The Presiding Judge, Enugu Judicial Division of the National Industrial Court, Hon. Justice Oluwakayode Arowosegbe has declared that Engr Luke Mmamel is entitled to his pension rights as a confirmed Director of Works Services of Enugu Institute of Management and Technology.
The Court ordered Enugu Institute of Management and Technology to pay Engr. Luke all his legitimate arrears caused by the 12 months shortfall in payment of salary/emoluments, currently estimated at N7,510.338.72 (Seven Million Five Hundred and Ten Thousand Three Hundred and Thirty-Eight Naira, Seventy-Two Kobo).
Justice Arowosegbe nullified the action of Enugu Institute of Management and Technology and declared that the sudden demotion of Engr. Luke and reduction of his salary and the consequential intention to base his pension on the downgraded rank amounts to constructive discharge which is against the Constitution and the ILO Convention.
Justice Arowosegbe stated that Enugu Institute of Management and Technology and the State Attorney General cannot take advantage of the illegal demotion of Engr Luke to argue that Engr Luke did not retire as Director of Works Services but as Chief Engineer, that to allow such cruel effect of the illegal demotion is to allow the Institute and the State Government to take undue advantage of their wrongdoing.
From facts, the claimant- Engr Luke Mmamel had pleaded that he was employed in 1983 as lecturer and that; he rose to the position of Senior Lecturer in 1991 but was made Acting Director of Works and Services in that same 1991, as a result of state creation and that; when the substantive position of Director of Works and Services was advertised in 1995, he applied and was appointed Chief Engineer on GL 13/8 October 18, 1995.
Engr Luke pleaded he remained in this position till 1997 when he applied for confirmation of his position as substantive DWS, which was approved at GL 14/8 Sep 10, 1997. He pleaded that, however, in 1998 a circular dated Nov 10, 1998, made the DWS principal officer of the Institute of Management and Technology, Enugu [IMT], and suddenly, without any accusation or fault, by a letter dated July 01, 2016, the Council directed him to handover to another officer and he did.
Engr Luke pleaded he observed that his salary was reduced when he received his 2018 June salary, and pleaded that he had put in 37 years in service and was entitled to pension, which would now be based on the reduced salary, and all efforts to get it corrected were to no avail.
In defence, the 1st defendant- Institute of Management and Technology Enugu counterclaimed that the Director of Works Services is a tenured appointment by IMT Law and that; the IMT had explained to Engr Luke in a letter, the reason for the underpayment, which was because of his redeployment to his former position as Chief Engineer, and further that the computation of Engr Luke’s pension is based on his career position and not as DWS, sought for N500,000 (Five Hundred Thousand Naira) exemplary damages.
The 2nd defendant- Enugu State Attorney General counterpleaded that Engr Luke’s tenure lapsed in 2016 by virtue of the IMT Law and that; all principal officers who served up their tenures were redeployed like Engr Luke, and urged the Court to strike out the suit in its entirety.
In opposition, learned counsel averred that the claimant’s conversion from Chief Engineer to Director of Works Services was sequel to the recommendation of the Appointment and Promotion Committee. The learned counsel argued that, the reason for strict protection of the rights of employees, whose employments enjoy statutory flavour is for security of tenure and that his client was removed in total breach of the rules of natural justice.
Delivering judgment after careful evaluation of the submissions of both parties, the presiding Judge, Justice Oluwakayode Arowosegbe held that the Institute of Management and Technology Enugu tendered no document to show that the position of Director of Works Services was tenured at any time, and Engr Luke has shown clearly that his position as Director of Works, though, that of a principal officer, is nonetheless not tenured.
The Court stated that the IMT policy to make any office in the admin, technical or any department tenure must be contained in a lawful instrument and, must be expressly made part of the contract at the inception with the tenure clearly stated in the instrument of appointment to escape being damnified.
Justice Arowosegbe reasoned that this would allow the prospective gunners for such appointive tenured positions to reflect on the consequences of their career choices and plan ahead and not to be suddenly thrown to the middle of the sea without foreknowledge, which would amount to bad faith on the part of the employer.
Justice Arowosegbe reiterated that the Court would definitely not allow a unilateral alteration of a contract of employment to take retroactive effects after the employee had acted on it to his detriment, that such unconscionable conduct is a breach of good faith in contracts and, would amount to a fantastical example of unfair labour practices forbidden by the Constitution and the National Industrial Court Act.
The Court further held that anything short of amendment of the IMT Law to directly and specifically incorporate the Director of Works Services as tenured, as done for the others, or to give the Council or the Governor the right to do so, might be a mirage for being in conflict with the IMT Law, a substantive statute that cannot be varied by subsidiary legislation.
“It is the defendants’ duty to explain how and why Mr. Ezeh [Exhibit C5] had his pension based on his salary as Bursar, a supposedly principal office by the defendants’ standards, and why the claimant should not enjoy the same fate when the claimant’s position is admittedly that of a principal officer too. That would amount to discriminatory employment practice forbidden by S. 254C-(1)(f)-(h)&(2) of the Constitution, SS. 13&15 of the NICA; the ILO C111 – Discrimination (Employment and Occupation) Convention, 1958, which Nigeria ratified since Oct 02, 2002, and, which is fully enforceable in Nigeria by virtue of S. 254C-(2) of the Constitution.
“In reiterate that I granted all the reliefs claimed without exception in full and in addition, granted, cost of N1Million [One Million Naira] only and that, the decision takes effect immediately. I equally granted 10% simple interest per annum on all the judgment sums granted from the date of this judgment until fully paid.” Justice Arowosegbe ruled.
The Court granted an injunction restraining the Institute of Management and Technology Enugu from any further payment of the salary of Engr Luke on the reduced amount necessitating the action.