33 of COME .My question now is why is it not possible to equally sue your lawyer that wrongly advises or that instigates you to pay him to take up a legal action for a case he is aware from the onset that it lacks merit ?

If a medical doctor can be sued for mismanaging his patient then the lawyer should also be sued for wrongly or ignorantly advising his client for taking up a legal action that lacks merit ab initio as contained in s40 of the Nigerian constitution ,as amended .The section clearly states that :

(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic
groups, places of origin, sex, religions or political opinions.

I know the lawyers will like to defend why they should not be sued if the management of their clients fails on the provisions of s31 of the criminal codes with relevant section of the penal code, which confers immunity to judicial officers  . This section of the criminal code clearly states that :

”Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done.”

The next question will be, are lawyers sitting in their chambers judicial officers ? My answer here is no as the only judicial officers I know are the magistrates ;high court judges; Court of Appeal and Supreme court justices . My next question is why should a medical consultant or medical officer of more than 10 years practice not have medical immunity against litigations either in regular lawcourts or at MDCN tribunals just like s31 of the criminal code confers such judicial immunity to judicial officers ? What is sauce for the goose why won’t it be sauce for the gander?

 

 

 

The law is no respecter of any person no matter how highly placed

Below is the judgement of the suit instituted by NARD and her officials against some federal ministers and other federal government establishment and appointees :

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

 

IN THE ENUGU JUDICIAL DIVISION

 

HOLDEN AT ENUGU

 

 

 

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

 

 

 

DATE: FRIDAY 15TH MAY 2020                                      SUIT NO.NICN/EN/47/2017

 

 

 

BETWEEN:

 

 

 

  1. DR ONYEBUEZE JOHN UGOCHUKWU

 

  1. DR ADO I. AHMED

 

  1. DR OPEYEMI OLAWALE OJO

 

  1. DR ANEKE EMMANUEL O

 

  1. DR OMOROGBE OWEN STEPHEN

 

  1. DR RAJI MUSTAPHA M

 

  1. DR UGWUOKE ALOY IFEDINSO CLAIMANTS

 

  1. DR ASINOBI UGOEZE

 

  1. DR OYINLOLA OLU GBENGA

 

  1. DR ADERIBIGBE ADEBAYO

 

  1. DR MUHAMMED ADAMU ASKIRA

 

  1. DR IBRAHIM SHETIMA KURUBI

 

[For themselves and on behalf of National

 

Association of Resident Doctors of Nigeria]

 

 

 

 

 

AND

 

 

 

  1. NATIONAL PENSION COMMISSION

 

  1. MINISTER FOR HEALTH, FEDERAL

 

REPUBLIC OF NIGERIA

 

  1. MINISTER OF FINANCE, FEDERAL

 

REPUBLIC OF NIGERIA

 

  1. MINISTER FOR BUDGET AND

 

PLANNING, FEDERAL REPUBLIC           DEFENDANTS

 

OF NIGERIA

 

  1. ACCOUNTANT GENERAL OF THE

 

FEDERATION

 

  1. ATTORNEY GENERAL OF THE

 

FEDERATION

 

APPEARANCES:

 

  1. I.M. UGWUOKE WITH D.C. NJOKU (MRS.) AND K.L. IKEDIACHI (MRS.) – FOR THE CLAIMANTS.

 

  1. E.M. NWANKWO – FOR THE 1ST DEFENDANT.

 

  1. S.O. NWODO – FOR THE 6TH DEFENDANT.

 

  1. COUNSEL FOR THE 2ND, 3RD, 4TH AND 5TH DEFENDANTS ABSENT.

 

 

 

JUDGMENT

 

INTRODUCTION

 

This suit was commenced by ORGINATING SUMMONS 9th August 2017. The following questions were set down for the determination of the originating summons:

 

  1. Whether the members of the Claimant’s association are appointed under a pensionable career employment progression both as trainees undergoing residency and on probation in pensionable post by the combined effect of the following [sic]

 

(a)        The terms of appointment of the members of the Claimant’s association patterned after the 2004 and 2006 Template letter of Appointment from the 2nd Defendant [sic

 

(b)        Section 2 Rules 020202 (a) and (b), 020207 (b), 020208 of the Public Service Rule of the Federal Republic of Nigeria 2008 Edition [sic]

 

(c)         and [sic] the Scheme of Service of employment of Medical Officer Cadre (page 217-220) of the 2000 edition and 82-85 of 2003 edition of scheme of service for use in the civil service of the Federation), which shows the continuity of the career progression of medical officers (doctors) and dental officers (dentists) in the residency programme, the salary grade levels for various designations up to the consultant grade level which is the terminal grade level for the career progression of doctors in the residency programme, and the methods of entry, promotions or advancements within the cadre from House Officer/Youth Corps Doctor, Registrar, Senior Registrar II, Senior Registrar I, Consultant, Consultant Special Grade II to Consultant Special Grade I.

 

  1. Whether Resident Doctors in Nigeria are persons in employment of Public Service within the meaning of Section 2 of the Pension Reform Act 2014 or employees within the meaning of Section 120 of the Act.

 

iii.                         Whether Resident Doctors in Nigeria being Public Servants and employees within the meaning of Section 120 of the Pensions Reforms Act 2014 are required to participate in the Mandatory Contributory Pension Scheme as provided in Section 2 of the Act.

 

  1. Whether the 1st Defendant and the 2nd Defendants are bound by the principle of estoppel from denying the pensionable status of the members of the association which the Claimants represent after having admitted and affirmed same in their letters dated 12/2/15 and 13/04/2016 respectively.

 

  1. Whether the 1st Defendant as both the administrator and custodian of the Pensions Reforms Act 2014 have not failed in their duty to have appropriately notified the Budget office on the pensionable status of members of the Claimants’ association despite acknowledging so in their said letter of 12/2/15 but instead leaned on the letter from budget office claiming that Claimants are not pensionable because they are not permanent staff to issue another letter to the Chief Medical Directors thereby creating crisis in the polity.

 

  1. Whether it is lawful for the 4th Defendant who is responsible for budgetary provision of both government (employer) and employees contribution either by herself of [sic] through her agents or privies or subsidiary such as the Budget officeto excludethe [sic] pensions/emolument of Resident Doctors from the budgetary provisions.

 

vii.                       Whether it is lawful for the 2nd Defendant, the 3rd Defendant and 5th Defendant whose duty it is by the provision of the Pension Reform Act 2014 to deduct the government’s part of the Claimants’ pension from the consolidated revenue and remit same the [sic] Claimants’ pension custodian, to fail, omit or neglect to do so.

 

viii.                     Whether the 2nd Defendant and Head Department of Health Services who being the parent ministry of the Claimants and in better understanding of their scheme of service andpensionable [sic] status of the Claimants as relates to employment of resident doctors, their conditions and progression, have not failed in their duty by refusing, neglecting, omitting to appropriately communicate same to the 1st, 3rd, 4th 5th [sic] and 6th Defendants.

 

  1. Whether it [sic] lawful for the 3rd Defendant to have continued the payment of salaries of resident doctors from the non-regular platform (GIFIMS) against their will and the Collective BARGAIN Agreement of the Claimants with the 3rd Defendant to migrate the Claimants back to IPPIS after 3 months since 2013.

 

  1. Where it is established that the 3rd Defendant has released the Claimants’ salary in full together with their pension to Chief Medical Director and Medical Directors, whether such action is in line with Pensions reforms [sic] Act and whether the 2nd Defendant as the superintendent of the said Chief Medical Directors/Medical Directors has not failed to continue with the deductions and remittance of both the employee and employers contributions of the Claimants’ pension to their Pension Fund Accounts.

 

  1. Whether it is lawful for the 1st Defendant or any of the Defendants or their privies torecall [sic] or demand the return of pension funds or retrieve the pension funds of the Resident Doctors already with their respective Pension Fund Administrator on the ground of non-budgetary provision for them.

 

These are the reliefs claimed:

 

  1. A DECLARATION that members of the Claimants’ association are appointed under a pensionable career employment progression both as trainees undergoing residency programme and on probation in a pensionable post by the combined effect of the following [sic]

 

(a)     The terms of appointment of the members of the Claimants’ association patterned after the 2014 and 2016 Template letter of Appointment from the 2nd defendant [sic]

 

(b)     Section 2 Rules 020202 (a) and (b), 020207 (b), 020208 of the Public Service Rule of the Federal Republic of Nigeria 2008 Edition [sic]

 

(c)      and the Scheme of service of the employment of Medical Officer Cadre (page 217-220 of the 2000 edition and 82-85 of the 2003 edition of scheme of service for use in the civil service of the Federation), which shows the continuity of the career progression of medical officers (doctors) and dental officers (dentists) in the residency programme as well as the various designations compared to those not under the programme, the salary grade levels for the various designations up to the consultant grade level which is the terminal grade level for the career level for the career progression of doctors in the residency programme, and the methods of entry, promotions or advancements within the cadre from House Officer/Youth Corps Doctor, Registrar, Senior Registrar II, Senior Registrar I, Consultant, Consultant Special Grade II to Consultant Special Grade I.

 

  1. A DECLARATION that Resident Doctors in Nigeria are persons in employment of Public Service within the meaning of Section 2 of the Pension Reform Act 2014 or employees within the meaning of Section 120 of the Act.

 

iii.                A DECLARATION that Resident Doctors in Nigeria being Public Servants and employees within the meaning of Section 120 of the Pensions Reforms Act 2014 are required to participate in the Mandatory Contributory Pension Scheme as provided in Section 2 of the Act.

 

  1. A DECLARATION that the 1st Defendant and the 2nd Defendant are bound by the principle of estoppel from denying the pensionable status of the members of the association which the Claimants represent after having admitted and affirmed same in their letters dated 12/2015 and 13/04/2016 respectively.

 

  1. A DECLARATION that the 1st Defendant as both the administrator and custodian of the Pensions Reform Act 2014, have failed in their duty to have appropriately notified the Budget office on the pensionable status of members of the Claimants’ association despite acknowledging so in their said letter of 12/2/15 but instead leaned on the letter from budget office claiming that Claimants are not pensionable because they not [sic] permanent staff to issue another letter to the Chief Medical Directors that was in clear reprobation of their earlier letter to the 2nd Defendant thereby creating crisis in the polity.

 

  1. A DECLARATION that it is unlawful for the 4th Defendant who is responsible for the budgetary provision of both government (employer and employees) pensions contribution either by herself of [sic] through her agents or privies or subsidiary such as the Budget office to exclude the pension emolument of Resident Doctors from the budgetary provisions.

 

vii.              A DECLARATION that is [sic] unlawful for the 2nd Defendant, the 3rd Defendant and 5th Defendant whose duty it is by the provision of the Pension Reform Act 2014 to deduct the government’s part of the Claimants’ pension contribution from the consolidated revenue and the employees’ part of the pension and remit same to the Claimants’ pension custodian, to have failed, omitted or neglected to do so.

 

viii.            A DECLARATION that the 2nd Defendant and Head of Department of Health Services who being the parent of the Claimants and in better understanding of their scheme of service and pensionable status of the Claimants as relates to employment of resident doctors, their condition of service and extant circulars from them on their duty by refusing, neglecting, omitting to appropriately communicate same to the 1st, 3rd, 4th 5th [sic] and 6th Defendants.

 

  1. A DECLARATION that it unlawful [sic] for the 3rd Defendant to have continued the payment of salaries of resident doctors from the non-regular allowances platform (GIFMIS) against their will and the Collective bargain Agreement of the Claimants with the 3rd Defendant to migrate the Claimants back to IPPIS after 3 months since 2013.

 

  1. A DECLARATION that it is unlawful for the 1st Defendant or any of the Defendants or their privies to recall or demand the return of pension funds or retrieve the pension funds of the Resident Doctors already with their Pension Administrator on the ground of non-budgetary provision for them.

 

  1. AN ORDER OF COURTmandating [sic] the 3rd Defendant and the 4th Defendant to continue direct budgeting, deduction and remittance of both employer and employees portion of the Claimants’ pensions to their respective pension fund custodians in line with the Pensions Reform Act.

 

xii.               AN ORDER OF COURT nullifying the actions of the 3rd Defendant for being at variance with the Pension Reforms Act where it is established that the 3rd Defendant has released the claimants’ salary in full together with their pension to Chief Medical Director and Medical Directors and a consequential order directing the 2nd Defendant as the superintendent of the said Chief Medical Directors/Medical Directors to continue with the deductions and remittance of both the employee and employers contribution of the Claimants’ pension to their Pension Fund Accounts.

 

xiii.             A PERPETUAL ORDER OF INJUNCTION restraining the 3rd Defendant from continuing the payment of salaries of resident doctors from the non-regular platform (GIFMIS) against their will and the Collective bargain Agreement of the Claimants with the 3rd Defendant to migrate the Claimants back to IPPIS after 3 months since 2013 and an consequential Order directing them to migrate the Claimants back to IPPIS with their full entitlements under IPPIS from the date they ought to have done so in 2013 till date.

 

xiv.             A PERPETUAL ORDER OF THE COURT restraining the 1st, 3rd and 4th Defendants either by themselves or through their privies or agents or any person claiming for them from recalling or demanding the return of or retrieving the pensions of the any [sic] member of the Claimants alreadyin [sic] custody of their various pension [sic] by the Budget Office.

 

 

 

Against the above, the 1st, 4th, and 6th defendants filed the following processes. The 6th defendant filed a written address without counter affidavit against the originating summons on 29th November 2017 – see p. 155-162, to which replied by way of Reply on Points of Law [RPL] filed 5th March 2018 – see p. 191-194. The 4th defendant filed counter affidavit together with written address on 11th May 2018, to which the claimant replied by RPL on 16th July 2018 – see pp. 301-325 and 416-423 respectively. The 1st defendant filed counter affidavit and written address 18th May 2018, to which the claimant replied by way of RPL on 16th July 2018 – see pp. 332-339 and 409-415 respectively. The claimant also filed a further affidavit on 5th March 2018 – see p. 183-190. These are all the processes and counter processes filed in relation to this originating summons. The 2nd, 3rd and 5th defendants did not file any process. Having done with the list of processes filed, let me move to the proceedings before the Court.

 

 

 

PROCEEDINGS

 

The matter came up first before His Lordship, I.J. Essien on 27th October 2017; and thereafter, a couple of times before His Lordship, Essien J, but was not heard until 16th July 2018 when it was adjourned to 29th October 2018 for definite hearing. But before this date, my learned brother, Essien J. was transferred and the matter came up before me instead for the first time. It was thereafter adjourned for hearing on 10th December 2018, but the Court sat next on the matter on 3rd April 2019.

 

On 18th November 2019 when the matter came up, the learned counsel to the 3rd defendant informed the Court of the merger of the 4th defendant with the 3rd defendant; claiming that, this prevented him from filing the necessary processes. The learned counsel thereafter applied for directive, whereupon the Court said that the learned counsel ought to bring the necessary application and that, further processes in the matter should reflect the fusion of the 4th defendant into the 3rd. Thereafter, the case was adjourned for definite hearing.

 

It came up as adjourned, but the learned counsel to the 3rd and 4th defendants was not in Court and also did not file any process as directed by the Court at the last date. On this date, the learned counsel to the 2nd defendant was also absent and that of the 5th defendant was equally absent. They were absent without any excuse; while that of the 6th defendant sent in a fresh counsel, who said he had not read the file. Only the lawyers to the 1st and 6th defendants were present in Court. Citing Nigerian Agricultural Cooperative and Rural Development Bank Ltd & Anor v. Nbio Oku Ikot Oku Odung Multipurpose (2013) LPELR-20202 (CA) 23-25, F-C and Order 38, Rules 7(3) and the proviso thereto and Rules 10 & 11 of the NICN Rules 2017, the Court refused the application for adjournment and ordered that the matter proceed to hearing – see p. 19-25 of proceedings file.

 

Thereafter, the learned counsel to the claimants took the podium and first moved the Court for correction of a clerical mistake in relief x and the application was granted unopposed. The Court accordingly approved the change of the word “lawful” in the first line to ‘unlawful’. Thereafter, the learned I.M. UGWUOKE for the claimants identified the affidavit in support of the originating summons filed 9th August 2017 and the accompanied written address. The learned counsel also identified the further affidavit filed 5th March 2018 and the RPL in reaction to the counter affidavit of the 1st defendant filed 16th July 2018. The learned counsel equally identified the RPL filed 16th July 2018 in reaction to the counter affidavit of the 4th defendant and also the RPL filed 5th March 2018 against the 6th defendant’s counter affidavit. The learned counsel also drew attention to the fact that, the 5th defendant’s Notice of Preliminary Objection [NPO] filed 7th December 2017 was withdrawn and struck out on 10th April 2018. The learned counsel to the claimants thereafter relied on all the processes and adopted the written addresses filed. The learned counsel identified the 2nd and the 3rd defendants, as not filing anything. Thereafter, the ball went to the learned counsel to the 1st defendant.

 

E.M. NWANKWO for the 1st defendant stated that the 1st defendant filed counter affidavit and written address on 18th May 2018. The learned counsel adopted the written address. Thereafter, the learned S.O. NWODO for the 6th defendant took his turn and said the 6th defendant had not been served with the RPL of the claimant and also that, the processes of the 1st defendant had not been served on the 6th defendant. Upon this, the Court, suspecting that the learned counsel was playing a game to truncate the hearing, ordered him to give the case file with him to the clerk, for the Court’s perusal. The learned counsel did and my perusal showed that the learned NWODO was truly trying to deceive the Court – see p. 27-29 of the proceedings file. Thereafter, the learned counsel to the claimants produced evidence of personal service of the RPL on the 6th defendant, which was confiscated and made p. 445-449 of the process file. Thereafter, the Court also observed that the 1st defendant’s processes were served on the 6th defendant as evident at p. 359 of the process file.

 

After this, the Court, based on the application of the learned counsel to the claimants, deemed the written address of the 6th defendant filed without counter affidavit, as adopted in line with the rules of this Court; and the case adjourned to 27th April 2020 for judgment.

 

In the mean time, before the time fixed for the judgment, the Coronavirus [COVID-19] pandemic took hold of Nigeria, like all other nations of the world. As a result, the original date fixed for delivery of the judgment was truncated. The judgment having become ready, this date was communicated to the learned counsel to the parties. That is all about the trajectory of this case till the delivery of judgment. I now move to the summary of the written addresses of the parties. I start with that of the claimant.

 

 

 

SUMMARY OF THE WRITTEN ADDRESSES

 

  1. Written Address in Support of the Originating Summons

 

IKE MAXIMUS UGWUOKE franked the written address in support of the originating summons. The learned counsel adopted the questions formulated for the originating summons as the issues for determination.

 

Arguing Issue 1, the learned counsel cited the 2004 and 2006 templates letters of appointment of the Ministry of Health and Rules 020202(a)-(b)-020204, 020207(b), 020208 of the Public Service Rules 2008 and the Scheme of Service for Medical Officer Cadre, 2000 edition p. 217-220 and the 2003 edition at p. 82-85 and submitted that, these showed the career progression of residents as public servants. The learned counsel referred to 2007 and 2014 and 2016 templates of appointment letters as justifying the claimants’ assertion. The learned counsel argued that, the 2014 and 2016 templates are silent on the word ‘probation’. The learned counsel argued that, this omission signifies erasure of temporality in the appointment since; it was provided in the templates that the appointment would be in line with the instant public service guidelines. The learned counsel argued further that, the provision that the residents could add up their residency period to their public service career signifies that, they have been in the public service during the residency.

 

The learned counsel argued further that, the nature of appointment of the residents is in tune with categories a. and b. of Rule 020202 of the 2008 edition of the Public Service Rules, as their letters of appointment clearly stated that they were appointed as trainees in pensionable appointment and that their residency periods would be counted towards their pensions and gratuities. The learned counsel argued further that, the public careers of residents is further justified because, they were required to comply with Rules 020207 and 020208 of the Public Service Rules by which they were enrolled into the pay rolls of the public service and pension scheme. The learned counsel argued that, pursuant to these, pension deductions were made from some of the residents. On the basis of the above, the learned counsel urged the Court to find in favour of the claimants on this issue; and moved to issue 2, which he argued with issue 3.

 

Under issues 2 & 3, argued together, the learned counsel submitted that, by virtue of sections 2 and 120 of the Pensions Reform Act, residents are in public employment as public servants and therefore, entitled to pensions and gratuities as required by law. The learned counsel thereafter moved to issue 4. Under issue 4, the learned counsel was of the view that, the 1st and 2nd defendants are estopped from contesting the entitlement of the claimants to pension and gratuity because; they have admitted these in their letter of 12/2/15 and 13/04/2016. The learned counsel cited paragraphs 10, 11, and 23 of the affidavit in support and exhibits A and G thereof. The learned counsel cited Archbold Egba & Ors v. Ogudo & Ors (2000) 6 SC (Pt. 1) 133 at 147 and Iga & Ors v. Amakiri & Ors (1976) 11 SC 12-13. The learned counsel submitted that, having made the claimants and others to act on the basis of these letters, the 1st and 2nd cannot be allowed to resile from what they brought about by their letters. Thus, ended submissions on issue 4 and the learned counsel moved to issue 5, under which the learned counsel submitted that, the 1st defendant, by virtue of section 18 of the Pension Act, is vested with the duty to direct the Budget Office on matters of pension. Thus, ended arguments on issues 3, 4, and 5; and the learned counsel moved to issues 6 and 7.

 

Under issues 6 and 7, the learned counsel argued that, the 4th defendant failed in her responsibility to make provisions for the pensions and gratuities of the claimants, who are employees of the Federal Government and are therefore liable to the power of the Court to issue any appropriate order. The learned counsel cited paragraph 21(a) of the affidavit in support and argued that, the 3rd and 5th defendant are responsible for the release of funds to finance the salaries of the claimants; and submitted that, by virtue of the fact that, section 5 of the Pension Reform Act did not list the claimants amongst those exempted from pension, it is illegal for any person to attempt to exempt them. The learned counsel submitted that, arising from the above, it is the responsibility of the 3rd and 5th defendants to deduct and ensure remittance of the claimants’ pensions to the pension custodian. There ended arguments on issues 6 and 7 and the learned counsel moved to issue 8.

 

Under issue 8, the learned counsel argued that, the 2nd defendant and the head of health services, being the parent ministry of the claimants, failed in their responsibility to properly educate and inform the 1st, 3rd-6th defendants on the pension rights of the claimants. The learned counsel thereafter moved to issue 9; and argued therein that, it was wrong for the 3rd defendant to renege on the collective bargaining agreement entered with the claimants to return the payment of residents’ salaries from non-regular platform [GIFMIS] to the IPPIS within three months since 2013. The learned counsel referred the Court to paragraphs 25-28 of the affidavit in support. The learned counsel thereafter moved to issue 10.

 

The learned counsel argued under issue 10 that, if it is found that the 3rd defendant released in full the salaries together with the pensions of the claimants to Chief Medical Directors/Medical Directors, it would be wrong for the 2nd defendant, who superintend them, not to remit the pensions and gratuities to the appropriate quarters. The learned counsel referred to Exhibit B and paragraph 14 of the affidavit in support. The learned counsel submitted that, since the Budget Office is not the one that released the claimants’ salaries but the 3rd defendant, she could not have asserted authoritatively that the salaries are paid in full to the claimants without any deductions. That ended submissions on issue 10 and the learned counsel moved to issue 11.

 

The learned counsel argued under issue 11 that, it is wrong for the Pension Commission or any of the defendants to demand the refund of the pensions deductions of the claimants’ already with the pension administrators on the ground that, there was no budgetary allocation for them. The learned counsel ended arguments in respect of issue 11 and finally urged the Court to grant all the reliefs claimed by the claimants. That ends the written address in support of the originating summons, I move to the written address in support of the counter affidavit of 1st defendant.

 

 

 

  1. Written Address of the 1st Defendant

 

E.O. AWA franked the 1st defendant’s written address. The learned counsel formulated a lone issue for the determination of the case, to wit:

 

“Whether the statutory responsibilities of the 1st Defendant extends to a determination of the nature and status of employment of the Claimants and members of the Association of Resident Doctors in the Public Service of the Federation.”

 

 

 

Arguing the lone issue, the learned counsel said, there is need to construe the status of the employment of the claimants to determine whether they are pensionable. The learned counsel argued that, sections 2 and 120 of the Pension Reform Act do not apply to the peculiar conditions of the claimants’ employment. The learned counsel submitted that, the status of employment of a public servant could only be deduced from the Public Service Rules and that, section 7(1)(e) and 16 of the Pension Reforms Act 2014 clearly demonstrates that, the Pension Reforms Act is not meant to declare the employment status of employees or to enforce same. The learned counsel argued that, determining the status of employment of the claimants is outside the purview of the 1st defendant, as sections 23 and 24 of the Pension Reforms Act do not give the 1st defendant such power. The learned counsel submitted that, her mandate is limited to payment of terminal benefits in accordance with the terms and conditions of service.

 

The learned counsel further argued that, the brief of the 1st defendant does not cover budgetary provisions, payment of salaries and remittance of retirement benefits under the contributory pension scheme; and that, these fall to the Office of the Accountant-General and Budget Office. Thus, ended the written address of the 1st defendant in support of her counter affidavit against the originating summons. I move to that of the 4th defendant.

 

 

 

  1. Written Address of the 4th Defendant

 

M.S. DIRI franked the 4th defendant’s written address against the originating summons. The learned counsel formulated two issues:

 

  1. “Whether having regard to the claimants [sic] sought relief this Court have [sic] the jurisdiction to entertain the suit. [sic]

 

  1. ‘Whether the claimants deposed affidavit and further affidavit in support of the originating summons as well as the reliefs sought has [sic] established any cause of action against the 4th defendant that would require an order of this Court mandating as well as restraining the defendant [sic] from carrying out his [sic] statutory responsibilities. [sic]”

 

 

 

Arguing issue 1, the learned counsel submitted that, issue of jurisdiction must be determined first because, a court that lacks jurisdiction lacks the power to decide any issue and cited Crown Merchant Bank Ltd v. Leadway Assurance Co. Ltd (1997) 11 NWLR (Pt. 529) 405. The learned counsel also submitted that, the reliefs sought confer jurisdiction on a Court and cited First Bank Plc v. Abraham (2008) 12 SCNJ (Pt. 11) 754-755. The learned counsel argued that, by virtue of section 251(r) and 254C of the 1999 Constitution, this Court lacks jurisdiction to make declaration or injunction against the administrative actions of the defendants. The learned counsel argued that jurisdiction is vested in another court [without mentioning the court]. The learned counsel thereafter argued that, the affidavit and further affidavit of the claimants, especially the further affidavit, by which admission was made that, actions had been taken by parties in this action, foreclosed the jurisdiction of this Court to make any injunctive order, since to do so, would amount to making an order in vain. The learned counsel argued that, since the 4th and all the defendants have included the claimants in the contributory pension scheme, there is nothing further to determine. The learned counsel cited UAC v. Macfoy (1952); Egunke v. ACB Ltd (1995) 2 SCNJ 58 and section 18 of the Interpretation Act in support of the above submissions. The learned counsel thereafter moved to issue 2.

 

Under issue 2, the learned counsel argued that, the affidavits of the claimants did not, in any way, show that the 4th defendant infringed their rights. The learned counsel cited Ajayi v. Milad, Ondo State (1997) 5 NWLR (Pt. 237 and Stroud’s Judicial Dictionary 4th Ed. on the meaning and attributes of cause of action; and submitted that, the claimants established no cause of action against the 4th defendant. The learned counsel argued that, the exhibit attached to the 4th defendant’s counter affidavit showed that, the 4th defendant had discharged all his/her obligations, which incidentally, the further affidavit of the claimant confirmed. The learned counsel cited Omini III v. Governor Cross River State (2007) 41 WRN 158 at 166 r. 8 on the effect of lack of cause of action and ended the address by urging the Court to hold that, there is no reasonable cause of action and strike out the suit. [I NOTE THAT PARAGRAPH 17 SEEMED TO BE MISSING IN THE ADDRESS FROM THE 4TH DEFENDANT, AS THE PAGINATION was NOT ALTERED. IT WAS NOT FILED WITH THE ADDRESS] I move to the written address of the 6th defendant therefore.

 

 

 

  1. Written Address of the 6th Defendant

 

HABIBA U. CHIME (MRS.) franked the 6th defendant’s written address. It is important to stress that; this address is simply on points of law without counter affidavit. The learned counsel formulated a lone issue, to wit:

 

“Whether this honorable court [sic] having due regard to the Claimants [sic] and Members of the Claimants [sic] Association contract of appointment, will grant the reliefs sought by the Claimants as constituted and conceived?”

 

 

 

Arguing the lone issue, the learned counsel submitted that, the status of an employment is determined by the terms and conditions and cited Onyekwelu v. Elf Petroleum Nigeria Ltd (2009) LPELR-2733. The learned counsel submitted that, the contract of employment between the claimants and the 2nd defendant is as contained in the “Approved Template Letter of Offer of Appointment and Admission into the Residency Training Programme designed for Tertiary Health Institutions in Nigeria”. The learned counsel submitted that, this letter stipulated the correct status of the claimants and comes before any other rules in the determination of the status of the claimants. Citing Longe v. FBN (supra)?, [I OBSERVED THAT PARAGRAPH 3.2 OF THE ADDRESS IS MISSING AND THIS MUST BE FROM THE 6TH DEFENDANT, AS THE PAGINATION DOES NOT APPEAR ALTERED AND THAT IS PROBABLY WHERE THE FULL CITATION OF LONGE’S CASE IS CONTAINED] the learned counsel submitted that, residency appointment is for a specified period and terminates at the end of that period or, if the resident does not measure up to the standards required; and that, the residency programme is not job employment or appointment into public service; and that, it is only at the successful completion that the residents would be entitled to the residency period being reckoned for the purposes of seniority and retirement benefits in public service.

 

The learned counsel argued further that, where the resident is already in public service, the conditions of in-service training apply; and that, where the field of residency is unrelated to the schedule of the in-service resident, the public hospital is not obliged to re-absorb the resident after completion of the programme, except there was a bond to that effect. The learned counsel argued that, the plain words of the contract must be given effect and cited AG Ekiti State & Ors v. Adewumi & Anor (2002) LPELR-3160 32-33, F-A and another authority. The learned counsel argued that, given the provisions of paragraphs ii, iii and iv of the template letter, residents are not employees for the purposes of the Pension Reforms Act or the Public Service Rules; and that, the only exception is where such resident was already in the public service before going on residency in accordance with Rule 020202(a) of the Public Service Rules. The learned counsel submitted that, it is not the duty of the Court to make contract for the parties and cited Best (Nig) Ltd v. Blackwood Hodge Nig Ltd & Anor (2011) LPELR-776 (SC) 23, C-E to the effect that, where, as in the instant case, the contract provide for terminal date of the contract, the Court is bound to accede to that.

 

Citing Carrena & Ors v. Akinsule & Ors (2008) LPELR-833 (SC) 33-34, C-A, the learned counsel argued that, the declaratory reliefs sought could only be granted if there is a law that provided for them. The learned counsel submitted that, as a result, the reliefs were misconceived. Thus, the learned counsel brought the address to an end by urging the Court to dismiss the case. That ends the responses of the 1st, 4th and 6th defendants to the originating summons. The next thing for me is to summarise the RPLs of the claimants’ counsel to these written addresses.

 

 

 

  1. Claimants’ RPLs to the 1st, 4th and 6th defendants’ Written Addresses

 

In this particular segment, I will summarise the RPLs of the claimants to the written addresses of the 1st, 4th and 6th defendants. But I have to state emphatically that, I shall only summarise what belongs to RPLs and not extraneous matters. I start with the claimants’ RPL against the written address of the 1st defendant.

 

IKE MAXIMUS UGWUOKE franked the claimants’ RPL to the written address of the 1st defendant. The learned counsel argued that, the counter affidavit of the 1st defendant did not challenge any of the deposition in the affidavit in support; and as such, must be deemed to have admitted the depositions therein contained. On this, the learned counsel cited John v. Black (1998) 6 NWLR (Pt. 524) at 547 and some other cases. The learned counsel submitted that, by dint of the admission of the depositions in the affidavit in support, the reliefs claimed therein succeed. The learned counsel submitted too, that, the sole issue raised by the 1st defendant in her address is outside the claim against the 1st defendant. Thus, ended the RPL on the written address of the 1st defendant. I move to the RPL on the written address of the 4th defendant.

 

IKE MAXIMUS UGWUOKE also franked the claimants’ RPL against the written address of the 4th defendant. In this RPL, the learned counsel first attacked the counter affidavit and written address filed by the 4th defendant, as having been filed out of time without leave and without payment of the default fee. The learned counsel said the claimants filed the originating summons “…9th August 2017 and effected service on the 4th defendant shortly afterwards” and that, the 4th defendant, who has 5 working days to react, filed the counter affidavit and written address months after. The learned counsel cited Order 3, Rule 21(3) and Order 57, Rules 4 & 5(5) of the NICN Rules.

 

The learned counsel submitted later on the issue of lack of cause of action raised by the 4th defendant that, paragraphs 6, 14, and 32 of the affidavit in support of the originating summons showed the cause of action against the 4th defendant and thereby satisfied all the requirements for cause of action to exist in all the authorities cited by the 4th defendant. The learned counsel cited Ajayi v. Milad, Ondo State [supra] relied upon by the learned counsel to the 4th defendant to buttress his point; and that, reliefs vi & xi are consequential to the cause of action established against the 4th defendant. Thereafter, the learned counsel moved to the issue of lack of jurisdiction raised by the 4th defendant.

 

The learned counsel opined that, the omnibus provision of section 6 of the 1999 Constitution and section 7 of the NICA 2006 conferred jurisdiction on this Court to hear this action. Thus, ended the RPL against the written address of the learned counsel to the 4th defendant. I move to the RPL against the written address of the 6th defendant, which would be the last in this series.

 

IKE MAXIMUS UGWUOKE equally franked this. The learned counsel cited Anionwu v. Anionwu (2013) 41 WRN 1 and Uni [sic] Ibadan v. Gov. Kwara State (2013) 14 WRN 106 at 111 on the need to give literal interpretation to sections 2 and 120 of the Pension Reform Act. Thus, ended the RPL to the 6th defendant’s written address. That ends summary of all the addresses.

 

My next duty is to give my decision. I will divide my decision into two. The first part will deal with preliminary issues while the second; in any event, will look at the substantive issues. But before I go into the business of giving and justifying my decision, I need to comply with the necessary precedent.

 

I therefore, hereby state that, I have carefully read all the processes connected to this case and digested their contents. I have also taken care of the fact that this is originating summons, where affidavits and counter affidavits represent both the pleadings and evidence. And for this reason, I have taken into consideration the principles relating to resolving conflict in affidavit evidence. I am also aware that I did not summarise the evidence contained in the affidavits and counter affidavits of the parties, nevertheless, I have fully digested their contents, as would be borne out wherever the need arises in the course of my decision. Having satisfied the formalities, I proceed to give my decision.

 

 

 

COURT’S DECISION

 

Part A: Decisions on Preliminary Issues

 

Under this section, I shall look at the issue of objections raised against the jurisdiction of the Court by the 4th defendant on grounds of lack of substantive jurisdiction on the subject matter of the case and on account of lack cause of action. I will also look at the objection raised by the claimant against the processes of the 4th defendant, as being filed out of time without leave and without payment of the default fee; and the effect of the further affidavit filed by the claimants without leave. I will also comment on the behaviour of the learned counsel to the 6th defendant on the hearing date.

 

Before I go into this part, I will like to address a preliminary issue, which ought to have been addressed during the hearing of the matter but was not. This is the issue of the absence of the learned counsel to the 3rd and 4th defendants on this date. It must be noted that, the Court, had on 18th November 2019, ordered the fusion of the 4th defendant into the 3rd defendant, on the application of the learned counsel to the 3rd defendant on record; and ordered the learned counsel to file necessary processes reflecting this, which he did not do till the hearing of the matter. This makes the order spent and lapsed, since the condition attached thereto was not obeyed. It means the defendants remain as they were originally at the inception of this suit. They remain the 6 defendants on record. I ought to have proceeded to deem this written address, filed by the 4th defendant, adopted by virtue of Order 45, Rule 7 of the NICN Rules, but did not and; the learned counsel to the claimants did not also draw my attention to this. I do not think anything stops me from doing that now. I therefore deem the written address filed by the original 4th defendant on record as adopted.

 

But before I go further, I must comment on the attitude of the learned S.O. NWODO as captured concisely earlier in this judgment, but more poignantly in the proceedings file. I must say that, the attitude is unbecoming of a learned gentleman. It is reprehensible for counsel, who is supposed to be a co-priest with the judge in the temple of justice, to deliberately attempt to hoodwink the judge to truncate hearing of a matter set down for definite hearing, by being economical with truth. It is also very unbecoming for a supposedly learned counsel, to hold a brief or take up a file on the morning when a case fixed for definite hearing is coming up, without being ready to go on and without any reasonable excuse; and turn up in Court to have the temerity to ask for adjournment on the very lame excuse that, he was just handed the file that very day! Any responsible person, more importantly, lawyer; would have turned down such dirty brief or job. Any lawyer that takes such a brief without offering cogent and compelling reason for not being able to go on, as in the instant case, demonstrates the height of irresponsibility. Since I do not know the truth about the learned N.R. CHUDE (MRS.) handing over the file to the learned NWODO on the morning the matter came up for definite hearing, I would refrain from making any adverse comment on her, more so, when the learned NWODO had shown himself not to be worthy of credibility. Done with this, I move to the objections of the 4th defendants against the suit.

 

I take the issue of objection against the substantive jurisdiction of the Court first. The learned counsel to the 4th defendant anchored this on community construction of sections 251 and 254C of the 1999 Constitution [as altered] arguing that, section 251 gives jurisdiction over the subject matter to another court, which he failed to mention. The learned counsel to the claimants replied that, the combined effect of sections 7 of the NICA and 6 of the 1999 Constitution, gives this Court the jurisdiction. We need not waste time on this obviously very lame objection, to which the claimants’ counsel appeared not to fair better than the learned counsel to the 4th defendant in the lack of knowledge of the provisions of section 254C-(1) of the 1999 Constitution [as altered], which conferred jurisdiction on this Court. Section 6 of the 1999 Constitution has nothing to do with the jurisdiction of the courts but rather, the powers of the courts, especially inherent powers.

 

Subsections 254C-(1)(j)(i) and (k) of the 1999 Constitution directly provide for the subject matter jurisdiction of this Court, which covers the subject matter herein, provisions were directly made for any dispute “relating to the determination of any question as to the interpretation and application of any- (i) collective agreement…” and (k) any dispute “relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits, and any other entitlement of any…public office holder…and matters incidental thereto” Subsections 254C-(1)(a) and (j)(iv) of the 1999 Constitution further provides for any dispute relating to any labour, employment, industrial relations and conditions of service amongst others. The dispute herein revolved around issues connected with or incidental to payment or non-payment of pensions and gratuities and enforcement of collective agreement. The allegation that the defendants did not make necessary arrangement to assure the claimants’ pension and gratuity is definitely connected with and incidental to payment or no payment of pension and gratuity and; the suit is instituted by the purported employees/public officers directly affected on behalf of themselves and their purported trade union. I wonder what more would have brought the matter within the confines of section 254C-(1) of the 1999 Constitution [as altered]. This Court is the only Court imbued with jurisdiction to determine civil issues connected with entitlements to pension and gratuity – see Nwagbo & Ors v. National Intelligence Agency (2018) LPELR-46201.

 

Let me state too, that, the learned counsel to the 4th defendant is mistaken in citing section 251 of the 1999 Constitution as conferring jurisdiction on another court. This mistake stems from not taking cognisance of the word “notwithstanding” which introduced section 254C–(1) of the 1999 Constitution. The Supreme Court has stated the effect of the word, when used to introduce a section in any statute in Saraki v. FRN (2006) LPELR-40013 (SC) 96, B-D:

 

“When the term notwithstanding is used in the section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself.”

 

 

 

Thus, the word “notwithstanding”, which introduced section 254C–(1) of the 1999 Constitution [as altered], has nullified the impeding effect of any provision of section 251 of the 1999 Constitution that would have conferred jurisdiction on the Federal High Court, thereby giving the NICN exclusive jurisdiction over the matter. It is the magic word of exclusivity of jurisdiction in courts when the word ‘exclusive’ is not directly mentioned in a statutory provision, conferring jurisdiction. And to further reinforce the exclusivity of the jurisdiction of NICN on civil matters falling under her canopy, the phrase “to the exclusion of any other court in civil causes and matters” was actually employed to confer her civil jurisdiction in section 254C-(1) of the 1999 Constitution [as altered]. In view of the above, I hold that the subject matters of this suit and the parties are directly amenable to the jurisdiction of this Court – see Ainabebholo v. Edo State Workers Farmers Multi-Purpose Co-operative Society & Ors (2015) LPELR-24513 (CA) 21-22, D-E and Nwagbo & Ors v. National Intelligence Agency [supra]. The objection on the subject matter jurisdiction therefore lacks merit and is accordingly dismissed. I move to attack on the jurisdiction of the Court on account of lack of cause of action against the 4th defendant.

 

The learned counsel to the 4th defendant argued that, no allegation connected the 4th defendant with the cause of action in issue. I reserve no hesitation in dismissing this objection. This is my reason. Whether or not all the parties had taken actions in this case on the issues involved would not estop the claimants from filing a suit, where they alleged that the defendants had reneged on the terms of the collective bargaining agreement duly entered into. And more particularly so, where the 4th defendant is in charge of preparation of budgetary provisions for payment of retirements benefits that is directly in issue here. This is more so, when the claimants are basing their claim on alleged infringement of mandatory provisions of the law. I do not know how the 4th defendant came about all the defendants, having included the claimants in the contributory pensions scheme.

 

Once the pension funds have not been shown by any of the defendants, as having been deposited with the pension administrators or being deducted and remitted accordingly on monthly basis till date, I do not see how they can argue that, there is no nexus between the complaints and the defendants, including the 4th defendant. From the facts on record, the complaint is about refusal to include the claimant in the contributory pension scheme or their removal therefrom. A cause of action arises immediately facts exist, which if proved, would engender infringement of the right of the complainant, either fixed by law or arising from contractual obligations – see Yemtet v. The Federal University of Agriculture, Abeokuta (2016) LPELR-43815 (CA) 13, A-B. It would appear that the 4th defendant is not alive to the gist of the grievances at stake. The objection on this ground is dismissed. Having dealt with this, I move to the issue of the further affidavit filed by the claimants.

 

I observed that this further affidavit was not filed specifically in reaction to any of the counter affidavits of the defendants; and that, the sole purpose of filing it, was to bring in a vital document not previously supplied, in further proof of the case of the claimants. Putting affidavits in the places of both pleadings and evidence, which they occupy in originating summons, it would appear that, what the learned counsel to the claimants did amounted to amending the pleadings of the claimants and adding to the evidence on record. And the law is that, parties must seek and obtain leave to amend their pleadings or even to frontload additional documents not originally filed with the pleadings or written depositions – see The Registered Trustees of International Secondary School, Orlu & Anor v. Bicoz Oil Company Nigeria Ltd & Ors (2014) LPELR-22836 (CA) 28-35, A-D. I hold that, since this further affidavit was not filed in reply to any process of the defendants and filed as addition to the case of the claimants, it was an amendment without leave. Effect of failure to obtain leave where it is required ordinarily makes the process filed irregularly incompetent – see Nwaizu v. Toronto Hospital Limited & Anor (2015) LPELR-25895 (CA) 11, D-F. But I observed that, none of the defendants raised this issue. It means they waived their right to complain. And I take cognisance that, this irregularity arose from a breach of the rules of this Court, which amounts to procedural breach and thus, waivable – see Order 5, Rule 2(1) of the NICN Rules.

 

Objection having not been raised at any point against the further affidavit, it is deemed waived, more so, when the purpose of the further affidavit is to further bring into fore, the controversy between the parties. It does no harm to anybody but further clarified the issues between the parties; and the case has not been heard before it was filed. I hereby take cognisance of it in deciding this suit. The further affidavit did not change the cause of action. It only supplied further evidence in proof. I move to the issue of filing of the counter affidavit of the 4th defendant out of time and non-payment of the default fee.

 

This objection against the processes of the 4th defendant was raised in the RPL of the claimants to the counter affidavit of the 4th defendant. Thus, the 4th defendant had no opportunity of replying this objection since the RPL is the last in the series of addresses. Nonetheless, I have the duty to ascertain the correct position of law, notwithstanding the non-reply by the other side – see The State v. Okereke & Ors (2016) LPELR-40175 (CA) 5-6, D-A. I found that the method by which the learned counsel to the claimant raised this objection is not in line with Order 5, Rule 2(2) of the NICN Rules, which purpose is to disallow procedural objection from being used as ambush. The reason is to limit the mischief of technicality, which inheres in procedural law to the minimal such that, if the objection is raised timeously, the culprit could have time to correct the procedural error for the case to be heard on merit. This is more particularly so in labour courts.

 

In view of this, this objection, which has no further purpose than to employ ambush to truncate the trial on merit of the case against the 4th defendant, must be dealt with for what it is: crass technicality, to the extent that, leave was not obtained for filing the counter affidavit out of time, but not entirely on the issue of not paying the requisite default fee because, payment of default fee forms part of the revenue of the nation – Ansaldo Nigeria Limited v. National Provident Fund Management Board (1991) LPELR-498 (SC) 16-17, E-B and Aloba v. Heritage Bank Limited (2019) LPELR-47661 (CA) 19-22, A-E. And more so, the reason for imposing such fine is to discourage dilatory behaviours in filing court processes and to promote efficient use of judicial time and resources. For these reasons, such punishment cannot be waived without very cogent and compelling reason. There is no cogent reason to waive it here. I therefore hold that, while the objection is deemed waived in part, the counter affidavit is conditionally cognizable before this Court on the condition that, the default fee is paid retroactively after the delivery of this judgment within 30 days thereof, personally by the learned counsel to the 4th defendant [M.S. DIRI] approaching the Court’s Registry for calculation of the amount due – see Ikpeogu V. Ikpeogu & Ors (2016) LPELR-41057 (CA) 22, C-F.

 

It is obviously the fault of the learned counsel herein not to know that he ought to pay penalty for filing late. And by the rules of this Court, he is liable to pay the default fee personally – see Order 57, Rule 5(7) of the NICN Rules 2017. That settles all issues of preliminary objections raised in this suit. Since none has hampered the Court’s jurisdiction, I proceed to the merit of the case; that is: Part B.

 

 

 

Part B: Decision on the Substantive Suit

 

To my mind, the case revolves around very narrow facts, which are substantially not in dispute and therefore, needs no proliferation of issues. I am inclined to the very narrow issue formulated by the 6th defendant’s counsel, as encapsulating the gravamen of the suit but, would shun it of the needless verbiage, to wit:

 

Whether, with regard to the contract of appointment in issue, this Court can grant the reliefs claimed?

 

 

 

In deciding this lone issue, I have no doubt in my mind that, the position of the learned counsel to the 1st and 6th defendants that the residents are not employees and not entitled to retirements benefits, even though, without reaction to the issue of estoppel raised by the learned counsel to the claimants, is nevertheless, the correct position of law, in relation to the facts of this case. I start with the argument of the learned counsel to the 6th defendant that, it is not the duty of the Court to make contract for the parties. This position is obviously right. It simply means, in deciding this case, the first port of call must be the contract between the claimants and members of the claimants’ association and the defendants. The fact that a court cannot make contract for the parties is further reinforced in statutory employment or employment clothed with statutory flavour, being that, the relationship between the parties is somewhat more than that of ordinary master-servant; and not therefore, entirely subject to the whims and caprices of the parties. But I will come to that aspect anon. For now, let us be contended with the examination of the contract between the parties and construction of its terms and the consequential legal effect. The contract between the parties herein, is primarily contained in the prototype for letter of appointment. It is therefore the first port of call. Speaking on the prime position of letter of appointment, the Supreme Court of Nigeria in Fiicharles Organ & Ors v. Nigeria Liquefied Natural Gas Limited & Anor (2013) LPELR-20942 (SC) 57, D-E:

 

“The letter of employment is the bedrock on which any of the appellants can lay claim to being employees of the respondent and without the production of such a document, no employment can be inferred. The Employees’ Handbook issued by the 1st Respondent is not a substitute for the letter of employment.”

 

 

 

The Court of Appeal in Anaja v. UBA Plc (2010) LPELR-3769 (CA) 15, E reechoed this view when it held that, “The relationship between an employer and his employee, is generally to be found in the service agreement or letter of employment” and reinforced in FMC Ido-Ekiti & Ors v. Olajide (2011) LPELR-4150 (CA) 33, A-B when it reiterated it thus, “in N.I.I.A. V. ANYANFULU (2007) (SUPRA) it was held by this Court that letter of employment must be resorted to in considering and determining the rights and obligations of the parties.” So, it is after construction of the contract contained in the letter of appointment between the parties that we can begin to look at any other document or the provisions of the law on the revelations from the letter of appointment. We must first ascertain the nature and status of the purported employment from the letter of appointment. Exhibit F of paragraph 19 of the supporting affidavit is sample of archetypical letter of appointment in issue. But it appears to have been transmuted by Exhibit E series – see para. 19 of the affidavit in support and p. 61-66 of file. Exhibit E series is made up of three separate documents connected to the 3rd by the 1st and 2nd in the series, which are circulars from the Ministry of Health, dated 20th April 2016 and 18th July 2014 respectively. It is therefore no longer necessary to reproduce the contents of Exhibit F, which is the original letter of appointment.

 

Let me reproduce the salient parts of the third document of Exhibit E series. It is the archetype template [TEMPLATE] from which all letters of appointment on residency must be patterned thenceforth 18th July 2014 vides the second document of Exhibit E series [the circular]. It provides thus:

 

“TEMPLATE OF APPOINTMENT/ADMISSION INTO RESIDENCY PRGRAMME

 

 

LETTER OF OFFER OF APPOINTMENT AND ADMISSION INTO THE RESIDENCY TRAINING PROGRAMME

 

 

 

  1. The period of your appointment into the Residency Programme shall be in line with extant Public Service Guidelines. You will automatically withdraw from the programme:

 

(a)        within six months of passing the Part II Fellowship Examinations of any of the Postgraduate Medical Colleges; or

 

(b)        if you fail to measure up to the standards set in this offer.

 

iii.                In either case (ii. a. or ii. b. above), you will seek for a job of your own, and if you succeed in getting Public Service appointment, you will be entitled to add unto your Service Record, the period of your Residency Training for the purpose of seniority in the Service, gratuity and pension. It is instructive to note that you must secure appointment in the Public Service in order to enjoy this consideration.

 

  1. If you are already in the employment of this Hospital, the terms and conditions of in-service training in the Public Service apply should your field in training be chosen in line with your employer’s human resource development framework. If the converse situation exits, the Hospital will not be under any obligation to retain you when you exit the Residency Programme except a Bond had been entered into with you.

 

 

  1. You will automatically withdraw from the Residency Programme:

 

  1. If you fail to pass the Primary Fellowship Examination 18 months after enrolment for the Residency programme.

 

  1. If you fail to pass the Part I Fellowship Examination 18 months after the date of the first Part I Examination you become eligible to sit.

 

  1. If you fail to pass the Part II Fellowship Examination 18 months after the date of the first Part II Examination you become eligible to sit.

 

  1. Six months after passing the Part II Fellowship Examination of any of the Postgraduate Medical Colleges, your Appointment as an officer in the Programme terminates with this withdrawal…”

 

 

 

First, let me observe that, this archetype template just reproduced above was not signed in spite of column for signature clearly provided, meaning, it might ordinarily not have legal effect – see Omega Bank Nigeria Plc v. O.B.C Ltd (2005) LPELR-2636 (SC) 36, A. But I observed that, none of the defendants raised the issue. They all accepted it as authentic and binding and; only seemed to be concerned with the construction of the provisions. Furthermore, I am inclined to giving the template legal recognition in spite of the fact that, it was unsigned because, it is an attachment to a principal circular, which unambiguously incorporated it, and which circular was duly signed. I think because it forms integral part of a duly signed circular, the duly signed circular authenticated it, and cured the inherent defect of its not being signed since, they form one composite document and must be construed together – Ashaka Cement Plc v. Asharatul Mubashurun Investment Limited (2016) LPELR-40196 (CA) 58, A-D.

 

In the second place, this new template would seem to supersede the letter of appointment [Exhibit F] thus, becoming the template in use since 18th July 2014. Though, in terms of construction, I do not find much difference between both. The new template even seems more favourable to the residents. It would appear to have a retroactive effect, thereby transmuting all the previous letters of appointment for the residents still in training as at 18th July 2014 and therefore, applicable to the cause of this dispute. I say this because, if the intendment of the circular is the uniformity and standardization in the appointment of resident doctors in Federal Tertiary Hospitals, the circulars must have retroactive effect thus, amending the contract between the previous residents and the defendants. I think the parties are agreed on this. In any case, it is the document submitted for construction. What I am to construe is this new template and its purport. This is the main issue in this suit. Now, I go to this main job.

 

I should state that, the guiding principle is that, a document speaks for itself – see Ikemefuna & Ors v. Ilondior & Ors (2018) LPELR-44840 (CA) and Intels (Nig) Ltd & Ors v. Bassey (2011) LPELR-4326 (CA) 12-13, D-A. It would be observed that, in the whole gamut of the template, the residents who could enjoy the benefits of reckoning the residency period into seniority at work and pension and gratuity, are those who were already in public employment before admission into residency or those who secured a public employment immediately after the residency programme. It is obvious that, those who were in private employment or self-employed before admission into residency programme or secured private employment immediately thereafter are not contemplated. This shows plainly that, if the template had intended that the period of residency programme is an employment and that, it should earn retirement benefits; it would not have excluded the residents, who are within the confines of private employment. That they were not contemplated in the template is pointer to the fact that, residency programme cannot enjoy retirement benefits simpliciter, without more.

 

It is clear that, residency programme is not meant to be permanent or to take long or to earn retirement benefits qua residency alone, otherwise, it would not have been provided that, its period could be added to the calculation of retirement benefits and seniority at public employment if a resident could secure public service employment shortly after the residency programme. So, in a nutshell, the idea of the temporal nature of residency period was never obliterated, as the learned counsel to the claimants would want us believe. To try to make a distinction out of the removal of the word ‘probation’ from the new template is to try to make a distinction between a lady and a woman in the modern usages of the two words. It is plainly a distinction without a difference.

 

The important thing to note is that, a short period of 54 months (4.5 years) is allotted the residency programme, after which the residency automatically ceases – see clause vi. (a)-(c). of the template in issue – in comparison to pensionable employment in the public sector, which contemplates 35 years by length of service or 60 years of age, whichever comes first. At the end of the residency programme, the residents have to look for employment, except those who were in public employment before admission into the residency and whose residency programme must be in line with a course of study approved by the public employer. Where this is not so, the resident must look for a job, except there is a bond with the public employer. It must be noted too, that, the privilege of counting the residency period for the residents in public service employment is not even an absolute one. By clauses ii., iii. & vi.(d) of the template, a resident only enjoys it, if s/he secures public employment within 6 months of exiting the residency programme. The above show clearly that, the appointment in view for resident is not a permanent and pensionable employment at all. The agreement never contemplates that; residents would enjoy retirement benefits within such a short duration.

 

It is because government rightly placed premium on medical services as a matter of public policy that, it pays the residents some sort of stipends to encourage them into further studies and improvements, otherwise, residents are pure articled trainees undergoing postgraduate professional degree, like all other professional courses and; are ordinarily supposed to earn only stipends in line with the custom of the profession in issue or be self-sponsored. I think it is like this in all other nations from which Nigeria borrowed the present tradition and practice of modern medicine and residency programme. Speaking on the practice of residency in the US, Darry S. Weiman, said:

 

“After medical school, the new graduates are required to do further training in residency programs which can last from 3 to 8 years. This training takes place in hospitals around the country and is overseen by the Accreditation Counsel on Graduate Medical Education (ACGME). During this training, the residents spend long hours in the hospitals and clinics where they learn from attending physicians. This added training is essential as the four years of medical school is just not enough to learn all the material and skill sets necessary to safely and independently take care of the multitude of problems that these physicians will face from the patient population…

 

Prior to the establishment of Medicare, residents would work for the hospital but they were paid very little. They would generally live in the hospital, thus the term ‘resident’.” – see “Who Pays for Resident Salaries?” at: www.medicalmalpracticeandthelaw.com  [Underline supplied]

 

 

 

The US system pegged the total number of residents at 100,000 persons per annum and only started public assistance to residents in 1965. It is very clear in the US system that, residents are not employees of the US federal government; and that, the US federal government only renders assistance. It is perhaps for this reason that, the funds for the assistance are not paid directly to the residents, but to the hospitals. Both public and private hospitals train residents in the US.  It would be seen that, residents are treated clearly as articled trainees and not employees. However, of recent, there have been increasing agitations on the status of residents in the US, but essentially, the position seems to remain the same with residents being treated mainly as articled trainees; and not employees – see Mary Vest Mason, MD, “Are Residents Considered Students or Employees?”, Resident Forum, May 27, 1998 at https://jamanetwork.com. By 2011, the US Supreme Court in Mayo Foundation v. US (09-837) held that, residents are employees for the purposes of payroll tax and therefore, not qualified for a student exemption – see Jack Stripling, “Medical Residents Ruled Employees”, January 12, 2011 at https://insidehighered.com.

 

This decision is understandable because, residents receive monthly stipends on the payrolls of the tertiary hospitals and not lump sums paid as grants directly to students and are therefore tax-free. In another instance, the US Third Circuit was of the view that, a resident is both student and employee for the purposes of Title IX, to sue for sexual harassment – see McNees Wallace & Nurick LCC at https://jdsupra.com. This, too, is understandable. A person who renders work assistance or works under supervision for training purposes must enjoy some measure of protection to safety of his person like the principal employee under whom he works as a measure of humanity. Further more, the following illuminating statements on the nature of residency programme has also been found:

 

“Throughout their training, the residents, fellows and medical students work under the watchful eyes of staff clinicians who remain ultimately responsible for the patients.

 

Obviously, they have their reputation and everything else on line…” – see “Will I be operated on by a student at a teaching hospital?”; Paul Taylor, Healthydebate – Personal Health Navigator (March 4, 2014) at https://www.healthydebate.ca. [Underlines supplied for emphasis]

 

 

 

A research published by the Harvard Medical School also made similar findings, showing clearly that, residents are doctors in training and do not have independent practice but practise under the direct supervision of experts in the specialties in view and in learning process, for learning purposes – see “Should I see a “resident” doctor?”, Harvard Health Letter, Harvard Medical School, (Published: August, 2017) at https://www.health.harvard.edu. It is also illuminating to consider the following:

 

“Often, hospital patients are unaware that they are being treated by medical students or residents rather than fully trained physicians… This created a problem for teaching hospitals. Of course patients should know who is caring for them. The issue is that some patients then feel free to refuse care by a student or resident…

 

I still remember a time when I was a student. We had a V.I.P. patient…I tried to do a procedure on him and identified myself to his wife as a student. She went to the to the attending physician and said: ‘I don’t want student working on my husband. Only you…

 

If a patient on my unit challenges student care, I just say something like: ‘You have elected to come to teaching institution, and part of our mission in patient care is supervised teaching. These are members of my team. If you’d rather not be cared for by them I’m sure there are other institutions where students wouldn’t be involved.” – see “Facing Off; A Matter of Degrees”, The New York Times, March 20, 2001 at https://www.nytimes.com/2001/03/20/health/facing-off-a-matter-of-degrees.html. [Underlines supplied]

 

 

 

The above literature is significant in that, it shows that, even the public does not regard residents as fully qualified to carry out treatment. It also shows that, admission of residents to a teaching hospital is mainly for the purposes of learning by practice under the direct supervision of experts in the fields involved thus, fulfilling the adage, ‘practise makes perfect’. One important fact brought out too, is that, some hospitals, with comparable facilities to those in teaching hospitals, do not admit residents at all, but only fully qualified experts in the various specialties, showing clearly that, the essence of admitting residents is not in their job skills, but purely for training purposes. It is just like an artisan learning a trade under a master, who has to learn by practice under supervision. Let me cite one more literature on the nature and status of residency:

 

“When you undergo surgery at a hospital with residency program, you should know residents are going to be involved with your operation and postoperative care. While attending surgeons are required to supervise, and inexperienced residents should not be performing complex procedures, a teaching hospital means new doctors are learning how to perform surgery – that’s how the system works…

 

‘Sometimes people say they don’t want residents involved in their care. I think that’s a mistake for a patient because in fact having residents involved in your care is generally to your advantage.” – See “Is Surgery Safer at a Teaching Hospital”, Hannah Webster, U.S. News, Oct. 27, 2014 at https://www.health.usnews.com/health-news/patient-advice/articles/2014/10/27/is-surgery-safer-at-a-teaching-hospital. [Underlines supplied for emphasis]

 

 

 

The above source articulates the valuable contributions of residents to medical care but reemphasizes that; they are trainees, learning the ropes under the direct supervision of experts in the fields. I have done extensive literature reviews to ground my inferences on the Nigerian system. This I consider very significant being that, the profession involved is central to the well being of the society and with its peculiar nuances, needs illumination to arrive at a fair decision on the issue involved in this suit. The Nigerian policy, as could be gathered from the template in issue, favours the conception of residents as trainees and puts them on salaried stipends as is obtainable in most advanced economies, as reflected in the literature reviews.

 

But whether or not residents are treated as both employees and students, the fact remains that, in the US, from the literature review, they are only recognised as employees for very limited purposes of payroll tax and right to sue for harassment; and generally, not for the purposes of pension and gratuity – see “Graduate Medical Education Salaries and Benefits”, School of Medicine, University of Missouri at https://www.medicine.missouri.edu. See also “Income Deferral 403(b)”, John Hopkins University Human Resources at https://www.hr.jhu.ed. In the UK, residents do not generally enjoy pension rights under the NHS Pension Scheme – see “What is a Resident Medical Officer” at https://www.bdiresourcing.com. The literature reviews only revealed one instance of a medical school’s provision of mandatory Defined Contribution Plan [DCP] for house-staff in lieu of social security. This therefore appears to be a private arrangement of the medical college since, it is in lieu of social security – see “Retirement Benefits”, UC San Diego School of Medicine at https://www.medschool.ucsd.edu.  On the whole, authorities in the US are however beginning to concede limited employee status to residents but, by and large, they are essentially regarded as trainees without pension or retirement rights.

 

From all I have said above, it must be very clear now that, residents are not employees but articled trainees paid monthly stipends for the duration of the training. It does not matter by which name the stipend is called and whether the residents are put on comparable grade level to employees in public service. This is purely for delimitation of the rate of the stipends. What matters is the nature of appointment. Being articled trainees, they are not on pensionable appointment other than, as prescribed in the Nigerian template in issue. It is also clear from the literature reviews that, the works residents do and for which they are paid, are works done in the course of training and intricately connected with their training and development towards qualification for the desired specialties. Without these works in training, they cannot acquire the expertise desired.

 

These works are done under the direct supervisions of expert-tutors in the various fields of specialties, who are ultimately responsible for the procedures performed by residents. Medical work being practical than theoretical, cannot be learnt other than through closely guarded practice in training. Their work is just like that of artisan learning the skills required to become proficient at a trade by practising the trade under the direct supervision of an adept in that trade. It is like that of students learning to become professional teachers, being required to do actual teaching practice, to become proficient. In such instances, the trainees cannot be regarded as qualified to practice the specialties and could not get jobs in the specialties, until duly certified.

 

Hence, until duly certified, the trainees remain trainees; and in the medical profession, these postgraduate trainees are called residents or fellows or house officers. In almost all professions and trades because, the works done by the trainees in the course of trainings constitute assistance to the expert-supervisors, these works are most often than not recompensed, in the form of regular stipends at regular intervals to keep the trainees in the trainings. These recompenses do not make them employees during the trainings but trainees learning to become experts. The simple question is: can the residents, without undergoing the residency trainings, get employed as experts in their fields of intended specialties, or can they practice the intended specialties without undergoing these trainings and practical sessions? The answer is: no.

 

So, the works residents do under the tutelage of experts, and without which they cannot qualify to practice in their intended fields of specialties, cannot qualify them as employable as such experts or specialists, so, while learning to become specialists, they cannot be heard to say they are at the same time employees nor could they be so regarded. It does not matter that they are given appellations as Senior House Officer or the likes. These designations are to mark the admission stage and the stages after passing each of the prescribed exams in the three-pronged graduated levels of trainings, to scale through, to become qualified. From the fact that they cannot carry out any procedures independently of the expert-supervisors and that; the experts are responsible ultimately for any mishap in these, which are often minor procedures assigned them; and that, the public sees them as trainees, confirm beyond doubt, that they, in deed, are trainees and not employees. Their supervisors are the real expert employees in the teaching hospitals. The logical and natural sequence of things is that, one can only get employment as an expert in a field after qualifying and certification. Therefore, residents cannot claim they are employees in their intended specialties when they are still learning the ropes of the specialties and not doing the works of general practitioners, for which they were qualified in their first degree, before admission into residency.

 

Assuming they do not have any exams to write and certificates to obtain in order to be qualified to practice as specialists in the intended fields, it would have been easy to contend that they are junior colleagues to their expert-supervisors, but here, they have three different qualifying examinations to pass to be admitted into the specialties intended. It is only when they pass these exams that they become junior colleagues to the experts they met in the fields. Until then, they remain trainees and continue to learn under the experts in the fields.

 

In view of my foregoing holding, I further hold that, the Nigerian template is both prospective [anticipatory] and retroactive [retrospective] in effect. It provides for a future situation when the resident becomes qualified in the special field and gets a pensionable public employment within 6 months thereof. It becomes retroactive [post factum] on getting a public employment within the specified period of 6 months of exiting the residency programme, when the residency programme period must now be taken into consideration in reckoning seniority at work and entitlement to retirement benefits of pension and gratuity.

 

What I am saying is that, while the resident is in training, s/he is not entitled to pension and gratuity, and as such; no percentage of his stipends could be deducted towards pension and gratuity, but immediately he secures public employment after qualifying, his articled period [residency] must be retroactively reckoned; and the arrears of his pension and gratuity for the 4.5 years calculated and remitted to the appropriate quarters in line with the Pension Reform Act. That is the correct interpretation of the template in issue; and I so hold.

 

We are essentially concerned in the instant case with the right of residents to pension and gratuity. It is therefore apposite to define these terms. The Black’s Law Dictionary, Ninth Ed. defines pension as “a fixed sum paid regularly to a person (or to the person’s beneficiaries), esp. by employer as a retirement benefit.” ‘Gratuity’ is defined online at Google as, “a sum of money paid an employee at the end of a period of employment.” From these definitions, it is clear that, pension and gratuity are terminal or end of employment benefits; and not, end of training benefits. This much is confirmed by section 120 of the Pension Reform Act, which defines ‘pension fund’ as:

 

“…investment fund within the Pension Scheme which is intended to accumulate during an individual working life from contributions and investment income, with the intention of providing income in retirement from the purchase of an annuity or in the form of a programmed withdrawal, with the possible option of an additional tax free cash lump sum being paid to the individual.” [Underlines for emphasis]

 

 

 

It is clear that, the phrase ‘pension fund’ as defined by section 120 of the Pension Reform Act incorporates gratuity and that, both are terminal or retirement benefits; and that, both are designed for employees in long-term or life-long employments, as terminal or retirement benefits. The riddle is: what happens if a self-employed medical doctor gains admission into residency for the short period and successfully completes it, exits and does not secure public employment thereafter? Would he be said to have retired by exiting after completion of the residency? Did he retire from the residency programme? Was his appointment determined or terminated thereby? Did he resign from the residency? The answer to all these posers are: no. Would he therefore be entitled to retirement or terminal benefits? The answer is still obviously, no. Pension and gratuity are products of retirement, termination of employment or resignation from employment; and not, products of graduation from a school or completion of training. They are terminal benefits. Did the resident graduate from the residency? Was he issued a certificate? The answers to these posers are: yes.

 

Graduation and issuance of certificate are the products of training and passing examinations; and while pension and gratuity are the products of retirement from employments or appointments. They are products of employment with retirements in view, even though; the employee might resign before reaching retirement. Even at that, restriction is still placed by insisting that, the retiree reached age 50 before he can start drawing from the pension funds – see section 7(1) of the Pension Reform Act. The resolution to the above riddle clearly shows that, residents are not employees but articled trainees. The answers show too, that, it is only after securing public service employment within six months after successful completion of the residency that, the duration of residency could be retroactively calculated and lumped up with the current public service years of the erstwhile resident for the purposes of terminal or retirement benefits.

 

The important thing to note is that, residents did not apply for employment but for postgraduate trainings to become medical specialists; and upon completion of the residency, they exit the training programmes in search of employment opportunities or become self-employed. This further shows the distinction between residents and the trainees envisaged under Rule 020202(a) and 020203(a) of the Public Service Rules, 2008, who are recruited from inception, with a view to staying put in an employment, if they successfully complete their trainings. Anything short of this interpretation portends an inclination to the danger inherent in the interpretation urged by the learned counsel to the claimants, to encourage residents to stay put in residency programme without success, by continually asking for extension of the programme, in the sure footing that, the training programme has become full employment with retirement benefits! That this is already happening is evident in Exhibit F of the affidavit in support, dated 21st September 2007, meaning, the resident to whom it was issued, had been in residency programme for ten years reckoned to 2017 when this suit was filed! Who knows if he is still there? Come to think of it, this is a programme that is supposed to run for 4.5 years! This letter is issued to the 1st claimant in this suit.

 

There is nothing in the template tendered that says the residency could not be extended on application. I think if this were the case, almost all students would prefer never to graduate, as is already evident in Exhibit F [supra]. Why in hurry to graduate and be thrown into the job market when you already have a perpetual studentship with all the full compliments of permanent employments; and could not be held liable for any mishap in procedures performed, for which the expert supervisor must be liable! In that event, the government and the society lose in wasting resources without results. Apart from assisting the residents with salaries or stipends during the programme, the promise of reckoning the duration into calculation of a resident’s retirement benefits, if s/he gets public appointment, is an incentive to encourage them to join the public service. It is the same rationale that informs the guaranty of reckoning the period of the residency into seniority, if the resident secures public employment. It is felt that, it would be wrong for erstwhile residents to lose seniority to a general practitioners, who stayed put in public service, without specializing. This is still in further encouragement to entice residents into public service. I think the Nigerian policy, as evident in the template, is fair to all parties involved. The interest of the residents, the government and the masses must be catered for. Fairness to all the parties involved and the society at large is the hallmark of fairness in industrial relations – see section 254C-(1)(f) of the 1999 Constitution [as altered].

 

Having dealt with the primary document that forms the basis of relationship of the contracting parties, it remains for me to examine the place of the doctrine of estoppel by conduct relied upon heavily by the learned counsel to the claimants. I observed that, the defendants’ counsel did not react to this point at all in their written addresses, especially the learned counsel to the 1st defendant, and more especially, the learned counsel to the 6th defendant, who appeared to have made a good grasp of the issue involved in this case. Nonetheless, I have the burden to ascertain, whether in relation to the facts of this case, the conclusion is, as urged by the learned counsel to the 6th defendant – see Unity Bank Plc v. Olatunji (2013) 15 NWLR (Pt. 1378) 503 at 531, D-G.

 

The learned counsel to the claimants have made heavy weather of Exhibits A and G of the affidavit in support and AA of the claimants’ further affidavit by which he claimed the defendants admitted that, the residents are entitled to pension and gratuity and cannot therefore resile, after having communicated the appropriate quarters that, the residents are so entitled. The 4th defendant more or less admitted the truth of these instruments but argued against the jurisdiction of the Court. I have held that, the claimants are not employees in the public service on a consideration of the template. But with the concession reached in Exhibits A and G of the affidavit in support and AA of the further affidavit and the directive for implementation, has the position of the residents been transmuted to that of public employees or that of pensionable public employees? I will examine this question, first from the point of view of the Pension Reform Act and the Public Service Rules copiously cited by the learned counsel to the claimants.

 

It would seem that, the learned counsel to the claimants is of the view that, through the collective bargaining agreement and the two letters of concession, the defendants agreed to the interpretation of the template, as conferring right of the residents to pension and gratuity. It would therefore appear that, everything still boils down to interpretation of the template. The template is before me for construction, construction of statutes and instruments is in the domain of judicial duties – see COP v. Agholor (2014) LPELR-23212 (CA) 23, B-D and Gujba v. FBN Plc (2011) LPELR-8971 (CA) 30-40, E-A. A document speaks for itself. Whatever meaning the parties agreed to, does not change the true meaning of the document. It would therefore appear that, the template remains the primary contractual document between the parties. Hence, if in construing it, the Court comes to the conclusion that, it does not confer employment or retirement benefits, it means the interpretation placed on it by the parties is wrong. I have interpreted the template and came to the conclusion that, it does not confer employment status or retirement benefits. And there is no other template before me. You cannot therefore begin to deduct pension and gratuity for payment in respect of the residents to pension administrators on monthly basis in respect of resident-trainees that might or not get permanent public employment after completion of their training programmes.

 

It must be stated that, right of public servants to pension and gratuity is constitutionally guaranteed – see section 173(1) of the 1999 Constitution and Ajao v. The Pemanent Secretary Ministry of Economic Planning Budget Civil Service Pensions Office & Anor (2016) LPELR-41407 (CA) 15-16, D-E. I have earlier indicated that, the special nature of statutory employment is that, it is not governed entirely by the contract between the parties, but much more, by the provisions of the law, the terms of which parties could not contract out of or into, at will – see AG Bendel State v. AGF (1981) LPELR-605 (SC) 39-40, F-E. Section 173(1) of the 1999 Constitution says only persons in public service of the federation are entitled to pension and gratuity, and that, law shall regulate the right to these – see Ajao v. The Permanent Secretary Ministry of Economic Planning [supra]. Who is in public service? Section 318 of the 1999 Constitution partly answered this question. It defines civil service of the federation as service of the nation in civil capacity and public service of the federation, as service of the federation in any capacity in respect of the national government.

 

It follows that, a civil servant is one employed as employee of the federal government in the core federal ministries that directly service the President, while public servants are those employed or appointed in other arms of federal government, aside the executive arm and, in other semi-independent executive bodies of the federal government, ditto: states. All federal civil and public servants are therefore, in the public service. A community construction of the provisions of sections 173(1) & 318(1) 1999 Constitution, on right to pension and gratuity and the meaning of public service of the federation and sections 2(1) and 120 of the Pension Reform Act, yields the inescapable conclusion that, those in the public service envisaged for pension and gratuity, are those in career appointments in the civil and public services, and not others, except as otherwise provided by law, even if they are in the public service.

 

This definition excludes from pension and gratuity those who are neither civil servants nor public servants. The question is: does a resident fall under the category of civil or public servant for the purposes of pension and gratuity? The answer, to my mind, is no. Why? I have held earlier on that, the residents are articled trainees being assisted in their trainings by the federal government as part of her social responsibilities in consideration of the centrality of medical works to the welfare of the society. I have also held that, because, residents at the successful completion of their programmes do not resign nor retire or terminated, they therefore cannot be called employees; and are therefore, not entitled to pension and gratuity, as per the residency without more.

 

These facts showed that, residents are not public appointees/employees or civil servants but, clearly articled trainees, like in all other professional fields, who are being paid stipends during the course of training – see Anita Balakrishnan, “LSO to mandate pay for articling students” at www.canadianlawyermag.com. The confusion of residents with public employees in Nigeria arises from the fact that, they are being trained in public tertiary health institutions: federal teaching hospitals and not private health institutions. When private health institutions begin to admit and train residents in Nigeria, in their own right, without the interposition of government other than regulating, like it is generally in most of the other countries, it would become clear beyond disputation that, residents are not really employees but, are simply what they are: articled trainees. It follows that, even if there is a collective bargaining instrument and other similar instruments from the defendants indicative of admission and concession on this issue to the residents, such would be contrary to section 173(1) & (2) of the 1999 Constitution, which envisaged that, pension and gratuity are only payable to those in public service. It would be wrong to enroll residents into the pension or retirement programme for public servants; and therefore, such concession would be void or voidable, as a form of illegal contract for which no punishment is provided – see Corportae Ideal Insurance Company v. Ajaokuta Steel Compnay Limited & Ors (2014) LPELR-22255 (SC) 33, D-F, where the Supreme Court held that:

 

“The summary of all I have endeavoured to say above is that parties cannot be allowed to enter into a contract or transaction to circumvent the clear and unambiguous provisions of a statute. It has been the view of this Court and I reiterate it here that a transaction or contract, the making or performance of which is expressly impliedly prohibited by statute is illegal and unenforceable or impliedly prohibited by statute is illegal and unenforceable…

 

Although, it is the duty of a trial Court to enforce agreements between parties and not to speculate or question the reasons for their entering into any such agreement, where such agreement is illegal or contrary to public policy, such agreement or contract should not be enforced by the Court.”

 

 

 

It is clear that, section 173(1) of the 1999 Constitution says only those in public service can enjoy pension and gratuity under a law regulating the same. By this provision, it is equally clear that, those who are not public servants are excluded – see Mazeli v. Mazeli (2012) LPELR-19945 (CA) 19, F. The residents, who are not public servants, but articled trainees, are therefore expressly excluded by section 173(1) & (2) of the 1999 Constitution from inclusion by any statute in the retirement benefits scheme of any public service in Nigeria, and I so hold. For students admitted into public training schools, which the teaching hospitals are, are not regarded as being in public service. Therefore, the doctrine of estoppel by conduct strenuously canvassed by the learned counsel to the claimants is inapplicable here. For, where a contract is illegal, estoppel cannot be urged to tie the resiling party to it – see AG Bendel State v. AGF [supra].

 

The residents are therefore not entitled to pension and gratuity as per the residency per se other than in the anticipatorily retroactive grant, as earlier clarified. To do otherwise, as was attempted in the collective bargaining agreement in issue and the letters from the health minister and the 1st defendant to the chief executives of federal teaching hospitals, to treat the residents as employees for the purposes of pension and gratuity as per the residency without more, are void ab initio without any further assurance; and I so hold.  And if voidable because, there is no punishment attached for violation in section 173(1) 1999 Constitution, the defendants are therefore at liberty to resile from the collective bargaining agreement, which is illegal, more so before implementation – see Brewtech Nigeria Limited v. Akinawo & Anor (2016) LPELR-40094 (CA) 18, B-E.

 

The parties cannot contract in or out of the provisions of the 1999 Constitution – AG of Bendel v. AGF [supra]. That is the effect of statutory employment under which some terms, like pension and gratuity, are fixed by law. The danger of the interpretation being urged on the Court by the learned counsel to the claimants is to encourage residents to stay put in the residency without success or passing the prescribed exams; and perhaps, continually ask for extension in the sure footing that, the residency programme has become full employment with retirement benefits. For, I did not find in the template that, extension of time could not be applied for and granted. In that event, only the government and the society lose in wasting money without results! That proposition is not a sound economic and social policy.

 

Be that as it may, I now come to the provisions of the Public Service Rules and sections 2, 5 and 120 of the Pension Reform Act cited by the learned counsel to the claimants. I will examine this argument in the event that, the Court of Appeal finds fault with my preceding decision that, the collective bargaining agreement in issue is void and unenforceable. I take sections 2 and 120 of the Pension Reform Act first. In this, I have no hesitation at all, in agreeing with the learned counsel to the 1st and 6th defendants that, these sections together with the provisions of the Public Service Rules cited are of no avail to the claimants. I am of the view that, sections 2 and 120 of the Pension Reform Act did not define a public employee and that, section 5 deals with those provided for in other statutes and not those that are not entitled to pension and gratuity. Exemption in the real sense of it is left to the statutes regulating right to pension in the public service. These sections only become relevant when it is decided that, the residents are employees and are in public service or that, there is employment relationship between the defendants and the residents. So, sections 2, 5 and 120 of the Pension Reform Act do not confer any right of retirement benefits on the residents.

 

I come to the Public Service Rules. A community construction of Rules 020202, 020203, 020204, 020302, 020303, 020207 and 020208 of the Public Service Rules, 2008 will show the fallacy of the interpretation assigned to Rules 020202(a) & (b)-020204, 020207(b), 020208 of the Public Service Rules 2008 by the learned counsel to the claimants, as granting full status of employment in the public service to the residents. The Rules cited by the learned counsel to the claimants, apart from being misconstrued, also selectively screened out the unfavourable Rules. The provisions of statutes enjoy community construction and not selective interpretation – see Mobil Oil (Nigeria) Plc v. IAL 36 INC (2000) LPELR-1883 (SC) 24, B-F. A combination reading of these provisions showed that, trainees are neither on pensionable or probational appointment but on a class of their own, as trainees or pupils. It is after satisfactory completion of training that, a person appointed as a trainee is appointed on probation to the specific post envisaged by both parties.

 

The rationale for this is explained in Rule 020203(a); and this is resorted to when there is a vacancy to be filed but qualified candidates could not be readily sourced. A candidate is tentatively appointed with a view of been trained to acquire the requisite qualification to assume the post. If he fails, he leaves and if he passes, he is formally recruited on probation to the agreed post. At this point, there is no contract of employment between the parties but a conditional contract to be employed after successful completion of the programme. It would be wrong at that stage to expect that, such a person be enrolled into the pension funds of the federation when he has not been employed to the post desired and for which he is receiving training at the expense of government. It is also certain that, he must be paid some stipends during this training period of two or less years since, he was appointed into the post of trainee to be trained to qualify for an envisaged post of employment at the prompting of the public employer, whereas, the residents are not prompted for recruitment into the residency with any subsequent employment in view. They were recruited into the residency qua residency simpliciter.

 

The highest length of time for the trainees envisaged under the Public Service Rules is 2 years – see Rule 020203(a). Trainees under Rule 020202(a), until they have full employment, cannot be entitled to retirement benefits for their contract to be employed is conditional. In some of the above respects, the position of residents is analogous to that of the trainees defined in Rules 020202(a) and 020203(a) of the Public Service Rules 2008 but different in other respects. The position of residents is not coterminous with the trainees envisaged by the Public Service Rules, in that, as residents, they do not have any agreement to be employed into any post after completion of the residency and no specific posts of employment formed the basis of the contract. The bases of the contract are purely, training and award of the relevant certificates after successful completion of the residency.

 

That is why after successful completion of the residency, the residents passed out, while on the other hand, after successful completion of the training, the trainees provided for under Rules 020202(a) and 020203(a) of the Public Service Rules must be employed; and can sue to compel the government to employ them, if she fails to, whereas, residents passed out to look for employments and cannot sue to compel either the government that paid their stipends or the public tertiary health institutions attended to employ them. The fact that they did not make that part of the claims herein is enough to show that; there is no scintilla of employment relationship between the government [defendants herein] and resident trainees. The contract the public tertiary institutions have with the residents is to train them to pass the prescribed exams to be conducted by relevant bodies at each and every stage of the residency.

 

Section 173(1) of the 1999 Constitution says the right of a person to pension in the public service shall be regulated by law. This gives the public employer the right to impose reasonable and fair conditions precedent to being appointed into pensionable posts in the public service and being entitled to pension and gratuity. It means, where there is a condition precedent to be fully employed to pensionable post, otherwise called permanent employment, and to be thereby entitled to pension, so far such condition precedent, like the ones attached to trainee appointments in the public service, are reasonable and in accordance with fair industrial relations and best practices, they would be lawful, as a law regulating right of entitlement to pension and gratuity – see AG Abia State & Ors v. AGF (2002) LPELR-611 (SC) 166, D-E; AG Ondo State v. AGF (2002) LPELR-623 (SC) 137, A-D; and particularly, AG Lagos State v. Eko Hotels Limited & Anor (2006) LPELR-3161 (SC) 39, D-E to the effect that, regulating a thing is “the act or process of controlling by rule of restriction”. The mandatory thing is that, once appointed into pensionable post, the pension and gratuity begins to count from that moment.

 

By saying the “right of a person in the public service of the Federation to receive pension and gratuity shall be regulated by law” it means, such right is controlled by rules of restriction – see AG Lagos State v. Eko Hotels Limited & Anor [supra]. Thus, access to pension and gratuity is not automatic, but subject to control and restrictions. It simply means, not all those in the public service could be entitled to pension and gratuity or that, being in the public service does not guarantees automatic right to pension and gratuity. If the provision had intended that all those in public service without exception would be entitled to pension and gratuity, it would not have imported the need to regulate the right. Mark it, it is the ‘right’ to pension and gratuity that must be regulated; and the operative word therein is “shall”, meaning that, there must be a regulatory law, and that, once a person in the public service satisfies the conditions imposed in the regulations, his pension and gratuity are guaranteed and cannot be denied him, but until then, the person would lack right to pension and gratuity.

 

It means; it is on this ‘right’ to pension and gratuity that, the restriction or control must be placed; and not on the pension and gratuity. The concomitance is that, not all in public service may be entitled to pension and gratuity. If section 173(1) of the 1999 Constitution had meant otherwise, and that, no restriction could be placed on this right; and that, all persons in public service, without exception or conditions precedent, are entitled to pension and gratuity, it would simply have provided that, ‘the right of a person in the public service to pension and gratuity is hereby guaranteed or persons in public service shall have right to pension and gratuity.’ But by inserting the clause “shall be regulated by law” to qualify the right to pension and gratuity, it means, reasonable conditions precedent or restrictions could be placed on the right. In fact, that this interpretation is correct, is shored up by section 173(2) of the 1999 Constitution, which provides:

 

“Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct.” [Underlining for emphasis]

 

 

 

By this provision, the fact that, law must regulate right to pension and gratuity is proved beyond disputation. It clearly signifies that, persons in public service are not automatically entitled to pension and gratuity and that, their entitlement is as prescribed by any law regulating such. It simply means right to pension and gratuity in public service could be lawfully restricted against some class of persons in public service by imposition of lawful and reasonable conditions precedent. But once a person has met the conditions precedent, the pension and gratuity cannot be altered thereafter to his disadvantage; meaning that, the law applicable to a particular person in public service must predate his appointment/employment into public service, so that, he could take such law into consideration in deciding whether or not to join public service. It means too, that, the law recognises that, there are various categories of persons in the public service. For example, nobody can deny the fact that, youth corps members are persons in the federal public service, for the one-year compulsory service to the nation. But everybody would agree that, they are not entitled to pension and gratuity.

 

This brings in the need to regulate entitlement of persons to pension and gratuity in the public service, by virtue of section 173(1) & (2) of the 1999 Constitution. That this should be so, is impliedly supported by section 120 of the Pension Reform Act, which implies that, pension and gratuity envisaged long-term or life-long employment – see Martins & Ors v. Kolawole (2011) LPELR-4475 (CA) 34, B-F, which also held that, pension is recompense for life-long service. Placing anticipatory restrictions to right to pension and gratuity cannot therefore be wrong in the situation of a person appointed at first as trainee, and not employee, in the public service, provided the duration is short and does not exceed the normal period of the training; and that, once, the trainee is qualified and appointed to the anticipatory post, the period of the training is reckoned with retrospectively in calculating his pension and gratuity. The heads of types of direct appointment into the public service listed in Rule 020202 are disjunctive alternatives because; the operative word is ‘any’; so, the appointer is to choose ‘any’ of the types to match the facts or circumstances of the appointment, but not a combination – see Texaco Panama Incorporation v. Shell Petroleum Development Corporation of Nigeria (2002) LPELR-3146 (SC) 28, A-C.

 

Rule 020203 shows that, this is the correct interpretation of Rule 020202 because, it goes on to state that, a trainee could only be appointed into pensionable post on probation after satisfactory completion of the two-year training. The attempt of the learned counsel to the claimants to merge both heads (a) & (b) of Rule 020202 together to give the residents a toga of pensionable employment in the public service cannot therefore fly. That the doctors are taken into consideration in the scheme of service, like all other professionals, does not mean they are automatically in pensionable appointment. To attain any of the graduated positions, the conditions precedent must be met. That is why the word ‘resident’ or ‘residency’ was never mentioned in the scheme of service because, it is not a professional qualification in the medical profession tied to any of the posts; meaning, there is no space for employment as resident. I mean a person cannot be employed as resident. Resident is a title to postgraduate medical student in training at teaching hospital. If I may ask: are youth corps doctors [House Officers], who are also reflected in the scheme of service, also in pensionable appointment? The answer is no. Youth-corps are definitely in public service, but not in pensionable employments; the regulatory law, National Youth Service Corps Act, does not so provide. This is for obvious reason.

 

The objective of the corps and the duration is so short that, it would infringe section 120 of the Pension Reform Act, which envisages life-long service, to include this group of persons in public service. This shows plainly the purposes of the scheme of service. It is a person’s letter of appointment that must be resorted to for his employment status: period. House officers/youth corps members may be in public service, or be regarded as public officers in a narrow sense, but not definitely public employees/officers for the purposes of pension rights. Likewise, even if residents are in the public service or are public servants [which they are not], they are definitely not public employees/officers/servants for the purposes of pension rights. They are what they are: postgraduate students undergoing articled trainings. Their terms of appointment and admission to the residency programme made pursuant to the Public Service Rules and the various statutes establishing the federal teaching hospitals did not so provide.

 

It follows that, even if it were found that, the residents were trainees in accordance with the Public Service Rules simpliciter, as cited by the learned counsel to the claimants, they would not still be entitled to pension and gratuity based on correct community construction of the Public Service Rules cited by the learned counsel to the claimants in conjunction with the additional ones cited by the Court alongside sections 173(1) & (2) of the 1999 Constitution and 120 of the Pension Reform Act on the meaning of ‘pension fund’ defined in terms of long employment or service. The Public Service Rules, as a subsidiary legislation, is a statute by virtue of section 160(1) of the 1999 Constitution – see Omowaiye v. Attorney-General Of Ekiti State & Anor (2010) LPELR-4779 (CA) 53-54, F-C, which duly makes rules regulating right of entitlement to pension and gratuity in the public service; and it temporarily excludes trainees until fulfillment of conditions precedent, when they would become retroactively entitled. These statutes will extend with equal force, were the residents treated at par with the trainees envisaged under Rule 020202(a) and 020203(a) of the Public Service Rules to lawfully exclude them from pension and gratuity until the conditions precedent are met. Any attempt to include them under the present state of the law excluding them would be illegal and unenforceable – Corportae Ideal Insurance Company v. Ajaokuta Steel Compnay Limited & Ors [supra] and Brewtech Nigeria Limited v. Akinanwo & Ors [supra]. The defendants are therefore, at liberty to resile from any prior promise made.

 

Since section 173(1) & (2) of the 1999 Constitution says the right to pension and gratuity in the public service must be regulated by law and that, only those so entitled by such regulations could have pension and gratuity; and section 120 of the Pension Reform Act envisages that, pension and gratuity are only payable to persons engaged on longtime basis, and this is positively sanctioned by Rules 020202(a) and 020203(a) of the Public Service Rules, it follows that, even if residents are in public service, section 120 of the Pension Reform Act and Rules 020202(a) and 020203(a) of the Public Service are justified in the restriction placed on how and when residents would become entitled to pension and gratuity. It would be illogical for government to enroll residents, she assisted in their trainings; and who are not under bond to serve in the public service and, are therefore, free to take up private employment after qualifying, and who in deed take up private appointment thereafter, into her pension roll. The promise of pension and gratuity if public appointment is secured timeously, apart from being an incentive to bring them into public service, is also a compensation for those who served the public for long period.

 

But as it is, the residents are not even appointed into the teaching hospitals in the manner of trainees envisaged by the provisions of the Public Services Rules quoted by the learned counsel to the claimants, but are recruited purely for admission into the teaching hospitals as articled trainees in accordance with the tradition and practice of the medical profession. They are purely students in the federal teaching hospitals. The phrase ‘teaching hospital’ signifies the teaching of some students, as one of the major functions of these hospitals – see section 1 of the University of Nigeria Teaching Hospital Management Board Act [UNTHMBA]. Amongst these students are the postgraduate students called residents.

 

They were not recruited with any aim at all that there were particular positions they were going to occupy immediately after successful completion of the programme, otherwise, it would not have been provided in the template that, they would personally look for employment after successful completion of the residency, except residents already in public employment and whose admission to the residency were approved by the public employers. The right of resident who had public employment before going for residency to return to his employment after completion is independent of success in the residency, but contingent on the right reserved in him in the prior employment, while the right of the public service trainee to be retained and appointed into pensionable employment is contingent on successful completion of the training. So, residents cannot be equated with the trainees envisaged under the Public Service Rules. The argument of the learned counsel to the claimants that, because, reference was made to the Public Service Rules in the template, it follows that, specific rule of the Public Service Rules must apply without adaptation to residents and residency programme is far from plausibility. The learned counsel should realise that, teaching hospitals are specialized statutory corporations and in reading the rules of the Public Service Rules into their operations, these rules must be adapted to be in tune with the mandates of the teaching hospitals.

 

Paragraph 1 of the template in issue states clearly that, the residents were appointed and admitted into the “residency training programme”. The phrase in quotation marks shows clearly that, the institution in issue is a school or training ground and not civil service dealing with administrative bureaucracies – see section 1 of the UNTHMBA, which spells out the purposes and functions of the teaching hospital. The teaching hospitals must have their nuances different from those of the civil service or non-educational or non-research institutions. That is perhaps, why in paragraph 3 of the template, the phrase “Public Service Guidelines’ is used and not ‘Public Service Rules’, as is the correct title of the subsidiary legislation. It indicates that, the Public Service Rules must be adapted into the activities and mandates of the teaching hospital in issue and not to be read to defeat its purpose. It means the teaching hospitals take these rules as guidelines in the true sense of the word ‘guidelines’, as general rules that must be adapted in tune with the peculiar situation of the institution applying them. So, these rules could not be read, to equate in all respects, residents with the trainees envisaged under Rules 020202(a) and 020203(a) of the Public Service Rules; as to do so, would defeat the object of section 1 of the UNTHMBA, a substantive legislation, and other like statutes – Amalgamated Trustees Limited v. Associated Discount House Limited (2007) LPELR-454 (SC) 72-73, E-C.

 

Even at that, I have shown that, Rule 020202(a) & (b) does not avail the claimants, in that, section 173(1) & (2) of the 1999 Constitution gives room for statutes to be enacted to control rights of persons in public service to pension. Even, if the residents are in public service, as I found earlier, they are not public employee, and if they are public employee [which is not conceded], they have not met the conditions precedent to be entitled to pension and gratuity. I hold that Rules 020202, 020203, 020204, 020302, 020303, 020207, 020208 of the Public Service Rules on their own alone or in conjunction with section 120 of the Pension Reform Act are statutes regulating the rights of persons in public service to pension and gratuity; and are lawful in excluding residents by virtue of section 173(1) & (2) of the 1999 Constitution; as the residents have not met the conditions precedent set down therein; and are therefore, not entitled to pension and gratuity.

 

Let me observe too, that, for a person to be bound in a contract, he must be privy to it. I cannot find that the 1st and 6th defendants were in the picture of the collective bargaining agreement sought to be enforced against them. It is an erroneous apprehension of the law to feel that, a separate department of government or a combination of some of them could just order another separate department to carry out a directive like robot. The reason for creation of each department is to give each a measure of independence and initiative for the benefit of the society at large, so that, where an error is in the offing through one ministry/department or a combination of ministries/departments, either by being blinded by partisanship or any other error, a department detached from the issue would be more sober in reflecting over it, and could detect and point out any error for reconciliation before implementation so that, the government would come out with a more robust and healthy result or policy on a particular issue. This is why we should appreciate the distinction of the executive council; created to deliberate on and enable the President take informed policy decisions of momentous nature. Executive council decisions are different from those arrived at in interdepartmental relations, in that, all the ministers are there in person with the hindsight of the advice of technocrats, to air their views and arrive at consensus at the guidance of the Hon. Attorney-General and Minister of justice on issues of law.

 

The attempt at creating policy shift in the emoluments of residents is of such a vibrating nature that, possibly could not be single-handedly carried out by a single department like Ministry of Health or a combination of few other ministries or departments. Facts are not placed before me that, before the enactment of the Pension Reform Act, pension and gratuity were paid to resident-trainees qua residency per se without more; meaning that, residents have never been paid pension and gratuity by the federal government in Nigeria. It is only executive council decisions and presidential directives [lawful ones] that are binding on all executive departments [ministries] alike on such issues of policy shifts, but not the decisions of some of the departments on another. How is the decision going to bind the 6th defendant [Attorney-General] and the 1st defendant [National Pension Commission] who are not parties to it?

 

How are the collective agreement in issue and the letters of concession going to be implemented in the face of the clear contradiction to the current stance of the law on the issue? So, the budget department was very right in pointing out the pitfalls of the collective bargaining agreement and similar letters; which made the others to see the light. In any case, I have held that, the collective bargaining agreement and the letters of like nature are not even lawful and cannot therefore override the clear provisions of Rules 020202(a) and 020203(a) of the Public Service Rules and section 173(1) & (2) of the 1999 Constitution with section 120(1) of the Pension Reform Act, regulating the right of persons in public service of the federation to pension and gratuity.

 

I observe that, I could not see any sign of the participation of the Hon. Attorney-General of the federation or His office in the processes leading to the collective bargaining agreement or that, his opinion was sought in writing the letters pontificating on law. This is a grave error and ought not be. The presence of the learned Attorney-General of the federation or His office or advice would have, perhaps, enabled the committee, which arrived at the collective bargaining agreement or writers of those letters of 12/02/2015 and 13/04/2016 making concession and giving directive, to have the opportunity of good articulation of the position of law on an issue dealing squarely with interpretation of terms of appointment and related statutes.

 

In view of the above, I hold that, the Public Service Rules do not confer any right to pension on residents as per the residency per se. The right that is conferred on residents is a right to prospective-retroactive pension and gratuity contingent on successful completion of the residency programme and securing public service employment within 6 months thereof. I have thus resolved all the questions that arose from the lone issue identified for this case in favour of the defendants and against the claimants. The lone issue is therefore resolved against the claimants and in favour of the defendants. That settles all the questions raised for determination. The case must therefore come to an end.

 

 

 

CONCLUSION

 

Having resolved the lone issue formulated for the case against the claimants and in favour of the defendants, it follows that; the claimants are not entitled to any of the reliefs claimed. The case must be dismissed as a fitting end. The case is therefore dismissed as totally lacking in merit. Nonetheless, I am inclined not to award cost against the claimants in view of the lackadaisical attitude of the defendants to the prosecution of the case. In fact, half of them did not file any process at all; and of those that filed, only one came to Court to adopt the process. In addition, it is commendable that, the residents took the civilized path of approaching the Court instead of resorting to self-help of civil unrest/strike, which would have, no doubt, disrupted the economy and endangered the lives and health of the people. I will therefore not grant cost against the claimants for the above reasons.

 

The above is the judgment of this Court in this suit. Judgment is entered accordingly.

 

 

 

…………………………..

 

HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE

 

Presiding JUDGE

 

ENUGU DIVISION

 

NATIONAL INDUSTRIAL COURT OF NIGERIA

 

PROFILE OF THE PRESIDING JUDGE

Hon. Justice Oluwakayode Ojo AROWOSEGBE was appointed a judge of the National Industrial Court of Nigeria [NICN] on July 10, 2017. His Lordship hails from Arigidi-Akoko, Ondo State. He had his primary education at the Saint Paul’s Anglican Primary School, Arigidi-Akoko from 1974–1979, secondary education at Methodist High School, Owo [1979–1980] and Akoko Anglican Grammar School, Arigidi-Akoko [1980–1984]. His Lordship had BA (Hons) in English Studies from the then Ondo State University, Ado-Ekiti [now University of Ado-Ekiti] in 1990, LLB (Hons) and LLM Laws from the prestigious Obafemi Awolowo University, Ile-Ife in 1995 and 2008 respectively. His Lordship had BL (Hons) Laws from the Nigerian Law School, Lagos in 1996 and was subsequently called to the Nigerian Bar the same year. His Lordship began his legal career with the Ondo State Ministry of Justice in 1998 as Senior Legal Officer and rose to the post of Deputy-Director of Public Prosecutions before transferring His service to the NICN in 2011. His Lordship rose to the rank of Deputy Chief Registrar at NICN and was the Head of the Abuja Division from 2013–2017, and doubled as Research Assistant to the Hon. President of the NICN from 2011 until elevated to the Bench of the NICN in 2017. In this capacity, His Lordship drafted judgments and papers for vetting, and wrote legal advice. His Lordship is a prolific legal researcher and writer, with many publications in reputable local and international journals, experienced trial Counsel, Court Administrator, ADR practitioner and Chartered Mediator and Conciliator with ChMC certification from the ICMC, Nigeria. His Lordship has equally been an examiner on law and interviewer to the Federal Judicial Service Commission, and also had stints as part-time lecturer of Law in several institutions of higher learning. His Lordship was appointed the coordinator of the North-Central Zone for the ADR Centre of the NICN in 2015. His Lordship has undergone trainings in Court Administration, administration of Justice and ADR practice in some of the most prestigious institutions in the world. His Lordship has likewise had considerable cognate experience, trainings and qualifications in employment and labour relations with certifications from some of the most renowned institutions locally and abroad. His Lordship has also had solid experience in other areas of law, like: drafting legislations and contracts, and writing legal advice and opinions. His Lordship has also had quality experience in Election Petition Litigations, and has also served in several panels. His Lordship is highly computer-literate, works efficiently without supervision, and works well in team and under pressure. His Lordship is married with children. Justice Arowosegbe is the Presiding Judge, Enugu Judicial Division of the Court.

 

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