The Court of Appeal, Abuja Division, has in a unanimous judgment set aside the decision of the National Industrial Court sitting in Abuja and awarded N10,000,000.00 (Ten Million Naira) in costs against the National Pension Commission (PenCom) and its Chairman for unlawful labour practices against 20 aggrieved staff members.
![](https://thenigerialawyer.com/wp-content/uploads/2024/11/TheNigerialawyer-WhatsApp-Channel1.jpg")
The judgment, delivered by Justice Oyejoju Oyebiola Oyewumi with Justices Bilkisu Bello Aliyu and Donatus Uwaezuoke Okorowo concurring, nullified the June 13, 2023 judgment of the lower court, which had dismissed the claims of the workers in their entirety. Justice Aliyu, in her concurring opinion, stated that she had read the lead judgment and adopted its entire reasoning and conclusion. Justice Okorowo similarly concurred, agreeing that the appeal had merit and should be allowed.
The dispute arose from a recruitment exercise conducted by PenCom, which advertised vacancies for positions ranging from Assistant Manager to Deputy Manager and Executive Assistant to Senior Executive Assistant. Following aptitude tests and interviews, 20 successful candidates were issued letters of offer of probationary employment dated 1st March, 2017. The letters directed the workers to assume duty on 2nd May, 2017, at PenCom’s headquarters in Abuja.
The employment letters, signed by Hadiza Wall Oniyangi for the Head of Human Capital Management, contained conditions (a) through (t), including requirements for police fingerprint clearance, satisfactory referee reports, a successful medical report from a PenCom-appointed medical institution, readiness to serve anywhere in Nigeria, non-transfer of service from previous employment, a six-month probationary period, and various terms of service. Crucially, condition (p) incorporated by reference the approved Conditions of Service governing the employment of staff in the National Pension Commission, and condition (t) required each appointee to accept the offer by signing and returning a duplicate within seven days.
Upon resumption, the workers reported to the Head of Human Capital Management as directed in their employment letters. However, instead of being deployed to departments and assigned desk duties, they were told by the Head of Human Capital Management to wait at home for further directives from PenCom regarding deployment to departments and assignment to desk duties. From 2017 onward, no further directives were ever issued by PenCom, despite the workers having written several letters to the Commission seeking clarification.
The Court noted that many of the employment conditions required the participation of both parties. The Appellants pointed out that some conditions, such as the medical examination (condition C), could only be completed at a medical institution appointed by PenCom. Similarly, condition (B) regarding satisfactory referee reports, condition (G) regarding the probationary period, and condition (I) requiring the employees to take instructions from superiors, all required the cooperation of PenCom. The Respondents never designated a medical institution, never replied to the workers’ letters, and never provided any further instructions.
Several of the workers had resigned from their former employment to take up the PenCom positions. The record of appeal contained resignation letters from some of the appellants, including one from Chiazor Adaobi Nwafor (the 5th Appellant), a Senior Executive Assistant, who resigned from Unity Bank, and another from the 1st Appellant who was employed as Assistant General Manager and resigned from UBA. The Court observed that the frustration or suspension of these workers’ employment shattered their expectation to serve their fatherland through their engagement by PenCom.
Arguing through their counsel, Samuel Ogala Esq. of Falana and Falana Chambers, the workers distilled two main issues for determination: first, whether PenCom, having frustrated the satisfaction of the conditions stated on the letter of employment, could take benefit of its own wrong; and second, whether, having regard to condition (p) stated on the letter of employment issued to the Appellants, the parties were bound by the conditions of service governing the staff of the National Pension Commission for the purposes of Sections 28 and 29 of the Pension Reform Act 2014.
The Appellants argued that paragraph 8 of the Respondents’ Counter Affidavit before the Trial Court admitted that the Respondents prevented the Appellants from resuming office. Relying on Section 75 of the Evidence Act and the case of Amadiume v. Ibok (2006) 6 NWLR (PT 975) 158, they submitted that admitted facts need no further proof. They contended that the letters of employment had no deadline for compliance with the listed conditions and that the conditions were for both parties to comply with, not only the Appellants.
The Appellants further invoked the doctrine of estoppel, citing Great (Nig) Insurance Plc v. Zeal Trust Ltd (2020) LPELR-53107 (CA) and Odua Investment Co. Ltd. v. Talabi (1991) 1 NWLR (PT.170) 76, arguing that PenCom could not back out of a promise that had induced the workers to take detrimental steps, including resigning from their previous employment. They also relied on Sections 28 and 29 of the Pension Reform Act to submit that as civil servants, they are entitled to the benefits prescribed by law.
The Respondents filed a Notice of Preliminary Objection on 6th November, 2024, raising the issue of whether the Appellants’ suit was statute-barred under the three-month limitation period provided by the Public Officers Protection Act, Cap P41, Laws of the Federation of Nigeria, 2004, and whether the Trial Court had jurisdiction to entertain the case.
On the main appeal, the Respondents formulated two issues: (a) whether the Trial Court was right to hold that the failure of the Appellants to fulfil the conditions stipulated in the offer of probational appointment rendered the said probational employment inchoate, non-binding and unenforceable; and (b) whether the Trial Court was right to find that the Appellants are not employees of PenCom and therefore cannot be regarded as public servants/officers for the purposes of Sections 28 and 29 of the Pension Reform Act, 2014.
The Respondents contended that the employment was conditional and that the Appellants had failed to satisfy the conditions, rendering the contract inchoate. They pointed to Exhibits PENCOM 12-16, arguing these showed that PenCom had clearly suspended the Appellants’ probationary employment even before the resumption dates. They relied on Takori v. Matawalle (2019) 17 NWLR (PT. 1752) 165 and Oyewusi v. Olagbami (2018) 14 NWLR (PT.1639) 297, arguing that the contract was predicated on conditions that were never complied with.
The Respondents also submitted, relying on letters written on behalf of the Appellants (Exhibits PENCOM 12 and 13 at pages 69-71 of the Record of Appeal), that the Appellants had been informed prior to their scheduled resumption dates of the indefinite postponement/suspension of the recruitment exercise.
The Appellants responded to the Preliminary Objection on 5th May, 2025 (deemed properly filed on 7th May, 2025). They argued that the same jurisdictional issue had been raised at the Trial Court and ruled upon, with the ruling delivered on the same day as the main judgment (see page 117 and page 318 of the Record of Appeal). They stressed that the Respondents, being dissatisfied with the Trial Court’s ruling on jurisdiction, ought to have filed a Notice of Cross Appeal. Failure to do so, they argued, meant the Respondents had accepted the Trial Court’s ruling and were bound by it. They cited Kperanisho v. Aloko (2015) 14 NWLR (PT. 1478) 153 and Osamwonyi v. Osamwonyi (2011) 8 NWLR (PT. 1249) in support.
Justice Oyewumi, addressing the preliminary objection first before the main appeal (as required by established practice, citing APC v. Umar & Ors (2019) LPELR-47296(SC)), noted that jurisdiction is the pillar of adjudication and cited the Supreme Court’s decision in Aribisala v. AMCON (2025) LPELR-80536(SC) on the fundamental nature of jurisdiction.
However, the Court made a critical finding: the same jurisdictional objection had been raised and decided by the Trial Court. The Respondents did not appeal against that ruling. Citing Iyoho v. Effiong (2007) NWLR (Pt. 1044) 31, Biariko & Ors v. Edeh-Ogwuile (2001) 12 NWLR (Pt. 726) 235, and FCDA v. Naibi (1990) 3 NMLR (Pt. 138) 270, the Court held that a decision not appealed against is deemed accepted by the party against whom it was entered and is therefore binding. The Court further relied on the Supreme Court’s decision in Okafor & Anor v. CBN (2024) LPELR-62978(SC), which held that although jurisdictional issues can be raised at any time, an appellate court lacks jurisdiction to reconsider a preliminary objection decided by a lower court unless it comes on appeal as a fresh or new issue.
The notice of preliminary objection raised by the Respondents was accordingly overruled and dismissed.
The Court examined the employment letters in detail, reproducing the full text of the offer letter (reference PenCom/ADM/HCM/HR/26, dated 1st March, 2017) addressed to the 1st Appellant, Ismalia Oluwatisin Gizali, offering the position of Assistant Manager subject to conditions (A) through (U). The Court noted that the letters constituted a formal offer of employment, duly accepted by the Appellants who signed and returned duplicate copies as required.
Citing Enemchukwu v. Okoye & Anor (2016) LPELR-40027 (CA) (now JSC), the Court observed that a contract is an agreement between two or more parties creating enforceable obligations at law. Relying on Iyere v. BFFM Ltd (2008) 18 NWLR (Pt 1119) 300 and Nneji v. Zakhem Cons (Nig) Ltd (2006) 12 NWLR (Pt. 994) 297, the Court held that a valid employment contract requires offer, acceptance, and consideration, all of which were present in this case.
The Court applied the principle of document interpretation from Nwegbu v. Nwegbu (2017) LPELR-42680(CA), holding that documents must be construed in their ordinary and grammatical meanings without importing extraneous words. Justice Oyewumi found that upon careful reading, the employment letters contained no time limit for the fulfilment of the listed conditions (except for the date of acceptance). The conditions were to be read together, not disjunctively, and certain conditions specifically could not be fulfilled without PenCom’s own action or cooperation.
The Court noted that PenCom’s Respondents did not deny that they failed to appoint a medical institution for the medical test (condition C), never provided access to the facility, and produced no evidence showing the Appellants were allowed to resume on the specified date but failed or refused to do so. The Court stated: the items or conditions listed also constitute the terms of the employment, and items (d) through (t) are all terms of the employment which are binding on all parties to the contract and not only on the Appellants to comply with.
Applying the doctrine of estoppel, citing Skyebank Plc v. Adegun (2024) LPELR-62219(SC) and the principle from Section 169 of the Evidence Act, 2011, the Court held that PenCom could not mislead the Appellants into believing they were employed, cause them to resign from their former positions, and then turn around to claim no valid employment existed. The Court declared that a valid probationary employment relationship existed between the Appellants and PenCom. Issue one was resolved in favour of the Appellants.
Having established that a binding contract existed, the Court turned to whether the workers were entitled to payment. Justice Oyewumi noted that the Respondents, having admitted they issued the employment letters and that the Appellants accepted same, could not deny the existence of a contractual relationship. Citing NRMA & FC v. Johnson & Ors (2019) 2 NWLR (PT. 1656) 247, the Court affirmed that for a contract to exist, there must be offer and acceptance, both of which were present here.
The Court further found, drawing on the analogous Supreme Court decision in NRMA & FC & Ors v. Johnson & Ors, where workers who had been offered employment but whose appointments were subsequently frustrated by a government directive were held entitled to salaries for the period of frustration. Following the doctrine of stare decisis, Justice Oyewumi concluded that PenCom’s suspension of the workers’ employment from 2017 onward constituted a frustration of a valid contract at no fault of the Appellants, entitling them to damages.
Regarding the specific quantum, the Court noted that the employment letters did not specify exact salary figures but directed the Appellants (via condition F) to obtain salary details from the Head of Human Capital Management. The Court found that items (g) and (h) of the employment letter established that the Appellants were on a 6-month probationary period and that either party could terminate the employment during probation by giving one month’s notice or one month’s salary in lieu of notice. Accordingly, the Court awarded each Appellant 6 months’ salary plus one month’s salary in lieu of notice (calculated from 1st March, 2017, using PenCom’s salary structure), representing the salary they would have earned during the probationary period and the notice period for unlawful constructive termination.
The Court invoked Section 15 of the Court of Appeal Act to assume the position of the Trial Court and Section 19(d) of the National Industrial Court Act, 2006, which empowers the NIC to award compensation or damages. Citing P. Z. Cussons (Nig) Plc v. Bello (2025) LPELR-81656(CA) and Adegboye v. UBA (2022) LPELR-58778(CA), the Court affirmed the NIC’s power to make awards of compensation where it deems necessary.
The Court also referenced the NICN’s own jurisprudence, particularly Captain Benedict Olusoji Akanni (Rtd) v. The Nigerian Army & 3 Ors (Suit No. NICN/ABJ/125/2018, judgment of 27th May, 2020), where the NICN awarded N75 million in general damages for loss of expectation right. Justice Oyewumi noted that having awarded salary and allowances as damages (the 6 months plus one month in lieu of notice), additional general damages would amount to double compensation and were therefore not awarded separately.
Reliefs (a) declaring the existence of a valid employment contract, (b) declaring PenCom’s conduct as unfair labour practice, (c) declaring the Appellants as employees/civil servants, and (d) ordering payment of salaries and allowances were granted. Reliefs (e) seeking injunctive orders and (f) seeking further declaratory relief were refused and dismissed.
The Court made the following final orders:
(i) The appeal was found to have merit and was allowed.
(ii) The Judgment of the National Industrial Court, Abuja, delivered on 13th June, 2023, by Obaseki J. in Suit No. NICN/ABJ/188/2022 (Oluwatosin Gizali & Ors v. National Pension Commission & Anor) was set aside.
(iii) Reliefs (a), (b), (c) and (d) of the Appellants succeeded; reliefs (e) and (f) were refused and dismissed.
(iv) The 1st Respondent (PenCom) is to calculate and pay each Appellant 6 months’ salary and allowances (for the probationary period from 1st March, 2017) plus one month’s salary in lieu of notice for the unlawful constructive termination of employment, using PenCom’s salary structure.
(v) Cost of N10,000,000.00 (Ten Million Naira) Only was awarded to the Appellants against the Respondents for putting the Appellants to unnecessary and unwarranted rigors of litigation since 2022.
The twenty workers who brought the appeal are: (1) Ismalia Oluwatosin Gizali, (2) Chibueze Francis Onah, (3) Suleiman Aminu Muhammad, (4) Marry-Anne Efeosi Momoh, (5) Chiazor Adaobi Nwafor, (6) Oluwafeyikemi Omotowa, (7) Mustapha Sadiq, (8) Benita Eney Nyiam, (9) Jadesola Wuraola Goodluck, (10) Onyinye Ngozi Obeagu, (11) Zubairu Zakariya, (12) Ibrahim Abdumalik, (13) Maleghemi Linda Timehin, (14) Agbo Egwu Agbo, (15) Tolulope Olorunmilola Ogunlade, (16) Adebola Lawal, (17) Michael Okebugwu Amuzie, (18) Abubakar Mohammed A., (19) Oluwaseyi Oguneye, and (20) Olakunle Ojo Oleshin.
The respondents are: (1) National Pension Commission, and (2) The Chairman, National Pension Commission.
The judgment referenced an extensive body of case law, including: Amadiume v. Ibok (2006) 6 NWLR (PT 975) 158 on admitted facts requiring no further proof; Alade v. Alic (Nig) Ltd (2010) 19 NWLR (PT. 1226) 111 on a party not benefiting from its own wrong; Enemchukwu v. Okoye & Anor (2016) LPELR-40027 (CA) on the definition of contract; Iyere v. BFFM Ltd (2008) 18 NWLR (Pt 1119) 300 on the legal basis of employment; Nneji v. Zakhem Cons (Nig) Ltd (2006) 12 NWLR (Pt. 994) 297 on the ingredients of a valid contract; Mekwunye v. WAEC (2020) 6 NWLR (Pt 1719) 1 on maturation of contracts; Nwegbu v. Nwegbu (2017) LPELR-42680(CA) on document interpretation; Skyebank Plc v. Adegun (2024) LPELR-62219(SC) on estoppel; NRMA & FC & Ors v. Johnson & Ors (2019) 2 NWLR (PT. 1656) 247 on frustration of employment contracts; MTN (Nig) Comm. Ltd v. Corporate Comm Inv. Ltd (2019) 9 NWLR (Pt. 1678) 427 on equity acting in personam; Aribisala v. AMCON (2025) LPELR-80536(SC) on jurisdiction; Okafor & Anor v. CBN (2024) LPELR-62978(SC) on preliminary objections; Okeke v. Nwigene & Anor (2021) LPELR-58170(SC) on consequential orders; P. Z. Cussons (Nig) Plc v. Bello (2025) LPELR-81656(CA) on the NIC’s power to award damages; UMTHMB v. Dawa (200) 16 NWLR (PT. 739) 424 on fair treatment of employees by public bodies; and numerous others.
This judgment carries significant implications for Nigerian employment law. It reinforces the principle that an employer who issues letters of employment, conducts a recruitment process including advertisements, interviews, and aptitude tests, and then unilaterally suspends or frustrates the employment without just cause, cannot escape liability by claiming the employment contract was inchoate due to unfulfilled conditions that the employer itself prevented the employees from satisfying.
The Court’s reliance on equitable principles, particularly the doctrine of estoppel and the maxim that equity acts in personam, signals a willingness by Nigerian appellate courts to look beyond strict contractual formalities and examine the substance and conduct of the parties. The ruling also affirms the power of the Court of Appeal, under Section 15 of the Court of Appeal Act, to assume the position of the Trial Court and render the decision that the lower court ought to have reached.
PENCOM CA.ABJ.CV.830.2025.pdf 2The award of N10 million in costs, described as recompense for the unnecessary and unwarranted rigours of litigation endured since 2022, also sends a strong message to public bodies about the consequences of engaging workers in protracted and ultimately meritless litigation.
For the Appellants: Samuel Ogala Esq., Falana and Falana Chambers
Reimagine your practice with the power of AI “...this is the only Nigerian book I know of on the topic.” — Ohio Books Ltd
Authored by Ben Ijeoma Adigwe, Esq., ACIArb (UK), LL.M, Dip. in Artificial Intelligence, Director, Delta State Ministry of Justice, Asaba, Nigeria.
Bonus:
Get a FREE eBook titled “How to Use the AI in Legalpedia and Law Pavilion” with every purchase.
How to Order: 📞 Call, Text, or WhatsApp: 08034917063 | 07055285878 📧 Email: benadigwe1@gmail.com 🌐 Website: www.benadigwe.com
Ebook Version: Access directly online at: https://selar.com/prv626
_______________________________________________________________________ [A MUST HAVE] Evidence Act Demystified With Recent And Contemporary Cases And Materials
_______________________________________________________________________
