Goldcoast Eyerindideke -VS- Ekeremor Local Government

IN THE NATIONAL INDUSTRIAL COURT OF NIGERA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: OCTOBER 18, 2018 SUIT NO: NICN/YEN/195/2016

BETWEEN:

GOLDCOAST EYERINDIDEKE ..…………… CLAIMANT

AND

EKEREMOR LOCAL GOVERNMENT COUNCIL ……………. DEFENDANT

REPRESENTATION

Bernice Enebilo Boloupremo Esq. appears for the Claimant.

Pere Police Esq. with Bello Velia for the Defendant.

JUDGMENT

INTRODUCTION AND CLAIMS

The Claimant by a Complaint dated 31^st October, 2016 and filed on the same date approached this Court and sought for the following reliefs:

A DECLRATION that the Claimant is an employee of the defendant and as such entitled to his full salaries and allowances.
A DECLARATION that the non-payment of the Claimant’s monthly salary and allowances from September, 2015 till date is wrongful in law.
AN ORDER of this Honourable Court directing the Defendant to pay to the Claimant his full salaries and allowances forthwith as at when due and monthly.
AN ORDER of this Honourable Court compelling the Defendant to pay to the Claimant his accrued arrears of salaries calculated at Forty-Four Thousand Naira (N44,000.00) only per month from September, 2015 till judgment is delivered.
AN ORDER of this Honourable Court restraining the Defendant either by themselves, their servants, agents, privies or otherwise howsoever from further stopping and or defaulting in the payment of the Claimant’s monthly salaries and allowances as an employee of the Defendant.
AN ORDER directing the Defendant to pay the sum of Two Million Naira (N2,000,000.00) only as general damages.
AN ORDER directing the Defendant to pay the sum of One Million Naira (N1,000,000.00) only for the cost of this action.

The Claimant filed Statement of Facts, Witness Deposition on Oath and List of Documents to be relied upon in the cause of trial. The Claimant also filed a Reply to the Statement of Defence filed by the Defendant dated 27^th February, 2018. The Claimant also filed a Further Written Statement on Oath dated 27^th February, 2018 and filed on the same day.

The Defendant entered appearance properly on the 12^th February, 2018 after this Honourable Court granted an application for leave to file his processes out of time. The Defendant filed Statement of Defence, List of Witnesses and Witness Deposition on Oath all filed on the 12^th February, 2018. In the cause of trial, the Claimant testified on the 12^th day of March, 2018 as CW1 and he was equally cross examined on the same date. The Claimant also tendered two EXHIBITS (EXHIBIT CW1 001 AND EXHIBIT CW1 002).

The Defendant called a sole witness, one Mr. Egbegbe Benapade as DW1 who testified on the 19^th of April, 2018 and was equally cross examined on the same date. The witness did not tender any documents. At the close of trial, this Honourable Court ordered parties to file their Final Written Addresses which were filed and subsequently adopted on the 9^th day of July, 2018.

THE CASE OF THE CLAIMANT

The Claimant’s case is that he became an employee of the Defendant, Ekeremor Local Government Council which is a body established under section 7 (1) of the First Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) when he was issued a Letter of Appointment dated 30^th October, 2006. And the employment was further confirmed on the 28^th day of August, 2013 vide a Letter of Confirmation of Appointment issued to the Claimant by the Defendant.

The Claimant further stated that he was promoted on the 22^nd day of January, 2014 to the rank of Chief Clerical Officer and became entitled to a monthly salary of Forty-Four Thousand Naira (N44,000.00) only with other obligations and financial benefits. And that from September 2015, the Defendant has continually failed and or refused to pay the Claimant his monthly salary and all attempts by the Claimant to recover his salary has proved abortive.

The Claimant in his Witness Deposition stated that he was interviewed by the Ekeremor Junior Staff Management Committee on the 25^th October, 2006 and was offered employment as a Clerical Officer on Salary Grade Level 04 Step 2 and since November 2006, has been receiving salaries and other entitlements and benefits from the Defendant. The Claimant also stated that since his employment, he has been promoted from the rank of Clerical Officer on salary grade level 04 to his present rank of Chief Clerical Officer on Salary Grade Level 07.

The Claimant further stated that at the end of September 2015, his monthly salary was not paid and he immediately approached the cashier of the Defendant who told the Claimant that it was a mix-up that he will meet the Treasurer and the Head of Local Government Administration to rectify same. That after waiting for the aforementioned persons for several months, he reported his predicament to the National Union of Local Government Employees Chairman of Ekeremor Local Government Chapter but did not yield any result despite all assurances. The Claimant further stated that the Defendant owes him accumulated salary of fourteen months from September, 2015 till the filing of this suit. The Claimant being aggrieved by the Defendant’s refusal to pay his entitlements, seeks the reliefs as set out in the Complaint as well as in paragraphs 12 (1) – (7) of his Statement of Facts.

CASE OF THE DEFENDANT

The Defendant through his lone witness, one Mr. Egbegbe Benapade, a staff of Ekeremor Local Government Council in his Deposition on Oath stated that the Claimant’s employment was stopped when a staff verification exercise was conducted sometime in 2015. Defendant further stated that the name of the Claimant and other staff was removed from the Defendant’s nominal roll by the Staff Verification Committee headed by Chief T.K.O. Okorotie in August, 2015. And that those who were removed from the Defendant’s nominal roll, including the Claimant, jointly and severally petitioned the Bayelsa State Government to direct the Defendant to reinstate them and as a result, the Bayelsa State Government set up a Committee to look into the matter. The Committee later cleared about three hundred staff who were eventually reinstated. DW1 also testified that the Defendant is willing to pay the salaries of its staff once the Bayelsa State Government released funds to the Defendant or when the financial status of the Defendant improves.

The Defendant further stated that the non-payment of its staff is not deliberate as non-payment of salaries by Local Government Councils in Nigeria also affected other States of the Federation which monthly allocation was not enough to pay workers. The Defendant states further that sometime in March 2017, the Bayelsa State Government released a month’s arrears to the affected staff including the Defendant. And that the Defendant owes every of its workers arrears of salaries running from nine months to eighteen months and that the Defendant’s failure is not deliberate. The Defendant further states that Claimant’s action is vexatious and frivolous. That he brought this action in bad faith to further frustrate the Defendant.

SUBMISSIONS OF THE DEFENDANT

The Defendant raised a lone issue for determination as follows:

Whether given the circumstances of this case, Claimant’s reliefs can be granted by this Honourable Court.

Counsel to the Defendant referred to the provisions of section 7 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides as follows:

“The system of local government by democratically elected local government councils is under this Constitution guaranteed, and accordingly, the Government of every state shall subject to section 8 of this Constitution, ensure the existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.”

The Defendant further averred that section 7 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that:

6 (a) the National Assembly shall make provisions for statutory allocation of public revenue to local government councils in the Federation;

6 (b) the House of Assembly of a State shall make provisions for statutory allocation of public revenue to local government councils within the state.

Further, section 48 of the Bayelsa State Local Government Law, 2000 provides that:

(1) The State shall maintain a special account to be called “State Joint Local Government Account” into which shall be paid all allocations to the Local Governments of the State from the Federation Account and from the Government of the State; and

(2) The revenue standing to the credit of Local Governments in the Joint Local Government Account Allocation Committee (in this Law referred to as “the Allocation Committee”) established under the Allocation of Revenue (Federation Account) Act among the Local Governments in the State in such a manner and using the factors specified in section 49 of this Law.

It is the contention of the Defendant from the aforesaid that the Bayelsa State Government ensures the provision and management of finance for the Defendant from the Federation Account and its internally generated revenue as well as the Derivation Fund.

The Defendant further content that when the allocation that is due to the Defendant is received by the Bayelsa State Government, same is kept in the State Joint Local Government Allocation Account before being distributed to the Defendant. And that this is evident in both the Defendant’s Statement of Defence as well as the evidence of DW1 in paragraph 11 of his Written Deposition on Oath where he stated that “I know as a fact that the non-payment of its staff is not deliberate,” and which was not controverted by the Claimant during cross examination of DW1 by the Claimant’s Counsel.

Further, the Defendant avers that it is the law that a trial court has a primary duty after hearing the evidence from witnesses and watching their demeanor to evaluate relevant and material evidence adduced by both parties, having regard to the pleadings of the parties. The court must thereafter show how and why it came to its finding of fact and final determination of the issue before it. And that the court must have regard to certain guidelines like admissibility of evidence; relevancy of the evidence; credibility of the evidence, and probability of the evidence of one party more than that of the other. The court, having satisfied itself that the foregoing have been complied with, it shall now apply the law to the situation presented in case before it has to arrive at a conclusion one way or the other. CITES OYEWOKE VS. AKANDE & ANOR (2009) 8-9 NMLR (PT. 454) 473, PARA. 42.

The Defendant contends that the piece of evidence adduced by DW1 which was not controverted by the Claimant is admissible, relevant and clearly probable before this Honourable Court. This is because this piece of evidence which was not challenged remained established as every allegation of fact that is not denied specifically or by necessary implication, shall be taken as established. Cites DARMA VS. BATAGARAWA (2002) 17 NWLR (PT. 796) 243 @ 249, RATIO 9.

The Defendant further contend that where a party leads evidence on a material point that can decide a matter and where that evidence was not challenged under cross examination, the piece of evidence is deemed admitted, and a party can no longer lead evidence to show the contrary. That the court should act upon such admitted piece of evidence. Cites the authorities of DIGAI VS. NANCHANG (2005) ALL FWLR (PT. 240) 41 @ 57; and ODUNEYE VS. STATE (2000) FWLR (PT. 13) 2289 @ 2307.

The Defendant further avers that the Claimant did not controvert the fact that the Defendant is willing to pay arrears of salary of its staff once the Bayelsa State Government released funds to the Defendant. Also, that the non-payment of salaries by Local Government Councils also affected other States of the Federation. Further, that the Defendant owes all its staff arrears of salaries running between nine months and eighteen months. (See paragraph 17, 18 and 19 of Defendant’s Statement of Defence and paragraphs 12, 13 and 14 of DW1’s Statement filed on 12/02/2018).

The Defendant further avers that the Claimant in his evidence before this Honourable Court admitted that there was a staff verification exercise that was carried out by the government of Bayelsa State in 2016 which also affected him. The Claimant further stated that his name was not removed but was omitted, that he was cleared by another committee which was set up on 20/08/2016, and that he has been working as a staff of the Defendant including the day of the cross examination. The Defendant submits that this piece of evidence is incorrect and thereby makes the Claimant not to be a witness of truth.

The Defendant then urged this Honourable Court to accept the evidence of DW1 on the Consolidated Public Service Structure which the Claimant also admitted in paragraph 9 of the Claimant’s Statement of Facts as well as paragraph 9 of his Written Deposition on Oath, which is approved by the Government of Bayelsa State. The Defendant contend that this is in tandem with section 7 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which empowers the Government of Bayelsa State to ensure the existence of the Defendant through the Bayelsa State Local Government Law, 2000, which provides for the establishment, structure, composition, finance and the functions of the Defendant.

The Defendant further contend that the Claimant’s action before this Honourable Court cannot succeed without joining the Bayelsa State Government as a proper and necessary party to invoke this Honourable Court’s decision to effectively determine this action. The Defendant then submits that the Claimant has brought this action to further compound the woes of the Defendant. That the Claimant should have directed his case to the Bayelsa State Government as the State Government has the financial control of the Defendant.

The Claimant argues that it is the responsibility of the Bayelsa State Government to remove or reinstate both junior and senior officers in the nominal roll of the Defendant. This is because the Defendant applies to the Ministry of Local Government Administration for approval of payment of workers’ salaries. And on the issue of removal of workers, it is the contention of the Defendant that it was only the cleared list by the Ministry of Local Government Administration that was sent to the Defendant. That was why payment was effected on the cleared workers. And that all other funds for the Defendant are under the control of the Bayelsa State Government.

The Defendant further avers that DW1 testified on Oath about salaries being paid to workers based on the Government of Bayelsa State of Nigeria Consolidated Public Service Salary Structure, 2011 and further testified that he was aware of why Claimant’s name was removed from the nominal roll of the Defendant. It was held in OSHO VS. FOREIGN FINANCE CORP. (1991) 4NWLR (PT. 181) 192 @ 202 that public servants are to abide by the due process of law. The Defendant further contends that the mere pleading of the receipt of Forty-Four Thousand Naira (N44,000.00) after deductions of tax and Union Levy as well as Claimant’s contention that the Defendant is owing him a cumulative salary of fourteen months from September 2015 till the filing of this suit is not enough for this Court to grant Claimant’s prayers as the burden of proof as to particular facts is on the Claimant, though DW1 admitted that Claimant receives such amount as his salary at such grade level. Refers to sections 136, 137, 138 and 167 of the Evidence Act, 2011.

The Defendant then submit that agreements or contracts are entered into by parties based upon what they intend should govern their transaction and a court’s only duty is to interpret the intentions of the parties as embodied in the document that they intend should govern them with respect to the transaction. That a trial judge should not be seen to add, subtract, modify or express his own personal views from what is confirmed in the document governing the parities’ transaction. Cites OKOGIE & 2 ORS VS. ETOYUN (2010) 3 NWLR (PT. 1) 141 @ 156 – 157, PARA. 33. The Defendant therefore contend that EXHIBITS CW1 001 and CW1 002 are not enough indication that Claimant receives a monthly salary of Forty-Four Thousand Naira(N44,000.00) when evidence of the payment of his salary like payment slip were not pleaded by the Claimant.

The Defendant argues that matters of law affecting jurisdiction cannot be waived or overlooked. Cites MOBIL PROD. (NIG) UNLIMITED VS. MONOKPO (2003) 18 NWLR (PT. 852) 346. The Defendant further argues that the Federal Public Service Rules applicable to Bayelsa State provides that before an officer proceeds to court for redress, he or she must have exhausted all avenues provided in the aforesaid Rules and circulars. Refers to RULE 090201 (ii) of the Federal Public Service Rules. And that where a statute prescribes steps to be accomplished by disputants over matters in the form of internal remedies, the jurisdiction of the court will be in abeyance until a party has exhausted those steps spelt out in the statute. Cites ORAKUL RESOURCES LTD VS. N.C.C. (2007) 16 NWLR (PT. 1060) 270. Also cited the case of EGUAMWENSE VS. AMAGHIZEMWEM (1993) 9 NWLR (PT. 315) 25 where the Supreme Court per Belgore JSC (as he then was), stated that “where a statute prescribes a legal line of action for the determination of an issue, be that issue of administrative matter, chieftaincy matter or a matter of taxation, the aggrieved party must exhaust all the remedies in the law before going to court. All local remedies in the statute on every subject must be exhausted before embarking on actual litigation in court. The Plaintiff/Respondent has jumped the gun by going to the High Court for a declaration. Despite section 235 of the 1999 Constitution, the legal procedural steps must be utilised fully before jurisdiction can vest.”

The Defendant contends that public servants are to abide by the due process of law, and that the Claimant has not exhausted the local remedies therein or as enshrined in Rules 090101 and 090201 (ii) of the Public Service Rules as applicable to Bayelsa State before proceeding to this Honourable Court for redress. Cites OGOLOGO VS. UCHE (2005) 14 NWLR (PT. 145) 226.

SUBMISSIONS OF THE CLAIMANT

The Claimant in his written Address dated and filed on the 4^th June, 2018 formulated three issues for determination as follows:

(i) Whether the Claimant is an employee of the Defendant entitled to a monthly salary of Forty-Four Thousand Naira (N44,000.00) only.

(ii) Whether the Claimant is entitled to payment of his unpaid salaries from the month of September, 2015 till judgment is delivered.

(iii)Whether the Claimant is entitled to the payment of general damages and cost of this action as sought by him.

On the First Issue, that is whether the Claimant is an employee of the Defendant entitled to a monthly salary of Forty-Four Thousand Naira (N44,000.00), the Claimant contends that a contract of employment exists where there is an oral or written agreement whether express or implied, whereby one person agrees to serve the other as a worker. Refers to section 91 of the Labour Act, CAP L1 Laws of the Federation of Nigeria, 2004.

The Claimant avers that from the Pleadings before this Honourable Court and the evidence proffered by the Written Deposition on Oath of the Claimant as well as his testimony, it is not in doubt that there exist a valid contract of employment between the Claimant and the Defendant. (See paragraphs 1, 3 and 4 of the Statement of Facts and paragraphs 1, 3 and 4 of CW1 Deposition on Oath). This piece of evidence was not countered by the Defendant. Rather, DW1 confirmed the employment of the Claimant during his testimony when he stated that “yes, the Claimant is an employee of the Defendant.” Proof of employment of the Claimant by the Defendant can also be gleaned from the Claimant’s Letter of Confirmation of Appointment from the Defendant to the Claimant dated 28^th August, 2013 ((EXHIBIT CW1 001)).

The Claimant contends further that in his testimony, he stated that he is a Chief Clerical Officer on Salary Grade Level 07 (see paragraph 5 and 9 of the Statement of Facts and paragraphs 5 and 9 of the Witness Deposition dated 31^st October, 2016 as well as paragraph 3 of the Additional Witness Deposition dated 27^th February, 2018). Also, EXHIBIT CW1 002 which is the Claimant’s Letter of Promotion proves the veracity of Claimant’s assertion as his rank and salary grade is spelt out therein which is not countered by the Defendant. The Defendant also did not tender any document to prove otherwise.

The Claimant argues that by virtue of his rank and salary grade level, he is entitled to a monthly salary of Forty-Four Thousand Naira (N44,000.00). (See paragraph 9 of Claimant’s Written Deposition on Oath dated 31^st October, 2016 and paragraph 3 of the Claimant’s Additional Witness Deposition dated 27^th February, 2018). The Claimant further contends that this piece of evidence was not also countered by the Defendant. The Defendant’s sole witness under cross examination stated that “yes, an employee of the rank of Chief Clerical Officer on Salary Grade Level 07 is paid Forty-Four Thousand Naira (N44,000.00).

The Claimant avers further that it is trite that where evidence given by a party is unchallenged or uncontroverted, a court of law must accept it and act on it unless it is palpably incredible. Refers to CHABASAYA VS. ANWASI (2010) 10 NWLR (PT. 1201) 163 @ 178 – 179, PARAS. H-C.

Claimant also refers to section 123 of the Evidence Act, 2011 and the case of IYERE VS. BENDEL FEED AND FLOUR MILL LTD (2009) ALL FWLR (PT. 453) 1217 @ 1232 PARA. E.

On the Second Issue, whether the Claimant is entitled to payment of his unpaid salaries from the month of September, 2015 till judgment is delivered, section 15 of the Labour Act Cap L1 Laws of the Federation of Nigeria, 2004. It is the contention of the Claimant in paragraph 6 to 11 of the Statement of Facts that the Defendant has refused to pay him his monthly salaries since September, 2015 till date. The Claimant gave evidence to this fact in paragraph 6 to 12 of his Witness Deposition on Oath dated 31^st October, 2016. And that the Defendant does not challenge or contradict the evidence of the Claimant but rather, in paragraph 15 of his Statement of Defence, he admitted that the Claimant and other employees of the Defendant are owed salaries running from nine months to eighteen months. Claimants further contends that DW1 further admitted this fact in his testimony when he stated paragraph 12 of his Written Deposition on Oath dated 12^th February, 2018 that “I also know as a fact that it owes every of its workers and the minimum arrears of salaries being owed them including the Claimant is running from nine months to eighteen months respectively.” The Claimant then urged this Honourable Court to view the aforesaid assertion of the Defendant and its witness as an admission of indebtedness by the Defendant to the Claimant and hold same in the sum admitted.

Claimant further avers that from the facts of this case, the Defendant has refused or failed to pay the Claimant his salary from September, 2015 till date and this refusal should be viewed as a wrong which is within the jurisdiction of this Honourable Court to correct. Refers to the decision of the Supreme Court in UMTHMB VS.DAWA (2001) 16 NWLR (PT. 739) 424@ 448, PARAS. E – H.

The Claimant avers further that the attempt by the Defendant to justify its refusal to pay the Claimant’s salary by alleging that at some point in 2015, the Claimant’s employment was terminated due to a failed verification exercise carried out by the Defendant holds no probative value as it was held by the Supreme Court in the case of OLANIYAN VS. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 599) @ 606 PARA. D.

Claimant argues that where an employee is wrongfully terminated and on a later date reinstated, the said employee is reinstated back to his previous position and is entitled to the payment of his wages during the intervening period. Cites OLANIYAN VS UNIVERSITY OF LAGOS (SUPRA).

Claimant avers that the Defendant has failed to pay him his lawful wages since the month of September, 2015 till date. The Claimant further avers that an employer who refuses to pay his employee’s salaries that he is entitled to for no valid reason and without any misconduct on the part of the employee, is clearly wrong in law and such an employer is not only in breach of the employment contract but his actions constitutes an unfair labour practice and abuse of labour rights. Such a wrong can and ought to be corrected by this Honourable Court. Refers to OGBOLOSINGHA VS. BSIEC (2015) 6 NWLR (PT. 1455) 311 @ 343, where the court held that where there is a wrong, there must be a remedy. Claimant urge this Honourable Court to grant the reliefs sought by him.

On the Third Issue, that is whether the Claimant is entitled to payment for general damages and the cost of this action as sought by him, the Claimant submit that general damages flows automatically from the wrong inflicted on a Claimant by a Defendant from whom they are claimed and do not need or have to be specifically pleaded or proved by evidence. Cites MAINSTREET BANK REGT LTD VS. ANSELEM (2015) 16 NWLR (PT. 1486) 443 @ 451 PARAS. D – G, 452 PARA. C.

The Claimant also contends that he is entitled to damages for the suffering and frustration inflicted on him by the loss of his earnings. The Claimant is claiming general damages to the tune of Two Million Naira (N2,000,000) and accordingly urges this Honourable Court to grant this relief as the Court is empowered to do so. Refers to section 19 (d) of the National Industrial Court Act, 2006.

On the issue of the cost of this action, section 40 of the National Industrial Court Act, 2006 and Order 55 of the National Industrial Court (Civil Procedure) Rules 2017empowers this Honourable Court to determine and award costs. Also refers to the cases of ILIYASU VS. AHMADU (2011) 13 NWLR (PT. 1264) 236 @ 261 PARAS E – F; ADELAKUN VS. ORUKA (2006) 11 NWLR (PT. 992) 625 @ 650 PARAS. D – H.

The Claimant further avers that the wrong that gave rise to this action was caused by the Defendant and that in prosecuting this case, the Claimant paid filing fees, paid his Counsel who has made countless appearances in court to prosecute this case. The Claimant further submit that it is trite that cost follows events and a consideration of the issues entitles the Claimant to cost from the Defendant. The Claimant has asked for the sum of One Million Naira (N1,000,000) only as cost of this action. The Claimant therefore urges this Honourable Court to resolve Issue Three in favour of the Claimant.

CLAIMANT’S REPLY ON POINTS OF LAW

The Claimant filed a Reply on Points of Law to the Defendant’s Final Written Address. The Reply is filed on the 6^th of July 2018 where Learned Counsel to the Claimant in response to the Defendant’s contention that the provisions of section 7 (1), (6) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and section 48 of the Bayelsa State Local Government Law, 2000 empowers the Bayelsa State Government to manage all the funds of the Defendant; the Claimant avers that these sections are cited out of context and do not in any way apply to the facts in issue before this Honourable Court. Section 7 (1), (6) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) when read jointly are to the effect that the Government of a State and its House of Assembly should make “a law” and “provisions” respectfully for the establishment, structure, composition, finance and functions of Local Government Councils. While section 48 of the Bayelsa State Local Government Law, 2000 is basically the State Government complying with its Constitutional obligations and stipulating how revenue is to be disbursed to the Local Governments and not how monies will be disbursed from the Local Government to the Federation Account and the State Government. Claimant avers that nothing in these sections empowers the State Government to manage the finances of the Defendant. And that apart from the revenue accruing from State Government and the Federation Account, the Defendant generates funds internally which is separate from allocated funds.

The Claimant further submits that internally generated revenue and derivation funds of Local Government Councils are not within the purview of section 7 (1), (6) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and section 48 of the Bayelsa State Local Government Law, 2000.

In reply to the Defendant’s assertion that all allocation due to the Defendant is received by the Bayelsa State Government which is kept in the Joint Local Government Allocation Account before being distributed; Claimant avers that there is no evidence before this Honourable Court on the issue. That what is pleaded in the Statement of Defence is that “non-payment of its staff is not deliberate” and nothing more. If the Defendant wanted to elaborate on this fact, he should have done so in his pleadings and led evidence through its sole witness. Having not done so, the Defendant cannot introduce fresh facts in its written address, as it is trite that facts not pleaded goes to no issue. Cites AMINU VS. HASSAN (2014) 5 NWLR (PT. 1400) 287; THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH VS. OLOWENI (1990) SCNJ 69.

On the issue that the non-payment of its staff was not deliberate, as asserted by the Defendant in his Final Written Address, Claimant submits that this assertion does not exonerate the Defendant from its obligation to pay the Claimant, but rather, amounts to admission on the part of the Defendant that it owes the Claimant, even though the non-payment is not deliberate. Therefore, Claimant avers that the authorities of OYEWOLE VS AKANDE AND ANOR (SUPRA); DARMA VS. BATAGARAWA (SUPRA); DIGAI VS. NAMCHANG (SUPRA); have been cited out of context and do not apply to the present case.

The Claimant further submit that the grant of the Claimant’s claim by this Honourable Court would not be affected by the averment of the Defendant that non-payment of the Claimant’s salaries is not deliberate as the fact in issue is not whether the nonpayment of the Claimant’s salaries is deliberate or not but rather, whether the Claimant has not been paid salaries by the Defendant that he is entitled to.

The Claimant submits further that whether he is a staff of the Defendant is not in contention as the Claimant has repeatedly lead evidence to this fact and the Defendant has also admitted this fact. Also, on the Defendant’s assertion that for the action to succeed, Claimant ought to join the Bayelsa State Government as well as the assertion that the Bayelsa State Government is responsible for the removal and reinstatement of Local Government employees; the Claimant in reply avers that it is not a fact before this Honourable Court as it was not pleaded by the both parties in the pleadings.

Further, the Defendant’s pleadings do not allude to the fact that a cleared list was sent by the Ministry of Local Government Administration to the Defendant and that the Defendant effected payment of its staff salaries based on that list. It is trite that facts not pleaded goes to no issue. Cites AMINU VS. HASSAN (SUPRA). Also, the case of OSHO VS. FOREIGN FINANCE CORP. (SUPRA) is cited out of context and does not apply to the present case as the said authority is a case of conversion of private land by public servants under the guise that they are acting on behalf of the government.

That the provisions of sections 136, 137, 138 and 167 of the Evidence Act, 2011 does not in any way contradict or negate the provision of section 123 of the Evidence Act which provides that facts admitted need not be proved. In the instant case, the Claimant has led evidence wherein the Defendant as well as his sole witness have clearly admitted that it is owing the Claimant arrears of unpaid salary and that the Claimant is entitled to Forty-Four Thousand Naira (N44,000.00) only as his monthly salary as an employee of the Defendant. Also, Claimant submits that the assertion by the Defendant in its Final Written Address that the Bayelsa State Government is the sole manager of the Defendant’s funds is not a fact in this Court as none of the parties in their pleadings or evidence stated that. It is trite that parties are bound by their pleadings and in the determination of issues before it what the court ought to look at is the pleadings of the parties. And that if the Defendant viewed the Bayelsa State Government as a necessary party to the suit, it ought to have applied for the Bayelsa State Government to be joined as a party in this suit. Cites THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH VS. OLOWENI (SUPRA).

Also, the Claimant asserted that this Court has unfettered jurisdiction to hear this suit as there is no provision either in Rule 090101 or Rule 090201 (ii) of the Federal Public Service Rules or any other law curtailing the Claimant’s right to bring an action for the recovery of his unpaid salaries. Further, it is the fundamental right of every citizen to institute an action before any court of law to seek redress where a wrong has been done. And any law which seeks to curtail that right shall be void. Cites section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Further, Claimant contend that even if the Federal Public Service Rules provide that the Claimant ought to exhaust all avenues as provided in the said Rules and circulars, Claimant submit that there are no laid down steps or avenues the Claimant ought to explore in the said Rules. And that the Claimant averred in paragraphs 6, 7, 8 and 10 of his Statement of Facts as well as paragraphs 6, 7, 8 and 11 of his Witness Statement on Oath that he made several attempts to find out the reason for the non-payment of his salaries as well as to collect his unpaid salaries from the Defendant before proceeding to this Honourable Court.

Finally, the Claimant urged this Honourable Court to discountenance the arguments canvassed by the Defendant and resolve all the issues in favour of the Claimant and grant all the reliefs sought by the Claimant.

COURT’S DECISION

I have read and understood the processes filed by the Learned Counsels for the parties in this suit. I heard the testimonies of the witnesses called on oath by the parties, watched their demeanor and carefully evaluated all the Exhibits tendered and admitted. I also heard the oral submissions of Learned Counsels for either side. Having done all these, I narrow the issues for the just determination of this case down to the following:

Whether taking into consideration the circumstances of this case, the Claimant has proved his case to be entitled to all or some of the reliefs sought.

It is of legal importance to note that under a contract of employment the court is not entitled to look outside the contract of service as to the terms and conditions. the parties to the contract are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to the contractual relationship in the interest of justice. See DAUDU VS U.B.A PLC (2004) 9 NWLR (PT. 878) 276 C.A; AKINFE VS U.B.A PLC (2007) 10 NWLR (PT. 1041) 185.

It is on record that a contract of employment exists where there is an oral or written agreement whether express or implied, whereby one person agrees to serve the other as a worker. See section 91 of the Labour Act, CAP L1 Laws of the Federation of Nigeria, 2004.

From the Pleadings before this Honourable Court and the evidence proffered by the Written Deposition on Oath of the Claimant as well as his testimony, it is not in doubt that there exist a valid contract of employment between the Claimant and the Defendant. (See paragraphs 1, 3 and 4 of the Statement of Facts and paragraphs 1, 3 and 4 of CW1 Deposition on Oath). This piece of evidence was not countered by the Defendant. Rather, DW1 confirmed the employment of the Claimant during his testimony when he stated that “yes, the Claimant is an employee of the Defendant.” Proof of employment of the Claimant by the Defendant can also be gleaned from the Claimant’s Letter of Confirmation of Appointment from the Defendant to the Claimant dated 28^th August, 2013 ((EXHIBIT CW1 001)).

The Claimant in his testimony, he stated that he is a Chief Clerical Officer on Salary Grade Level 07 (see paragraph 5 and 9 of the Statement of Facts and paragraphs 5 and 9 of the Witness Deposition dated 31^st October, 2016 as well as paragraph 3 of the Additional Witness Deposition dated 27^th February, 2018). Also, EXHIBIT CW1 002 which is the Claimant’s Letter of Promotion proves the veracity of Claimant’s assertion as his rank and salary grade is spelt out therein which is not countered by the Defendant. The Defendant also did not tender any document to prove otherwise.

The Claimant argues that by virtue of his rank and salary grade level, he is entitled to a monthly salary of Forty-Four Thousand Naira (N44,000.00). (See paragraph 9 of Claimant’s Written Deposition on Oath dated 31^st October, 2016 and paragraph 3 of the Claimant’s Additional Witness Deposition dated 27^th February, 2018). This piece of evidence was not also countered by the Defendant. The Defendant’s sole witness under cross examination stated that “yes, an employee of the rank of Chief Clerical Officer on Salary Grade Level 07 is paid Forty-Four Thousand Naira (N44,000.00).

It is trite that where evidence given by a party is unchallenged or uncontroverted, a court of law must accept it and act on it unless it is palpably incredible. See CHABASAYA VS. ANWASI (2010) 10 NWLR (PT. 1201) 163 @ 178 – 179, PARAS. H-C.

“evidence that is relevant to the issue in controversy and which is not successfully challenged, contradicted and discredited is good and reliable evidence to which probable value ought to be ascribed and which ought to influence the court in the determination of the case before it…. A plaintiff who adduces such reliable and credible evidence is bound to succeed in his case.”

See also section 123 of the Evidence Act, 2011 and the case of IYERE VS. BENDEL FEED AND FLOUR MILL LTD (2009) ALL FWLR (PT. 453) 1217 @ 1232 PARA. E, where it was held that facts admitted require no further proof.

On the issue of whether the Claimant is entitled to payment of his unpaid salaries from the month of September, 2015 till judgment is delivered, section 15 of the Labour Act Cap L1 Laws of the Federation of Nigeria, 2004 provides that:

“Wages shall become due and payable at the end of each period for which the contract is expressed to subsist, that is to say, daily, weekly or at such other period as may be agreed upon: Provided that, where the period is more than one month, the wages shall become due and payable at intervals not exceeding one month.”

And in paragraph 6 to 11 of the Statement of Facts that the Defendant has refused to pay the Claimant his monthly salaries since September, 2015 till date. The Claimant gave evidence to this fact in paragraph 6 to 12 of his Witness Deposition on Oath dated 31^st October, 2016. And that the Defendant does not challenge or contradict the evidence of the Claimant but rather, in paragraph 15 of his Statement of Defence, he admitted that the Claimant and other employees of the Defendant are owed salaries running from nine months to eighteen months. DW1 further admitted this fact in his testimony when he stated in paragraph 12 of his Written Deposition on Oath dated 12^th February, 2018 that “I also know as a fact that it owes every of its workers and the minimum arrears of salaries being owed them including the Claimant is running from nine months to eighteen months respectively.” This court views the aforesaid assertion of the Defendant and its witness as an admission of indebtedness by the Defendant to the Claimant.

Furthermore, from the facts of this case, the Defendant has refused or failed to pay the Claimant his salary from September, 2015 till date and this refusal should be viewed as a wrong which is within the jurisdiction of this Honourable Court to correct. Refers to the decision of the Supreme Court in UMTHMB VS.DAWA (2001) 16 NWLR (PT. 739) 424@ 448, PARAS. E – H, where the court held that “every employer including every public body must be careful not to abdicate or abuse its powers. Employers and public bodies are required by law, at all times, to act in good faith and reasonably and fairly towards people and matters under their charge in all circumstances … the law does not permit employers to act arbitrarily.”

The attempt by the Defendant to justify its refusal to pay the Claimant’s salary by alleging that at some point in 2015, the Claimant’s employment was terminated due to a failed verification exercise carried out by the Defendant holds no probative value as it was held by the Supreme Court in the case of OLANIYAN VS. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 599) @ 606 PARA. D, that “a unilateral repudiation of a contract of employment does not per se determine, the existence of the relationship of master and servant – rather, such unilateral repudiation results in a wrongful dismissal in respect of which the employee can ask for a declaration of the continuance of the relationship and also specific performance or reinstatement.”

And where an employee is wrongfully terminated and on a later date reinstated, the said employee is reinstated back to his previous position and is entitled to the payment of his wages during the intervening period. See OLANIYAN VS UNIVERSITY OF LAGOS (SUPRA) where the Supreme Court held that “I do not take the word reinstate to be a term of art…. Its ordinary and primary meaning is to replace the person to the exact position in which he was before his removal. That is to restore him to his status quo…. It is therefore retroactive in effect and involves a revocation of the act of dismissal and restoration of payment of wages for the intervening period.”

It is apparent from the facts of this case that the Defendant has failed to pay claimant his lawful wages since the month of September, 2015 till date. And an employer who refuses to pay his employee’s salaries that he is entitled to for no valid reason and without any misconduct on the part of the employee, is clearly wrong in law and such an employer is not only in breach of the employment contract but his actions constitutes an unfair labour practice and abuse of labour rights. Such a wrong can and ought to be corrected by this Honourable Court. See OGBOLOSINGHA VS. BSIEC (2015) 6 NWLR (PT. 1455) 311 @ 343.

Its trite that the onus of proof on termination of appointment lies on the claimant. See KABEL METAL NIG. LTD VS ATIVIE (2002) 10 NWLR (PT. 775) 250. And its my ardent belief that the claimant has discharged this onus on preponderance of evidence as such the claimant is entitled to judgment. I resolved the issues for determination in favour of the Claimant.

In view of the foregoing facts I enumerated ab-initio I hold that the Claimant is an employee of the Defendant and as such entitled to his full salaries and allowances. The withholding of the Claimant’s salary and allowances by the Defendant from September, 2015 till date is wrongful. I ordered the Defendant to pay the Claimant his full arrears of salary and allowances from September, 2015 till date, and the Defendant shall not withhold same unjustifiably. But I refused to grant reliefs 6 and 7 and same are hereby dismissed on the ground that in breach of contract of employment what the court is enjoined to do is to put the Claimant into the correct position he would have been, if the breach had not occurred. It is not intended to give the employee a windfall on all claims for damages. See IFETA VS S.P.D.C (NIG) LTD. (2006) 8 NWLR (PT. 983) 585 SC.

Finally, for the avoidance of doubt and for all the reasons as stated in this judgment;

I declare that the Claimant is an employee of the Defendant and as such entitled to his full salaries and allowances.

The non-payment of the Claimant’s monthly salary and allowances from September, 2015 till date is wrongful.

The Defendant is hereby ordered and directed to pay the Claimant his full salary and allowances forthwith as at when due and shall not withhold same unjustifiably.

The Defendant is hereby ordered and directed to pay to the Claimant his accrued arrears of salaries and entitlements from September, 2015 till date at Forty Four Thousand Naira (N44,000.00k) per month.