The Rector, Kwara State Polytechnic & Ors. V. Mr. Ola Adefila & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

AGUBE, J.C.A.

This is an appeal against part of the judgment of the High Court of Kwara State sitting at the Ilorin judicial division in suit No. KWS/53/2004, per Gbadeyan J. which judgment was delivered on the 30th day of November 2004.

The 1st to 3rd respondents had by way of originating summons sought for some declaratory and injunctive reliefs and for purposes of this appeal the relevant reliefs are hereunder reproduced as follows:

“2. A Declaration that the defendants whether acting jointly or independently cannot reduce the retirement age of Academic Staff of Kwara State Polytechnic from 65 years to 60 years or at all.

8. An Order of perpetual injunction restraining the defendants both jointly and/or severally from:

(a) Reducing the retirement age of Academic Staff of Kwara State Polytechnic from 65 years to 60 years except as may otherwise be directed by the National Board for Technical Education.”

Pleadings were exchanged in the lower court and based on the affidavits and counter-affidavits of the parties together with the bundle of documentary exhibits annexed thereto, the learned Judge heard the respective counsel for the parties.

In a well considered ruling, his Lordship as per the reliefs above reproduced held inter-alia:

“… and declare 65 years as retirement age for academic staff of Kwara State Polytechnic and cannot be reduced by the defendants.

“I hereby grant perpetual injunction restraining the defendants both jointly and/or severally from reducing the retirement age of academic staff of Kwara State Polytechnic from 65 years to 60 years except as may be otherwise directed by the National Board for Technical Education.”

Aggrieved by the above decision the defendants filed a joint notice and five (5) grounds of appeal.

For purposes of clarity I am minded to reproduce or set down the grounds stripped of their particulars thus:

“GROUND 1: The learned trial Judge erred in law and misdirected himself and came to a wrong conclusion when he declared 65 years as the retirement age for the academic staff of Kwara State Polytechnic and that it cannot be reduced by defendants.

GROUND 2: The learned trial Judge erred in law and misdirected himself when he said as follows:

“I hereby grant perpetual injunction restraining the defendants both jointly and/or severally from reducing the retirement age of academic staff of Kwara State Polytechnic from 65 years to 60 years except as may be otherwise directed by the National Board for Technical Education.”

GROUND 3: The learned trial Judge erred in law and misdirected himself and came to a wrong decision when he held as follows:

“The Polytechnic has taken clear steps to show that it is unequivocally committed to the agreement. The defendants cannot be allowed to approbate and reprobate at the same time. The defendants are therefore estopped and the agreement regarding 65 years retiring age for academic staff has become crystallized, legally binding and enforceable see Wilson v. Oshin (2000) 9 NWLR (Pt. 673) 442; (2001) 6 SCNJ 371 at 390 – 391 to show that the right has vested in the plaintiffs and cannot be arbitrarily denied.”

GROUND 4: The lower court erred in law and shunned its sacred duty when it failed, refused, and/or neglected to dispassionately consider the arguments and/or submissions of the 1st – 4th defendants/appellants counsel on the issue of retirement age and make specific findings on the said arguments or submissions.

GROUND 5: The judgment of the lower court declaring 65 years as the retirement age for academic staff of Kwara State Polytechnic is against the weight of affidavit evidence before the lower court.”

Pursuant to the rules of this court, parties were ordered to file their written briefs which were accordingly exchanged and for the (1st – 4th) appellants three issues were distilled out as arising from the grounds of appeal while the learned Attorney-General of Kwara State who should actually be properly described as counsel for the 5th appellant Formulated two issues:

The issues are as follows for the 1st – 4th respondents thus:

(1) Issue No.1. Whether the lower Court was right in relying on “exhibit ASUP 17” to declare 65 years as the retirement age for the academic staff of the 4th appellant when apparently exhibit ASUP 17 is not binding on the appellants (ground 1)

(2) Whether having regards to the facts and circumstances of the case the lower Court was right in declaring 65 years as the retirement age for the academic staff of the Kwara State Polytechnic (grounds 3, 4 and 5.)

(3) Whether the order of perpetual injunction restraining the appellants from reducing the retirement age of the academic staff of the Kwara State Polytechnic from 65 to 60 years except as may be otherwise directed by the National Board for Technical Education is proper. (Ground 2)

“Learned Attorney-General Kwara State/Counsel for 5th respondent.

“Issue 1: Whether the lower court was right in declaring 65 years as the retirement age of the academic staff of Kwara State Polytechnic.

“Issue 2: Whether the lower court was right in granting perpetual injunction restraining the appellant from reducing the retirement age of academic staff of Kware State Polytechnic from 65 years to 60 years”.

From my perusal of the grounds of appeal and the issues formulated, I am of the candid view that the only two issues that call for determination are as couched by learned counsel for the respondents and the Learned Attorney General for the 5th appellant and they agree with issues 1 and 3 of the learned counsel for the 1st to 4th appellants. Accordingly, I shall consider this appeal based on those two issues only.

Furthermore, it is also pertinent to note that apart from the prolix and verbose nature of the arguments of learned counsel for the 1st-4th appellant his arguments are basically the same with those of the Learned Attorney-General. I shall therefore attempt a summary of their arguments together.

On issue No.1 which is whether the court below erred in law and misdirected himself when he declared 65 years as the retirement age of academic staff of the Kwara State Polytechnic, counsel for the appellants had referred to pages 664 and 672 of the record of proceedings and quoted from the holding of the court submitting that by such holding the court based its decision at page 665 on exhibits ASUP 17 and 3 as forming an agreement by the Kwara State Government of 65 years as the retirement age for the Academic Staff.

They also expressed the view that exhibits ASUP 17, 13, 3 and 6 do not govern the contractual relationship between the appellants and the respondents and that at best they are collective agreements which do not bind the appellants. Counsel cited Chukwuma v. Shell Petroleum (1993) 4 NWLR (Pt.289) 512 at 543 per Ogundare, J.S.C to buttress the above submission adding further that in the case on appeal the letters of appointment of the respondents issued by the 4th appellant which the respondents accepted (exhibits P9, 10 and 11) and chapter 15.1 of exhibit ASUP 14 govern the employment relationship of the respondents and the appellants.

They contended that the respondents accepted the offer and appellants confirmed the appointment in writing but that exhibit ASUP 17 was not incorporated as it was made on the 26th of March, 1993 while exhibit P9 was made as at the 23rd November, 1995.

Furthermore, since none of the appellants was a party to exhibit ASUP 17, its contents cannot bind them nor vary the contents of exhibits P9 – P11 that contain the retirement age of 60 years instead of 65 years.

Referring further to the heading of exhibit ASUP 17 it was their further argument that it speaks for itself and that the 3rd appellant which is the only employer of the 1st – 3rd respondents is the only body to regulate or vary the terms and for conditions of employment of the respondents. For this submission reliance was placed on section 31 of the Kwara State Polytechnic Law, Cap. 120, Laws of Kwara State, 1994 which was brought to the attention of the lower court at page 334 of the record of proceedings.

The learned counsel for the 1st to 5th appellants maintained that for the contents of exhibit ASUP 17 to be valid, reliable, relevant and binding on the parties, the 3rd appellant must have approved same or must have been a party thereto. Therefore the trial court was wrong in upholding paragraph 26 of exhibit ASUP 17, they further submitted. Reliance was placed on the case of Thomas Chukwuma Makwe v. Chief Obanua Nwukor & Anor. (2001) 14 NWLR (Pt.733) 356, (2001) 7 SCNJ 87 at 96 per Iguh, J.S.C. on privity of contract in support of the above proposition of the Law.

In the alternative they called in aid the provisions of section 47 of the Trade Dispute Act, Cap. 432, LFN, 1990 to reiterate that at best exhibit ASUP 17, is a product of collective agreement made out of Trade Union pressure which is incapable of enforcement unless expressly and subsequently incorporated into the terms of the contract of service of the 1st and 3rd respondents with the appellants. Reliance was placed on the cases of Union Bank v. E. E. Edet (1993) 4 NWLR (Pt. 287) 304 Per Akintan, J.C.A (as he then was) and N.A.B. Ltd. v. Shuaibu (1991) 4 NWLR (Pt.188) 450 at 467 – 468 per Ndoma-Egba J.C.A. and Young v. Canadian Northern Railway Company (1931) AC 83 at 94 to explain the rationale behind the unenforceability of collective agreements unless incorporated into the terms and conditions of service of employees and to submit that from the authorities above cited the respondents had no locus approaching the court, for their remedy(ies) lay in either another negotiation or strike action.

It was further emphasized that neither the respondents nor their Union (ASUP) Kwara Polytechnic was a party to the said exhibit ASUP 17 but that if there could be any action at all it is the Joint Action Committee of Unions of Tertiary Institutions which was a party that can enforce the agreement and not the respondents.

Relying again on Makwe v. Nwukor supra they took a further view that even if the agreement was made for the benefits of the respondents, respondents could not enforce same and that the lower count came to an erroneous impression that exhibit ASUP 17 was not controverted when he heavily relied on it to declare the retirement age of 65 whereas the appellants controverted same in paragraph 36 of their counter affidavit at page 358 of the record of proceedings.

Still on the error committed by the lower court in its judgment the learned counsel for the appellants asserted as follows:

1. That the lower court ought to have looked only on exhibits P9 – P11 and exhibits ASUP 14 paragraph 15.1 and allow them to speak for themselves as the law appears sacrosanct that parties are bound by their written agreement freely entered and the courts cannot write or re-write the terms and conditions of the employment for the parties. Therefore the declaration of 65 years by the Court as the retirement age of the respondents is an affront on settled principles of law. For this submission, they cited Olatunde v. O.A. U. (1998) 5 NWLR (Pt.549) 178, (1998) 4 SCNJ 59 at 74; per Iguh, J.S.c. and U.B.N v. Ozigi (1994) 2 NWLR (Pt.176) 277; (1994) 3.S.C.N.J 42 at 55.
2. That section 31 of the Polytechnic law has not been amended from the unchallenged depositions in the appellants counter affidavits at pages 292-295 of the record of proceedings so as to warrant the Court below to hold that the retirement age had been amended to 65 years instead of 60 years and that since the Court below could not appreciate the case before it, this court should set aside the lower Court’s decision on the authorities of Adetigbe v. Ologunja (2000) 2 SCNJ (179) at 193 194; and Oyewale v. Oyesoro (1998) 2 NWLR (Pt. 539) at 679.
3. That exhibit ASUP 3, ought not to be read together with the letter. Referenced SU/3011/111/132 dated 12th of August, 1994 referred to in paragraph 1 of the said exhibit ASUP 3 because that letter emanated from the Federal Ministry of Education and Youth Development to Federal tertiary Institutions and not to states and that for the letter to be applicable to the terms and conditions of employment of the respondents regarding retirement age, it must be approved by the 3rd appellant.
4. On the issue of estoppel and vested right it was their contention that the case of Wilson v. Oshin (2000) 9 NWLR (Pt.673) 442; (2000) 6 SCNJ 371 and the principle therein were wrongly applied by the trial Judge and that if there is any right vesting on the respondents, it is the right to retire at age 60 as contained in conditions of service stipulated by the 3rd appellant in the letters of appointment, the Polytechnic Law, Cap. 120 and exhibit ASUP 14. He then urged the court to allow the appeal and resolve issue 1 in favour of the appellant.

Replying, the learned counsel for the 1st – 3rd respondents argued per contra submitting that the learned trial Judge dispassionately considered the relevant documents and the affidavits of the parties before hinging its judgment on exhibits ASUP 3 and 17.

Making references to some pages of the judgment and the record of proceedings he submitted that the court below after due consideration of the 1st – 4th respondents reply to the counter affidavits of the appellants held that the first plaintiff maintained that since 26th March, 1993, by a written agreement jointly signed by the parties the matter of retirement age had been irrevocably settled and that no staff had been retired at 60 years.

He contended further that the averments in paragraphs 3, 4, 5, 6 and 7 of the said plaintiffs reply affidavit were unchallenged by the appellants but were rather confirmed by exhibit ASUP 3, 4, 6, and 13 together with P1 tendered by the appellants. Thus according to counsel exhibit ASUP 3 is not just a mere means of passing information as canvassed by counsel for the appellant but that apart from confirming exhibit ASUP 4, 6, 13, 17 and 18 it amounts to admission by the appellants that since exhibit ASUP 17 was made in 1993 retirement age for academic staff of Kwara State Polytechnic is 65years.

The learned counsel referred us to section 75 of the Evidence Act and the cases of Adeye v.Adesanya (2001) 6 NWLR (Pt. 708) 1; (2001) 2 SCNJ 79 at 86-87, A.C.B. Ltd. v. Egbunike (1988) 4 NWLR (Pt. 88) 350 at 365; and Urdi v. Jacob Dada (1988) 6 NWLR (Pt.69) 237; (1988) 2 SCNJ 128 at 136 to submit that: facts admitted need no further proof.

It was further submitted that the only way the averments in the reply affidavit would have been controverted was for Pastor S.O. Salami (the Deputy Registrar Academics) to depose in his further counter affidavit of 12/7/04 the names of those staff retired at the age of 60 years since 1993 after exhibit ASUP 17 came into force.

Again counsel noted that when the management of the Kwara State Polytechnic attempted to retire the 3rd respondent at 60 years in 2002 through exhibit ASUP P1, it failed and the decision was reversed. Reference was made to the minutes in exhibit P1 adding that the 3rd respondents was deliberately made a party to this case filed on 19/4/2004 to buttress the fact that he is still an academic staff of the Kwara State Polytechnic notwithstanding exhibit ASUP I having not attained the age of 65 years.

On the submission by the learned counsel to the appellants that exhibit ASUP 17 had been controverted he cited again section 132 of the Evidence Act, Abiodun v. Adehin (1963) 2 SCNLR 305 at 309; Ebueku v. Amola (1983) 3 SCNJ 207 at 227; UB.N. v. Ozigi (1994) 2 NWLR (Pt.176) 277, (1994) 3 SCNJ 42 at 55, 60 and 62; Macaulay v. Nal Merchant Bank (1990) 4 NWLR (Pt.144) 283, (1990) 6 SCNJ 117 at 133 and Basil v. Fajebe (2001) 11 NWLR (Pt. 725) 592; (2001) 4 SCNJ 257 at 285 -286 to submit that the only way exhibit ASUP 17 which according to him is a deed of agreement can be altered is by tendering another deed of agreement showing that parties had altered their positions as regards the 65 years retirement age as it is trite that the document speaks for itself and extrinsic evidence cannot be adduced to vary, contradict, add or alter the contents of the said documents.

On the contention by the appellants’ counsel that ASUP 17 and other documents relied upon by the lower court are at best collective agreements incapable of enforcement more so as the 1st – 3rd respondents nay the appellants were not parties there to, references were made to pages 261 – 266 of the records the opening paragraph of exhibit ASUP 17 and subsequently the signatories at pages 265 – 266 of the records submitting that the appellants have admitted that Kwara State Polytechnic is owned by the Kwara State Government and the members of the governing council are appointed by the State government.

Moreover, they have admitted that the appellants herein as employers can be represented in the making of collective agreements and having so admitted that Kwara State represented the governing council of the Polytechnic in making exhibit ASUP 17 the council is bound within the meaning of collective agreement. Here again, the cases of N.U.R.T.W v. Ogbodo (1998) 2 NWLR (Pt. 537) 189 at 197; B.P.E. v. N.U.E.E. (2003) 13 NWLR (Pt. 837) 832 at 402 cited by appellant counsel in exposition of the Trade Dispute Act (Cap. 432) 1990 LFN. Section 47 thereof were said to buttress the respondents case rather.

Counsel then made further references to exhibits ASUP 6 at page 2, ASUP 13 section 14(1), a gazette containing the report of the commission on the review of Higher Education in Nigeria 1992 and the comments thereon and posited on the authority of Udoh v. O.H.M.B (1993) 7 NWLR (Pt.304) 139: (1993) 7 SCNJ 436 at 443; Wilson v. Oshin (2000) 9 NWLR (Pt.673) 442; 2000) 2 SCNJ 371 at 391 and Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187; (2004) 5 SCNJ 152 at 174; that it was for the above rationale that the respondents have acquired vested interests and appellants are therefore stopped from reneging on exhibit ASUP 17 which came into force in 1993.

Learned counsel again referred us to Iga v. Amakiri (1976) 11 SC 1 at 12 – 13; Ondo State University v. Dr. Folayan (1994) 7 NWLR (Pt.354) 1; (1993) 7-8 SCNJ 186 at 205; Oyeyemi v. Commissioner for Local Government (1992) 2 NWLR (Pt.266) 661, (1992) 2 SCNJ 266 at 278; Adone v. Ikebudu (2001) 14 NWLR (Pt.733) 385; (2001) 7 SCNJ 513 at 532 – 33 where the Supreme Court defined estoppel and in particular the provisions of section 151 of the Evidence Act to buttress his above submission.

On the submission of the learned counsel for the appellants that collective agreements are not actionable in court they being not binding and not enforceable, learned counsel again countered placing reliance on Olarenwaju v. Afribank Plc (2001) 12 NWLR (Pt.731) 691; (2001) 7 SCNJ 493 particularly at page 510; Afrotech Tech. Serv. (Nig.) Ltd V. MIA & Sons Ltd. (2000) 15 NWLR (Pt.692) 730; (2000) 13 SCNJ at 321; that the cases cited by the learned appellants counsel have been overruled by the Supreme Court.

He then urged that issue No.1 be resolved in the affirmative.

This appeal brings to fore the ever-raging controversy as to the nature of collective agreements and its enforceability in industrial relations.

Before delving into the arguments proffered by counsel on both sides on the issues formulated, it is pertinent to have recourse to the facts of this case as can be gleaned from the affidavits of the respective parties and the annexed documentary exhibits in support of their case.

By a letter dated 28th January, 2002 and reference REG/P/89 with the caption “NOTICE OF RETIREMENT” which letter is marked exhibit “ASUP 1” the 4th defendant/appellant served a purported notice of retirement on the 3rd plaintiff/respondent sequel to the 3rd plaintiff respondent attaining the age of sixty (60).

That letter reads in part:

“Please refer to chapter 15.1 of the staff regulations of the Kwara State Polytechnic which State that retiring age of employees of the institution is 60 years:

“3. In accordance with the staff regulations and the Sole Administrator’s directive on same matter, you are hereby informed of the need for you to make adequate preparations to retire from the service of the Polytechnic.

4 …

B Signed

M. O. Salami

Princ. Asst. Registrar (Estabs.)

For: Registrar”

The said letter was endorsed to the Chairman Academic Staff Union of Polytechnics by Mr. J. A. Aransiola (then Ag. Director Institute of Administration) in the following terms: –

“Above for your information, I understand that the retiring age of Academic Staff in the Polytechnic in Nigeria is 65 years and not 60.

Please confirm.”

Incidentally the said ASUP Chairman Kwara State Polytechnic is the 1st plaintiff/respondent who in his capacity as Chairman wrote a letter dated 11th February, 2002 with reference ASUP/KWP/SA/2002/01 rejecting the said notice of retirement on behalf of the union as according to the union the letter of retirement was contrary to the Federal Ministry of Education Policy on retirement of academic staff of tertiary institutions particularly by virtue of circular No. SU/3011/111/132 of 12th day of August, 1994 (circular letter HE/11/T4/Vol.11/36 of 1994) which fixed the retirement age at 65 for academic staff of Polytechnics and other tertiary institutions. The attention of the registrar and sole administrator were also drawn to Kwara State Polytechnic’s earlier letter with reference REG/SE/OFF/36 dated 9th day of October 2001. (See exhibit “ASUP 2”)

The said letter reference REG/SE/OFF/36 dated 9th day of October, 2001 and addressed to the Chairman ASUP Kwara State Polytechnic is marked exhibit “ASUP 3” and it reads: –

“Request for Information on Retirement Age In The Polytechnic

It would be recalled that in a Government circular Ref No. SU/3011/111/132 dated 12th August. 1994, it was clearly stated that the concession of 65 years as retirement age should apply to academic staff only.

Sequel to the above, the Polytechnic management would be grateful if you could kindly oblige it with any official circular/document that would assist it to determine the retirement age to use for non-academic staff.

Regards.

I. B. Abdulahi

For: Registrar.”

The letter with reference No. REG/30111/111/132 is marked exhibit “ASUP 4” and it also avers thus.

“Compulsory Retirement Age Tertiary Institutions

“Please refer to our earlier circular on the above subject matter REF. No. HE/11/T/Vol. 14/36 of 25th January 1994 sent to all heads of Federal Tertiary Institutions from the Federal Ministry of Education & Youth Development, which extended the retirement age of 65 years to all tertiary Institution workers.

“2. I write to request you to kindly discountenance the said circular as the recommendation at page 45 referred to in the white paper on the Longe Report which Government accepted, specified that the concession of 65 years should apply to Academic Staff only.

“3 The purpose of this circular is to confirm that retirement age of 65 years in tertiary institutions is restricted only to Academic Staff. Please convey the contents of this circular to all institutions under your supervision,

Signed

S. C. Nwokedi

Director – General”

Note that the circular was addressed to:

1. The Executive Secretary, National Universities Commission, Ikeja Lagos.
2. The Executive Secretary, National Board for Technical Education, Kaduna.
3. The Executive Secretary, National Commission for Colleges of Education.

It would appear from the affidavit in support of the originating summons by paragraph 4(e) thereof that the controversy surrounding the retirement age of 65years had been settled in 2002 and the 3rd plaintiff/respondent was not retired as notified him by the letter earlier on mentioned but in 2004, prior to the filing of this action, the issue of retirement age was resurrected.

From paragraph 4(g) there appear to have been a trade dispute culminating in the 2nd defendant/appellant issuing a circular with Ref: REG/SEC/62/Vol.11/ 200 dated 31/3/2004 directing all senior staff of the Polytechnic including all academic staff who were placed on salary scale HATISS 12, 13, 14 and 15 to revert to HATISS 11, 12, 13 and 14 respectively with effect from 1st March 2004 – (exhibit “ASUP 5”) in spite of the fact that by exhibit “ASUP 6” an agreement reached between the Federal Government and Academic Staff Union of Polytechnics (ASUP) dated 25th September, 2001), (exhibit “ASUP 6) the staff of the Polytechnic had enjoyed 22% increase on HATISS IV since 1st September 2002.

The plaintiffs/respondents contend in their affidavit in support particularly paragraphs 5, 5(i), (iii), 7, 8 and 9 that by “the views and comments of the Federal Government on the review of Higher Education in Nigeria,” which they attached as exhibit “ASUP 13” and exhibits 4, 6, 7, 8, 9, 10, 11 and 12 together with the relevant laws, it has become expedient to seek judicial interpretation of the retiring age of Academic Staff of Kwara Polytechnic and the validity of “regulations governing conditions of service of senior and junior staff and scheme of service for Kwara State Polytechnic, Ilorin (Revised Edition)” which is annexed as exhibit “ASUP 14”.

That their Union (ASUP) Kwara Polytechnic has exhausted all avenues at resolving the issue of retirement age. A letter to that effect is marked exhibit “ASUP 16”

In opposition to the originating summons the 1st-4th defendants/appellants filed a 38 (Thirty-eight paragraphed affidavit denying almost all the averments of the plaintiffs/respondent.

Pastor M. O. Salami the Deputy Chief Registrar (Academics) of the 4th defendant/appellant stated on their behalf: as follows that:

1. The 4th defendant is a creation of statute and is regulated by the State Polytechnic Act, Cap. 120. Laws of Kwara State 1994.
2. The 1st – 3rd defendants are also creation of statute.
3. Contrary to paragraph 4(a) of the affidavit in support of the originating summon, the terms and conditions of service of the staff of the 4th defendant are being regulated and determined by the 3rd defendant.
4. The National Board for Technical Education does not employ staff of State Polytechnics and Colleges of Education including Academic Staff of Kwara Polytechnic.
5. The plaintiffs and other members of Academic Staff of Kwara State Polytechnic are not employed by Federal Government nor are they Staff of Federal Tertiary Institution.
6. The registrar wrote the 1st plaintiff on retirement age of her staff but the 1st plaintiff misinformed the 4th defendants by referring to exhibit “ASUP 4” dated 12/8/94 which is not applicable to 4th defendant.
7. The 3rd plaintiff had been retired but that the plaintiffs’ union is preventing the 3rd plaintiff from quitting the 4th defendant’s premises even though the 3rd plaintiff has been replaced by another staff.
8. The State Executive Council has not adopted exhibits ASUP 6 and 17 as was conveyed in exhibit P2 and the letter from the Minister of Education dated 21st November, 2000 is annexed as exhibit P1.
9. The 3rd – 4th defendants and the Kwara State Government have not accepted the retirement age of 65 years and the letter from the registrar to Government and the Government’s response in that respect are annexed as exhibits P2 and P3 respectively.
10. Acceptance of the implementation of the agreement between Federal Government and ASUP in 2001 in the States Polytechnic is not automatic but dependent on acceptance by the employers of the staff of the Polytechnic.
11. He knows as a fact that the terms of the contract of employment between the 4th defendant and the 3rd plaintiff was an appointment till 60 years of age and a copy of the letter are annexed at exhibit P8.
12. He knows as a fact that all the academic staff of the 4th defendant accepted the provisions of the old regulations governing both the senior and junior staff and scheme of service Kwara State Polytechnic and the State Civil Service Rules as guiding their relationship with the 1st – 4th defendants.

As for the counter affidavit of the 5th defendant, paragraphs; 4(a) to (y) are repetitive of defendants counter affidavit and a replication of the arguments of the learned Attorney-General on the grounds of appeal.

It is pertinent to note that the plaintiffs reacted to the counter affidavit of the defendants (1st – 4th) wherein they denied paragraphs 1- 38 of the said counter – affidavit and in specific reply to those paragraphs stated that there has never been any dispute as to the retirement age which was effectively and irrevocably settled between the parties in a written and signed agreement dated 26th March 1993 and put at 65 years. A copy of the agreement is annexed and marked as exhibit ASUP 17 see paragraph 5 of the reply affidavit.

In paragraph 4 they also stated that they know as a fact that no academic staff of the 4th defendant had ever been retired on the ground of attaining 60 years of age since execution of exhibit “ASUP 17” and subsequent policies and circulars on the issue by the Federal Government and National Board for Technical Education.

They further averred in paragraph 5 that further evidence on the matter of retirement age is as contained in National Board for Technical Education letter to the National Secretary General of ASUP dated 13th August 2003 endorsed to the 1st plaintiff/respondent and marked exhibit ASUP 18:

6. That there is nothing in exhibits P5 and P6 that has altered the settled retiring age at 65 years to 60 years
7. That in further reply to paragraph 9 and 34 of the counter-affidavit that they know as a fact that the 3rd plaintiff was never retired from service of the 4th defendant and is still a principal lecturer in the Department of Secretarial Administration to date and has not been replaced by anybody.
8. That contrary to the false deposition in paragraphs 17 and 32 of the counter- affidavit; the defendants are by exhibits “ASUP 22” which is hereto attached, asking the plaintiffs to re-negotiate the salaries and retirement age of academic staff of Kwara State Polytechnic which have long been settled.

In a second counter-affidavit deposed to by S.T. Abubakar Esq, counsel for the 1st-4th defendants/appellants who forgot to annex exhibits P10 & 11 the letter of appointment/acceptance and letter of confirmation of appointment of the 2nd and 3rd respondents accordingly annexed them.

It would also be recalled that prior to the 2nd counter-affidavit Pastor Salami had deposed to a further counter affidavit where he denied the averments in the respondent’s affidavit as follows:

“3. That paragraph 4 and 6 of the reply to the counter-affidavit are not true and the plaintiffs are put to the strictest proof of the depositions therein.

4 That I know as a fact and from the record that most of the retired academic staff of the 4th defendant did not attain 60 years of age but have spent 35 years in service before they retired.

5. That I know as a fact that despite exhibits “ASUP 17” the contractual relationship between the members if the plaintiffs union and the 4th defendant remains 35 years of service and 60 years of age as exhibit 17 has not been incorporated into the terms/conditions of service of the 4th defendant.
6. That despite “Exhibit ASUP 17″ the 1st plaintiff like other colleagues accepted the age of retirement to be 60 years of age as a condition of his service of the 4th defendant in 1995. A copy of the letter of appointment of the 1st plaintiff and the letter of acceptance are hereto attached as exhibit P9.
7. I know as a fact that exhibit 22 was issued to the plaintiffs to assist in educating them about the procedure to make any collective agreement with the union enforceable but the plaintiffs did not take advantage of the opportunity before coming to court.”

I have gone to this extent in reproducing almost verbatim the evidence elicited by the parties in view of the complaint of the appellants amongst others that the judgment of the trial court was against the weight of evidence.

In my consideration of these grounds I am well guided by what our most learned Kayode Eso J.S.C said in the celebrated case of Ebba v. Ogodo (1984) 4 SC 84 at 98; (1984) 1SCNLR 372 on the attitude of appellate courts to findings of facts and when the Court of Appeal would interfere with findings of a trial court thus:

“Unless the trial court has failed to make use of this singular advantage (of seeing and hearing simultaneously the witnesses) and for that reason thereof the Court of Appeal finds that the decision is perverse, the Court of Appeal, whose opportunity is confined to printed records, is obliged to, and must accord to the finding of fact, by the trial court, the greatest weight and due respect. That indeed is the division of labour, and a sensible one at that between, the trial court and the appellate court. ”

However, it seems to me that since the case was fought in the lower court by Originating summons procedure which entailed filling affidavits with documentary exhibits, the issue of credibility, does not exist and this court in its appellate jurisdiction is in as good a position as the trial court to evaluate the evidence put forward by the parties as the matter here has been narrowed down to inferences that could be drawn from proved facts.

Against this background we shall now consider the arguments of counsel on both sides. From the position taken by the appellants, the lower court was wrong when it declared 65 years as the retirement age for academic staff of the Kwara State Polytechnic based on exhibit ASUP 17 an agreement which they considered as extraneous in that neither the plaintiffs/respondents nor the defendants/appellants were parties thereto.

According to them, at best “exhibit ASUP 17″ is a product of collective agreement which is not binding on the appellants rather what they contend binds the contractual relationship between them are exhibits P9, P10 and P11 (the letters of appointment, acceptance and confirmation of that appointment), Chapter 15 paragraph 15.1 of exhibit ASUP 14 and the Polytechnic Act, Cap. 120, Laws of Kwara State, 1994.

The respondents take a contrary view and insist that exhibit ASUP 17” is binding on the parties. After due evaluation of the evidence of the parties the trial Judge held at pages 27 and 28 of the judgment (see pages 663 and 664 of the record of proceedings) as follows: –

“However, the court will now consider the issue of retirement age of academic staff in the Kwara State Polytechnic in view of exhibit ASUP 17 of 26-3-1993 fixing it at 65 years. “Exhibit ASUP 17″ is nowhere controverted. The position is confirmed by several other documents such as exhibit ASUP 3 written by the registrar of the 4th defendant. It reads:-

Learned counsel talked about amendment of retirement age by law”.

“See pages 27/663 of the judgment of the lower court and record of proceedings.

At pages 28/664 he continued:

“Since 1993, it has been settled that the retirement age of academic staff of Kwara State Polytechnic is 65 years. The Polytechnic has taken clear steps to show that it is unequivocally committed to the agreement. The defendants cannot be allowed to approbate and reprobate at the same time. The defendants are therefore estopped and the agreement regarding 65 years retiring age for academic staff of Kwara State Polytechnic has become crystallized, legally binding and enforceable. See Wilson v. Oshin (2000) 9 NWLR (Pt. 673) 442; (2000) 6 SCNJ 371 at 390-391 to show that the right has vested in the plaintiffs and cannot be arbitrarily denied.”

On the non-bindingness and unenforceability of collective agreements the learned trial Judge held:

“Mr. Mohammed argued that contrary to the decisions of the Court of Appeal in Nwajagu v. Baico Nig. Ltd (2000) 14 NWLR (Pt. 689) 335 at 363; Afribank Nig. Plc. v. Osisanya (2000) 1 NWLR (Pt. 642) page 598 at 613 that held that a collective agreement unless adopted by the parties as forming terms of the contract of employment are only binding in honour and not enforceable, the position has been reversed by the apex Court in S.B Olarenwaju v. Afribank Plc. (2001)7 SCNJ 493 at 510; (2001) 12NWLR (Pt. 731) 691 where it was held:

“… see also Afrotect Technical Ltd v. M.I.A. Ltd. (2000) 15 NWLR (Pt.692) 730, (2000) 12 SCNJ 298 at 324: Fortune Bank Plc. v. Pegassus Trading Office GMBH & Anor: (2004) 4 NWLR (Pt.863) 369, (2004) 1 S.C.NJ at 304”.

Now “exhibit ASUP 17” which is the subject of controversy reads in part:

“Agreement between the Kwara State Government and The Joint Action Committee on Unions of The State Tertiary Institutions

It is Agreed this 26th day of March, 1993 between the Kwara State Government represented by the Government Negotiating Team on the one hand and the Joint Action Committee of Unions of the Kwara State Tertiary Institutions on the other hand, following the series of negotiations and discussions between both parties as follows:

1. That the Euss – basic salary is to be paid in full as contained in the Federal Government circular reference FME/S/350/11/105 titled new salaries and quantifiable fringe benefits for academic and non-academic staff in Polytechnics, Colleges of Education, Research Institutes and related parastatals.
2. That the effective date of payment of the said EUSS Basic salary shall be with effect from February 1st 1993, the arrears for January 1993 which is being demanded by the unions will be subject to further consideration and approval of government.

At page 4 of the agreement item 26 thereof it is stated thus:

“Retirement: 65 years or 35 years of service which ever of the two occurs first shall be applicable.”

The signatories to the agreement are: –

1. Elias Oyeniyi Esq (Chairman) Director General (Education)
2. Alhaji Abdulrahim A. Yusuf (Director General, establishment and training) member as representatives of government negotiating team.

For Action Committee

1. Alhaji Ismaila Akanbi

Chairman SSA, Kwan.t State Polytechnic, Ilorin

2. Alhaji A. B. Haruna

Secretary, SSA, Kwara State Polytechnic, Ilorin

3. Rabiu G. Ibrahim

Secretary SSA Kwara State College of Education, Ilorin.

4. Ibrahim B. Ayinla

Chairman NASU Kwara C. O. E. Oro

5. Salihu B. Saka

Chairman, SSA Kwara State College of Education, Ilorin.

6. Bayo Akoladi

Secretary NASU Kwara State C. O. E. Oro

7. Mary N. A. Bogunjoko

Chairperson NASU Kwara State C. O. E. Oro

8. Sule Jimoh

Secretary NASU Kwara State C. O. E. Oro

9. Ahmed B. Olaoye

President, ASU Kwara State C. O. E. Oro

10. Kehinde O. Opadokun

Chairman NASU Kwara State Polytechnic, Ilorin

11. Saliman A. Kallah

Secretary NASU Kwara State Polytechnic, Ilorin

12. William B. Makanjuola

Secretary ASU Kwara State C. O. E. Oro

13. Dr. Olaitan Odediran etc.

Exhibit “ASUP 6” which is the other document relied upon to contend that the issue of retirement age of 65years had been laid to rest not only talks of approval of 22% increment on HATISS IV and upward review of allowances for polytechnic staff, but also states at page 20 of the record of proceedings (Page 2 of the agreement reached between the Federal Government Team and Academic Staff Union of Polytechnics (ASUP) on Tuesday 25th September, 2001 at Abuja that:

“3.3.3 Retirement Age.

(i) It was noted that the retirement age of Academic Staff of Polytechnics has since been increased to 65 years like their counterparts in the Universities”.

This exhibit is of immense significance in the resolution of this vexed issue of the retirement age for academic staff of Kwara State Polytechnic.

The other document that informed the holding of the learned trial Judge is – exhibit “ASUP 3” and it reads:

“KWARA STATE POLYTECHNIC

(OFFICE OF THE REGISTRAR)

P. M. B. 1375,

Ilorin Nigeria

Telegram: Kwarapoly

Tel: 221441 Ect. 243

“Rector: – Professor M. A. Olatunji BSc, MSc (Abu) Ph. D Glasgow

“Registrar: – J. F. Oguminde BSc. (Abu) MPA (He) C.I.M. (Lond.) MNIM

“Our Ref: REG/SE/OFF/36

Date: 9th October 2001

“The Chairman,

Academic Staff Union,

Kwara Polytechnic, Ilorin

“Request For information on Retirement Age in the Polytechnic.

It would be recalled that in a Government circular Ref:

No. SU/3011/111/132 date (sic) 12th August, 1994, it was clearly stated that the concession of 65years as retirement age should apply to academic staff only.

Sequel to the above, the polytechnic management would be grateful if you should kindly oblige it with any official circular/document that would assist it to determine the retirement age to use for non-academic staff.

Regards.

G Signed

I. B. ABDULAHI

For: Registrar”

The circular with Ref No. SU/3011/111/132 wherein it was clearly stated that the retirement age of 65 was conceded to academic staff only, has been exhibited as “exhibit ASUP 4” and earlier reproduced by this court.

But for purposes of emphasis it has to be recalled that the said circular emanated from the Federal Ministry of Education and Youth development and was addressed to:

1. The Executive Secretary, National Universities Commission.
2. The Executive Secretary, National Board for Technical Education.
3. The Executive Secretary, National Commission for Colleges of Education.

The letter recalled an earlier circular on the subject matter that is the compulsory retirement age of staff of tertiary institutions, which was sent to all Heads of Federal Tertiary Institutions. It states in the third paragraph that: “3”. The purpose of this circular is to confirm that the retirement age of 65 years in Tertiary Educational Institutions is restricted only to academic staff.”

From the tenor of these “exhibits ASUP 3 and 4” “the conclusion arrived at by the learned trial Judge at pages 27-28 of his judgment is therefore unassailable on the face value.

However, in spite of these circulars the defendants/appellants have raised very salient issues that ought to have been addressed in that judgment and these are as follows:

“1. Exhibit ASUP 14 which was tendered by the plaintiffs/respondents is explicit on the retirement age of members of staff. That document is tagged “Kwara State Polytechnic, Ilorin, Regulations Governing Conditions of Service for Both Junior and Senior Staff of Polytechnic (revised 1989)”

By chapter 15.1 thereof the Regulation provides thus:

“The council requires any member of its staff to retire compulsorily from its service after he attained the age of 60 years subject to three months notice in writing being given to the members of staff by the council. A member of staff may however, apply for a voluntary retirement with pension at the age of 45years or at any other time thereafter.”

Pursuant to the provisions of this chapter the 4th defendant appellant served the 3rd plaintiff/respondent the letter of 28th January 2002 captioned “Notice of Retirement”

2. Exhibit P1 tendered by the defendant/respondents clearly states:

“HME/FME/216/Vol. 1/18

21 November, 2000

“The Executive Secretary

National Board for Technical Education,

Kaduna.

Kaduna State.

Re: Harmonization of Retirement Age of Academic Staff of Federal Polytechnics And Colleges of Education

The Federal Executive Council (FEC) at its meeting of 15 November 2000 noted the disparity in retirement age of academics of Federal Universities, Polytechnics and Colleges of Education.

In the light of the recommendations of the commission on the review of Higher Education, the council has therefore approved that the 65 years retirement age should now be applicable to Academic Staff of Federal Polytechnics and Colleges of Education.

Please ensure that this approval is communicated to all your relevant Institutions for implementation with effects from the date of FEC approvals.”

There is no indication in the letter whether the Polytechnic Ilorin was communicated with this circular. However, from the ipse dixit of the Registrar in “exhibit ASUP 3”, it would appear that the defendants/respondents received this letter even though their contention is that (and the trial court seemed to have agreed with them) the National Board for Technical Education is only an advisory body to the Kwara State Polytechnic and cannot force its policies through the throats of the Polytechnic. We shall come to this issue later on.

3. Exhibit P2 which is a letter from the Registrar of the 4th defendant/appellant referenced REG/SEC/17/Vol. IX/249, dated 17th March, 2004 addressed to the Head of Service, Kwara State Civil Service, Ilorin and Captioned “RETIREMENT AGE FOR THE ACADEMIC STAFF OF POLYTECHNICS”, sought to draw the Head of Service’s attention to circular issued by the Federal Ministry of Education Ref; HME/FME/216/Vo1.1/18 dated 21 November, 2000 and the subsequent circular from the National Board for Technical Education (NBTE) Ref:. C/TES.S/ Vol. 11/271 dated 12th December 2000 on the above subject matter. He further drew the attention of the Head of Service to the circular issued by the Kwara State Government REF. HS/S/PEN/40/T.2/28 dated 24th September 2001 on the statutory age of retirement for staff in the State.

The registrar also recalled that in the two circulars issued by both the Federal Ministry of Education and NBTE, the retirement age: for Academic Staff was indicated as 65 years but that the retirement age was put at 60 for all workers in Kwara State in line with the Federal Government circular No. B. 83216/5/S. 1/X dated 26th August 1999.

The registrar then sought clarification on the three circulars in view of the position taken by the Federal Government and the NBTE as regards academic staff of Polytechnics who might have attained the age of 60 years but less than 65. The letter was signed by A. Osundahunsi (Mrs.) Registrar.

In their reply, the office of the Head of Service by a letter dated 5th April, 2004 stated the position thus: –

“2. I am to inform you that neither the Federal Ministry of Education circular No. HME/FME/216/vol. 1/18 dated 21st November 2000 referred to in your letter was adopted in this State. The only circular in use in the public service is the Federal Government circular No. 63216/S.I/X dated 26th August 1999, which provided 60 years of age or 35years (which ever came first) as the statutory retirement age for all workers in the public service.

3. However, we have advised the Ministry of Education in the past on the need to seek for adoption of the special retirement age for academic staff in the State. The Ministry of Education is however yet to keep this office posted on the action taken in this regard. Until this is done, 60 years of age or 35 years in service remain the retirement age for all workers in the public service of Kwara State.

S. I. Olawale

For: Head of Service.”

4. Yet there are exhibits P9, P10 and P11, tendered by the defendants/appellants. Exhibit p9 for instance is dated 23rd November 1995 and addressed to Mr. F. S. O. Adefila and is titled “OFFER OF APPOINTMENT” from the office of the Registrar of the 4th respondent.

For purpose of this appeal paragraph 4 thereof is instructive and it states:

“4. The appointment will commence from the date you assume duty and will be for a period of two years in the first instance subject to extension for specific period or confirmed to retiring age of 60 at the discretion of the council…”

Attached to exhibit P9 is a handwritten letter of acceptance dated 24th November 1995 and it states in paragraph 3 thereof:

“I also confirm my acceptance of the terms of the offer, and wish to express my gratitude for the offer” thanks.

Yours sincerely,

Signed

F. S. O. Adefila (Mr).”

Exhibit P10 is another letter of offer of appointment addressed to Aremu A. Garba and is dated 7th July, 1992 with the same terms and condition as exhibit P9. Attached to the letter is “Acceptance of offer of Appointment” dated 30th July, 1992, and by another letter referenced REG/P/1605 of 27th October, 1995 the appointment of Mr. Aremu was confirmed in the following terms:

“I am also to inform you that the sole administrator has approved confirmation of your appointment, till the retirement age of 60”.

Exhibit P11 is the letter of appointment of Mr. John Ayo Aransiola dated 11th June 1974. There is no specific retirement age in the said letter as it states.

“The appointment is for three years in the first instance; it may be extended for specific period or confirmed to retiring age at the discretion of the college council.”

He accepted the terms and conditions as stipulated in the letter of appointment by an acceptance letter dated 26th June 1974. Attached to the Exhibit P11. However there is letter of confirmation of his appointment dated 13th June, 1977 as it states in part;

“I am pleased to inform you that establishment committee at its meeting held on Thursday, 9th June, 1977 had approved confirmation of your appointment till the retiring age of 60.”

Note that Messrs. Adefila, A. G. Aremu and J. A. Aransiola are the 1st – 3rd plaintiffs/respondents in this case.

From the totality of the documents which have been set down and considering the depositions in the affidavits and counter affidavits vis-a-vis the law, can we say that the learned trial Judge misdirected himself when he held that the polytechnic has taken steps to show that it is unequivocally committed to the agreement marked “exhibit ASUP 17” and is therefore bound by such agreement particularly on the retirement age of academic staff of Kwara State Polytechnic the (4th appellant) in this case?

Several authorities have been cited to buttress the respective submissions of counsel in this regard.

Parties are agreed that “exhibit ASUP 17” was an agreement between the Kwara State Government and the Joint Action Committee of Unions of the State Tertiary institutions. There is no gainsaying therefore that it is a collective agreement, which is defined in section 47(1) of the Trade Disputes Act, Cap. 432, Laws of the Federation of Nigeria, 1990 as: “any agreement in writing for settlement of disputes relating to terms of employment and physical condition of work concluded between:

(a) An employer, a group of employers or one or more organizations representative of employers, on the one hand; and;

(b) One or more trade unions or organizations representing workers, or the duly appointed representative of any body of workers, on the other hand.”

In U.B.N. Ltd v. Edet (1993) 4 NWLR (Pt. 287) 288 at 298 – 300 Uwaifo J.C.A. (as he then was) had cause to pronounce on the nature of collective agreements when he said at paragraphs B-C page 298 that:

“Such collective agreements are not intended or capable of giving individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest, nor are they meant to supplant or even supplement their contract of service. In other words, failure to act in strict compliance with collective labour agreement is not justiciable. Its power of enforcement lies in some measures as I shall endeavor to show.”

Later on at page 299 in paragraph E, he described collective agreement in the eyes of the law as amounting to “nothing more than a manifesto for labour relations.” Young v. Canadian Northern Railway (1931) AC 83 the facts which he vividly painted and the decision of the Privy Council per Lord Russel of Kill Owen thereon was one of the authorities he cited in support of his position.

However there is an aspect of the judgment of the privy council which I find objectionable and at variance with current judicial thinking when his lordship in spite of the admission by the respondents that they had adopted the wages agreement and infact applied it to all employees still went on to hold that the appellant could not as of right rely on the said agreement.

This extreme conservative position that collective agreements are not enforceable seems to have been imported from Britain where, by English common law collective agreements are not generally enforceable contracts. Even a statutory attempt by the Industrial Relations Act 1971 to presume the contractual status of collective agreements proved abortive and it was repealed.

But in modern times this country has through legislation attempted to water down this extreme conservatism as far as enforceability of collective agreements are concerned – See The Wages Boards and Industrial Council’s Decree 1973 by sections 13 and 15 and the Trade Dispute Decree 1976 now (Trade Dispute Act Cap, 432) by sections 19(1) and 20 which established the National Industrial Court and vests it with the jurisdiction to interpret collective agreements. See the enhancement of the Court’s jurisdiction by the National Assembly in recent times.

The above notwithstanding the Nigerian courts still savoured in the euphoria of unenforceability of collective agreements which explains why my Lord Uwaifo J .CA. (as he then was) in the said UBN Ltd v. Edet (1993) 4 NWLR (Pt. 287) 288 at 298 asserted that:

“In other words, no privity of contract arises between an individual employee and his employer and where such an employer ignores or breaches a term of that agreement, resort could only be had, if at all, to the negotiation between the union and employer, and alternately to a strike action, should the need arise and it be appropriate.”

See Makwe v. Obanzuwa Nwukor 7Anor. (2001) 14 NWLR (Pt. 733) 356.

However, it is gratifying to note that even in the case of U.B.N. Ltd. v. Edet supra at page 304 paragraphs C-E Akintan J.C.A. (as he then was) after holding that the learned trial Judge was in error in applying the provision of the booklet (exhibit 13) titled “recognition and procedural agreement and main collective agreement between Nigeria Employers Association of Banks, Insurance and Allied Institutions” stated thus:

“It is definitely necessary to expressly adopt the provisions of the document either in the letter of appointment or a subsequent communication varying the terms of employment before the respondent could enforce its contents against the plaintiff.”

This view accords with the position taken in the oft-quoted dictum of Ndoma-Egba J.C.A. in the case of N.A.B. Ltd v. Shuaibu (1991) 4 NWLR (Pt.186) 450 at 465-468 where the learned law Lord described the collective agreement of Banks insurance and Allied Associations as extra legal document devoid of sanction and a product of trade unionist pressure and that there being no evidence that the appellant as an employer subscribed to it, the terms and conditions of employment which the respondents accepted are contained in the letter of employment.

Going by these authorities it is clear that “exhibits ASUP 14” by Chapter 15.1; p. 9, 10 and 11 govern the terms and conditions of employment of the plaintiffs/respondents. By their acceptance letters and letters of confirmation of appointment, they contracted that 60 years was to be their retirement age.

By the judicial authorities cited and considered, it is also clear that to be enforceable the defendants must have adopted same either expressly or by implication otherwise they would not be bound by the said exhibit ASUP 17.

The courts in England have adopted a number of devices to find out when an employer is deemed to have adopted a collective agreement because as Professor Drake put it, the central problems of labour in the United kingdom (and I believe also in Nigeria), is how to reconcile the economic and social importance of collective bargaining with the legal theory that the contract of employment takes primacy. See Rookes v. Barnard (1964) AC 1129.

See also Nelson and Woolet v. Post Office (1978) 1 RLR 548 where Kilner Brown, J. held that “it was perfectly plain that the basis of good industrial relations, particular those involving state industry or national agreement, rest on collective agreements being accepted by every body as it would lead to anarchy if individual branches or individual members of a trade union are entitled to opt out and avoid a decision democratically arrived at in the overall national connotation”.

This brings me to the question whether the defendants/appellants have adopted “exhibit ASUP 17”

From the signatories found in that agreement it is clear that the Government was represented by no less a person than the Director General Education as Chairman Negotiating Council and the Director General Establishment and Training another member. On the other hand ASUP Kwara State Polytechnic Ilorin was represented by no less personalities than:

(1) Alhaji Ismaila Akanbi the Chairman Senior Staff Association Kwara State Polytechnic.

(2) Alhaji A. B. Haruna Secretary Senior Staff Association Kwara State Polytechnic.

(3) Kehinde O. Opadokun Chairman NASU, Kwara State Polytechnic;

(4) Alhaji Saliman A. Kallah Secretary NASU, Kwara State Polytechnic, Ilorin.

(5) Dr. John F. Oyedele President, Asu, Kwara State Polytechnic, Ilorin.

(6) Olarenwaju O. Idowu Secretary ASU Kwara State Polytechnic Ilorin

It has been strenuously argued by the defendants/appellants that neither the plaintiffs nor themselves (the defendants/appellants were parties to that agreement).

I think that such a position with the greatest respect is very myopic considering the fact that the Kwara State Polytechnic is owned by the Government of Kwara State, which by a plethora of documentary exhibits like ASUP 19 and 20 funds it and pays remunerations to 4th defendant’s employees.

Again from exhibit ASUP 3 a circular or letter from the registrar of the 4th respondent to the chairman of the plaintiff/respondents it was clear that the defendants had adopted circular with Ref. SU/3011/111/132 dated 12th August 1994 which in the words of the author I.B, Abdulahi: “It was clearly stated that the concession of 65 Years As Retirement Age Should Apply To Academic Staff Only”.

I am of the considered view that even exhibits P1, P2 and P3, which the appellants seem to have made the fulcrum of their case go a long way to buttressing the case of the plaintiffs/respondents.

If exhibit P1 and P2 are read together it would be seen that exhibit P3 is self-contradictory.

In the first place the registrar of the 4th defendants/appellants has in the opening paragraphs of exhibit ASUP 3 admitted the receipt of the circular of the Federal Ministry of Education and the National Board for Technical Education, which put the retirement age of academics at 65. In the clarification by the office of the head of service however, while denying the receipt of the two circulars the head of service contradicted himself when he said:

“We have advised the Ministry of Education in the past on the need for adoption of the special retirement age for academic staff in the State. The Ministry of Education is however yet to keep this office posted”.

See exhibit P3 paragraph 3.

Note that he had earlier denied seeing any circulars from the Federal Ministry of Education and National Board for Technical Education. The question now is how come the State Ministry of Education was advised in the past to adhere to the Federal Government circular regarding the concessionary retirement age of 65 for academic staff in the state tertiary institutions?

I am of the considered view that either the author of the said exhibit P3 had something to hide or he was merely being economical with the truth.

I therefore hold the opinion that even from the representative process theory, incorporation or agency theory, the plaintiffs had established that the defendants/appellants adopted exhibit ASUP 17″

I am not oblivious of the fact that “ASUP 17” was entered into in 1993 while the appointment of the 1st plaintiff took place on 23rd November 1995 with subsequent confirmation.

However, the 2nd plaintiff was appointed on July 1992 and confirmed 27th October 1995.

For the 3rd plaintiff/respondent, his appointment letter is dated 11th June 1974, while he was confirmed on 13th June 1977.

Even then, exhibits ASUP 3 and 18 the letter from the registrar to ASUP chairman on the retirement age and the clarification from the NBTE are dated 9th October 2001 and 13th October 2003 respectively. They therefore supercede exhibits P9 to 11 and exhibit ASUP ’14’ with particular reference to retirement age of academic staff of the Kwara State Polytechnic.

I am therefore in agreement with the findings of the trial Court when he held at page 26 of the judgment (see page 664 of the record of proceedings) that the defendants cannot be allowed to blow hot and cold at the same time and that they were therefore stopped from resiling from the agreement regarding the 65 years retirement age for academic staff of the Kwara State polytechnic.

I also agree with him and hold that the defendants having been irrevocably committed to the agreement, the said agreement “has become crystallized, legally binding, and enforceable.” Thus the defendant’s representatives by signing exhibit ASUP 17 altered and added to exhibits ASUP 14, P9, P10 and P11 which were the terms and conditions of the respondent’s employment by section 31 of the Kwara State Polytechnic Law 1994 and are accordingly bound by the said agreement.

It has been held that if parties follow a certain course of action plainly because of the existence of a collective agreement, such as commencing to pay wages at new rates, that provision of the collective agreement will be considered as incorporated in the contract of employment. See Sadar v. Ridehalgh (1931) 1 Ch. 301 at 303 per Romer, J.

The decision is in line with estoppel, the rule of evidence, which precludes a person from denying what he has either expressly or by implication admitted. See Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 at 143-144 quoted by Onu J.S.C at page 532 (2001) 7 SCNJ 513.

See section 151 of the Evidence Act, Cap. 112, Laws of the Federation, L 990, which provides:

“151 when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing”, See Joe Iga v. Amakiri (1976) 11 S.C. 1, 12-13.

In the instant case the defendants/appellants have not by their affidavit evidence mentioned any of the academic staff retired at the age of 60 since 1993 when exhibit ASUP 17 was entered into between their representatives and those of plaintiffs/ respondents.

A lot of heavy weather has been made on the issue of privity of contract and one of the cases cited was Makwe v. Nwuffor (2001) 14 NWLR (Pt.733) 356; (2001) 7 SCNJ 87 to submit that the plaintiffs not being signatories to the agreement “exhibit ASUP 17” ditto the defendants, they cannot be bound and that at best the only party that can sue on the agreement was the joint committee of unions of the Kwara State Tertiary Institutions.

In that case Iguh, J.S.C after stating the general principles of the law as far as privity of contract is concerned that a person who is not a party to a contract cannot enforce it even if the contract was made for his benefit went further to state at page 97 paragraph 14-19 inter-alia:

“Without doubt, the above general principle of law admits of a number of exceptions. These include the case of a contract made by an agent on behalf of an undisclosed principal who, again as a general rule, is entitled to sue and liable to be sued on such a contract”.

But I hasten to add here that our Industrial Relations Law recognizes the entry into collective agreements between an employer, a group of employers or one or two organizations representative of employers and one or more trade unions or organizations representing workers, or the duly appointed representative of any body of workers on the other hand. See section 47 of the Trade Dispute Act Cap 432 LFN 1990.

After all, there is the presumption that parties to collective agreements act as agents for the parties to the individual contract of employment.

See Allen v. Thorn Electrical Industries Ltd. (1968) Q. B. 487 where the English Court of Appeal upheld the submission that a contract existed to pay a collectively agreed increase in wages, which was to be paid as soon as administratively possible, but which was never paid because the then prime minister called for wage standstill on July 20, 1966. See again Deane v. Craick (1962). The times”. March 16 and Edwards v. Skyways (1964) NWLR 349.

From all these authorities, it is clear that ASUP Polytechnic Ilorin, Kwara State being part and parcel of the Joint Committee of Unions of Kwara State Tertiary Institutions and ably represented by their union officials and Kwara State Government who are owners and proprietors of the Kwara State Polytechnic which was also represented by the Directors General of Education and Establishment matters entered into exhibit ASUP 17 and are therefore bound. That government appoints members of the governing council and funds the Polytechnic. Having entered into the agreement and even directed the Ministry of Education to implement the 65 years retirement age for academic staff of Kwara State Polytechnic, equity shall prevail to hold that what ought to be done was as good as having been done.

I hold that the trial judge neither misdirected himself nor did he come to a wrong decision when he declared 65 years as the retirement age for the academic staff of the Kwara state Polytechnic. Issue number 1 is therefore resolved in favour of the plaintiffs/respondents and grounds 1, 3 and 5 of the appeal are hereby dismissed.

Issue number 2: whether the lower court was right in granting perpetual injunction restraining the appellant from reducing the retirement age of academic staff of Kwara State Polytechnic from 65 years to 60 years?

My answer to this question without much ado is in the affirmative particularly having resolved the first issue in favour of the respondents.

However, for the avoidance of doubt certain ancillary issues were raised under issue number 1 (one) that ought to be dealt with to enable us appreciate the appropriateness, of the perpetual injunction granted the plaintiffs/respondents. In the first place so much heavy weather was made about the Polytechnic Law (Cap. 120) Laws of Kwara State 1994 to contend that neither the 4th defendant nor her council (3rd defendant/ appellant) was a signatory to the agreement (exhibit ASUP 17).

Only a careful perusal of the law will belie this erroneous contention of the learned counsel for the appellants. Section 29 (part VI – appointment of other staff and conditions of service) of the law, states in explicit terms as follows:

“29(1) Recommendation for the creation of posts other than those mentioned in part IV of this Edict, shall be made to the council by the establishments committee and the filling of vacancies in such posts shall be the responsibility of the council.

(2) The establishment committee shall consist of:

(a) Rector as Chairman

(b) The Deputy Rector

(c) The Permanent Secretary, State Ministry of Education or his representative”.

Note also that by section 8(b)(iii) of the law, the Permanent Secretary, State Ministry of Education or., in his absence, such officer as he may designate from his ministry in that behalf, is a member of the governing council of the 4th defendant.

Section 30 of the law charges the establishment committee of which the said permanent secretary is a member with the power to appoint, confirm, promote and discipline such staff and admittedly, section 31 which the defendants/applicants relied upon heavily to buttress the fact that the lower Court wrote a different agreement for the parties, states categorically that:

“31. The rates of remunerations scale of salary, contract additions pensions scheme and other conditions of service of members of the academic administrative and technical staff, shall be such as may be determined from time to time by the council.”

It is also necessary to refer to sections 14(a) and 15(a) of the law which state that “the person for the time being holding substantively the office of the Governor shall be the head of the Polytechnic” and that “the head of the Polytechnic shall be the visitor of the Polytechnic.” Besides, the council chairman is appointed by the Governor (see section 8 of the law).

Going back to “exhibit ASUP 17” it was the self same permanent secretary Ministry of Education (then styled Director-General) who signed for the government of Kwara State who are the proprietors of the Polytechnic (4th defendant/appellant.)

It is also submitted that if the Governor and Government of Kwara State did not delegate their powers to the permanent secretary, he in company of the permanent secretary establishment matters could not have signed the agreement. Thus the defendants by signing the agreement ASUP 17 altered exhibits ASUP 14, P9, P10 and P11 which were made in accordance with section 31 of the Polytechnic Law (Cap. 120) Laws of Kwara State 1994.

There is this other angle of the submissions of the learned counsel for the defendants/appellants that the 1st – 3rd plaintiffs/respondents or their fellow ASUP members were/are not employees of the Federal Government so as to be bound by Federal Government’s or any of its agencies policy. Particular reference was also made to the holding of the lower court on the advisory nature of the National Board for Technical Education (NBTE).

The defendants/appellants counsel have also submitted that exhibit ASUP 6 (agreement reached between the Federal Government team and the representatives of Academic Staff Union of Polytechnics (ASUP) and ASUP 13. (“Views and comments of the Federal Government on the report of the commission on the review of higher education in Nigeria) are collective agreements and are not binding on the defendants.

I think that the submission that the Kwara State Polytechnic is not bound by the decision or order of the National Board for Technical Education in that the body is not the authority that employed the respondents, is not only erroneous but with the greatest respect to the learned counsel to the appellants, and indeed the learned trial Judge a misapprehension of the provisions of the National Board for Technical Education Act (Cap. 237) Laws of Federation of Nigeria 1990.

A look at some of the sections of the Act will demonstrate this misapprehension by learned counsel and trial Judge. Section 2(1) for instance provides that:

“The board shall consist of a chairman and the following other members, that is:

“(a)(i) Trade Unions and National Association of Employees,

(ii) National Association of Employers,

(iii) National Organizations representing women interest;

(b) Two representatives of Polytechnics and Colleges of Technology.

(c) …….

(d) ……..

(e) “five representatives of States as nominated one each by the Governor of the State concerned and appointed by the minister to represent the States in rotation for two years at a time, so however that no two of them shall come from the same State …. ”

On the functions of the hoard, apart from the provisions of section 5(a) and (b) which deal with advising the Federal Government on/and to co-ordinate all aspects of technical and vocational education falling outside University and to make recommendations on the national policy necessary for full development of technical and vocational education etc, the board also is charged with the following functions:

“Section 5(c) to inquire into and advise the Federal Government on the financial needs, both recurrent and capital of Polytechnics and Colleges of technology and other technical institutions to enable them meet the objective of producing the trained manpower needs of the country.

“5(i) to undertake periodic reviews of the terms and conditions of service of personnel in Polytechnics and Colleges of Technology and to make recommendations to the Federal Government.”

It is in exercise of these functions and its supervisory role in the scheme of Polytechnic and Technological Education nation-wide that the Federal Ministry of Education routed “exhibit ASUP 4” titled “COMPULSORY RETIREMENT AGE OF TERTIARY INSTITUTIONS STAFF” to the board which purpose was “to confirm that the age of 65 years in tertiary educational institutions is restricted only to academic staff”.

Furthermore in line with its’ supervisory role on all Polytechnics and Colleges of Technology, nation-wide, the board was requested “to convey the contents of the circular to all institutions under its supervision” and the Kwara State Polytechnic Ilorin is one of those institutions that is under the supervision of the NBTE by virtue of section 5(c) and 5(i) of the NBTE Act (Cap. 237) LFN 1990. It is therefore wrong to contend as the learned counsels to the appellants have done that the Kwara State Polytechnic was not bound by the directives or orders of the NBTE.

Being a national body charged with overseeing the workings of Polytechnics nation-wide the Kwara State Polytechnic has no option than to abide by its directives or advice otherwise it ceases to be a Polytechnic recognized by that body (NBTE) or other constituent parts of the nation.

As for exhibit ASUP 6 at page 2 thereof paragraph 3.3.3 it is clearly stated that:

“RETIREMENT AGE

“(i) It was noted that the retirement age of academics staff of polytechnics has since been increased to 65 years like their counterparts in the universities.

At page 3 of the said “exhibit ASUP 6” paragraph 3.3.9 (a) headed “basic salary” it is stated that (i) “It was agreed that government should increase the HATISS IV scale by 22% with two steps differential for academic staff effective from 1st May, 2001.”

It is pertinent to note that the said “exhibit ASUP 6” at page 1 paragraph 2 reads:

“This agreement consists of issues requiring action by either the legislative or executive arms of government. In the light of separation of powers therefore, recommendations requiring legislative action will be sent to the National Assembly.

The implementation agency of the decisions of government will be the existing structure which is the National Board for Technical Education (NBTE).”

Thus, it is the National Board, which is charged with the implementation of policies on technical and technological education and review of welfare and service conditions of polytechnic staff nation-wide. The defendants/appellants will therefore be laboring under false impression to hold that they are not bound by such policies.

On the bindingness of (exhibit) ASUP 6, which the appellants contend is a collective agreement, it is clear that the government of Kwara State by “exhibit ASUP 8” approved the implementation of 22% increase on HATISS IV which was one of the terms of the agreement in “exhibit ASUP 6”. ASUP 8 states in part:

“I am pleased to inform you that at the meeting, it was decided that 22% of salary increase be implemented by your managements. For this reason his Excellency has kindly offered to consider increases in the monthly subventions paid to your respective institutions to assist meet the increases in your wage bill.”

The letter emanated from no less a person than the Honourable Commissioner for Education Kwara State Alhaji Issa Malete and it was written in 2002 addressed to the rector of the 4th appellant and copied to the Chairman All Committee of Tertiary Institutions C/o Kwara State Polytechnic.

Exhibit ASUP 9 which is an address by the visitor of the 4th defendant/appellant the then Governor of Kwara State Alhaji Muhammed Alabi Lawal (of blessed memory) to the National Conference of Academic Staff Union of Polytechnics held in Kwara State from 6th to 12th October, 2002 speaks volumes on the adoption of the terms of exhibit ASUP 6 “see paragraph 5 of the address where he stated that “To this effect we have been up and doing in the provision of enabling environment for our tertiary institutions to meet with the latest development, these has been demonstrated through approval of 22% increase in HATISS IV staffers…”

See also exhibit ASUP 11 from the Commissioner of Finance to the Head of Service conveying the approval of the increase and implementation of the 22% on HATISS salary scale. See further exhibit ASUP 12. As for exhibit ASUP 13 there is no how that the 4th defendant and indeed all other defendants would pick and choose which policy of the Federal Government on Technical Education they would implement in view of the provisions of the NBTE Act.

There is no doubt that education is on the concurrent legislative list but once the Federal Government has formulated a national policy on technical education the state policy must give way by virtue of the doctrine of “covering the field”.

In Attorney-General Ogun State v. Attorney-General of The Federation (1982) 3 NCLR page 166 at 194 paragraphs 5-7 Idigbe JSC stated the position of the law as follows:

“Where under a Federal set up both the Federal Government and the State Legislatures, each being empowered by the Constitution so to do legislate on the same subject, then if it appears from the provisions of the Federal Laws on the subject that the Federal legislature intends to cover the entire field of the subject matter and thus provide what the law on the subject should be for the entire federation then the state law on the subject is inconsistent with the Federal law and the latter must prevail and the state law on the subject is invalid”.

Thus, in the instant case, regulations like exhibit ASUP 14 on the terms of employment of academic staff of Kwara State Polytechnic are anachronistic and inconsistent with the provisions relating to the retirement age of academic staff of Polytechnics all over the Federation in view of ASUP 13 (views and comments of the Federal Government on the report of the commission on the Review of Higher Education in Nigeria), which led to exhibit ASUP 6 on the retirement age of academic staff and subsequently exhibit ASUP 17 (1993), ASUP 4 (1994), ASUP 3 (2001) ASUP 18 (2003) from the National Board for Technical Education, and ASUP 19 of 27th September, 2002.

In the same way the Polytechnic Law (Cap. 120) Laws of Kwara State 1994 in so far as it provides for 60 years retirement age for academic staff of Polytechnics in Kwara State, along with exhibits P9 to 11 are moribund and inconsistent with the Federal Government policy on the retirement age of academic staff of Polytechnics nation-wide and are therefore no longer applicable to the terms and conditions of the first to third respondents employment in view of the agreements duly entered into by representatives of the defendants/appellants and the plaintiffs/respondents. This is more so in view of the tacit approval given by the Government of Kwara State and the 4th defendant/appellant by the various correspondences to the chairman ASUP Kwara State Polytechnic which have been tendered in these proceedings.

Having so said I shall now turn to the issue of whether the trial judge was right in granting perpetual injunction to restrain the defendants/appellants from reducing the retirement age of Academic Staff of Kwara State Polytechnic from 65 to 60 years.

A perpetual injunction has been defined as a post trial relief usually granted after a full trial of a case on the merit and it is usually directed at the final settlement and enforcement of the rights of the parties, which were in dispute. See page 143 of the “injunctions and enforcement of orders” first edition by Afe Babalola SAN. It has been held that like all other equitable relief’s the plaintiffs must establish to the satisfaction of the Court that they had vested rights which ought to be protected and that irreparable damage will be occasioned them if a perpetual injunction is not granted.

Again the plaintiffs must also show that the balance of justice and convenience are in their favour. See the cases of Biyo V. Aku (1996) 1 NWLR (Pt 422) 1 at 34; Lawal v. Adeniji (1997) 3 NWLR (Pt. 494) 457 at 464 and Standard v. Vestry of St. Giles (1882) 20 CH.D 190 at 195. See generally “injunctions and enforcement of orders” supra at pages 144 to 145. In the instant case the lower court found on the preponderance of evidence (and I agree totally with him), that on the authority of Wilson V. Oshin (2000) 9 NWLR (Pt.673) 442; (2000) 2 SCNJ 371 at 391 and other authorities cited that the plaintiffs/respondents acquired vested rights which accrued to them by virtue of exhibit ASUP 17 and other documents which established that the defendants had acquiesced in the alteration of the retirement age of academic staff of the 4th defendant from 60-65 years and that those rights cannot therefore be withdrawn arbitrarily as the defendants attempted to do when they wrote exhibit ASUP 1 to the 3rd plaintiff/respondent. If the defendants/appellants are allowed so to do, they will be approbating and reprobating thereby causing incalculable damage to the careers of the plaintiffs/respondents.

The tragedy of this country is that we seem to play politics even with education and turn round to blame the teachers for the falling standards. Government is supposed to be a continuum and those who find themselves as successors to past Governments should be able to be consistent with established policies in the overall interest of political and economic stability.

Accordingly having proved their case even if they did not ask, the lower Court and indeed this Court could have granted the plaintiffs/respondents a perpetual injunction as an ancillary relief.

I shall therefore uphold the judgment of the lower court and answer the question posed by issue number 2 in the affirmative. In other words, the order of perpetual injunction restraining the defendants/appellants from reducing the retirement age of the academic staff of Kwara State Polytechnic from 65 to 60 years except as may be directed by the National Board for Technical Education (NBTE) is proper.

This appeal is therefore dismissed in its entirety and I make no order as to costs.

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Other Citations: (2006)LCN/2111(CA)