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REPRESENTATIONS 1. ADUOJO ABAH Esq., with RILWAN OKPANACHI Esq., for the Claimant. 2. M. M. DIKWA Esq., with A. A. BABA(MISS) for the Defendant. J U D G M E N T This suit was instituted by way of General Form of Complaint dated 24th November, 2014 and filed same day by the Claimant asking for the following reliefs: A DECLARATION that the portions of the Defendant’s Condition of Service 2011 which abrogate the continued employment of the Claimants on the ground that possession of Bachelor Degree or Higher National Diploma as the minimum qualification for any staff to remain in the employment of the Defendant as null and void to the extent that it derogates and offends Section 32 (3) of National Identity Management Commission Act, 2007. A DECLARATION that the employment of the Claimants is regulated by the NIMC Act and the extant Public Service Rules and not Conditions of Service of National Identity Management Commission, 2011. AN ORDER nullifying those portions of Condition of Service of National Identity Management Commission, 2011 particularly item 4.1 and any other item of the Conditions of Service which derogates from Section 32 (3) of National Identity Management Commission Act, 2007 as it relates to the employment of the Claimants with the Defendant. A DECLARATION that the Defendant cannot terminate the employment of the Claimants without strictly complying with the Labour Act, Trade Unions Act, Trade Disputes Act, NIMC Act and Public Service Rules. AN ORDER restraining the Defendant from terminating the employment of the Claimants on grounds that they do not possess University degrees or Higher National Diploma. N1,000,000.00 as cost of this action SUMMARY OF STATEMENT OF FACTS The Claimants allege that they used to be in the employment of Federal Ministry of Interior in the Department of National Civic Registration (DNCR) until, pursuant to the establishment of the National Identity Management Commission in 2007, their services were transferred to National Identity Management Commission and they were absolved accordingly in 2009. That sometime in 2011 the Defendant issued a condition of service which was not only in flagrant violation of the protection enjoined under Section 32 (3) of the NIMC Act but also unfavourable to Claimants. The Claimants are now apprehensive that the said conditions of services may lead to the termination of the Claimants employment by Defendant. SUMMARY OF STATEMENT OF DEFENCE The Defendant, while denying Claimant’s Statement of fact, stated that by virtue of Section 8 and 9 of NIMC Act, 2007the Defendant has the power to appoint, promote and discipline any staff of the Commission. It is in exercise of this power that the Defendant Governing Board approved, in 2012, a minimum educational qualification of HND or first degree for its employee. That the Claimants were relieved of their job on ground of redundancy after all the necessary negotiations had been finalized between the Claimants and the Defendant. SUMMARY OF CLAIMANTS’REPLY TO DEFENDANT’S STATEMENT OF DEFENCE Claimants allege that it was the Defendant that freely sought for the transfer of employment of the Claimants and was fully aware of their qualification at the time of the transfer of employment. That the subsequent requirement of HND or First Degree cannot apply to the Claimants who were employees before the Conditions of Service were made. Moreso, Claimants herein whose rights are subject of this suit are still in the employment of the Defendant and are not affected by any redundancy declared in 2012. Consequently, they have continued to work in the Defendant’s employment. That it was sometime in November, 2014, after the institution of this suit and an order has been sought and granted restraining Defendant from terminating the employment of the Claimants that Defendant restrained Claimants from entering its premises and subsequently, Claimants started receiving money in their bank accounts as severance benefits in disobedience to the order of the Court and without any letter of termination of appointment. After issues have been joined by parties to this suit, hearing commenced on 15th December, 2014 to which the Claimant called their witnesses, one SANNI INAH and ISA AHMED through whom they tendered their exhibits. Thereafter, Claimants closed their case. On their part, Defendant opened their case on 9th November, 2015 by calling their sole witness, one AYO OLORUNFEMI through whom they tendered all their exhibits. Thereafter, Defendant closed their case. DEFENDANT’S FINAL WRITTEN ADDRESS In Defendant’s final written address, Defendant formulated two (2) issues for determination, to wit: Whether or not the Redundancy declared by the Defendant has fulfilled the requirement of the law i.e. Section 20 of the Labour Act, NIMC Act 2007 and the Public Service Rules 2008. Whether or not based on the evidence adduced by the Claimant, they are entitled to all the reliefs sought. ARGUMENT ON ISSUE ONE Learned Counsel to Defendant submits that when an organization declares redundancy, it must abide by the extant Labour Act of the country. He refers Court to Section 20 of the Labour Act CAP Li LFN 2004which provides as follows: “Sub. (1) In the event of redundancy — a. The Employer shall inform the trade Unions or Workers representative concerned of the reason for and the extent of the anticipated redundancy; b. The principle of the “Last In First Out”“LIFO” shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relative merit including skill, ability and reliability; and c. The employer shall use his best endeavors to negotiate redundancy payment to any discharged worker who are protected by regulations made under sub section (2) of this section” That Defendant adhered to the foregoing conditions. He refers Court to Exhibit H 2, Exhibit H1,3,4, 5, 7, & 8. Learned Counsel also refers Court to the cases of HOTEL AND PERSONNEL SERVICE SENIOR STAFF ASSOCIATION V. OWENAHOTEL LTD AKURE (2005) 3 NLLR (PT 7)and OSU V. NIGERIAN RAILWAY COPORATION (1978) 10-12 CCHCJ 326,330on the requirements and legality of redundancy. Learned Counsel argues further that Claimants do not have the necessary educational qualification to keep them on the job and Claimants cannot hide under the umbrella of LIFO when they are not better in the qualification required. While referring Court to Section 8 of the NIMC Act 2007, Learned Counsel posited that based on the provision above, Defendant has the power to promote, dismiss, terminate and discipline any of its staff. That it was based on this that Defendant’s Board approved the Conditions of Service 2011. That besides Section 8 of the NIMC Act, 2007,Section 3 Rules 160201 of the Public Service Rules 2008 Edition vests the powers relating to appointment, promotion and discipline of Staff on the Board of any parastatal of the Federal Government; Section 5, Rules 160501 and 160502 of the Public Service Rules vests the powers to exercise control over officers in parastatal of Government on the supervisory Boards. That the moment Claimants accepted their offer of employment, they bound themselves to the rules and regulations of Defendant. Therefore, Claimants are subject to the Conditions of Service 2011 which provides a minimum educational qualification of HND or First Degree as the suitable qualification to work in its employment.Claimants having fallen short of the said minimum educational qualification and having also been caught by the redundancy declared by Defendant coupled with the fact that their severance allowances have been paid, Claimants should be deemed to have accepted their fate and should not be allowed to blow hot and cold at the same time. ON ISSUE TWO Learned Counsel to Defendant submits that Claimants have not proved their Claims to be entitled to the reliefs being sought from this Honorable Court. That the law is trite that he who asserts must prove and the onus is on the Claimants to prove, through credible evidence, the claims before the court and they have woefully failed to discharge the onus placed on them. He refers the court to Section 131, 132 and 133 of the Evidence Act; ALAHAJI ISAH T.SOKWO V. JOSEPH DAKUKPONGBO & 3 ORS. (2008) 7 NWLR (PT 1086) PAGE 342 AT 362 PARA D-F On the issue of court order restraining the Defendant, Learned Counsel submits that it only exists in the imagination of the Claimants as it was not served on the Defendant or pleaded before this court. Furthermore, that though it was claimed to be in the court record, it does not affect the Defendant as it had already taken its decision before the Court order. Learned Counsel therefore urged the Court to dismiss the suit in its entirety for want of reasonable cause of action. CLAIMANTS’ FINAL WRITTEN ADDRESS In Claimants’ final written address, Learned Counsel on behalf of Claimants formulated three (3) issues for determination, to wit: Whether in the circumstances of this case, the provision of item 4.1 of the Defendant’s condition of service does not derogate from the provision of Section 32(3) of the NIMC Act and therefore inapplicable to the members of the Claimant constituted in this Suit? Whether in the circumstances of this case, the Defendant has lawfully terminated the employment of the Claimant’s members constituted in this suit? Whether the Claimant has sufficiently proved its case to be entitled to the reliefs sought in the Complaint and Statement of Facts in this suit? ARGUMENT ON ISSUE ONE Learned Counsel submits that this issue relates to the interpretation of Section 32(3) of the National Identity Management Commission Act, 2007 and the validity of the provisions of item 4.1 of the Defendant’s Condition of Service (Exhibit D4) as it relates to the employment of the Claimants constituted in this suit. Section 32 (3) of National Identity Management Commission Act, 2007 provides thus: As from the commencement of this Act, any director, employee, staff or officer who immediately before the commencement of this Act holds office in the Department of National Civic Registration (hereinafter referred to as the “Department”) existing before the commencement of this Act, and who have been made an offer by the Commission shall be deemed to have been transferred to the Commission established under this Act on terms and conditions no less favourable than those obtaining immediately before the commencement of this Act; and service or employment in the Department shall be deemed to be service or employment in the commission established under this Act and any director, employee, staff or officer to whom the Commission did not make an offer shall be redeployed by the Head of the Civil Service of the Federation(Underlining by Claimants’ Counsel) That Item 4.1 of the said Condition of Service provides for Bachelors Degree or Higher National Diploma plus National Youth Service or exemption as the minimum entry level for employment by the Defendant. That the fundamental issue for resolution is the determination of the provisions of item 4.1 of the condition of service of the Defendant in the light of Section 32 (3) of the National Identity Management Commission which provides, inter alia, for terms and conditions no “less favourable”. Learned Counsel, while outlining that the minimum entry qualification under the Public Service Rules is First School leaving Certificate and its equivalent; minimum educational qualification to be a Senator or President of the Federal Republic of Nigeria is First School Leaving Certificate or its equivalent by virtue of Section 65 (2) and 131(d) of the Constitution of the Federal Republic of Nigeria, 1999, argues that the provision of Bachelor degree or Higher National Diploma in the Defendant’s Condition of Service as it relates to the Claimants in this suit is less favourable than the Condition of Service under the Public Service Rules which regulated their employment immediately before their transfer to the Defendant. He therefore urged the Court to so hold Furthermore, Claimants constituted in this suit are transferred employees and not new employees who are subject to entry qualification because they had entered the employment of the Defendant long before the condition for minimum qualification was made in 2011. Their employment predates the said condition of service. All the Claimant’s members constituted in this suit met the minimum entry qualification under the Public Service Rules which required possession of school Certificate before they were employed in the Department of National Civic Registration. That the intention of the law maker when Section 32(3) was being enacted was to protect the employment of employees of the DNCR. The Legislature foresaw that a day like this may come that the employment may be in danger and made elaborate and clear provision to save the workers from such decimation. The legislators have done their part in protecting the Claimant’s members, Learned Counsel therefore invites the Court to do same by giving effect to the protection enshrined in Section 32(3) of the NIMC Act. He therefore urged the Court to resolve issue 1 in favour of the Claimants. ON ISSUE TWO Learned Counsel submits that this issue touches on the purported termination of the employment of the Claimants constituted in this suit during the pendency of this suit and the propriety of termination of employment without service of letter of termination on the employees. That sometime in September, 2014 DW1 invited the Claimants to a meeting in his office and informed them that the Management of the Defendant had concluded plans to terminate their employment because they do not have bachelor degree or Higher National Diploma as provided in Item 4. 1of Defendant’s Condition of Service, 2011. Thereafter, Claimants tried frantically to get the Defendant to a round table to discuss the way forward to no avail. Consequently, Claimants approached this Honourable Court vide a Complaint dated 24th November, 2014 and filed same day. The Complaint and other originating processes were served on the Defendant accordingly. The matter came up before this Honourable Court for the hearing of an application for interim injunction seeking to restrain the Defendant from taking any step towards terminating the employment of the Claimant’s members, this Honourable Court declined hearing the Motion Exparte and ordered that parties maintain status quo ante pending the hearing of the Motion on Notice for the interlocutory injunction. The bailiff of this Honourable Court served the said order of this Honourable Court on the Defendant. Evidence of service of the order is in the record of this Honourable Court. The said evidence/proof of service carries received stamp of the Defendant’s Legal Services Department with the date of receipt boldly imprinted on the stamp. The order is listed as no. 6 on the schedule of proof of service. The schedule of proof is at page 246 of the record of this Honourable Court as indicated on the Certified True Copy obtained from this Honourable Court. Despite the notice of the said order which restrained the Defendant from taking any step in relation to the employment, the Defendant locked out the Claimants constituted in this suit and surreptitiously paid some monies into their bank accounts tagging same as severance payment in flagrant disobedience to the subsisting order of this Honourable Court. That before 14th November, 2014 when the Claimants were denied access/prevented from entering their offices, they were not served with any termination letters and up till date no such communication was served on the Claimants. Claimants were therefore surprised when the Defendant in their frantic efforts to defend the suit at all cost conjured documents including letters which were admitted in evidence as Exhibit H6 (Letters titled- “Re: Declaration of Redundancy in the National Identity Management Commission-Disengagement from Service” dated 3/11/2014 to Claimants. That the said letters were never served on the Claimants and it was never proved otherwise. There is therefore no scintilla of evidence before this Honourable Court that the employment of the Claimants have been terminated/disengaged by reason of redundancy. The employment remains valid and subsisting. He urged the Court to so hold. On Defendant’s submission that it paid severance package to the Claimants and as a result, the workers are foreclosed from challenging their termination, Learned Counsel submits that this argument is misconceived as the purported transfer to Claimants account on 14th November, 2014 in the face of a subsisting order of this Honourable Court that parties maintain status quo was primarily intended to embarrass this Honourable Court and a demonstration of the Defendant’s disdain for this Court. The Defendant by the action showed clearly that it has no respect for the institution of justice. It is the imagination of the Defendant that it can build its case by making the transfer to overreach this suit having been aware that payment of severance package forecloses an employee to challenge his termination. That the order to maintain status quo was served on the Defendant on 10th November, 2014 and DW1 acknowledged this fact under cross examination. Furthermore, Defendant transferred monies into Claimants’ salaries account without their consent. Defendant also ensured that the Claimants do not have access to its premises for the purpose of refund and yet Defendant turned around to build a defence on a Claim that was instituted long before Defendant contemplated making the transfer. The transfer was orchestrated to overreach this suit and same is reprehensible, is mischievous, desperate, dishonourable, wicked, unfair and inequitable. He refers Court toNational Inland Waterways Authority V. SPDC Nigeria Ltd (2008) 13 NWLR (Pt. 1103) 48; (2008) LPELR- 1963 Pp. 19-20 Paras. F-G where the Supreme Court per Niki Tobi JSC (as he then was) where the Court held: Overreach means to circumvent, outwit or get the better of something by cunning or artifice. It also means to defeat ones object by going too far. It connotes smartness on the part of a party in the litigation to defeat his opponent by thoroughly organized plan to frustrate the intention and the intendment of the adverse party. An overreaching conduct is an inequitable conduct because it is not fair and just. Learned Counsel also posited that the act of transferring purported severance package to the bank accounts of Claimants during the subsistence of the order of this Honourable Court dated 10th November, 2014 smacks of disobedience of order of this Honourable Court. He refers Court to AkinpeluV. Adegbore & Ors. (2008) 10 NWLR (Pt. 1096)531 S.C; (2008) LPELR- 354 (SC) P.30 Paras. A-B;Fame Publications Ltd V. Encomium Ventures Ltd & Ors.(200)8 NWLR (Pt. 667)105; (2000) LPELR-6833 (CA) P.9 Paras. A-E Learned Counsel therefore urged Court to resolve issue 2 in favour of the Claimant. ON ISSUE THREE Learned Counsel submits that this issue relates to the discharge of burden of proof required of the Claimants to be entitled to the reliefs sought in the Complaint and Statement of Facts in this suit. It is the case of the Claimants that from the face of the pleading of the Claimants as set out in the Claim of the Claimant in their Statement of Claim inclusive of witnesses’ testimonies and all the evidence adduced in this case, the Claimants have discharged the burden of proof placed on them in this suit. He refers Court to Aro V. Aro & Anor. (2000) LPELR- 6782 (CA) Pp.29-30, Paras. G-A where it was held thus: It is trite that the burden is on the plaintiff to prove his case. To discharge the burden, the plaintiff has to call evidence to prove the facts pleaded. This is because mere averment in a pleading without proof of the facts pleaded in a statement of claim is no proof of the stated facts. This is more so, when the facts pleaded are not admitted in the statement of defence. See Adegbite V. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578. He therefore urged the Court to resolve this issue in Claimants’ favour and grant all the reliefs of the Claimants in this suit in the interest of justice. COURT Having gone through the Claimants’ Claim, Defendant’s defence, evidence adduced by both parties and their written addresses, this Court has distilled a sole issue for the just determination of this suit, to wit: Whether given the circumstances, Claimants are entitled to the reliefs sought in this suit. Having distilled the sole issue above, this Court wishes to state that in the course of determining the issue distilled, it will also address issues raised by Counsel to both the Claimant and the Defendant where necessary. For starters, this Court wishes to state that this suit was consolidated,at the instance of the Claimants’ Counsel,with Suit No:NICN/ABJ/319/2014 by order of this Court. Thereafter, hearing, calling of witnesses, tendering of evidence to the adoption of written addresses took place concomitantly. However, this does not rob this suit of its distinctiveness and independence. Thus, there is need to determine it separately. See Ogidi & Ors V. Okoli & Ors (2014) LPELR 22925. See also NASR V. Complete Home Ent. (Nig)Ltd (1977)5SC (Reprint) That said, the Court shall proceed to determine this suit accordingly. From the face of Claimants’ Statement of facts, Claimants still see themselves in the employment of the Defendant whereas from the face of Defendant’s statement of Defence, Claimants have been declared redundant. It is trite that pleadings do not take the place of evidence. This is so because pleadings are not tantamount to evidence. See Skye Bank V. Akinpelu (2010)9NWLR (Pt.1198)179. Therefore, pleadings must be supported by evidence. From the foregoing, this Court can only look at the evidence before it to verify the Claimants’ Statement of Claim as well as Defendant Statement of Defence. On the face of the Complaint, this suit was filed on 24th November, 2014 whereas the letter purportedly placing Claimants on redundancy (see Exhibit H6) is dated 3rd November, 2014, twenty one days before the institution of this suit. Claimant on their part contended that they never received this letter and that they saw this letter for the first time when Defendant filed their Counter-affidavit to a motion which sought an interlocutory order of the Court restraining the Defendant from terminating the employment of the Claimants. This in itself throws up the issues of when a letter becomes effective whether it is the date on the letter, the date it was received as well as whether the Court can enforce a letter which was never received by the recipient it was addressed to. It is trite that a letter or notice becomes effective the date it was received and not the date on the notice or letter. Moreso, a letter or notice which was never received by the recipient it was meant for is not valid and cannot be enforced by the Court. Such a letter best exists in the realm of the maker and not the realm of the recipient. I have taken a careful look at the documents tendered by the Defendant and admitted as Exhibit H6, the Court does not see any proof acknowledging receipt of the letters addressed to the Claimants placing them on redundancy. Therefore, this Court finds and I so hold that the documents tendered and admitted as Exhibit H6 only exist in the realm of the Defendant and not the Claimants. As such, this Court cannot enforce same against the Claimants. See Ikom Local Govt V. Chenlex Group Ltd (2011) LPELR where the Court held that if service of a process is necessary or required and there is no concrete or irrefutable proof that such service has been effected on the adverse party, any decision or judgment emanating from such proceeding is a nullity. Therefore, any import or decision arising from Exhibit H6, inasmuch as there is no proof that it was received by Claimants is null and void, and I so hold Furthermore, from the evidence before this Honourable Court, the Defendant expressed intention to declare redundancy sometime in 2012. There is no evidence that it placed the Claimant on redundancy in 2012. It is also in evidence that stemming from Item 4.1 NIMC Conditions of Service 2011, a provision which provides a minimum educational qualification of HND or first degree as criteria for employment in NIMC, negotiation ensued between Claimants and Defendant. See Exhibits H1, H2, H3, H4, H5, H8 and Exhibit D3. On the provision of Item 4.1 NIMC Conditions of Service, 2011 as it relates to Section 32 (3) NIMC Act, 2007, this Honourable Court wishes to state that the role of a subsidiary legislation which derives its power from a parent legislation is not to override the parent legislation. The role of a subsidiary legislation is to compliment a parent legislation not to conflict or contradict it. See Din V. AGF (1988) 4NWLR (Pt.87)147; Olarenwaju V. Oyeyemi (2001) 2NWLR (Pt.697) 229.The parent legislation herein is the NIMC Act, 2007 whereas the subsidiary legislation is the NIMC Conditions of Service, 2011. Section 32 (3) NIMC Act, 2007provides as follows: As from the commencement of this Act, any director, employee, staff or officer who immediately before commencement of this Act holds office in the Department of National Civic Registration (hereinafter referred to as the “Department”) existing before the commencement of this Act, and who have been made an offer by the Commission shall be deemed to have been transferred to the Commission established under this Act on terms and condition no less favourable than the those obtaining immediately before the commencement of this Act; and service or employment in the Department shall be deemed to be service or employment in the Commission established under this Act, and any director, employee, staff or officer to whom the Commission did not make an offer shall be redeployed by the by the Head of the Civil Service of the Federation. On the other hand, Item 4.1of NIMC Conditions of Service provides, inter alia, for a minimum educational qualification of Higher National Diploma or Bachelor Degree to be eligible for employment in the National Identity Management Commission. This variation is not only inimical and detrimental to those who came into the employment of Defendant with lesser qualification but also contrary to the spirit of Section 32 (3) of the National Identity Management Commission Act, 2007 which provides that the terms and conditions of the latter employment of the Claimants should not be less favourable than the one they enjoyed in their formal employment. In interpreting a legislation, the dictum of Per Pats-Acholonu JSC (of Blessed Memory) in Okotie-Eboh V. Manager (2004) 18NWLR (Pt.905) 242 @256 is apt when he held, inter alia: An interpretation that seeks to emasculate should be avoided as it would do disservice to the citizenry and confine everyone to a legal container or labyrinth from which this Court may not easily extricate itself……….. I believe that though justice is blind, it is nevertheless rooted in the nature of society and therefore should avoid constructions that could cause chaos and disenchantment. Justice must be applied in a way it embraces and optimizes social engineering that is for the welfare of society. Enlightened society should expect a highly refined and civilized justice that reflects the tune of time. In addition to the foregoing, it has always been the attitude of the Court to hold that laws should not be retroactive in nature. That the extant law at the time an act or omission was made should be the law that should apply to the party who made the act or omission and not the law which came into existence after the act or omission. Therefore, being that Item 4.1 NIMC Conditions of Service 2011 came into existence after the employment of the Claimants, same cannot apply to the Claimant, and I so hold. At best, it can only apply to new comers, that is, new employees, and not those who are already in the employment and have gathered experience in the course of their employment. Therefore, Item 4.1 NIMC Conditions of Service 2011 inasmuch as it runs contrary to the spirit of Section 32 (3) of the National Identity Management Commission Act, 2007 is null and void to the extent to which it applies to the Claimants, and I so hold. For all that have been said above, the Claimant suit succeeds as follows: Claim 1 succeeds Claim 2 Succeeds Claim 3 succeeds Claim 4 succeeds Claim 5 succeeds Claim 6 fails to the extent that parties should bear the cost of this suit respectively. Flowing from the foregoing, the Court hereby declares/orders as follows: A DECLARATION that the portions of the Defendant’s Condition of Service 2011 which abrogate the continued employment of the Claimant’s members on the ground that possession of Bachelor degree or Higher National Diploma as the minimum qualification for any staff to remain in the employment of the Defendant as null and void to the extent that it derogates and offends Section 32 (3) of National Identity Management Commission Act, 2007. A DECLARATION that the employment of the Claimants is regulated by the NIMC Act and the extant Public Service Rules and not Conditions of Service of National Identity Management Commission, 2011. AN ORDER nullifying those portions of Condition of Service of National Identity Management Commission, 2011 particularly item 4.1 and any other item of the Conditions of Service which derogates from Section 32 (3) of National Identity Management Commission Act, 2007 as it relates to the employment of the Claimants with the Defendant. A DECLARATION that the Defendant cannot terminate the employment of the Claimants without strictly complying with the Labour Act, Trade Unions Act, Trade Disputes Act, NIMC Act and Public Service Rules. AN ORDER restraining the Defendant from terminating the employment of the Claimants on grounds that they do not posses University degrees or Higher National Diploma. Judgment is entered accordingly ………………………………………. HON. JUSTICE M. N. ESOWE