IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT.
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.
Dated: 4th day of February, 2020 SUIT NO: NICN/PHC/143/2018
BETWEEN:
- OLAOLUWA KEHINDE AJIBOLA
- ODOM KENNETH ADIKEIBE
- ANDREW HOPE BEATRICE
- OBENE THANKGOD OSI
- AWAJIMA GOODLUCK AMADIKE
- JAPHETH DAVID SUNDAY AND
13Other Members of Staff of Federal College of Education
(Technical), Omoku, Rivers State,
whose names are set out in Schedule “A” attached herewith………………..CLAIMANTS
AND
FEDERAL COLLEGE OF EDUCATION OMOKU, RIVERS STATE..………….DEFENDANT
Representations:
D.O. Okoro with G.K. Nwabueze for the Claimants.
G.C. Onuoha for the Defendant.
Judgment.
This suit was commenced by way of a general form of Complaint filed on the 11th of December, 2018 along with a verifying affidavit, statement of facts, list of witnesses, witness statements on oath, list of documents and copies of the listed documents to be relied upon at trial.
Arising from the complaint and statement of fact, the Claimants claims against the Defendant as follows:
- i) A declaration that the Claimants’ respective employments as members of staff of the Defendant are valid and subsisting.
ii)A declaration that the Claimants are entitled to the payment of their respective salaries, allowances and emoluments based on the Consolidated Tertiary Institutions Salary Structure (CONTISS) which took effect from 1/4/2007.
iii) A declaration that the Defendant has no right to suspend the payment of the Claimants’ respective salaries from August, 2017 to August, 2018.
- iv) A declaration that the Defendant has no right to withhold the remittance in full to the Claimants’ respective Pension Fund Administrators of the pension contributions deducted from the Claimants’ respective salaries as well as the Defendant’s counterpart pension contributions in favour of the Claimants.
- v) An Order of the Honourable Court directing the Defendant to pay the Claimants’ forthwith their respective salaries from August, 2017 to August, 2018 and subsequently to continue to pay the Claimants their respective monthly salaries, allowances and other emoluments that they are entitled to as at when due based on Consolidated Tertiary Institutions Salary Structure (CONTISS).
- vi) An Order directing the Defendant to remit in full to the Claimants’ respective Pension Fund Administrators the Claimants’ pension contributions deducted from their respective salaries as well as the Defendant’s counterpart pension contributions in favour of the Claimants.
vii) An Order of injunction restraining the Defendant whether by itself or through its agents, privies or proxies from terminating, sacking, disengaging or in any way interfering with the respective employments of the Claimants.
Reacting to the foregoing claims, the Defendants on the 31st of May, 2019 entered conditional appearance and filed their Statement of Defence, accompanying same with list of witnesses, witness statement on oath, list of documents and copies of the documents to be relied upon at trial.
Upon being served with the statement of defence, Claimants on the 21st of June, 2019 filed a reply to the said statement of defence.
Trial of this case commenced on 7th of May, 2019. In opening their case, the Claimants called a sole witness in person of Olaoluwa Kehinde Ajibola as CW1 and he adopted his witness statements on oath marked as C1(a) and C1(b). Through the CW1, 11 documents were tendered and admitted in evidence as Exhibit C2 – C12.
Arising from the statement of fact and witness statement on oath, the case of the Claimants is that they are members of staff of the Defendant having been employed at various times and deployed to Demonstration Secondary School as teachers. They added that they were placed on Harmonized Tertiary Institutions Salary Structure (HATISS) while their employment was confirmed and were promoted at various times. The Claimants averred further that with effect from April, 2007 the Defendant changed from the Harmonized Tertiary Institution Salary Structure (HATISS) for Federal Tertiary Institutions to the Consolidated Tertiary Institutions Salary Structure (CONTISS), but the Defendant continued to use HATISS instead of CONTISS to pay the Claimants. They added that from August, 2017 to August, 2018 the Defendant deliberately suspended the payment of the Claimants’ salaries and only resumed from September, 2018 and that when the Defendant pays them based on HATISS, still the Defendant does not pay them in consonance with the amount stipulated in HATISS for their different grade levels. Claimant also added that the various sums deducted by the Defendant as their individual pension contributions from their respective salaries as well as the Defendant’s counterpart pension contributions were not duly remitted and in some cases not paid over at all to the Claimants’ respective Pension Fund Administrators. The Claimants posited that attempts to resolve the anomalies have earned threats of termination of employment by the Defendant hence this suit.
Upon cross examination, CW1 admitted that the Defendant is an Institution while Demonstration Secondary School is an establishment of the Defendant. CW1 however stated that he is a staff of the Defendant and not Demonstration Secondary School as they were merely deployed to the school though CW1 admitted that he never applied to the Federal Civil Service or National Commission for College of Education. CW1 also
insisted that the Demonstration Secondary School is not a private school although he could not remember when the school was established. He also admitted that there has been crisis in Omoku which led to the reduction in the number of pupils.
Upon the discharge of CW1, Claimants closed their case while the Defendants opened theirs by calling two witnesses in persons of Ugechi Peace Uwaudo as DW1 and Achakoro Azubuike as DW2. The witnesses adopted their witness statements on oath and they were respectively marked as D1 and D2. 7 documents were tendered through DW2 and same were admitted under protest as Exhibits D2 – D9(a)-(d) except for Exhibits D5 and D7 that were admitted in evidence.
Arising from the statement of defence and witness statements on oath, the case for the Defendant is that while the Defendant (Federal College of Education (Technical) Omoku) is a Federal Government Institution, Demonstration Secondary School (F.C.E.T) where the Claimants worked is an establishment of the Federal College of Education for purpose of generating Internal Revenue for the Defendant. They added that the terms and conditions of service by the National commission for College of Education is not applicable to the Claimants as they are staff of Demonstration Secondary School and not staff of the Defendant. The Defendant also averred that the HATISS (Harmonised Tertiary Institution Salary Structure) and CONTISS (Consolidated Tertiary Institution Salary Structure) are salary structure used for members of the staff of the Federal Tertiary Institutions and not of Demonstration Secondary school.They added that although they used the term ‘HATISS’ to describe the salary for the staff of the secondary school, the reason is that the defendant not knowing any other name to use for its staff salary structure decided to use HATISS as a bench mark but that doesn’t mean the Claimants are staffs of the federal government institution and entitled to be paid by the federal Government, and when HATISS was changed to CONTISS, there was no need to also change the name to CONTISS because they are not staff of the Federal Tertiary Institution. The Defendant added that there is also a Federal Government regulation which prohibits the Federal Government from funding any private Secondary School attached to any Federal Government Tertiary Institution in Nigeria. The Defendant averred further that the salaries of the Claimants were not suspended but that there was crisis in Omoku in 2014 which made parents withdraw their children from the school and this drastically affected the amount of school fees generated per term which was not enough to pay half of teachers’ salaries. The Defendant admitted owing salaries for some months due to the paucity of funds but not from August 2017 to August 2018 at a stretch as alleged. They also added that there had been meeting where the Claimants had demanded that they be absorbed into the mainstream of the Federal College of Education whereby their salaries would be paid by Federal Government but the proposal was rejected because the defendant does not have the power to employ the claimants into the Federal Government Institution as the institution has laid down procedures for employment by the Federal Service Commission, National Commission for College of Education and the Federal Ministry of Education.
Upon cross examination, DW1 posited that the Claimants were all employed by the Defendant and their employment was confirmed by the College while the staff of Federal College were confirmed by the Federal Government. She admitted that the letter of confirmation was headed in the name of the Defendant and signed by the Registrar of the Defendant. She also admitted that the department written on the ID card is Demonstration Secondary School and that when they were employed, it was stated that they were employed as teachers in Demonstration Secondary school. She posited that the process leading to remuneration of staff is entirely the prerogative of the Defendant and that the Defendant is owing arrears of salaries though not intentionally.
Upon cross examination of DW2, he stated that the Claimants were employed by the management of the Defendant to work in a private school owned by the Defendant and admitted that from his point of employment, he was placed on HATISS but cannot remember when CONTISS became effective. He admitted that there is nothing on letter of employment to show that the Demonstration Secondary school is a private school but the Claimants knew they were going to the private school. DW2 also admitted that CONTISS is applicable to tertiary institution and that the Pay slips issued to the Claimants indicate that they were being paid based on HATISS. He stated that Exhibit D7 is prepared by the Defendant and the Claimant has no business with same and cannot make input.
Upon discharge of the DW1 and DW2, the Defendant closed their case and the matter was adjourned for adoption of final written address.
The Defendant filed their final address on the 15th of November, 2019 and same was adopted by counsel to the Defendant, G.C. Onuoha Esq., on the 6th of December, 2019. Arising from the said final address, counsel to the Defendant formulated two issues for determination to wit:
- Whether the claimants’ claim are not premature and untimely having not been relieved of their employment with the Defendant and therefore not entitled to the reliefs of this court.
- Whether the claimants have proven their case on the balance of preponderance of evidence and therefore entitled to the reliefs of this court.
In arguing issue one, counsel submitted that it is a settled law that given the nature of declaratory reliefs, it cannot be given just for the asking, even in default of appearance or pleadings and the court must be satisfied by credible evidence before it makes a declaration of right to a party. Counsel cited the cases of Access Bank Plc Vs. sijuwade (2016) LPELR- 40188 (CA) and Congress for Progressive Change Vs. Independent National Electoral Commission (INEC) (2011) 18 NWLR (Pt. 1279) 493.
Counsel contended thereon that the question as to whether the claimants are staff of the Defendant is not in doubt. She added that the defendant corroborated the claimants’ averments by stating in paragraph 3 (d) of the Defendant’s Statement of Defence that “the claimants are staff of the Demonstration Secondary School (F. C. E. (T) an establishment of the Defendant and not of the Federal College of Education (Technical) Omoku and the defendant has tendered Exhibits (D3) showing that the Demonstration Secondary School (F.C.E (T) is distinct from the Federal College of Education (Technical) Omoku (the Federal Tertiary Institution), and that Demonstration Secondary School is an establishment of the Defendant.
Counsel added that during the cross examination of CW1 on the 7/10/2019 he was asked if he had ever applied to Federal Service Commission or National Commission for Colleges of Education for job and he answered in the negative.
Counsel also argued that apart from the mere assertion of the claimants saying that their salaries were not paid, there is nothing before the court to prove same, and it is trite law that he who assert must prove same. He cited the case of Aiyetoro Comm. Trading Co Ltd (2003) 12 NWLR (pt 834) pg 346 ratio 2.
She added that the defendant tendered exhibits D5 which are copies of payment mandates/documents evidencing remittance to IBTC pension fund administration for the claimants salaries starting from 2013 which was before the security break down to 2018.
With regards to Claimants’ claim for an order of injunction restraining the Defendant from terminating their appointment, counsel submitted that, an order for injunction does not exist in vacuo and where a substantive suit is lacking in merit thereby liable to being struck out or dismissed there is absolutely nothing to preserve. She cited the case of NwankwoVs. Ononoeze-madu (2005) 4 NWLR (Pt. 916) 470 Ratio 8 & 9.
Counsel added that in the instance case, CW1, Mr. Olaoluwa Kehinde Ajibola during his cross examination on 7/10/2019 was asked if the defendant has issued him a termination letter or any notice indicating that it intends to terminate his employment to which he answered in the negative.
Counsel argued further that exhibit C5 which is Terms and Conditions of service which the Claimants alleged was given to them by the Defendant does not show that it is binding between the Defendant and the claimants and that the said document states that it “is issued by the National Commission for College of Education and the governing Council” which body the Claimants never applied for employment and that the definition section of the said terms and condition at page 5 which is chapter 1 (g) paragraph 41 defined “staff” to mean a member of staff of the “college” not Secondary School, therefore (HATISS) and (CONTISS) are all salary structures for the Federal Tertiary Institutions and not applicable to Secondary School.
Counsel also argued that by virtue of section 124(1) of the Evidence Act, 2011, Exhibit D4 is a document which is common knowledge in this locality and of which is capable of verification, reason being that the issue of salaries, incomes and wage has been a heated controversial issue between the Federal Government and ASSU/NASU (Academic Staff Unions of Universities/Non-Academic Staff Unions).
In arguing issue two, counsel submitted that a party seeking declaratory reliefs must establish his entitlement to the reliefs upon the strength of his own case as it is the law that a court does not grant a declaration on admission of parties because the court must be satisfied that the plaintiff, on the strength of his own evidence, not the weakness of the evidence of the defendant is entitled to the relief claimed. She cited the case of Kuburi Intl. Trading Co. Ltd &Anor. Vs. MUSTI &Anor. (2018) LPELR 44004 (CA) and AyaruVs. Mandilas Ltd (2007) 10 NWLR (Pt. 1043) pg. 462.
She added that from the facts stated in issue one, the claimants have not proved their case on the balance of probabilities as against the evidence led by the defence.
Counsel in conclusion argued that the Claimants’ claims lack merit and is only aimed at causing vexation as they have failed woefully to prove their case on the balance of probabilities and their action ought to be dismissed.
In reaction to the defendant’s final address, Claimants filed their final address on the 28th of November, 2019 and same was adopted by counsel to the Claimant, D.O. Okoro Esq., on the 6th of December, 2019.
Arising from the said final address, counsel to the Claimant formulated two issues for determination to wit:
(1) Whether Exhibits D3, D4, D6, D8, D9(a) and (b) being photocopies of uncertified public documents are admissible in evidence having regard to the provisions of the Evidence Act, 2011?
(2)Whether the Claimants have proved their case on a preponderance of evidence as to be entitled to the grant of the reliefs claimed against the Defendant in this suit?
In arguing issue one, counsel submitted that the above-stated exhibits are undoubtedly public documents and by the combined provisions of Sections 89(e), (f), 90(1)(c), 102, 104 and 105 of the Evidence Act, 2011, the only acceptable and admissible secondary evidence of a public document is a certified true copy of the document.
Counsel added that in the instant case, it is not in doubt that Exhibits D3, D4, D6, D8, D9(a) and (b) are mere photocopies of uncertified public documents within the meaning of Section 102 of the Evidence Act, 2011 and are therefore inadmissible in evidence having regard to the afore-cited provisions of the Evidence Act, 2011. He posited further that the law is trite that all public documents are to be certified by the issuing authority before the secondary evidence of them can be admitted in evidence in any court of law while citing the cases of ARAKA V. EGBUE (2003) 17 NWLR (PT. 848) 1, ONWUZURUIKE V. EDOZIEN (2016) 6 NWLR (PT. 1508) 215 239 – 240, PARAGRAPHS H – B and TABIK INVESTMENT LTD. V. G. T. B. PLC. (2011) 17 NWLR (PT. 1276) 240 (i 262, PARAGRAPHS B — C.
Counsel added that one main objective of Section 90(1) (c) of the Evidence Act, 2011 which stipulates that only a certified true copy of a public document is admissible as secondary evidence thereof is to ensure the authenticity of the document vis-à-vis the original. He cited the case of ARAKA V. EGBUE (Supra) 20-21, PARAGRAPHS G — A.
Counsel argued further that the fact that a document is pleaded and relevant to the case, are not sufficient to warrant its admissibility in evidence by a court of law as it is trite law that for a document to be admissible in evidence, such a document must not only be relevant and pleaded by the party tendering it, but more importantly the document must satisfy all statutory requirements for it to be admissible in law, such as certification, if it is a public document. He the case of ATTORNEY-GENERAL OF KWARA STATE V. ARIWAJOYE 1 (2001) 5 NWLR (PT. 707) 525 @ 551, PARAGRAPH H.
Counsel thereon urged the court to expunge and discountenance Exhibits D3, D4, D6, D8, D9(a) and (b) which were admitted under protest and mark them as rejected.
In arguing issue two, counsel submitted that upon the unchallenged evidence adduced and the avalanche of the documents tendered by the Claimants, the Claimants have made out a case for the award of the reliefs claimed at paragraph 12 of the Statement of Facts.
With regards to the first declaratory relief claimed by the Claimants, counsel argued that CW1 adduced unchallenged evidence in paragraphs 2, 4, 5, 6 and 7 of his Witness Statement on oath filed on 11/12/2018 as well as paragraphs 2, 3 and 4 of the Additional Written Statement on oath filed on 21/6/2019 as to how they were respectively employed and their appointments were confirmed and subsequently promoted by the Defendant at various times following the satisfactory performance of the Claimants. He added that in proof of these facts, the Claimants tendered Exhibits C2, C3, C4, C5 and C10
Counsel added that to further buttress the Claimants’ contention that they are members of staff of the Defendant and that the Demonstration Secondary School is one of the departments of the Defendant, are Exhibits C6, C9 and C10.
Counsel also argued that Contrary to the position of the Defendant that the Federal Civil Service Commission or the National Commission for Colleges of Education are bodies responsible for employment of staff of the Federal College of Education (Technical) Ornoku, Section 6(j) of the Federal Colleges of Education Act, Cap. F8, Laws of the Federation of Nigeria, 2004 gives the governing Council of the Defendant the unfettered power to on its own “recruit staff of the right caliber and determining the career structure of such staff’
He also argued that the Defendant did not tender any letter of employment of any staff of the Defendant that is different from Exhibit C2 or that was purportedly issued by the Federal Civil Service Commission or the National Commission for Colleges of Education or based on their directives.
With regards to reliefs ii and iii, counsel submitted that the Claimants have established by credible evidence that they are members of staff of the Defendant and that their salaries at the point of their respective engagement were based on the Harmonized Tertiary Institution Salaries Structure (HATISS). He referred this Court to Exhibit C2 and C6 and contended that documentary evidence serves as a hanger from which to access oral testimony while he cited the cases of MILITARY GOVERNOR OF LAGOS STATE V. ADEYIGA (2012) 5 NWLR (PT. 1293) 291 @ 338, PARAGRAPHS C — D, GOVERNOR OF KWARA STATE V. NICON PLC. (2017) ALL FWLR (PT. 890) 674 @ 732, PARAGRAPHS B – E and BELLO V. GOVERNOR OF GOMBE STATE (2016) 8 NWLR (PT. 1514) 219 @ 288, PARAGRAPHS F — H.
With regards to relief iv, counsel posited that in view of paragraphs 4(g) and 6(c) of its Statement of Defence, the Defendant admitted not remitting the Claimants’ pension contributions as well as its counterpart contribution contrary to the stipulation in the extant Pension Reform Act, Cap. P4, Laws of the Federation of Nigeria, 2004 which by Section 9(1)(a)(ii) requires the Defendant to make a counterpart pension contribution of seven and a half percent of the monthly salary of an employee into such an employee’s pension fund.
With regards to reliefs v and vii, counsel contended that they are ancillary reliefs which draw their strength from the principal declaratory reliefs and the success of the main claims will automatically result in the grant of the said ancillary reliefs.
Counsel also urged the court to discountenance the testimony of the DW1 in its entirety because the said DW1 contrary to the announcement of the clerk of court on 7/10/2019 for witnesses in this case to go out of the court room when the CW1 further testified and was cross-examined, sat in the court room all through the day’s proceedings. He added that this fact was admitted by the DW1 on 17/10/2019 when he was cross-examined as he unambiguously stated that he was in the court room when the CW1 was cross-examined.
Counsel concluded the address by urging the court to enter judgment in favour of the Claimants and against the Defendant.
The Defendant on the 3rd of December, 2019 then filed a reply on point of law wherein Counsel to the Defendant addressed some of the arguments raised by counsel to the Claimants.
With regards to the contention that Exhibit D3, D4, D6, D8(a) & (b) and D9 (a) and (b) are inadmissible on grounds that they are public documents which need be certified, counsel cited section 124(1) of the Evidence Act and repeated the argument that Exhibit D4 is a document with common knowledge which need not be proved. with regards to Exhibit D3, he contended that same is an Internal memo between the Government of Rivers State Ministry of Education and the Defendant while Exhibit D8 (a) & (b) and D9 (a) & (b) are also internal memo between the Economic and Financial crime commission (EFCC) and the Defendant which were not meant for public consumption and therefore does not require certification for their admissibility. He cited the case of AbuulVs. Bensu (2003) 16 NWLR (Pt. 845) 59 C.A ratio 2
Counsel repeated the argument relating to relief one as sought by the Claimant and concluded that the Claimant has failed to prove their case on a balance of probability while urging the court to dismiss this suit.
In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for determination by this court is to wit:
Whether or not Claimants are entitled to the reliefs sought in view of the facts and evidence before this court.
Before resolving the sole issue, it is expedient to address the status of the exhibits D3,D4,D6,D8 and D9 which were admitted under protest in the course of trial.
The basis of objecting to the admissibility of the foregoing exhibits by Counsel to the Claimant was that the documents are public documents which have not been certified as such and that it is only the certified true copy of same that can be admitted in evidence.
Counsel to the Defendant in response contended that the while Exhibit D4 contains what is of common knowledge which need no proof, other documents are internal memos which do not require certification before admissibility.
Consequent upon the foregoing contention, I have taken a look at the said exhibits to find that Exhibit D3 is a letter dated the 10th of June, 2003 written by the Ministry of Education, Government of Rivers State and addressed to the Proprietor, Demonstration Secondary School while Exhibit D4 is a copy of a circular dated the 24th of August 2014 issued by the National Salaries, Incomes and Wages Commission. Exhibit D6 is a copy of letter dated the 15th of November, 2018 written by the Defendant and addressed to the Principal Partner of Damian O, Okoro& Associates while Exhibit D8(a) and (b) comprises of two letters written by Economic and Financial Crimes Commission – the first is dated the 15th of May 2018 and addressed to the Provost of the Defendant while the other is dated 6th August, 2018 and also addressed to the Provost of the Defendant but through the Principal of Demonstration Secondary School. Lastly is Exhibit D9(a) and (b) which are letters respectively dated 2nd August 2018 and 6th September, 2018 written by the Defendant and addressed to the EFCC in response to Exhibit D8 (a) and (b).
Upon a careful review of the foregoing exhibits, I must posit that I reckon with the provisions of sections 89(e), 102, 104 and 105 of the Evidence Act, 2011 as cited by counsel to the Claimant with regards to the fact that the foregoing documents are public documents.
While I am not oblivious of the position of the law that where a secondary copy of a public document is to be tendered, such secondary evidence ought to be a certified true copy as stipulated by section 90(1) (c) Evidence Act, I must however state that upon a consideration of the fact that Exhibits D3,D6,D8 and D9 are correspondences between the Defendant and other organizations with respect to state of affairs of Demonstration Secondary School where the Claimants claim to be deployed as employees, this Court is inclined to exercise discretion in invoking the provision of section 12(2)(b) of the National Industrial Court Act, 2006 which provides to the effect that this court may depart from the provisions of the Evidence Act in the interest of justice.
In the instant case, the documents are considered relevant and to have a holistic determination of this suit, I find it apposite to take a well-considered view at all relevant documents in relation to this suit. Consequently, the said Exhibits D3, D6, D8 and D9 are accordingly admitted in evidence.
In the same vein, Exhibit D4 is to be considered in the light of the provision of section 12(2)(b) of the National Industrial Court Act and that is notwithstanding the fact that there is no strength in the argument of counsel to the Defendant to the effect that the content of the said exhibit is of common knowledge. The said Exhibit being a circular is headed ‘funding of staff schools established by Federal Government Institutions’. The Defendant being a federal government institution makes the document worth giving attention for the just determination of this suit and it is upon such relevance of the document that this court is inclined to set aside the provision of the Evidence Act, 2011 for the admissibility of the said document. Consequently, Exhibit D4 is accordingly admitted in evidence.
I must however state clearly that admissibility is one thing while weight to be attached is another thing altogether. The court in ABUBAKAR V CHUKS (2007) LPELR 52 (SC) posited that:
“The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence. Relevancy and weight are in quite distinct compartments in Nigeria’s Law of Evidence. They convey two separate meanings in Nigeria’s adjectival law and not in any form of dovetail.” Per Tobi JSC.
I also find it apposite to address the contention by counsel to the Claimant who urged this court to discountenance the testimony of DW1 on the grounds that the said DW1 did not vacate the court premises on the 7/10/2019when CW1 was being cross examined.
Although counsel to the Claimant did not cite any authority upon which he urged the court to discountenance the testimony of DW1, I reckon that Counsel to the Defendant made no response whatsoever to the said contention.
In view of the foregoing and in addressing the said contention, I am not oblivious of the fact that section 212 of the Evidence Act, 2011 makes it a discretional duty upon this court either suomotu or upon application to ask other witnesses to go out of court when one witness is giving testimony. The said section 212 provides thus:
“On the application of either party, or of its own motion, the court may order witnesses on both sides to be kept out of court; but this provision does not extend to the parties themselves or to their respective legal advisers, although intended to be called as witnesses”.
In view of the foregoing provision, it is clear that the provision does not state the implication of the witnesses not vacating the court. However, it is clear that the provision does not extend to the parties themselves or representatives since the Defendant in this case is an entity. Hence, the Court is not empowered to discountenance the testimony of such witness. The only implication is that the Court will in the course of evaluating the totality of evidence before the court, consider and determine the weight to be attached to the testimony of the witness.
In the instant case, upon the admission by the said DW1 that she was in court while CW1 was being examined, this court shall accordingly determine the weight to be attached to the testimony of the said DW1.
That said, I then turn to the sole issue formulated for the determination of this suit, the resolution of which bothers on the reliefs sought by the Claimants.
Upon a look at the reliefs sought, I find that the Claimants are seeking for four declaratory reliefs, the grant of which must be based on cogent, credible and convincing evidence and must be on the strength of the Claimants’ case without a consideration of the weakness of that of the Defendant. This position was reiterated in the case of DIAMOND BANK PLC. V. YAHAYA & ANOR.(2011) LPELR-4036(CA) where the court with regards to the entitlement to declaratory reliefs held that:
“The law is settled that the courts do not grant declaratory relief based on the admission of the defendant. The plaintiff must satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to the declaratory relief. So where the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail. See Ayanru V. Mandilas Ltd, (2007) 10 NWLR (Pt. 1043) 462; Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187.”Per ONYEMENAM J.C.A. (P. 27, paras. B-D).
The effect of the foregoing provision is that the Claimants must satisfy the court that they are entitled to the reliefs sought and it must be borne in mind that contract of employment is generally personal whereas in the instant case, the Claimants have decided to ride on each other’s back to seek for general claims relating to their employment. It is in the light of the foregoing that this court shall consider the reliefs sought by the Claimants.
Upon a holistic review of the reliefs before this court, I find that the highlight of the facts upon which all the reliefs sought, except for relief seven which is an injunctive relief, is that the Claimants consider themselves staff of the Defendant being a Federal Institution and consequently entitled to be paid salaries based on the salary scale designed for tertiary institutions.
It is upon the foregoing highlight that the first relief sought by the Claimants is for the court to declare that the employment as staff of the Defendant is valid and subsisting.
Consequently, a good starting point or terminus a quo in consideration of the said reliefs by stating that the Claimants in the instant case are 19 in number and claim to be employed by the Defendant directly and then deployed to work at Demonstration Secondary School as teachers. The Claimants tendered their respective letters of employment collectively as Exhibits C2 (i – xviii) which upon evaluation, I find that the letter of appointment of the 18th Claimant in person of Amangieka Esther was not tendered in evidence.
In addition, Claimants tendered Exhibit C3(i-xvi) as letters of confirmation of employment of the Claimant which upon evaluation, I find that the letters of confirmation for the employment of the 9th, 12th and 18th are not before the court.
Reacting to the said relief one, the Defendant posited through the statement of Defence that the Claimants are not staff of the Defendant but that of Demonstration Secondary school while counsel to the Defendant through the written address of the Defendant contended that the question as to whether the Claimants are staff of the Defendant is not in doubt in view of paragraph 3 (d) of the statement of Defence which states that the Claimants are staff of Demonstration Secondary School which is an establishment of the Defendant.
In view of the foregoing, it is clear that there is an incongruity in relation to the employment of the Claimants and it is consequent upon the foregoing that the letters of employment are evaluated by this court.
Upon the said evaluation, I find that the 18 letters of employment issued to 18 of the Claimants before the Court was issued by the Defendant bearing different dates ranging from 2005 to 2016 and although the letters do not bear exactly the same wordings, one common denominator for all the letters of employment is that the Claimants were employed by the Defendant to be classroom teachers in Demonstration Secondary School. In other words, they were employed by the Defendant directly to work in Demonstration Secondary school not in the Federal College of Education (Technical).
From the letter of employment, it is deducible that the Defendant put itself out as the employer of the Claimants notwithstanding where the employees were to work and by that, the Claimants are answerable to the Defendant while the Defendant owes certain obligations including payment of salaries to the Claimants.
That said, I reckon that the contention leading to the seeking of the reliefs before this court is that the Claimants want to be regarded as ‘staff’ of the Defendant institution which is a Federal Government established institution and the reason for such want is not farfetched as the salaries earned by the said staff of such institution is paid by the Federal Government and described hitherto as Harmonized Tertiary Institution Salary Structure (HATISS) which later became Consolidated Tertiary Institutions Salary Structure (CONTISS).More so, at the point of employment of the Claimants, the letters of appointment stated that the Claimants are on the HATISS salary,most of which were grade level 7 step 2 except for three of the Claimants who were on Grade level 6 step 2.
In addition, I reckon that the Claimants were actually paid salaries on the said scale stated in their letters of employment as Exhibits C6(i-xviii) which are the various pay-slips of the Claimants showing that the Defendant reckoned the Claimants to be on HATISS as latest as 2017.
Claimants also tendered Exhibit C5 which is the Federal College of Education (Technical) Omoku, Terms and Condition of Service as the document applicable for the regulation of their employment while they were also issued ID cards bearing the name of the Defendant as their employer. The said I.D. Cards of the Claimant were tendered as Exhibit C10(i-xvii).
The foregoing exhibits are pointers to the fact that from the onset, the Claimant were made to believe that they were employees of the Defendant and also on the payroll of the Defendant notwithstanding their station of work.
The Defendant in reaction to placing the Claimants on the HATISS salary scale however posited that upon establishment of the Demonstration Secondary School, the Defendant did not know what name to call the salary of the staff of the school and used the term HATISS but same did not mean they are to be paid by the Federal Government and when the salary was changed by Federal Government to CONTISS, there was no need to change that of the Claimants. The Defendants also added that there is a Federal Government regulation prohibiting the Federal Government from funding any private school attached to any federal government institution.
In view of the foregoing, the contention of the Defendant is caught up by the principle of estoppel, that upon a perusal and finding that the Claimants (except the 18th Claimant) were issued with letters of employment which states that they were to be paid salaries on HATISS, the Defendant is estopped from reneging from such position. This position of the law was aptly stated by the Supreme Court in the case of MABAMIJE v. OTTO where the court held that:
“Section 151 of the Evidence Act 1990, now Section 169 of the Evidence Act, 2011 on estoppels states that: ‘When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such persons representative in interest, to deny the truth of that thing.’ Estoppel is a rule that prevents a person to assert the contrary of a fact or state of things which he formally asserted by words or conduct. Put in another way, a person shall not be allowed to say one thing at one time and the opposite at another time. Estoppel is based on equity and good conscience, the object being to prevent fraud and ensure justice between the parties by promoting transparency and good faith.” Per RHODES-VIVOUR, J.S.C. (Pp. 15-16, Paras. C-B).
Applying the foregoing rule to the instant case, the Defendant cannot deprive the Claimants of the salary scale which was originally stated in their letters of appointment without due process strictly followed.
That said, upon a broader view of the entirety of the facts of this case and the evidence before this court it is manifestly clear that the Claimants (except the 18th Claimant whose letter of appointment is not before the court) are employees or staff of the Defendant and are entitled to the salary stated in their letters of employment.
I must state that I am not oblivious of Exhibit D7 which was tendered by the Defendant as the Nominal Roll of staff of the Defendant. In this regards, the document does not take primacy over the letter of employment issued to the Claimants as it is considered a matter of administrative convenience for the Defendant to separate their employees working in the Federal College of Education from those in the Demonstration Secondary School.
Consequent upon the foregoing, this court finds and hold that the Claimants (except the 18th Claimant) have satisfactorily proved on a balance of probability that they are staff of the Defendant and they are entitled to the declaration sought in relief one to the extent that this court makes:
“A declaration the claimants respective employment as members of staff of the Defendants deployed as Classroom teachers to the Demonstration Secondary School is valid and subsisting”
Relief two is for “a declaration that the Claimants are entitled to the payment of their respective salaries, allowances and emoluments based on the Consolidated Tertiary Institutions Salary Structure (CONTISS) which took effect from 1/4/2007”.
The facts relating to the claim of the said declaration is to the effect that the Claimants posited that with effect from 2007, the Defendant changed from HATISS to CONTISS for Federal Tertiary Institutions while they are still paid based on HATISS.
Claimants tendered Exhibit C12 which comprises of the salary scales of HATISS and CONTISS with the CONTISS stating its effective date as 1st January, 2007.
The Defendant’s response as earlier captured is to the effect that the salary of the Claimants stated as HATISS was as a result of the Defendant not knowing what to call the Claimants’ salary.
The determination of this relief is dependent on what was agreed on at the point of employment Exhibit C2 is the offer of employment which the Claimants saw and willingly accepted. The employment letter for 2nd Claimant is reproduced below for the sake of clarity.
Offer Of Pensionable/Permanent Appointment
Following your application for employment, we offer you appointment as MATHEMATICS CLASSROOM TEACHER in Demonstration Secondary School of Federal College of Education (Technical), Omoku with effect from 3rd September, 2012.
- Your commencement salary is HATISS 7 step 2
- i) While your consolidated salary per annum N542,675.04
- The appointment is subject to the general terms and condition of service as may from time to time be approved by the Council of the College for its staff. Above are the benefits paid by the College for now.
- You will be eligible for confirmation of your appointment after two years of satisfactory services, or for such period as may be deemed advisable dating from your first appointment and provided you are found medically fit by a Government Medical Officer. Unless you are dismissed, you may terminate and/or resign your appointment by giving 3 months notice in writing or refund of 3 months salaries in lieu of notice.
- I enclose herewith two copies of the Memorandum regarding the terms of your appointment which together with this letter, shall constitute the basic documents of your Service Contract. If you decide to accept the appointment on the terms set out herein, please sign the duplicate copy of the memorandum overleaf and affix fifty kobo or (equivalent) stamp and return it as soon as possible to the Registrar, Federal College of Education (Technical), PMB 11, Omoku, Rivers State.
- A blank Medical Examination and History Form (to be completed by the College Director of Health Services or Medical Officer from a Government Hospital) is attached for your completion and return two weeks of your assumption of duty.
- For Nigeria appointed while outside Nigeria, their place of domicile will be regarded for every purpose of this appointment as being in Nigeria.
- For all persons appointed while outside Nigeria the date of assumption of duty shall be regarded as the date of Embarkation on the journey to Nigeria to take up the appointment by an approved direct route.
- Your appointment is Full-Time and you will neither undertake nor engage in any full-time employment/studies with any party or parties within or outside the College unless you have received in writing the permission to the Provost to do so, on terms and conditions approved for that particular undertaking.
- In addition to your primary duties, you will be expected to participate in such other duties as general administration, community service, student counseling, guidance and maintenance of discipline as may be assigned to you from time to time.
- It is extremely unlikely that a house will be available for you but if not one is not provided, you will be eligible for a Housing Allowance as stated above.
- I shall be grateful if you let me know as soon as possible whether or not you intend to accept the offer and when you will be expected to be able to assume duty.
- If no reply is received within 2 months from the date of the letter, the offer shall be regarded as having been rejected.
Congratulations!
Based on the foregoing, it is clear that Exhibit C2 is the contractual agreement between the parties which has created binding obligations of employment between them.
The court of Appeal stated in ABAA V, EKE & ANOR (2015) LPER-24370(CA) to the effect that “In the template of the law of contract the law is settled that parties are strictly bound by the terms and conditions or stipulations in the contract or agreement freely entered into by the parties to the contract or agreement. The Court is duty bound to find out the intention of the parties as encapsulated in the contract or agreement entered into in good faith and declare the intention and effect of the contractual document or agreement see (1) ATTORNEY -GENERAL of Rivers State Vs. A. G. Akwa Ibom State (2011) 8 NWLR (Part 1248) 31 at 83 H to 84 A – H per Katsina-Alu JSC who said: “In the present case, the Defendants are estopped from resiling from the terms of the agreement they entered into with the Plaintiff, they are strictly bound by them and this Court will not allow them either to plead against them or to adduce evidence in their possession against them. I must stress here and this is also settled law that if parties enter into an agreement, they are bound by its terms. See also Hillary Farms Ltd. V. M/V Mahtra (2007) All FWLR (Pt. 190) 1417 at 1435; (2007) 14 NWLR (Pt. 1054) 210. It does not matter that in the instant case, the Defendants have suddenly realized that the terms of the agreement they had entered into with the Plaintiff are not favourable to them. Thus, in Arjay Ltd. V. Airline Management Support Ltd. (2003) FWLR (Pt. 156) 943 at 990;(2003) 7 NWLR (Pt. 820) 577, thus, this Court held as follows: “It is elementary law that where parties have entered into a contract or an agreement, they are bound by the provisions of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement.”
It is the considered view of this court therefore that the Claimants are bound by the contents of their employment letters, they cannot vary it except by the express agreement of the parties. It is clear the Claimants having seen Exhibit C2 (their employment letters) agreed to it and knew from the onset that they were employed as Classroom teachers in Demonstration Secondary School as establishment of the Defendant. The Claimants knew they were not employed directly by the Federal Civil Service or National Commission for Colleges of Education which would ordinarily entitle them to whatever the academic and nonacademic staff of Polytechnics and colleges of Education in Nigeria hitherto earned. The claimants have failed to establish that secondary school teachers in Nigeria are now entitled to be paid by Consolidated Tertiary Institutions salary structure -CONTISS.
It was further restated in Frank Jowan &Ors V. Delta Steel Company Ltd (2010) LPELR-4577 (CA) to that effect that;
“It is trite law that where there is a document or series of documents incorporating the terms and conditions of an employment, a court of law should not look outside those terms in deciding the rights and obligations of parties thereto. “per Gumel JCA (P.10 para C).
Also in Amodu V. Amode & another (1990) LPELR-466 (SC), Wali JSC submitted that “it is trite that parties to a contract are bound by its terms. The express terms of a contract of employment govern any aspect of the relationship between the employer and the employee”. Consequently, on the strength of the foregoing authorities, Relief 2 fails and is hereby refused.
Relief three is also for “a declaration that the Defendant has no right to suspend the payment of the Claimants’ respective salaries from August, 2017 to August, 2018”.
The facts related to this claim is that the Claimants alleged that the Defendant suspended their salaries from the month of August 2017 to August 2018.
The Defendant denied doing so but admitted that due to the crisis in Omoku in 2014 which affected the revenue of the school, salaries were paid in arrears and though the Defendant acknowledged owing staff of the Secondary School salaries, but not from the month of August 2017 to August 2018.
In view of the foregoing contention, I have taken a review of the evidence before the court and cannot find any piece of evidence which establishes the suspension of salaries between the months of August 2017 to August 2018 for all the Claimants. This simply means the court cannot grant the relief as prayed as there is no proof placed before this court by the Claimants that the Defendant deliberately suspended the salaries of the Claimants from August 2017 to August 2018. Consequently, relief three fails and same is accordingly refused.
Relief four is for “a declaration that the Defendant has no right to withhold the remittance in full of the Claimants’ respective Pension Fund Administrators for the pension contributions deducted from the Claimants’ respective salaries as well as the Defendant’s counterpart pension contributions in favour of the Claimants”.
The said relief is predicated on the fact that the Claimant posited that the Defendants have not been remitting the deductions made from their salaries to the appropriate Pension Fund Administrator.
Claimants tendered Exhibit C7(i-xviii) which comprises copies of Claimants’ pension account statement with Stanbic IBTC and the said account vary in months without stating a specific period which the Defendant did not remit contributions.
The Defendant in response posited just as it did in respect of payment of salaries that the failure to remit pension contribution is because of the drastic reduction in the number of students in Demonstration Secondary School as the Management could not meet up with its financial obligations in terms of salaries and pensions of the staff as regularly as it ought to. The Defendant tendered Exhibit D5 to show that pension contributions were made for the Claimants prior to the advent of the security break down and afterwards.
In view of the foregoing, there is no gainsaying that the obligation to remit pension contributions to the appropriate pension fund administrator is a statutory one. See section 9(1) of the Pension Reform Act. 2014. However, the Defendant acknowledged the said obligation and has not denied its failure to comply with the obligation for some period while presenting evidence of compliance for certain period.
The attribution of the failure to comply due to paucity of funds or a certain crisis will however not exonerate the Defendant from fulfilling its statutory obligations to the Claimants. Consequently, relief four is granted as prayed.
Relief five is for an Order of the Honourable Court directing the Defendant to pay the Claimants’ forthwith their respective salaries from August, 2017 to August, 2018 and subsequently to continue to pay the Claimants their respective monthly salaries, allowances and other emoluments that they are entitled to as at when due based on Consolidated Tertiary Institutions Salary Structure (CONTISS).
The said relief is dependent on the claim for declaratory relief made in relief three which was refused by this court. Consequent upon the failure of the said declaratory relief, the claim as made in relief five ought to fail. However, this court finds that in the interest of justice and upon the admission of the Defendants that arrears of salaries are owed to the Claimants, this Court finds it imperative to make an Order directing the Defendant to Pay to the Claimants their respective arrears of salaries as owed.
In the same vein, relief six is dependent on the declaration sought in relief four. The said relief is for an Order directing the Defendant to remit in full to the Claimants’ respective Pension Fund Administrators the Claimants’ pension contributions deducted from their respective salaries as well as the Defendant’s counterpart pension contributions in favour of the Claimants.
Upon the finding that the Defendant is statutorily obligated to remit the Claimants’ pension contribution and the acknowledgment of non-remittance leading to the grant of relief four, it is axiomatic that the Claimants are entitled to relief six and same is accordingly granted.
Relief seven is for an Order of injunction restraining the Defendant whether by itself or through its agents, privies or proxies from terminating, sacking, disengaging or in any way interfering with the respective employments of the Claimants.
While I reckon that the Claimants averred that their entreaties with the Defendant to rectify the anomaly relating to their employment were met with threats of termination or disengagement, the Claimants did not establish this threat by any scintilla of evidence that they were threatened with termination, hence same remains a mere allegation.
In addition, a proper construction of the relief as sought brings to mind the fact that an employer will always have the right to bring an employment relationship to an end in deserving circumstances perhaps. In that light, it will be preposterous for this court to restrain the Defendant from terminating the Claimants’ employment when the circumstance to validly do so arises. It is a well established principle of law which requires no citation of cases that he who hires also has the right to fire.
However, the court in Agbarakwe V. University Press Plc (2015) LPELR-25613 (CA) stated that;
“The authorities are replete, that an employer has the power to hire and fire any of its staff/worker, at any time for any reason or for no reason at all and does not owe him any explanation or apology.
Consequently, the said relief cannot be granted as prayed and same is accordingly refused.
In the final analysis, the Claims of the Claimants is meritorious only in the extent to which some reliefs have been granted while it fails in the extent to which other reliefs sought have been refused.
Judgment is hereby entered.
I make no order as to cost.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR.
JUDGE
