IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATE: 15THOCTOBER, 2018 SUIT NO: NICN/AK/11/2013
BETWEEN
1. MR. TAOFEEK SULAIMON
2. MR. S.B. AKINRINDE
3. J.A. ALAO ………………….CLAIMANTS
4. ALHAJI IBRAHEEM ADEBAYO
AND
1. OSUN STATE GOVERNMENT
2. GOVERNOR, OSUN STATE
3. THE ATTORNEY-GENERAL, OSUN STATE
4. OSUN STATE UNIVERSAL BASIC
EDUCATION BOARD ………………..DEFENDANTS
5. THE EXECUTIVE SECRETARY, OSUN STATE
UNIVERSAL BASIC EDUCATION BOARD
6. EGBEDORE LOCAL GOVERNMENT
EDUCATION AUTHORITY
REPRESENTATION
DosuBabatunde with him areJolaAkinola, M.O Ugah, A.OAbidoye, Victor Omolola for the claimants.
AdedapoAdeniyi (Acting Solicitor General) with him areHassan Agbelekale, WuraolaOgunfolabi (Mrs.), K.A Olajide (State Counsel Osun State Min. of Justice) for the defendants.
JUDGMENT
The claimants were appointed, issued appointment letters and sworn in by the 2nd defendant in 2008 as the Chairman, Secretary and members of Egbedore Local Government Education Authority, the 2nd claimant was also sworn in on same day and they all resumed office at the 6th defendant’s office immediately. The 1st claimant’s monthly salary is the sum of N285,000.00 while that of the 2nd claimant is N210,000.00 and N206,250.00 for each of the 3rd and 4th claimants, which was paid to them from 2008 till October, 2010, when their salaries were stopped. According to the claimants they were entitled to leave bonus/allowance annually and that they were paid leave bonus for year 2009. The Claimants wrote a formal letter dated 2nd March, 2011 to the 5th defendant demanding for payment of their unpaid salaries and allowances for November and December 2010 as well as January and February 2011 leave allowances, the defendants did not reply but told them that their outstanding salaries and allowances will be paid as soon as the 2nd defendant directs such payment. That sometimes on the 23rd of June, 2011, it was announced over Osun State Broadcasting Corporation (OSBC) radio that the Chief of Staff to the 2nd defendant issued out a letter dissolving all Boards and parastatals in Osun State, and was also reported on 24th June, 2011 by the Nigerian Tribune on page 8. That in compliance with the directive, they handed over to the most Senior Officer of the 6th defendant. They were not accused of fraud or any act of misconduct by any of the defendants. Claimants have not been paid their outstanding salaries and allowances uptill now. To the claimants by the law that established Local Government Education Authorities in Osun State, LGEA Boards can only be dissolved by the Governor of Osun State for reasons contained in the said law and not by a mere announcement on a radio by a Chief of Staff, otherwise each of them will hold office for the period stipulated in the said Law, hence they filed this suit to ventilate their grievances.
By way of an Originating Summons filed on 8th January, 2013, the claimants approached this court for the determination of the following questions:
1. Whether going by the content of the letters of appointment of the claimants and the nature of their appointments, it is proper, lawful and legal for the defendants (especially the 1st, 2nd, 4th & 5th defendants) to withhold and decide not to pay the claimants’ salaries, as Chairman, Secretary and members of Egbedore Local Government Education Authority (Board), for the months of November, 2010 to June, 2011 when the 1st defendant purportedly dissolved all Boards of Local Government Education Authorities in Osun State alongside all boards of non-statutory Commissions, Parastatals, Agencies, corporations and Governing Councils of tertiary Institutions in Osun State.
2. Whether it is lawful and legal for the defendants (especially the 1st, 2nd, 4th and 5th defendants) to withhold and decide not to pay the claimants as Chairman, Secretary and members of Egbedore Local Government Education Authority (Board), their leave allowances/bonus for year 2010.
3. Whether by virtue of the provisions of S. 8 (i) (iii) and (iv) of the Osun State Universal Basic Education Law, 2005 the purported dissolution of Egbedore Local Government Education Authority (Board) by the Chief of staff to the 2nd defendant (without any reason) is legal, lawful and in accordance with the provisions of the said law.
4. If the answer to question 3 above is in the negative, whether the claimants are not entitled to be paid their salaries and allowances from June 22, 2011 when the 1st defendant purportedly dissolved Egbedore Local Government Education Authority (Board) through the Chief of staff to the 2nd defendant until the expiration of their respective tenures of office as stipulated by S. 8(iii) and (iv) (c) of the Osun State Universal Basic Education Law, 2005.
WHEREOF the claimants pray the court for the following reliefs:
1. A Declaration that the non-payment of the claimants’ salaries, as Chairman, Secretary and members of Egbedore Local Government Education Authority (Board), for the months of November 2010 to June, 2011 by the defendants (especially the 1st, 2nd, 4th & 5th defendants) is wrongful, unlawful and illegal and amounts to unlawful denial of the claimants’ lawful entitlements.
2. A Declaration that the non-payment of the claimants 2010 leave allowance/bonus as Chairman, Secretary and members of Egbedore Local Government Education Authority (Board), by the defendants (especially the 1st, 2nd, 4th & 5th defendants) is wrongful, unlawful and illegal and amounts to unlawful denial of the claimants’ lawful entitlements.
3. A Declaration that the purported dissolution of Egbedore Local Government Education Authority (Board) by the Chief of Staff to the defendant sometime on the 22nd day of June, 2011 is wrongful and not in accordance with the provisions of the enabling law (the universal Basic Education Authority Law, 2005) of Osun State and as such illegal, null, void and of no effect whatsoever.
4. An Order directing the defendants to effect immediate payment of the salaries of the claimants from November 2010 to June, 2011 which salaries are broken down as follows:
| a. | 1st claimant (Mr. TaofeekSulaimon) | – N285,000 per month for 8 months |
= N2,280,000.00 |
| b. | 2nd claimant (Mr. S.B. Akinrinde) | – N210,000 per month for 8 months |
= N1,680,000.00 |
| c. | 3rd claimant (J.A. Alao) | – N206,250 per month for 8 months |
= N1,650,000.00 |
| d. | 4th claimant (AlhajiIbraheem Adebayo) | – N206,250 per month for 8 months |
= N1,650,000.00 |
|
Total |
= N7,260,000.00 |
5. An Order directing the defendants to effect immediate payment of 2010 leave allowance/bonus to the claimants as follows:
| a. | 1st claimant (Mr. TaofeekSulaimon) | = N94,000.00 |
| b. | 2nd claimant (Mr. S.B. Akinrinde) | = N69,000.00 |
| c. | 3rd claimant (J.A. Alao) | = N67,000.00 |
| d. | 4th claimant (AlhajiIbraheem Adebayo) | = N67,000.00 |
|
Total |
= N297,000.00 |
6. Injunction restraining the defendants from treating the claimants’ appointments as Chairman and members of EgbedoreLocal Government Education Authority (Board) as having come to an end in June, 2011 or appointing other persons to replace them, until all the entitlements of the claimants are paid.
7. An Order directing the payment of monthly salaries to the 1st, 3rd and 4th claimants by the defendants from July, 2011 up till 9th day of November, 2011 when their tenure of office lawfully expired by effluxion of time at the monthly salary of N285,000.00 for the 1st claimant and N206,250.00 to each of the 3rd and 4th claimants.
8. An Order directing the resumption of payment of monthly salary of N210,000.00 to the 2nd claimant by the defendants from July, 2010 up till 9th day of November, 2012 when his tenure of office lawfully expires by effluxtion of time.
9. An Order directing the defendants to effect immediate payment of the 2011 annual leave allowance/bonus to the claimants as follows:
| a. | 1st claimant (Mr. TaofeekSulaimon) | = N94,000.00 |
| b. | 2nd claimant (Mr. S.B. Akinrinde) | = N69,000.00 |
| c. | 3rd claimant (J.A. Alao) | = N67,000.00 |
| d. | 4th claimant (AlhajiIbraheem Adebayo) | = N67,000.00 |
|
Total |
= N297,000.00 |
Filed in support of the Originating Summonis an affidavit with exhibits and a written address. In reaction, the defendantsjointly filed on 6th May, 2013, a counter-affidavit with an exhibit and written address. To this, the claimants filed on 29th of October, 2013, a further affidavit with exhibits and a reply on points of law. The defendants filed a notice of preliminary objection on the 15th April, 2015 challenging the jurisdiction of this Court. The Court ruled that it has jurisdiction and discountenanced the arguments of the defendants.
Filed alongside the Originating Summons and supporting Affidavit is a written address wherein the claimants framed three issues which are similar to the questions submitted above, for the determination of the Court:
1. Whether the defendants can lawfully and legally withhold and decide not to pay the claimants’ remunerations due to them as Chairman, Secretary and members of Egbedore Local Government Education Authority (Board) which they actually worked for an whether the action by the defendants withholding same will not amount to unlawful denial of the claimants’ lawful entitlements.
2. Whether by the express and unambiguous provisions of S. 8(i), (iii) and (iv) of the Osun State Universal Basic Education Law, 2005 the purported removal of the claimants from their respective offices through a circular letter purportedly authored and issued by the Chief of staff to the 2nd defendant sometime on the 22nd day of June, 2011 (or thereabout) without any reason is proper, legal, lawful and in accordance with the provisions of the said law.
3. If the answer to issue 2 above is in the negative, whether the claimants are not entitled to be paid the total of all remunerations due to them up till the date their tenure of office lawfully expires in line with S. 8 (iii) & (iv) of the Osun State Universal Basic Education Law, 2005.
On issue one, learned claimants’ counsel submitted that having established the monthly salary and the annual leave bonus/allowance of each of the claimants by Exhibits A1-A4 and paragraphs 7, 9-12 of the affidavit in support of the originating summons, which was actually paid and received up till October, 2010, the defendants cannot lawfully withhold their salaries and allowances for the months of November, 2010 up to the time defendants purportedly terminated their appointment in June, 2011 and that there is no justification for such action by the defendants as same will amount to a breach of the contract between them and also unlawful denial of their entitlements which the law frowns at. Counsel posited that the defendants cannot hinge their action on the change of Government as that does not affect the status of any of the defendants (especially the 1st defendant) and that of the claimants as Exhibits A1-A4 were issued on behalf of the 1st defendant and whatever action done on its behalf (and even on behalf of all the defendants) remain valid in law, notwithstanding the nullification of the election of the predecessor – in – office of RaufAregbesola. Reference was made to the case of Balonwu v. Gov. Anambra State [2010] 37 W.R.N 1 at 31. He then submitted that the defendants cannot lawfully withhold and/or decide not to pay the claimants’ remunerations (including salaries and allowances) due to them as Chairman, Secretary and members of Egbedore Local Government Education Authority (Board) as such action will amount to unlawful denial of the claimants’ lawful entitlements.
In arguing issue two, referring to Section 8 (iii) and (iv) of the Osun State Universal Basic Education Law, 2005, counsel submitted that each of the 1st, 3rd and 4th claimants is expected to hold office for a period of 3 years while the 2nd claimant is expected to hold office for a period of 4 years from the 10th day of November, 2008 and that the provisions of the law make clear that each of the claimants can only be removed from office by the Governor for inability to discharge the functions of his office (whether arising for infirmity of mind or body) or for any fraudulent act or misconduct, and that nobody (not even the Governor) reserves the right to terminate their appointment at will as they do not hold their appointments at the pleasure of their employer. Reliance was placed on the authority of Governor, Ekiti State &Anor v. Chief George Femi Ojo [2007] 16 WRN 56 at 62 r. 3 and while referring to the cases of Kraus Thompson Organization v. N.I.P.S.S [2005] 10 WRN 127 at 145, Ezeaduke v. Maduka&Ors [1997] 8 NWLR 518; Pastor Monday Williams Umoh&Ors v. NKLam&Ors [2001] 6 WRN page 1 and Adisa v. Oyinwole [2000] 10 NWLR pt. 674 at 116, he submitted that the provisions of the law being and unambiguous, should therefore be given their ordinary grammatical meanings.
Learned counsel went on to argue that none of the reasons in the above cases (which are conditions precedent) was adduced as the reason for the removal of the claimants, and he therefore submitted that the purported removal of the claimants from their respective offices through a letter purportedly issued by the Chief of staff to Osun State Governor on 22nd of June, 2011 (or thereabout) without any reason known to law is improper, illegal, unlawful, ineffectual and void same not being in line with the clear provisions of S. 8 (i), (iii) and (iv) of the Osun State Universal Basic Education Law, 2005, on this, counsel again referred to the case of Governor, Ekiti State &Anor v. Chief George Femi Ojo (supra) r. 5 and also the case of Ibeta v. Okpe [1996] 9 NWLR (Pt. 473) 401 at 433 – 434. He urged the Court to hold that the purported removal of the claimants from their respective offices through a circular letter purportedly authored and issued by the Chief of staff to Osun State Governor on 22nd June, 2011 (or thereabout) without any reason known to law is improper, illegal, unlawful, ineffectual and void same not being in line with the provisions of the Osun State Universal Basic Education Law, 2005.
Regarding issue three, it is the submission of learned claimants’ counsel that having answered the above question (issue 2) in the negative, the claimants are entitled to be paid the total of all remunerations due to them up till the date their tenure of office lawfully expires in line with S. 8 (iii) & (iv) of the Osun State Universal Basic Education Law, 2005. Again, the case of Governor, Ekiti State &Anor v. Chief George Femi Ojo (supra) and that of Igbe v. Gov. Bendel State [1983] 1 SCNLR73 or [1983] 2 SC were referred to. He therefore urged the Court to direct payment of the claimants’ entitlements (salaries and allowances) from the time of the unlawful termination of the contract between them and the defendants up till the time their tenure of office expires in line with S. 8 (iii) & (iv) of the Osun State Universal Basic Education Law, 2005.
The defendants/respondents’ case vide their Counter Affidavit is that from 26th November, 2010 when the 2nd defendant was sworn in as the Governor of Osun State, the claimants and other members of the Board in all the Local Government Education Authorities abdicated duty by vacating the office without notice and did not hand over to any officer of the 6th defendant. That the 2nd defendant dissolved all Boards and parastatals in Osun State on 20th June, 2011 by a circular letter dated same day and titled Dissolution of Boards of Non Statutory Commissions parastatals, Corporations and Governing Councils of Tertiary Institutions (Exhibit MOJ 1) including the Board of the claimants who have vacated their offices seven months before the said dissolution. They continued that the 2nd defendant on behalf of the 1st defendant had paid all Board members including the claimants their 2010 leave allowance and November, 2010 salary. To the defendants the appointments of the claimants were purely political in nature and not in compliance with any law. Defendants therefore urged the Court to dismiss this suit in the interest of justice as the claimants are not entitled to the reliefs sought.
The defendants also caused a written address to be filed in support of the Counter Affidavit and three issues were raised for determination, which include:
1. Whether by the conduct of the claimants and by the express provision of Section 8 (iii)(b) of the Osun State Universal Basic Education Law, 2005, the claimants are entitled to the reliefs sought.
2. Whether by the nature of the claimants’ appointment, the said appointment has statutory flavour.
3. Whether the suit of the claimants is not statute barred having regard to the provision of Section 2(a) of the Public Officer Protection Law of Osun State which is imparimateria with the provision of Section 2(a) Public Officer Protection Act LFN 2004.
Learned defence counsel submitted in respect of issue one, that by the provisions of Section 8(iii)(b) of the Osun State Universal Basic Education Law, 2005, any of the members of the Board who commits an act of misconduct can be removed from office at any time by Mr. Governor of the State, counsel therefore submitted that the act of the claimants who are Public Office holders, and who abandon their offices without excuse or any reason amounts to an official misconduct and as such, they are liable to be removed from office under the above Section of the law. Counsel went further to submit that what the claimants are entitled to has been given to them as they were paid their November, 2010 salaries as well as 2010 leave allowances, the period when they were in the office and upon which they performed their duties effectively, which was not denied by them. Finally, he submitted that since the act of the claimants amounts to misconduct which qualified them to be removed from office under Section 8(iii)(b) coupled with the fact that they did not work from December, 2010 to June 2011 when all the Boards and parastatals in Osun State were dissolved, they are not entitled to any of the remunerations apart from their November, 2010 salaries as well as 2010 leave bonus which has been paid to them.
It is the submission of learned Senior State Counsel as regards issue two, that for any appointment to enjoy statutory flavour, such must comply with the enabling law that established or created the office, hence, for the appointment of the claimants to enjoy statutory flavour, such an appointment must strictly comply with Section 8(ii) of the Osun State Universal Basic Education Law, 2005 and that since the provisions of the Law is very clear and unambiguous, they should be accorded their plain meaning. The following cases were relied upon: Abubakar&Ors v. Nasamu&Ors [2011] 12 SCM, 492; Shettima v. Gani [2011] 9 SCM, 62 and Isaac Obiuweubi v. CBN [2011] 3 SCM 126. It is the argument of learned counsel that by the provision of the said law, which provides for the number and the qualification of the members, none of the claimants attained or qualify for the status of who should be appointed as members of the Local Government Education Authority as the law does not provide for any other criteria for appointment and having not been qualified for the position as provided by law, appointment can be regarded as political, meaning that they exist in the office at the pleasure of Mr. Governor. Counsel further submitted that Section 8(iii) of the Law cannot be read in isolation rather it must be read in conjunction with the provision of Section 8(ii) of the law. Reliance was placed on the cases of Amaechi v. INEC &Ors [2008] 1 SMC, 26 and Nigerian Army v. Aminu Kano [2010] 2 SMC, 126.
Relying on the case of NNPC v. Mr. T.D. Olagbaju [2006] ALL FWLR (Pt. 334) p. 1855 at 1877, learned counsel posited that the claimants’ appointment having failed to comply with the provision of Section 8(ii) of the Law cannot be said to be governed by the Osun State Universal Basic Education Law, 2005. Finally, it is submitted that since their appointment is political in nature and cannot be said to have statutory flavour, the 2nd defendant was right when he dissolved all the Boards and parastatals in Osun State in June, 2011 and thus urged the Court to so hold.
In arguing issue three, it is the position of learned counsel that by law, for the Court to determine a cause of action in a particular suit, the Court is enjoined to look at the writ of summons and the statement of claim of the claimants and that looking at the Originating Summons of the claimants, it is obvious that the incidence that gave rise to cause of action in this case was 20th of June, 2011 while this suit was instituted on 20th September, 2011. That by simple arithmetic, it was more than 3 months stipulated by law after the cause of action has arisen. Counsel made reference to the case of Chief S.N. Moumoh v. Spring Bank Plc [2009] 6 WRN P. 118 at P. 135. Furthermore, while citing the case of Corporal EffiomBassey v. Minister of Defence& 2 Ors [2006] ALL FWLR P. 1799 at 1806, counsel therefore submitted that this suit which was instituted against the defendants who are Public Officers are instituted outside the stipulated three months and urged the Court to dismiss this suit for being statute barred and that the Court lacks jurisdiction to entertain same. On the strength of the above cited statutory and judicial authorities cited above, counsel urged this Court to dismiss this matter for lacking in merit.
The claimants’ filed a reply on points of law wherein, they countered the defendants’ allegation that they were not in office, by stating that all the claimants were in their various offices performing their official duties between the time the 2nd defendant was sworn in on November 26, 2010 and the time he dissolved all Boards and parastatals on June 22, 2011. That in compliance with the directive of the 1st and 2nd defendants, they reiterated that claimants in their various Local Government Education Authorities, formally handed over to the most senior officers of the LGEAs and that the accusation that they abdicated duty by vacating office without notice is an after-thought as the 2nd defendant did not state so in his letter of dissolution. They continued that it is not true that the claimants’ appointment was political in nature and that despite the pendency of this case, the defendants have constituted Boards of Local Government Education Authorities (LGEA) in Osun State with membership and qualifications of newly appointed members the same with what existed before the claimants were illegally sacked.
In his reply on points of law, learned counsel to the claimants, in reaction to the submission of the defendants’ counsel that the claimants were removed from office for an act of misconduct, humbly referred to Exhibit B as well as the case of Governor, Ekiti State &Anor v. Chief George Femi Ojo (supra) and further submitted that the claimants who were never accused of any misconduct. According to learned counsel, claimants could not have been sacked for misconduct that this will be in clear breach of the principles of fair hearing. Counsel in reaction to the submission that the claimants’ appointment was not in conformity with the enabling law, submitted that the claimants’ appointment conformed with the provisions of the Osun State Universal Basic Education Law, 2005 as all of them (claimants) are qualified to be appointed and were duly appointed, reference was made to Exhibits A1 – A4. It was then submitted that the onus is on the defendants to prove that the claimants do not fall within the category of people that could be appointed as he who asserts must prove, referring to Section 139 of the Evidence Act, learned counsel further submitted that the defendants have woefully failed to discharge this onus. Counsel went on to submit against the argument that the claimants’ appointment can be regarded as political, meaning that they exist in the office at the pleasure of the appointer (Mr. Governor), to learned counsel, this has no basis in law as any appointment that is governed by statute and which statute fixed the tenure of office of the holder of the office is statutorily favoured and that the holder of such office does not hold his office at the pleasure of the appointer. Reliance was placed on the cases of Igbe v. Gov., Bendel State [1983] 1 SCNLR 73 or (1983) 2 SC and Governor, Ekiti State &Anor v. Chief George Femi Ojo (supra).
In reaction to the argument that this case is statute barred, it is the position of counsel that Section 2(a) of the Public Officers Protection Law of Osun State (referred to and relied upon by counsel to the defendants), is not an existing law as it had been repealed in Oyo State and out of which Osun State was created and expressly repealed by the State Proceedings Edict 1989, published as Edict No. 5 of 1990. Counsel urged the Court to take judicial notice of the fact that Osun State was created out of the old Oyo State on 27th August, 1991, while reference was made to the States (Creation and Transitional (No. 2) Decree 1991), counsel submitted further that Section 4 of the Decree made all existing laws in the old Oyo State on 27/8/91 to be applicable in the new Osun State and that by the virtue of the decree, if a law ceased to exist in Oyo State at the time Osun State was created, it would not apply in Osun State. That the law of Osun State 2002 was prepared under the authority of the revised Edition of Laws 2002 (which was the 1st revision of law exercise to be undertaken after the carving out of the State) and therefore, the Public Officers Protection Law which was expressly repealed in Oyo State by Section 27 of the State Proceedings Edict 1989 was not a law in Osun State as at the time the Law Revision Committee was doing its job and that if erroneously printed amongst the laws of Osun State, that will not make it a law in Osun State. The Court was urged to hold so. Reliance was placed on the judgment of Osogbo Division of the High Court of Osun State delivered on 1st August, 2002 in HOS/253/2000: T.O. Abolarinwa v. Civil Service Commission, Osun State &Anorand the cases of RasheedBusari v. Osun State Water Corporation &Anor [2008] ALL FWLR (Pt. 414) pg 1583 at 1601 and Ayorinde v. Oyo State Government [2007] 22 WRN 115 or [2007] ALL FWLR (Pt. 356) 709. Conclusively, learned counsel urged the court to discountenance all the submissions of the defendants’ counsel and grant all the claimants’ claim as contained in the originating summons.
Upon a careful consideration of the Originating Summons and the accompanying processes filed in this suit by the Applicants, the Counter Affidavit of the Respondents’ and the written submissions by both learned counsel. I respectfully believe that the issue that will best serve the course of justice in this case is
Whether or not the Claimants/Applicants are entitled to their reliefs.
Before delving into the main crux of this suit, it is vital that I state here that the issue of jurisdiction has been settled by the ruling of this Court on the 27th of March, 2017, which is hereby adopted as part of this judgment. It is in the light of that, that I discountenanced all arguments by both learned counsel in their written submissions captured above and adopt my ruling of 27th March, 2017 in respect of same. It is the contention of the learned defence counsel for the State that learned claimants counsel failed to file separate processes for each of the consolidated suits. I find that contrary to this contention the claimants filed separate originating processes in each of the consolidated suits. I therefore discountenanced the defence argument in this regard.
Now, in resolving the sole issue framed in this judgment, I need to answer this question, which is, is the dissolution of Egbedore Local Government Education Authority (Board) by the Chief of staff to the 2nd defendant (without any reason) legal, lawful and contrary to the provisions of S. 8 (i) (iii) and (iv) of the Osun State Universal Basic Law, 2005.By Section 131 to 133 of the Evidence Act, 2011, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist? The burden of proof in a civil suit or proceeding lies on that person who would fail if no evidence at all were given on either side. See the cases of Engr. Nduul v. Bar. Benjamin Wayo&Ors [2018] LPELR- 45151SC;Awusa v. Nigerain Army [2018] LPELR- 44377SC; Apena&Anor v Oba FataiAileru [2014] LPELR -23305SC. It is important now, to consider the status of the claimants’ appointment? It is the law that a contract of employment may be either subject to statutory or common law rules. In the case of Oforishe v Nig Gas Ltd [2017] LPELR 42766 SC the Supreme Court distinguishing the difference between a master servant employment and statutory employment held that “A contract is one with statutory flavour where the conditions for appointment and bringing the contract to an end are governed by enabling statute. It follows naturally that a valid appointment or determination of the contract must satisfy provisions in the statute. On the other hand contracts of master and servant without statutory flavour are classified as ordinary contract of service. Such contracts are governed by an employee Handbook where the conditions of service are clearly spelt out. The master can terminate the service of the employee with, or without reasons, intention and motive for termination of employment is never considered by the Courts. They are irrelevant. Termination of employment would be lawful if the terms of the contract of service between the employer and the employee are complied with. In contracts with statutory flavour where the termination of employment of an employee is found to be wrong, the Court may order specific performance of the contract, injunction or reinstatement….”
It is deducible from the circumstances of this case that what regulates the employment of the claimants and the defendants is the Osun State Universal Basic Education Law, 2005 [hereafter referred to as “the law”]. I say so in view of the fact that parties in this suit while arguing their various submissions made copious reference to the law as the basis of their contention and the course of justice will not be best served or seen to have been served if the Court does not consider the law in deciding this case. The law was enacted by the Osun State House Assembly to make provision for the establishment of a State Universal Basic Education Board and Local Government Education Authorities in Osun State of Nigeria and for any other matters incidental thereto or connected therewith. This goes to reveal that claimants employment are statutory in nature. It is in this regard that I find that claimants’ appointments are statutorily flavoured and not at the pleasure of the Governor. I so hold.
It is the defendants argument that the claimants’ appointment having failed to comply with the provision of Section 8(ii) of the Law cannot be said to be governed by the Osun State Universal Basic Education Law, 2005. Section 8(ii) of the Law provides thus;
“8 (ii) The Local Government Education Authority shall consist of;
(a) a full time Chairman, who shall be a seasoned educationist appointed by the Governor of the State on the recommendation of the Local Government Chairman
(b) two other full time members (Technical and Services) appointed by the Governor on the recommendation of the Local Government Chairman
(c) one representative of the Local Education Office in the Local Government Area”
(d) one representative of the Nigeria Union of Teachers in the Local Government Area;
(e) one representative of the women group in the Local Government Area
(f) not more than two representative of religious organisations in the Local Government Area;
(g) one representative of Parents Teachers Association in the Local Government Area
(h) one traditional ruler in the Local Government Area or representative;
(i) Two eminent persons who are normally domiciled in the Local Government Area and who shall represent special interest group and shall be appointed by the Chairman of the Local Government.
I find on record that the claimants were appointed vide Exhibits A1, A2, A3 and A4 by the 2nd defendant. Now can the 2nd defendant who appointed the claimants turn around to say that the appointment was not in compliance with the law? When indeed the 2nd defendant appointed the claimants in that capacity as the executive Governor of the State. The law is that Government is in continuum, acts of one Governor acting in the management and administration of his executive functions binds on his successor in power, it is deemed as the action of the 1st defendant and remains binding on the 1st defendant, irrespective of who holds the position of the 2nd defendant as the agent of the 1st defendant. Would it be right for the defendants to say that they did not follow the law in appointing the claimants or denying their action at this stage? I answer this in the negative, this is in view of the fact that the reason for which the defendants determined the appointment of the claimants is that they abandoned their duties. Will this suffice to remove the claimants under the law? Going by the provision of Section 8(ii), the law highlighted supra provides for the appointment of a chairman and two full time members and by Section 8(iv) (a) of the same law provides for the appointment of a Secretary. This in effect is in compliance with the above captured provisions of the law. The defendants have failed to depose in their counter affidavit how they failed to comply with the law in appointing the claimants. They cannot at this stage be allowed to renege or deny the appointment of the claimants in accordance with the law. The law is of common that equity regards as done that which ought to have been done. This is succinctly captured in the latin maxim, “Acquit factum habet quod fierioportuit”. The law is that where a person is under an obligation to perform an act, equity looks on it as done, and allows the same result to follow as if it were actually done. See Abiodun&Anor v. Ajisafe&Anor [2018] LPELR-43879CA. The 2nd defendant appointed the claimants and the claimants in turn had acted in that position for 2 years and few months and had received salaries and allowances in that position from the defendants. In other words the defendants had actually acted on their action by paying salaries and allowances to the claimants. Infact learned defence counsel agreed with this where he submitted that the claimants have been paid their leave allowances and salaries. It will therefore, go against the law and equity for the Court to allow the defendants at this stage to renounce the claimants as their appointees. It is the further contention of the defendants that claimants abandoned their duties by vacating the office without notice and that nobody knew anything about their where-about since the 2nd defendant assumed office in November, 2010. The defendants however, failed or refused to exhibit any document in support of their assertion and that is fatal to their case. It is consequently discountenanced.
Assuming that the claimants abandoned their office as alleged by the defendants, would that give the 2nd defendant the liberty to dissolve the claimants’ office without following the provision of the law? The claimants contention is that the purported dissolution of Egbedore Local Government Education Authority (Board) by the Chief of staff to the 2nd defendant (without any reason) is not legal, unlawful and contrary to the provisions of S. 8 (i) (iii) and (iv) of the Law. It is the claimant’s deposition by paragraph 19 of their affidavit in support of the originating summons deposed to by the 1st claimant that “sometime on the 23rd of June, 2011 (or thereabout), I was listening to 6.00pm news over Osun state Broadcasting Corporation (OSBC) radio when I heard that the Chief of Staff to the 2nd defendant issued out a letter dissolving all Boards and parastatals in Osun State”the defendants by paragraph 8 of their counter-affidavit stated that “… the 2nd defendant dissolved all boards and parastatals in Osun State on 20th June, 2011 by a circular letter dated 20th June, 2011 and titled: “Dissolution of Boards of Non-Statutory Commissions Parastatals, Corporations and Governing Councils of Tertiary Institutions” i.e. exhibit MOJ1 the letter dated 20th of June, 2011. The law is certain that for an effective determination of an employment statutorily flavoured, it must accord strictly or differently put, be in consonance with the law establishing or providing the terms and conditions to which an employee/employer is bound and a breach thereof is considered to be null, void and ultravires the power of the employer. See Oloruntoba –Oju&Ors v. Abdul Raheem&Ors [2009] LPELR-2596SC.
An indepth examination of Section 8(iii) of the Law provides for the tenure and grounds for removal of the claimants. It provides thus;
“Section 8(iii) Chairman and all members shall:
a. Hold office for a term of 3 years in the first instances renewable for another 3 years and no more;
b. A member may at any time be removed from office by the Governor for inability to discharge the functions of his office (whether arising from infirmity of mind or body) or for any fraudulent act or misconduct;
c. A member may resign his membership by a notice in his handwriting addressed to the Chairman and that member shall, on the date of the acceptance of the resignation by the chairman, cease to be a member of the Authority;
(iv) (a) The Secretary, who shall be a seasoned Educationist; shall be appointed by the Governor of the State on the recommendation of the Local Government Chairman.
(c) The Secretary shall hold office in the first instance for a period of four years and shall be eligible for a further period of four years and no more.”
It is apparent from the above captured Section of the law, that the grounds for removal of the claimants by the defendants are that they must have exhausted their three or four years tenure in office; theirinability to discharge the functions of his office (whether arising from infirmity of mind or body) or for any fraudulent act or misconduct; or upon resignation.I find nothing on record to evince that any of the claimants appointment was determined by virtue of the conditions listed in Section 8(iii) and (iv) captured above. I so find and hold.
It is also the defendants’ argument that the appointment of the claimants are political in nature and thus at the pleasure of the Governor. The claimants at paragraphs 6(vii) of their further affidavit deposed that it is not true that their employment were political in nature. A keen perusal of the documents before the Court that is Exhibits A1, A2, A3 and A4 reveal that the claimants were at various times appointed on the approval of the Governor (Prince OlagunsoyeOyinlola) as Chairman, Secretary and Members of Egbedore Local Government Education Authority with effect from the 10th of November, 2008. There is no mention in the appointment letters of the claimants that their appointment was political and that it was at the pleasure of the Governor. It is trite as stated earlier that he who asserts must prove the existence of such an assertion failing which such will be deemed abandoned by the Court. The defendants having failed to prove that the claimants’ appointment was not in accordance with the law, or that it was at the pleasure of the Governor and thus political, they are deemed to have abandoned and dismissed their deposition. Howbeit on the position of the law as to the appointment at the pleasure of Governor, the Court of Appeal in the case of Governor of Ekiti&Anor v Chief Femi Akinyemi&ors [2011] LPELR 4218 CA held thus;
“with the due respect to the learned Attorney General, this view is a clear misconception of the decision of the Supreme Court in Olaniyan v University of Lagos case and a misapplication of the principle decided therein. The case did not decide that where an employee or appointee holds office at the pleasure could be dismissed at will in that no employee or appointee of Government holds office at the pleasure. There is no appointment that could be at the pleasure of the Governor unless it is a master servant relationship under the common law, where the master could dismiss the servant at will with or without any reason at all. Infact the ratio decidendi of the case is that where there are clear statutory provisions covering the relationship of master and servant, the only way to terminate the contract of service of the servant is by complying with the procedure laid down in the statutory provision. In the instant case, the facts are not in dispute that, before the termination of their appointments by the 1st Appellant vide a radio announcement on the 22nd October, 2010, the Respondents were chairman and members of the Ekiti State Local Government Service Commission and on the strength of their appointments functioned and served in their respective offices until the 22nd day of October, 2010 when their appointments were terminated by the 1st Appellant. Infact their letters of appointments, Exhibits AG1 – AG8 states that they were appointed under the Local Government Service Commission Law No.2 of 2000. This cannot be further from truth. It is therefore my view that the inclusion of the words “graciously approved’ and “at the pleasure of the Governor” in the Respondents’ letters of appointment does not change the nature of their appointments made pursuant to the provision of the Local Government Service Commission law No. 2 of 2000. The phrase “graciously approved” and “at the pleasure” does not in the circumstances make the Respondents servants of the Appellants that they can dismiss at their pleasure. It is therefore worthless and of no any legal consequence whatsoever. The Respondents were appointed pursuant to section 3 (1) of the Local Government Service Commission Law No.2 of 2000 and their appointments could only be terminated pursuant to the Provisions of Section 4(1) of the said Law. Their appointments therefore enjoy statutory flavour having been appointed under the Local Government Service Commission Law No.2 of 2000 as chairman and members respectively for 3 year tenure from the date of appointment. This being the position, the inclusion of the words “graciously approved’ and “at the pleasure” does not in all respect deprive the Respondents of any legal right under the said law under which they were appointed. The fact that the appointees accepted the appointment as such does not make the Respondents ordinary servants employed at the pleasure of the Governor but are statutory servants employed under the law. The 1st Appellant lacked the vires to employ the Respondents inconsistent with the provisions of the law and the law does not give him the power to remove them at his pleasure.”
The position of the law is as beautifully captured by the learned Justices of the Court of Appeal in the above highlighted case. Which was followed in the case of Hon. BayoAina&Orsv. Governor Ekiti State&Anor, suit No. NICN/AD/08/2014, a judgment delivered on the 6th June, 2018. I have no hesitation in placing heavy reliance on the sound legal reasoning of the Appeal Court as followed in this Court. It is consequent upon this that I conclude that the claimants even if they were appointed at the pleasure of the Governor, (which I find not to be the situation in this case because there is no such clause in the claimants letters of appointment), they cannot be removed vide a circular but in accordance with the law.
It is also the law that a person appointed to a post for a term by statute has a right to serve out the statutory term of his appointment. See the case of Achu v CSC Cross Rivers State [2009] 3 NWLR (Pt. 1129) 475 CA. The mode of determining the appointment of the claimants was not in compliance with the provision of the law. The import of what the defendants have done is that they have breached the provision of the law and thus have acted ultra vires the law. The law is also long settled that where an appointment of an employee is determined contrary to the provision of the Statute, it will be held to be unlawful. It is in the light of all the reasoning in this judgment that I find that the act of the 2nd defendant determining the claimants’ employment contrary to the law is unlawful, null, void and of no effect. I so find and hold.
It is claimants’ contention that the non-payment of the claimants’ salaries, as Chairman, Secretary and members of Egbedore Local Government Education Authority (Board), for the months of November 2010 to June, 2011 by the defendants is wrongful, unlawful and illegal and amounts to unlawful denial of the claimants’ lawful entitlements. They also prayed to the Court to grant the payment of their monthly salaries by the defendants from July, 2011 up till 9th day of November, 2011 and 9th of November, 2012 when their tenure of office lawfully expired by effluxion of time. The defendants in this suit stated by paragraph 13 of their counter affidavit that the 1st defendant has paid all Board members including the claimants their 2010 leave allowance and November 2010 salary. The defendants in this case are approbating and reprobating in one breathe they stated that upon the swearing in of the 2nd defendant as Governor of Osun State, the claimants abdicated their duties and in other another breathe says that the claimant upon the dissolutionthe 1st defendant has paid all Board members including the claimants their 2010 leave allowance and November 2010 salary. Now, if truly the claimants abdicated their duty as alleged by the defendants, the defendants failed or refused to show the Court how they were paid their November salaries. The defendants on whose shoulders rest the obligation to exhibit any document in prove of this assertion failed to do so as reasoned supra. This goes to show that the claimants not only were their appointment unlawfully dissolved, they were not paid their salaries as well which I find to be equally unlawful. I have held that the act of dissolving the offices of the claimants by the defendants is unlawful null and void, the next question to answer is, are the claimants entitled to their reliefs? It is settled law that where an employment clothed with statutory flavour is determined contrary to the procedure stipulated by law, such an employee is entitled to an automatic reinstatement with all his entitlement restored as it is deemed in the eyes of the law that he never left the employment. However, the claimants in this case are not seeking for reinstatement and hence reinstatement will not be appropriate in this circumstance. It is the law that where reinstatement is not appropriate in the circumstances or where there is evidence of situations and circumstances which make it impossible to order reinstatement, the court will award damages in lieu of reinstatement. See the case of Governor of Ekiti State v Ojo [2006]17 NWLR (Pt. 1007) 95. The claimants in this case are asking for their unpaid salaries and allowances.I consequently, find that claimants are entitled to their salaries for the period of November, 2010 till October, 2011 (for the 1st, 3rd and 4th claimants) in the sum of N3,420,000 (1st claimant), N 2,475,000 (for the 3rd and 4th claimant) and October, 2012 for the 2nd claimant in the sum of N5,040,000. I so find and hold.
The claimants also claim their annual/leave bonus for the years 2010 and 2011 in the sum of;
| a. | 1st claimant (Mr. TaofeekSulaimon) | = N94,000.00 |
| b. | 2nd claimant (Mr. S. B Akinrinde) | = N69,000.00 |
| c. | 3rd claimant (J.A Alao) | = N67,000.00 |
| d. | 4th claimant (AlhajiIbraheem Adebayo) | = N67,000.00 |
| Total | = N297,000.00 |
The defendants admitted this, when it stated vide paragraphs 13 of their counter affidavit that 1st defendant has paid all Board members including the claimants their 2010 leave allowance and November 2010 salary. It is trite that admitted facts needs no further proof. It is in this regards that I find that the claimants are entitled to the sum of N188,000 (for the 1st claimant), N138,000 (for the 2nd claimant), N134,000 (for the 3rd and 4th claimants) as leave bonus for the years 2010 and 2011.
As regards reliefs 6the claimant are claiming an injunction restraining the defendants from treating the claimants’ appointments as Chairman and members of Egbedore Local Government Education Authority (Board) as having come to an end in June, 2011 or appointing other persons to replace them, until all the entitlements of the claimants are paid. The basis for the grant of an injunction is the need to preserve the circumstances that are found to exist at the time of the application until the rights of the parties are finally determined. I have held earlier that the act of the defendants dissolving the offices of the claimants before their tenure elapsed and the withholding of their salaries and leave bonus allowance is unlawful. To grant this relief will be unreasonable as it is not within the precinct of law and equity to make an order for an extinguished act, I thus refrain from granting such a relief. Claimants claim for injunction is therefore discountenanced.
In conclusion, it is apparent that the case of the claimants succeeds in part and for the avoidance of doubt, I declare and order as follows.
1. That the purported dissolution of the offices of the claimants as Chairman, Secretary and Members of Egbedore Local Government Education Authority (Board) by the Chief of staff to the 2nd defendant on the 20th of June, 2011 and or by circular dated 20th June, 2011 is unlawful, null and void.
2. That the act of withholding claimants’ salaries by the defendants for the period of November, 2010 till October, 2011 (for the 1st, 3rd and 4th claimants) and October, 2012 for the 2nd claimantis unlawful.
3. That the claimants are entitled to their salaries for the period of November, 2010 till October, 2011 (for the 1st, 3rd and 4th claimants) in the sum of N3,420,000 (1st claimant), N 2,475,000 (for the 3rd and 4th claimants) and October, 2012 for the 2nd claimant in the sum of N5,040,000.
4. That the act of withholding the leave bonus of the claimants by the defendants for the period of 2010 and 2011 is unlawful.
5. That the claimants are entitled to the sum of N188, 000 (for the 1st claimant), N138, 000 (for the 2nd claimant), N134, 000 (for the 3rd and 4th claimants) as leave bonus for the years 2010 and 2011 respectively.
6. That claimants’ relief 6 fails.
7. That I adopt this judgment in other consolidated sister cases with suit Nos; (NICN/AK/04/2013, NICN/AK/05/2013, NICN/AK/06/2013, NICN/AK/07/2013, NICN/AK/08/2013, NICN/AK/09/2013, NICN/AK/10/2013, NICN/AK/11/2013, NICN/AK/12/2013, NICN/AK/13/2013)
8. All the sums awarded are to be paid by the defendants within 30 days of this judgment failing which it is to attract an interest of 10% per annum.
Judgment is entered accordingly.
Hon. Justice OyebiolaOyewumi
Presiding Judge
