Agi Prince Will & 5 ORS -VS- Governor of Rivers State of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORTHARCOURT JUDICIAL DIVISION
HOLDEN AT OWERRI

BEFORE HIS LORDSHIP HON.JUSTICE SALISU H. DANJIDDA

DATE: 13/6/2018

SUIT NO. NICN/YEN/89/2016

AGI PRINCEWILL
ODENYAME JOHN
JONAH GODDAY S.
COOKEY MARY
IGWE CHRISTIAN C.

BENSTOWE LILIAN O. and 96 other Members of Staff of the Rivers State University of Science and Technology, Nkpolu-Oroworukwo, Port Harcourt whose names are set out in Schedule “A” attached herewith………..CLAIMANTS

AND

GOVERNOR OF RIVERS STATE OF NIGERIA
ATTORNEY GENERAL OF RIVERS STATE OF NIGERIA
RIVERS STATE UNIVERSITY OF SCIENCE AND

TECHNOLOGY……………………………………….DEFENDANTS

REPRESENTATION:
D.O. OKORO for the Claimants Patrick Enebele (PSC) for the ist and 2nd Defendants P. O. Nyekwere for the 3rd Defendant

JUDGEMENT

The Claimants who are 103 in number instituted this action by way of originating summons filed on the 13/5/016, wherein they raised the following questions for the determination of the court.

(1) Whether in view of the provisions of sections 4(1) (d), (j),(2), 6(1),(2), 17(1-7) of the University of Science and Technology Law, Cap.133, Laws of Rivers State of Nigeria, 1999 and sections 2.1, 2.5(a) (¡),(¡¡),(¡¡¡), 2.14 and Appendix one of the Regulations governing the conditions of service of Senior staff of Rivers State University of Science and Technology, 2013, the Claimants’ employments enjoy statutory flavor?

(2) If the answer to (1) above is in the affirmative, whether the Claimants are not entitled to remain in their respective employments and enjoy all the benefits accruable thereto until they attain their respective ages of retirement from the service of the 3rd Defendant?

(3) Whether section 15 of the University of Science and Technology Law or any other provisions of the University of Science and Technology Law entitle or empower the ist Defendant, as the Visitor to the 3rd Defendant, to order the stoppage of the payment of the salaries of the Claimants, in the absence of any breach of the employment terms governing the Claimants and the 3rd Defendant.

Upon the determination of the questions, Claimants sought for the following reliefs;

1. A declaration that the Claimants’ respective employments are valid and subsisting

A declaration that the Claimants are entitled to the payment of their respective salaries, allowances, until they attain their respective ages of retirement from the 3rd Defendant.
A declaration that the 1st Defendant’s directive stopping the payment of the Claimants’ salaries with effect from the end of February, 2016 is unlawful, null and void.
4. A declaration that the 1st Defendant has no right to order the discontinuance of the payment of salaries to the Claimants with effect from the end of February.
An order of this Hon. Court directing the Defendants to pay the Claimants forthwith the arrears of their respective salaries for the month of February, 2016, March,2016 and April, 2016 and subsequently to continue to pay the Claimants their respective monthly salaries, allowances and other emoluments they are entitled to as an when due until the attainment of their respective ages of retirement from the service of the 3rd Defendant.
An order of injunction restraining the Defendants whether by themselves or through their agents, privies or proxies from terminating, sacking, disengaging or in any way interfering with the employment of the Claimants.

Upon being served with the originating summons, the 1st and 2nd Defendants filed their counter affidavit and a Notice of Preliminary objection. The said objection which was filed on the 12/7/2016 was heard and determined against the ist and 2nd Defendants. The 3rd Defendant filed a counter affidavit to the originating summons as well. Still, the ist and 2nd Defendants filed another notice of Preliminary objection on the 14/2/2018, barely 2 years after the ist one. The preliminary objection was taken along side the substantive matter.

Let me now consider the PRELIMINARY OBJECTION.

The ist and 2nd Defendant’s notice of Preliminary objection was filed on the 14/2/2018 and it challenges the competence of the Court to entertain the suit for want of jurisdiction and that the suit is an abuse of Court process.

The grounds of the objection are as follows;

That the Claimants were severally and personally offered appointments as teachers in the 3rd Defendant’s Staff School and international Secondary School respectively at different times, dates and circumstances.
Each of the Claimants’ appointment as a teacher is personal and not joint.
The effect of the decision of the ist and 2nd Defendants to discontinue the funding of secondary education in the 3rd Defendant is personal to each of the Claimants.
The cause of action, if any, of each of the Claimants arising from the decision of the 1st and 2nd Defendants is personal, severable and not joint.
That the Claimants’ claims show that the Claimants are claiming severally and not jointly.
That the joinder of the several and personal claims of the Claimants has robbed this Hon. Court of adjucatory jurisdiction as the Court cannot make joint determination with respect to claims which are by their nature several and personal.
That the instant suit as presently constituted does not afford the 1st and 2nd Defendants the opportunity to answer to the several and personal claims of each of the Claimants

In support of the preliminary objection is a 13 paragraph affidavit. The facts in the affidavit are a replica of the grounds of the objection. The objectors filed a written address in support of their objection wherein they raised 3 issues for determination which are as follows,

i- Whether this Court has jurisdiction to entertain this suit?

ii- Whether this suit is an abuse of Court process?

iii- Whether having regard to section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the ist and 2nd Defendants/Objectors are persons who are entitled to be heard in defence of the separate, distinct and personal claims of each of the Claimants/Respondents?

The objectors submitted that lumping together of the several and distinct claims of the Claimants is a feature which prevents this court from exercising jurisdiction in this matter. Objectors cited the case of C.C.B. (NIG.) PLC V. Rose (1998) 4 NWLR (Pt.544),39. and the unreported case of Civil Service Commission Rivers State & Ors V. Dr. Mrs. Justina Jumbo & Anor in Appeal No. CA/PH/505/2016. They submitted that the contract of employment or service is between each of the Claimants and the 3rd Defendant to the exclusion of other.

Objectors also argued that by the doctrine of privity of contract, each of the Claimants is not a party to the contract of service between the 3rd Defendant and any of the other Claimants. It was also submitted that the Claimants cannot file a joint action when their Claims are several and personal arising out of an alleged breach of contract of service with the 3rd Defendant.

Objectors further contended that the action is an abuse of Court process and that does not afford them the opportunity to answer to the several and personal claims of each of the Claimants and urged the Court to grant their application.
Claimants on the other hand in opposition to the preliminary objection filed an affidavit of 12 paragraphs and a written address wherein they formulated one issue for determination. The issue reads thus;

” Whether the Hon. Court has jurisdiction to entertain/adjudicate over this suit as presently constituted?”

Claimants referred the Court to order 13 Rule 1 of the Rules of this Hon. Court 2017 which allows institution of a suit by joint or several Claimants in one action. They also cited the case of National Electricity Liability Management Limited V. Emmanuel Sunday Omotusi & 400 Ors (2016) NWLR (Pt.1541), 314.
Claimants submitted that they do not have diverse interest but a common one bordering essentially on the interpretation of the law establishing the 3rd Defendant and the regulations governing the Claimants’ conditions of service vis-a-vis the directive of the 1st Defendant ordering the stoppage of the payment of the Claimants’ salaries.

Claimants further argued that, joinder of causes of action is designed to prevent multiplicity of actions, thus cost effective, convenient and economical to the Court. Claimants cited the cases of S.P.D.C.N. LTD V. Oruambo (2012) NWLR (Pts.1294), 601, Abdulraheem V. Oduleye (2005) NWLR (Pts.926), 144, Ayankoya V. Olukoya(1996) NWRL (440) 1 and urged the Court to overrule the objection.
3rd Defendant aligned its self with the position of the objectors

.
COURT’S OPINION ON THE PRELIMINARY OBJECTION

I have gone through the affidavit and arguments of both parties and their respective issues for determination with regards to the preliminary objection and wish to formulate the following issue as follows;

Whether this Court has jurisdiction to entertain the Claimants’ joint action?

In considering thIs, it is apt to refer to order 13 of the rules of this court which says that “all persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment May be given for such Claimant(s) as May be found to be entitled to relief and for such relief as the Claimant may be entitled to without any amendment.”

It was held by the Supreme Court in Cross River State Newspapers Corporation V Oni (1995) NWLR (Pt.371) 270, that it is trite law that where several persons are jointly injured by an act of another, they may all join as co-Plaintiffs in an action.
It was further held that two limiting factors or conditions must however be established by such plaintiffs to qualify for joinder. These are- (1) That the right to relief is in respect of or arises out of the same transactions; and (2) That if separate actions were brought by such persons, common question of law or fact would arise.
It appears to me in the instant case that the right to relief arises out of the same transactions, which is the directive of the 1st Defendant for the stoppage of the salaries of the Claimants. It also appears that, had the Claimants filed this action separately, a common question of fact which is the directive of the 1st Defendant to stop their salaries and common question of law which is the status of their employment would arise.

In view of the rules of the National Industrial Court, 2017, which permit joinder of parties claiming jointly or severally as Claimants or Defendants, I hold that this Court has jurisdiction to entertain the Claimants’ joint action because they have common interest and common questions of law and common demand hence avoiding multiplicity of actions.

I am of the opinion that if the objectors felt that the claim of the Claimants would embarrass them, they should have made an application for separate trials at the earliest opportunity. In support of the above is the case of Martins V Federal Administrator General (1962) 1 S.C. N.L.R. 209 where it was held that, it is well settled law, and the practice in all our courts that where an action has not been properly constituted, whether as regards joinder of the causes of action or as to parties, it has always been procedurally beneficial and prudent to raise objection to the defect in the action before or at the hearing of the action. In essence, persons alleging misjoinder must act timeously. See Anankoya V Olukoya (1996) NWLR (Pt.440) 1.

I wish to observe that this suit was filed on 13/5/2016 and the ist and 2nd Defendants having filed their preliminary objection on 12/7/2018 cannot be said to have complained about the allegation of misjoinder timeously.
I wish to point out that there are103 Claimants in this suit and I believe filing of separate actions will defeat the essence joinder of Parties or causes of action which are designed to prevent multiplicity of actions and prevent delay and thus save the parties unnecessary cost. See Adediran V Interland Transport Ltd.,(1991) NWLR (Pt.214) 155.
Contrary to the position of the objectors, order 13 rule 14(1) of the rules of this court 2017 says “No proceedings shall be defeated by misjoinder or non-joinder of Parties, and a judge may deal with the matter In controversy so far as regards the right and interest of the parties actually before the court.”
In the light of the above, I find against the contention of the objectors that this Court lacks the requisite jurisdiction to entertain this matter on ground of misjoinder. I resolve the issue formulated in the preliminary objection against the objectors and same is consequently overruled.

SUBSTANTIVE CASE

Having said that, let me now come to the substantive matter. The Claimants in support of their originating summons filed a 19 paragraph affidavit deposed to by the ist Claimant and a written address.

It is the averment of the Claimants that the 3rd Defendant is a tertiary institution set up by law in 1980 and It is solely owned, funded and established by the Rivers State Government. It was also averred by the Claimants that they are members of Staff of the 3rd Defendant having been employed with the approval of the Governing Council of the 3rd Defendant. Copies of the appointment and confirmation letters were attached to the affidavit collectively as Exhibits “A” and “B” respectively.

The Claimants also averred that as Senior staff of the 3rd Defendants, they are teachers in the 3rd Defendant’s Staff School and International Secondary School.
It was also deposed in the Claimants’ affidavit that the regulations governing conditions of service of the Claimants were passed by the 3rd Defendant governing council and a copy of same was attached to the affidavit as Exhibit “C”.
It was also the deposition of the Claimants that they participated in various personal Verification exercises carried out by the Rivers State Government where they were issued with Rivers State Government of Nigeria staff Identification cards and copies of same were attached to the affidavit and collectively marked as Exhibit “D”. Claimants also averred that their salaries were paid by the Government of Rivers State through the 3rd Defendant until sometimes on or about 18/2/2016 when the ist Defendant directed the stoppage of the payment of Claimants’ salaries with effect from the end of February, 2016. Photocopy of the Newspaper publication carrying the said directive was attached to the Claimants’ affidavit in support as Exhibit “E”. That Claimants wrote a letter to the NLC Rivers State Council for its mediation but to no avail. Copies of their letter and the response of the NLC were attached as Exhibits “F” and “F1” respectively. Claimants further averred that their solicitors wrote a letter to the ist Defendant and copied the 3rd Defendant among others demanding the payment of their salaries and a copy of the letter was attached as Exhibit “G”. Claimants finally averred that as law abiding citizens, they were still going to work to discharge their respective duties up to the time of filing this suit and they would continue to do so notwithstanding the non payment of their salaries.

In support of the Claimants’ originating summons is a written address wherein the Counsel raised the same issues as earlier stated in the originating summons.
Learned Counsel for the Claimants in arguing issues one and two together reproduced the provisions of sections 4(1) (d), (j),(2), 6(1),(2), 17(1-7) of the University of Science and Technology Law, Cap.133, Laws of Rivers State of Nigeria, 1999 and sections 2.1, 2.5(a) (¡),(¡¡),(¡¡¡), 2.14 and Appendix one of the Regulations governing the conditions of service of Senior staff of Rivers State University of Science and Technology, 2013.

Counsel submitted that the Claimants have established by Exhibit “A”, that they are employees of the 3rd Defendant pursuant to the provisions of sections 4(2) and 6(1) and (2) of the University of Science and Technology Law and subject to the terms and conditions of service and regulations governing the Senior staff of the 3rd Defendant. Counsel referred to exhibit “B” and submitted that Claimants’ appointments were confirmed.

Counsel also submitted that Exhibit “C” has set out the procedure for the appointment of members of Staff of the 3rd Defendant, the tenure of appointment of members of Staff and the procedure for the removal/suspension of academic, administrative and professional staff of the 3rd Defendant.

It is the submission of Counsel for the Claimants that just as it is the prerogative of the Governing Council of the 3rd Defendant to employ members of Staff of the 3rd Defendant, it is equally the exclusive preserve of the said Governing Council to sanction the removal of any member of Staff of the 3rd Defendant on grounds of misconduct or inability to perform the functions of his office or employment.
It was submitted on behalf of the Claimants that there are 3 categories of employment namely;

1- a pure master and servant relationship under the common law,

2- Employment held at the pleasure of the employer,

3- Employment Protected by statute.Counsel cited the cases of Iderima V R.S.C.S. (2005) NWLR (Pt.951), 378, Udo

C.S.N.C. (2001) NWLR (Pts.732), 116.

Counsel submitted that since the Claimants’ employments are governed by statute and the regulations made pursuant to the said statute, then their employments are protected by statute and are invested with statutory flavor which is higher than the ordinary master and servant relationship. It is also the contention of Counsel that where an employment has been confirmed, such employment cannot be treated with levity except for misconduct or other stipulated reasons. He cited the cases of Ogieva V. Igbinedeon (2004) NWLR (pt.894), 467, Univ. of Calabar V. Inyang (1993) NWLR (pt.291), 100, P.HC.N. V. Offoelo (2013) NWLR (Pt.1344), 380.
On the 3rd issue, Counsel argued that it is beyond dispute that the 1st Defendant as the Visitor of the 3rd Defendant has enormous powers under sections 16 and 17 of the said University law to give directives to the Governing Council of the 3rd Defendant but that does not invest the 1st Defendant with the power to order the stoppage of the payment of the Claimants’ salaries.

It was further argued by the Claimants’ Counsel that the ist Defendant lacks the legal standing to give any directive stopping the payment of the salaries of the Claimants or interfering with their conditions of service. That the power of appointment,discipline and removal of any member staff of the 3rd Defendant rests squarely with the Governing Council and not the 1st Defendant. Counsel referred to the case of Haruna V. University of Agriculture Makurdi (2005) NWLR (pt.912), 233.
Counsel urged the Court to find that the directive of the 1st Defendant, stopping the payment of the salaries of the Claimants is ultra vires, void and of no effect whatsoever and urged the Court to resolve the issues raised in favour of the Claimants and grant all their reliefs.

In opposition to the originating summons, the 1st and 2nd Defendants filed a 6 paragraph counter affidavit.

They averred that the 3rd Defendant is not solely funded by the Rivers State Government and it generates its funds and manages same for its use through it’s Governing Council as stated under section 6 of the 3rd Defendant’s law,1980. It was also averred that there is no privity of contract between the Claimants and the ist and 2nd Defendants. It was the averment of the ist and 2nd Defendants that the Claimants are not their employees and they did not participate in the ongoing Rivers State Government staff verification exercise. That all Government staff that underwent the Government verification exercise were given a computerised identification card with the authorised signature of the Head of service and that Exhibit D is not a product of the Government of Rivers State staff verification exercise. That the verification exercise was done to find out persons who are not Government staff, sanitize all sectors in the state, maitain prudence and accountability in such sector. It was the averment of the ist and 2nd Defendants that the Claimants are only employees of the 3rd Defendant and their salaries are paid by the 3rd Defendant. It was also their deposition that the ist Defendant did not direct the stoppage of the payment of the salaries of the Claimants but only announced the withdrawal of Government’s financial support to the 3rd Defendant as it affects payment of it’s employees’ salaries. The 1st and 2nd Defendants stated that though the Government had in the past supported the 3rd Defendant in the payment of it’s employees’ salaries but that does not create a contractual relationship between her and the Claimants.

In the ist and 2nd Defendants’ written address, two issues for determination were raised namely;

1- “Whether this Hon.Court has jurisdiction to entertain the suit against the ist and 2nd Defendants when they are not necessary parties to the suit, there is no privity of contract between the Claimants and the ist and 2nd Defendants and the Claimants’ suit does not disclose any cause of action against them?”

2- ” Whether the Claimants have proved that they are entitled to the reliefs sought against the ist and 2nd Defendants?”

In arguing the ist issue, Counsel for the ist and 2nd Defendants submitted that jurisdiction is the life wire of all adjudication and where a court has no jurisdiction, the proceeding no matter how well conducted becomes a nullity. Counsel cited the case of Madukolu V. Nkemdili (1962) 2 SCNLR 39
It is also the submission of Counsel that the ist and 2nd Defendants are not necessary parties in this suit and their presence is a misjoinder. Counsel referred to the case of Mbanefo V. Molokwu(2014) NWLR (pt.1403), 377.
It was argued on behalf of the ist and 2nd Defendants that the Claimants clearly stated that the 3rd Defendant is their employer but yet they sued the ist Defendant who is not their employer on the issue of nonpayment of salaries.
Counsel also contended that the issue of nonpayment of salaries can be determined with the 3rd Defendant alone. He relied on the unreported case of this court in suit No. NICN/PHC/65/2013, Chukwuma A.J.Chinwo V. Rivers State University of Science & Technology delivered on 4/11/2014 by Hon. Justice Anuwe.

Counsel also contended that the facts of the above cited case are the same with the facts of the case on hand.

Counsel argued that the Claimants’ case discloses no reasonable cause of action and according to counsel the announcement of the ist Defendant of the stoppage of the salaries of the Claimants did not breach the rights of the Claimants that will give rise to any form of cause of action. Counsel relied on the case of Mulima V Usman(2014) NWLR (pt.1432), 167.

Counsel contended that there is no privity of contract between the Claimants and the ist and 2nd Defendants.

On their argument on issue No. 2, Counsel contended that declarations are not granted as a matter of course but upon credible evidence and for the Claimants to succeed in the reliefs sought against the ist and 2nd Defendants they must prove that they are the employees of the ist Defendant or Rivers State Government.
Counsel finally urged the Court to dismiss the Claimants’ claim because they have not made out a case against them to warrant the grant of the reliefs sought.

In its opposition also to the originating summons, the 3rd Defendant filed a 4 paragraph counter affidavit and a written address. 3rd Defendant averred that it is a state owned Tertiary institution and it is not solely funded by the Rivers State Government but derives its funds from its internally generated revenues and other sources. According to the 3rd Defendant, Claimants Nos. 10, 17, 22, 25 and 50 are not members of its Staff or employed with the approval of its governing council as it does not have the record of their employment. 3rd Defendant denied paragraphs 7, 8, 9, 11, 12, 13, 14, 16, 17, 18 and 19 of the Claimants’ affidavit and further averred that at all material times, the salaries of the Claimants except those mentioned above were paid by the Rivers State Government through the 3rd Defendant until February,2016 when the ist Defendant announced that the state Government would no longer pay salaries of primary and secondary teachers of demonstration schools of the 3rd Defendant and other designated tertiary institutions where pupils and students pay school fees.

3rd Defendant raised 3 issues for determination in its written address which are as follows:-

“Whether having regard to the state of the affidavit evidence of the parties, this case is one that is maintainable by originating summons?”
“Whether all the Claimants have proved that they are senior staff of the 3rd Defendant?”
3. “Assuming without conceding that issues 1 and 2 are answered in the affirmative, whether the Claimants are entitled to the reliefs in the originating summons?”

In arguing issue 1 and 2 together, 3rd Defendant contended that in view of its deposition that there is a dispute as to some of the Claimants being employees of the 3rd Defendant or their employment still subsisting, the issues raised by the Claimants cannot be resolved by way of originating summons. On this, 3rd Defendant referred the court to order 5A of the rules of this court of 2007 and the cases of Amasike V. Reg. Gen. CAC (2010) LPELR-456 (SC) and Keyamo V. House of Assembly Lagos State (2002) LPELR-1689 (SC).

On its 3rd issue, 3rd Defendant referred the court to sections 11.2(f) (1), 11.2(g) (1) and 11.2(g) (2) of the Regulations Governing conditions of service of it’s senior staff and argued that there are circumstances in which it will have power and right to terminate or dismiss its employee before the attainment of retirement age provided the conditions for such termination or dismissal are complied with.. 3rd Defendant referred the court to the cases of Chukwuh V. S.P.D.S. (1993) LPELR-864 (SC) and Fakuade V. O.A.U.T.H. (1993) NWLR (Pt.291) 47.

3rd Defendant contended that Claimants’ reliefs Nos. 2, 5 and 6 in their originating summons cannot be granted because they will impugn on the right and power of the 3rd Defendant to terminate or dismiss its employees in appropriate cases. 3rd Defendant finally contended that the court cannot rewrite contract between the parties and referred the court to the cases of UBN Ltd V. Sax (Nig) Ltd (1994) LPELR-3399 (SC),

Babatunde V. Bank of the North (2011) LPELR-8249 (SC)
Owoniboys Technical Services Ltd V. UBN Ltd (2003) NWLR (Pt.844) 545

In their reply on point of law to the 1st and 2nd Defendants, Claimants submitted that the ist and 2nd Defendants are not only necessary parties to be joined in this suit but desirable parties as well in the light of the reliefs claimed and the depositions contained in their affidavit in support of the originating summons. They also submitted that the issue of nonpayment of their salaries cannot be effectually and completely determined without the presence of the ist and 2nd Defendants, being that it was the 1st Defendant that ordered the stoppage of their salaries. In deciding on misjoinder of Parties, they referred the Court to order 13 rule 14(1) of the rules of this Hon. Court, 2017 and the following cases;

Green V Green (1987) NWLR (Pt. 61),480

Olawole V Jimoh (2013) NWLR (Pt. 1371),362

L.S.B.P.C. V Purification Tech (Nig.) Ltd. (2013) NWLR (Pt.1352), 82
It was their submission that the case of Chinwo V Rivers State University of Science & Technology cited by the ist and 2nd Defendants is inapplicable in this matter.

Counsel for the Claimants argued that Claimants are public servants under the employment of the ist Defendant by virtue of Exhibit “D” and section 318(1) of the 1999 constitution as amended. Counsel also cited the following cases; Military Governor Lagos State V Adeyiga(2012) NWLR (Pt.1293) 337 Governor of Kwara State V Nicon Plc (2017) NWLR (Pt.890) 674 Jolasun V Bamgboye (2010) NWLR (Pt.1225) 285 Bello V Governor of Gombe State (2016) NWLR (Pt.1514) 288

In response to the issue of cause of action, Claimants’ counsel argued that Claimants’ case discloses a reasonable cause of action against the ist and 2nd Defendants. He referred to Exhibit “E” and the case of L.S.B.P.C. V. Purification Tech(Supra).

In reply to the 3rd Defendant, Claimants also filed a further affidavit of 6 paragraphs in support of their originating summons and a reply on point of law. They averred in their further affidavit that all the Claimants are members of Staff of the 3rd Defendant and in particular Claimant No.22 was employed by the Governing Council of the 3rd Defendant on transfer from the Rivers State Senior Secondary Schools Board. Copies of his appointments, confirmation and assumption of duty letters were attached as Exhibit H. That Claimants Nos. 17, 25, 10 and 50 were employed by the 3rd Defendant in their various previous names but had to change their names after they got married and the 3rd Defendant was informed about the name change. Their employments papers and other relevant documents were attached as Exhibits I, J, K, and L.
In their reply on point of law, Claimants submitted that upon a calm scrutiny and consideration of the Exhibits attached to the supporting affidavit and the further affidavit, there is no ambiguity that the Claimants are indeed the employees of the 3rd Defendant and that there is no dispute real or imaginary that will call for ordering of pleadings or oral evidence to be led. Claimants in support of that cited the following cases;

Nagogo V. CPC (2012) NWLR (Pt.1321)
L.S.P.D.C. V. Adold (2005) NWLR (Pt.910), 603
Habib (Nig) Bank Ltd V. Ochete (2001) NWLR (Pt.699) 114
Etim V. Obot (2010) NWLR (Pt.1207) 108
Oguebegu V. PDP (2016) NWLR (Pt.1503) 446.

Claimants finally argued that disciplinary measures can only be invoked against the Claimants if there is an act of misconduct by the Claimants and even at that ,the regulations governing the appointment and discipline of the Claimants must be strictly complied with. They referred to the case of CBN V. Igwillo (2007) NWLR (Pt.1054) 393

COURT’S DECISION

I have carefully gone through the originating summons and the affidavit in support filed by the Claimants and the counter affidavit of the Defendants as well as the Claimants’ further affidavit and reply on point of law and their respective written addresses and issues raised therein and wish to resolve all the issues for determination which can conveniently be disposed of under one issue as follows:-

Whether the Claimants are entitled to the grant of the reliefs sought?

In considering thIs, I think it is apt to refer to Exhibit “E” which contains the statement of the ist Defendant that triggered off the institution of this action. Exhibit “E” states as follows;-

“……..
The governor also announced that the state government will no longer pay the salaries of primary and secondary school teachers of demonstration schools of RSUST and other tertiary institutions where pupils and students pay school fees.
…………”
It is upon the issuance of the above statement that the 3rd Defendant stopped paying the Claimants their salaries which is the life-line for their employments.
Upon Claimants’ entreaties and demand to the Defendants for the payment of their salaries which was to no avail, they contended that the statement of the ist Defendant which purported to terminate their appointments was unlawful.
It is the law that in order to establish that the termination of the Claimants’ appointments was unlawful, there is the onus on the Claimants and to discharge this onus, they must prove that;

(a) They are employees of the Defendants

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

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

See Oloruntoba-Oju V. Abdul-Raheem (2009) NWLR (Pt 1157) 83, SC
In their bid to prove the above, the Claimants attached the following documents in their affidavit in support of their originating summons.

(1) Appointment letters and or regularisation of appointment letters as Exhibit “A”

(2) Confirmation letters as Exhibit “B”

(3) Regulations Governing Staff Conditions of service of Senior staff of Rivers State University of Science and Technology, 2013 as Exhibit “C”.

It is evident from the facts averred in paragraphs 6,7,8 and 9 of the Claimants’s affidavit in support of their originating summons and Exhibits “A” and “B” attached thereto that the Claimants have established the burden of proving that they are the employees of the 3rd Defendant. They have also placed before the court in paragraph 10 of the said affidavit and in Exhibit “C”, the Regulations Governing the conditions of service of their employment.

In respect of the other requirements stipulated in the case of Oluruntoba-Oju (supra) of who can appoint and who can remove and the circumstances that the appointments can be determined, section 17 of the Rivers State University of Science and Technology Law and Sections 2.1, 2.5, 2.9, 2.15, 2.16, 2.17, 11.1 and 11.2 of the Regulations Governing conditions of service make provision for that.

Although, the 3rd Defendant contended that it does not not have the record of 5 among the Claimants as such they are not its employees but the Claimants have proved in their further affidavit and in Exhibits “H, I, J, K and L” that those 5 Claimants are also the employees of the 3rd Defendant. While Claimant No.22 established that he was employed by the Governing Council of the 3rd Defendant on transfer from the Rivers State Senior Secondary Schools Board and exhibited his appointments, confirmation and assumption of duty letters as Exhibit “H”, Claimants Nos. 17, 25, 10 and 50 also established that they were employed by the 3rd Defendant in their various previous names but had to change their names after they got married and the 3rd Defendant was informed about the name change.They exhibited their employments papers and other relevant documents as Exhibits “I, J, K, and L”. And in the absence of any documentary evidence or concrete facts from the side of the 3rd Defendant dislodging the documentary evidence presented by the Claimants, I am of the opinion that the Claimants including those 5 have proved the burden placed on them by law that they are employees of the 3rd Defendant.

The Claimants also referred to the University of Science and Technology Law and claimed that their employments enjoy statutory flavor by virtue of Exhibits “A”, “B”, and “C”and the law referred to.

In determining whether the Claimants’ employment is protected by statute, I need to refer to the law establishing the 3rd Defendant and the Regulations Governing conditions of service of it’s Staff.

Section 1 of the Rivers State University of Science and Technology Law established the 3rd Defendant while section 17 provides as follows:

Removal and Suspension of academic, administrative and professional staff.

(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic or administrative or professional staff of the University, other than the Vice-Chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the Council shall-
(a) give notice of the reasons to the person in question;
(b) afford him an opportunity of making representations in person on the matter to the Council; and

(b) if he or any three members of the Council so request within the period of one month beginning with the date of the notice, make arrangements-

(i) for a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council; or

(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter,
and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.

(2) The Vice-Chancellor may, in a case of misconduct by a member of the staff which in the opinion of the Vice-Chancellor is prejudicial to the interest of the University, suspend such member and any such suspension shall forthwith be reported to the Council.

(3) For good cause, any member of staff may be suspended from his duties or his appointment may be terminated by the Council; and for the purposes of this subsection “good cause” means-

(a) Conviction for any offence which the Council considers to be such as to render the person concerned unfit for the discharge of the functions of his office; or

(b) any physical or mental incapacity which the Council, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office; or

(c) conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to continue to hold his office; or

(d) Conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service.

(4) Any person suspended pursuant to subsection (2) or (3) of this section shall be on half pay and the Council shall before the expiration of a period of three months after the date of such suspension consider the case against that person and come to a decision as to-

(a) whether to continue such person’s suspension and if so, on what terms (including the proportion of his emoluments to be paid to him);

(b) Whether to reinstate such person, in which case the Council shall restore his full emoluments to him with effect from the date of suspension;

(c) whether to terminate the appointment of the person concerned, in which case such a person shall not be entitled to the proportion of his emoluments withheld during the period of suspension; or

(d) Whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld) as the Council may determine,

(5) In any case where the Council, pursuant to this section, decides to continue a person’s suspension or decides to take further disciplinary action against a person, the Council shall before the expiration of a period of three months from such decision come to a final determination in respect of the case concerning any such person.

(6) It shall be the duty of the person by whom an instrument of removal is signed in pursuance of subsection (1) of this section, to use his best endeavours to cause a copy of the instrument to be served as soon as reasonably practicable on the person to whom it relates.

(7) Nothing in the foregoing provisions of this section shall prevent the Council from making regulations for the discipline of other categories of staff and workers

of the University as may be prescribed.

Sections 2.9, 2.15, and 2.16, of the Regulations Governing Senior Staff Conditions of services of the 3rd Defendant provide as follows:-

Section 2.9 RETIREMENTS

“An employee may, however exercise the option to retire with the University’s consent provided such employee has served at least 10 years . Alternatively, the University on the advice of the Medical Board, May require an employee to retire on grounds of prolonged ill-health or proven continued drop in efficiency after at least three conservative warnings for improvement”

Section 2.15 DISQUALIFICATION FOR APPOINTMENT

“a) No person shall be eligible for appointment to a post in the University who has:
¡) served a prison term;

¡¡) been dismissed or has had his appointment terminated on grounds of misconduct or inefficiency from any post in the University or other public service;
¡¡¡) knowingly made false statements in any way, particularly when applying for a post.
b) where an employee is found to have concealed such information from the University, he shall be liable to summary dismissal.

c) An employee whose appointment in the University has been terminated on grounds of misconduct shall not be re-appointed to the service of the University.”
Section 2.16 EXTERNAL APPOINTMENT

“a) unless otherwise stated in the instrument of appointment, all appointments on full time and no member of Staff shall engage in gainful employment or work with or for any person(s) and without the written permission of the Vice-Chancellor.
a) A member of Staff who violates the above provisions shall be liable to termination of his appointment.

c) A charge may be made for the services rendered and or for the use of university equipment or materials for work undertaken for an outside body”

Sections 11.1 and 11.2 provide for disciplinary matters, disciplinary measures which include warning, reprimand, suspension, interdiction, deferment of increment of salary, termination, dismissal and reduction in Rank.

It appears from the above that the 3rd Defendant is a creation of statute and the regulations governing conditions of service of the Claimants were derived from the said statute. Both the provisions of the University of Science and Technology Law and the regulations governing staff conditions of service have set out the procedure to be followed before a staff of the 3rd Defendant can be removed from office. The procedure relates to disciplinary action against the staff and it is a condition in his contract of employment.

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

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

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

It must however be stressed that the fact that an employer is a statutory body does not elevate all its employees with status of employees with statutory protection or that the Conditions of service of its employees must be of a special character ruling out the relationship of mere master and servant relationship.The court must confine itself to the terms of contract of service between the parties which provide for their rights and obligations. In this case Exhibits “A” and “C” which are letters of appointments and regulations governing conditions of service must also be taken into account. See Fakuade V. O.A.U.T.H.C (1993) NWLR (Pt. 291) 47 SC.
It is also imperative to state that the question whether a contract of employment is governed by statute or not depends on the construction of the contract itself or of the relevant statute. See Oloruntoba-Oju V. Abdul-Raheem (supra).

In view of the provisions of the Rivers State University of Science and Technology Law, it is obvious that the Claimants’ employments are protected by statute and In such case, the Claimants cannot be validly terminated or removed from their employments unless the provisions provided in the statute or regulations for terminating or removing them are complied with and strictly followed. See ADENIYI vs. GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (Pt. 300) 426;

It is also clear from the facts averred by the parties and the provisions of the Rivers State University of Science and Technology Law and the Regulations Governing Staff Conditions of service of the Claimants that the Claimants were not terminated nor dismissed from the service of the 3rd Defendant in accordance with the said law or regulations. The 3rd Defendant said in paragraph 3(¡) of its counter affidavit as follows “……..The true position is that at all material times, the salaries of only those Claimants who are staff of the 3rd Defendant were paid by the Rivers State Government through the 3rd Defendant. However with effect from end of February, 2016, the 1st Defendant announced that the state Government will no longer pay salaries of primary and secondary school teachers of demonstration schools of the 3rd Defendant and other designated tertiary institutions were pupils and students pay school fees.”

The statement of the 1st Defendant in Exhibit “E” and paragraph 3(¡) of the 3rd Defendant’s counter affidavit purporting to terminate the Claimants’ appointments is, I believe, in clear contravention and not in compliance with the provisions of the 3rd Defendant’s law and the regulations governing its staff conditions of service.

On the contention of the ist and 2nd Defendants that they are not necessary parties and there is no privity of contract and cause of against them, I wish to agree with the submission of the learned counsel for the Claimants that it was the ist Defendant’s statement in Exhibit E that triggered the institution of this suit thus making them necessary parties and a cause of action established against them, because the reliefs sought by the Claimants cannot effectually and completely be determined without the presence of the ist and 2nd Defendants. I find against the above contention and hold that the ist and 2nd Defendants are necessary parties and there is a cause of action against them. On the above contention also, ist and 2nd Defendants made a heavy weather of the unreported case of Chukuma A.J. Chinwo V. Rivers State University of Science and Technology (supra) and contended that the case is on all fours with the case on hand. In Chinwo’s case (supra), the Claimants sued the Defendant and claimed for a declaration among others that the action of the Defendant in withholding the Claimant’s salaries was unlawful and the court held that the Claimant would have a cause of action against the Defendant for nonpayment of salary and not Rivers State Government. I have taken a critical look at the facts of the case of Chinwo(supra) and understood that it was the Rivers State University of Science and Technology (the Defendant) in that case that refused to pay the Claimant his salary on the ground of alleged strike, not Rivers State Government but in our case on hand it was the ist Defendant (Rivers State Government) who announced the stoppage of the payment of the Claimants’ salaries and I think by this statement in Exhibit E, the ist Defendant should be a party and I so hold. It must be borne in mind always that each case must be considered on its own particular or peculiar facts or circumstances. No one case is identical with the other or another. They may be similar but never identical. So it is with the instant case. It is settled that a decision is only an authority for what it decides and nothing more.

On the contention of the 3rd Defendant that there is a dispute as to some of the Claimants being its employees, lam of the opinion that the further affidavit filed by the Claimants water down the alleged dispute or controversy. I have earlier on given a ruling in this matter on the 28/1/2018 that this case was properly commenced by way of originating summons and there is nothing that has happened yet to warrant changing my position. On that note, I find against the said contention and hold that the case of the Claimants was properly commenced by way of originating summons.

On the whole, I hereby grant some of the reliefs sought by the Claimants. For the avoidance of doubt, it is hereby ordered as follows:

That the Claimants’ respective employments are valid and subsisting because they have statutory protection.
That the 1st Defendant’s directive stopping the payment of the Claimants’ salaries is unlawful, null and void.

¡¡¡- The Defendants are restrained whether by themselves or through their agents, privies or proxies from interfering with the employments of the Claimants in a way that is inconsistent with the provisions of the Rivers State University of Science and Technology Law and the Regulations Governing conditions of service made there under or any law in force.

¡v- That the Claimants have not strictly proved that they are entitled to the payment of their respective salaries, allowances and emoluments because they are special damages that need to be strictly pleaded and proved. They cannot be presumed to flow from the nature of the breach. See Institute of Health ABU Hospital Management Board V. Anyib (2011) LPELR-1517(SC) and Obasuyi V. Business Ventures Ltd (2000) NWLR (Pt.658) 668