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CAMILUS DOMINGO UDO & 30 ORS -VS- UNIVERSITY OF UYO TEACHING

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

                                                

BEFORE HIS LORDSHIP                                   HON. JUSTICE M. N. ESOWE

                                                                                                             

DATE: 30TH JANUARY, 2018                    SUIT NO:NICN/CA/95/2014

 

BETWEEN

 

 


  1. CAMILUS DOMINGO UDO    
  2. UDEME S. AKPAN
  3. PAUL ISAIAH ETIM
  4. INOBONG JOSEPH EYOU
  5. INI EFFIOG BEN
  6. JAMES BENEDICT UDO
  7. IME CHARLIE SAM
  8. EKA OKON JONAH
  9. EMMANUEL OKON BEN
  10. LAWRENCE M. UMOH
  11. UBONG PIUS EDEM
  12. EFFIOM N. EKONG
  13. ANIEDI-ABASI E. PETER
  14. PAULINUS N. EKONG
  15. ELISABETH SABASTIAN OKON
  16. SUNDAY OKON UDOH
  17. PAULINUS EFFIONG UDOM
  18. NDUEHE OKON EKOTT
  19. CORNELIA OKON EDEM
  20. ETIM EFFION UDO
  21. ITA BASSEY EBONG
  22. ITOHOWO OKON EMMANUEL
  23. MARISCA GODWIN INYANG
  24. AUGUSTINE HILARY UDO
  25. AMOS N. AKPAN
  26. EDEM JOHNSONETUKUDO
  27. CLEMENT ETUK
  28. MFON SUNDAY UDOBONG
  29. MARGARET EFFIONG AKPAN
  30. AKON GEORGE EKWERE
  31. EDEM ETIM UDONAO

 CLAIMANTS

 

 

AND

                                                                                                          

  1. UNIVERSITY OF UYO TEACHING HOSPITAL                           
  2. PROFESSOR ETETE PETERS                              

(Chief Medical Director, University                                          

Of Uyo Teaching Hospital)

DEFENDANTS

 

REPRESENTATIONS

FRANCIS ETA Esq for the Claimants

KENETH ITORO-ABASI Esq for the Defendants

 

JUDGMENT

INTRODUCTION

This suit was instituted vide an Originating Summons dated 28th November, 2014 and filed 2nd December, 2014.

 

The reliefs sought by the Claimants are:

  1. A DECLARATION that failure and/or refusal of the Defendants to comply with the Federal Government Circulars, particularly Re: No:HCSF/PSO/PARA/437/3402/T1/95Mdated 24th December, 2008 titled “ABSORPTION OF SEVERED STAFF REINSTATED INTO THE SERVICE BY THE STEERING COMMITTEE ON PUBLIC SERVICE REFORMS”, is contrary to the provisions and spirit of the service.
  2. A DECLARATION that the continuous refusal and/or failure of the Defendants to carry out the directives as contained in the Federal Government Circulars, particularly Re. No: HCSF/PSO/PARA/437/3402/T1/95Mdated 24th December, 2008 titled “ABSORPTION OF SEVERED STAFF REINSTATED INTO THE SERVICE BY THE STEERING COMMITTEE ON PUBLIC SERVICE REFORMS”, is unlawful, illegal and ultra vires the powers of the Defendants
  3. AN ORDER directing the Defendants, servants or agent to reabsorb the Claimants in compliance with the tenor and terms stated in the said Federal Government Circulars.
  4. AN ORDER directing the Defendants to pay the Claimants their entitlements and benefits upon re-absorption.
  5. AN ORDER to pay the sum of N20,000,000.00 (Twenty Million Naira) only as general damages to the Claimants jointly and severally.

 

In support of the Originating Summons is a 30-paragraph affidavit deposed to by Camillus Domingo Udo and a written address.

Reliefs sought by the Claimant are as follows:

 

SUMMARY OF FACTS

The Claimants who were employed by the Federal Public Service Commission were engaged by the 1st Defendant being a parastatal of the Federal Public Service Commission. Sometime in 2006, arising from a circular with Ref. No: BPSR/MDAS/45/5.4, the Defendants were disengaged from service. After series of appeals by the disengaged staff, the Head of Service issued another circular with Ref. No: HCSF/PSO/PARA/3402/T1/95 dated 24th December, 2008 directing all MDAs to reinstate the disengaged staff upon fulfilment of certain conditions. Another circular with Ref. No: HCSF/PSO/PARA/3402/1/96 dated 20th January, 2009 was also issued on the same subject matter. Despite all entreaties by the Claimants, Defendants failed/neglect to reinstate them.

On their part Defendants, while admitting that Claimants used to be in their employment until they were disengaged sometime in 2006, state that the power to reinstate disengaged staff does not lie in them but in the Steering Committee on Public Service Reforms. Furthermore, it was not all the staff that were disengaged that were reinstated and the list of such persons was never sent to the Defendants to enable them act on the said list. Therefore, there is no way it could reinstate the affected Claimants.

 

COMMENCEMENT OF HEARING

Hearing commenced on 24th of January, 2017 to which one Paul Isaiah testified for all the Claimants as CW1, adopted his written statement on oath as well as Exhibits earlier tendered in this Court before Honourable Justice E.N Agbakoba. Thereafter, Claimants closed their case.

 

The Defence opened their case on the 16th of March, 2017 by calling one Abigail Atsadus Ikalamaas DW1 through whom they tendered their exhibits. Thereafter, Defendants closed their defence.

 

DEFENDANTS FINAL WRITTEN ADDRESS.

In 3rd Defendant’s final written address filed 31st May, 2017, Learned Counsel on behalf of Defendants formulated 6 issues for determination, that is:

  1. Whether the termination/disengagement of the Claimants based on the Public Policy of the Federal Government was wrongful in the circumstances
  2. Whether the Claimants are entitled to be reabsorbed by the Defendants having not been reinstated by the Steering Committee on Public Service Reform
  3. Whether the collection by the Claimants of their terminal/disengagement benefits is not fatal to their claims considering the Federal Government Circulars and the relevant laws on this issue
  4. Whether the Claimants are entitled to be reinstated by this Honourable Court having not been reinstated/having not shown proof of reinstatement by the Steering Committee on Public Service Reforms
  5. Whether by the rules of evidence photocopies of the Federal Government Circular tendered in evidence can be admitted and any form of weight or reliance can be placed on it
  6. Whether the Claimants are entitled to any of their reliefs in the circumstances.

 

ARGUMENT

ON ISSUE 1

Learned Counsel submits that termination in a contract of employment can be for any reason or no reason at all provided a one month notice is given. He refers Court to Section 11 of the Labour Act; Prof Olufeagba & 43 Ors V. Prof Abdur-Raheem & 2 Ors (2012) 3NILR 55 @63 Held 3 and 4.

 

That Claimants did not tender any letter confirming their employment therefore their employment should be deemed to still be in probation the time their appointment was terminated.

 

ON ISSUE 2

Learned Counsel submits that the remedy available to a staff  wrongly terminated is reinstatement and that it was the job of the Steering Committee on Public Reforms to reinstate while the MDAS re-absorb. That the MDAS have no power to reinstate.

 

ON ISSUE 3

Learned Counsel submits that exhibits H1 – H3 by the Defendants are evidence that Claimants collected their severance allowances. That having collected their severance allowances and therefore waived their right to reinstatement.

 

ON ISSUE 4

Learned Counsel submits reasons why the Court should refuse to grant the reliefs sought by the Claimants by listing some points already argued in their issues above.

ON ISSUE 5

Learned Counsel, while referring Court to Sections 102, 104 and 105 of the Evidence Act, 2011 urged the Court to reject Exhibit C6 and C7 and not place any reliance on same.

 

ON ISSUE 6

Learned Counsel submits that from their arguments above, it is obvious Claimant did not prove their case.

 

He therefore urged the Court to dismiss the case with a cost of N500,000.00 (Five Hundred Thousand Naira) against the Claimants.

 

CLAIMANT’S FINAL WRITTEN ADDRESS

In Claimant’s final written address dated 10th July, 2017 and filed 12th July, 2017, Learned Counsel on behalf of Claimant formulates two issues for determination, that is:

  1. Whether the Defendants, having complied with the direective as stated in the Federal Government Circular with Ref. No: BPSR/MDAs/45/5.2 are duty bound to comply with and/or obey the directives as stated in Exhibit C6 and C7 or any Federal circular
  2. Whether the Defendants have disclosed and/or proved any justification for non-compliance.

 

ARGUMENT

 

ON ISSUE 1

Learned Counsel submits that the Defendants are part of the circular issued for the disengagement of staff affected in the category of that circular and Defendant acted promptly by disengaging the said staff without a list. That it is therefore surprising that Defendants failed to comply with the circular by which the Claimants were reinstated by re-absorbing the affected Claimants.

 

On the admissibility of photocopies of the circulars, Learned Counsel submits that by virtue of the Section 122(1) (2)(a), the Court takes judicial notice of Federal Government Circulars. As such, the Claimants need not tender Exhibits C6 and C7 as Certified True Copy.

 

ON ISSUE 2

Learned Counsel submits that Defendants failed to disclose or prove any justification for the non-compliance with the directive to reinstate/re-absorb the Claimants. That by virtue of Section 132 of the Evidence Act, 2011, the burden of proof on why they failed to comply with the directive lies on the Defendants.

 

It is the submission of Learned Counsel to Claimants that from the clear provisions of the circulars and the surrounding fact in this case, Claimants are entitled to the reliefs sought.

 

COURT

Having gone through the Claimants’ Claim, Defendants’ Defence, exhibits tendered before this Honourable Court and final written submissions of both Counsel, this Court, while adopting all the issues raised by both Counsel, has distilled a sole issue for the just determination of this suit, to wit:

 

Whether the Claimants have proved their case to be entitled to the reliefs sought.

 

For starters, this Court wishes to state that having adopted all issues formulated by Counsel, it will address such issues when necessary, in the body of this judgment.

 

That said, the Court will proceed to address the issue distilled above.

 

The law is trite that civil cases are decided on the balance of probabilities, that is, preponderance of evidence. The Court arrives at this by placing the totality of evidence by both parties on an imaginary scale to determine which side’s evidence is heavier and accordingly preponderates. The party whose evidence is heavier succeeds in the case. See Dr Useni Uwah & Anor V. Dr Edmundson T. Akpabio & Anor (2014) 2MJSC (Pt.11)108 @113.Moreso, the success or failure of the case of the Claimant is predicated first on the nature of his pleadings and secondly the evidence led in support of his averment. In the same vein, the success or failure of the defence of the Defendant is based on the averment in his statement of defence and the evidence led in support thereof. See Ramonu Rufai Apena & Anor V. Oba Fatai Aileru & Anor (2014) 6 – 7 MJSC (Pt.11)184 @ 188

 

The major bone of contention in this case is predicated on a circular by the Federal Government with Ref. No: BPSR/MDAS/45/5.2 dated 9th February, 2007 on which the 1st Defendant was directed to terminate the appointment of the Claimants and they acted on such directive by proceeding to issue termination letters to each and every one of the affected Claimants. By another circular, according to the Claimants, issued by the Federal Government with Ref. No: HCSF/PSO/PARA/437/4302T1/95 dated 24th December, 2008, Defendants were directed to reinstate the disengaged staff on certain conditions to which the Defendants now say that it was the Steering Committee on Public Service Reforms that was empowered to reinstate the sacked employees and not all sacked employees were on the list of the ones reinstated. That since the Steering Committee on Public Reforms did not send the names of the Claimants to them, the sacked Claimants cannot be reinstated or re-absorbed by them the Defendants as they lack the power to so do. See generally paragraphs 6 to 16 of Defendants’ Statement of Defence. The law is trite that he who hires has the power to fire. Conversely, he who fires has the power to hire.  I have appraised the facts of this case from documents tendered and testimonies of witnesses called, from the face of the letters by which each of the Claimants’ employment was terminated, the disengagement of the Claimants was predicated on the directive of the circular with reference No: BPSR/MDAS/45/5.2 dated 9th February, 2007. By disengaging the affected Claimants, Defendants acted on a directive from the Federal Government which by implication delegated the power to terminate the employment of the Claimants to the 1st Defendant. When the 1st Defendant received the circular, I believe it understood the category of workers that were affected by the circular; it did not need a list of individual names to know the persons affected by the circular. However, when by another circular with Ref. No: HCSF/PSO/PARA/437/4302T1/95 dated 24th December, 2008, reference was made to the decision of the Steering Committee on Public Reforms to which the matter of the disengaged staff was revisited, reviewed and rescinded by the Steering Committee on Public Reforms, Defendants states that it would need a list of individual names of those reinstated before it can re-absorb same. In all fairness to the Claimants, from the face of the circular with Ref. No: HCSF/PSO/PARA/437/4302T1/95 dated 24th December, 2008, and tendered in evidence as Exhibit C6, it is not a directive on the Defendants to automatically reinstate or re-absorb the Claimants but a follow up on the decision of the Steering Committee on Public Reforms on severed staff that were reinstated as well as reference to existing Guidelines and Procedures on the re-absorption of such severed staff. For the avoidance of doubt, the first paragraph of the said circular tendered as Exhibit C6 and titled ABSORPTION OF SEVERED STAFF REINSTATED INTO THE SERVICE BY THE STEERING COMMITTEE ON PUBLIC SERVICE REFORM, reads as follows:

 

I wish to refer to the Guidelines and Procedures for re-absorption of severed staff of parastatals reinstated by the Steering Committee on Public Service Reforms released by the Bureau of Public Service Reform (BPSR) in March, 2008 wherein it was stated that the Chief Executives of parastatals must confirm evidence of full refund of severance entitlement for those already paid within a grace of one month before being reinstated

 

From the above, whereas it is obvious that it was not from Exhibit C6 that the directive to reinstate disengaged staff was issued, it is indisputable that the decision to disengage the affected staff was reviewed/revisited and such severed staff were reinstated by the Committee set up for that purpose and Guidelines and Procedures were spelt out for the smooth actualisation/realisation of the reinstatement/re-absorption of such disengaged staff. The contention of the Defendants, however, is that there was a list containing the reinstated staff and not all the names of the disengaged staff is on that list. Interestingly, Defendants could not tender any such list containing the names of the Staff to be reinstated/re-absorbed sent to any Ministry, Department or Agency in proof of their claim to enable this Honourable Court come to the conclusion that not all disengaged staff were affected by the directive/decision to reinstatement and re-absorption. The law is trite that he who alleges must prove. In Iraogbara V. Ufomadu (2001) 11 NWLR (Pt. 724) 464 at 469 the Court held thus:

 

Where therefore an issue is left in doubt by the Plaintiff so that a Court would be required or forced to speculate, the party on whom the burden ultimately rests must lose. A fortiori, where the existence of essential fact on which a party relies is left in doubt or uncertainty, the party on whom the burden rests to establish that fact should suffer and not his adversary.

 

Therefore, if Defendants are alleging that there was a list with specific names of Staff to be reinstated/re-absorbed, the rule of evidence which is the rule that aids the Court in finding the truth and doing substantial justice imposes a duty on the Defendants to prove the existence of such list. Failure to tender such list is an indication that Defendants have abandoned that leg of their pleadings, and I so hold. What is more, a party who fails to lead evidence in support of his pleadings is deemed to have abandoned such pleadings. Moreso, where a party refuses/fails to give evidence in support of facts stated in his pleadings, the trial Court must resolve the case against the defaulting party. See Ajao V. Ademola (2005) NWLR (Pt. 913) 636 at 663 paras C — E, Ratio 7. In this regard, this Court must resolve the issue of existence of a list against the Defendants who allege same but fail to tender evidence in support.

 

For the avoidance of doubt, this Court wishes to state that proof by evidence is not limited to the Claimant. The law that parties are bound by their pleadings and ought to lead evidence in proof of same includes both Claimant and Defendant. It is the party who alleges a fact or state of things that must lead evidence in support of such fact or state of things. That there was a list of persons reinstated by the Steering Committee on Public Reforms is not the case put forward by the Claimant but the Defendant. Therefore, the Defendant cannot put the Claimants to proof of the existence of their names on that list, if ever there was a list but the duty of the Defendant to prove the existence of that list and that the names of the Claimants are not on the list. The case of the Claimants, simpliciter, is that there was a directive to reinstate disengaged staff to MDAS who earlier disengaged such staff. To my mind, if there was such directive, it could only lies in the powers of such MDAS who know the staff they disengaged in their individual organization to call back such staff. After all, when it disengaged the staff, it did not ask for a list of names to determine the staff to be disengaged, why therefore will it ask for a list of name to reinstate or re-absorb such staff?

 

Furthermore, the position of the Defendants that they do not have the power to reinstate the Claimants cannot avail them for when they were directed to terminate the employment of the Claimants, that instant, the power to terminate was delegated to them, on which they acted and terminated the employment of the Claimants. In the same vain, when there is a directive that on reinstatement and re-absorption, the power to reinstate and re-absorb on the conditions stated was delegated to the authority of the 1st Defendant, and I so hold. It is apposite to state here that those who sit in the position of authority and leadership are not supposed to use such position trample the common man under their feet but to raise them up. Therefore, when there is a directive on reinstatement and re-absorption of earlier disengaged staff, the authority of the 1st Defendant owed the Claimants a moral obligation to reach out to them, recall/reinstate them and, if they fail to refund the severance allowances collected as stated in the condition, they can forfeit their chances of being re-absorbed.

 

Defendants submitted in issue 3 of their final written address that having collected their severance benefit, they have waived their right to be reinstated/re-absorbed. I think the Defendant is over flogging this issue. The issue is not about the collection of severance allowance, the issue is that there was a directive for them to be reinstated/re-absorbed and they should in turn refund their severance allowance.

 

Defendants also argued that Exhibit C6 and C7 fail to comply with the evidence Act on their admissibility being photocopies of public documents. This Court wishes to state that besides the fact the National Industrial Court Act enjoins this Court to deviate from the Evidence Act in bid to do substantial justice in a case before it, this Court is convinced that the content of the Exhibits as their existence is not in dispute between the Claimants and the Defendants.

 

From all that have been said above, the claim of the Claimants succeed as follows:

 

CLAIM 1 Succeeds

 

CLAIM 2 Succeeds

 

CLAIM 3 Succeeds

 

CLAM 4 Succeeds

 

CLAIM 5 Succeeds to the extent that Defendant shall pay the Claimants the sum of N1,000,000.00 (One Million Naira) jointly as damages.

 

For the avoidance of doubt, the Court declares/order as follows:

  1. THE COURT HEREBY DECLARES that failure and/or refusal of the Defendants to comply with the Federal Government Circulars, particularly Re. No:HCSF/PSO/PARA/437/3402/T1/95Mdated 24th December, 2008 titled “ABSORPTION OF SEVERED STAFF REINSTATED INTO THE SERVICE BY THE STEERING COMMITTEE ON PUBLIC SERVICE REFORMS”, is contrary to the provisions and spirit of the service.
  2. THE COURT HEREBY DECLARES that the continuous refusal and/or failure of the Defendants to carry out the directives as contained in the Federal Government Circulars, particularly Re. No:HCSF/PSO/PARA/437/3402/T1/95 dated 24th December, 2008 titled “ABSORPTION OF SEVERED STAFF REINSTATED INTO THE SERVICE BY THE STEERING COMMITTEE ON PUBLIC SERVICE REFORMS”, is unlawful, illegal and ultra vires the powers of the Defendants
  3. THE COURT HEREBY ORDERS the Defendants, servants or agent to reabsorb the Claimants in compliance with the tenor and terms stated in the said Federal Government Circulars.
  4. THE COURT HEREBY ORDERS the Defendants to pay the Claimants their entitlements and benefits upon re-absorption.
  5. THE COURT HEREBY ORDERS the Defendants to pay the sum of N1,000,000.00 (One Million Naira) only as general damages to the Claimants jointly.

 

Judgment entered accordingly.

 

 

…………………………………

HON. JUSTICE M.N ESOWE

Presiding Judge

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