Eugene Irefa Abels -VS- Office of the Special Adviser to the President on

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA DIVISION

HOLDEN AT ABUJA.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated this 30^th day of April, 2018 SUIT NO: NICN/ABJ/03/2016

BETWEEN:

EUGENE IREFA ABELS………………………………………………..…………………………CLAIMANT

AND

OFFICE OF THE SPECIAL ADVISER TO THE

PRESIDENT ON NIGERIA DELTA

2.THE SPECIAL ADVISERTO THE

PRESIDENT/CORDINATOR PRESIDENTIAL

AMNESTY PROGRAMME………………………………………….………………………….DEFENDANTS

Representations:

Egang Agabi with Chike Obi, Mike Adienye and Ikenna Udeaja for the Claimant

Pere Ikuetemi for the Defendants

Judgment

This suit was originally commenced via a complaint filed on the 5^th of January, 2016 and the suit was partly heard by another Judge before being transferred to this court in October, 2017. The Complaint is supported by a statement of fact, witness statement on oath, list of witnesses and copies of documents to be relied upon. The Claimant is though the Complaint claiming the following:

A DECLARATION that the Claimants employment as non-pensionable staff of the 1^st and 2^nd Defendant is still subsisting and as such is entitled to all the benefits accruable to those class of employees, as conveyed through his letter of appointment.

A DECLARATION that the Claimant is entitled to the payment of the sum of monthly payment of N550, 000.00 (Five Hundred and fifty Thousand Naira and the in monthly Mission Sustenance Allowance (MSA) of N250, 000.00 (Two Hundred and Fifty Thousand Nigeria only from the month of May 2015 when it was stopped until judgment and beyond.

AN ORDER of this court directing the Defendants to pay all the benefits accruable to the Claimant immediately which is put at N550,000,00 (Five Hundred and Fifty Thousand) Naira monthly salary and Mission Sustenance Allowance (MSA) of N250, 000.00(Two Hundred and Fifty Thousand Naira only from the month of May 2015 when it was stopped until judgment and beyond making a total of N800,000.00 (Eight Hundred Thousand Naira) monthly from the month of May, 2015 up to the date of judgment.

AN ORDER of this court directing the Defendants to pay interest at 10% on the Sum total of N800, 000.00(Eight Hundred Thousand Naira) monthly, from May, 2015 until judgment sum is liquidated.

General damages in the sum of N5, 000,000.00(Five Million) Naira for breach of contract of employment.

The cost of this suit which is put at N2, 000,000.00(Two Million) Naira

In reaction to the claims, the Defendants entered conditional appearance by filing a notice of preliminary objection on the 10^th of February, 2016. The Defendants also filed an amended statement of defence on the 05^th of December, 2017 and accompanied same with a witness statement on oath and copies of documents to be relied upon.

The Claimant opened his case on the 9^th of January, 2018 calling only one witness who was the Claimant himself. The Claimant adopted his witness statement on oath filed on 5^th of January, 2016 and same was marked as C1 . The Claimant tendered 13 documents which were admitted in evidence and marked as Exhibits C2 – C14. Exhibit C14 was admitted under protest.

Arising from the statement of fact and witness statement on oath, the case of the Claimant is that Federal Government of Nigeria on June 25^th 2009, offered amnesty to ex agitators in the Niger Delta, with implementation commencing from April, 2010. The Defendants, in order to successfully drive the program, went all out in search of capable hands with immense experience and in the process appointed the Claimant. A letter of appointment dated 1^stNovember, 2012 was offered to the Claimant.

The Claimant stated that in the course of his employment, he distinguished himself and was therefore internally redeployed from point to point in line with the condition of the employment. He was placed on monthly salary of N500, 000.00 (Five Hundred Thousand) Naira only. From this same salary, the 1^st and 2^nd Defendants deduct taxes like the Pay as You Earn (PAYE) and Value Added Tax (VAT) and Pension deductions

On the 7^th of January, 2013, he was seconded to the Education Department of the 1^st Defendant, as Desk Head Education otherwise called Principal Manager Education with responsibility to oversee the education sector of the Re-integration program with salary of N550,000,00( Five Hundred and Fifty Thousand) Naira.

On the 2^nd of May, 2014, elevated to the status of Special Assistant on Banking and Financial matters to the 2^ndDefendant. By this appointment it meant added responsibility and he also became a management staff. As a result of the foregoing, like all management staff, he became entitled to Mission Sustenance Allowance (MSA), this meant additional earning of N250, 000.00 (Two Hundred and Fifty Thousand) Naira.

In April 2015, he was paid his Mission Sustenance Allowance of N250, 000.00 (Two Hundred and Fifty Thousand) Naira without his salary.

Nevertheless, he continued work till October but both the allowance and the monthly salary were stopped by the Defendants, The Claimant exhausted internal mechanism at resolving the issue and by a letter dated the 17^th of November, 2015, the Defendants foreclosed any hope of the Claimant getting his salary paid.

During cross examination, the Claimant said he was not employed as a personal staff to Hon. Kingsley Kuku. He also stated that his employment is not a permanent one neither was he employed by Federal civil Service Commission but is employed by Office of Special Adviser to the President on Niger Delta. He claimed he knows nothing about Kerr Global and would be surprised if he is shown document revealing that he is a promoter in the company. He also said he holds two caps of appointment. He also stated that he received payments from Kerr Global but did not complain because the narration of his salary/allowances has not been consistent.

The Defendants on their part opened their case on the 26^th of January, 2018 by calling one witness who adopted his witness statement on oath filed on the 5^th of December, 2017 and marked as D1. The Defendants tendered 10 documents marked as Exhibits D2 – D11. Out of the said documents, exhibits D6,D7,D8,D9,D10 and D11 were admitted under protest.

Arising from the amended statement of defence and the witness statement on oath, the case of the Defendants is that the Claimant is not an employee of the 1^stand 2^nddefendants, as defendants are not legal personalities capable of employing the Claimant. The Claimant was at best a personal staff/employee of Hon. Kingsley Kuku, the former Special Adviser to the President on Niger Delta and the said employment was at the discretion of Hon. Kingsley Kuku as clearly stated in paragraphs 2 and 4 of the respective letters of engagement attached to Claimant’s processes. Although, Hon. Kingsley Kuku being a political appointee is entitled to personal aides and was therefore engaged by Hon. Kingsley Kuku based on their personal relationship as friends.

Claimant added that the former Special Adviser to the President on Niger Delta, Hon. Kingsley Kuku 1^st November 2012, engaged the Claimant as Desk Head Support Services, for a period of 6 months. The said appointment could be renewed subject to the approval of Hon. Kingsley Kuku and also the appointment was solely at his discretion.

Soon afterwards, Federal Auditors from the Office of the Auditor General of the Federation queried OSAPND for such appointments/engagements, as they were not from the Federal Civil Service Commission and OSAPND was not legally empowered to employ any person and pay such personnel from the government purse.

In reaction to the contention of the Federal auditors, Kerr Global Wave Ltd was awarded the consultancy contract to handle the reintegration component of the PAP in October 2013.

The Claimant was among the Promoters of Kerr Global Wave Ltd as he was listed as one of their key staff while they were bidding for the consultancy contract. which it eventually got.

Since then, Kerr Global Wave Ltd having won the said contract, was being paid monthly for the reintegration component of the PAP. She in turn paid her employees that were seconded to the PAP, inclusive of Claimant, till her contract was terminated on 31^stAugust 2015.

Upon Ker Global Wave Ltd being awarded the reintegration consultancy contract in October 2013, Claimant and other personnel earlier given 6 months casual/temporary appointments by Hon. Kingsley Kuku (the former Special Adviser to the President on Niger Delta) were absorbed as staff of Ker Global Wave Ltd and they were no longer being paid salaries by OSAPND. They became consultant staff of Ker Global Wave Ltd posted/seconded to the OSAPND/PAP to offer reintegration support services as contracted to their employer (Ker Global Wave Ltd).

The Special Adviser to the President on Niger Delta, his Personal/Special Assistants and Civil Servants posted to the OSAPND were being paid MSA to the exclusion of the consultant staff of Ker Global Wave Ltd. Therefore, following the Claimant’s appointment in May 2014 by Hon. Kingsley Kuku as one of his Special Assistants (on Data Management, Banking and Financial Matter), he was entitled to be paid only MSA till 28^th May, 2015 when he was no longer Special Assistant to Hon. Kingsley Kuku, owing to change of government.

Upon the change of government on 29^th May 2015, there was no Special Adviser to the President on Niger Delta appointed for the PAP until sometime in July 2015. Consequent upon which payments to Ker Global Wave Ltd for the reintegration support services rendered for the months of May, June, July and August 2015 was delayed.

Upon the appointment of Brig. Gen Paul Boroh (Rtd) as the new Special Adviser to the President on Niger Delta, Ker Global Wave Ltd requested for payment of her monthly consultancy fees for the months of May. June. July and August 2015.

However, owing to investigation activities being conducted on Ker Global Wave Ltd consequent upon which payments could not be made directly to her, Ker Global Wave Ltd mandated OSAPND to pay its employees their salary directly, in order to minimize the hardship on her staff, Pursuant to the above, Ker Global Wave Ltd forwarded a letter of mandate dated 4^th September 2015, listing out all her staff and the amounts to be paid to them as salary. Claimant is number 9 on the said list.

In line with Ker Global Wave Ltd. mandate letter to OSAPND above, OSAPND further requested a proof from Ker Global Wave Ltd bankers, to show the exact amount that was last paid as salary to her staff. In that regard, Ker Global Wave Ltd gave OSAPND a letter from her bankers (UBA Plc), dated 9 September 2015, evidencing payments credited to Ker Global Wave Ltd staff for the month of April 2015. Claimant’s name is number 7 on the said list from UBA Plc.

Claimant was put on notice to produce directly from the Bank a certified true copy of his comprehensive statement of account covering all the period of his engagement especially from 1^st November 2012 to 31^st August 2015 to show clearly who was paying his salary.

Despite the end of the consultancy engagement of Ker Global Wave Ltd on 31^st August 2015, some of the consultants heading the various units in the 1^st Defendant including the Claimant were still around to give account of their stewardship and throw light on issues emanating from time to time pertaining to the various desks they managed. This is in line with their obligation under clause 5 of the contract agreement with Kerr Global Ltd.

To the Defendants, the Claimant do not have any cause of action against the defendants as he was not employed by them and even if the Claimant has any cause of action by virtue of his engagement letters, he should proceed against the former Special Adviser, Hon. Kingsley Kuku who engaged him as his Special Assistant. In any event, Claimant was paid his MSA until Hon. Kingsley Kuku left office, so he is not entitled to any claim in that regard.

Amongst other facts, the Defendant concluded that the case of the claimant is baseless, gold-digging, discloses no reasonable cause of action against the Defendant and should be dismissed with substantial costs.

During cross examination, DW1 stated that he is not aware if the Claimant had served any letter of withdrawal of service. He also maintained that the Claimant was moved from desk to desk and that the Claimant was being paid on the discretion of the SSA. He also stated that Ker Global engaged the Claimant as consultant to render consultancy services at the office of the SSA to the President. He also maintained that it is possible to serve Kerr Global and the Defendant at the same time.

Upon the Defendant closing their case, the matter was adjourned for adoption of final addresses and notice of preliminary objection. I shall treat the preliminary, objection first as it relates to the jurisdiction of this court.

The preliminary objection was filed on the 10^th of February, 2016 wherein the Defendants sought the following reliefs:

That the 1^st and 2^ndDefendants should be struck out of the suit.
An order of the Court striking out the Claimant’s suit for lack of jurisdiction against the defendants.

The ground upon which the objection is brought is that:

The 1^st and 2^nd Defendants are non-juristic persons hence no cause of action can be instituted against them in law.

Arising from the written address in support of the preliminary objection, learned Counsel to the Defendants, Pere Ikuetemi, raised a lone issue for determination to wit:

Whether this Honourable Court has the jurisdiction to entertain this matter taking cognizance of the fact that the Defendants are not juristic persons.

In arguing the lone issue, learned counsel submitted that that this honourable court cannot exercise its jurisdiction against the Defendants, they not being juristic persons in law.

Counsel contended that it is trite that before a court can assume jurisdiction to entertain any matter, the action must have been initiated by due process of law and all the pre-conditions and/or conditions precedent for instituting the action must have been met. He cited the cases of Bewaji v. Obasanjo (2008) 9 N.W.L.R. (Pt. 1093) 540 @ 573 Para A-E and Madukolu v. Nkemdilim (1962) 2 SCNLR 341

Learned Counsel further cited the case of case of Ibrahim & Ors. v. Gaye & Ors. Suit No. CA/J/61/2001; (2002) 13 N.W.L.R. (Pt. 784) 267 at 296 to contend that Jurisdiction is always regarded as a fundamental issue, the life-wire of any litigation and the base on which adjudication rests.

Counsel further submitted that the Defendants are non-juristic persons. That there is no entity referred to as “Office of the Special Adviser to the President on Niger Delta” and “The Special Adviser to the President/Coordinator Presidential Amnesty Programme” in law, it admits of no argument that parties are inevitable and an integral part of adjudication. He added that no court of law can engage in adjudication without proper parties before it to ventilate their grievances. In law, a person must be a recognized juristic personality to qualify as a proper party in any proceedings pending, either as a plaintiff or a defendant, before any court of law for it to exercise its jurisdiction.

Counsel cited the case of Olariede v. Oyebi (1984) 1 SCNLR 390 at 406 to contend that by the Defendants’ non-juristic status, there is no defendant in this suit. Thus, this honourable court is disrobed of the jurisdiction to hear the matter filed against the defendants.

Counsel cited and quoted from the holding of the court ion the case of Usah v G.O.C. Nigeria Ltd. & Ors. (2012) LPELR-7913 Page 16-17 paras A-G, to establish that the case is one of non-juristic status rather than a misnomer and urged this Honourable Court to strike out the suit for lack of jurisdiction and/or in the alternative, strike out the defendants from the suit, the Defendants being non juristic persons in law and thus not capable of suing and being sued.

Counsel then cited the case of Sken Consult v. Ukey (1981) 1 S.C. 6, the apex Court to contend that if the defect of non-compliance complained of went to the competence or jurisdiction of the trial court, then the proceedings therein, would be null and void because where an act is void, it is in law a nullity. He also cited NC.C. v. MTN Nig. Comm. Ltd (2008) 7 NWLR Pt. 1086 Pg 229 and Owners of the M V Arabella v. NAIC (supra).

Counsel in conclusion argued that where the court finds it lacks jurisdiction, the proper order to make is to strike out the suit. he cited section 6 (6) (b) of the 1999 Constitution (as amended) and the cases of Dangote v. Civil Service (2001) NSCQR 328 (SC); WAEC v. Adeyanju (2008) 9 NWLR PT. 1092 P. 270 PP 296 Paras C-D and Obi v. INEC (2007) 11 NWLR Pt. 1046 pg 565 at 629.

In opposition to the preliminary objection, learned Counsel to the Claimant, Egang Agabi filed an 11 paragraphs affidavit deposed to by the Claimant and a written address on the 30^th of October, 2017. Counsel urged the court to deem the content of the affidavit admitted by the Defendant considering the fact that the Defendant has not filed a counter affidavit.

Learned Counsel to the Defendants, Pere, argued in response that the affidavit filed by the Claimant in opposition of their preliminary objection is an abuse of court process because their preliminary objection is on point of law and not facts. That instead of the Claimant to reply on law, he simply reproduced all the facts in his claim through an affidavit.

In this regard, I have considered the process in contention and I must say that considering the grounds upon which the preliminary objection is brought, it is one of law. The court in Manson v. H.E.S. (Nig.) Ltd (2007) ALL FWLR (Pt. 358) 1067 at 1094 Paras.E – G (CA) stated the purpose of a preliminary objection when it held that:

“A preliminary objection seeks to determine a bad process in limine upon grounds of law and thereby saves all the parties involved in engaging in a futile exercise.”

In more instructive terms, the court held in HIS EXCELLENCY DR. CHINWOKE MBADINUJU V. I.C.N. LTD. (2007) 15 NWLR (Pt. 1058) 524 C.A. held that:

“…the law as stated by Hon. Justice Niki Tobi, JSC in A.-G., and Federation v. ANPP (2003) 18 NWLR (Pt. 851) 182 at p. 207. His Lordship said: “Preliminary objection, by its very nature, deals strictly with law and there is no need for a supporting affidavit. In a preliminary objection, the applicant deal with law and the ground is that the court process has not complied with the enabling law or rules of court and therefore should be struck out…” However, if a preliminary objection leaves the exclusive domain of law and flirts with the facts of the case, then the burden rests on the applicant to justify the objection by adducing facts in an affidavit. “PER RHODES-VIVOUR, J.C.A. (P.9, Paras. D-G)

Consequent upon the above authority, it is the finding of this court that the affidavit filed by the Claimant in opposition of the preliminary objection is needless and would not be given any consideration for the purpose of determining this preliminary objection.

Having said that, I shall then turn to the written address in opposition as filed by the Claimant’s counsel. Arising from the said written address, learned Counsel to the Claimant raised a sole issue for determination which is:

whether the Defendants are juristic persons.

In arguing the sole issue, learned counsel contended that a community reading of the offer of appointment to the Claimant shows that a juristic personality is impliedly conferred in the relationship.

He submitted that the 1st Defendant’s office is saddled with the responsibility of Presidential Amnesty Program intended to quell the crisis in the Niger Delta embarked on by the militants, In the course of the exercise of this mandate, they may cause injuries to third parties, then it is implied also that the law could not have intended that injuries be inflicted upon people without remedy.

Learned counsel further argued that the power of a party including the corporate bodies to sue and be sued can therefore be expressly conferred on it by the statute creating it. Also, it is clear that such power can equally be inferred from the statute or enabling statute, hence when as in the instant case under consideration, the question for determination is whether in the absence of express statutory provisions, a body like the 1^st defendant has the status of a legal personality, the court in determining whether to infer such legal personality status of the body must of necessity go through the task of examining meticulously the relevant statutory provisions of the statute which establishes, confers rights and imposes duties on the body. The court should also in doing this bear in mind the relationship of the body to other persons or bodies such that unless legal personality is ascribed to it, an injustice to such other persons or bodies might result. Counsel cited the case of CARLEN NIG. LTD. V. UNIJOS (1994) 1 NWLR (Pt.323) and N.F.C.A V LALOKO (2003) F.W.L.R (Pt.144) 482 at 498 para. C; ABAKALIKI L.G.C. V ABAKALIKI R.M.O (1990) 6 NWLR (PT. 155) 132at 192 Paras. C-D OWNERS OF THE REPUBLIC Dl DENOVA V C.O.P, LAGOS STATE (2003) FWLR (PT.162) 1885 at 1890 -1891 paragraphs B-C, G-A

Learned Counsel added that the case at hand is on all fours with the decided cases highlighted above. That the employment of the Claimant by the 1^stDefendant, as evident in Exhibit 1 shows that it has been conferred with certain functions to perform in relation to third parties that may result in actions in tort or contract, therefore it is taken that it has been conferred with legal persona to sue and be sued.

Counsel cited the case of BROAD BAND V OLAYIWOLA (2005) 1 SCN 164 to submit that The courts have always been enjoined to have active mind to expound the horizon of the law and not fall to allurement of technicalities as the Defendants intend to do here.

Counsel concluded that there is a binding contract between the Claimant and the Defendants as such the parties are properly constituted before this Honourable Court. He urged the court to remove this hurdle on the road to justice and assume jurisdiction to entertain the suit of the Claimant which borders on breach of contract and we further urge the court to so hold and dismiss the objection of the Defendants.

Having carefully considered the facts of this case and the arguments for and against this preliminary objection arising from the written addresses in support and opposition of same, the issue for determination by this court in resolving the preliminary objection is to wit:

whether or not the Defendants in this suit are juristic persons thereby earning or denying this court of jurisdiction to entertain the suit.

In addressing the sole issue it is pertinent that I first make clear and certain who or what juristic person connotes. This should not be much of a quagmire as the term has been for long clarified in a long line of cases. In PHCN PLC & ANOR v. AG SOKOTO STATE & ANOR (2014) LPELR-23825(CA) the Court of Appeal answered the question of Who is a juristic person? When it held that:

“In IYKE MEDICAL MERCHANDISE V PFIZER INC & ANOR [2001] 10NWLR (PT 722) 540. Iguh JSC had this say on who a juristic person is; “Juristic persons who may sue or be sued eo nomine have been recognized to include (i) Natural Persons, that is to say human beings (ii) Companies Incorporated under the Companies Act (iii) Corporations aggregate and corporations sole with perpetual succession (iv) certain unincorporated Association granted the status by law such as (a) Registered Trade Unions (b) Partnerships and (c) Friendly Societies or sole proprietorships see FAWEHINMI V N.B.A. (No.2) [1989] 2 NWLR (PT 105)” Per AWOTOYE, J.C.A. (Pp. 33-34, paras. G-C)”

Earlier before this decision, the same Court of Appeal in F.U.T. MINNA ORS v. OKOLI (2011) LPELR-9053(CA) posited that:

“This Court in the case of AKAS v. MANAGER (2001) 8 NWLR (715) 436 at 444 had defined who a juristic person is in law, as follows: “A juristic person is either a natural person in the sense of a human being of the requisite capacity or an entity created by the law which includes an incorporated body and special artificial being created by legislation and vested with the capacity to sue and be sued” See also: ABIA STATE UNIVERSITY v. ANYAIBE (1996) 3 NWLR (439) 649. OKAFOR v. ASOH (1999) 3 NWLR (593) 35.” Per GARBA. J.C.A. (P. 38, paras. C-F)”

For abundance of caution, the Supreme court also noted other categories of juristic persons created under the statute expressly or impliedly or by common law when it held in the case of Ataguba & Co. v. Gura (Nig.) Ltd. (2005) 8 NWLR (Pt.927)429 that:

”The law, however, recognizes that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. Thus, it has been held that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly or by the common law, either:- (a) A legal persona under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by foreign law and “quasi-corporations” constituted by Act of Parliament; or (b) A right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated.” Per EDOZIE, J.S.C (P.12, paras. C-G)

Having stated the above about who a juristic person is and the types of persons whether natural or artificial that falls into the class of same, it is important to state that the significance of classifying persons as juristic is so as to determine whether such person can in law be before the court to either pursue a legal right or be brought to the court to enforce a legal right against it. The Supreme Court has made an exposition of this in an unambiguous term when it held in the case of Maersk Line v. Addide Invest. Ltd. (2002) 11 NWLR (Pt.778)317

“The law is settled that a non-juristic person, generally, cannot sue or be sued. In Agbonmagbe Bank Ltd. v. General Manager G.B. Ollivant Ltd. & Ors. (1961) 1 All NLR 116; (1961) 2 SCNLR 317 it was held that “General Manager, G.B. Ollivant Ltd.” is not descriptive of a juristic person. The defendant so named, was struck out of the action on a preliminary objection. It was further held, that naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person. See also Manager, SCOA Benin City v. Momodu (unreported) suit No. SC.23/1964 delivered on 17th November, 1964, it was held that a non-juristic person, cannot sue or be sued.” Per Ogundare, J.S.C. (Pp. 30-31, paras. F-B)

In addition to this, the court in Ataguba & Co. v. Gura (Nig.) Ltd. (supra) held that:

”Undoubtedly, for an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent plaintiff and a competent defendant. As a general principle, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent.” Per EDOZIE, J.S.C (Pp. 11-12, paras. G-B)

That said, to put the authorities into the context of this suit, the Claimant before this court is a natural person by the name Eugene Irefa Abels. That perhaps is settled to be a juristic person. The two Defendants before this court are by the names: (1) OFFICE OF THE SPECIAL ADVISER TO THE PRESIDENT ON NIGERIA DELTA and (2).THE SPECIAL ADVISER TO THE PRESIDENT/CORDINATOR PRESIDENTIAL AMNESTY PROGRAMME. These are apparently not natural persons. The question that naturally arises is under what category of artificial person do they fall?.

In this regard, learned Counsel to the Defendants, Pere Ikutemi Esq., in summary, submitted that the Defendants are non-juristic persons. That there is no entity referred to as “Office of the Special Adviser to the President on Niger Delta” and “The Special Adviser to the President/Coordinator Presidential Amnesty Programme” in law. The Learned Counsel to the Claimant, Egang Agabi, in response merely argued that a community reading of the content of the letter of appointment and Exhibits 2 and 3 attached to the affidavit shows that a juristic personality is impliedly conferred on the 1^stand 2^nd Defendants herein. This is because the powers establishing them confer them with certain statutory functions, performance of which may cause injury to the third parties.

Learned Counsel did not mention any particular statute under which the Defendants were created giving them the power to sue or be sued or merely making them a legal entity in law. Counsel however cited the case of CARLEN (NIG). LTD V UNIJOS (1994) 1 NWLR (PT.323) Per, OGUNDARE JSC, and contended that same is on all fours with the case at hand.

In resolving this contention, let me foremost mention that I am not oblivious of the fact that the Constitution of Federal Republic of Nigeria 1999 (as amended) empowers the President of Nigeria to appoint special advisers. Section 151 and 152 provides thus:

(1) The President may appoint any person as a Special Adviser to assist him in the performance of his functions.

(2) The number of such Advisers and their remuneration and allowances shall be as prescribed by law or by resolution of the National Assembly.

(3) Any appointment made pursuant to the provisions of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office.

A person appointed as Special Adviser under section 151 of this Constitution shall not begin to perform the functions of his office until he has declared his assets and liabilities as prescribed in this Constitution and has subsequently taken and subscribed the Oath of Allegiance and oath of office prescribed in the Seventh Schedule to this Constitution.

It is pertinent to state that by the above provision, there is no implication of a creation of both defendants as presently constituted before this court to earn juristic personality. The words of a statute must be given their ordinary meaning for as long as they are not ambiguous nor bring about manifest absurdity. It can also not be said that the law makers intended to statutorily create the said Defendants.

The Supreme Court clearly stated in the case of CORPORATE AFFAIRS COMMISSION v UNITED BANK FOR AFRICA PLC & ORS (2016) LPELR-40571(CA) that:

“It has been said, as a matter of fact and law that the primary duty of a judge is to expound and not to expand the law. In any case, the fundamental duty of the Court is to bring to the fore, the intention of the legislature as expressed in a statute and nothing more. In AMAECHI v. INEC (2008) 5 NWLR (PT 1080) 227 SC; (2008) LPELR – 446 (SC), MOHAMMED, JSC stated:

“It is certainly not the duty of a Judge to interpret a statute to avoid its consequence. The consequences of a statute are those of the legislature, not the Judge. A Judge who regiments himself to the consequences of a statute is moving outside the domain of statutory interpretation. He has by that conduct, engaged himself in morality which may be against the tenor of the statute and therefore not within his Judicial power.” Similarly, GALADIMA, JSC reiterated in AROMOLARAN v. AGORO (2014) LPELR – 24037 (SC) p. 25, paras. B – F, thus:

“I must say that the duty of the Court is to interpret the words contained in the statute and not to go outside the clear words in searching of an interpretation which is convenient to the Court or to the parties in the process of interpretation. The Court will not embark on a voyage of discovery. Where a statute is clear and unambiguous, as this case, this Court will follow the literal rule of interpretation where the provision of the statute is clear and no more. In the case of ADEWUNMI v. A.G. EKITI STATE (2002) 2 NWLR (Pt. 751) 474, WALI JSC said at page 512: “In cases of statutory construction the Court’s authority is limited. Where the statutory language and legislative intent are clear and plain, the judicial inquiry terminates there.” Per OBASEKI-ADEJUMO, J.C.A. (Pp. 41-42, Paras. C-E)

The words of the Constitution is that the said special advisers shall be appointed at the pleasure of the President.

That being said, I have had recourse to review the case of CARLEN (NIG). LTD V UNIJOS (1994) 1 NWLR (PT.323) in order to see where the implication of juristic personality for the Defendants arises from.

I must say categorically and emphatically that the authority in the said case is a good law but not applicable in this instance as it is distinguishable. In the said case, there was a certain University of Jos Act which created the Council and Registrar of the University and mentioned their functions but failed to add the function of suing or being sued. For want of details, Justice OGUNDARE, J.S.C., while delivering the lead judgment referred to the said provisions of the Act and stated thus:

“With profound respect to the learned justices of the court below the reasoning and conclusions in the passages above are manifestly wrong….It is clear from the above provisions of the Act that the council, the Vice-Chancellor and the Registrar are creation of the University of Jos Act and each is assigned specific functions as provided for in the Act and in the exercise of such functions, rights of other persons will most certainly be affected. If in the exercise of their functions the right of anyone is infringed can it be said that any of these functionaries cannot be sued simply because the Act has not expressly stated that they can sue or be sued? This question was answered in Thomas v. Local Government Service Board (1965) NMLR 310; (1965) 1 All NLR 174 (new edition).”

The above no doubt clearly manifests the distinction between the above case and the instant one.

That notwithstanding, upon the case adjourned for judgment, learned Counsel to the Claimant, Egang Agabi on the 16^th of April filed additional authorities on the issue of juristic personality. Of particular significance is the case of THE HON. MINISTER OF DEFENCE & ORS v. MRS. ETTA BASSEY EPHRAIM (2014) LPELR 24245 (CA). wherein the court held that:

“As earlier on stated in the course of this judgment, it is even the law that the Court can accord the status of a legal personality to an entity or office where the body or office made no provision to that effect, In Nkporinwi vs. Ejire (supra) the Court held that: “It is well settled principle of Law that the major jural entities or units to which the Law usually ascribes legal personality are: I. Human beings (Natural Persons). II. Companies incorporated under the various companies Acts. III. Corporation sole with perpetual succession. IV. Trade Unions V. Partnerships and VI. Friendly societies Undoubtedly, the list of the said categories of legal personae is not exhaustive. As well, Courts may, in the course of exercise of their interpretative discretionary powers, add to that list if the justice of any given case so dictates. So I do not seem to agree with the learned Appellants’ Counsel’s Submission that unless the offices of the 2nd and 4th Appellant are said to be of perpetual succession with a common seal and the powers to sue and to be sued, they cannot be ascribed the status of a juristic person or persons. In the case of Fawehinmi vs. NBA (Supra) Oputa JSC (of blessed memory) drew three distinctions from the celebrated case of Thomas vs. Local Government Service Board (Supra) like the Local Government was created by the Customary Law. Secondly, where the body or office is charged with the discharge of public functions and thirdly, where there is a nexus between the statutory functions and the injury complained of.

In the instant suit, the justice of this case demands that this court expands the list as the 1^st and 2^nd Defendants which though not expressly created by statutes, have their foundation in the provision of section 151 and 152 of the Constitution of Federal Republic of Nigeria 1990 (as amended) and the office by virtue of section 152 particularly is charged with assisting the President whose function is a public function with respect to the execution of the Presidential Amnesty Programme in the Niger Delta Region of Nigeria.

Consequent upon the above authority, it is holding of this court that the 1^st and 2^nd Defendant can be conferred with juristic personality and same is hereby conferred. The sole issue of this preliminary objection is hereby resolved in favour of the Claimant to the effect that the Defendants in this suit are juristic persons thereby earning this court the jurisdiction to entertain the suit.

Having resolved the preliminary objection, I now turn to the substantive suit. Learned Counsel to the Defendant, Pere Ikutemi Esq., filed a Final Written address on the 9^th of February, 2018 which was adopted before this court wherein he submitted three issues for determination to wit:

From the evidence adduced before this honourable Court, whether the purported engagement of the Claimant as Special Assistant to Hon. Kingsley Kuku, the former Special Adviser to the President on Niger Delta was subsisting after 29 May 2015?
From the evidence adduced before this honourable Court, whether Claimant was still a Consultant Staff posted to the Office of the Special Adviser to the President on Niger Delta after 31 August 2015, when the Consultancy Contract Agreement between FGN and Ker Global Wave Ltd (Claimant’s employers) expired?
Whether the Claimant is entitled to the reliefs sought?

In arguing issue one and two, learned counsel contended that from the pleadings filed, the strength of the exhibits admitted and the evidence adduced during the hearing of the instant suit, it is an incontrovertible fact that the purported engagement of the Claimant as Special Assistant by the former Special Adviser to the President on Niger Delta, Honourable Kingsley Kuku ceased after 29 May 2015 and that the Claimant ceased to be a Consultant Staff posted to the Office of the Special Adviser to the President on Niger Delta after 31^st August 2015, when Ker Global Wave Ltd (Claimant’s employers) consultancy contract agreement with FGN expired. Counsel contended that the appointment of Claimant was without any recourse to the Federal Civil Service Commission but at the mercy of the Special Adviser. He added that the appointment was for a period of six months and there is no evidence of renewal of the said appointment.

Counsel restated every matter of fact relating to the consultancy service of Ker Global and the Claimant being an employee of same after his initial appointment by the former Special Adviser, Kingsley Kuku. He argued that these facts are not controverted and should be deemed admitted citing the case of Agbaneio v. Union Bank of Nigeria Ltd. (2000) 4 S.C. (Pt.1) 233 and Gbaruko v Gbaruko (2017) LPELR – 41 749. Counsel specifically contended that the facts as contained in paragraphs 9A and 16A of the Amended Statement of Defence were not denied by way of reply and cited UNITY BANK PLC v. BOUARI (2008) 2-3 SC (Pt. 11) 1 and EGESIMBA v, ONUZURUIKE (2002) 9-10 SC.

Counsel further urged the Court to hold that the said appointment is illegal and the External Auditors queries made Hon. Kingsley Kuku, the Special Adviser to outsource the reintegration component of the Presidential Amnesty Programme to Ker Global Wave Limited, It will amount to double illegality for the Claimant who is one of the key Promoters and Staff of Ker Global Wave Limited to still lay claims to the subsistence of Exhibit C2.

With regards to the appointment of the Claimant as Special Assistant, Counsel argued that the appointment ceased when the tenure of the former Special Adviser in question ceased, owing to change of government. He cited the case of Habib Nigeria Bank Limited v Wahab Qpomulero & Ors. (2000) LPELR-5688, to posit that the law does not compel the doing of impossibilities or, in other words, the court does not make an order in vain – lex non cogit ad impossibilia.

With regards to Exhibit C14, counsel contended that it has no bearing with the instant matter as they were generated from the Claimant’s computer as expressly admitted by Claimant under cross-examination. Furthermore, they are not official documents of the 1st Defendant, not relevant to the issue at hand and thus inadmissible. He cited the case of United Cement Co Ltd & Anor v Libend Group Ltd & Anor (2016) LPELR-42038(CA) Page 35 while urging the court to hold that the Exhibit was wrongfully admitted.

In arguing issue three, counsel contended that as a Consultant Staff of Ker Global Wave Limited running the Reintegration component of the Presidential Amnesty Programme, the Claimant’s bank Statement Exhibit C3 shows prompt payment by Ker Global Wave Ltd. The Defendants paid Ker Global Wave Limited, who in turn paid her staff, inclusive of the Claimant.

He further contended that Ker Global Wave Limited was paid till the expiry of the Contract Agreement on 31 August 2015. Request for payments by Ker Global Wave Ltd for the tail end of her consultancy contract via letter dated 31 July 2015, and Certified True Copies of the payment vouchers (for November 2013 and May/June 2015) to Ker Global Wave Limited from the Defendants were admitted in evidence as Exhibits D5A-C. Request for payment by Ker Global Wave Ltd for November 2013 consulting fees, via a letter dated 27 November 2013, was also admitted in evidence under protest and marked Exhibit D9. The Claimant never at any moment complained that Defendants owe Ker Global Wave Ltd any amount of money resulting in payment deficit or loss to him.

Counsel referred to the exhibits tendered to buttress that the Claimant is not owed MSA and urged the court not to grant any of the reliefs sought by the Claimant and further pray that the instant suit be dismissed with substantial costs.

In response, Learned Counsel to the Claimant, Egang Agabi filed a Final Written Address on the 21^st of February, 2018 and adopted same. Before raising and arguing the issues for determination, learned Counsel addressed the admissibility or otherwise of Exhibits D6, D7, D8, D9, D10 and D11 that were admitted under protest. The contention are to the effect that Exhibits D6, D7, D8, D9 and D10 are public documents and must he certified. That they are also photocopies and as such secondary documents.

He also contended that document referring to Ker Global Wave cannot be tendered since the said Ker Global is not party to this suit. Counsel cited section 89(1) of the Evidence Act, 2011 and contended that only certified true copy of public documents are admissible ARAKA V EGBUE (2003) 17 NWLR (PT. 848) 1, (2003) 7 SC. 75 and ALAO V AKANO (2005) 4SC 24

He urged the court that Exhibits D6, A&B, D7 A&B, D8, D9, D10 not being certified copy are inadmissible and should thus be rejected.

With regards to letter written to letter from UBA to Ker Global Ltd, Counsel contended that assuming the Claimant wants to cross examine on that document, would the Defendants ever be in a position to answer questions, certainly not, because they are not the makers of the document and also not parties in the document. Counsel cited LAMBERT V NIGERIA NAVY (2006) 7 NWLR (PT.980) 525 CA.

Counsel argued that where there is inadmissible evidence, the court has a duty not to act on it. Citing the case of IBWA V IMANO NIGERIA LIMITED (2001) 17 WRN, I; BUHARI V OBASANJO (2005) 13 NWLR (PT. 941)1 and OKONJI V NJOKANMA (1999)14 NWLR (PT.771)39.

Upon the above, the Learned Counsel submitted two issues for determination to wit:

Whether the claimant is an employee of the defendants.
Whether the claimant is entitled to the reliefs sought before this court.

In arguing issue one, counsel contended that the Claimant was employed into the services of the 1^st and 2^ndDefendants through a letter of Appointment with reference No. OSAP/ND/98/1/173 dated the 1^st November, 2012. The said letter contained conditions of service and signed by the Special Adviser to the President on Niger Delta. The said letter has all the ingredients of a contract.

Counsel also contended that there was a valid contract offer Letter from the office of the Special Adviser to the President, which is the Defendant herein. There was also a valid acceptance by the Claimant. This letter and the terms therein have created a binding legal relationship between the Claimant and the Defendants by which rights are acquired by one party in return for acts or forbearance on the part of the other.

Counsel also argued that the defendants’ assertion that auditors queried both the appointment and payment of Claimants salaries by the Office of the Special Adviser to the President on Niger Delta is unfounded and unsupported and that there is also nothing before the court to show that the Claimant is an employee of anybody other than the Defendants.

Counsel further stated that the terms and condition of the contract is embedded in Exhibit C2 thus:

The appointment is non-pensionable.
It will be for a period of six months in the first instance and can he renewed subject to the approval of the Special Adviser.
The Claimant is expected to give a month’s notice before withdrawal of his service.
Status as the Desk Head, Support Services is at the discretion of the Special Adviser.
To report to the Head, Reintegration Unit during your period of engagement.
To accept the offer in writing.

Counsel further argued that the position of the law is that he who assert must prove. citing the case of LONGE F.B.N PLC (2006)3 NWLR (PT.967)228CA; DAODU V NNPC (1998) 2 NWLR (PT.538) 355 SC and KALA V POTISKUM (1998)3 NWLR (PT.540) 1 SC and in this regard, It is not for the Claimant to prove he was not a staff of Ker Global Ltd.

In conclusion, Learned Counsel contended that the Defendants have variously credited the appointment of the Claimant to the Former Special Adviser to the President on Niger Delta and went further to state that that appointment was personal to him. As earlier stated this assertion has no basis as the service of the claimant postdates the exit of Honorable Kingsley Kuku. He continued to function as a staff of the 1^stand 2^nd Defendants as can be gleaned from Exhibits C6, C7, C10 and the computer generated evidence all admitted in evidence before this court.

Counsel urged the court to dismiss the defence of the defendants for lacking in merit and award punitive damages against them for breach of contract.

In arguing issue two, counsel contended that the Claimant has presented a number of claims before this court which includes the reinstatement of his salary which the 1^st and 2^ndDefendants stopped without justification, in May, 2015 when his employment was still subsisting

He also posited that in the course of trial, the Claimant tendered 13 documents in proof of his case. They include the letter of appointment, some internal memos and other documents establishing his claim. Even while this suit was pending in court he was still being assigned responsibilities, yet the Defendants stopped paying his salaries in May, 2015.

Counsel also argued that there are number of duties and obligations which the law imposes on both the employer and the employee during the continuance of the performance of the contract. Some of these arise by virtue of the common law, while others arise out of the implications of legislative policy. Some of the implied duties of the employer are; mutual respect, duty to provide work, duty to pay wages or other remunerations when there is no work, duty to indemnify, duty to give reference and duty to ensure employer’s safety. He cited the case OKOEBOR V POLICE COUNCIL (2003)12 NWLR (PT.834) 444SC.

Counsel restated the terms of the employment as he gathered from Exhibit C2 above.

Counsel concluded that the employment of the Claimant has not been terminated as there is no implied termination of contract where the condition is expressly stated. He added that the position of the law is that a master can terminate the employment of his employee at any time and for any reason or for no reason at all. Provided the termination is in accordance with the terms of their contract. He cited the case of OSIANYA VV AFRIBANK (NIG). PLC (2007) 6NWLR (PT. 1031) 565 SC.

Counsel urged the court to hold that the Claimant is still an employee of the 1^stand 2^nd Defendants and is entitled to the reinstatement of all his salaries and benefits accruable to him from the month of May, 2015

Having considered the processes filed in respect of this suit, the oral testimony and demeanour of witnesses, the documents tendered in evidence and the issues and arguments of counsel arising from the Final Written Addresses, the issue for determination in this suit is to wit:

“Whether or not the Claimant has a subsisting employment with the defendants which entitles him to the reliefs sought considering the circumstances of this case”.

Before addressing this sole issue, it is imperative to resolve the contention with regards to the admissibility of Exhibits D6, D7, D8, D9, D10 and D11 which were admitted under protest. The said Exhibits are:

Exhibit D6 (a) & (b) are Letters of Award of contract to provide Reintegration support Services for the 1^st Defendant and the downward review of same addressed to the Managing Director Ker Global Wave Ltd dated 23^rd October, 2013 and 26^th May, 2014 respectively.

Exhibit D7 (a) & (b) are Letters of Acceptance of contract and the downward review of same by Ker Global Wave Ltd addressed to the 1^st Defendant dated 27^th October, 2013 and 30^th May, 2014 respectively.

iii. Exhibit D8 is a Letter of mandate from Ker Global Wave Ltd dated September, 2015 and addressed to the 2^nd Defendant mandating 2^nd Defendant to pay salary arrears (for May, June, July and August, 2015) directly to operations staff of Ker Global Wave Ltd.

Exhibit D9 are letters of request for payment by Ker Global Wave Ltd. dated 27^th November, 2013 and 31^stJuly, 2015, addressed to the 2^nd Defendant and accompanied by invoices.

Exhibit D10 is a Letter from the 1^st Defendant addressed to the Management of Ker Global Wave Ltd. Dated the 14^th of September, 2015 informing her that the consultancy will not be renewed and stands terminated on 31^stAugust, 2015 pursuant to the contract agreement signed between them and the Government of the Federal Republic of Nigeria.

Exhibit D11 is a Letter from UBA addressed to the Managing Director of Ker Global Wave Ltd, dated 9^th September, 2015, informing them of the withdrawal from the their account and the crediting of the account of under-listed staff one of which is the Claimant

As contended by the Counsel to the Claimant, the documents are rightly public documents having emanated from the custody of the Defendants as its records and are also photocopies of which only the certified true copies are admissible. The Evidence Act has made copious provision in this regard:

Section 102 provides that, The following documents are public documents-

documents forming the official acts or records of the official acts of-

(i) the sovereign authority;

(ii) official bodies and tribunals; or

(iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and

public records kept in Nigeria of private document.

Section 104 further provides that

(1)Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.

Although section 85 provides that:

The contents of documents may be proved either by primary or by secondary evidence.

Secondary evidence would however not be admissible unless they fall under a certain category with proper foundation having been laid for them.

Section 89 (e) and (f) provides for the circumstances when secondary evidence may be tendered in evidence by providing that:

Secondary evidence may be given of the existence, condition or contents of a document when- the original is a public document within the meaning of section 102 and when the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence.

The above provision was given recognition by the court in the case of THE HON. JUSTICE E. O. ARAKA v. THE HON. JUSTICE DON EGBUE (2003) LPELR-532(SC) when it held in respect of the provision of section 90 (1) (c) Evidence Act 2011 that:

The secondary evidence admissible in respect of the original document referred to in the several paragraph of subsection (1) is as follows: (d) in paragraph (e) or (f) certified copy of the document, but no other kind of secondary evidence, is admissible … The combined effect of the subsections is that in the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and none other.

Going by the above, I reckon the argument of the Counsel to the Claimant that the documents are not by the Evidence Act admissible. However, I must draw the attention of both counsel to the provision of the law guiding the practice and procedure of this court as embedded in the National Industrial Court Act, 2006. Section 12 (2) of same provides that:

Subject to this Act and any rules made thereunder, the Court-

may regulate its procedure and proceedings as it thinks fit; and
shall be bound by the Evidence Act but may depart from it in the interest of justice.

In consolidation of the above, Order 1 Rule 9 (2) of the National Industrial Court (Civil Procedure) Rules 2017 also provides that:

(2) These Rules are to be applied by the Court as it considers fit and the Court may depart from the rules of evidence in the interest of justice as provided in Section 12(2) (b) of the National Industrial Court Act, 2006.

Therefore, upon a careful consideration of the documents in question, an overview of the documents already admitted without protest having complied with the need for certification, and the relevancy of the documents in doing substantial justice to the instant case, I must of necessity, in the interest of justice draw the resolution of this contention from the provision of section 12 (2) (b) of the National Industrial Court Act, 2006 and Order 1 Rule 9 (2) of the Rules of this court, 2017, which enjoins that the rule of evidence are to be applied but may be departed from in the interest of justice.

Also, the court in Ilesanmi v Uginleye & Anor (2016) LPELR- 41348 (CA) held that:

“the law is that evidence that are relevant in the sense that they tend to prove or disprove a fact in issue or fact relevant to a fact in issue is relevant. Every relevant fact is admissible” see Section. 6,8 and 10 Evidence Act. Per Danjuma JCA.

In this regard, considering the relevancy of the documents and standing on the admonition of the NIC Act and Rules, the said Exhibits D6 – D11 are hereby declared admissible and accordingly admitted in evidence.

I now return to addressing the sole issue which is “Whether or not the Claimant has a subsisting employment with the defendants which entitles him to the reliefs sought considering the circumstances of this case”.

In addressing this issue, I am necessitated to first take a close look at Exhibits C2 and C7 in order to determine the type of employment before this court in this suit.

Exhibit C2 was a letter addressed to the Claimant form the 1^st Defendant. It reads:

THE PRESIDENCY

OFFICE OF THE SPECIAL ADVISER TO THE PRESIDENT ON NIGER DELTA

Reference: State House

Abuja

Nigeria

OSAP/ND/98/I/ 173 1st November, 2012

Eugene Irefa Abels,

17C William Jumbo Street,

Old GRA,

Port Harcourt.

LETTER OF APPOINTMENT AS DESK HEAD, SUPPORT SERVICES, AMNESTY OFFICE, ABUJA

I am pleased to inform you that you have been offered an appointment as a Desk Head, Support Services in the Office of the Special Adviser to the President on Niger Delta. The appointment which is non-pensionable will be for a period of six months in the first instance and can be renewed subject to the approval of the Special Adviser.

Please note that you are expected to give a month’s notice before withdrawal of your service and your status as Desk Head, Support Services is at the discretion of the Special Adviser. You are to report to the Head, Reintegration Unit during your period of engagement.
You are expected to accept this offer in writing within seven (7) days.
Congratulations.

HON. KINGSLEY K. KUKU

SPECIAL ADVISER TO THE PRESIDENT

ON NIGER DELTA

Exhibit C7 on the other hand reads:

THE PRESIDENCY

OFFICE OF THE SPECIAL ADVISER TO THE PRESIDENT ON NIGER DELTA

Reference: State House

Abuja

Nigeria

OSAP/ND/98/351 2^nd May, 2014

Eugene Irefa Abels,

17C William Jumbo Street,

Od GRA,

Port Harcourt

Rivers State

LETTER OF ENGAGEMENT

The Federal Republic of Nigeria on June 25^th 2009 offered amnesty to ex-agitators in the Niger Delta, with implementation commencing from April 2010 and to terminate by 31^st December, 2015.

2 The Special Adviser to the President on Niger Delta and Chairman of the Presidential Amnesty Programme is by this letter requiring your services in the Reintegration Phase of the Disarmament, Demobilization and Reintegration (DDR) programme based on your technical competence.

I am, therefore, pleased to inform you that you have been engaged as a Special Assistant, Data Management, Banking & Financial Matters to the Special Adviser to the President on Niger Delta and Chairman Presidential Amnesty Programme.
The appointment which is at the discretion of the Special Adviser to the President on Niger Delta is non-pensionable and will be for a period of six months at the first instance. This can be renewed subject to the quality of your performance and availability of the position.
Details of the services for which you are to be engaged are set out in the job description attached.
You will be entitled to a monthly Mission Sustenance Allowance (MSA) for the duration of this appointment as provided by the International Civil Service Commission and the United Nations Charter which are applicable to DDR programmes.
You are expected to accept this offer in writing within seven (7) days.

Congratulations.

HON. KINGSLEY KUKU

SPECIAL ADVISER TO THE PRESIDENT

ON NIGER DELTA

The parties and their counsel did not state the type of employment that the Claimant had or has with the Defendants. However, by law there can be three types of employment and this court has to first determine under which category the one under the instant suit falls.

The court in the case of Ufam v. I.M.T. (2007) 2 NWLR (Pt.1019) in highlighting the three types of employment held that:

“It needs to be stated that this case involves employer- employee relationship. It has been made clear by Amaizu, JCA, in the case of Nigerian Gas Co. Ltd. v. Dudusola (2005) 18 NWLR (Pt. 957) 292; 321 that there are three types of employer/employee relationship in this country with different consequences namely:

(1) Under the common law where in the absence of written contract, each party could abrogate the contract on week’s or month’s notice or on payment of wages for a week or month or whatever was the agreed period for payment of wages.

(2) Where there is a written contract of employment between an employer and an employee. In such a case the court has a duty to determine the rights of the parties under the written contract.

(3)(i) Public servants – their employment is provided for in the statute plus conditions and service agreement as in the case of Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599.

(ii) Public servants in the nations civil service as in the case of Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40.”Per MIKA’ILU, J.C.A.(P.29, paras.A-F)

In a more recent decision, the court in FEDERAL MEDICAL CENTRE, IDO-EKITI & ORS v. MICHAEL (2012) LPELR-20406(CA) held that:

”In N.I.I.A. v. Ayanfalu (2007) 2 N.W.L.R. part 247 at 265 this court enumerated the three categories of employment as follows:

(a) A pure master/servant relationship under the common law.

(b) Employment where the office is held at pleasure.

See also Olaniyan v. Unilag (1985) 2 N.W.L.R. part 9 at page 599 and Shitta-Bay v. F.P.S.C. (1981) 1 S.C. at page 40.” Per FASANMI, J.C.A (Pp. 12-13, paras. E-A)

In the instant suit, the type of employment that can be deduced to exist between parties is an employment where the office is held at pleasure. This is predicated on paragraph 1 and 2 of Exhibit C2 and paragraph 4 of Exhibit C4 both stating to the effect that the appointment of the Claimant is at the discretion of the Special Adviser to the President on Niger Delta, that the appointment is non-pensionable and that it is for a period of six months although renewable.

During cross examination, the Claimant himself admitted that his employment is not a permanent employment and he was not employed by Federal Civil Service Commission but that he was employed by the Office of the Special Adviser to the President on Niger Delta.

The question of ‘by whose pleasure the employment exists?’ is also answered by the said Exhibits C2 and C7 which specifically mentions that the “employment is at the discretion of the Special Adviser to the President on Niger Delta”. To find out who the Special Adviser is in terms of a ‘natural person’, is also made easy by the said Exhibits C2 and C7 as they are both signed by ‘Hon. Kingsley Kuku, Special Adviser to the President on Niger Delta’.

I must mention at this stage that the Special Adviser, Hon. Kingsley Kuku himself enjoys an employment that was at the pleasure of the then President, Dr. Goodluck Ebele Jonathan as section 151 (3) provides that:

(3) Any appointment made pursuant to the provisions of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office.

This means that upon Former President Goodluck Ebele Jonathan ceasing to hold office on the 29^th of May, 2015, the appointment of Hon. Kingsley Kuku also came to an end and every act (in his official capacity) that was at his discretion also came to an end including the Claimant’s employment/engagement.

Considering the above and the fact that the claim of the Claimant in seeking a declaration that his employment is still subsisting, places the burden on the Claimant to prove that the employment is subsisting. In this regard, I take cognizance of the holding of the court in IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS (2012) LPELR-8621(CA) where the court with regards to the entitlement to declaratory reliefs held that:

“Declaratory reliefs are not granted as a matter of course but on credible evidence lead. This is so even where the other partly admits the claims. See David Fabunmi Vs Agbe (1985) 1NWLR (pt.2) 316.”Per TSAMIYA, J.C.A.(P. 22, para. A

Also, where evidence is placed before the court and same is challenged, the burden is thrown back to the party who alleges. The burden is on the Claimant to prove that his employment is subsisting as section 131 of the Evidence Act, 2011 provides that:

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Furthermore, the court in this regard held in the case of Ajuwon v. Akanni (1993) NWLR (Pt. 316)182 that:

“Where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such a fact to establish the same by evidence. An averment in pleadings is not and does not amount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted”. PER IGUH, JSC.

Arising from the above, I take further steps to consider the assertion of the Claimant that he is still in employment of the Defendants and should be paid his benefits which were stopped since May, 2015 till the date of judgment in this suit. The said benefits comprises of N550,000 monthly payment and N250,000 Mission Sustenance Allowance. The Claimant in supporting his claim that his salaries have been stopped since May, tendered Exhibit C3, a bank statement compiled by GTBank covering 1^st November 2012 to 31^st December, 2015.

Arising from the said Exhibit C3, it is indicated that the Claimant received some payments as N550,000 and others as N250,000 however, the last payment he received was N250,000 in the month of August, 2015.

In challenging the Claim of the Claimant, the Dw1 who is an Assistant Chief Admin officer in the Presidential Amnesty office, during cross examination stated that the Claimant was brought in as a personal friend of Hon. Kingsley Kuku and was paid based on the discretion of the Special Adviser to the President. He added that Ker Global engaged the Claimant as a consultant to render consultancy services to the office of the Special Adviser to the President.

Upon a close look at the said Exhibit C3, it is the further findings of this court that the Payments made to the Claimant indicated some inconsistencies. The payment made to him from December 2012 to August, 2013 were tagged as ‘Allowance’ and were paid at N500,000.

In the same August 2013, the Claimant was paid N550,000 as MSA allowance in the name of OSPAND. The same thing happened in September, 2013 and November 2013. By December 2013, the payment of N550,000 began to be made by the name Ker Global Wave. The trend of the payment of N550,000 by Ker Global Wave continued until May, 2015. While a payment of N250,000 continued till August, 2015 made by OSPAND.

The Claimant himself did not give any explanation as to the inconsistencies in the said Exhibit C3, all that mattered to him was that he earned payments not minding how it came. The Defendants through DW1 in his witness statement on Oath admitted and marked as D1 in this case stated through paragraph 10 and 11 to the effect that the Federal Auditors challenged the appointments made by the former Special Adviser, Hon. Kingsley Kuku for not being through the Federal Civil Service Commission. He later outsourced the reintegration component of the Presidential Amnesty Programme (PAP) and it was awarded to Ker Global Wave Ltd in October, 2013. The name of the Claimant was also part of the Key personnel listed in the Proposal submitted in a bid for the award of the consultancy contract. The said Proposal was admitted in evidence and Marked as Exhibit D4. I have taken a look at the said exhibit D4 and found the name of the Claimant to be in row no.6 of the table presented in page 16 as the Project Manager-Education.

The said Ker Global Wave Ltd. was awarded the contract as evidenced by Exhibits D6(a) and (b) (letter of award of contract and its downward review dated 23^rd October, 2013 and 26^th May, 2014 respectively) while Ker Global accepted the award via Exhibits D7(a) and (b) (Acceptance of Letter of award of contract and its downward review dated 27^th October, 2013 and 30^th May, 2014 respectively). The contract agreement and its downward review are Exhibits D3 (a) and (b). The consultancy agreement was executed on 29^th October, 2013. This, without doubt, explains why the Claimant had his narration of payment of N550, 000 change from OSPAND to Ker Global Wave by December, 2013 and consistently so till May, 2015.

The implication of this is that, the employment of the Claimant which was initially at the pleasure or discretion of the Special Adviser to the President on Niger Delta, Hon. Kingsley Kuku, which was originally on a 6 months duration subject to renewal, and of which the evidence of renewal is not before this court had changed to a consultancy service by October, 2013.

Further evidence before this court in respect of the claim of the Clamant with regards to the payment of MSA by the Defendants is that the Defendant admits that owing to the appointment of the Claimant as Special Assistant on the 2^nd of May, 2014 (Exhibit C7) by the then Special Adviser, Hon. Kingsley Kuku, he was indeed entitled to MSA but that the Defendants have duly paid the MSA till August 2015 when the consultancy services expired.

In this regard, I have also taken a look at Exhibit C3 (the GTBank statement) and found that the last narrative of payment was made in August 2015 by FGN and tagged as MSA allowance. I have also, considered the content of Exhibit D10 which is a letter dated the 14^th of September, 2015 and signed by the current Special Adviser to the President/Coordinator, Presidential Amnesty Programme, Brig. Gen. Paul T. Boroh wherein Ker Global Wave Ltd. was informed that pursuant to the consultancy agreement which provides that: “This agreement shall be valid till 31^st August 2015 and shall thereafter be renewed subject to the mutual consent of the parties”, the Government of the Federation of Nigeria does not intend to renew the contract. I should also quickly add that, the MSA was paid to the Claimant as a Special Assistant to the former Special Adviser, and upon the Special Adviser ceasing to be in office pursuant to the constitutional provision of section 151 (3) of the Constitution of Federal Republic of Nigeria 1999 (as amended), the Claimant also ceases to be a Special Assistant for the purpose of the office of the Special Adviser.

The conviction that the Claimant was clearly paid by Ker Global Wave Ltd. as a staff is further strengthened by Exhibit D11, a letter written by UBA the bank of Ker Global Wave Ltd wherein the Management was informed that the account (1017728475) had been debited in order to pay the staff salary for the month of May, 2015 with the name of the Claimant being no.7 on the table and the account number being the same as that in Exhibit C3 (GTBank statement tendered by Claimant). The said account of Ker Global is also the same as the one on the payment voucher prepared for payment of Ker Global Wave by the Defendant tendered and admitted in evidence as Exhibit D5 (a), (b) and (c).

Furthermore, by Exhibit D8, a letter written by Ker Global Wave dated the 4^th September, 2015 titled ‘Mandate to Pay Salary Arrears Directly to Operations Staff of Ker Global Wave Ltd.’, it is the finding of this court that four months’ (May –August) payment was owed to Ker Global for the Consultancy services which affected Ker Global in turn in paying its staff salary as it had been paying since December 2013. The Claimant being one of those affected has his name on the compiled list tendered to the Defendant by Ker Global, asking the Defendant to pay the listed staff directly for those four months while the Defendant would eventually pay whatever the balance is to Ker Global Wave in due course.

It was upon the failure to make the payment as demanded in Exhibit D8 (letter of mandate of payment) that the Claimant decided to take another route to demand for payment of salaries as an employee of the Defendants, believing his earlier employment at the pleasure or discretion of the erstwhile Special Adviser still subsists. The Claimant demanded through a letter written by his Counsel, Egang Agabi on the 13^th October, 2015 (Exhibit C11) and followed same up with Final Reminder letter of Demand on the 9^th of November, 2015 (Exhibit C12). The Defendants then replied him through his counsel, via a letter dated 17^thNovember, 2015 wherein he was advised to channel his grievance with regards to the payment of the said salary to Ker Global Wave Ltd.

This Claimant in the course of cross examination claimed he knows nothing of Ker Global Wave Ltd. However, the overwhelming evidence as recounted above proves otherwise.

For want of clarity, I should state that this court finds that: firstly, the appointment of the Claimant as desk head, support services, amnesty office, arising from Exhibit C3 which is stated to be at the discretion of the former Special Adviser, Hon. Kingsley Kuku and for a period of 6 months has been determined on the basis that same was not renewed but converted to consultancy services under the auspices of Ker Global Wave Ltd. and same consultancy service have been determined with effect from August, 2015 in line with the consultancy agreement (Exhibit D3 (a) and (b)).

Secondly, it is trite that one cannot place something on nothing and expect it to stand. See UAC v. Mcfoy (1962) A.C. 152. Therefore, the engagement of the Claimant arising from Exhibit C7 which is stated to be at the discretion of the former Special Adviser, Hon. Kingsley Kuku and for a period of 6 months also no longer subsist due to the fact that the engagement which earned the Claimant the office of special Assistant to the Special Adviser to the President on Niger Delta, Hon. Kingsley kuku is at the discretion of the Special Adviser, who in turn had his employment at the pleasure of the Former President, Goodluck Jonathan and same having come to an end since 29^th May, 2015.

I should add at this stage that I am not unaware of the pile of computer generated documents tendered by the Claimant as Exhibit C14. The said documents includes email printouts which are to prove that the Claimant was still in one way or the other engaged in the service of the Defendants. In this regard, I have also considered the fact that the services of the Claimant was under the auspices of Ker Global Wave and same was guarded by the Consultancy agreement which the Defendant notified Ker Global Wave on the 14^th of September, 2015 via Exhibit D10 that the contract would not be renewed and that all their staff (including the Claimant) should stop reporting for work at the office of the Defendants.

Going by the nature of employment granted to the Claimant as being at the discretion of the erstwhile Special Adviser, whose appointment ceases to exist owing to the provision of section 151 (1) – (3) of the Constitution of Federal Republic of Nigeria 1999 (as amended), it is with the strongest conviction that I hold that the employment of the Clamant is not subsisting. Also, the relationship of consultancy services between the Defendants and the Claimant is firmly established.

It must be reiterated that burden of proof in civil cases are discharged on balance of probability. See section 134 Evidence Act 2011.

The court also held in the case of AYORINDE & ORS V. SOGUNRO & ORS (2012) LPELR-7808(SC) that:

“Proof in Civil cases is on preponderance of evidence. That means one sides position outweighs the other. In civil matters the onus of proof shifts from the plaintiff to the defendant and vice versa. The onus always rests on the party who would fail if no evidence is adduced on either side.”

Even so that the core of the Claimant’s reliefs are declaratory, the burden lies on the Claimant to prove his case without reliance on the weakness of that of the Defendant. In this regard, the Court held in DIAMOND BANK PLC. V. YAHAYA & ANOR (2011) LPELR-4036(CA) that:

“The law is settled that the courts do not grant declaratory relief based on the admission of the defendant. The plaintiff must satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to the declaratory relief. So where the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail. See Ayanru V. Mandilas Ltd, (2007) 10 NWLR (Pt. 1043) 462; Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187.” Per ONYEMENAM J.C.A. (P. 27, paras. B-D)

In view of the claim sought by the Claimant for this court to declare that his employment with the Defendants as non-pensionable staff is still subsisting and a declaration that he is entitled to the monthly payment of the sum of N550, 000.00 (Five Hundred and fifty Thousand Naira and the monthly Mission Sustenance Allowance (MSA) of N250, 000.00 (Two Hundred and Fifty Thousand Nigeria only from the month of May 2015 when it was stopped until judgment, the Claimant has woefully failed to prove his claim by failing to adduce cogent, convincing, and credible evidence to warrant the declarations.

Consequently, the sole issue raised by this court is resolved in favour of the Defendant to the effect that considering the circumstances of this case, the Claimant does not have a subsisting employment with the defendants which would entitle him to the reliefs sought.

Consequent upon the resolution above, this court finds that the claimant’s suit lacks merit and same is accordingly dismissed.

Judgment is entered accordingly.

I make no order as to cost

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.