SHEHU MUDI & 658 ORS VS ADAMAWA STATE GOVERNMENT & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVISION

HOLDEN AT YOLA

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA

SUIT NO: NICN/YL/03/2015

DATE: JUNE 13 2018

BETWEEN:

SHEHU MUDI
FREDRICK MBASHI
SAMAILA MOHAMMED
REGINA ROBERT
AMOS YAUBETA SUNDAY
FAVA S. ANDREW
NUHU Z. AYUBA
ELIJAH K. HARRISON
HABILA ZAKARIYA
DLAMA ZAKARIYA
BLESS TEKI PAHAWWAL
ILIYA TIZHE HUNDI
RAYMOND YOHANNA
MONICA ADAMU
DAVID YANA VISA
SAMUEL JAMES
ISAAC DANIEL
DAUDA MARA
REJOICE CLETUS
TEJKWASHE Y. BASSA
MUSTAPHA GARBA
CHRISTY HUBBERT HELWA
HARUNA AUDU BAKMA
MICAH PETER
SOLOMON P. LAGARNA
ESTHER ALBERT
ZACHARIAH YANA VISA

HARUNA TIZHE KYAGYA
VERONIC KURKWE
DAUDA BULUS
VINCENT COLMAN
CLETUS JOHN
EUGENE R. GURTU
SAMUEL SABESTINE
ZIRA SINI
ILIYA T. ZAMBWA
BENSON K. TUMBA
MARKUS EZRA TIZHE
AYUBA ALHASSAN
AMOS T. ZAMBAWA
ZIRA BULUS TSALA
SAMAILA JOHN
VANDI TUMBA
ADA BARTHOLOMEW
SABINA WILLIAM VANDI
FADEZ IRMIYA
HOSEA NGAGGI
DAVID ZIRA
DAUDA ISHAYA
ABDULLAHI SALIHU
DAVID ADAMU
CHRISTOPHER LAWANDI
SA’IDU SALIHU
JUSTINE JOHN
YUBA JELANI
ANTHONIA JACOB
BILKISU USMAN RUFAI
PATIENCE E. AMOS
BUHARI ADAMU
BELLO ABBA
FLORENCE VITA
HALILU HAMMAN
PATRICK JOSEPH ACHINA
MARY SUNDAY OKON
RUBECCA LUKA
AHMADU ADAMU
MERCY PETER
HAUWA YUSUF

BASHIRU YUGUDA
SHAMSUDEEN MUKTAR
ISHAYA ABEL KWAHA
SYIVESTER YARIYUS
AISHATU DANLADI
MARYAM A. SANTURAKI
FRIDAY EZEKIEL
SAMADULAU ANJILI
ISUWA SANDASON
GIDEOAN RACHAEL
HARUNA IBRAHM
BIFAM KWANTAU
HAJARA NWANCHUKU
DAUJIR JACKSON
MOLI AMBOL
JACOB KODENI
DAVID LAZARUS
SYDNEY JAHKNWA
JOHNSON AKAYA
JOSHUA HASSAN
SANI BAKARI
HASSAN IBRAHIM
SOLOMON GIDEON
HARUNA SHU’AIBU
MARY CHARLES
SULEIMAN IYA BELLO
UMAR IBRAHIM
REBECCA ANDETI
GIDADO IBNKUKU
AISHATU ALIYU MUSA
VERONICA ANTHONY OGBE
JERISON K. JIDAUNA
HAKKILAMOSO BABUBA
HAMIDU ABUBAKAR
ALI AMINU BELLO
HAMMAN ISA
ABDULAZIZ ILIYASU MOHAMMED
HALIMA HAMMAN ADAMA
AUWAL UMAR MODIRE
ISMAILA MOHAMMED
HAYATU SA’AD

SANUSI ABUBAKAR MUSA
EVELYN ADIEN
ABDULHAMIDALIYU IBRAHIM
JESSEY ISTIFANUS
HADIZA MOHAMMED
RIBADU ABUBAKAR UMAR
IDRIS ABBA AMINU
ABDULLAHI BABAYO
AHMED BAKARI
ALIYU BABA IYALI
FARUK YA’UBA
MAMMUD MOHAMMED
VERONICA DEDAN
MARIAM ABBO
AMINA ABBAS
HADIZA MOHAMMED GAMBO
AISHATU MOHAMMED BARDE
HALIMA ALIYU
HASSAN UMAR
ABUBAKR MOHAMMED ARABO
ABDURRAHMANU JAURO
YUSUF MOHAMMED HAMZA
DOMA DAORINRE BITRUS
HALIMA MOHAMMED
MOHAMMED SANI USMAN
SULAIMAN MUSA
HAMMAN ADAMU
YUSUF ADAMU
BASHARU AHMAD INUWA
JIBRILLA ISMAILA
GONI AHMED AISHA
LAILA Y. ALIYU
FADIMATU MAIGARI
ALICE YAKUBU
HAPSATU MAIGARI
HAMMAN-ADAMU UMAR
ADAMU AMINU
YAHAYA ALIYU RILWANU
GODIYA AMINU
ABDULLAHI AHMAD
MOHAMMED DANJUMA

MOHAMMED B. TUTA
RABIYATU ALIYU UMAR
MOHAMMED B. UMAR
AMINA AMINU BELLO
AMINU MUSA
GIDEON F. DIRE
PWANAHAKAI NICKSON
SHEHU GARBA
PWADADI E. EVANS
SIDMON F. DIRE
KANATAPWA MYAPURGI
RADA DILLI
SUNDAY A. PISU
BILAMINU ISMAILA
SAMSON DIMAS
RUWASAINO MUSA
TAGBOROSPO PATRICIA RAYMOND
UMAR YUSUF
ABDUL IDRIS
NICHOLAS P. DEMSHEMINO
LESLEY LEVI
ZAKARIYA ISAH
HAMMAN DANLADI
BWAMEM M. KWAMDAH
AHMADU SHEHU
WILLIAM Y. SILAS
GEOFFREY ENOCH
MICHAEL PWAKMENEM
NEHEMIAH G. KPABILLE
JAPHET JONATHAN
SAMSON NZATHANIAH
SARAH ABANAPASOM
ALIYU MAIDAMISA MUSA
TWALAMI ESTHON
HELEN TANIMU
ISHAYA SUNDAY
AHINOMI ALOYSIUS
HOMTAPWA ALBERT ANGODO
WIDAS JARED
RAYMOND NBOTEPI
DANLADI F. DIRE

RUTH JERIEL FWAH
AUWAL ISA
NA’ALLAH MYAPURGI
BABA JAMILA MUHAMMAD
ABUBAKAR MOHAMMED
HAUWAL MOHAMMED
AMOZE ESTROM
EREMONA LIVIGSTONE
FELICIA HENSLEY
PWAVI WILFRED
PRICILLA AMRON
ELIAS EDEN
AMORIS RAYMOND
HANIYIP BALA
BRAND MATHIAS
BIYAMU THEMAN
PATIENCE JOSEPH
GAWIRNAN AYUBA
GODWIN JOEL
SELIURA JONAH
SOLOMON JAPHETH
CALEB SA’IDU
RIFKATU SOLOMON
ABDURAHMAN YUSUF
KADTAU JOHN
THANK-GOD ENBWETIBA
LADI EZRA
BULUS TUMBA
ALIYU GARBA
AHMAD ADAMU
HARUNA IDRIS HARUNA
SAFIYA MUSA
YINASIM MATINI
HASIMA HABILA
KANISIM EDWIN BANGO
MARY EDWIN BANGO
AHMAD S.Y. DAUDA
AHMAD T.MUSA
JERIMOND BWALAMI
MATHEW ODAH
BENEDICT SUNDAY

SAKINA JIBRIN
MOHAMMED A. BELO
SAMUEL ISHAYA
MONDAY DEDAN
PATIENCE YUNUSA
PEACE HABILA
HASUWERI YUNUSA
WENZAMMA MATHIAS I.
YUNUSA SALIHU
DANIEL GODIYA
DANIEL GODIYA
RABIU SUMA’ILA
GADAFI ABUBAKAR
HELEN DANIEL
ELISHA ZUBAIRU
TADAWUS JACOB
YELEWENI BAKO
MICHAEL ZAKARIYA
MUHAMMED YAJI IBRAHIM
ANTHONY OBADIAH
UMAR USMAN
ALIYU ABDURRAHMAN
SUNDAY MUSA
YUNUSA HYELDA
AHMADU ZUBAIRU
ISA BABAKELEY
CHRISTIANA TANKO
ISA BUJI
JOHN ZAKARIYA
PHILIP ISTIFANUS
PATIENCE OBADIAH
NELSON GARBA
MUSA ISMAILA
DAHIRU AHMED
AHMADU IBRAHIM
SULEIMAN HAMMANJODA
ALBITA ALMAN
SULEIMAN UMAR
GODWIN JAMES
BABAKANO MAGAJI
JOHN B. WILLIAM

NUHU HABILA
RUBIYAYEME FRANCIS
ISHAKU CHRISTOPHER
NAHUM AARON
JUSFIN ELAM
ELIZABETH EZEKIEL
BASHIR MUSA
WAZIRI YOSHUA
JOSHUA ISHAYA
HETHER REUBEN
JARRANG B. DAVID
SANI YUGUDA
SAMUEL EZRA
JULIET CALEB
TELEMON DANIEL
SHAGARI KPAH
ABDURRAHAMAN IBRAHIM
BENJAMIN NIGERILONG
MALAKAYE GERSON
HAUWA BUBA
RUFUS YURAMA
SAMUEL LUKA
IRIMIYA ZIRA FAVE
YAKUKU VAZZA
BABAGIDA GEOFFREY
NIMU SAMA’ILA
ADAMU ABUBAKAR
AISHA MOHAMMED
SAKINATU SHEHU
MARIA JAMES
HAMZA ABUBAKAR
IBRAHIM NUHU
UMAR MUSA
ABDULMUNU ABUBAKAR
SARANA NASIRU LIMAN
AUWALU HAMISU
SANI SALE USMAN
HARUNA YAKUBU
HASSAN MUSA USMAN
DAHIRU SAIDU
SAMUEL BELLO

HASSAN SANI SALE
YUNUSA YAKUBU
ZAINAB ABUBAKAR
RABIU IBRAHIM
CHRISTIANA DEDAN
RUTH LIVINGSTONE
ABUBAKAR USMAN JINGI
YAHAYA SAIDU
MOHAMMED MUA’ZU
RAMSAMU YAHUZA
MOHAMMED SANI
MOHAMMED ABUBAKAR
YAYA IRO
MACHIDO JOHN ANDREWUS
ISMAILA BABA
MOHAMMED YUNUSA
SAMAILA MUA’ZU
ABDULLAHI ANAS
NAFIU MOHAMMED
ADAMU BABA S.
SUNDAY E. MIJAH
SAMAILA TUKUR
MOHAMMED ANAS MIJINYAWA
AMINU IDRIS
NAKWONOPWA I. VUNOTEKAI
RIFKATU MERCY HAZIEL
JUSTINE K. BAWA
VASTINA AUGUSTINE
ABUBAKAR SULEIMAN
MONICA S. HANAMO
JERISON PAMELA
ABUBAKAR BELLO
AUWAL MUSA
GILIRI JERISON
AYAWAN KEMUEL
SULE HAMISU GUYUK
SULEIMAN BASHIR NUMAN
ISA BALA
AHMAD BABANGIDA
HASSAN MOHAMMED
SADIYA BELLO

ADAMU MOHAMMED
PWAJELDI R. FILGONA
BABANGIDA JIBRIL
UMARU USMAN
MAURICE HUNDAHINGIMBO
NZASHI LINUS TONMUNONGBASO
TONGBA C. SAKIYA
PWAMORE JAMES TAPROGWE
ISHAKU ELHANAS
ABDULLAHI ARIWO
FROMDY BERNARD
MARK GABRIEL NZOMISAKI
ANTHONY USMAN
ERIC ABUJA HEMAN
PWAJELDI ROBINSON FILGONA
YOHANNA JABEL
CHRISTOPHER DAUDA
JECINTA WILBERFORCE
NYARO ROBINSON ANNONDUKO
KENAN SILAS
ZATI CLETUS
DANJUMA ABUBAKAR
SULE HAMISU
ABDULLAHI A. ABDULAZIZ
AGNES NZASHI
REUBEN MAGA LEONARD
GWAMDI MICHAEL
ABUBAKAR UMAR BABAJI
SAPWANI KERAN
ABUBAKAR ISA
BOKONO DEBORAH BATROBAS
HOSEA NGAPWETO
JUSTINE JULIUS
ISHAYA MOHAMMED ABUBAKAR
ABUBAKAR ADAMU
TAKOPWA LIVINGSTONE
MATHEW PATRICK
GLORIA DANIEL
GAJI MAXWELL
DANLAMI PHINEAS
ISHAEL LAMSO

RUTH ISHAKU
EMMANUEL ZOA ISHAKU
SALAMA TANDAWADON
ILIYA LAWRENCE LIVINGSTONE
PWAVI RONALD
SAMSON INUWA
ABUBAKAR SALIHU
KABIRU MOHAMMED
IBRAHIM ADAMU ABUBAKAR
USMAN SAFIYANU
TASI’U MOHAMMED
ASHIRU NASHIRU
SAMAILA INUWA
SANUSI UMAR
JASINTA WILBERFORCE
PHEANEAS LUKA
RAMATU DAHIRU
AMINU UMAR
SAMUEL ALIYUDA AYUBA
NASIRU GARBA IBRAHIM
HANUGUNA J. OMENO
ABDULMUNI ABUBAKAR
ILIYA KEFAS
JAMILU A. ADAMU
HASSAN JEDOAWEH YARO
SAIDU USMAN
SARANA NASIRU
SULEIMAN ABDULLAHI
AFINIKI REUBEN
HASKEY HENRY
WINNER BESTOR
RUTH MATHOR
MOHAMMED JAMIL UMAR
KABIRU UMAR
PWAMORI JAMES TAPROGWE
HARUNA MUSA DANDADA
ILIYASU SABO KWALE
MASTER AKILA
SAOMIYA FREDRICK BOMIDAH
HILABONA EMMANUEL
ABDULLAHI A. ANWO

YUSUF YAKUBU
BASHARA SANI SALE
YAHAYA SANI SALE
MARIA JAMES
MOHAMMED YUNUSA
SAMAILA MUA’ZU
MUHAMMED SANI
SAMAILA MUHAMMED
PWAVI RONAIH
ASHIRU NASIRU
NATENDIYO EDIMOND
SAIDU USMAN
GASHINO ORISON
ALIYU SAMUEL
SANAMO O.BETO
ZIRA DANJUMA GIWA
REUBEN MUSA
PWANDOBI CLARKSON
SUNDAY ADAMU
PWANIDI SAFETHON
PRICISLA TIMOTHY
SARATU AARON ETHAN
NUHU DALI
ESTHER YOHANNA
WILSON D. AMBAI
TUMBA JAMES
SALOME SALEH
COMFORT BITRUS
BEKODI MELITUS WANTI
HANE H. HARON
RHODA HARUNA
SINTIKI MUSA
SAMUEL EZRA
JOSEPH JUSTINE
SABO YAKUB SULEIMAN
SARAH AJAYI
MIRAIM GEOFFERY
JOSEPH TUMBA TARIYA
MOHAMMED IBRAHIM
ALIYU A. AMADU
SOLOMON MUSA

HUSSAINI MOHAMMED
BUHARI DAHIRU
LOISE SUNDAY
JUMMAI BULUS
ASHATIYA AARON
AUWAL SAIDU
AMINA ABDUL
BASHIRU ADAU
SADIQ AUDU
MUSA ABDULLAHI
YAHYA AUDU
ABDULMUMIN BELLO
ADAM DAUDA
MOHAMMED DAUDA
UMAR HAMIDA
ABDULRAHMAN IBRAHIM
EMMANUEL KEFAS NAKYA
MARK ELIZABETH
JONATHANJAPHETH MAKSHA
IBRAHIM USMAN
DORCAS IBRAHIM
VICTOR R. KODEKE
BASHIR ABDULLAHI
UMAR MOHAMMED HAMMAN
YUSUF KABIRU
ELIJAH MATHEW
MARKUS EZEKIEL
MOSES ANTHONY
BULAMA ASIMDA
LUKAS AIDEN
NUHU M. BURDU
AHMED SIMON
BABAGIDA LUKA
CHRISTIANA THOMAS W.
SANUSI BUBA
ESTHER KAFEMU
JAMES ZIRA
BITRUS THILAMA
MARTHA USMAN
AMINU USMAN
MERCY AMOS AYUBA
SIMON ADIJU

JACOB U. JAMPILDA
BABA PETER
SAMAILA IBRAHIM
ASINAMAI MADU
ALI GIDADO
EMMANUEL MARA
MILDRED MUSA
EZEKIEL BUBA
PAUL MILDA
AIDEN LUKA
MATHIAS ALAI
JOSEPH MEDUGU
MARY THOMAS IRMDU
NAMES KALAZA
BITRUS DZATA ZIRA
MARY AUDU
AHMADU ISA
ILIYA ALI
APHONSUS MATHIAS
ELIZABETH JAMES
VICTOR YANANA TIKARI
ROSE MOSES
JAFIYA D. YOHANNA
MASANI PATRICK
DANIEL DUNIYA NDA ALI
BITRUS GABREL
ASSAH ELIJAH
DANLADI EDAN
CHINDO YAKUBU
PWATADI HENRY
MARY SUNDAY
RUBECCA LUKA
AHMADU ADAMU
CHRISTIANA ALI
HAUWA YUSUF
BASHIRU YUGUDA
SAMSUDEEN UKTAR
ABIRU YUNUSA
ISHAYA ABEL KWAHA
SYLVESTER YAYIRU
AISHATU DANLADI

MARY A. SANTINAKI
PATRICK JOSEPH ACHINA
DEBORAH YOHANNA
MOHAMMED UMAR N.
PATIENCE MIDALA
ANAS ALIYU
HYELHARA PAUL
BASHIR BELLO
MERCY PETER
YAKUBU MU’AZU
RITA ADAMU
ISHAKU STEPHEN
SINI JOHN TIZHE
ABUBAKAR A. ADAMU
PENANA AYUBA
USIJU JOSEPH
YA’UBA DAHIRU
HASSAN YA’UBA
SAIDU YAHYA
SOLOMON MATHIAS
HUSSAINI WANKARI
BOSSO J. NUHU
MONDAY ANNARAYU
SUZAN PLUS ALI
ALESA IJAMPI
ESTHER VANDI
MONICA ZIRA
ESTHER JAMES
JUAIL BULUS
ROSE BAWA YAKUBU
ABUBAKAR MUSA
ESTHER PETER
COMFORT NATHAN
ABUBAKAR MOH’D FARUK
ADAMU ABUBAKAR
INDIA PETER
ABRAHAM BUBA
JONATHAN ADAMU
ANADION STEPHEN
ALI IBRAHIM
AJIYA PHILEMON

BAMAIYI ISHAYA
YINASIM MAITINI
HASIMA HABILA
IBRAHIM HABILA
HASSAN BALA
WAHAJIR BUGUYU
ISHAKU O. LAINAN
ABENETUS O. DAWARE
ABUBAKAR MIJIYAWA
TITUS YULAK
JOHN B. WILLIAM
YUSUF HAMMAN ADAMA
ALI BAPETEL
BLESSING WAZNI
MARKUS G. KAMALE
RHODA SINI
ISHAYA VANKE
NATHANIEL YUNANA
ABEDNEGO KARLINIYUS
DANIEL VODANYABA
JONATHAN ILIYA
JOSEPH MAFINDI
GODWILL SAMUKE
JOCTHAN ENOCK JONES
BINOS BULUS
CLEMENT HABILIA
JEROM CLEMENT
MIKAH ALEXANDER
YOHANA OBADIAH
KIRENUBI KEFAS KAMANA
ABDULAHI HARUNA
LEBANNO TADDAWUS
WAZIRI IRIMIYA YOHANA
USMAN HAMMANDIKKO
MUHAMMED MUKTAR
ADAMU MUHAMMED
MURTALA YAHYA
BALA HASSAN
HANATU JAMES
AISHATU ABUBAKAR
MARY MADU

TERI VAMIMI
SINI MANYA
TITI SOLOMON
TIMOTHY BARNABAS
SULE DAVID
GABRIEL ALEXANDER
YUSUF JINGI
APOLO G. UMAR
AUGUSTINE KUKA
ISIYAKA MOHAMMED ABUBAKAR
KAJIBA ALIYUDA
ABUBAKAR AGAJI
NYAWARA LAWI AJIYA

CLAIMANTS

AND

ADAMAWA STATE GOVERNMENT
MINISTRY OF EDUCATION,ADAMAWA STATE
POST PRIMARY SCHOOL MANAGEMENT BOARD,

ADAMAWA STATE

ATTORNEY-GENERAL &COMMISSIONER FOR

JUSTICE, ADAMAWA STATE

DEFENDANTS

REPRESENTATION:

A.B Babakano Esq – for the Claimants;

U.J Konleganyiga Esq (Snr. State Counsel 1, Adamawa State Ministry of Justice) with I.S Barde, Esq. (Snr. State Counsel 11, Adamawa State Ministry of Justice) and I.E Tsamdu, Esq.(Snr.State Counsel 11, Adamawa State Ministry of Justice)- for the Defendants

JUDGMENT

The 659 Claimants commenced this suit at the then Yola Registry of this Court (now Yola Judicial Division) vide a Complaint filed together with the Statement of Facts Establishing the Cause of Action dated and filed on 16^th March 2015, and the other requisite frontloaded court processes, against the Adamawa State Government and three other Agencies of the State inclusive of the State’s Attorney General & Commissioner for Justice, challenging the declaration as illegal of their employment as Teachers in various Secondary Schools of the State and for recovery of the 29-month arrears of salaries owed to them before the purported declaration of their employment as illegal through the announcement made by the Director of Press in the Governor’s office sometime in December 2014.

The Claimants sought for the following Reliefs:

“

A declaration that the appointment of the claimants as teachers by the 3^rd Defendants was valid, lawful and not illegal having benefited from the services of the claimants for the period of 29 months.
A declaration that the claimants are entitled to the payment of their salaries/wages, allowances and other entitlements for the period of the 29 months as at December, 2014, the claimants have worked as teachers for the Defendants.

iii. The total sum of N638,966,400.00 (Six Hundred and Thirty Eight Million, Nine Hundred and Sixty Six Thousand, Four Hundred Naira) being the accrued and earned salaries, allowances and other entitlements of the claimants for the period of 29 months the claimants have worked as teachers.

Cost of this action”.

Upon being served with the processes the Defendants merely entered appearance by a Memorandum of Appearance dated and filed on 7^th July 2015, through the State Counsel. After several proceedings at the Jos Division, with failed attempts to resolve the dispute out of court, the matter was transferred back to Yola Division when the court started sitting on 11^th October 2017. The matter came up for Mention on 17^th October 2017 and was fixed for Hearing on 9^th November 2017. The Defendants then reacted and filed a Joint Statement of Defence dated 8^th November 2017 and filed on 9^th November 2017, which was regularized at the proceedings of the same day and trial commenced thereafter.

The case of the 659 Claimants is that they were members of Batch D1 of the teachers recruited sometime in September 2010 by the Adamawa State Government (1^st Defendant) through the State Ministry of Education (2^nd Defendant) after being screened, selected and employed as Assistant Education Officers GL 07/1 by the Post Primary Schools Management Board (3^rd Defendant), and were posted and they resumed duties at various Secondary Schools sometime in August 2012. That surprisingly, after 29 months of service and without any formal letter of termination of their employment, in December 2014, the Director of Press in the Governor’s Office declared their employment illegal, yet their outstanding salaries for 29 months, accumulated to over N600Million naira, remains unpaid despite their Solicitors’ official letter of demand for payment and their mass protest over their sack by mere announcement by the Director of Press in the Governor’s office.

To establish their case, the Claimants filed several Witnesses Statements on Oath and lined up for the trial. For expediency of trial, as the matter is a joint Suit of common facts arising from the same subject matter and with common reliefs, two Witnesses were selected by the Claimants to testify for the case of the Claimants and tender in evidence their respective documents. The two witnesses are Federick Mbashi (CW1) and Shehu Mudi (CW2); the 2^nd and 1^st Claimants respectively, who testified and were vigorously cross-examined at the trial.

CW1 testified and tendered 5 sets of documents in evidence admitted and marked as exhibits CS1 (1-327); exhibits CS2 (1-452); Exhibits CS3; Exhibits CS4 and Exhibit CS5’, totaling over 700 copies of exhibits. The descriptions of the exhibits are as follows: Exh. CS1– copies of Offer of Temporary Appointment dated 27^th September 2010 issued variously to the Claimants by the Post primary Schools Management Board (the 3^rd Defendant); Exh.CS2- Reporting of Duty issued by Principals of various Secondary Schools the Claimants were variously posted to evidencing their resumption of duty within the month of August 2012; Exh.CS3– Invitation for Screening and Data Capture of Batch D1 Staff dated 26^th November 2013 issued by the Adamawa State Post Primary Schools Management Board (3^rd Defendant) to the Claimants as members of Batch D1 Teachers recruitment exercise; Exh.CS4– Batch D1 Personal Sub-Head Number (PSN) issued to the Claimants pursuant to the screening exercise; and Exh.CS5-Claimants’ Solicitors’ letter of Demand for payment of unpaid salaries for 29 months dated 22^nd January 2015 written to the Secretary of the State Government (1^st Defendant).

On the part of the Defendants, by the Joint Statement of Defence dated 8^th November 2017 and filed on 9^th November 2017, reacted to the suit and variously denied the Claimants’ claims. They jointly testified through a sole witness (DW), Alhaji Haruna Barkindo Tola, the Director of School Services with the Post Primary Schools Management Board Yola (the 3^rd Defendant). DW tendered no documents, leaving the exhibits already admitted from the CW1 as the subsisting and only sets of exhibits for consideration.

From the pleadings and the testimony of DW, the crux of the Defendants’ case is that the Claimants were illegally employed as it was later discovered that a retired Secretary to the Board of the 3^rd Defendant engaged in employment scam culminating in the illegal employment of the Claimants using his office’s official seal and letterheads to sell employment to the Claimants. The Defendants also contested that the Claimants were dropped from the employment after screening exercise as they did not possess the requisite qualifications to teach. And that it is not all the Claimants that worked for 29 months and they worked periodically, making the Defendants not to owe them the stated amount at all. And also that the Claimants were engaging in their personal business even from the time they were alleged employed in the illegal appointment. That the only payment made to the Claimants was half salary which was verification payment for the screening exercise.

At the close of trial, both counsel filed and exchanged their respective Final Written Addresses inclusive of Reply on Point of Law by the Defendants’ counsel. The Defendants’ counsel filed the Defendants’ Final Written Address dated 27^th December 2017 and filed on 28^th December 2017. Claimants’ counsel turned in the Claimants’ Final Address dated and filed on 10^th January 2018. The Defendants’ counsel reacted with a Defendants’ Reply on Point of Law to the Claimants’ Written Address, which was dated 11^th January 2018 and filed on 12^th January 2018.

The respective Final Written Addresses were adopted by both counsel on 15^th March 2018, and the matter was reserved for judgment following adumbration of arguments on issues set out for determination by both counsel.

COUNSEL’S SUBMISSIONS

Submissions by Defendants’ Counsel:

In the Defendants’ Final Written Address dated 27^th December 2017 and filed on 28^th December 2017, the lead Defendants’ counsel, U.J Konleganyiga, Esq,(Senior State Counsel 1, Adamawa State Ministry of Justice) slated two (2) issues for determination, viz:

“Whether the claimants have proved their case as require by law to entitle them to the relief sought before this Hon. Court.”

“Whether the claimants by virtue of Exhibits CS1’1-327’ their appointment letters are bound by the terms of the employment as contain therein.”

On issue 1- Whether the claimants have proved their case as required by law to entitle them to the relief sought before this Hon. Court: counsel submitted that the Claimants have not proved their case as required by law to entitle them to the reliefs sought before this court, relying on S.131(1) Evidence Act 2011, to the effect that “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of acts which he asserts must prove that those facts exist”.

Learned Defendants’ counsel argued that the Claimants mainly asserts that after their employment with the 3^rd Defendant, they all were at their work stations and carried on their duties for 29 months of which they were not paid salaries and entitlement due to them. To counsel, this piece of evidence contained in Paragraph 12 of the evidence of CW1 and CW2 respectively, but they failed to lead or show proof as to the 29 months labour allegedly performed, and mere assertion is not enough in the eyes of the law. Rather, ‘prove by the person that asserts is essential’, counsel asserted. Counsel further argued that the Defendants had denied ‘out rightly that the Claimants did not work for 29 months, but Claimants insisted that they have worked for the stated period in question and therefore, they have an obligation to prove to this court by evidence that it was really so’. He cited and relied on F.C.D.A. v. Nzelu [2014] 5 NWLR (Pt. 1401)CA 565 @ 579 para F-G were it was held that: “The onus of proof lies on a party who avers particular fact in his pleading, otherwise it will be deemed abandoned. In this instance case, the parties had joined issues as to when the reinstatement letters were served on the respondents. In the circumstance, the burden was on the respondents to lead evidence as to when they were served with letters”.

Counsel further canvassed that Paragraph 9, 10, 11 and 13 of the Statement of Facts Establishing the Cause of Action were mere assertions on their own which were never factual and that the Claimants failed to lead evidence in respect of those assertions and therefore all goes to no issue. And as it is a legal requirement that a plaintiff should adduce proof to every assertion contained in his averment in the Statement of Claim, otherwise the Claimants’ case fails, citing and relying on KLM Royal Dutch Airlines v.Taher [2014] 3 NWLR (Pt 1393) 137 @Pp 194-195, para H-A; where the court held thus: “Assertions or allegations of acts do not, on their own, constitute proof of the. It is one thing to assert and another thing to adduce concrete and credible evidence in proof of same. As mandated by the Evidence Act, he who asserts must prove on the balance of probability when civil matters are concerned. The plaintiff must prove his assertions by cogent and credible evidence.”

Learned Defendants’ counsel further contended that the Defendants in their Joint Statement of Defence especially paragraph 17, the Defendants denied the assertion of the Claimants that they are not owing the Claimants 29 months salaries at all rather they are making unrelenting effort to get them employed by the 1^st defendant. According to counsel, this averment was corroborated by the evidence of DW in Paragraph 14 and 15 of his Statement on Oath adopted at the trial. Counsel further argued that that the Claimant must succeed on the strength of his case and not on the weakness of the defence.

On issue 2- Whether the claimants by virtue of Exhibits CS1’1-327’ their appointment letters are bound by the terms of the employment as contained therein: Learned counsel for the Defendants submitted that parties to employment contract are bound by the terms of the employment, and as such, the Claimants as employees. Learned Senior State Counsel, cited and relied on Jukok Int’l Ltd v. Diamond Bank [2016] 6 NWLR (Pt. 1507 )55 @ 108 Para. G, wherein the court stated that: “Agreement are made to be honoured”, and also the case of Linto Ind. Trading Co (Nig) v. S.C.B.N [2015]4 NWLR (Pt.1448)94 @ 112 Paras. C-G, which held that: “Parties to an agreement or contract are bound by the terms and conditions of the contract they signed and the primary duty of the court is restricted to interpretation and enforcement of the terms of the contract as agreed by the parties thereto, in this case…..”

Counsel contended that Exh. CS 1’1-327’ (appointment letters) tendered and relied on by the Claimants as the basis of instituting this action, is headed ‘Offer of Temporary Appointment’ and it stated the terms and condition of the appointments. He went on and confirmed that one of the conditions that were stated in the letter of appointment (exh.CS1) is that, either of the parties (employer/employee) has the right to determine the employment by one month notice or salaries in lieu of notice.

Again, learned counsel further submitted that: “as if that was not enough, the claimants tendered Exhibits CS 2’1-457 acceptance and reporting letters upon which they equally based their claim, in that case they have consented to the terms and conditions as provided in the appointment which they cannot rescind from it”. Having tendered and relied on the said exhibits as basis of their claims against the Defendants, learned Defendants’ counsel further submitted that the exhibits were unchallenged and deemed admitted. Defendants’ counsel further contended that: “unchallenged evidence is deemed admitted. The claimants haven’t (sic) not denied or challenged this piece of evidence they have by their conduct admitted same and this court must act on it”. He cited and relied on the Supreme Court case of Yar’Adua v. Yandoma [2015] 4NWLR (Pt. 1448)123 @ 174 Paras. F-G, which held thus: “Averments in the affidavit of a party, which are neither challenged nor controverted by his adversary, are deemed admitted and the court must act on those undisputed averments as being true”.

Concluding, learned Defendants’ lead counsel urged the court to hold that the Claimants by virtue of Exhibit CS1 (their appointment letters), they are bound by the terms of the employment as contained therein, and contended that the Claimants’ employment is in the category of employment where servant holds office at the pleasure of the master, and urged the court so hold that Claimants are employed at the pleasure of the Defendants; their appointments not being a permanent appointment.

Submissions by Claimants’ Counsel:

Learned Claimants’ counsel A.B Babakano, Esq in his Claimants’ Final Written Address dated and filed on 10^th January 2018 raised a lone issue for determination: Whether the claimants have proved their claims against the Defendants upon the state of pleadings and the evidence adduced before the court?

canvassing the issue, learned counsel submitted that it is trite law that a party seeking a declaration that a contract is subsisting or was entered into by the disputing parties, must present oral or documentary evidence of the terms and conditions of such contract, of which the Claimants have produced documents stating the terms of their employment contract with the necessary documents as exhibits. He refers to Exhibit CS1- copies of the Appointment Letters of Claimants, to the effect that the letter of appointment is the bedrock on which the Claimants lay claims of being employees of the Defendants.

Counsel further submitted that by Exhibit CS1 the Claimants were employed on 27^th September 2010 with effect from the date when they resumed duty, and that it is in evidence as in Exhibit CS2 (Reporting of Duty) that the Claimants resumed duty between 2^nd to 3^rd week of August 2012, with a condition that their appointment will be confirmed on the expiration of the mandatory two year-probation period subject to satisfactory performance.

According to counsel, the Claimants have worked as teachers in the various secondary schools across the state from the period August 2012 to December 2014(when the appointment was declared illegal), which is a period of 29 months without being paid their accrued salaries and entitlements, and as such the Claimants ought to be paid for the services rendered as employees.

It is the contention of learned Claimants’ counsel that although the Defendants have right to terminate the contract if not satisfied with the performance of the Claimants within the two-year probation period yet the defendants failed to prove that the Claimants were illegally employed and without communicating to the Claimants that their appointments were not found satisfactory during the probationary period. And that the Claimants are entitled to be paid for the work done even if they are employed under probation. Counsel further contended that even if it is conceded that an employer on master-servant relationship or holding employment at the pleasure of the employer can be terminated without reason, such employee is entitled to accrued wages. He cited and relied on Abdallah v. Achou (1978) NCLR 226, to the effect that wages or salary which have accrued and due for payment but unpaid at the time of dismissal or termination cannot be claimed as damages but as a debt.

Citing and relying on of Ihezukwu v. University of Jos [1990] 4 NWLR (pt. 146) 598, counsel argued that the fact that an employee is serving under a probationary appointment does not mean and cannot imply that his appointment cannot be lawfully terminated during the probation period on reasonable notice. He also contended that the Claimants were properly screened before and during the employment as in exhibit CS3 and have worked for 29 months and are therefore entitled to their earned salaries and entitlements even if their employment was to be terminated. Citing and relying on Oredola Okeya v. B.C.C.I. (2012) 57 (PT.1) NSCQR 230, Adegoke v. Adibi [1992] 5 NWLR (pt.22) 410 and Amedu v. Amodu [1990] 5 NWLR (Pt. 150) 356, counsel further submitted that in our adversarial system of litigation, the law always places the burden of proof in civil matters on the Plaintiff/Claimant/Petitioner/Applicant, as the case may be, to satisfy the court by leading concrete, cogent and valid evidence with a view to establishing his claim.

It is the contention of learned Claimants’counsel, relying on Odom v. PDP (2015) 61 (Part2) NSCQR 984, that whereas legal burden of proof remains throughout on the claimant to establish his case otherwise he loses his claim, the evidential burden of proof in a case fought on the pleadings rests on the party who asserts in the affirmative and shifts depending on the pleadings of the parties at each turn. And as such, counsel maintains that given the evidence of witnesses for the parties (CW1,CW2 and DW) and documents tendered(exh.CS1-CS5), in proof of their case, the Claimants have established their case by leading concrete, cogent and valid evidence against the Defendants.

Counsel submitted that the Claimants having tendered and shown their evidence in prove of their case, the evidential burden of the case rests on Defendants who asserts in the affirmative. Consequently, according to learned Claimant’s counsel, it is the duty of the Defendants to establish that the Claimants were not employed; that they were dropped by the Defendants in the course of the screening, and that the Claimants did not work for the period of 29 months as teachers.

Referring to Paragraphs 1 and 4 of the Defendants’ Joint Statement of Defence where the Defendants admitted Paragraphs 5 and 8 of the Claimants’ Statement of Facts Establishing the Cause of Action, Claimants’ counsel further pointed that the pleadings of the Defendants are contradictory and support the case of the Claimants.

The Paragraph 5 of the Claimants’ Statement of Claim establishing the cause of action states as follows: “The claimants aver that after they were employed by the 3^rd defendant. They opened an account in the designed banks in the State sequel to the directives of the 3^rd defendant through which their salaries will be paid and were subsequently issued with a Personal Subhead Numbers (PSN) on grade level 07/01. The Personal Subhead Numbers (PSN) of the claimants is hereby pleaded”. And in the Paragraph 8 (admitted by the Defendants), the Claimants aver as follows: “The claimants avers that they were employed by the 3^rd defendant on a monthly salary of the sum of N33, 400.00 including their allowances and other entitlements”.

Counsel further submitted relying on Ajibulu v. Ajayi (2013) 56 (pt. 1) NSCQR 471, to the effect that admitted facts are never in issue and therefore need no proof, and also contended that the irreconcilable conflicts in the pleadings of the Defendants and the admissions made by the Defendants in paragraphs 1 and 4 of their Joint Statement of Defence has proved fatal to the case of Defendants.

Concluding, learned Claimant’s counsel , citing and relying on Morohunfola v. Kwara State College of Technology [1990] 4 NWLR (Pt. 145) 506; Adams v. LSPDC [2000] 5 NWLR (Pt. 656) 291 ; Uzondu v. UBN Plc (2008) ALL FWLR (Pt. 443) 1389, (2009) 3 WRN 97, submitted the that from the totality of the pleadings and evidence tendered, the Claimants have proved their case as required for an action for payment of salaries for work done or accrued salaries or for wrongful termination of appointment, where the employee is required to the following elements:

That he was employed by the defendant;
The terms and conditions of his appointment including duration and termination;
Who can appoint and remove him;
The circumstances under which his appointment can be terminated;
That his appointment can only be terminated by a person or authority other than the defendant.

Counsel finally urged the court to uphold their submissions for the Claimants and grant the reliefs sought.

Reply on Point of Law by Defendants’ Counsel:

In his Reply on Point of Law dated 11^th January 2018 and filed on 12^th January 2018, learned lead Senior State Counsel for the Defendants, contended that most cases cited and relied on by the Claimants’ counsel are inapplicable to the facts and circumstances of this matter, particularly, the case of Abdallah v.Achou (1978)NCLR 226, which he contended was on permanent appointment unlike the instant case which is a temporal employment. He further contended that the Claimants did not discharge their burden as employees who claim that their employment was wrongly terminated, which principle has been enunciated in N.D.L.E.A. v. Zakari [2015] 7 NWLR (Pt. 1458) 361 @ 376 Para. E-G, where the court held that: “An employee who complains that his appointment was wrongly terminated has the onus to place before the court the terms and conditions of the contract of employment and to prove the way and the manner those terms were breached by the employer who is a defendant to an action brought by the employee to prove any such breach.”

Counsel further argued that since parties in a civil litigation are bound by their pleadings, the Defendants had averred in paragraph 10 of their Joint [Statement of Defence] that “The defendants in answer to paragraph 13 of the claimants statement of facts avers that after screening the batch D and selection process completed the claimants were dropped, and they never continue to perform any duty at all as teachers of the 3^rd defendants”.

Concluding, counsel further submitted that the Claimants ought to have constructive knowledge of the end of the employment by their employer at the point of screening where legible ones were retained and the Claimants not retained, and thus could not have worked for 29 months as they claimed. Counsel finally urged the court to dismiss the Claimants’ case in its entirety for lacking merit.

COURT’S DECISION

I was deeply involved in the proceedings; listened keenly during the trial and observed the demeanor of the witnesses for the parties while testifying. I have also painstakingly reviewed the pleadings filed and exchanged between the parties and the submissions of both counsel as canvassed in their respective Final Written Addresses, and I also did an independent research to sure-foot the authorities relevant for the effectual resolution of the dispute in issue between the parties on this matter.

To my mind, a litigated matter of this kind can easily be resolved by resort to the preponderance of material facts pleaded and evidence led and established in support of the pleadings at the trial proceedings by both sides of the contest. I have reviewed the two issues submitted for determination by the Defendant’s counsel and a lone issue submitted by the Claimants’ counsel.

The Defendants’ two issues are basically subsumed in the lone issue of the Claimant. However, for effectual resolution of the issues in dispute in the matter, I take the view that the legal issues raised by both Claimant and Defendants’ counsel, should be merged into one issue with additional issue on the status of the employment relationship between the Claimants and the Defendants, which issue should be first resolved to ascertain if there was a valid employment relationship in the first place before establishing if the Claimants proved their case against the Defendants as required by law to entitle them to the reliefs they are seeking from the court.

On that note, I have raised the following two issues for determination:

Whether from the totality of the pleadings and evidence led, a valid employment relationship was established between the Claimants and the Defendants, via the 3^rd Defendant?

Whether the Claimants proved their case as required by law for the purposes of recovery of their alleged entitlements from the Defendants?

On issue1- Whether from the totality of the pleadings and evidence led, a valid employment relationship was established between the Claimants and the Defendants, via the 3^rd Defendant: Judicial guide to resolution of the issue of employment status has been offered in Ngun v. Mobil Producing Nig. Unlimited (2013) LPELR-20197(CA), wherein it was held that:

“Employer and employee relationship exists where a worker is employed under a contract of employment, i.e a contract of service. No one test as formulated by the Courts over the years for determining employment status of an employee is a complete answer to such questions. The Courts have held that the issue is one of fact and not of law…”

Gleaning from the pleadings and evidence led at the trial, it is common ground between the parties that the 3^rd Defendant which is under the supervision of the 2^nd Defendant, both of which are Departments/Agencies of the 1^st Defendant (Adamawa State Government) conducted a recruitment exercise for teachers to serve in various secondary schools in the State.

The teachers’ recruitment exercise was in different Batches (A, B, C and D1) and the Claimants belonged to the Batch D1 group. Some aggrieved members of Batch D1 numbering 659 constituted the Claimants herein. For the Batch D1 group, Offer of Temporary Appointment letter dated 27^th September 2010 and signed by the Executive Secretary of the 3^rd Defendant (Post Primary School Management Board) was issued to the Claimants. Copies were tendered and admitted as exh.CS1.

Copy of the exh. CS 1 reads:

“ADAMAWA STATE POST PRIMARY SCHOOLS MANAGEMENT BOARD

PMB 2260, YOLA ADAMAWA STATE, NIGERIA.

Ref. No.PPSMB/TCH/207

Date 27th September 2010

Sir/Madam,

OFFER OF TEMPORARY APPOINTMENT

I have the honour to offer you temporary appointment as Assistant Eduation Officer, GL07/1 on salary Grade Level N125, 215.68 per annum, with effect from the date you assumed duty and in strict adherence to the following:

(a). That you or the Board may terminate your appointment by one Month’s notice or a Month’s salary in lieu of notice.

(b) That as long as you remain in the service of the Board, you will be eligible to be posted/transferred to any part of ADAMAWA STATE OF NIGERIA.

(c). That you will be eligible for vacation leave and leave transport grant

(d ). That your appointment will be confirmed on the expiration of the mandatory two year-probation period if your performance and other attributes are considered satisfactory.

If you wish to accept this offer, you should submit written acceptance letter to the Executive Secretary Post Primary Schools Management Board within two weeks of the receipt of this offer.

Signd: Ahmad Yusuf Abubakar

Executive Secretary”

A cursory review of the exh.CS1 shows that key conditions in the said exh.CS1 are that the appointment is temporary; Claimants were appointed as Assistant Education Officers, GL07/01 on salary Grade level: N125,215.68 per annum; the appointment would take effect upon assumption of duty; the Board(3^rd Defendant) can terminate the appointment by one month’s notice or a month’s salary in lieu of notice; and that the appointment will be confirmed on the expiration of the mandatory two year-probation if performance and other attributes are considered satisfactory.

From the exh.CS1, the employment would not take effect until resumption of duty by the Claimants as teachers in various schools they were posted within the State. Exh.CS2 is a Reporting for Duty confirmation issued to the Claimants by the Principals of the various secondary schools the Claimants were posted. The dates of the resumption in various copies of the Claimant’s Reporting for Duty range from 14^th – 22^nd August 2012.

Exh. CS3 (Invitation for Screening and Data Capture of Batch D1 Staff dated 26^th November 2013) was issued by the 3^rd Defendant to the Claimants, directing them to attend a screening exercise from 29^th November 2013 at the 3^rd Defendant’s Headquarters, Yola. This very screening exercise was at a time the Claimants had already assumed duties in their various secondary schools they were posted to, which by exh. CS2 was as at August 2012.

Copy of the exh. CS 3 reads:

“ADAMAWA STATE POST PRIMARY SCHOOLS MANAGEMENT BOARD

PMB 2260, YOLA ADAMAWA STATE, NIGERIA.

Our Ref. No.PPSMB…

26^th November 2013

INVITATION FOR SCREENING AND DATA CAPTURE OF BATCH D1 STAFF

All Principals are directed to inform the batch D1 Teachers that their Screening and Data Capture will commence as from the 29^th November 2013 at the Board Headquarters, Yola.

Every Staff is expected to come along with the following:

Clearance Letter(s) from the Principal(s) which should indicate the date of reporting for duty and whether or not Staff has beendoing his work well.

NOTE: For those who have stayed in more than one School, clearance letters will be expected from the former Principal(s)..

Lesson plan books used during the period
Original copies of all Certificates including NYSC discharge Cerficicate
Completed Data and Account Confirmation Forms.

Principal must sign and stamp the Data Capture Form(Enrolment Form) appropriately please.

Attached is the time table for the Screening and Data Capture of the D1.

Thank you.

Sgnd: Mali.Ayuba Njidda

Executive Secretary”.

The exercise was to take place (as in the attached screening timetable) between 29^th November 2013 and 7^th December 2013. Claimants pleaded in paragraph 7 of their Statement of Facts that they were screened twice, which was admitted by the Defendants in paragraph 3 of their Joint Statement of Defence. The Claimants as members of Batch D1 were individually issued with Personal Sub-Head Number (PSN), which is exh.CS4.

Claimants also pleaded in paragraph 5 of their Statement of Facts that they were directed to open an account in the designated banks for payment of their salaries and entitlements. Also, that their monthly salary including allowances and other entitlements is N33, 400.00(thirty three thousand four hundred naira). This was pleaded in paragraph 8 of their Statement of Facts and admitted in paragraph 4 of the Defendant’s Joint Statement of Defence. Incidentally, the employment relationship history was restated and pleaded in paragraphs 1-5, 7-8 of Claimants’ Statement of Facts and expressly admitted by the Defendants in paragraphs 1, 3 and 4 of the Defendant’s Joint Statement of Defence. Both CW 1 and CW2 testified along line the pleadings and the DW did not provide contrary story line and the Defendants’ counsel did not ask and elicit damaging testimony during cross examination on this material issue.

The legal effect of admitted facts in pleadings has been posited in Adebiyi v. Umar [2012] 9 NWLR (Pt. 1305) C.A. 279 @ P. 296, para. G-H (Adebiyi’s case) when the court held that:

“By virtue of section 75 of the Evidence Act, no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings”.

In the Adebiyi’s case (supra) @ P. 296, paras. F-G the court further elucidated the position, and held that:

“The rules governing affidavit evidence and pleadings is that when a fact(s) asserted, is not denied or controverted by the adverse party, who has a duty to do so, the same is deemed to be admitted by him (adverse party), and the court would be justified to rely on the fact and use it to settle the issue in controversy, if the asserted fact(s) is plausible. That is the purport of section 75 of the Evidence Act”.

From the foregoing analysis, I entertain no hesitation in coming to the finding of fact that there was a valid subsisting employment relationship between the Claimants and the Defendants via the 3^rd Defendant. I so hold.

On issue 2- Whether the Claimants proved their case as required by law for the purposes of recovery of their alleged entitlements from the Defendants: The crux of case of the 659 Claimants hinged on the fact that despite resuming duties in their respective schools they were individually posted since August 2012, they were not paid any salary or entitlements and surprisingly, after 29 months of service and without any formal letter of termination of their employment, in December 2014, the Director of Press in the Governor’s Office declared their employment illegal, yet their outstanding salaries for 29 months, remains unpaid despite their Solicitors’ official letter of demand for payment coupled with their mass protest over their sack by mere announcement by the Director of Press in the Governor’s office(1^st Defendant). These material facts were pleaded and evidence led at the trial by CW1 and CW2 who collectively testified for the Claimants. Exh CS5 (Demand letter dated 22^nd January 2015 issued by the Claimants’ Solicitors to the Secretary to the State Government (1^st Defendant) encapsulated the material facts relied on by the Claimants, as narrated in paragraphs 9,12,13,14 and 15 of the Claimants’ Statement of Facts.

The Defendants’ main defence and apparent justification for the declaration of the employment of the Claimants as illegal by the Director of Press in the Governor’s office, was that the employment was illegally procured as an un-named former Secretary to the Board (3^rd Defendant) ‘sold’ employment letters to the Claimants. Paragraph 11 of the Defendants’ Joint Statement of Defence put it clearly: “ The defendants admit paragraph 14 and 15 of the claimants’ statement of facts and further aver that they defendants later discovered that a retired secretary to the board who suppose to hand over the official properties of the board at the point of his retirement failed to do so but left with the official seal of the board and some letter heads which he was using to issue unauthorized employment letters and selling same to the claimants”

From the records, no evidence whatsoever was laid to support this grievous assertion of criminal nature throughout the length and breadth of the Defendants’ pleading and at the trial. In Akande v. Adisa [2012] 15 NWLR (Pt. 1324) S.C. 538@ P. 574, Para. D, the Supreme Court while deciding on treatment of averment not supported by evidence, held that: “Where an averment is not supported by evidence, the averment is deemed abandoned”. In Olusanya v Osinleye [2013]7NWLR (Pt.1367)SC148 the apex court further elucidated the effect of pleading not backed by evidence and held that “any pleading not backed by evidence goes to no issue and should be disregarded by the court. Pleadings do not constitute evidence, and therefore where such pleading is not supported by evidence oral or documentary, it is deemed by the court as having been abandoned. Facts deposed to on the pleadings which are not admitted by the opponent ought to be proved by evidence or else they are deemed abandoned”.

Any brilliant submission of the learned Defendants’ counsel would still not assist and avail the Defendants, since the law is that Counsel’s Address does not substitute evidence, as clearly emphasized in BFI Group Corp v. BPE [2012] 18 NWLR (Pt.1332)SC 209 @ P.244 Paras. B-C, wherein the Supreme Court, held that: “Counsel’s address is ordinarily designed to assist the court. It is not evidence and no fine speech in an address can make up for lack of evidence to prove or establish a fact oe else disprove and demolish a point in issue”. Accordingly, I find and hold that this averment by the Defendants having not been supported by any evidence is deemed abandoned and hereby discountenanced.

Besides, the pleading did not even state the exact time the incident of ‘selling employment’ to the Claimants took place and the name of the particular former Officer of the 3^rd Defendant allegedly involved in the alleged scam. More so as there were ample evidence and admissions of the various screening exercises the Claimant undertook at the instance of the Defendants via the 3^rd Defendant, the latest being between November 29 and December 7, 2013 (exh.CS3).

Learned Claimants’ counsel expectedly interrogated this assertion during cross-examination of DW, who was asked:”In your paragraph11 you alleged that a retired Board Secretary was issuing and selling employment letters to the Claimants was any disciplinary action taken against him?” He answered: “No any disciplinary action was taken against him”. In other words, the so called seller of the employment was well known to the Defendants and nothing was done, not just in arresting and interrogating him, but in brining the attention of the Claimants to the incident, and possibly reprimand him as a cautionary and disciplinary measure. This line of defence can hardly stand shoulder high beside the towering evidence of the Defendants’ active participation in the employment process of the Claimants. Accordingly, I disbelieve the veracity of this testimony and attach less value to it in my primary role of evaluation of evidence as a trial Judge. I so hold.

The Defendants not being too sure of anchoring and sustaining their defence on the alleged illegal recruitment of the Claimant again quibbled and asserted that the Claimants were dropped after they were found unfit at a screening exercise. I find and hold that this line of defence by the Defendants is contradictory and cannot stand, as party ought to be consistent in a case and should not be presenting contradictory testimonies on one subject matter. See: Adewale v. Olaifa [2012] 17 NWLR (Pt. 1330) C.A. 478, on effect of contradictory evidence adduced by a party.

Again, this assertion was not supported by any evidence and also discountenanced on that ground. See: Akande v. Adisa (supra). Upon review of evidence, the Claimants’ counsel feasted on this issue during cross-examination of the DW. When DW was asked: “You narrated in paragraph 8 how the batch D1 were screened and those not fit were dropped, do you have any evidence to show the number of the claimants that were dropped after the screening?” He answered: “Not readily available”. DW was also asked: “What is the essence of issuing personal sub-head numbers to the claimants?” He answered: “The reason is to authenticate the credibility of claimants”. When asked: “When did you issue the personal sub-head number to the claimants, was it before or after the screening? DW answered: “it was issued after the screening”.

In Adeosun v. Gov. Ekiti State [2012]4NWLR (Pt.1291)SC581@P.602, Para.A-B, the apex court held, per Onnoghen JSC (as he then was, now CJN) that:

“Evidence elicited from a defence witness which is in line with the facts pleaded by the plaintiff forms a part of the evidence produced by the plaintiff in support of facts pleaded in the statement of claim and can be relied upon in proof of facts in dispute between the parties”.

Defendants’ counsel’s cross-examination re-confirmed the validity of the employment history, when CW1 was asked: “By exh.CS1 i.e letter of appointment it is shown that you were employed in September 2010? He answered: “Yes”. CW1 was further asked:”By exh.CS2 you were posted and you reported in August 2012?”He answered: “Yes”. He was then asked: “Am I correct to state there was problem that is why the posting was delayed?” CW1 answered: “There was no problem because the employment was done and we were posted batch by batch”.

Another plank of Defence by the Defendants was that the Claimants did not work up to 29 months. Under cross-examination, the Defence counsel had the following line of questions and answers with CW2:

“Q: You stated in paragraph 12 of WSO that you and other claimants worked for 29 months, do you have proof that you worked for 29 months?

A: Yes, we worked for 29 months. We were posted on 14^th August 2012 which is shown in our reporting letter already tendered as exhibit. We were in our posting stations doing our work from that 14^th August 2012 to December 2014. From this calculation, we worked for 29 months

Q: During those times you said you were working, were you under supervision of a superior officer?

A: Yes

Q: Did the superior officer assess you?

A: yes

Q: Did you people sign attendance register?

A: Yes, we do sign

Q: Since you sign attendance register, am I right to conclude that it is only the number of periods you sign in the attendance register that determines the period you worked?

A: Yes”

A quick fall out of evidential value from the questioning technique deployed by the Defendants’ counsel is the employment relationship between the parties is no longer in issue as it is an assumed premises upon which the line of the cross-examination questions were asked and answered. Again, it is this line of question and answer that may have beclouded the learned Defendants ‘ counsel’s viewpoint to stick to the submission suggesting that the burden of proof in civil case is static and never shifts but always rests on the Claimant who desires Judgment. On the contrary, it is clear that in civil trial, the burden of proof does not rest at all times on the Claimant, contrary to the submissions of the Defendants ‘counsel. But then, the nagging question is: who has the burden to produce the attendance register to confirm how the Claimants worked? This is evidential burden which lies on the person who asserts the positive as rightly submitted by the Claimant’s counsel. Evidential burden shifts and lies on the one who will lose if such evidence is not established. There is already an employment relationship between the Claimants and the Defendants, and the issue of implication of withholding evidence is also there.

It is not the attendance register that established the employment relationship. If the Claimants are irregular in attendance to duty that can only be assuaged by invoking disciplinary measures which is an unfettered power of employer over its employees. Thus, an issue bordering on whether a staff/employee is regular and diligent at work place is within the realm of disciplinary control which an employer is amply empowered to administer against erring employee. This is certainly not the case at hand. I so hold.

I will again restate the Claimants’ contention to put the issue under consideration in proper perspective. The kernel of the Claimants’ contention is that they were employed as Secondary School Teachers by the Defendants via the 3^rd Defendant in September 2010 and posted to their respective duty posts in the selected schools in August 2012 and they were subjected to various screening exercise and have remained in service until December 2014, when their employment was disbanded following the declaration by the Director of Press in the Governor’s office that their employment was illegal. And that for the total period of 29 months ( August 2012-December 2014), they were not paid their respective salaries and allowances of N33,400.00 due to each of 659 Claimants constituting the Batch D1 of the teachers recruitment exercise embarked on by the State Government at that time.

Bearing this storyline in mind, any issue bordering on supposed disciplinary action or dereliction of duty does not fall on the track line of evidential value, expected to add weight to the side of the scale of the contender. I so hold.

To achieve a refined and justifiable evaluation of evidence on this matter by placing appropriate burden of proof on the deserving side, it is imperative to further elucidate on the applicability of the basic principle of preponderance of evidential burden in civil adjudication, which has been enunciated in M.W.T (Nig) Ltd v. PTF [2007]15 NWLR (Pt.1058)CA451@492-493 Para.G-C as follows:

“.. In civil cases the burden of first proving the existence or non –existence of a fact lies on the party against whom judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If the party adduced evidence which ought reasonably to satisfy the jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleading have been dealt with. Thus, generally in civil cases the burden of establishing a case can be gleaned from the pleadings lie ultimately on the plaintiff since if no evidence is adduced he would lose his case. Therefore the burden of establishing the contrary would shift to the defendant who would have judgment given against him if nothing is said to rebut the evidence given by the plaintiff. Thus, the burden of proof in civil cases preponderates, and the court is expected to give judgment on the preponderance of evidence after placing the totality of the respective evidence adduced by the parties on an imaginary scale of justice, weigh them and find out which of the two is heavier before arriving at its decision”.

Section 136 (1) of the Evidence Act 2011 provides for placing of burden of proof as to particular fact., when it states: “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other”. Section 136(2) goes ahead to state that: “In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively”.

With these judicial and statutory prescription and exposition of the role sharing of burden of proof and extent of proof to discharge the burden in civil trial, it is no longer in doubt who has the onerous burden to prove particular fact and at least, that the burden of proof in civil litigation is never static, but preponderates depending on what material facts is in issue to be established to assist in advancing the case of the either side of the divide, as in the instant case.

Having gone thus far, it is time to consider the Claimants’ Reliefs. The Claimants in their pleadings presented four Reliefs and at the trial laid evidence to support their claims, and urged the court to consider and grant same in their favour. The four Reliefs are as follows:

“

A declaration that the appointment of the claimants as teachers by the 3^rd Defendants was valid, lawful and not illegal having benefited from the services of the claimants for the period of 29 months.

A declaration that the claimants are entitled to the payment of their salaries/wages, allowances and other entitlements for the period of the 29 months as at December, 2014, the claimants have worked as teachers for the Defendants.

Cost of this action”.

Reliefs (i) and (ii) are declaratory reliefs. What is the extent of discharge of burden of proof on the Claimants seeking declaratory reliefs? In Dim v. Enemuo [2009] 10 NWLR (Pt. 1149) SC 353@Pp.380-381, Paras.F-D, the Supreme Court held:

“The rules of court and evidence relieve a party of the need to prove what is admitted. However, where the court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence, not by admission in pleading of the defendant, that he is entitled to the declaration. Thus, in order to obtain a declaratory relief as to right, there has to be evidence which supports an argument as to the entitlement to such a right. The right will not be conferred simply upon the state of the pleadings or the admission therein. In other words, the court does not make declarations just because the parties to the litigation have chosen to admit something. The court declares what it has found to be the law after proper argument, not merely after admission by the parties. There are no declarations without argument. In the instant case, it was wrong for the Court of Appeal to have held that because the appellant did not lead evidence as to paragraph 3 and 4 of the statement of defence, he has conceded to paragraphs 2 and 3 of the statement of claim and that the respondent was thereby entitled to judgment by operation of law”.

That means that admission of the Claimants’ pleadings by the Defendants is not enough to anchor and sustain reliefs bordering on declaration of rights. This seems to be the basis of the learned Defendants’ counsel’s submission that the Claimants should succeed on the strength of their own evidence not on the weakness of the Defendants. The question remains, did the Claimants lay sufficient and cogent evidence to support their declaratory reliefs? In my view, the key element of relief (i) is whether the Claimants were employed as teachers through the 3^rd Defendant in a valid and lawful manner to dispel any allegation of illegality that would taint and stain the employment process as alleged by the Defendants who made a declaration that their employment was tainted with illegality having purchased same from one former Secretary of the 3^rd Defendant.

The crucial question is, have the Claimants shown that their employment was properly procured and done in a usual course of employment process and not through any back door or underhand process? That to me, is the burden of proof dangling on their heads, and once discharged, the burden of establishing any illegality shifts and rests squarely on the head of the Defendants who alleged same, and are expected to discharge the burden (being in nature of crime) in the standard required when criminal allegation is raised in civil claims, which is no longer on balance of probability but beyond reasonable doubt. See: Nwobodo v.Onoh (1984) 1All NLR 1, (1984) 1 SCNLR1 and Omoboriowo v. Ajasin (1984)1SCNLR 108, wherein the same panel of the Supreme Court Justices decided the fate of two Governors relying on the same set of incident differently, because in one, the pleadings introduced criminal allegations, which in law is required to be proved beyond reasonable doubt rather than balance of probability required in civil trial.

From the pleadings and evidence adduced at the trial, the first challenge for the Claimants was whether they were employees of the Defendants. I have reviewed evidence on this issue which I raised as issue (i) and have determined same and resolved it in favour of the Claimants. I therefore adopt my earlier finding on this issue, and have also found that the Claimants have through the testimonies of CW1 and CW2 and the exhs. CS1-CS4 established their employment history with the Defendants which recruitment exercise spanned through a long period at least from September 2010 (when the Appointment letter was issued- exh.CS1) to August 2012 ( when the employment took effect upon resumption of duty- exh.CS2) with the screening exercise and data capture, even during the service period in November/December 2013- exh.CS3 and the allotment of Personal Sub-Head Number– exh.CS4, issued to the Claimants pursuant to the various screening exercise their employment process went through.

The appointment was given in September 2010 but resumption delayed until August 2012, when the employment took effect based on the clause in the Offer of Temporary Appointment dated 27^th September 2010 (exh.CS1), that the employment will take ‘effect from the date you assumed duty..’. The resumption took effect in August 2012 as evidenced by exh.CS2.

In my view and I find that this period of about two years is sufficient time to nip any illegality on the bud and cancel the recruitment exercise if the Defendants had cause to believe it was not properly procured. The Defendants rather took no action and did not even arrest or embarrass the alleged known culprit in the purported employment scam, but waited until December 2014, when new regime was ushered in the Government house to declare the employment as illegal by the Director of Press in the Governor’s office. No official letter of termination was even issued as none was pleaded or tendered in evidence at the trial. The plea by the Claimants’ solicitors in exh.CS5 for change of heart and amicable resolution did not change the fortune of the Claimants which culminated in a mass protest and eventually this suit.

I also find that the period between August 2012 and December 2014 is clearly 29 months which the Claimants also seek a declaratory relief that they were teachers in the employment of the Defendants. Accordingly, this relief succeeds and it is hereby granted. I so hold.

On relief (ii) which is also declaratory relief, the Claimants to satisfy the requirements of proof for declaratory relief pleaded clearly the period of their employment and laid sufficient evidence to show that it spanned from August 2012 to December 2014, a period showing 29 months by simple arithmetic calculation. This fact has been found and settled in the course of this judgment. I so hold.

There was no evidence of payment of remunerations to the Claimants by their employers, the Defendants. The nearest issue of payment of any salary /allowance was in paragraph 10 of the Statement of Facts, thus: “The Claimants aver that it was only a few of them that were paid half salary in March 2013”. The Defendants in response in Paragraph 6 of their Joint Statement of Defence quickly dispelled and clarified the claim and stated that the payment was not even for salary. The paragraph 6 reads: “ The defendants admit paragraph 10 of the claimant’s statement of facts and avers that the half salaries paid sometime in the 2013 was a verification payment exercise and part of screening to shortlist those that are qualify(sic) to retain”.

From these averments and testimonies of both CW1, CW2 and DW, no other mention of payment of any sum to the Claimants were made. The employee is entitled to payment of remuneration from the period of commencement of duty to time of termination/exit from the employment unless there is sufficient reason by way of punishment for disciplinary infraction that would affect the payment. Even a Staff under suspension pending investigation is entitled to payment of salaries unless expressly provided otherwise in the contract of service. That is so even if the employer did not provide work and the employee is not protesting. A staff also remains an employee and entitled to remuneration even if the employment relationship is a temporary employment, as in the instant case. This is the intendment of S.17 (1) Labour Act Cap.L1 Laws of the Federation 2004. I so hold. I have taken the same position in a Judgment I earlier delivered today in West African Cotton Co Ltd v. Oscar Amos (unreported Suit No. NICN/YL/10/2015, judgment of which I delivered on 13^th June 2018).

From the fore going it is clear that the Claimants having worked as teachers for the Defendants for the period of 29 months as at December 2014 are entitled to payment of their salaries/wages, allowances and other entitlements for that said period. I so declare. Accordingly, Relief (ii) succeeds. I so hold.

Relief (iii) is a substantive claim for recovery of the amount accruing as salaries of the Claimants by Defendants. Having succeeded in the declaratory reliefs, the essence of this substantive relief is to give effect to the declaratory judgment already awarded in favour of the Claimant in the course of this Judgment. This relief would therefore be resolved by a simple arithmetical calculation as to how much each of the Claimants numbering 659 is entitled to for the 29 months they were employed. In other words, the accrued sums due and payable to the Claimants by the Defendants should be calculated as follows: Multiply amount due for each Claimant per month (put at N33,400 as per paragraph 8 of the Claimants’ Statement of Facts admitted by the Defendants in paragraph 4 of their Joint Statement of Defence) by the total number of the Claimants ( 659 in number) and number of the period of the employment (shown to be 29 months, from August 2012 to December 2014).

Simply put: N33, 400x659x29 = N638,307,400 ( six hundred and thirty eight million, three hundred and seven thousand four hundred naira). This is the actual sum due and payable to the Claimants by the Defendants which I have found as different from the sum of N638, 966,400 (six hundred and thirty eight million, nine hundred and sixty six thousand four hundred naira) claimed in the Relief (iii). This figure not being the actual calculated figure of sums due to the Claimants is hereby discountenanced and replaced with the actual figure now found to be correct.

Accordingly, this Relief (iii) succeeds. Judgment is hereby granted the Claimants in the sum of N638, 307,400 (six hundred and thirty eight million, three hundred and seven thousand four hundred naira).

The Claimants’ Relief (iv) is for the cost of this action. Beyond putting this line in the relief part of the pleadings, nothing was presented to show the entitlement to cost which ought to be treated as special damages and expected to be properly pleaded and credible evidence led to establish at the trial, even when it is obvious that the Claimants have been dogged in prosecuting their case and have been turning out in their large numbers even then at Jos Division and later Yola when the Division was established and the matter transferred back to their home soil. Having failed to take such desirable step in the proceedings, this relief fails, and is accordingly discountenanced and dismissed. I so hold.

An immediate rising issue is, if the Claimants are not entitled to general damages as a consequential relief even when the Claimants did not claim for special damages/reinstatement for wrongful termination of their employment by the Defendants? In Eze & Ors, v. Governor of Abia State & Ors (2014) LPELR- 23276(SC) relating to the abrupt dissolution of the Local Government Council in Abia State, the Supreme Court per Rhodes-Vivour JSC, confirmed the application and judicial use of consequential relief in deserving circumstances, similar to the instant case, which involves unjustified abrupt termination of the employment of the Claimants by the Director of Press in the Governor’s office, who merely declared the employment as illegal, despite ample evidence of due and rigorous processes that characterized the employment process. That calls for invocation of the hallowed principle of the Rule of Law- Ubi jus Ibi Remedium; a pivotal thrust-point anchoring sustainability of the often admirable egalitarian society.

General damages are awardable per force, i.e without proof and arises upon breach. The measure of damages for unlawful termination of employment has been pruned and generally limited, in absence of any special circumstance, to the amount of the period of notice that was breached during the termination. See: Ado v. Commissioner of Works, Benue State & ors [2007] 15NWLR (Pt.1058) CA 429, Obot v.CBN [1993]8NWLR (Pt.310) SC140, British Airways v. Makanjuola [1993] 8NWLR (Pt.311) CA276.

It was found in the course of the proceedings that the Defendants did not terminate the Claimants’ employment in accordance with the contract of the employment (exh.CS1) which expressly provided for one month salary in lieu of notice upon termination without notice.

I maintain the view that contract of employment is a sacrosanct document like any other contract which terms are to be observed and applied in resolution of dispute arising between the parties, a position I maintained in the Judgment I delivered in Alh. Saleh Buba v.Adamawa State University Services Ltd (Unreported Suit No. NICN/YL/02/2017, Judgment of which was delivered on 17^th May 2018). In U.B.N Plc. v. Soares [2012] 11 NWLR (Pt. 1312) C.A. 550@ 571, Paras. B-C, it was held that: “Parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous”. Thus, where the terms are clear and unambiguous, it should be read in its ordinary meaning to echo the intention of the parties. No court can lend its judicial arms to do otherwise. In Ihunwo v. Ihunwo [2013] 8 NWLR (Pt. 1375) S.C.550 @ 583, Paras.E-G, clarified the duty on court when interpreting written contract, and held thus:

“Where there is a written contract between parties, the main duty of the court is to interpret the contract to give effect to the wishes of the parties as expressed in the contract document. In other words, the proper course for the court is to discover the intention or contemplation of the parties and not to import into the contract ideas not patent on the face of the document”

That was even the Defendants’ lead Senior State Counsel’s submissions, while hauling in a lot of authorities in support of his arguments on issue 2 he raised for determination, to the effect that parties are bound by the terms of their employment relationship, as contained in exh.CS1, of which I now uphold.

From the pleadings and evidence led it was found that the employment was abruptly terminated by the act of the Director of Press in the Governor’s office who declared their employment as illegal and disbanded them from services as teachers in the various secondary schools they were posted. No evidence of payment of the one month notice in lieu of termination notice contained in exh.CS1 was adduced. I find that it has remained unpaid and the Claimants are entitled to it. I so hold.

Accordingly, the Claimants shall be additionally paid N33, 400.00 each x 659 of them, totaling N22,010,600( twenty two million ten thousand six hundred naira),being equivalent sum of payment for one month salary in lieu of notice for wrongful termination of the Claimants’ employment with the Defendants.

For clarity and avoidance of doubt, the terms of this Judgment are as follows:

For the reasons advanced in the body of the Judgment, Reliefs (i) and (ii) are successful and are accordingly declared as prayed.

For the reasons advanced in the body of the Judgment, Relief (iii) succeeds. Judgment is hereby entered in favour of the Claimants in the sum of N638, 307,400.00 (six hundred and thirty eight million, three hundred and seven thousand four hundred naira) payable by the Defendants.

For the reasons advanced in the body of the Judgment, Relief (iv) fails and is hereby discountenanced and dismissed

For the reasons advanced in the body of the Judgment, general damages as a consequential relief is hereby granted to the Claimants. The Claimants shall be additionally paid N22, 010,600.00(twenty two million ten thousand six hundred naira), being equivalent sum of payment for one month salary in lieu of notice for wrongful termination of the Claimants’ employment.

The total Judgment sum due and payable to the Claimants by the Defendants , as per paragraphs (2) and (4) above is N660,318,000.00 (six hundred and sixty million, three hundred and eighteen thousand naira)

Monetary payments in this Judgment shall be paid by the Defendants to the Claimants within two (2) months of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.

Judgment is entered accordingly. I make no order as to cost.

————————————-

HON. JUSTICE N.C.S OGBUANYA

PRESIDING JUDGE

13/6/18