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National Industrial Court

Akor Jacob Terkuma & 53 ors -VS- The Attorney General &

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

HOLDEN AT MAKURDI

BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA

 

DATE: 6TH DAY OF DECEMBER, 2019                              SUIT NO: NICN/MKD/52/2016

BETWEEN:

  1. AKOR JACOB TERKUMA
  2. OBGEBBO JOHN ESA
  3. AKURA TERFA NELSON
  4. DOOR AUN TERHEMEN
  5. FANAFA KASHIMANA SHIRSHA
  6. AWANYAH JASON NAHANGA
  7. ROSELINE TIGHIL N.
  8. OBOH REUBEN OBOH
  9. KPAAKPA IORFA
  10. AUGUSTINE ABI OGOR
  11. NGODOO VANESSA KITTIKAA    ………………………………..CLAIMANTS
  12. KYERNUM MICHAEL K.
  13. AKOR FELIX IGBADOO
  14. ABAKPA OJOTULE V.                     
  15. YAAKUGH CHARITY NGUVAN
  16. MELA FELICIA MNENA
  17. INDYERYO TYOAPINE PHILIP
  18. ATTAH MICHAEL OCHOGA
  19. CHEMBE MARK ORBAN
  20. ASEN DZUNGWENEN RAPHAEL
  21. OCHEGE MATHEW OCHEGE
  22. ADIKPE ARUBI FELIX
  23. TINGIR TERWASE TINGIR
  24. ALO ARICHA ESTHER
  25. AGADA ANGUS AMEH
  26. UKWURU EJEH FELIX
  27. TOR-ANYIIN DOOWUESE
  28. IJWO MIKE OGBO
  29. IORNONGO AONDONA GABRIEL
  30. TOR-ANYIIN SERUMUN
  31. TOR-ANYIIN JERRY AMOM
  32. JATO ROSEMARY SE-EMBER
  33. NYAM TYOYILA DENNIS
  34. ABAH EHI BLESSING
  35. KORZERZER STEPHEN KERTER
  36. KEGHKU M. ASHIDOON
  37. AKO VICTORIA MNGUNENGEN         ……………………………CLAIMANTS
  38. EGBIRI FAITH IYAJI
  39. IRTWANGE STEPHEN FATER
  40. MLANGA MARTIN KURANEN
  41. NAMTOR MNGOHOL
  42. ADENIJI ALIYU HALIMATU
  43. IWODI ALICE OGWA
  44. TERSOO MEMBER SUSAN
  45. NOMJI DEBORAH DOOYUM
  46. MBASHINYA AONDONENGE P.
  47. MAKIR JENNIFER WANDOO
  48. YAAKUGH PATIENCE SEWUESE
  49. SAMBE AUDREY VADOO
  50. UNUM TERSEER DESTINY
  51. DOOR SAMUEL DOOR
  52. IGWE ABEL OGBU
  53. SUSWAM ESTHER DOOBEE
  54. ABEL HABIBU UCHO
  55. IERKWAGH NGUNENGEN
  56. LAN JERRY TERFA
  57. UNUM LUCY
  58. NAGA JOYCE DOOFAN TORANYIIN
  59. UJA AGATHA ZUNGWEN
  60. IDOKO S. MONDAY
  61. SULE GRACE UDUMA
  62. BENEDICT AGENE E.
  63. TEGHTEGH STEPHEN NATER ……………………….CLAIMANTS
  64. OKI SALE
  65. IORLIAM DOOWUESE TESSY
  66. TOR-ANYIIN ORTSERGA TERKUMA
  67. TERKULA AKWAZA
  68. YOO MARK AER-TOR
  69. OCHOKWUNU OCHEFIJE
  70. AGI PAULINA OHIAMA
  71. AKPA EMMANUEL IDUMA
  72. ERIBA MIKE ONAH
  73. IJI MATHEW EGBE
  74. GBILEKAA ZACK AVAKAV
  75. ACHIGILI ELAIGWU
  76. ABUH ALECHENU
  77. TSWAKPE CLIFFORD TERUNGWA
  78. EDUGBEKE MOSES IBECHI
  79. JATO LUCY MLUMUN
  80. ATONGO JULIANA DOO
  81. TINGIR MNGUESIMA CRISTIANA
  82. KASE M. MWUESE
  83. OKITA JOHNSON OGWUGWU
  84. SAROR TERHILE TERENCE
  85. MARVE DORCAS DOOSEER
  86. OMENKA ERIMA GRACE
  87. ATOJI ERNEST ONWE
  88. TYOHOM CHRISTOPHER
  89. KWAGHGBA DOMINIC TYOKUHWA
  90. AKAAGEE FAITH SEWUESE
  91. IEREN ORSEER
  92. SUSWAN ROSEMARY UGOCHI   ……………………CLAIMANTS
  93. MLUMUN REBECCA
  94. GBAKON GODWIN
  95. ALUROBERT TERSOO
  96. ATA DERIC TERSUGH
  97. IORDYE CHIANGI RAYMOND
  98. ABRAHAM OGBLEBA MICHAEL
  99. BAKA ZEPHANIAH SESUGH
  100. ABRAHAM IYAJUWA GRACE
  101. TYOKASE MICHAEL TYOKASE
  102. ITYUDOROTHY NGOHILE
  103. KURA GODWIN AONDOWASE
  104. ABIEM N. DEBORAH
  105. SHAAPERA TERYILA KINGSLEY
  106. OKWORI ALICE
  107. LAN EUNICE HUNDE
  108. IORBO GLORIA                                  
  109. VIHI SIMON KUMA
  110. YOGBO TARDOO JOSEPH         ………………………………..CLAIMANTS
  111. OKOH BLESSING OKA
  112. ONOJA ESTHER OCHEDE

AND

  1. THE ATTORNEY GENERAL AND

COMMISSIONER FOR JUSTICE, BENUE STATE    …………………….DEFENDANTS

  1. BENUE STATEGOVERNMENT
  2. BENUE STATE CIVIL SERVICE COMMISSION

REPRESENTATION:

12th, 17th -19th, 25th to 30th, 84th and 56th Claimants present

Other parties absent.

T.T. Shachia for the Claimants

E.O. Kpojime (PSC) Benue State Ministry of Justice for the Defendants.

JUDGEMENT

Earlier, by a complaint dated 29/07/2016 but filed on 01/08/2016, the 1st to 54th Claimants herein commenced this suit against the Defendants. Subsequently, by a motion dated and filed on 17/10/2016 the Claimants were heard by my Learned Brother Hon. Justice P. O. Lifu,on 23/01/2017 seeking leave to amend the originating processes; file additional witness statements on oath and for joinder of the 55th – 112th Claimants. That application was granted and the processes were accordingly deemed as properly filed. Now, going by the Amended Complaint filed on 17/10/2016, the Claimants are seeking the following reliefs from the Honourable Court:

“1. A DECLARATION that claimants having been duly employed by the defendants and issued letters of appointment, sub-head numbers and Staff Identity Cards, claimant’s contract of employment with the defendants is legal, valid and subsisting.

  1. A DECLARATION that the failure/refusal of the defendants to pay the claimants their salaries, emoluments and allowances from the date of employment to the date of commencing this action is illegal, unlawful, unfair and unjust.
  2. A DECLARATION that the claimants are entitled to their salaries, emoluments and allowances from the date of employment to the date of determination of this suit.
  3. AN ORDER directing the defendants to pay the claimants the total sum of One Hundred and Fourteen Million, Eight Hundred and Forty Two Thousand, Seventy Naira (N114,842,070.00) only as their salaries, emoluments and allowances from April, 2015 – September, 2016 as computed below:

 

  1.         1st claimant                    –        N926,550.00
  2.         2nd claimant                   –        N926,550.00

                   iii.        3rd claimant                    –        N926,550.00

  1.         4th claimant                    –        N926,550.00
  2.         5thclaimant                     –        N926,550.00
  3.         6th claimant                    –        N926,550.00

                 vii.        7thclaimant                     –        N926,550.00

                viii.        8thclaimant                     –        N926,550.00

  1.         9thclaimant                     –        N926,550.00
  2.         10thclaimant                             –        N926,550.00
  3.         11thclaimant                             –        N926,550.00

                 xii.        12thclaimant                             –        N926,550.00

                xiii.        13thclaimant                             –        N926,550.00

                xiv.        14thclaimant                   –        N926,550.00

  1.         15thclaimant                   –        N926,550.00

                xvi.        16thclaimant                   –        N926,550.00

              xvii.        17thclaimant                   –        N926,550.00

             xviii.        18thclaimant                   –        N1,064,790.00

                xix.        19thclaimant                   –        N8,049,024.00

  1.         20thclaimant                   –        N926,550.00

                xxi.        21stclaimant          –        N926,478.00

              xxii.        22ndclaimant        –        N926,478.00

             xxiii.        23rdclaimant         –        N960,030.00

             xxiv.        24thclaimant                   –        N926,478.00

              xxv.        25thclaimant                   –        N960,030.00

             xxvi.        26thclaimant                   –        N926,478.00

           xxvii.        27thclaimant                   –        N926,550.00

          xxviii.        28thclaimant                   –        N926,478.00

             xxix.        29thclaimant                   –        N670,752.00

              xxx.        30thclaimant                   –        N926,550.00

             xxxi.        31stclaimant          –        N926,550.00

           xxxii.        32ndclaimant        –        N1,064,790.00

          xxxiii.        33rdclaimant         –        N926,550.00

          xxxiv.        34thclaimant                   –        N926,550.00

           xxxv.        35thclaimant                   –        N926,550.00

          xxxvi.        36thclaimant                   –        N926,550.00

        xxxvii.        37thclaimant                   –        N926,550.00

       xxxviii.        38thclaimant                   –        N1,064,790.00

          xxxix.        39thclaimant                   –        N926,550.00

  1.         40thclaimant                   –        N926,550.00

                 xli.        41stclaimant          –        N670,752.00

                xlii.        42ndclaimant        –        N5,497,632.00

               xliii.        43rdclaimant         –        N926,550.00

              xliv.        44thclaimant                   –        N926,550.00

                xlv.        45thclaimant                   –        N926,550.00

              xlvi.        46thclaimant                   –        N926,550.00

             xlvii.        47thclaimant                   –        N926,550.00

            xlviii.        48thclaimant                   –        N926,550.00

              xlix.        49thclaimant                   –        N926,550.00

  1.         50thclaimant                   –        N926,550.00
  2.         51stclaimant          –        N926,550.00

                   lii.        52ndclaimant        –        N672,552.00

                  liii.        53rdclaimant         –        N926,550.00

                 liv.        54thclaimant                   –        N926,550.00

  1.         55thclaimant                   –        N1,265,562.00

                 lvi.        56thclaimant                   –        N926,550.00

                lvii.        57thclaimant                   –        N926,550.00

               lviii.        58thclaimant                   –        N926,550.00

                 lix.        59thclaimant                   –        N926,550.00

  1.         60thclaimant                   –        N926,550.00

                 lxi.        61stclaimant          –        N926,478.00

                lxii.        62ndclaimant        –        N926,550.00

               lxiii.        63rdclaimant         –        N926,550.00

              lxiv.        64thclaimant                   –        N670,752.00

                lxv.        65thclaimant                   –        N670,752.00

              lxvi.        66thclaimant                   –        N926,550.00

             lxvii.        67thclaimant                   –        N670,752.00

            lxviii.        68thclaimant                   –        N960,030.00

              lxix.        69thclaimant                   –        N926,550.00

                lxx.        70thclaimant                   –        N672,552.00

              lxxi.        71stclaimant          –        N672,552.00

             lxxii.        72ndclaimant        –        N672,552.00

            lxxiii.        73rdclaimant         –        N926,550.00

           lxxiv.        74thclaimant                   –        N926,550.00

             lxxv.        75thclaimant                   –        N672,552.00

           lxxvi.        76thclaimant                   –        N1,064,790.00

          lxxvii.        77thclaimant                   –        N926,550.00

         lxxviii.        78thclaimant                   –        N926,478.00

           lxxix.        79thclaimant                   –        N960,030.00

             lxxx.        80thclaimant                   –        N926,550.00

           lxxxi.        81stclaimant          –        N1,265,562.00

          lxxxii.        82ndclaimant        –        N926,550.00

         lxxxiii.        83rdclaimant         –        N926,478.00

        lxxxiv.        84thclaimant                   –        N926,550.00

          lxxxv.        85thclaimant                   –        N926,550.00

        lxxxvi.        86thclaimant                   –        N960,030.00

       lxxxvii.        87thclaimant                   –        N926,550.00

      lxxxviii.        88thclaimant                   –        N926,550.00

        lxxxix.        89thclaimant                   –        N926,550.00

  1.         90thclaimant                   –        N926,550.00

               xci.        91stclaimant         –        N670,752.00

              xcii.        92ndclaimant        –        N926,550.00

             xciii.        93rdclaimant         –        N926,550.00

            xciv.        94thclaimant                   –        N926,550.00

             xcv.        95thclaimant                   –        N926,550.00

            xcvi.        96thclaimant                   –        N926,550.00

           xcvii.        97thclaimant                   –        N926,550.00

          xcviii.        98thclaimant                   –        N926,550.00

            xcix.        99thclaimant                   –        N926,550.00

  1.         100thclaimant       –        N1,473,768.00
  2.         101stclaimant                 –        N926,550.00

                 cii.        102ndclaimant                –        N926,550.00

                ciii.        103rdclaimant                 –        N926,550.00

               civ.        104thclaimant                 –        N476,136.00

  1.         105thclaimant                 –        N926,550.00

               cvi.        106thclaimant                 –        N1,064,790.00

              cvii.        107thclaimant                 –        N926,550.00

             cviii.        108thclaimant                 –        N926,550.00

               cix.        109thclaimant                 –        N926,550.00

  1.         110thclaimant                 –        N926,550.00

               cxi.        111thclaimant                 –        N926,478.00

              cxii.        112thclaimant                 –        N1,473,606.00

Total                               =        N114,842,070.00

 

  1. AN ORDER directing the defendants to compute and pay to the claimants their salaries, emoluments and allowances from the month of October, 2016 to the date of the determination of this suit and thereafter continue to pay the salaries, emoluments and allowances of the claimants as staff of the 2nd defendants.
  2. AN ORDER directing the defendants to immediately allow the claimants un-inhibited access to their various offices to continue with their lawful duties as staff of the 2nd defendant.
  3. AN ORDER directing the defendants to pay to the claimants the general and exemplary damages of Five Hundred Million Naira (N500,000,000.00) only.”

In brief, going by the amended statement of facts filed by the Claimants, the case of the Claimants is disclosed to be that they were employed into the services of the 3rd Defendant sometime in 2015, as evidenced by their respective letters of appointment pleaded. The Claimants aver that their employment with the 2nd Defendant was made sequel to vacancies indicated by the Chairman of the 3rd Defendant to the Governor of Benue State. The Claimants aver that their employment met with approval and compliance to all set processes for the said employment. Having been issued sub-head numbers and Staff Identity Cards. The claimants were posted to various Ministries, Agencies and Parastatals of the 2nd Defendant, whereat they were assigned offices and assumed duty.

The Claimants have decried the suspension of their employments which was done viva voce by the Defendants sometime in June 2015. The Claimants are concerned that there was no reason stated for the suspension except that they were required to stay away from work. The salaries, allowances and emoluments of the Claimants since that date of employment up to the time of commencing this suit have not been paid by the Defendants

The Claimants have stated that they detailed an appeal for reinstatement to the Defendants via the Executive Governor of the 2nd Defendant, which letter was delivered and received by the Office of the Governor of Benue State but to no avail. Attempts by the Claimants at resuming their official duties were rebuffed by officers of the 2nd Defendant.

The Claimants aver that the Defendants purported to have terminated their appointments; even without notice of termination or salary in lieu of notice as stated in the terms and conditions of service stipulated in their respective letters of appointment. It is in light of this development that the Claimants deem it that they are owed arrears of salaries, allowances and emoluments and hence, the instant action.

The Defendants on the other hand caused a joint statement of defence and Counter Claim dated 10/11/2016 to be filed on 14/11/2016.

In the Counter Claim the Defendants/Counter Claimants are seeking the following reliefs against the Claimants/Defendants:

 

“a) A Declaration that the recruitment and issuance of letters of employment by the now defunct commission to the claimants/defendants is null and void for non compliance with constitutional provisions.

  1. b)AN ORDER of court nullifying the purported employment of the claimants/defendants for non compliance with constitutional provisions fraud, irregularities, mischief and bad faith.
  2. c)AN ORDER restraining the claimants/defendants perpetually from parading themselves as staff of the 2nd and 3rd defendants/Counter Claimants.”

In denying the claims of the Claimants, the Defendants contended that the Claimants were not employed into the services of the 2nd and 3rd defendants as due procedure for employment into the 2nd and 3rd Defendants was not followed by the defunct chairman of the commission. In further contending the claims, the Defendants stated that the powers of the B.I.R.S do not extend to recruiting staff for the 2nd Defendant. That it is only the 3rd Defendant which is a statutory body that is mandated to employ staff for the 2nd Defendant. That the 3rd Defendant can only employ into the services of the 2nd Defendant upon request from ministries, department and agencies under her control and based on existing vacancies and not the Governor directing normalization of staff employed by another statutory body. The Defendants conceded that the defunct chairman of the 3rd Defendant wrote the executive Governor of Benue State for replacement into B.I.R.S but contended that the letter was written in error as the 3rd defendant does not have power to recruit staff for the B.I.R.S which has her statutory powers distinct from that of the 3rd defendant with powers to employ its own staff.

The Defendants admitted that the Governor of the state gave approval for the replacement of Two Hundred and Forty (240) staff of the B.I.R.S except they contended that the letter does not relate to replacement of the said names into the core civil service of which the 3rd Defendant has control. The Defendants are of the view that the subhead numbers, the staff identity cards, letters of employment, letters of temporary appointment were all issued in error because due process was not followed in the employment of the Claimants. The Defendants contend that the process of employment of the Claimants was unconstitutional, fraught with irregularities, mischief and bad faith.

The Defendants maintained that the posting and acceptance of the claimants in any of the Ministries, Departments and Agencies was done in error.

For their case, the Defendants outlined the procedure that ought to have been followed in employing the Claimants, the Defendants stated that the Claimants’ employment having fallen short of the laid down procedure and stated that the purported employment of the Claimants was fraught with irregularities and fraud.

The Defendants pleaded particulars of irregularity and fraud and further particularized the mischief and bad faith as alleged in their pleading.

Hearing in this matter commenced on 4/12/2018 with the Claimants’ witness being called to testify. Igwe Abel, the CW1 adopted both his Witness Statements on Oath dated 21/11/2018 and 16/11/2017, respectively. The documents already frontloaded were tendered and admitted in evidence and marked as follows:

  1. Letter dated 7/8/2014 (Exhibit 1)
  2. Letter dated 23/03/2018 (Exhibit 2)
  3. Letters of Application for employment all dated 25/03/2015 (Exhibits 3A1-3A-76)
  4. Offers of temporary appointment dated 26/03/2015 (Exhibits 4A1-4A81)
  5. Letters of issuance of personal subhead Nos. dated 8/05/2015 (Exhibits 5A1-5A67)
  6. Benue State Government Staff Identity Cards (Exhibits 6A1-6A73)
  7. Acceptance letters (Exhibits 7A1-7A20)
  8. Letter dated 20/10/2015 (Exhibit 8
  9. Temporary appointment letters dated 26/03/2015 (Exhibits 9A1-9A76)

CW1 was then cross examined by Learned Counsel for the Defendants and discharged thereafter.

The matter came up for defence on 13/05/2019 with DW1, Iorsulla Austin Terfa testifying as the sole witness for the Defendants. The DW1 adopted his Witness Statement on Oath in evidence and was thereafter cross examined by learned counsel for the Claimants. Upon conclusion of the cross examination, the DW1 was discharged.

On 9/10/2019, the matter was slated for adoption of final addresses. The Defendants’ joint Final Written Address dated 20/06/2019 but filed on 24/06/2017 was adopted following an application for extension of time dated 16/07/2019 and filed on 18/07/2019.

Two issues were presented to court for determination by the final address of the Defendants, namely:

“1. Whether from the available evidence before the Honourable court the claimants have proved their case to warrant the court to award the reliefs sought.

  1. Whether the defendants counter claimants have proved their counter claim against the defendants to warrant judgment in their favour.”

Arguing issue one, counsel for the Defendants submitted that the Claimants’ claims could not and did not meet the standard of proof required because the procedure adopted for their employment was irregular. Learned Counsel while citing Section 83 of the Evidence Act 2011 contended that the documents tendered by the Claimants’ sole witness on behalf of the other 111 claimants were objectionable because according to counsel, the CW1, (Abel OgbuIgwe) is not the maker and receiver of the documents tendered.

Then again, though not conceding the point, counsel further argued that assuming the employment of the Claimants were one with statutory flavor then the Claimants ought to have fully complied with the statutory provisions regulating their employment. Counsel submitted that the claimants did not accept the employment. Counsel urged the court to find that the process of employment of the Claimants was irregular and fraudulent; being unknown to the Defendants, with the consequence that the Defendants could not validly issue letters of termination of employment to the Claimants. Counsel dwelt heavily on the irregularity of the mode of employment and urged the Court to dismiss the case of the Claimants.

With regards to the claim for special and specific damages, learned counsel argued that the Claimants had not proved same, particularly as the law requires such a claim to be strictly and specifically proved by documents. Counsel cited G.K.F INVEST. NIG.LTD. V. NIG TELECOM PLC (2009) 6-7 SC PT. 11 163. Finally, counsel submitted that the Claimants can only succeed on the strength of their case and not on the weakness of the Defense.

On issue two, Counsel for the Defendants/Counter Claimants argued that the non-compliance to the procedure for employment of staff of the Defendants meant that the counter claim was proved, more so as there was no opposition to the Counter claim as raised. Counsel therefore urged the court to hold that the claimants have no defence to the counter claim and to also dismiss the claim of the claimants.

The final written address of the claimants was filed on 18/07/2019. In the address, learned counsel for the Claimants adopted the issues formulated by the Defendants with slight modification and submitted for determination by this Honourable Court as follows:

“a)     In view of the totality of the pleadings and evidence before the Honourable Court, whether the claimants have not proved that the claimants are employees of the defendants to be entitled to all the reliefs sought in this suit.

  1. b)Whether the defendants have not abandoned their counter-claim, and if the answer is in the negative, whether the defendants have proved their counter –claim to be entitled to judgment in their favour.”

Tackling issue one the learned counsel for the Claimants submitted that based on the state of pleadings and the evidence adduced before this court, on balance of probability, the standard of proof required in the instant case had been met. Counsel cited and relied on Sections 131 and 132 of the Evidence Act 2011 (as amended) and plethora of case law to submit that the case of the Claimants as demonstrated through the statement of claim, oral evidence and documentary evidence had not been contradicted as to fact of the employment of the Claimants. Learned counsel also pointed to the terms and conditions of the Claimants’ employment to argue that the Defendants were in breach of same by failing to issue notice of termination upon the claimants. Counsel urged the court to hold that the Defendants who provided and regulated the procedure for employment of the claimants are estopped from raising a defence of illegality.

Counsel further contended that the Defendants had not availed themselves of a defence by merely making criminal allegation without the proof of same. Regardless of the fact that the criminal allegations were made in a civil suit, that the standard of proof remains the same – proof beyond reasonable doubt. That the Defendants had not even stated who purportedly committed the crimes alleged.

Relying on the provision of Section 83 (2) (a) of the Evidence Act, 2011 (as amended) Claimants’ counsel submitted that the argument of the defendants was misconceived that the CW1 who testified and tendered documents  for himself and on behalf of 111 others was not the maker or receiver of the documents. Counsel pointed to the averment in Paragraph 3 of the statement on oath of the CW1 to say that the law had been duly complied with. Counsel further drew the attention of the court to the computation of the salaries of the claimants and submitted that N6, 380, 115.00 is the total salaries of the claimants for one (1) month, derivable from both paragraph 141(d) of the earlier statement of claim and 141(c) of the amended statement of claim. Counsel therefore surmised that from October 2016 to July 2019 was a number of 34 months which altogether amounted to N216, 923,910.00.

Moving on to issue two, counsel argued that the Defendants had abandoned their Counter Claim considering that the Defendant’s joint statement of Defence together with a statement on oath was filed on the 14th of November 2016 alongside the Counter Claim and a separate statement on oath. Incidentally, on the 13th of May 2019 when the matter came up for defence, the DW1 who was the sole witness for the Defence adopted only the witness statement on oath accompanying the joint statement of defence ignoring to adopt the other statement accompanied to the counter-claim. On this note, counsel submitted that the failure of the defence to adopt the statement on oath accompanying the Counter claim is tantamount to abandonment of same.

Learned Counsel for the claimants while relying on the cases of AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT. 1253) PG. 458 @ 597, PARA A-E; DANJUMA V. TERENGI (2011) 6 NWLR (PT. 1244) PG. 542 @ 557, PARA. A-B.  further submitted that since a counter claim is a separate suit in itself, the defendants/counter claimants ought to have called evidence in proof of their counter claim but they failed to do so. Counsel therefore urged the court to find that it is fatal to the case of the counter claimants. In all, counsel urged the court to enter judgment in favour of the claimants against the defendants in the terms contained in Paragraph 141 of the amended statement of claim.

OPINION OF THE COURT

I have considered the pleadings of the parties, the evidence adduced more importantly the Exhibits admitted and the respective submissions of Counsel.

To determine the reliefs sought by the Claimants, there is the onus on them to prove that;

(a) They are employees of the Defendants

(b) The terms and conditions of their employment by placing before the court the terms of the contract.

(c) Who can appoint and who can remove them

(d) In what circumstances the appointments can be determined by the employer and breach of the terms.

See Oloruntoba-Oju V. Abdul-Raheem (2009) NWLR (Pt 1157) 83, SC

In their bid to prove the above, the Claimants tendered their applications for appointment, Temporary appointment letters, acceptance letters, Staff Identity Cards and letters of issuance of Sub-head numbers among others.

It appears that from the documents admitted and the facts and circumstances of this case, the Defendants are creation of statute and the constitution for that matter.

I wish to state here that where a contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly have statutory flavor. See Omoloame V. W.A.E.C. (1992) NWLR (Pt.265) 303 SC.

I wish to also state that when an office or employment has a statutory flavor in the sense that its conditions of service are provided for and protected by statute or regulations made there under, any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of disciplining of such person, the procedure laid down by the applicable statute or regulations must be fully compiled with and if materially contravened, any decision affecting the right or tenure of office of that person may be declared null and void. See Osisanya V AfriBank Nig.Plc (2007) NWLR (Pt.1031) 565 SC.

It was held by the Supreme Court in Shitta-Bey V. F.P.S.C.(1981) 1 S.C. 26 that the Civil Service Rules of the Federal Public Service which govern conditions of service of Federal Public Servants made pursuant to the then 1963 Constitution have constitutional force and they invest the Public Servants over whom they prevail a legal status beyond the ordinary or mere master and servant relationship.

In NEPA V ANGO (2001)15 NWLR Pt 737672 at 647-648, it was Held that the employer of an employee with statutory flavor has no right to terminate his appointment at will because the employee does not hold the appointment at pleasure of such an employer. In order to terminate such appointment, the employer is duty bound to comply with the conditions precedent laid down in the conditions of appointment failing which such termination will be held to be in effectual and void.

It must however be stressed that the fact that an employer is a statutory body does not elevate all its employees with status of employees with statutory protection or that the Conditions of service of its employees must be of a special character ruling out the relationship of mere master and servant relationship. The court must confine itself to the terms of contract of service between the parties which provide for their rights and obligations. In the instant case Exhibits 4A1-4A81 which are offers of temporary of appointment must be taken into consideration. See Fakuade V. O.A.U.T.H.C (1993) NWLR (Pt. 291) 47 SC.

It is also imperative to state that the question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or of the relevant statute. See Oloruntoba-Oju V. Abdul-Raheem (supra)

In Fakuade’s case (supra), the plaintiff was a nurse in the employment of the defendant. She was employed in 1976 and her letter of appointment was tendered as an Exhibit. She said she received a query form the defendant accusing her of a missing stainless steel bowl and was asked to state all she knew about the missing bowl. All of a sudden, she received a letter of termination of her appointment on 13/11/1987. She said she was shocked to have received the termination letter because she felt she had not committed any offence. The defendant on the other hand admitted terminating the appointment of the plaintiff but said it was not as a result of the query concerning the missing of the stainless steel bowl, nor for any misconduct on the part of the plaintiff. Rather it was as a result of a retrenchment exercise it found necessary in order to cut down overhead costs.

It was held by the Supreme Court in Fakuade’s case that there is no doubt that if the determination of the appellants appointment had fallen under section 9 of the University Teaching Hospitals (Reconstitution of Boards etc) Decree No.10 of 1985, the situation would have been different. The cases of shitta-Bey and Olaniyan (supra) would have been relevant.

In other words, I wish to observe from the above and add that had the plaintiff’s appointment in Fakuade’s case been terminated as a result of  misconduct or commission of any offence, then the disciplinary procedure would have necessarily been followed before termination of her appointment.

I wish to state that parties to a contract of employment are bound by the terms and conditions of their employments. In the instant case the offers of temporary appointment given to the Claimants as exhibits 4A1-4A81 provided for the mode of terminating the employment in paragraph 1(a) which says “That you or the Government may terminate your engagement by a month’s notice orbit(sic)payment if a(sic) month’s salary in lieu of notice”. Paragraphs 2 and 3 of the letters also said that a written acceptance letter shall be submitted within 60 days and if it is not submitted, then the offer would be regarded as having lapsed. However, there are only 80 copies of temporary appointment letters and 20 copies of acceptance letters. At any rate, I think issuance of Sub-head numbers and Identity Cards presupposes that other acceptance letters were submitted. I wish to quickly find that the case of the claimants who do not have appointment letters before the court fails, and fail also are the claimants who only have appointment letters without either acceptance letters or sub-head numbers or Identity cards because of the provisions of paragraph 2 and 3 of the claimants’ letters of appointment.(Exhibits 4A1-4A80).

It follows from the above, that the Claimants’ employment with the Defendants is a contract of service terminable by either party by one month notice or salary in lieu of notice.

In view of the fact that the termination of the appointment of the Claimants was not based on any misconduct or negligence, the Defendants are at liberty to terminate the appointment in accordance with the terms laid down in the offers of temporary appointment which stipulated that a month’s notice or a month’s salary in lieu of notice must be given on either side. It is my view that one month’s notice or one month’s salary in lieu of notice would be a valid termination of the Claimants’ appointment. Hence where the contract of appointment is determinable by the agreement of the parties as in the instant case, there is no question of the contract having a statutory flavor. The fact that the other party is a creation of statute does not matter.

In view of the content of the offers of temporary appointment of the claimants, it is obvious that the Claimants’ employments are not protected by statute and In such case, the Claimants can be validly terminated by the Defendants by one month’s notice or salary in lieu of notice.

The Claimants in their paragraph 132 of the statement of defence stated that sometime in June, 2015, they were verbally informed by the various Ministries, Agencies and Parastatals of the 2nd defendant where the claimants assumed duties that their appointments were suspended as such the claimants should stay way from their offices.

I find going by the above averment of the claimants that since the employment of the claimants is not protected by statute and can be determined by one month’s notice or salary in lieu of notice, then the appointments of the claimants were deemed terminated though (wrongfully)sometime in June, 2015.

The declaration therefore sought by the Claimants that their employment is valid and subsisting cannot be granted. This is because, it is firmly settled that if the termination or dismissal of employment is wrongful, the remedy is in damages as regards his salary and other entitlements at the time of the termination or dismissal and the employment cannot be treated as subsisting. See Osisanya V. AfriBank(supra).

It is also the law that, termination even if wrongful, bring to an end the contract of service owing to the confidential relationship between master and servant which cannot continue in the absence of mutuality. See Ifeta V S.P.D.C. Nig Ltd (2006) LPELR-1436(SC).

The general law is that the courts will not grant specific performance of a contract of service and therefore a declaration that a contract of service still subsists will rarely be made. For that declaration to be granted, special circumstances will be required and such special circumstances have been held to arise where the contract of employment has a legal or statutory flavor thus putting it over and above the ordinary master and servant relationship or a special legal status such as a tenure of public officers is attached to the contract of employment. See Idoniboye-Obu V N.N.P.C (2003) LPELR 426(SC).Festus Mrakpor & Anor. V Police Service Commission (2018) 15 ACELR 20 CA.

On the defendants’ counter claim, let me say straight away that the case sought to be made by the Defendants through their Counter claim is vague, lopsided and inchoate. The counter-claim is by nature an independent action and not part of the original action, though for convenience the two are tried together. Thus, there is no separate hearing for a counter-claim. See: ISAAC E. NWAENANG V. CHIEF EDET W. NDARAKE & ORS(2013) LPELR-20720(CA); NEWSWATCH COMMUNICATIONS LTD V. ATTA (2006) 4 S.C. (PT. II) 114. In this case, firstly I see that the Defendants’ counter claim alleges offenses in vacuo without any direct lead as to who should be held liable for the offences alleged and particularized. It is the requirement of law that the allegation should not only be positive but direct. Secondly, I find that there are not all parties necessary for the determination of the counter claim before me. It stands to be reasoned that since the acts constituting the irregularities alleged manifested under the watch of the Defunct members of the 3rd Defendant, it is my respectful view that the counter claim in this sense, amounts to an application for review of the acts of the defunct members of the 3rd Defendant. I hold the view that not only should the defunct members of the commission be party to this suit, the procedure to adopt for review would also be quite distinct from the Counter claim. In all, I find that the evidential burden placed on the Counter claimants has been greatly derided by these lapses.

The legal position of this state of affairs in so far as the Defendants’ counter-claim is concerned is as already indicated above; the Defendants’ claim suffers a fatal blow with the obvious result that the counter-claim must fail. Accordingly, the defendants’ counter claim is dismissed.

The Defendants have sought to shield themselves from liability by asserting that the said employment of the claimants is irregular on account of some alleged procedural issues. Unfortunately, I find no cogent and compelling evidence before me that would allow me to presume their regularity of the said employment. Such weighty allegation has to be based on something other than mere say so. It stands to be reasoned that such allegation would make good grounds for attack but not such a defence in absence of proof of specific finding of irregularity of the employment according to law. The assertion of the defendants that the appointments of the claimants were irregular and made in error only amounts to blowing hot and cold from the same breath which I find cannot stand.

Arising from the foregoing, I hereby make the following orders;

  1. That the suspension of the appointments of the claimants whose offers of temporary appointment, and acceptance letters or letters of issuance of Sub-head numbers or Identity Cards are concurrently before the court is wrongful as the suspension of the appointments was not in accordance with paragraph 1(a) of their respective offers of temporary appointment which states that the appointment is terminable by giving one month’s notice or salary in lieu of notice.
  2. That the said claimants who have concurrently their offers of temporary appointment and acceptance letters or letters of issuance of Sub-head numbers and Identity Cards shall be paid the salaries of April and May, 2015 and one month’s salary in lieu of notice by the defendants within 30 days from the date of this judgment failing which it shall attract 10% interest until the judgment sum is fully liquidated.
  3. That the case of the other claimants who do not have their offers of temporary appointment at all before the court or concurrently with acceptance letters or letters of issuance of Sub-head numbers or Identity Cards fails and is herby dismissed.
  4.   That the defendants’ counter – claim also fails and is dismissed.

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

___________________________________

HON. JUSTICE S. H. DANJIDDA

                                                            (PRESIDINGJUDGE)

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