Foundation for Peace Professional & 2 ORS -VS- National Teachers

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA.

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

11^TH DAY OF OCTOBER 2019 SUIT NO. NICN/ABJ/292/2017

Foundation For Peace Professionals
Tanimu Aliyu Magaji
Aminu Abdullahi Claimants

(For themselves and 148 other employees

of the National Teachers Institute).

AND

The National Teachers institute Council
The Hon. Minister, Federal Ministry of finance Defendants

REPRESENTATION:

Mohammed Sani, Esq; for the Claimants, appearing with Abubakar Maigari, Esq;

Oladipo Tolani, Esq; for the 1^st Defendant

Oyetunde Oluwaseyi, Esq; for the 2^nd Defendant.

JUDGMENT.

The claim of the Claimants as contained in their general form of complaint filed on 11/10/2017, is for:
A DECLARATION that the offer of appointments and or employment made, conveyed and granted to the 150 claimant herein by the 1^st Defendant on or about 29/04/2016 complied with all the laid down procedures and same are legal, valid, genuine and subsisting and which made them bona fide employees of the national teachers’ institute.
A DECLARATION that the Claimants herein were not accorded fair treatment by the Defendants respectively for not adhering strictly to the provisions of S. 7 (iv) of the staff regulations and conditions of service of the national teachers institute by their failure to make the appointment of the Claimants effective.
AN ORDER compelling the Defendants to make the appointments of the 150 claimant effective forthwith.
AN ORDER of this honorable Court to the 2^nd Defendant to direct the integrated payroll and personal information system (IPPIS) to immediately proceed and capture the biometric data of the remaining 125 employees of the national teachers institute.
AN ORDER directing the Defendants to pay the 150 Claimants herein, all salaries and or any other entitlement due or to which they are entitled to from the date of employment up to the day the Defendants comply with this order.
AN ORDER of perpetual injunction restraining the Defendants either by themselves or acting through their agent, servants, privies or through any person or persons howsoever, from making any fresh employment or giving any fresh appointment that will take over the position of the 150 Claimants herein in any form in or within the 1^st Defendant without fully making effective, the employment of the 150 Claimants herein into full service of the national teachers institute.
AND FOR SUCH FURTHER order or other order(s) as the Honourable Court may deem fit to make in the circumstance in this case.
The Claimants called two witnesses that testified in proof of their claims. The 2^nd claimant Tanimu Aliyu Magaji, testified as CW1. CW1 after taking oath stated his name and where he lives. He informed the Court that he is as at now not doing anything since he was given appointment by the 1^st Defendant his appointment is yet to be effected. CW1, identified witness statement on oath which he deposed to on 11/10/17. CW1, adopted his witness statement on oath as his evidence in this case. CW1 also informed the Court that he pleaded some documents in his witness statement on oath the originals of the pleaded document were with the 1^st Defendant. He also stated that notice has been given to the 1^st Defendant to produce the pleaded document but were not produced.
In the witness statement on oath, CW1, Deposed to the facts that he has the consent and authority of the rest of the 1^st batch of 99 affected employees of the 1^st Defendant to represent them in this suit, as they passed all the processes of the process of employment together.
CW1, deposed that the 100 employees were employed into the service of the 1^st Defendant via letters of appointment dated 29^th day of April 2016 and were absorbed into the institute upon fulfilling all necessary requirement and conditions. It was also deposed that the 1^st Defendant complied with all the laid down procedures for employment into the services of the 1^st Defendant. As there is approval of the Minister for Education to fill existing vacancies by a letter dated 9/3/16 there was request for waiver from Federal Character Commission which was granted. By latter dated 16/3/16 the grant of waiver was by latter dated 17/3/16. Request for monitoring of the exercise by Federal Character Commission Hon. Salihu Jawi and Mal. Yusuf Umar were sent to monitor the exercise at the end of interview conducted between 23^rd and 24^th April 2016, the 2^nd Claimants and other 99 candidates were successful and they were employed by the 1^st Defendant. The 100 persons employed were all graduates vide offer of appointment via letters dated 29/4/16. That after accepting the offer of appointment they were all made to perfect their documentation and thereafter, the 1^st Defendant gave them identification number to each and every one of them. They were subjected to biometric data capture at the integrated payroll and personnel information system office Federal Ministry of Finance to enable them to be of payroll of public service. The biometric data capture procedure is the final requirement to entitle all the persons employed into the Federal Civil Service of Nigeria as the 150 claimant herein to be paid their salaries and emolument. It was at the level of biometric data capturing and after 25 of the employees herein had been captured that the integrated payroll and personal information system officials unceremoniously halted the process on the pretext that they received instruction from above to stop and that they will subsequently be invited the employees on further instruction for the completion of the process.
The Claimants were not informed officially of the halting of the biometric capturing but they unofficially gathered that the stoppage of the biometric data process was influenced by new director general of 1^st Defendant. The Claimants were not given letters of withdrawal nor were they told why they cannot actualize their employments by resuming duties with the 1^st Defendant. The Claimants made several pleas to well-meaning individuals in the society to get the Defendants allow them resume work in accordance with their appointments but to no avail. The Claimants some of them have no employments at present, some of them disengaged from other employment in favour of the one in issue and with families to cater for, have been so frustrated to the extent that the start to moot the idea of staging a peaceful protest. That the injustice mated on the entire 150 employees received a serious public outcry through series of publication which the Defendants failed and or neglected to consider. The publication of premium times online page 1 of 5, dated 14/11/16 captioned ‘exclusive; staff of Nigeria Teachers institute’ petition minister over suspension of their employment’’ as one of the said publication is hereby pleaded and shall be relied upon at the hearing.
Under cross-examination, conducted by Kabir Momoh, Esq; counsel for the 1^st Defendant, CW1, stated that he is conversant with the procedure for recruitment. He has been involved in recruitment in government agencies as employer before he was given appointment by Ministry of Education on 6/9/2004, before he was given the appointment he attended interview. He was shortlisted as one of the successful Teachers and given appointment. Thereafter, he was posted to Alhuda Huda College Zaria as a class Teacher. That is his knowledge of recruitment. He further stated he is conversant with procedure for recruitment for Federal Government agencies, as the procedure for recruitment of Federal Government is contained in the Public Service Rules. He also stated that he had authority to sue in representative capacity. The letter of authorization has been submitted to the Court through his lawyer. Apart from paragraph 9 he does not have evidence to show that 148 Claimants exist, as he does not have any document to that effect. He cannot say the reason why Federal Character Commission withdraws approval for recruitment. On 5/8/16, he and other employees were at Accountant General Office for data capturing and the Director said to his understanding there is internal contradiction in the 1^st Defendant and as soon as it is resolved they will call the Claimants for capturing. He does not know who directed the suspension of biometric data capturing.
Cross-examination by Mr. Oyetunde, counsel for the 2^nd Defendant, CW1, stated that he does not have any evidence that Minister of Finance 2^nd Defendant is involved in suspension of data capturing. It is verbal instruction from Director Data Capturing. The 2^nd Defendant is not involved in suspension of Data Capturing.
On 14/5/19, the 3^rd claimant Aminu Abdullahi, testified for the Claimants as CW2. After being sworn in, CW2, informed the Court that on 11/12/28, he deposed to a witness statement on oath after identifying the witness statement on oath deposed to by CW2, he prayed the Court to adopt the said witness statement on oath as his testimony in this case. The depositions contained in the witness statement on oath by the CW2 are the same with the deposition contained in witness statement on oath of CW1, except in respect of number of number of employees. The 3^rd claimant stated that he has the consent and authorities of the 2^nd batch of 49 affected employees of the 1^st Defendant, with whom CW2 passed all the processes of the employment together.
Under cross-examination, by Oladipupo, counsel for the 1^st Defendant, CW2, stated that the IPPIS capturing was stopped on 5/8/16. He said he was not captured and that since he was not captured he will not be entitled to salaries. He stated that federal government has right to withdraw any appointment before confirmation. He stated that he deposed in paragraph 10 that the Federal Character Commission issued waiver he said that the letter of waiver is with 1^st Defendant. He stated that he submitted his letter of employment to Court through his Attorney. This action was filed in October 2017. That from 5/8/16 to October 2017 is one year 2 months.
Cross-examination of CW2, by Mr. Olatunde, counsel for the 2^nd Defendant. CW2 confirmed that presently he was not doing anything before the 1^st Defendant gave him job. CW2, stated that he was not aware that each government agency has its own IPPIS. IPPIS is supervised by Accountant General. CW2 stated that he does not know whether IPPIS is being supervised by the 2^nd Defendant. There are many officers doing the capturing. It is at Accountant General Office. He does not know whether 2^nd Defendant takes part in data capturing. The biometric capturing was halted. The Director General of 1^st Defendant was appointed by the Federal Ministry of Education and not by the 2^nd Defendant. All we know is official we were asked to go for biometric data capturing.
The Defendant called one Mr. Obioha Obuka, who testified as DW1, in defence of the 1^st Defendant. DW1, after been sworn in, he informed the Court that on 10/1/18, he deposed to witness statement on oath and prayed to adopt it as his evidence in this case. Documents were tendered through DW1 without objection by any of the counsel present. The documents were admitted in evidence and marked as exhibits DW1A1-3, DWB1-7, DWC1-8, DW1D, DWE, DWF, DWG, DWH, DWI1-6 and DW1J.
Cross-examination, by Mohammed Sani, Counsel for the Claimants. DW1, stated that he was employed in 2001. He was appointed head of human resources of the 1^st Defendant for about 7 years since 2012. He stated that by virtue of his position he was conversant with the procedures for employment by 1^st Defendant. He stated that he is a staff of the 1^st Defendant but he was not involved in the recruitment. That it was Dr. Aminu Ladan Sharehu that employed them. As at the time process was stopped the Director General is Professor Garba Dahuwa Azare. He stated that everything in the employment was shrouded in secrecy. He said he knows in August 2016 there was an attempt by some group of people who said they were properly appointed and want to be enrolled. It was at that stage that the process was stopped. But he does not know when the appointments were made. He was not aware of the process of Claimants’ employment until it was stopped. Dr. Ladan Sharehu left on 3^rd August 2016. He stated that he was around during the handing over. The attention of the DW1 was drawn to paragraph 10 of witness statement on oath and he said that that was the true position. Paragraph 11 was true by exhibit DWA1-3, it was not correct to say that the Director General has captured this employment in his handing over note. Before employment is done the process has to be concluded. What the Director General captured is ongoing process and not completed employment. He agreed appointment letters were given he stated that he is aware of Federal Character Commission approval after. By the time the 1^st Defendant got to know people were purportedly employed the ministry stopped the process. The certificate from Federal Character Commission were cancelled because of non-compliance with the conditions like lopsidedness.
Cross-examination by Mr. Oyetunde, counsel for the 2^nd Defendant. DW1 stated that he was not aware of any directive from 2^nd Defendant to stop the exercise. He was not aware of any directive issued by Federal Ministry of finance.
On 21/5/19, Mr. Samuel B. Ometuase, Legal Adviser of the 1^st Defendant brought to the Court documents requested by the Claimants on subpoena issued by this Court on 14/5/19 upon application of the Claimants. The counsel for the Claimants after being satisfied that the documents brought were document requested as per the subpoena, Mr. Samuel was then discharged. The case was then adjourned to 10/7/19 for adoption of final written addresses. The 1^st Defendant adopted final written address on 10/7/17 and the case was further adjourned to 20/9/19 for continuation of adoption of final written addresses. The counsel for the Claimants adopted the Claimants’ final written address on 20/9/19.

THE SUBMISSION OF THE 1^ST DEFENDANT

The 1^st Defendant formulated two issues for determination as follows:-
Whether having regards to the provisions of Section 2 (a) of the Public Officers Protection Act (Cap P41) Laws of the Federation of Nigeria, 2004, this suit as constituted is not statute barred having been commenced after a period of three months when the cause of action arose.
Whether on the state of pleadings before the Court and from the totality of the evidence adduced, the Claimants have proved their Claim on preponderance of evidence or balance of probabilities.
In arguing issue one; counsel for the 1^st Defendant contended that this suit is statute barred for having been commenced after a period of three months. Counsel referred to the averment in paragraph 11 of the 1^st Defendant’s Statement of Defence which stated that the cause of action arose on 5/8/16 as alleged by the Claimants. This means this suit is not maintainable in law for having been commenced outside the time permitted by section 2(a) of the Public Officers Protection Act. CW2, under cross-examination confirmed that the biometric capture exercise was halted on 5/8/16 and this suit was filed on October 2017 this makes it one year two months from the time cause of action in this matter arose and time of filing of this suit before the Court.
Counsel contended that the Director General of the 1^st Defendant is a public officer. By section 2(a) of the Public Officers Protection Act, where any action or prosecution, or other proceeding is commenced against any person for any act done in pursuance of or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.
It is argued by counsel for the 1^st Defendant that the Claimants had three months from 05 /08 /20 l 6 to institute this action against the Defendants but only commenced the suit on 11/10/2017 after a period of one year and two months clearly outside the three month prescribed by statute. In support of this contention counsel placed reliance on the case of Christiana I. Yare v. National Salaries, Wages and Income Commission (2008) 5 – 6 S.C. (Pt.I) 108 at 127, where the Supreme Court Per Ogunbiyi, JSC held thus;

” For purpose of emphasis and to put in a few words of mine, I wish to state that the Pubic Officers’ Protection Act operates to prohibit or limit institution of an action outside the statutory specified period of three months. Once the action is caught up by limitation period, it automatically robs the Court of its jurisdiction. The action in other words is statute barred.” See also the cases of Bakare v. Nigerian Railway Corporation (2007) 7-10 SC 1 at 17, Per Chukwuma-Eneh, JSC.; Upper Benue River Basin Development Authority v. Auta Alka & 7 Ors. (1998)· 2 NWLR {Pt.537) 328 at 339 (G – H); Williams v. Williams (2008) 4 -5 S. C. (P’t. II) 253 at 269; Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637.’’

According to counsel although the Claimants alleged that there was no formal communication to them as to when the biometric data capturing was halted, under cross examination, C.W. 2 confirmed that it was on the 5/8/16, thus, the cause of action arose on the 05/08/016. Counsel contended by the provision of section 2(a) of the Public Officers Protection Act, which is clear and unambiguous, the instant suit having not been commenced within three months from the 05/08/2016 is statute barred and removes the right of action, right of enforcement and right to judicial relief from the Claimants against the Defendants. In essence, there is nothing to enforce against the Defendants having lost the right of action which cannot be revived by any means against the Defendants. Thus, this Honourable Court is respectfully urged in resolving issue one against the Claimants that this suit is statute barred and cannot be maintained against the Defendants. This Honourable Court is further urged to dismiss same. On this contention counsel placed reliance on the cases of Adekoya v. Federal Housing Authority (2008) 4 S. C. 167; Woherem v. Emereuwa (2004) 6 -7 S. C. 161; and Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1.
In arguing issue two; whether the Claimants proved their claim on the balance of probabilities or preponderance of evidence, the 2^nd and 3^rd Claimants allege that they were purportedly offered employment along with 148 other faceless persons by the Institute after complying with all laid down procedure provided for recruitment.
It is the contention of counsel for the 1^st Defendant that the 1^st Defendant did not at any time recruited or employed any persons as alleged by the Claimants. The Claimants did not demonstrate or prove that the purported request to the Honourable Minister for Education by Dr. Aminu Ladan Sharehu to carry out any recruitment or replacement of staff exercise was approved by the Minister. There was no declaration of vacancy as required by the civil service regulations. The approval for waiver from the Federal Character Commission as well as issuance of Certificates of Compliance by the Commission were given in clear misrepresentation of the fact that the recruitment or replacement exercise sought to be carried out were in compliance with the Federal Civil Service Regulations for the employment of persons into the Federal Civil Service. Under cross examination, CW1 who said he was conversant with the procedure of employment into the Federal Government agencies could not demonstrate his knowledge of recruitment procedure into the Federal Civil Service.
Counsel also contended that DW1 in his sworn deposition has stated that before any Federal Government agency embark on fresh recruitment exercise or replacement of employees or staff in the agency, such agency must obtain the approval of its Governing Board or Council and, in the absence of such Council or Board, the Minister under which Ministry the agency belong to declare vacancy, advertise for recruitment and conduct interviews for prospective applicants and a report containing details of the entire exercise shall be sent to the said Minister at the conclusion of the exercise. That it is after the approval of the Minister for Education and the Head of Civil Service of the Federation has been obtained that such agency can approach the Federal Character Commission to monitor, supervise and guide the recruitment exercise by such agency and this was not done in the instant case. The evidence of DW1 to that effect was unchallenged and not controverted in any form under cross examination. It is trite law that evidence led and not challenged or controverted under cross examination must be accepted by Court as the truth of the fact they prove or establish. To buttress his contention counsel cited and relied on the cases of Governor of Zamfara State & 3 Ors. v. Gyalange & 12 Ors. (2012) 4 S.C. 1 at 32 – 33; Military Governor of Lagos State & 4 Ors. v. Adeyiga & 6 Ors. (2012) 2 S. C. (Pt. I) 68 at 116.
Counsel for the 1^st Defendant continuing with his submission argued that now the foundation of the case of the 2^nd and 3^rd Claimants is the letters of offer of appointment purportedly issued to the Claimants and frontloaded by them but not tendered in evidence. These letters were signed by one Yakubu Abdulkadir for the Director General of the Institute. The Director General of the Institute at the material time of the purported recruitment exercise was Dr. Aminu Ladan Sharehu. Dr. Sharehu did not sign the said letters of offer and there is nothing in the said letters authorizing the said Yakubu Abdulkadir to issue and sign such letters at the instance of Dr. Aminu Ladan Sharehu. By Exhibit DWA1-3, there is nothing to show that any recruitment or replacement exercise was carried out in the year 2016 prior to the expiration of the tenure of Dr. Aminu Ladan Sharehu in August 2016. From Exhibits DWA2 and DWA3, it is apparent that the purported recruitment exercise if any is bereft of compliance with federal character principle enshrined in the provisions of the 1999 Constitution as amended. Hence, Exhibit DWF, a letter of 02/11/2016 by which the Federal Character Commission recalled the Certificate of Compliance earlier issued to the institute having observed that the purpose for which the said Certificate was issued was not fulfilled.
In Exhibit DWJ which is the response of the Honourable Minister of Education to the open letter written by the Claimants to the Vice President of the Federal Republic of Nigeria, the Minster stated thus,

“I disallowed that employment exercise because both in its conception and execution, the exercise was irregular, as it was not conducted in accordance with rules and regulations.

To begin with, the exercise was conducted without my knowledge and approval. It was conducted without the representative of the ministry in attendance. Its outcome was not forwarded for consideration and approval by the ministry. And it was in total violation of the Federal Character principle, in spite of the presence of a representative of the Federal Character Commission. It was in breach of all requirements.”

It is the contention of counsel that in the face of Exhibit DWJ which is the nail by which the fate of the Claimants was sealed, can it be said that there was no basis for the nullification of the purported recruitment of the 2^nd and 3^rd Claimants along with 148 faceless persons purportedly employed by Dr. Aminu Ladan Sharehu?
Counsel further argued that DW1 who is the Head of Human Resources Unit of the Institute and has been in the employment of the Institute since the year 2012 maintained under cross examination that he was not aware of the said purported recruitment until it was stopped. He also confirmed that the entire appointment was shrouded in secrecy and that confirmed further that the certificates from the Federal Character Commission was cancelled because of non-compliance with the conditions like lopsidedness.
Counsel for the 1^st Defendant also contended that in an action for declaration that an act done by any person is either wrongful or illegal or contrary to principles of law, the claimant has the onerous task or duty to prove or establish not only that the said act was wrongful but that it contravened a specific law or regulation. The Claimants did not state or establish any law or regulation contravened by the 1^st Defendant. The 1^st Defendant does not employ or recruit persons into the service of the institute but ratifies any lawful or valid decision or policy made by the institute as empowered by its enabling statute. Counsel further argued that what is more, by dint of Exhibit DWJ, the 1^st Defendant has successfully established or demonstrated that not only was there a basis to nullify the entire recruitment process but to also halt the biometric data capturing by the IPPIS as the entire process that led to the purported recruitment of the 2^nd and 3^rd Claimants along with other 148 persons was a sham.
It is the submission of counsel for the 1^st Defendant that it is settled law that in any civil action or proceedings, the Claimant must prove his case on preponderance of evidence or balance of probabilities. This is because the burden or onus of proof is on the party who alleges or asserts the existence of any fact and would fail if no evidence is led by both sides. To support this assertion counsel relied on Sections 131 (1} & 133 (1} of the Evidence Act, 2011 and the cases of Okoye & 6 Ors. v. Nwankwo (2014} 6-7 S.C. (Pt. II} 29 at 92- 94; Obawole v. Williams (1996} LPELR 2158 (S. C.}; Umesie & Ors. v. Onuaguluchi & Ors. (1995} LPELR 3368 (S.C.}; Motunwase v. Sorungbe (1988} 12 S.C. (Pt. I} 130; and Bello v. Eweka (1981} 1 S.C 101 at 102. Counsel submitted that from the facts and totality of the evidence adduced by the parties, the Claimants have failed woefully to establish their claim as to entitle them to the grant of the reliefs sought.
In concluding his submission counsel for the 1^st Defendant urged the Court to dismiss the claims of the Claimants with substantial cost a fortiori.

THE SUBMISSION OF THE CLAIMANTS.

The Claimants adopted the two issues formulated by the 1^st Defendant and in addition formulated another issue making the issues for determination three and they are as follows:-
Whether having regard to the provisions of Section 2(a) of the Public Officers Act (Cap P41) Laws of the Federation of Nigeria, 2004, this suit as constituted is not statute barred having been commenced after a period of three month when the cause of action arose.
Whether on the state of pleadings before the Court and from the totality of the evidence adduced, the Claimants have proved their claim on preponderance of evidence or balance of probabilities.

III. whether in view of the facts and evidences before Court, the Claimants did not proved their claim on preponderance of evidence or balance of probabilities’

In arguing issue one, counsel for the Claimants contended that the 1^st Defendant did not tell this Court in its pleading or otherwise when the cause of action arose to enable this Court determine whether this action is statute barred or not according to counsel for the Claimants the 1^st Defendant cannot raise an issue to be determine by the Court without substantiating the issue with facts.
It is the contention of counsel that the provision of section 2(a) of the Pubic Officers Protection Act, is very clear, that actions and or suits against Public Officers can be voided if instituted outside the statutory period of three month. But, in this case the 1^st Defendant as we said earlier did not state in its pleading when did the cause of action arose and therefore cannot move this Court to discover such period for it despite extracting same information from cross examination. It is pertinent for the 1^st Defendant to know that Section 2(a) of the Public Officers Protection Act has an exception as decided in the case of FEJIMOLU VS. UNIVERSITY OF ILORI (2007) ALL FWLR PART 350 page 1365, where Court of Appeal stated as follows:-

“—–where the protection is not raised as a shield in limine and is merely pleaded and issues are joined and evidence led on it by the parties, the trial Court is entitled to examine the circumstances under which the cause of action or the act complaint was performed in order for it, in determining liability, to decide whether the protection has been vitiated by malice or bad faith”

Based on this decision and at this stage, this Court has to look at the entire suit before settling on this as we had stated in our pleadings that the action of the current Director General, Dr. Garba Dahuwa Azare was indeed for his personal and selfish reason hence malicious and in bad faith.
It is also pertinent to understand and know that the relationship between the 150 Claimants and the 1^st Defendant is a contractual relationship. However, the Supreme Court had clearly spelt out the categories of contract of employment in the case of CONTROLLER GENERAL OF CUSTOM VS. GUSAU (2017) ALL FWLR PART 911 PAGE 422 AT PAGE 436 as follows:-

(a) Purely master and servant relationship

(b) Servant who hold their officer at the pleasure of employer

From these aforementioned categories, it will be correct to say that, the contract of employment between the 150 Claimants and the 1^st Defendant is that of statutory flavour. This is because an employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in the regulations derived from statutory provision in the circumstances; they invest the employee with a legal status higher than the ordinary master/servant relationship. To support this contention counsel relied on the decision of the Supreme Court in the case of IMOLOAME VS. WAEC (1992) 11-12 SCNJ (PT. 1) 121 since the 1^st Defendant is a Government Agency which is regulated by law, there is no doubt that the employment between the 1^st Defendant and any of’ its employee must equally be regulated by law as well.
Moreover, haven determine that, the relationship between the 150 Claimants and the 1^st Defendant is a contractual one, it is apparent to know in settling issue No.1 raised by the 1^st Defendant, that Section 2(a) of the Public Officers Protection Act is not applicable to contract. This is settled in the case of OSUN STATE GOVT. VS. DALAMI (NIG.) LTD. (2007) ALL FWLR PT. 365 PG. 438 AT P. 440 where Katsina Alu JSC state that:-

‘’ It is now settled law that S. 2(a) of the Public Officers (Protection) Act does not apply to case of contract” See also the case of NIGERIAN PORTS AUTHOURITY VS. CONSTRUZIONI GENERALI FARSURA COGEFOR SPA (1974) 1 ALL NLR 463.

On the strength of the above cases counsel urged the Court to resolve issue one in favour of the Claimants, as issues of contracts are not affected by S. 2(a) of the Public Officers (Protection) Act.
In arguing issue two; counsel for the Claimants contended that it is not in issue that the 2^nd and 3^rd Defendants alongside other 148 employees where offered appointments by the 1^st Defendant. That was also confirmed by DW 1 under cross examination that there was employment by the former Director General of the 1^st Defendant and several averments in their statement of defence. However, it is a trite law that facts admitted need not to be prove and it is in this regard the appointment letters of the Claimants were indeed not tendered and also several documents before the Courts attest to that in this regard as the evidences of PW 1 and PW 2 had indicated that and same were not controverted. It is even clear that the 1^st Defendant had admitted that the appointment letters were issued to the employees but signed by Yakubu Abdulkadir at the instance of the Director General. It is a trite law that since the said Yakubu Abdulkadir signed for the Director General, the said appointment letters are deemed to be signed by the Director General himself and therefore remained valid and authentic. Counsel contended that it is a misconception for the 1^st Defendant to continue to agitate the facts that the said recruitment was done without approval of the minister in the absence of the Board. The documents brought to this Court by subpoenaed witness dated 9/3/16, clearly contained the approval of the Minister. On the issue of advertisement, the former Director General before embarking on the recruitment exercise sought and obtained waiver from Federal Character Commission on 16/3/16 and 14/4/16. The approvals for waivers are as contained in letters of 17^th March, 2016 and 18^th April, 2016 respectively. Interviews were conducted and the Federal Character Commission were invited vide letter dated 18^th March, 2016 wherein Hon. Salisu Jiwa and Mal. Yusuf Umar were sent to monitor the exercise. It is in this regard the former Director General Requested for Certificate of Compliance dated 21^st April, 2016 and 13^th April, 2016 respectively and it was on the basis of these request that certificate of compliance dated 21^st April, 2016 No. FCC/CC/NTI/016/001 and another dated 27^th April, 2016 No. FCC/CC/NTI/016/002 were issued to the 1^st Defendant. Upon issuance of the certificates of compliance, the former Director General complied with all the conditions stated in the certificates of compliance as the appointment letters were given to the employees within the three months stated and thereafter forwarded the updated staff nominal roll to the Federal Character Commission. Counsel contended with the above evidences, the 1^st Defendant cannot agitate that the Claimants did not proved their claim by preponderance of evidence or balance of probabilities. Counsel urged the Court to resolve this issue in favour of the Claimants.
In advancing argument in respect of issue three, counsel for the claimants contended that it is a fact that, the Claimants have stated in their pleadings and also established same by evidence which is the basis for this Court to make its decision as decided by the Supreme Court in the case of ISSAC VS. IMASUEN (2016) ALL FWLR PT. 823 P. 1894 ATP. 896 which state as follows:-

“Decisions of a Court of law proceed not only on the basis of pleaded facts but also on the basis of the facts as established by evidence in that behalf. Thus, any decision of a Court which proceeds in the absence of party’s pleadings and/or being perverse, would not endure on appeal”

Counsel contended that it is quite apparent that the Claimants have stated in their pleadings that they were absolutely denied the right to be engaged as employees of the 1^st Defendant by not making their appointment and or employment effective. The Claimants had pleaded facts on how the processes of their appointment started and concluded without contravening any law. These facts were also supported by evidences of PW 1 & 2 (sic) which were indeed not controverted. The documents pleaded by the Claimants were mostly public documents which the Claimants are not in possession of the originals of the document and the available secondary evidence cannot be admitted without being certified by the 1^st Defendant. Despite the facts that notice to produce was given to the 1^st Defendant to produce the Certified True Copy of the said pleaded documents, the 1^st Defendant withhold same and failed to produce document which by section 149 of the Evidence Act will work against the defaulting party as stated by the Court of Appeal in the case of UBA PLC VS. OGUCHUKWU (2016) ALL FWLR PART 825 P. 256 ATP. 260 as:-

“Service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document. It does not relieve the person serving the notice of the burden of producing the document if he can, or of proving its contents. Consequently, on the non-response to a notice to produce, the Court can invoke the presumption of withholding of evidence under S.149( d) of the Evidence Act against the defaulting party”

Counsel submitted it was because the 1^st Defendant failed to produce the Certified True Copy of the documents pleaded, that the Claimants’ resorted to subpoening the Registrar of the 1^st Defendant to enable the 1^st Defendant bring all the documents pleaded in their possession. However, the 1^st Defendant did so and we urge the Court to consider the said documents as part of the documents supporting the evidence of the Claimants. With these, it is quiet glaring that the Claimants have proved their claim on preponderance of evidence or balance of probability.
Counsel contended in respect of issue of recall of certificates of compliance (exhibit DWF), that Federal Character Commission has not stated any reason for recalling the said certificate of compliance, exhibit DWF. Since no reason had been given for the recall, the letter goes to no issue as it has no any evidential value in deciding this suit. Above all, the Federal Character Commission only has powers to recall certificates where appointment letters were not issued within three months. Appointment letters would become inoperative only if not issued within three Months. In support of this contention counsel relied on paragraph 8(1)(a) and (b) of Section C, part 5(e), third schedule to the constitution of the Federal Republic of Nigeria. By this constitutional provision, the Federal Character Commission has no power whatsoever, to recall certificates issued for the purpose of this employment. Any law contrary to this is void and has no effect. It is in this view; the Federal Character Commission did not state any reason in their letter for their action.
Another important issue raised by the 1^st Defendant for consideration is that, it was improper for the 1^st Defendant to continue saying that this employment was done in secrecy and even went further to say in their pleadings that the current Director General did not know anything about the said employment as the outgoing Director Genera did not state so in his handover notes. This is in their pleading as well as in the evidence of DW1. To sum up this argument, counsel referred the Court to P.154 of exhibit DWl-3. This exhibit clearly showed that the former Director General had notified the current Director General about this employment which is equally to the knowledge of the Federal Ministry of Education, who even directed the Biometric Data Capture. Counsel contended with all these revelations, the entire action of the current Director General and or the 1^st Defendant with regard to this appointment of the 150 employees is just a malicious act as all their arguments lacked substance with full of fabrications.
In concluding his submission counsel urged the Court to grant the claims of the Claimants as prayed.

THE SUBMISSION OF THE 2^ND DEFENDANT.

The 2^nd Defendant submitted lone issue for determination, to wit:

“Whether the Plaintiffs, (given their Statement of Claim, Witnesses Statements on Oath, the 1^st plaintiff’s answers to the 2^nd Defendant’s Counsel questions under cross examination on the 15/5/19}, were able to establish any claim against the 2^nd Defendant.”

In arguing the lone issue submitted for determination on behalf of the 2^nd Defendant, counsel started by contending that the Plaintiffs have woefully failed to establish any case against the 2^nd Defendant, continuing with his submission counsel argued that first duty of a litigant is to ensure that the Defendant he is bringing before the Court has done something or failed to do something which has or threatened to affect his legal right. It is not right for a litigant to just drag any person before the Court having no claim against such Defendant. If a Litigant does that a Court of law will strike such Defendant out of the case for misjoinder.
It is the contention of counsel that the Plaintiffs alleged that the 1^st Defendant employed them and along the way stop their biometric data capturing thereby depriving them the right to become full staff. There was nothing said in the whole processes filed by the Plaintiffs to indicate that the 2^nd Defendant was responsible for issuing the order to stop the Plaintiffs’ biometric data capturing. In fact, under cross examination on the 15/5/19, the 2^nd Plaintiff admitted that the 1^st Defendant was supervised by the Ministry of Education and that the 2^nd Defendant was not in control of the 1^st Defendant. It is therefore difficult to see how the 2^nd Defendant can be held responsible the actions or inactions of a Ministry or Agency it is not in control of.
Counsel also argued that the 2^nd Plaintiff, under cross examination further admitted that the 2^nd Defendant did not give instruction to the 1^st Defendant to stop the Plaintiffs ‘biometric data capturing which is the fulcrum of the Plaintiffs’ case against the 1^st Defendant. When a Defendant has not done anything or failed to do a thing that affects the legal write of a Plaintiff, if such a Defendant is joined, a Court of law will do justice by striking out such a party for misjoinder. This is because to give a judgment that will affect a party who has done nothing to affect the Plaintiffs’ legal right is contrary to our legal justice system. Counsel urged the Court to strike out the 2^nd Defendant from this case. To buttress this position counsel placed reliance on the case of OLUJITAN OSHOATOBA (1992)5 NWLR 257-385 at pg 329 par 7 where it was state:

“The test as to whether or not a person should be joined as a party to an action is whether the order the Plaintiff seeks from the Court affects the interference in the enjoyment of that other’s legal right.’’

It is the contention of counsel that the 2^nd Defendant has done nothing to affect the Plaintiffs’ legal right. Counsel contended that what the Court should look into in this case is the Plaintiffs’ Statement of Claim. The Plaintiffs failed to establish in this Court what the 2^nd Defendant has done to affect their legal right. Having failed in this regard counsel urged the Court to strike out the 2^nd Defendant from this case.
In concluding his submission counsel urged the Court to strike out the name of the 2^nd Defendant from this case due to non-disclosure of reasonable cause of action against the 2^nd Defendant.

COURT’S DECISION.

I have carefully perused the originating processes commencing this suit as well as the responses by the 1^st Defendant. I have equally digested the oral and written submissions of counsel in support of their respective positions canvassed before the Court.
Let me first and foremost deal with the position taken by counsel for the 2^nd Defendant in choosing to only file written address. The 2^nd Defendant did not file statement of defence to the claims of the Claimants. However, counsel on behalf of the 2^nd Defendant cross-examined witnesses that testified before the Court. At the close of the case counsel for the 2^nd Defendant filed a written address wherein he is contesting the propriety of suing the 2^nd Defendant in this case. The objection of the 2^nd Defendant to being made a party in this suit was hinged on non-disclosure of cause of action against the 2^nd Defendant by the Claimants. In the circumstances counsel urged the Court to strike out the name of the 2^nd Defendant for misjoinder.
Surprisingly, the counsel for the Claimants did not deemed it necessary to react or file any response to the written address of the 2^nd Defendant contending that the Claimants’ case did not disclose reasonable cause of action against the 2^nd Defendant to warrant being joined as a Defendant in this suit. This is an indication that the claimants do not have any contrary view and have accepted the position of the 2^nd defendant as the true position of things.
It is elementary principle of law that there must be a cause of action for an action to be maintained before a Court of law. This is an indispensable pre-requisite for successful prosecution of a suit before a Court of law. A suit is vindication of some legal rights. Such a right can only arise if certain material facts exist. Cause of action had been defined by plethora of decision to simply means ‘factual situation the existence of which entitles one person to obtain from the Court a remedy against another person’ or ‘’the facts which constitutes the essential ingredients of an enforceable right or claim’’. The phrase comprised every fact which is material to be proved to enable the plaintiff to succeed. See EGBE V ADEFARASIN (1985) 5 SC 50, ALESE V ALADETUYI (1995) 7 SCNJ 40. By another definition cause of action ‘is in effect, the facts or combination of facts which gives rise to a right to sue and it consists of two elements, the wrongful act of the Defendant which gives the plaintiff his cause of complaint and the consequent damage’. See SAVAGE V UWEICHIA (1972) 1 ALL NLR (PT.1) 251, EGBUE V ANKA (1988) 2 NWLR 598, (1988) LPELR-1038(SC), ADESOKAN V ADEGOROLU (1997) 3 SCNJ 1. It is also referred to as ‘the act on the part of the Defendant which gives the plaintiff his cause of complaint’. A cause of action is constituted by the bundle of aggregate of facts which the law recognizes as giving the plaintiff a substantive right to make a claim for remedy or relief. It is, in short, the factual ingredients of a legal right or claim. A cause of action simply means the facts which when proved will entitled a plaintiff to a remedy against the Defendant. See OSHOBOJA V AMUDA (1992) 7 SCNJ 317. The factual situation which the claimant relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed against the Defendant. It has also been stated that having regards to the provisions of section 6(6) of the constitution a cause of action is the question as to rights and obligation of the plaintiff founding the action to be determined by the Court in favour of one party against the other party.
To determine whether a cause of action has been disclosed or not, the Court is obliged only to look at the claim of the Claimants. See KUSADA V SOKOTO NA (1968) 1 ALL NLR 377, ADESOKAN V ADEGOROLU (1997) 3 SCNJ 1. Where statement of claim discloses no cause of action and the Court is satisfied no amendment no matter how ingenious will cure the defect, the statement of claim will be struck out and the action dismissed. THOMAS V OLUFOSOYE (1986) 1 NWLR 664. It must be pointed out here that the statement of defence is irrelevant in considering issue of cause of action, but the entire circumstance of the claim will be considered.
In the case at hand by their statement of facts the Claimants were seeking for declaration and orders directing the Defendants to give effect to their employment. The reliefs being sought by the Claimants have been reproduced in the earlier part of this judgment, therefore, there is need not to be reproduced them again. It is without any doubt that there is no relief or claim that was specifically against the 2^nd Defendant. In facts the evidence before the Court which was elicited under cross-examination clearly goes to show that the 2^nd Defendant has not in any way whatsoever been in the picture of the predicament of the Claimants. The stoppage of biometric data capturing exercise of the Claimants was what propelled the Claimants to bring this action was never on the directive or instruction of the 2^nd Defendant. The 2^nd Defendant having not ordered the stoppage of biometric capturing of the Claimants cannot be made a party in a suit challenging the stoppage of the capturing exercise. What is clear from the evidence as elicited under cross-examination is the fact that the exercise was being carried out at the office of the Accountant General of the Federation and the officers doing the exercise are officers of the office of the Accountant General of the Federation which is an independent office established under the Constitution of the Federal Republic of Nigeria 1999, as amended. See section …. It is my view that the 2^nd Defendant in this suit is not a necessary party to be sued in this suit as there has been no reasonable cause of action established against it. In the circumstance without wasting of much time the name of the 2^nd Defendant is hereby struck out from this suit for misjoinder.
Another issue to be resolved is the call by counsel for the Claimants’ for the Court to make use of documents brought to the Court by subpoena to make findings in favour of the Claimants. Simply, because those documents have been pleaded and the 1^st defendant put on notice to produce them. Counsel also urged the Court to apply section 149 (d) of the evidence Act against the Defendant in respect of the documents.
I found the submission of counsel for the Claimants on applicability of section 149 (d) of the Evidence Act amusing. The reason being that the documents which the counsel for the claimant is asking the Court to use in holding that the Claimants have proved their case were pleaded and notice to produce given. In addition a subpoena was issued for their production at the behest of the counsel for the Claimants. Indeed, the documents were produced and counsel for the Claimants confirmed that the documents produced before the Court were the documents requested to be produced by subpoena. Surprisingly, however, counsel for the Claimants did not make any attempt to have the documents tendered and admitted in evidence. The counsel for the Claimants having not tendered those documents in evidence cannot call on the Court to rely on them to make finding in favour of the Claimants based on documents not tendered and admitted in evidence.
The law is well settled that documents not tendered and admitted have no evidential value and cannot be relied upon by any of the parties. A Court is not allowed to act on document not tendered and admitted in evidence before the Court. The mere fact that document have been produced via subpoena does not automatically make those document admitted in evidence. There must be proper application by counsel wishing to rely on those documents to apply to tender them in evidence. In the case at hand there was no such application made before the Court for the admission of those documents. The counsel for the Claimants was content with the production simpliciter. It is trite that no Court is allowed to go outside the gamut of evidence before it to shop for material upon which to use to decide a case before it. See SKYE BANK PLC V CHIEF MOSES B. AKINPELU (2010) 9 NWLR (Pt.1198) 179, OPARAJI V OHANU (1999) 9 NWLR (Pt.618) 290, OLAGBEMIRO V AJEGUNGBADE iii (1990) 3 NWLR (PT.136) 37 at 63, SOMMER & ORS. V FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (PT.219) 548 at 557-558. Indeed, the law is settled that a document which has not been tendered and admitted in evidence as an exhibit by the Court, is not to be relied upon, in absentia, by the Court. See GBAJOR V OGUMBUREGBU (1961) All NLR 863;
Another pertinent issue is on evidential value of exhibit DWA1-3, both counsel for the Claimants and 1^st Defendant have placed heavy reliance on this exhibit to support the claim of disclosure and non-disclosure of the employment of the Claimants by the former Director General of the 1^st Defendant in his handing over notes to the new Director General. The cover of exhibit DWA1-3, clearly shows that the document is a handing over notes. It has a cover page, pages 153 and 154. However pages 1-152 were omitted and there was no explanation as to why those pages were not produced. It is only the cover, pages 153 and 154 that were frontloaded and tendered in evidence. It is not even tendered as an extract in which case it would have been admitted as an extract. This means that it is an incomplete document. As an incomplete document, therefore, the authenticity of exhibit DWA1-3 is in issue. An incomplete document is admissible and lacked evidential value. In the circumstance exhibit DWA1-3, is hereby discountenanced for purposes of this judgment as it has no evidential value as the document is rendered suspect in its authenticity and probative value. I do not know why the entire document should not be tendered in evidence when it has not been shown that it is too large to make its production difficult.
The counsel for the Claimants in response to submission of the 1^st defendant on non-tendering of letters of employment contended that there was no need for tendering the said letters as the 1^st defendant has admitted employment of the Claimants. What can be gathered from the pleading of the 1^st defendant and the witness statement on oath of DW1, is that the 1^st defendant denied employing Claimants or absorbing them as alleged by the Claimants. See paragraphs 3(c), (d), 5, and 6(g) of the statement of defence. These averments have made issue of employment of the Claimants by the 1^st defendant in issue. This also means that the Claimants have onus of proving their employment with the 1^st defendants by tendering their letters of engagement which they failed to do. This is fatal to the case of the Claimants. This is because letter of employment is the initial document that establish the contractual relationship between parties.
Having dealt with the preliminary issues, I shall now turn to resolution of the issues for determination.
Issue one; borders on section 2(a) of the Public Officers Protection Act.
The counsel for the 2^nd Defendant has argued that the Claimants’ action has been caught up by the provisions of section 2(a) of the Public Officers Protection Act, which requires filing of an action against a public officer within three Months of the alleged act or omission. The counsel for the claimant on his part has argued that the provision of section 2(a) of the Public Officers Protection Act is not applicable to this suit. According to counsel it does not operate at the face of glaring disregard to the rights of persons as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel also argued that the provision does not protect officer who acted in abuse of office or in bad faith by disengaging the claimant without recourse to law.
Counsel for the 1^st Defendant contended that this suit is statute barred for having been commenced after a period of three months. Counsel referred to the averment in paragraph 11 of the 1^st Defendant’s Statement of Defence which stated that the cause of action arose on 5/8/16 as alleged by the Claimants. This means this suit is not maintainable in law for having been commenced outside the time permitted by section 2(a) of the Public Officers Protection Act. CW2, under cross-examination confirmed that the biometric capture exercise was halted on 5/8/16 and this suit was filed on October 2017 this makes it one year two months from the time cause of action in this matter arose and time of filing of this suit before the Court.
By section 2(a) of the Public Officers Protection Act, where any action or prosecution, or other proceeding is commenced against any person for any act done in pursuance of or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.
For counsel for the Claimants the provision of section 2(a) of the Pubic Officers Protection Act is very clear, that actions and or suits against Public Officers can be voided if instituted outside the statutory period of three month. Counsel contended that Section 2(a) of the Public Officers Protection Act has provided exception to the general rule of 3 Months, like where bad faith is established. Counsel contended that the Claimants have by their pleadings established bad faith and malice. Counsel also contended that the relationship between the parties is contractual and that the provision of Section 2(a) of the Public Officers Protection Act is not applicable to contract.
It is manifestly clear from the complaint and the statement of facts that the biometric capturing of the Claimants was stopped on 5/8/16 and this suit was filed on October 2017, this makes it one year two months from the time cause of action in this matter arose and time of filing of this suit before the Court. The Claimants are however, contesting that section 2(a) of Public Officers Protection Act is not applicable to cases of contracts which this case is one.
By the argument canvassed by the Claimants they admitted not bringing this action within 3 Months as required by the provision of section 2(a) of the Public Officers (Protection) Act. This clearly shows that it took the Claimants one year two months to institute this action from the date of accrual of cause of action on 5/816 to October 2017. The Claimants have admitted not bringing this action within three months against a public officer as required by section 2(a) of the Public officers Protection Acct. thus, why the Claimants argued that the protection provided for under Public Officers Protection Act does not extend to acts done maliciously or in bad faith.
It should be noted that the purpose of Public Officers Protection Act, is meant to protect officers in civil liability for any wrongdoing that occasion damages to any citizen, if the action is not instituted within three months, after the act, default or neglect complained of. See YABUGE V COP (1992) 4 SCNJ 116; (1992) NWLR (PT.234) 152, (1992) LPELR-3505(SC). The law is designed to protect only the officer, who acts in good faith and does not apply to acts done in bad faith. See OFFOBOCHE V OGOJA LOCAL GOVERNMENT & ANOR (2001) 16 NWLR (PT.739) 458, (2001) 7 SC (Pt.iii) 107., Where statute has provided period within which an action can be commenced, proceedings shall not be brought after the expiration of the period prescribed. Any action instituted or commenced after the period prescribed for its commencement will be statute bared. See IBRAHIM V JSC KADUNA STATE (1998) 14 NWLR (Pt.584) 1, EGBE V ADEFARASIN (1986).
There is no disputing the fact that this suit is seeking for giving effect to contract of employment, which means that the claim of the Claimants is based on contract of service. The law is settled beyond peradventure that section 2(a) of the Public Officers Protection Act does not apply to cases of land, work done, labour and contracts. See OSUN STATE V DALAMI NIGERIA LTD (2007) 9 NWLR (Pt.1038) 66, (2007) 3 SC (pt.i) 131, (2007) 6 SCM 145, (2007) LPELR-2817(SC), NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION & 2 ORS. V AJIBOLA JOHSON & 10 ORS (2019) 2 NWLR (PT.1656) 247. Based on the foregoing decisions of the apex Court of the land, I am left with no option than to hold that since this is an action based on contract of service the provision of the Public Officers Protection Act is not applicable to this case. This means that the Claimants’ suit is not statute barred as per section 2(a) of Public Officers (Protection) Act.

RESOLUTION OF ISSUE TWO & THREE

Issues two and three are same they were only couched in different tunes, consequently, I shall deal with the two issues together.
I think the main area of disagreement between the parties in this suit is with regard to compliance with the laid down procedure in the process that culminated in the issuance of letters of appointment to the Claimants. For the Defendant the process that was followed in employment of the Claimants did not follow due process. Therefore, the Claimants cannot be said to have been engaged by the Defendant. The Defendant supported this position by claiming that the approval of the Minister of Education was not sought by the former Director-General before embarking on the recruitment exercise. also there was no declaration of vacancies and the waiver given by Federal Character Commission was based on misrepresentation of facts. Thus, why the certificate of compliance was withdrawn. There was also no approval of the Minister of Education after the conduct of the process. It was also alleged that the process violated Federal Character Principle. The Claimants on the other hand insisted that there was compliance with due process. They stated that there was approval of the Minister for the conduct of the exercise, there was waiver granted by the Federal Character Commission on advertisement for the recruitment, the officials of Federal Character Commission graced the conduct of the interview conducted for the recruitment exercise. Also certificate of compliance was issued by the Federal Character Commission in respect of the exercise based on which letters of appointments were issued to the Claimants. Thereafter, the Claimants did documentations they were also issued with identification numbers and were asked to go for Biometric Data Capturing for them to be in IPPIS, which will enable them to be paid salaries. It was while the biometric data capturing exercise was in progress after about twenty five employees have been captured that the exercise was on 5/8/16, abruptly stopped on the orders from above. The position of the 1^st Defendant as can be gleaned from the statement of defence and the witness statement on oath adopted by DW1 as his evidence in proof of the defence, for any recruitment exercise to be said to be in line with laid down rules and regulations, the vacancies to be filled by the recruitment exercise must be declared and advertised both internally and externally. Where there is no governing council the approval of Minister of Education must be sought and obtained for the carrying out of the exercise. The approval of the Head of service is also needed. It is after the declaration of vacancies, advertisement and approvals of Minister and Head of Service that the Federal Character Commission should be invited to monitor supervised and guide the exercise. The approval of Minster is also needed after the exercise before letters of appointment are issued. The 1^st Defendant averred that Dr, Aminu Ladan Sharhu, embarked on private recruitment under the guise of carrying out official exercise. This was in total disregard of extant rules and regulations. The exercise was done when there was no governing council in place that by law must approved the exercise.
It was also alleged that the purported recruitment was lopsided as states that have substantial number of employees with the institute were given huge numbers of candidates in the recruitment. While some states were not given any candidates. This was in violation of the federal character principle as enshrine in the Constitution.
The Claimants maintained that the recruitment exercise was done in compliance with rules and regulations. There was waiver of advertisement granted by Federal Character Commission. The officials of Federal Character Commission supervised and monitored the interview conducted for the recruitment exercise and a certificate of compliance issued to that effect which paved way for issuance of letters of appointments dated 29/4/2016. Thereafter, the Claimants reported and did documentation; identification numbers issued to them and were asked to go for biometric data capture.
The resolution of the dispute between the Claimants and the 1^st Defendant will be based on proper consideration of the applicable laws and extant rules and regulations of the defendant.
Now, the 1^st Defendant was established by section 1(2) of the National Teachers Institute Act as a body corporate with perpetual succession and a common seal. The composition of the 1^st Defendant is as contained in section 2 of the Act. The chairman and members of the council shall be appointed by the president on the recommendation of the minster. In the day to day running of the institute the Director appointed by the President on recommendation of the Minister is the Chief Executive of the Institute.
By section 5 of the Act the Registrar and other staff of the institute are appointed by the council. The council is the governing body of the institute and shall have the general management of the affairs of the institute, and in particular, the general control of the institute and power to do anything which in its opinion is calculated to facilitate the carrying out of the objects of the institute and to promote its best interest. Vide section 16 of the Act, the minister is mandated to make rules generally for the purposes of this Act. Vide item 5(2) (c) of the Schedule to the Act, the council is mandated to appoint an appointment and promotion Committee. By paragraph 7(2) decision of Committee must be confirmed by the council before it can be effective.
It is clear from the foregoing, that the responsibility of appointment of members of staff of the 1^st is vested in the Committee on appointment, promotion and discipline. At the conclusion of its work the Committee’s report has to be approved or confirmed by the Council for it to have legal backing.
The 1^st Defendant has made heavy whether on the need for approval of the Minister for recruitment to be carried out as well as approval of the report of at the end of the exercise. The Claimants have countered the position of the Defendant by stating that there was approval of the Minister for the exercise which they claimed is among the document produced by subpoenaed witness. However, the said document containing the purported approval of Minister was not properly before the Court as it was not tendered and admitted as exhibit. I have also noticed that the said document is not legible. It can only be read by straining once eyes. In the circumstance, the said document has no evidential value; it cannot aid the Claimants in proof of their case. I so hold.
In any event, I have carefully perused and painstakingly read through the entire provisions of the National Teachers Institute Act which establishes the 1^st Defendant and the Staff Regulations and Conditions of Service, but I cannot find any section of the law that required seeking for approval of the Minister for recruitment exercise or approval of the outcome of recruitment exercise. What is clear from the law is that recruitment is done by Committee of the Council, the outcome of which has to be approved by council for effect to be given to the exercise.
In the case at hand, the recruitment exercise was done by the then Director General in the absence of the Council. This position was not disputed by the Claimants. As at the time the recruitment exercise under consideration was conducted by Dr. Aminu Ladan Sharehu, Director General of the 1^st Defendant as at then, there was no legally constituted Council in place as provided under section 2 of the National Teachers Institute Act. The question to be asked is has the Director General got powers to engage in recruitment exercise in the absence of the Governing Council of the 1^st Defendant. I dare to say capital NO. The Director General does not have such powers to on his own embark on such an important exercise. For anybody or person to engage in such venture, must show that he has the mandate of the Council and since it has been establish by evidence of DW1 that as at the time the exercise was carried out there was no Council in place, the Director General cannot be said to have mandate of the Council in that regard. More so, when the law does not make provision for the Director General to assumed the duties of Council in its absence.
Another angle to this issue is in the name Director General, the law establishing the 1^st Defendant in section 2(e) and section 4(1) of the National Teachers Institute Act recognizes Director of the Institute, who shall be appointed by the President on the recommendation of the Minister. There was nowhere in the Act that Director General is recognized. This goes to show that the actions taken by the Director General to embark on recruitment exercise was without legal backing. In fact the Director General has no such powers under the law as the law did not recognize Director General but Director of the Institute. Therefore, all actions taken by the Director general in respect of the recruitment exercise were null and void and of no effect whatsoever.
The parties have also joined issue on advertisement of vacancies to be filed. The Claimants relied heavily on waiver granted by Federal Character Commission to justify the recruitment exercise that culminated in issuance of letters of employments to the Claimants. I have assiduously studied the Federal Character Commission Act. It is clear to me that there is nothing in the Act to empower or mandate the Commission to grant waiver. The Commission’s role in recruitment is to monitor, supervise and guide the recruitment exercise to ensure compliance with Federal Character principle. The waiver granted is of no moment as per as this suit is concerned. In fact advertisement for recruitment is mandatory. The law requires giving of six weeks’ notice for candidates wishing to apply to be able to submit their applications.
The Defendant has also raised issue of non-compliance with Federal Character Principle in the recruitment exercise despite the presence of two officials of the Federal Character Commission, who have were mandated to monitor, supervised and guide the exercise. Exhibit DWJ clearly shows that there was non-compliance with the Federal Character Principle in the recruitment exercise that culminated in the appointment of the Claimants. Surprisingly, the Claimants did not bother to respond to the weighty allegation of non-compliance with Federal Character Principle. The Claimants were content with certificate of compliance issued by Federal Character Commission which paved way for issuance of letters of employment dated 29/4/16 to them. The two certificates of compliance were tendered and admitted in evidence marked as exhibits DWH and DWI1-6, respectively.
Exhibit DWH is a certificate of compliance dated 21/4/16 issued to Director General/Chief Executive, National Teachers Institute for recruitment of 100 candidates. However, a careful perusal of the list of the 100 candidates cleared for appointment was not in compliance with the principle of Federal Character as enshrined in section 14(3) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), for which the Federal Character Commission was established to protect and ensure compliance by all concerned. Thirty four candidates out of 100 candidates cleared by exhibit DWH were all from Kaduna State. Out of the Thirty six States of the Federation only twenty (26) were given slots. The states that have candidates in the list are Abia, Benue, Cross-rivers, Edo Gombe, Jigawa, Kano, Kaduna, Katsina, Niger, Kwara, Adamawa, Soko, Zamfara, Ebonyi, Yobe, Borno, Enugu, Imo, Taraba, Ogun, Oo, Osun, Lagos, Nasarawa,, Kebbi and the FCT. The States that were excluded and not given any slot in the recruitment exercise are, Anambra, Bauchi, Delta, Akwa-Ibom, Bayelsa, Kogi, Ondo, Plateau, Ekiti and Rivers States.
On exhibit DWI1-6, which is certificate of compliance dated 27/4/16, was for fifty candidates that were cleared as shown on the table attached to exhibit DWI1-6. It is clear that seventeen out of the 50 candidates are from Kaduna State. In exhibit DWI1-6, only 16 States have candidates. The states with candidates are: Adamawa, Borno, Jigawa, Kano, Kaduna, Katsina, Niger, Gombe, Oyo, Kogi, Zamfara, Sokoto, Oyo, Benue, Osun and Yobe States.
From the lists attached to exhibits DWH and DWI1-6, one does not need soothsayer to be told that there is violation of Federal Character principle in the recruitment exercise, which the Federal Character Commission issued certificates marked exhibits DWH and DWI1-6. It is my finding that the two certificates of compliance marked as exhibits DWH and DW11-6, were not true reflection of what they tend to establish. Therefore I have no hesitation in holding that the recruitment exercise that resulted in the employment of the Claimants based on exhibits DWH and DWI1-6, was fraught with irregularities to the extent that the infraction has rendered the entire exercise illegal for violation of clear and unambiguous provisions of Federal Character principle.
The decision to hold that the entire exercise was illegal is based on trite principle of law that Court should not give effect to a transaction which was forbidden by the law. See WARRI ESI V MORUKU (1940) 15 NLR 116, ADU V MAKANJUOLA (1944) 10 WACA 168, ACB V OLADIPO (1951) 13 WACA 285, JOHN CHIVERS V DAVIS OF AMERICA LTD (1972) CCHCJ 121.
It is to be noted that section 14 (3) of the constitution has imposed a duty on employers of labour as well as on Federal Character Commission in respect of compliance with Federal Character principle. Therefore, it is illegal to waived a duty imposed by constitution and statute. The Court will not condone such illegality once brought to its attention. See WHEELER V NEW MERTON BOARD LILLS LTD (1933) 2 k. b. 669.
Even, if, on appeal the position taken above regarding the illegality of the exercise, it is found to be wrong, the purported employments of the Claimants will still not stand. The reason being that, exhibit DW1J, has established that the Claimants’ employment was halted by the Minister of Education upon his discovery that there is violation of Federal Character principle in the process of recruitment. The halting of the biometric exercise by the Minister is an intervention that has made the continued operation of the contract of service difficult, if not impossible between the Claimants and the 1^st defendant. In view of this since the halting of the biometric data capturing was not from any parties to the contract of service, the Claimants’ contract of employment is afflicted by the doctrine of frustration. This is because the Minister of Education has no role to play in the recruitment exercise but went ahead to halt same and made the operation of the contract of service difficult to be carried out. The intervention of the Minister has rendered the contract frustrated. A similar situation occurred in the case of NATIONAL REVENUE MOBILZATION ALLOCATION AND FISCAL COMMISSION & 2 ORS V AJIBOLA JOHNSON & 10 ORS. (2019) 2 NWLR (Pt.1656) 247, where a contract of service was adjudged frustrated by the circular of government directing cancellation of recruitment exercise. Applying the principle of law enunciated by the Supreme Court, in the quoted Revenue Mobilization’s case (supra) to this case, it will be correct to say that the Claimants contract cannot be given effect due to due to frustration.
From all I have been saying, the Claimants have not been able to convince this Court that they are entitled to judgment in this suit, as they have not been able to show that due process was followed in their engagement as members of staff of the 1^st Defendant. The absence of governing council of the 1^st Defendant has rendered the contract of service ab initio illegal as the then Director General who conducted the purported exercise was not the appropriate officer to engage them without council been in place. The law has vested the power of recruitment on the council or anybody or person the council mandated to perform such task.
The exercise was also carried out in violation of the well cherished federal character principle, which is a long standing government policy aimed at ensuring equity and equal distribution of posts.
It is to be noted that the federal character principle is a well-thought out policy of government geared towards instilling sense of belonging amongst the ethnic nationalities cohabiting in the entity called Nigeria. It also serves as a means of cementing cordial relationship between the various ethnic nationalities. It is also used as a vehicle to enhance peace and unity among the federating units that made up the country. It is in view of the importance of this principle that violation of it should be deprecated. Thus, why its violation was criminalized.
The Federal Character principle is also in harmony with the international best practices and ILO convention 111 which prohibit discrimination of any type in employment. The Federal Character principle is equally in tandem with the Constitutional provisions prohibiting discrimination.
In view of the foregoing, this Court cannot accede to the request of the Claimants for the 1^st Defendant to be directed to make the Claimants appointment effective. To do so will amount to encouraging violation of extant provisions of the Constitution as amended and Statute, which were made to ensure peaceful co-existence and sense of belonging by all and sundry.
On the whole the Claimants have failed to prove their case. The Claimants claims failed and are hereby dismissed.