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National Industrial Court

AGBA MSUGH & 55 Ors -VS- GOVERNOR OF BENUE STATE & 3

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 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

                                                        HOLDEN AT MAKURDI

BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA

ON THE 10TH DAY OF JULY, 2019                                            

SUIT NO: NICN/MKD/08/2014

BETWEEN:

 

  1. AGBA MSUGH
  2. SHAAPERA ANTIEV
  3. JEBE CHRISTIANA
  4. JIGH-JIGH GODWIN AONDOHEMBA
  5. ABE TYOYEM
  6. AKPHAER MICHAEL
  7. AVAKAA IORTSEHA
  8. FOGA KWAGHGBA
  9. VAATYOR CHIVIR
  10. FRANCIS KULEIJIR
  11. TYOAPINE MERCY                        CLAIMANTS
  12. TYONGI REBECCA
  13. AKAABEE DENNIS
  14. AJOKO JAMES
  15. KANSHIO FELIX
  16. HELEN AMOAIOR
  17. IGBUDU TERSOO
  18. IOR HELEN MSURSHIMA
  19. ACKA FRANCISCA
  20. THERESA TERHEMEN
  21. EMMA NUEL AVE
  22. MLANGA BLESSING
  23. SHAAPERA BLESSING
  24. HUNDU ISAAC T.
  25. VANGERBAN RHODA
  26. AGUGU M. ALFRED
  27. IHEMBE CATHERINE
  28. AGBOROKIO TERNENGE
  29. ZUAMO GABRIEL
  30. AGGON MNENA
  31. IGBAWUA APEIDOO
  32. INGYER LUCY
  33. AHULA E. SELUMUN
  34. SHANKURA JOSEPHINE
  35. AYAGWA E. MFEDOO
  36. DYO GODWIN CLAIMANTS
  37. NONGOTSO TITUS
  38. TERNA BONIFACE A.
  39. JOSEPH MOSES
  40. DEVEKA LUCY
  41. JEBE MNENA DEBORAH
  42. MERCY MNGOHOL WUNA
  43. IORKIGHIR JULIUS
  44. IKYERNUM RACHEAL
  45. MAIKER MSONAN COMFORT
  46. HANGEIOR GRACE
  47. TERNA YIOR DANIEL
  48. NGUEMBER IORKOUGH K.
  49. SOLOMON OASON
  50. HULE HELEN
  51. AHUA NANCY
  52. KWAGHENGE MNENA
  53. UTOV TERKAA
  54. IKYAV BENARD CLAIMANTS
  55. ABATA COMFORT
  56. CHIA IORNUMBE AKULE

 

AND

 

  1. GOVERNOR OF BENUE STATE
  2. ATTORNEY- GENERAL OF BENUE STATE
  3. STATE UNIVERSAL BASIC EDUCATION  ………………….DEFENDANTS

BOARD (SUBEB)

  1. USHONGO LOCAL GOVERNMENT

 

REPRESENTATION:

14th ,24th,35th,and 38th Claimants present

Other parties absent

Ucha Ulegede with N.K. Ucheji

M.A. Agber (DPRS) Benue State Ministry of Justice with J.A. Ewurum for the 1st and 2nd Defendants.

O.N. Nor for the 3rd Defendant.

 

JUDGMENT

The Claimants took out this suit by way of Motion for summary judgment filed along with the originating processes under order 10 rule 1 of the erstwhile National Industrial Court Rules, 2007 for arrears of salaries and allowances of 56 Claimants against the Defendants between 2007 and 2011. Upon filing of processes by the Defendants, the matter was transferred to the general cause list on 9/6/14. The Claimants’ further amended Statement of Facts dated 3rd May 2016 and filed on the 5th May 2016 contains the following reliefs;

 

“1. Declaration that the Claimants are entitled to the respect for dignity of their persons and freedom from discrimination.

 

  1.  Declaration that the Claimants having performed the duties for the period of January 2007 to December 2011 in the case of Jigh-Jigh Godwin A. and January 2008 to December 2011 in the case of the rest of the Claimants are entitled to the payment of their salaries and leave allowances for the period now standing in the sum of N44,442,043.00 (Forty- Four Million, Four Hundred & Forty- Two Thousand, Forty- Three Naira) only, made up of N41,514,023.00 (Forty- One Million, Five Hundred & Fourteen Thousand, Twenty- Three Naira as salary arrears and N2,928,020.00 (Two Million, Nine Hundred & Twenty- Eight Thousand, Twenty Naira) only. 

 

  1. An order of court directing the Defendants to forthwith effect the payment of the total sum of N44,442,043.00 (Forty- Four Million, Four Hundred & Forty- Two Thousand, Forty- Three Naira) only representing the accumulated arrears of salaries and leave allowances of the Claimants for the period January 2007 to December 2011 (in the case of Jigh-Jigh Godwin A.) and January 2008 to December 2011 in case of the other Claimants. 
  2. General damages of N10,000,000.00
  3. 10% interest from the date of judgment until the full payment   thereof.”

The 1st -3rd Defendants filed a memorandum of appearance on 16th April 2014 and a joint further amended statement of Defence dated the 27th April 2016 and filed on 3rd May 2016. Counsel to the 1st -3rd Defendants also filed a Notice of Preliminary Objection on 28/10/2014. The 4th Defendant through its counsel, Edward T. Ikyoive, Esq filed a counter- affidavit and written address to the Claimants’ motion for summary judgment dated 17th March 2014 but filed on 18th March 2014. Counsel to the 4th defendant participated in the proceeding up to 18th June 2015 and never appeared for the 4th Defendant even after several service of hearing notices. The preliminary objection of the 1st -3rd Defendants was argued on 3rd February 2015 and ruling delivered on 24th February 2015 dismissing same and the matter was set down for hearing.

 

When coram of the court changed to the present one, parties by agreement and consent applied under order 38 Rule 33 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 to file and adopt final written addresses based on the pleadings and documents before the court without calling of witnesses. However, the 3rd defendant also filed a Notice of preliminary objection on the 28/3/2019.

 

Order 38 rule 33 relied by the parties’ states as follows;

 

“33-(1) In any proceeding before the Court, parties may by consent at the close of pleadings agree to a trial on records where they rely only on the documents and exhibits frontloaded and thereby dispense with the need for oral testimony and/or cross-examination. 

 

                                 

(2)      Where parties agree to a trial on records, written Addresses shall be filed starting with the Claimant on the basis of the document on record.”

 

CASE OF THE CLAIMANT

The gist of the Claimants’ grievance is that sometime between 2007, 2008 and 2011, they were employed by the 1st to 3rd Defendants and deployed to serve in various capacities under the 4th Defendant as shown by  their Letters of Appointment emanating from the 3rd Defendant to each of the Claimants all dated 22nd January 2008 except that of the 4th Claimant which is dated 22nd January 2007. The Claimants however contend that they were not paid their salaries for a period of over two years which caused the Education Secretary of the 4th Defendant to write a letter of complaint dated 6/7/2010 to the Speaker of the Benue State House of Assembly with a list showing the approval of the 3rd Defendant (State Universal Basic Education) for the appointment of the Claimants dated 22/1/2008.

Claimants stated that they made several efforts to get their arrears of salaries but to no avail hence this suit.

 

CASE OF THE DEFENDANTS

The 1st – 3rd Defendants on the other hand contend that though the Claimants were employed by them, they were on probation and absconded after the screening exercise when they discovered that the screening was not favourable to them as they were screened out by the Defendants. The 1st – 3rd Defendants contend that there is no evidence by the Claimants that they were performing their respective duties and that it was after pleas from political stakeholders that the Claimants were re-absolved in 2012 by the 3rd Defendant and that Claimants are in breach of the Civil Service Rules by suing their employer while in service.

 

 

SUBMISSIONS OF THE CLAIMANTS

 

Counsel to the Claimants adopted his final written address on the 12th April 2019 on behalf of the Claimants and raised a singular issue for determination as follows;

 

“Whether the Claimants have proved their case to be entitled to the judgment of the court in their favour.”

 

Counsel submits that prior to the employment of the Claimants, the 3rd Defendant conveyed approval of same by letter with reference no. SUBEB/APPT/22/V captioned APPOINTMENT OF STAFF dated 22nd January 2008 with the list of the Claimants to the 4th Defendant. The Claimants assumed duty in January 2008 and worked for two years without payment of salaries and allowances leading to the complaint to the Speaker of the Benue State House of Assembly  vide letter with reference No. ULG/LGEA/EST/16/1 dated 06/07/2010. Claimants exhausted all avenues to get the Defendants to effect payment of their salaries from January 2008 to December 2010 without success and were compelled to engage services of a solicitor who wrote to the Defendants demanding payment of same but that was not done hence this court action.

Counsel argues that when the initial process was filed on 22nd January 2014, one Helen Amoaior was included as the 16th Claimant and she was the 16th person on the list of approval but it was later discovered that the said Helen Amoaior engaged another counsel who filed a separate suit for her which is Suit No. NICN/MKD/57/2013 between Helen Amoaior V. Benue State Universal Basic Education Board (SUBEB) claiming her accumulated salaries and allowances. The Defendant opted for an out of court settlement and by consent agreed to pay the sum of N952,562.00 as accumulated salaries and allowances to the said Helen Amoaior who was on grade level 07.

 

Counsel submits that by the pleaded facts, documents pleaded and frontloaded and by the statement of defence of the 1st to 3rd Defendants, the Defendants have not joined issues with the Claimants. Counsel argues that the denial of the averments in paragraphs 1 to 36 of their further amended statement of defence dated 27/4/2016 and filed 3/5/2016 cannot avail the Defendants in view of their admissions in paragraphs 3 to 4 of their joint further Amended statement of defence.

 

Counsel contends that the Defendants have admitted in their pleadings that the Claimants were employees of the 3rd Defendant and also by admitting to have screened them in 2008 confirms the position of the Claimants as stated in their pleadings and documents frontloaded.

 

Counsel argues that the Defendants alleged that the Claimants were screened out but never produced result of the screening exercise to that effect thus the Defendants failed to prove what they have alleged. Counsel refereed to the cases of Noibi V. Fikolati & Anor (1987) LPELR- 2064 (SC) and Ewo V. Ani (2004) All FWLR (pt. 200) 1484 at 1497.

 

Counsel argues that the Defendants alleged in paragraph 6 of their Defence that the Claimants were re-absolved in 2012 after entreaties, pleadings and supplications by political stakeholders but the Defendants failed to put up any evidence in proof thereof or supply the names of the alleged political stakeholders. Counsel goes further to contend that the Defendants did not put any figures aside that presented by the Claimants and that the case of Helen Amoaior has settled the case of the Claimants as the figures they are claiming is even less than that paid to Helen Amoaior upon a consent settlement with the Defendants on the same grade level with 5th to 46th Claimants. This shows that the case of the Claimants is no different from that of the Helen Amoaior.

 

Counsel submits that the Defendants have not filed any affidavit to challenge and/or controvert the affidavit by the 14th Claimant as to the loss of original copies of the Claimants’ appointment letters thus the Defendants have not shown how the Claimants perjured hence the Defendants have failed to prove what they have alleged.

Counsel submits that the 3rd Defendant’s letter to the 4th Defendant with reference No. SUBEB/APPT/22/V captioned APPOINTMENT OF STAFF dated 22nd January 2008, letters of appointment of the Claimants from the 3rd Defendant and Terms of settlement in suit No. NICN/MKD/57/2013 are documentary evidence which speak for themselves as the best form of evidence and no oral evidence can be used to alter or contradict same. Citing section 128(10) of the Evidence Act 2011  and the cases of Agbareh V. Mimra (2008) All FWLR (Pt. 409) 559, Olubidun V. Lawal (2008) All FWLR (pt. 434) 1468 at 1525 and Osunbor V. Oshimhole (2009) All FWLR (pt. ‪4630 1363 at 1408.

 

Counsel submits that the Defendants are estopped from denying and contesting the claims of the Claimants having conceded to that of Helen Amoaior who was employed on the same grade level and was not also paid for the same length of time. Citing the case of Awonusi V. Awonusi (2007) All FWLR (pt. 391) 1642 at 1659 and also that of NNPC V. Aminu (2014) All FWLR (pt. ‪7160 527 at ‪558-559.

 

Counsel submits that the court is enjoined to look at its own record and take notice of its contents for the purpose of arriving at its decision. Citing the Cases of Garba Ado & Anor V. A.A. Sule Lokon Mekara (2008) LPELR- 3628 (CA) and  Onwuka V. Owolewa (2001) 7 NWLR (pt. 713) 695 at 714.

Counsel therefore urges the court to consider all documents pleaded and frontloaded.

 

Counsel argues that the 4th Defendant is the agent of the 3rd Defendant and so the 4th Defendant need not be joined to the suit for effectual determination of same.

Counsel in conclusion urged the court to resolve the sole issue in favour of the Claimants and hold that the Claimants have established their claim and are entitled to judgment as per their claim.

 

SUBMISSION OF THE 1ST AND 2ND DEFENDANTS

 

The 1st -2nd Defendants’ final written address was adopted by counsel on 12th April 2019 wherein two issues for determination were raised as follows;

 

“1.       Whether there is disclosed any cause of action against the 1st and 2nd Defendants to sustain the claim against them.

 

  1.  Whether or not the Claimants have proved their claim against the 1st and 2nd Defendants to be entitled to the judgment based on the documents before this Honourable court.”

 

On the 1st issue, Counsel submits that from the documents before the court, Claimants are employees of the 3rd Defendant and there is no document whatsoever showing that the Claimants are employees of the 1st and 2nd Defendants. Counsel is of the opinion that by the instrument establishing the 3rd Defendant, that is the Benue State Universal Basic Education Board Law 2008, the 3rd Defendant is a statutory body that can sue and be sued and take all assets, benefits and liabilities without joining the 1st and 2nd Defendants who are nominal parties notwithstanding the provisions of the State Proceeding Law.

 

Counsel submits that from the Claimants’ complaint, there is no disclosed cause of action against the 1st and 2nd Defendants. Counsel cited the case of 7Up Bottling CO. Ltd. V. Abiola & Sons Bottling CO. Ltd. (2001) 13 NWLR (pt. 730) 469, (2001) 6 SC 73. Counsel argues that a cause of action is the entire set of facts or circumstances giving rise to an enforceable claim and cited the cases of Okafor V. B. D. U Jos Branch (2017)5 NWLR (pt.1559) 385 at ‪417-418 and A.G.Federation V. Abubakar (2007) 10 NWLR (pt. 1041), Egbue V. Araka (1988) 3 NWLR (pt.84) 598 in support thereof.

 

Counsel submits that by section 3(6) and read with part 2 (a) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), the Local Govt. Councils have constitutional autonomy and responsibility for the provision and maintenance of primary, adult and vocational education, it is therefore not proper to join the 1st and 2nd Defendants who have done no wrong to the Claimants. Counsel referred the court to the case of Akhabue V. Igueben Local Govt. Counsel (2018) All FWLR 1124.

Counsel urged the court to strike out the names of the 1st and 2nd Defendants as the statement of facts of the Claimants disclose no cause of action against them and cited the cases of Thomas V. Olusoye (1986)1 NWLR (pt.18) 669 at 682 and Labode V. Otubu (2001) 7 NWLR (pt. 712) 256 at 283.

Counsel also submits that though the State Proceedings law provides that the Attorney- General of the state be joined in all actions against the state govt. and its agencies, the 3rd Defendant is not an agency of the Government but an independent statutory body. Counsel cited the case of Portland & Paints & Products Nig. Ltd. & Anor V. Mr. Jimmy Ologhere (2019) 2 NWLR (pt.1657) 541 at ‪561-562.

 

On issue two, counsel urged the court to answer in the negative as based on the documents before the court, the Claimants have failed to prove their case against the 1st and 2nd Defendants.

Counsel submits that the Claimants’ claim are for special damages of N44,442,043.00 (Forty- Four Million, Four Hundred & Forty- Two Thousand, Forty- Three Naira) as arrears of their salaries and leave grant from 2007 to 2011 but have failed to show any document in support thereof.  It is the law by sections 131 and 133 Evidence Act 2011 that whatever a party asserts in his pleadings must be proved by evidence as pleadings alone do not constitute evidence. Counsel referred the court to the cases of M.I.N. Ltd V. M.F.K.W.A. Ltd (2005) 10 NWLR (pt. 934) 645 at 670, N. N. B PLC V. Denclag Ltd (2005) 4 NWLR (pt. 914) 549 at 597. Quo Vadis Hotels & Restaurants Ltd. V. Commissioner for Lands (1973) All NLR 568 at 588, Eseigbe V. Agholor (1993) 9 NWLR (pt. 316) 128 at 144 and Duru V. Nwosu (1989) 4 NWLR (pt. 113) 24 at 41.

 

Counsel argued that the Claimants’ particulars for special damages is captured in paragraph 3g of their further further Amended Statement of Facts dated 3rd May 2016 and filed on 5th May 2016 and in paragraph 15 concocted figures as salary arrears and other entitlements. Claimants have based such voodoo figures only on their respective letters of temporary appointment without more. Counsel argues that the Claimants can only show proof that the Defendants were owing them by tendering their pay slips or bank statements.

 

Counsel submits that the Claimants’ claim being special damages must be proved to the hilt and to the satisfaction of the court and must be comprehensive, credible and also incorporate all the relevant conditions required in proof. Counsel referred the court to the cases of Unipetrol (Nig.) Plc V. Adejere (W.A) Ltd. (2005) 14 NWLR (pt. 946) 563, Taylor V. Oghenovo (2012) 13 NWLR (pt.1316) 46, G.K.F. Invs. Nig. Ltd. V. Nig. Telecomm. Plc. (2009) 6-7 SC (pt. 11) 163 and Neka B.B. Nanir Facturing Co. Ltd V. African Continental Bank Ltd (2004) 1 SC (pt.1) 32 and submits rather that the Claimants’ case is hazy and sheer speculations without any statement of accounts to authenticate same.

 

Counsel submits that Claimants made heavy weather on the consent judgment between Helen Amoaior V. Benue State Universal Education Board in Suit No. NICN/MKD/57/2013 but that this was an amicable settlement which is distinct from the case at hand which is one of a full trial as the case of Awonusi V. Awonusi (2007) All FWLR (pt.381) 1642 at 1659 on the principle of estoppel by conduct is distinguishable and does not apply in this case. That there is no display of conduct by the Defendants to make Claimants rely on, and to establish equitable remedy to their advantage.

Counsel urged the court to discountenance and overrule the applicability of the consent judgment in the case of Helen Amoaior as the facts and circumstances are different because Helen Amoaior removed herself and filed a distinct case from the present case.

 

Counsel submits that the 4th Defendant, Ushongo Local Govt. is a creation of 1999 Constitution pursuant to section 7 of the first schedule Part 1 thereof of the Constitution of the Federal Republic of Nigeria 1999 while the 3rd Defendant (State Universal Basic Education Board, SUBEB) is a statutory body established by an enactment of the State House of Assembly.

Counsel submits that the Claimants made copious references to the Ushongo Local Government and Ushongo Local govt. Education Authority but the Ushongo Local Govt. Education Authority is not a party to the suit and failure to join it as a necessary party will render the judgment of the court to a nulity. Counsel cited the case of Green V. Green (1987) 3 NWLR (pt.60) 480.

 

In conclusion, Counsel urged the court to hold that there is no case against the 1st and 2nd Defendants and strike out their names from the action.

 

SUBMISSION OF THE 3RD DEFENDANT

 

The final written address of the 3rd Defendant dated 27th March 2019 and filed on 2nd April 2019 which was deemed properly filed and served on 12th April 2019 was adopted by counsel on 12th April 2019 and two issues were raised therein for determination as follows;

 

“1.       Whether the suit is competent.

 

  1.  Whether the Claimants had proved their respective Claims to be entitled to judgment.”

 

On issue 1, counsel to the 3rd Defendant argues that the suit of the Claimants is statute- barred under section 2 (a) of the Public Officers Protection Law of Benue State and/or under section 22 (1) Universal Basic Education Law 2008 which requires pre- action notice before suing the board, that the complaint in this case is not signed thus incompetent, that the court cannot grant declaratory reliefs in the absence of a necessary party and that the action is based on illegality and discloses no reasonable cause of action.

 

Counsel to the 3rd Defendant submits on statute of limitation that by the provisions of section 22 of the Universal Basic Education Law 2008, any action against the board must be commenced within six months next after the act, neglect or default and there must be at least one month’s notice given to the board stating in clear terms the cause of action, name and place of abode of intending plaintiff and reliefs thereof. And such notice shall be served by delivering same or by registered post addressed to the Executive Chairman.

 

On the issue of not signing the originating process by the plaintiff or his legal practitioner, counsel submits that it is an incurable defect that renders the suit incompetent as the signing of a writ of summons by litigant or his legal practitioner is now a condition precedent to its validity. Counsel referred the court to Order 3 Rule 10 (c) (1) National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and the cases of Buraimoh V. Alejo (2014) LPELR- 23203 (CA) 14, Wilson Obioha & Sons Ltd. V. Inamsco Multi Concepts Ltd. (2017) LPELR-42332 (CA) 11-12, Udoeboi V. Udousua (2016) LPELR- 41227 (CA) 8-12, Amobi V. Anazodo (2016) LPELR- 41544 (CA) 8-10.

 

Counsel argues that the writ of summons in this case was neither signed by the Claimants or their legal practitioner and since a writ of summons is an originating process by which actions are commenced, it must be competent in order to carry a valid claim thus where a writ fails to comply with the requirement of law regulating its procedure, the court cannot assume jurisdiction. Counsel cited the cases of Braithwaite V. Skye Bank Plc (2010) LPELR- 15532 (SC), Mbang V. Guardian Newspapers Limited (2010) LPELR- 11838 (CA) 19.

 

Counsel submits that where the originating processes are not signed, the fact that the accompanying documents are signed cannot cure the irregularity and a suit cannot be initiated by a statement of claim. By Order 3 Rule 10(2) and Order 30 Rule 31, a complaint is different from its accompanying processes. Citing also the case of Citibank (Nig.) Ltd. V. Titan Energy Ltd. (2018) LPELR- 44648 (CA) 11-17 on the fact that the non- signing of an originating process is a fundamental and substantial defect not a procedural irregularity.

 

On issue 2, Counsel to the 3rd Defendant submits that the claimants have not proved their individual cases to be entitled to the reliefs sought. Counsel argues that the suit has not been commenced in representative capacity but suing on individual capacities while relying on evidence of two witnesses and since parties adopted the procedure under order 38 rule 33, oral evidence from both parties is to be dispensed with as the documents frontloaded with the pleadings will supply the needed information to determine the case. Referring to the case of Kalgo V. Faruk (2008) LPELR- 4495 (CA) 31-32.

Counsel argues that in the case where trial on record is adopted by parties, the court must still resolve disputed issues arising from pleadings thus from the pleadings filed by parties in this case, the parties joined issues on the following;

 

“1.       Whether Claimants are employees of the Defendants.

 

  1. Whether Claimants have worked from January 2007 or 2008 to December 2011.

 

  1.  Whether Claimants are entitled to the amount claimed as salaries and allowances.”

 

Counsel submits that the pleadings before the court disclose that the Claimants were offered temporary appointments in January 2007 in the case of the 4th Claimant and January 2008 in the case of other Claimants and letters of temporary appointments for the 1st – 44th Claimants were issued by the 3rd Defendant while those of the 45th -53rd Claimants were issued by the Ushongo Local Govt. Education Authority. The said letters were issued on the approval of the 3rd Defendant conveyed via letter dated 22nd January 2008 with 56 names contained therein. Counsel argues that by section 10 (1) (b) of the Universal Basic Education Board Law, 2008 it is the function of the 3rd Defendant to recruit, appoint, promote and discipline teaching and non- teaching staff on grade level 7 and above and the same SUBEB law has established Local Govt. Education Authority for each Local Govt.

Counsel argues that the functions of the Local Govt. Education Authority as provided under section 12 (2) of the Universal Basic Education Law 2008 are to be carried out subject to the control of the 3rd Defendant.

 

Counsel submits that where the law has given the 3rd Defendant power to appoint the 1st -44th Claimants, such power does not include the power to confirm such appointments. Counsel cited section 10(2), interpretation Act and section 318 (1) of the 1999 Constitution and also the case of Ojukwu V. Obasanjo (2004) 12 NWLR (pt.886) 169, (2004) LPELR- 2400 (SC) 27. 

 

Counsel contends that in this case, it has not been shown by any of the documents before the court that the 3rd Defendant delegated its powers of appointment to Ushongo Local Govt. Education Authority in respect of 1st -44th Claimants. Therefore, it was not competent for the Ushongo LGEA who is subject to the 3rd Defendant to confirm the appointments of the 1st -44th Claimants without express delegation by the 3rd Defendant as Ushongo LGEA could only confirm appointments of 45th -53rd Claimants who fell into their powers.

 

Counsel argues that the Claimants are relying on an alleged screening exercise carried out following their appointments but only screening/clearance forms in respect of 33 Claimants were frontloaded. It then means 20 of the Claimants did not participate in the screening exercise and there is no explanation as to why they do not have the clearance forms. Also that there is nothing to show that the screening forms originated from the 3rd Defendant or from Ushongo LGEA, the forms are not officially headed, no official stamp or seal affixed and the persons who signed the forms are not shown to be officials of the 3rd Defendant or Ushongo LGEA.

 

Counsel argues further that the 1st – 3rd Defendants’ statement of defence stated that Claimants were employed in January 2008 and were screened but when the screening was not favourable to them, they absconded and abandoned their duty posts until they were re- absolved in 2012 after entreaties from elders and political stakeholders. This seems to be an admission that the Claimants were staff of the 3rd Defendant but only as from 2012 to date and the face of the clearance forms shows that they were cleared for March and the screening took place in February 2008 but the purpose of the screening was not stated. Though the date of posting for affected staff showed 22/2/2008, there is no letter of posting from the 3rd Defendant or Ushongo LGEA to that effect.

 

Counsel argues also that there is no documentary evidence showing when the Claimants actually assumed duty as stated in their letters of appointment and no report from the Ushongo LGEA thereof. But the Claimants are bound by their letters of appointment and must produce attendance registers, duty rosters and pay slips to show they actually assumed duty.

 

Counsel submits that a contract of employment like any other contract could only come into effect from the date of acceptance/assumption of duty. Citing the case of Best (Nig.) Ltd. V. Blackwood Hodge Nig. Ltd (2011) 5 NWLR (pt. 1239) 95 at ‪126-127, (2011) LPELR-776 (SC) 39.

 

Counsel submits that the Claimants have not denied the fact that they absconded from duty thus having not denied the averments in that regard as contained in the further Amended statement of Defence in the reply of the Claimants, the facts are deemed admitted as held in the case of Cyprian V. Uzo (2015) LPELR- 40764 (CA) 30-31 and also Order 30 Rule 6 (1).

 

Counsel argues that even if the Claimants did not abscond, there is serious discrepancy in their case as the letters of confirmation pleaded are 43 meaning 10 were not accounted for. Also the letters of confirmation were issued by Ushongo LGEA not the 3rd Defendant and their appointments were confirmed in 2013 with an effective date of 2010 not 2007 or 2008. Thus the confirmation letters cannot derive their force from the letters of temporary appointments which were issued in 2007 and 2008. This discrepancy has not been explained by the Claimants hence it is against them. Also is the fact that the Claimants only started agitating for payment of these salaries after confirmation of their appointments.

 

3rd Defendant’s counsel submits that the Claimants have failed to prove the amount of money they are owed as salaries and allowances. It is the law that an employee can only claim wages for work done and not for period of employment. See the case of Nwafor V. Anambra State Education Commission (2017) LPELR- ‪42026 32. Therefore Claimants cannot claim to be entitled to arrears of salaries and allowances during the period they had not actually worked for the 3rd Defendant or Ushongo LGEA.

 

Counsel submits that a claim for special damages must be pleaded with sufficient/accurate particulars and strictly proved. Citing the case of Taylor V. Ogheneovo (2011) LPELR-8955 (CA) 14-21, (2012) 13 NWLR (pt. 1316) 46 at 61 wherein the Court of Appeal held that a claim for special damages must be specifically pleaded and strictly proved based on precise calculation. The onus as provided under sections 131, 132 and 133 of the Evidence Act is on the Claimants as the Defendants have stoutly denied the veracity of the claims in paragraphs 8 and 9 of the Complaint.

 

Counsel submits that the Claimants have relied heavily on the consent judgment entered in favour of one their colleagues but failed to place before the court the terms of employment of their said colleague or that she was a privy of the Claimants in this case.

Counsel referred the court to the case of Ajagbe V. Oyekola (2013) LPELR- 19840 (CA) 57-59, where the use of previous judgment was considered as provided under sections 173 and 174 of the Evidence Act to allow such a judgment as estoppel per rem judicatam. And also that, consent judgment is only effective against a person who is a party to it thus a person who is not a party to it cannot utilize same either as estoppel or as relevant fact. Citing also the cases of Olugbade V. Onigbongbo (1974) LPELR-‪2618 17-20 and Vulcan Gases Ltd. GFIG AG (2001)LPELR- 3465 (SC) 50-51, (2001) 9 NWLR (pt. 719) 610.

 

Counsel submits that the Claimants are neither parties nor privies to the consent judgment. Counsel on that referred to the case of Agbogunleri V. Depo (2008) 3 NWLR (pt. 1074) 217, (2008) LPELR- 243 (SC) 2. 

 

Counsel submits further that strict proof of special damages cannot be met by consent judgment as the claims of parties are not identical and defendants cannot be compelled to consent to this case because they did so in a previous one.

On the whole counsel urged the court to resolve all the issues in favour of the 3rd Defendant and dismiss the suit for want of merit.

 

CLAIMANTS’ REPLY TO THE 1ST AND 2ND DEFENDANTS’ FINAL WRITTEN ADDRESS. 

 

It is the contention of the Claimants’ Counsel that since the Counsel to the 1st and 2nd Defendants submits that the 3rd Defendant did not file a statement of defence after taking over the case from him, then the 3rd Defendant has failed to contest the claim hence the 3rd Defendant has admitted the facts pleaded by the Claimant. Counsel cited the case of Aderonpe V. Eleran (2019) 4 NWLR (pt. 1661) 141 @ 170.

Counsel urged the court to discountenance the arguments and statement of defence of the 1st and 2nd Defendants’ counsel, M. A. Agber, Esq on behalf of the 3rd Defendant who in the course of proceedings chose another counsel, T. D. Pepe, Esq who did not file any defence on behalf of the 3rd Defendant. Thus the counsel to the 1st and 2nd Defendant is an interloper by taking away the right to counsel of choice by the 3rd Defendant as enshrined under section 36(6) (c) and (d) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) and Order 54 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and the court should discountenance the arguments in favor of the 3rd Defendant.

 

Counsel submits that the Claimants can sue both the Benue State Government and the Hon. Attorney- General of the state as the 3rd Defendant is an agent of the 1st and 2nd Defendants as the letters of appointment and confirmation letters issued by the 4th Defendant clearly carry the name of the 1st Defendant.

Counsel submits that all the authorities cited by counsel and arguments thereto are not applicable and be discountenanced in regards to payment for work done by the Claimants. That counsel’s submissions no matter how alluring cannot take the place of evidence. Citing the case of Ucha V. Elechi (2012) All FWLR (pt. 625) 237 at 259 and that of Ayanwale V. Odusami (2012) All FWLR (pt. 610) 1246 at 1255. 

 

Counsel submits that the Claimants have disclosed a reasonable cause of action against the 3rd Defendant by their statement of facts and documents attached and that the Claimants never undertook to work for the 3rd Defendant free of payment of salary or that their salaries will be paid in arrears.

Counsel cited the cases of Accord Party V. Governor of Kwara Sate (2011) All FWLR (pt. 555) 220 and that of Petroleum Training Institute V. Mathew (2012) All FWLR (p. 623) 1949 to show that a reasonable cause of action is a group of operational facts that give rise to a cause of action.

 

Counsel submits that documentary evidence cannot be varied by oral evidence thus the computations resulting in the monetary claims by the Claimants are clearly stated by their letters of appointment and this meets the requirement of strict proof of special damages. Thus the  Defendants cannot come up with any other figure to contradict that contained in the Claimants’ letters of appointment.

The 3rd Defendant cannot ask the court to overlook the issue of Helen Amoaior in the treatment of the Claimants’ case as the facts and circumstances of her appointment and the Claimants are one and the same. Thus it will be discriminatory for the Defendant to treat Helen Amoaior differently from the Claimants and a clear violation of the rights of the Claimants as enshrined under sections 34 (a) and 42 (1) of the Constitution of the Federal Republic of Nigeria 1999 ( As Amended).

In conclusion, counsel urged the court to enter judgment in favour of the Claimants as per their reliefs before the court.

 

CLAIMANTS’ REPLY TO THE 3RD DEFENDANT’S FINAL WRITTEN ADDRESS. 

 

Claimants’ Counsel submits that in order to contest the claim, the 3rd Defendant ought to have filed a statement of defence or adopted the previous one filed by counsel to the 1st and 2nd Defendants before it engaged another counsel after 5 years. Where a defendant does not file a defence to the Claimant’s claim, it is deemed to have admitted the facts pleaded by the Claimant.

Counsel submits that this suit was filed on 24th January 2014 under the National Industrial Court Rules 2007 and the 2017 rules relied upon by the 3rd Defendant were not in existence at that time and not applicable here thus the suit so filed by Claimants is competent having complied with the provisions of order 3 rule 10 (c) (i).

 

Counsel also submits that even though the Claimants have a common grievance, common interest and cause, they must not commence the suit in representative capacity and can call only one witness to testify on their behalf. Hence the duty of the Defendants to defend the claims against them and not to determine how the Claimants should present their case.

 

Counsel argues that it is misleading for 3rd the Defendant to allege that there is no document to show that the 3rd Defendant delegated its powers of confirmation to Ushongo LGEA as counsel has failed to take note of the fact that the 3rd and 4th Defendants are agents of the Benue State Government. Also the 3rd Defendant has not stated that they failed to pay salaries to the Claimants because their appointments were wrongly confirmed.

 

Counsel submits that the onus is on the Defendants to show that the Claimants did not work or that they absconded from work or they were queried for not working as claimed. Abandonment of work is a serious misconduct that behooves on the defendants to prove which has not been done and the case of Helen Amoaior can attest to that.

Counsel argues that no figures can be imputed into that contained in the letters of appointment of the Claimants by the Defendants and the case of Hele Amoaior cannot be treated differently from that of the Claimants when the nomenclature is the same.

In conclusion, Counsel urged the court to hold that the suit is competent and the Claimants are entitled to the reliefs sought.

 

3RD DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION 

 

The counsel to the 3rd Defendant on 12th April 2019 also adopted his notice of preliminary objection dated 27th March 2019 and filed on 28th March 2019 asking that the suit of the Claimants be dismissed in limine or struck out for being incompetent on grounds that;

 

“1.       That the respective causes of action are statute- barred by virtue of section 2(a) of the Public Officers Protection Law of Benue State.

 

  1. That the Complaint is not signed, rendering the entire suit incompetent.

 

  1. The Pre-action correspondence pleaded and frontloaded does not meet the requirements of the Benue State Universal Basic Education Board Law (As Amended).

 

  1.  The Honourable court cannot grant declaratory and other reliefs sought in the absence of a necessary party to wit: Ushongo Local Government Education Authority.

 

  1. . The action is based on illegality and discloses no reasonable cause of action.”

 

The application is supported by a 4 paragraph affidavit deposed to by Joseph Valentine Ogizi, a legal practitioner and a written address was caused to be filed wherein a lone issue for determination was raised thus;

 

“Whether the Claimants’ suit is competent.” 

 

Counsel submits that the provisions of section 2(a) of the Public Officers Protection Law applicable in Benue State prohibits actions against public officers in the discharge of their statutory duties which are filed after the expiration of 3 months from the date of the action complained of.

 

Counsel submits that the Public Officers Protection Law is applicable to contracts of employment and cited the case of Yare V. National Salaries, Wages and Income Commission (2013) 12 NWLR (pt. 1367) 173, (2013) LPELR- 20520 (SC) 19-20. Also the cases of NPC V. Williams (2016) LPELR- 41492 (CA) 16-18 and Nigeria Coal Corporation V. Nwogu (2015) LPELR- 25893 (CA) 26-30.

 

Counsel submits that the Claimants’ cause of action arose as soon as the withholding of their salaries and allowances occurred. Citing the case of Kassim V. NNPC (2012) LPELR- 22369 (CA) 38-40 and Lagos University Teaching Hospital & Mgmt. Board V. Adewole (1998) 5 NWLR (pt.550) 406 at 430. Counsel argues that by the correspondence of 30/10/2013, Claimants gave periods of deprivation of salaries to be 4 years and 5 years in respect of the 4th Claimant but they chose to sleep for 4 or 5 years after the cause of action accrued. Referring to Ethiopian Airlines V. AfriBank Nig. Plc (2007) All FWLR (pt. 373) 185 at 202.

 

Counsel submits that it is immaterial that the Claimants had engaged themselves in trying to settle the dispute through negotiation with the Defendants. It is the law that negotiations, absence of court or party or illiteracy will not stop period of limitation from continuing to run. Citing the cases of Mkpedem V. Udo (2001) FWLR (pt.66) 827 at 843, Ogbah V. Bendeh Divisional Union (2001) FWLR (pt. 63) 25 at 52, A.R.M.T.I V. Bayere (2003) FWLR (pt. 155) 649 at 662. That the Claimants ought to have filed this suit in January 2007 or January 2008 or any time in between.

 

Counsel submits that the issue of limitation of action can be raised at any stage of the proceedings being an issue of jurisdiction. See CBN V. Amao (supra0 at 1529. Also the cases of Oloba V. Akereja (1988) 3 NWLR (pt. 84) 504 and Aremo II V. Adekanye (2004) All FWLR (pt.224) 2113. 

 

On the issue of pre-action notice, counsel submits that the correspondence of 30/10/2013 does not qualify as one even though it contained a threat to sue but it does not meet the requirement of the enabling law as the requisite period is not stated therein, no reliefs stated and no particulars of individual claims.  Counsel cited the cases of Ntiero V. NPA (2008) All FWLR (pt. 536) 5307, (2008) 10 NWLR (pt. 1094) 129, (2008) LPELR- 2073 (SC) 5-6 and Ondo State Dev. 7 Property Corporation V. Jimzest Hotel Dev. Co. Ltd (2011) LPELR- 4782 (CA) 27wherein the court held that in law it is not every correspondence that qualifies as a pre-action notice and in the absence of one as required by the enabling law, such a suit is incompetent and liable to be struck out.

 

On the issue of illegality and non-disclosure of cause of action, Counsel submits that the Claimants stated that they were employees of the Benue State Government through the 3rd Defendant. However, the letters of confirmation were issued by Ushongo LGEA who is not a party in this suit. It is also strange that a permanent and pensionable appointment could be terminated by a mere one month’s notice by either party and more strange is that Ushongo LGEA who sought approval from the 3rd defendant to employ the Claimants did not seek same to confirm officers above grade level 07.

Counsel submits that failure to disclose when the appointments of the Claimants became effective is a crucial omission in the Claimants’ case as their salaries and allowances can only be calculated based on the date of assumption of duty.

 

Counsel submits that the non- joinder of Ushongo LGEA means the court does not have jurisdiction to determine the issues of whether Claimants had served in the various stations, how much their salaries and allowances were or whether it was Ushongo LGEA or the 3rd Defendant that was responsible for paying the said entitlements. Where proper parties are not before the court, the court does not have jurisdiction to hear the suit. Citing the cases of Faleke V. INEC (2016) 18 NWLR (pt. 1543) 61 at 135, Bakare V. Ajose- Adeogun (2014) 1 SCNJ (pt. 1) 202, Okorocha V. UBA Plc (2011) 1 NWLR (pt. 1228) 348 at 377, Santa Fe Drilling (Nig.) Ltd. V. Awala (1999) 6 NWLR (pt. 608) 623 at 629, Unoka V. Agili (2007) 11 NWLR (pt. 1044) 109 at 130 and G & T Investment Ltd. V. Witt & Bush Ltd. (2011) 8 NWLR (pt. 1250) 500 at 532, and Oyeyemi V. Owoeye (2017) LPELR- ‪41903 54-55.

 

On the whole, Counsel urged the Court to resolve the issues raised in the Notice of Preliminary objection in favour of the 3rd defendant.

 

CLAIMANTS’ COUNTER – AFFIDAVIT AND WRITTEN ADDRESS IN OPPOSITION TO THE 3RD DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION FILED ON THE 28/30/2019.

 

 

The claimants via their counsel filed 4 paragraph counter- affidavit and a written address in support thereof in opposition to the preliminary objection of the 3rd Defendant. Counsel to the claimants adopted the issue raised by the 3rd Defendant thus;

 

“Whether the Claimants’ suit is competent.”

 

Counsel craved the indulgence of the court to adopt the introduction on the face of the written address as part of their arguments and submissions and urged the court to answer the issue formulated in the affirmative.

 

Counsel submits on the ground of objection under section 2 (a) of the Public Officers Protection Law of Benue State that the objection is not applicable because the claim of the Claimants is for service which has been rendered but not paid for.

 

Counsel submits that in law, a public officer can be sued outside the limitation period of 3 months if he acts outside the confines of his official, statutory or constitutional duty, and if he acts without good faith, abuses office or without legal justification. Citing the cases of Okoh V. The Nigerian Navy (2007) 2 WRN 64 and Isiak O. Moyosore V. Governor of Kwara State (2012) 5 NWL (pt.1293) 242. 

Okoh V. The Nigerian Navy (2007) 2 WRN 64 and Isiak O. Moyosore V. Governor of Kwara State (2012) 5 NWL (pt.1293) 242. 

Counsel argues that the Claimants are contending the refusal and/or neglect of the Defendants to pay their salaries and allowances for the stipulated period pleaded without legal justification and the Defendants cannot be protected by the Public Officers Protection Law of 2004. Claimants by their pleadings before the court relate to non-payment of salaries and leave allowances and their claims are for dignity of persons and freedom from discrimination hence cannot be caught up by the Public Officers Protection Law.

 

Counsel further argues that the courts have held in a plethora of cases that the Public Officers Protection Law is not applicable to cases for recovery of land, breaches of contract, claims for work or labour done. Citing the cases of Olateju V. Commissioner, Lands & Housing Kwara State (2011) 12 WRN 36, L.E.D.B (1953) 20 NLR 169 and N.P.A. V. Construzioni General Farsura Cogefor SPA (1974) 1 All NLR (pt.2) 463, and also the case of Roe Ltd. V. University of Nigeria (2018) 285 LRCN 162.

 

Counsel referred to the unreported case in Suit No. NICN/MKD/03/2012 between Mr. Vincent Akure V. Federal Ministry of Work & Housing & The Attorney- General & Minster for Justice delivered on 8/7/2013 per Justice B.A. Adejumo, who dismissed a similar preliminary objection challenging the jurisdiction of the court on the grounds of section 2 (a) of the Public Officers Protection Law as the Claimant’s/Respondent’s cause of action relates to unlawful withholding of his three months salaries, gratuities and other retirement benefits.

Counsel also referred to the unreported case in Suit No. NICN/MKD/38/2014 between Peter Agbende V. National Pension Commission & Anor delivered on 5/2/2015 and the cases of  FGN V. Zebra (2003) 3 WRN 1, Salako V. LEDB & Anor (supra) 167, Hassan V. ALiyu (2010) 17 NWLR (pt. 1038) 66, Kwara state C.S.C. V. Abiodun (2010) 11 NWLR 52, Ofoboche V.Ogoja Local Govt. (2001) 8 MSJC 153, John Ovoh V. The Nigerian Westminster Dredging and Marine Ltd. Unreported Suit No. NIC/9/2002 delivered on 1/4/2008, Capt. Tony Oghide & Ors V. Jason Air Ltd & Anor Unreported Suit No. NIC/LA/12/2009 delivered on 14/1/2011, CBN V. Jacob Ladele Amao & Ors (2010) 16 NWLR (pt. 1219) 271 and AG, Rivers V. AG, Bayelsa State & Anor (2013) 3 NWLR (pt. 1340) 123. 

 

On the issue that the complaint is not signed, counsel submitted that the objection shows the ignorance of the rules under which the case was filed in 2014. The provision of order 3 rules 1-3 of the National Industrial court Rules 2007 under which the case was filed says that complaint should be filed in accordance with form 1 and form 1 is not a straight jacket. Counsel contended that Order 31 Rule 10 cited by the 3rd Defendant has been complied with.

 

On the issue of pre-action notice, counsel submits that the letter of 30th October 2013 meets the requirement of law as to the statutory notice of three months and all cases cited by counsel to the 3rd Defendant are different from the case at hand. Counsel argues that the essence of a pre- action notice is to bring fully the grievance of the Claimants to the notice of the 3rd Defendant to make up their mind to settle or come to a compromise or otherwise. Citing the case of Gbadamosi V. Nigerian Railway Corporation (2007) All FWLR (pt. 367) 855.

 

Counsel argues further that assuming without conceding that a notice served does not conform to the requirement of law, it cannot be relied upon to falter the right of access to court of the Plaintiff. Also citing the Gbadamosi V. Nigerian Railway Corporation (supra) 874.

On the issue of non-joinder of Ushongo Local Government Education Authority, Counsel submits that the 3rd Defendant can no longer raise this leg of objection having raised same through counsel to the 1st and 2nd Defendants and lost in 2015. From the record of court, M. A. Agber, esq then counsel to 1st to 3rd Defendants raised an objection that Ushongo Local Govt. was a necessary party but the objection was dismissed on 24th February 2015.

 

Counsel submits that non- joinder of Ushongo Local Govt. Education Authority is not fatal to the Claimants’ case as Ushongo LEGA is not a necessary party having disclosed its principal. The 3rd Defendant in paragraph 3(j) of their supporting affidavit stated that “Ushongo Local Govt. Education Authority (LGEA) is a creation of the same law, functioning under the supervision of the 3rd Defendant”.  That besides this, all the letters of appointment of the Claimants carry “Government of Benue State of Nigeria” before the name of the 3rd Defendant followed under it. That this is also repeated in the letters of confirmation of the claimants by the 4th Defendant on the letter head papers. Also the letter of 22nd January 2008 wherein the 3rd defendant delegated its powers to the 4th Defendant copied the said letter to the Ag. Chief Accountant and Head of Audit Unit of 3rd the Defendant thus making the 3rd and 4th Defendants agents of the Benue State Government. Therefore the Ushongo Local Govt. Education Authority cannot be made a party in a suit where it was not privy to the terms and conditions of employment.

Counsel cited the case of C.N.E. Inv. (Nig.) Ltd V. Asco Inv. Ltd. (2012) All FWLR (pt. 611) 1588.

Counsel submits therefore that non- joinder or misjoinder of parties does not affect the competency of an action or jurisdiction of court to determine same as what the court is to consider is the rights and interests of parties before it. See the case of Sapo V. Sunmonu (2010) All FWLR (pt. 531) 1408.

 

On the issues of illegality and non reasonable cause of action, counsel submits that the 3rd Defendant has failed to show what makes the claim of the Claimants illegal as there is nothing before the court via pleadings to that effect. Counsel argues that Claimants have disclosed a reasonable cause of action by pleaded facts that they were employed by the 3rd Defendant and posted to the 4th defendant but were never paid any salaries and leave allowances for that period and that Claimants did not undertake to work without payment of salaries neither did the Claimants agree for payment in arrears. More so is the fact that the 3rd Defendant has not shown that they have not been receiving monthly allocations from Federation Account. Thus there is sufficient group of operative facts giving rise for the claimants to sue. Citing the cases of Accord Party V. Gov. Kwara State (2011) All FWLR (pt.555) 220 and Petroleum Training Institute V. Mathew (2012) All FWLR (pt. 623) 1949.

Counsel submits that a party cannot be allowed to raise preliminary objection in piecemeal as done by the Defendants. That is upon failure of the 1st -3rd Defendants’ preliminary objection on 24th February 2015, what was left was for them to appeal and raise same after parties have taken further steps in the proceeding. Hence the objections of the 3rd Defendant lacks merit and should be dismissed with substantial cost.

 

Counsel urged the court to resolve the issue in favour if the Claimants and dismiss the preliminary objection of the 3rd Defendant with cost.

 

 

3RD DEFENDANT’S REPLY ON POINTS OF LAW IN RESPECT OF PRELIMINARY OBJECTION.

Counsel submits that issue of limitation of action in accordance with section 2 (a) of the Public Officers Protection Law of Benue State and section 22 (1) Universal Basic Education Law 2008, are mandatory, admitting no exceptions and it covers any action. Counsel argues that all cases cited by the Claimants’ counsel are to be considered in their peculiar circumstances and in recent decisions cited by the 3rd Defendant, the word labour refers to simple contracts and not contracts of employment.

Also that the Claimants’ counsel failed to respond to the issue of pre-action notice hence it is deemed conceded. Citing the case of Adeyemi V. Haruna (2018) LPELR- 44538 (CA) and Nwankwo V. Yaradua (2010) 12 NWLR (pt. 1209) 518. 

Counsel responds on issue of non- signing of originating process that current Rules of court cannot have retrospective effect, that it is applicable only to substantive law and not procedural. Referring to Rossek V. ACB (1993) 8 NWLR (pt. 312) 382.

On non- joinder of Ushongo LGEA, counsel submits that non- joinder of necessary parties can lead to an order of retrial by an appeal court in certain cases. Citing the cases of Anyaduba V. NRTC (1992) LPELR-505 (SC), also the case of Azuh V. Union Bank (20140 LPELR- 22913 (SC) and Cotecna Int’l Ltd. V. CHurchgate Nig. Ltd (2010) LPELR-897 (SC) 43.

On illegality of the claim, Counsel cited the case of Alao V ACB (1998) LPELR-407 (SC) 41-42 to the effect that the claimants did not counter the arguments on this issue and it is so deemed admitted.

 

Counsel therefore, urged court to discountenance the submissions of the Claimants’ counsel on the preliminary objection.

 

DECISION OF THE COURT 

This is a case to be decided on records only by relying on the documents and exhibits frontloaded as provided under Order 38 rule 33 of the 2017 Rules of this court and upon mutual agreement of the parties. I have carefully gone through the pleadings filed by the parties along with the documents pleaded and frontloaded by the Claimants. Before I make further comments on the merits of this suit, I will first consider the preliminary objection raised by the 3rd defendant as to the competence of this suit.

 

The 3rd Defendant who was initially represented by counsel to the 1st and 2nd Defendants, M. A. Agber, (DPRS) chose to have another counsel to represent it after close of pleadings before the previous coram. The new counsel to the 3rd Defendant, T. D. Pepe, Esq after parties mutually agreed to have their case decided on pleadings already before the court filed a notice of preliminary objection as to the jurisdiction of the court to determine the Claimants’ suit on grounds that the writ filed by the claimants was not signed by counsel or Claimants, that pre-action notice was not served on the 3rd Defendant, that there is no cause of action against the 3rd Defendant, that the suit of the Claimants is illegal, that non- joinder of Ushongo Local Govt. Education Authority is fatal to the Claimants’ case and that the case of the Claimants is caught up by section 2 (a) of the Public Officers Protection Law of Benue State.

 

I have perused the notice of preliminary objection and the arguments for and against same and the question to ask in resolving the issues is, whether the suit of the Claimants is competent that it vests the court with the jurisdiction to entertain the matter.

The nagging concern to my mind is what would be the Justice in this case in entertaining a preliminary objection  where parties have long joined issues and proceedings have spanned over three (5) years already?

It is alarming that this suit came up for the 1st time before Hon. Justice Wazir Abali (of blessed memory) on the 19/2/2014 and several applications taken as well as a Notice of preliminary objection taken on behalf of the same 3rd defendant on the 3/2/2015 but same was over ruled. Similarly on the 28/11/2016, Claimants’ witness testified and was cross-examined and discharged and other witnesses were also subsequently taken and the matter was then adjourned  for defence. However, to my surprise and dismay, the 3rd defendant still brought another Notice of preliminary objection challenging the jurisdiction of the court which I think is too late in the day. This Court would ignore what I view as a mere technicality in order to do substantial justice.

The Supreme Court in the Administrators/Executors of the Estate of General Sani Abacha V Samuel Davide Eke Spiff & 3 Ors(2007) 37 NSCOLR 364 at 415 made reference to Adegoke Motors Ltd V ADESANYA (1989) NWLR (Pt. 109) 250 and clearly stated that challenging the competence and validity of a writ can or could be done by :-(a) Entering an appearance on protest, or (b) Enter a conditional appearance and (c) Then file a motion asking the court seized of the matter, to set aside the purported writ and the purported service on the ground of an essential invalidity of both the writ and service. See MTN Nig. Communications Ltd V Alhaji Abubakar (2014) LPELR-22783 (CA), where it was held that where a writ is defective, it is the duty of the party to act timely to apply to strike out the suit before taking any further step in the proceedings.

In Adosco Nig. Ltd. & Anor V Chilewa Investment Ltd., It was held that where a party raising objection act timeously the defective writ of summons would be set aside. However where the party decides to take part in the proceedings on the irregular writ to the conclusion of the case, he cannot be heard to complain about the defective writ of summons

In any event, let me address the issues seriatim as raised by the 3rd Defendant. On the first issue, I must emphasize that it is the record of the court that regulates proceedings in the court and parties are bound by the court’s record. Hence by the record before me, the Complaint filed by the Claimants on 24th March 2014 is in compliance with Order 3 rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2007. That  the complaint is duly signed by counsel, Ocha P. Ulegede, Esq and properly before the court and I so hold.

 

On the issue of pre-action notice, I must say that I have carefully read the contents of the solicitor’s letter dated 30/10/2013 on behalf of the Claimants to the 3rd Defendants stating the grievance of the Claimants and demanding for payment of their salaries from 2007, 2008 and 2011. The Claimants also stated in the letter that it serves as the necessary statutory notice to sue should there be no settlement.

In the case of International Tobacco C. Plc. V. Nafdac (2007) 50 NPJD, the court opined that the requirement of pre- action notice is procedural and does not curtail the right of a person to sue  but lays down a condition precedent consequent to instituting an action. It does not curtail or constitute an infringement of the exercise of judicial power by courts or abridge citizen’s right of access to court. See also Bakare V. A.G. Federation (1990) 5 NWLR (pt. 152) 516 at 535. More so is the fact that the effect of non-compliance with a pre-action notice amounts to an irregularity as it merely puts the court on hold pending the notice. However, in the instant suit the Claimants through their solicitor’s letter of 30th October 2013 notified the 3rd of their intention to sue. In my opinion the word “sue”  suffices as the required notice provided by the law and I so hold.

 

On the issue on Ushongo Local Govt. Education Authority being a necessary party, I wish rely on the authority of Osigwe V. PSPL Ltd (2009) 37 NSCQR (pt.II) 841 at 846 and ‪848-849 paragraphs 5 and 16 wherein the court opined that an agent who acts on behalf of a known and disclosed principal incurs no personal liability. The Ushongo Local Govt. Education Authority in my view is an agent of a disclosed principal and is not a necessary party to this suit. See the case of Akalonu V. Omokaro (2003) 8 NWLR (pt.621) 190. The 3rd Defendant admitted in their submissions and pleadings that the Ushongo Local Govt. Education Authority is under the supervision of the 3rd Defendant. Thus any action or inaction of a disclosed principal makes the principal liable even when the principal is a foreigner.

 

On the action of the Claimants being an illegality and without cause of action, the 3rd Defendant has not pleaded particulars of illegality or shows how the suit is illegal on the face of it. The pleadings of both parties show that a group of facts exists which has given rise to the instant suit. The Claimants pleaded and frontloaded documents to show that they were employed by the Defendants between 2007, 2008 and 2011 without payment of salaries. This fact has been admitted by the Defendants whose explanation is that the Claimants absconded from their duty posts. Claimants were never paid salaries within that period hence do not have bank statements or payment slips or vouchers for that period. Cause of action does not operate in vacuum but by pleadings of the Claimant. See the case of Barbus & CO. (Nig. Ltd) & Anor V. Okafor- Udeji (2018) LPELR- 44501 (SC). Also Henry Stephens Engineering Ltd. V. V.S. A. Yakubu (Nig.) Ltd. (2009) LPELR- 153/2002.

On issue that the instant suit is caught up by section 2 (a) of the Public Officers Protection Law, I do not agree with counsel to the 3rd Defendant that the Public Officers Protection Law applies in case of contract of service. See the case of Roe Ltd. V. University of Nigeria (supra).

See also the case of National Revenue Mobilization Allocation and Fiscal Commission & 2 ors v. Ajibola Johnson & 10 ors (2019) 2 NWLR (Pt. 1656) 247, where the Supreme Court specifically said that section 2 of the Public Officers Act does not apply to contract of service.

 

A glean from the record of court shows that a similar application was filed on 28th October 2014 on behalf of the 1st to 3rd Defendants by M. A. Agber, Esq and same was argued on 3rd February 2015 before Hon. Justice R. B. Haastrup and ruling delivered on 24th February 2015 dismissing the application in its entirety.

 

On the whole I find that the grounds of objection raised therein are unsustainable. Accordingly, I dismiss the Notice of preliminary objection filed by counsel to the 3rd Defendant in its entirety.

 

Now, the issue to be considered on the merits in this suit is, whether the Claimants have discharged the onus of prove to be entitled to the reliefs sought.

The case of the Claimants is that, they were employed between 2007, 2008 and 2011 by the Defendants but they were never paid any salaries or leave allowances. The Claimants pleaded and frontloaded their letters of appointment, Primary school verification sheet in respect of 33 Claimants issued by the 3rd Defendant who also originated the approval to be so employed vide letter known as Appointment of Staff dated 22nd January 2008. The pleadings of the Defendants is that the Claimants were employed but they absconded from their duty post after the screening exercise conducted by the 3rd defendant until 2012 when the defendants upon pleas from political stakeholders re-absolved the Claimants into the service of the 3rd Defendant and posted to Ushongo Local Govt. Area.  It can be deduced from the pleadings of parties that the Claimants were actually employed by the Defendants as clearly seen from the pleadings and documents frontloaded. Why the Claimants have not been paid between 2007, 2008 and 2011 remains a mystery which the Defendants have failed to resolve. If the Claimants absconded from duty, disciplinary action ought to have been taken as abscondment is a serious misconduct. Unfortunately there is nothing before me to show that the Claimants absconded from work or that their appointments were terminated on any ground.

 

The letters of appointment in the name of each of the 53 Claimants were signed by one Dr. Trongee Jem Tor-Anyiin for Executive Chairman of the 3rd Defendant dated 22nd January 2008 except that of the 4th Claimant which is dated 7th January 2007. The 1st -3rd Claimants were placed on grade level 08 while 4th – 44th Claimants were placed on grade level 07 and 45th – 53rd Claimants were on grade level below 07. Each of the letters of appointment carried an amount as salary per annum. A document on the letter head of the 3rd Defendant titled “Appointment of Staff dated 22nd January 2008” was written by the 3rd Defendant to the Education Secretary of Ushongo Local Govt. Education Authority conveying approval of the board for the appointment of persons whose names appeared therein which are the 1st – 53rd Claimants and three others so employed. A letter of complaint was written by the education secretary, Ushongo Local Government Education Authority to the Hon. Speaker of the Benue State House of Assembly over non- payment of newly employed staff in Ushongo LGEA dated 06/07/2010. There are also documents titled “Primary School Teachers Verification Sheet (2008) (Personal Data Form)” carrying the details and passport of the Claimants. The said verification was done in March 2008 showing the date of present  posting of Claimants in February and some in March 2008 and this verification exercise was countersigned by one Anoh David (HPA) for the Executive Secretary and each of the claimant’s was cleared for March 2008 by the team leaders, Atoato and Conrad Wergba. It is settled law that in the interpretation of a contract involving several documents, the documents must be read together. See C.B.N.V Igwilo (2007) LPELR – 835(SC).

 

There is nothing from the Defendants from my view to discredit the contents of these documents. All that the Defendants have to say is that the Claimants absconded after the screening exercise which was not favourable to them and on the other hand that the 4th Defendant had no powers to confirm the Claimants. There is no material fact in the pleadings of the Defendants showing acts of discipline against the Claimants or termination of the Claimants’ appointment or that they were not employed between 2007 and 2011. Rather the Defendants stated that the Claimants were re-absolved in 2012 and included on the pay roll. I therefore consider the act of the Defendants as condonation of whatever infraction the claimants were said to have committed, if at all they committed any infraction in the first place by way of abscondment. See Nigerian Army V Aminun-Kano(2010)LPELR-2013(SC).

 

There is the law of presumption which states that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requirements for its validity have been complied with until the contrary is proved. See section 168 of the Evidence Act, 2011. See also the cases of Torri V National Park Services of Nigeria (2011) 7 SCNJ 17, and Kalu V State (1998) LPELR – 1655 (SC). Therefore, I am of the opinion that in this case, there is a presumption that official acts have been  done rightly and regularly which contrary has not been proved by the Defendants.

 

I must admit that there is a valid and subsisting contract of service between the Claimants and the 3rd Defendants. However the 3rd Defendant is in breach of the said contract by the non- payment of the Claimants’ salaries between 2007 and 2011. In the case of Mmegwa V. Texaco (Nig.) Ltd (2005) 18 NWLR (pt. 957) 279 at 281, it was held that where there is a valid and enforceable contract, and one of the parties defaults in performance thereof, the other party has two options, that is, to insist on actual performance or seek damages for breach.

Where a master and servant relationship has been put down in writing and accepted by the parties, it creates a sanctity of contract which the court must respect and give effect to at all times. See the case of A.G. Rivers State vs. A.G. Akwa Ibom State (2011) 8 NWLR (Pt. ‪1248 31 at 83, paras. B-C, where the Supreme Court held thus: “Where parties have entered into a contract or agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement.”

 

Therefore where evidence is given by a party and is not contradicted by the other party who has the opportunity to do so, and such evidence is not inherently incredible and does not offend any rational conclusion or state of physical things, the court should accord credibility to such evidence. See the case of Gana V. FRN (2018) LPELR-44344 (SC).  It is trite that mere denial without more does not make a defence to an action. SEE SGB (NIG) LTD V PANATRADE LTD V (1994) NWLR (PT. 352) 720.

Thus where material evidence given by a party was not challenged or rebutted by the opposing party who had the opportunity to do so, the court can act on such evidence. See the cases of Insurance Brokers of Nigeria V. ATMN (1996) 8 NWLR (pt. 466) 316 at 327 paragraph AND

 G, Ebeinwe V. State (2011) 7 NWLR (pt.1246) 402 at 416 para D, Musa V. Yerima (1997) 7 NWLR (pt.511) 27 at 4-42 paragraphs H-A. D and Offorrlette V. State (2000) 12 NWLR (pt.681) 415 at 436 paragraphs B-C.

 

It is the law that once a Claimant proves the existence of a particular fact, the burden of disproving that fact shifts to the Defendant.

I therefore have no doubt that all the letters of appointment, Verification forms and Approval of Appointment in respect of the Claimants emanate from the Defendants and is binding on them and in the absence of any evidence to the contrary, I hereby find that the Claimants have discharged the onus on them to be entitled to the reliefs sought. Consequently, I hereby make the following orders against the Defendants;

 

That the non- payment of the salaries of the claimants upon employment between 2007, 2008 and 2011 is unlawful and contrary to the terms of employment.

 

That the Defendants shall pay to the Claimants the salaries as reflected on the appointment letters of each of the Claimants from January 2007 to December 2011 in respect of the 4th Claimant (Jigh- Jigh Godwin Aondohemba) and from January 2008 to December 2011 in respect of the remaining Claimants within 30 days of this judgment.

 

That the relief for the payment of leave grant is refused for lack of proof as it is not reflected on the appointment letters of the claimants.

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

 

 

                                                   HON. JUSTICE S.H. DANJIDDA                          

(PRESIDING JUDGE).

 

 

 

 

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