HABIBAT BALA & 4 ORS VS MINISTRY OF ENVIRONMENT & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

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

Dated this 21^st day of March, 2018 SUIT N0: NICN/LKJ/02/2017

BETWEEN:

HABIBAT BALA
IKANI AYATU
USMAN YUNUSA
OMALE YUSUF JIBRIN CLAIMANTS
IKANI AJUMA FAITH

(For themselves and for 86 other

Forest Guards appointed with effect from

1st December, 2015 by the defendants

AND

MINISTRY OF ENVIRONMENT &

NATURAL RESOURCES, KOGI STATE.

KOGI STATE CIVIL SERVICE COMMISSION DEFENDANTS
ATTORNEY GENERAL, KOGI STATE

Representation:

Umar Ada Muhammed for the Claimants

Abdulwahab Muhammed for the Defendants

JUDGMENT

The Claimants commenced this suit via a General Form of Complaint dated and filed the 12^th April, 2017 Claiming from the defendants jointly and severally the following reliefs :

A DECLARATION that the Claimants are Civil Servants in the service of Kogi State Government and are entitled to salaries, allowances and trainings for the effective performance of their duties as Forest Guards.

AN ORDER for the payment of salaries and allowances of the Claimants.

AN ORDER for the training and equipping the Claimants as Forest Guards.

ANY other order(s) and/or Declaration(s) as this Honourable Court may deem fit to make in the circumstances of this case.

The Claimants filed along with their Complaint, their witness statements on oath, list of witnesses as well as a schedule and copies of documents to be relied on at trial.

1^st to 3^rd Defendants filed their joint statement of defence on 13^th July, 2017 including their witness statement on oath and list of witnesses.

Case for the Claimant

The Claimants opened their case on 23^rd of October, 2017 and called one witness, CW1. CW1 adopted her witness statement on oath dated 12^th April, 2017 as her evidence in chief and it was marked as C1. Through the same witness, 7 documents were tendered as exhibits. The documents were admitted and marked as exhibits C2 (a) to (e), C3 and C4.

Arising from the statement of facts and witness statement on oath of the Claimants, It is the case of the Claimants that The 1^st Defendant being the Ministry responsible for maintaining environment and natural resources of Kogi State; while the 2^nd Defendant is responsible for appointment and discipline of staff in Kogi State and the 3^rd Defendant is the Law Officer of the Government of Kogi State.

That the Claimants were appointed by the Defendants as Forest Guards vide identical letters of appointment with reference No.KG/MENR/OFF/173/27 dated 27^th November, 2015 signed by the Permanent Secretary of the 1^st Defendant.

The said letters of appointment were accepted by the Claimants and they assumed duty as directed in the letters of appointment.

During the interview prior to the appointments of the Complainants which 2^nd Defendant was represented, the 1^st Defendant officials informed the Claimants that successful candidates would undergo training however the salaries and allowances of the Claimants have not been paid since December 2015 and training were not organized for them.

The Claimants alleged that the Defendants commenced process of appointment of another set of Forest Guards in February, 2017 and have trained the new set of Forest Guards excluding the Claimants whose appointments were first in time.

The Claimants made complaints to the Defendants through their Legal Practitioner, Umoru A. Mohammed, Esq of Umoru Ada Mohammed & Company, that the recruitment of the new set of Forest Guards were meant to replace them but the Defendants ignored the complainants or refused to reply.

The Claimants maintain that their appointments is governed by civil service Rules and other government instruments and they were never issued any query, warning or disciplined since their assumption of duty on 1^st December, 2015.

During examination in chief, Cw1 tendered exhibit C2(a) – (e) which were photocopies of the letters of offer of provisional appointment of the claimants by 1^st Defendant; C3 is a letter titled “Re:employment of Forest Guards”, addressed to the Commissioner of the 1^st Defendant, written by Abbas Yahaya esq, a solicitor in the firm Umoru Ada Muhammed & Co. while C4 is a list of successful applicants which was admitted under protest.

During Cross examination, CWI, who is the 1^st Claimant, answered in the affirmative to the question that in the letter of appointment, there are conditions stated therein paragraph 1(d) providing that during the period of probation, you or the government may terminate, your engagement. She also affirmed that she was never given any letter confirming the appointment and that as at January 2016, she was not in the service of Kogi State. She further affirmed that Exh.C2 was issued to her on 27/11/2015 while ascertaining that this suit was instituted in April, 2017.

On re-examination, she stated that she was not served with any executive order.

The Claimant closed their case

Case for the Defendants.

The Defendants open their case on the 4^th of December, 2017. Calling one witness, DW1, Otaro Abiodun Peters who adopted his witness statement on oath dated and filed on 13^th July, 2017 as evidence in chief and marked as D1. No document was tendered through the witness.

Arising from the statement of defence and witness statement on Oath of DW1, the case for the Defendants is that for the sake of employment, successful candidates were shortlisted and interviewed. The claimants were offered provisional appointment as forest guards subject to certain terms & conditions clearly stated in their letters of provisional appointment and the claimants accepted the provisional appointment but no files were opened for the claimants at the 1st defendant’s Ministry. Afterwards, the claimants were disengaged in January, 2016 by the Governor of Kogi State through an executive order during the probationary period in line with the terms and conditions of their provisional appointment while the defendants appointed another set of forest guards in February, 2017 and have since trained them. The Defendants further stated that the suit against them is frivolous, misdirected and should be dismissed with cost.

Upon cross examination, DW1 who stated that he had been working for the 1^st Defendant since 9^th February, 2015 also affirmed that as at the time the interview of the Claimants was conducted, he was not the Director, Admin and Finance of the 1^st Defendant but he knows they passed through the normal process for employment. He further affirmed that as DAF, he does not attach the civil service rules to letters of employment. Upon being shown Exh.C2 (a) – (e) and asked if there is any provision for revocation or termination, he answered that it is clear that it can be terminated.

When asked if as DAF he gives notice of termination of contract, he answered that it was a pronouncement that all appointments done in 2015 be terminated across board. With regards to remuneration of the Claimants, Dw1 answered that by the pronouncement of the Governor, the appointment stand terminated. When asked if he has the letter of termination, he answered in the negative.

There was no reexamination of the DW1.

FINAL ADDRESSES AND ISSUES RAISED WITHIN

The 1^st to 3^rd Defendants filed their joint final written address on the 18^th of December, 2017 and adopted same on the 24^th of January, 2018.

Arising from the final written address, the Counsel to the Defendants, Abdulwahab Muhammed formulated two (2) issues for determination by this court to wit:

1) Whether the Claimants have established their case as required by law as to entitle them to the reliefs sought in this suit.

2) Whether this Honourable court has jurisdiction to entertain this suit as presently constituted; considering the provision of Section 2(a) of the Public Officers Protection Act. LFN P4 2004.

In addressing issue one, learned counsel respectfully submitted that the Claimants have failed to establish their case according to law and therefore not entitled to the reliefs sought in this suit.

He posited that the contract of employment pleaded by the Claimants in their statement of Claim and tendered through the Claimants’ Witness (CW1) and admitted and marked as Exhibits C2 (a) – C2 (e) is what the Court would look at in determining the claim as put forward by the Claimants, to ascertain whether the terms and conditions contained therein was breached or not, in order for this Court to decide one way or the other.

Learned Counsel further argued that the position of the law in this regards is that, it is the terms and conditions of employment that is the bedrock of an employee’s case who claimed that he or she has been wrongfully dismissed or unlawfully terminated. Counsel cited the case of Olaniyan V. University of Lagos (1985) NWLR (Pt. 9)599.

Learned Counsel then invited the court to take a look at clause 1 (d) of Exh. C2 (a) – (e) which states that:

“During the period of your probation, you or the Government may terminate your employment”.

Upon the invitation, counsel noted that the Cw1 admitted on cross examination that no letter confirming their provisional appointment was given. He then submitted that once documents are tendered and admitted, they speak for themselves. Counsel cited section 128 of the Evidence Act, 2011 and the case of BULET INT’L (NIG) LTD & ANOR V. OLANIYI & ANOR (2017) LPELR-42475 (SC).

Learned counsel urged this court to hold that it is of no consequence that the 1^st and 2^nd Defendant appointed another set of Forest guards in February, 2017.

With regards to Exhibit C4 which is the list of successful applicants, Learned Counsel argued that the submission of counsel to the Claimants that notice to produce had been given to the Defendants, and since the defendants failed to produce same, Claimants can validly tender an uncertified copy of same is unfounded and unsupported in law. Counsel cited section 102, 89, 90 (1) (f) and the case of Onvekwuluje & Anor V. Benue State Government & Ors. (2015) LPELR-24 780 (SC)

He concluded by urging the court to uphold their submissions on issue one and resolve same in their favour,

On issue two, Learned Counsel posited that by virtue of the provision of Section 2 (a) of the Public Officers Protection Act, Cap P41 LFN 2004, this Honourable Court lacks the requisite jurisdiction to hear this suit as presently constituted, same being statute barred.

He Submitted that Jurisdiction is the life wire of any suit. It is the authority of an adjudicatory body to adjudicate on any matter. It is the hub on which every step taken by a Court is hinged. Where a Court has no Jurisdiction to hear and adjudicate on a matter, such proceedings would amount to a nullity. Counsel cited the case of Olofu V. Itodo (2010) 18 NWLR (Pt. 1225) 545 S.C

Learned Counsel then contended that the substratum of this suit is the disengagement of the Claimants by the 1^st and 2^nd Defendants, which disengagement was done in January, 2016 while the Claimants instituted this suit on 12^thday of April, 2017; more than three months after the accrual of the cause of action. And that failure of the Claimants to commence this suit within the three (3) months window period has robbed this Honourable Court of the requisite jurisdiction to entertain and determine this suit as presently constituted.

Counsel argued that by virtue of Section 18 of the Interpretation Act and Section 318 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 1^st and 2^nd defendants are public officers and cited the case of NWAOGWUGWU V. PRESIDENT, F.R.N. (2007) 6 NWLR (Pt.] 030) 237 C.A. and urged this Honourable Court to hold that the Claimants’ suit is stale and statute barred and decline jurisdiction to entertain same. Counsel cited the case of F. R. I. N. V. Gold (2007,) 11 Pt. 1044 Pg. 24, paras A, B, and Alh, Ado Ibrahim V. Alh. Maigida Lawal, (2015) J7NWLR, (P1.1489), Page 490.

In Conclusion, Counsel urged the Court to uphold their arguments and dismiss the Claimants’ suit against the 1^st – 3^rd Defendants.

In response, the Claimants filed their final written address on the 28^th of December, 2017 and adopted same on the 24^th of January, 2018.

Learned Counsel to the Claimant, Umoru Ada Muhammed submitted with humility two issues for determination to wit:

Whether there is evidence of termination of the contract of employment between the claimants and the defendants
If the contract of employment was not terminated, WHETHER the claimants are entitled to the reliefs claimed?

In arguing issue one, Learned Counsel submitted that the onus to prove the facts alleged by the Defendants in paragraph 12 of their joint statement of defence lie upon the Defendants. The said paragraph 12 reads thus:

“12. In further response to the averment in paragraph 7 of the claimants’ statement of fact the defendants state that the claimants’ provisional appointment were revoked by the Governor of Kogi State through an executive order in January. 2016 during the probationary period of claimants’ appointment in line with the terms and conditions of their provisional appointment.”

Learned counsel argued that no revocation instrument or executive order was tendered in this proceeding by the Defendants. In other words, the Defendants have not discharged the onus on them to prove the existence of facts of termination of the claimants appointment either by revocations or executive order and the effect is that the claimants’ appointments were never terminated. Counsel cited section 131 of the Evidence Act, 2011.

Learned Counsel further contended that by paragraph 1 (g) of the Appointment Letter (i.e. Exhibits C2 (a), (b), (c), (d) and (e) ), the employment of the claimants have statutory flavour and urged this Court to take judicial notice of the Civil Service Rules in holding same. Counsel cited the cases of CBN v. DINNEH (2010) 17 NWLR (Pt. 1221) 125. FRIDAY C. MGBERE v. INEC (2014) 46 NLLR 421 at 442 para. H.

Furthermore, Counsel contended that Defendants have not denied the claimants claim at paragraph 9 to the effect that they were never issued query, warning or disciplined since their assumption of duty on 1^st December, 2015 and failure to specifically controvert the claimants claim at paragraph 9 is tantamount to admission. He cited section 123 of the Evidence Act, 2011 and the case of OKAFOR v. INEC (2010) 3 NWLR (Pt. 1180) 1 at 21.

Concluding on this issue, learned counsel submitted that in the instant case where there is no evidence of termination of appointment of the claimants, the appointment of the claimants remained extant and are entitled to their claims of salaries, allowances, etc until the appointments are terminated in accordance with the civil service rules and other government regulations and instructions as contained in their respective appointment letters.

With regards to issue 2, learned Counsel simply adopted the argument in paragraphs 4.01 — 4.11 of the written address which were same canvassed for issue 1 and urged this court to answer this issue in the positive and grant the reliefs sought.

Learned counsel by way of specific reply to the Defendant’s written address then re-echoed his argument on failure to prove the executive order terminating the employment. He argued that the “executive order” which the Defendants were relying on was not frontloaded nor tendered in this proceeding. That the maker of the executive order, i.e. Governor of Kogi State was not called to testify that he made any such “executive order”.

With regards to the admissibility of Exhibit C4, Counsel further maintained that the failure of the Defendants to produce the certified true copy of the document which is in their custody despite notice to produce same, estopped them from challenging the documents as inadmissible on the ground that they (Defendants) refused to certify and produce same. He cited the case of ONYEKWULUJE & ANOR. v. BENUE STATE GOVERNMENT & ORS. (2015) LPELR – 24780 where the Supreme Court permitted the court to rely on a secondary evidence in a situation such as is in the instant case.

With regards to issue of section 2(a) of the Public Officers Protection Act, Counsel submitted that the action was filed on 12^thApril, 2017 and their action is predicated on the employment of new forest Guards in February, 2017 making the time of commencement less than 3 months. Counsel further argued that the claimants claim is for payment of their salaries and allowances which has not been paid up-to-date. This means that the injury complained of is still continuing as salaries is due for payment monthly which is an exception to the application of the Public Officers Protection Act.

Counsel concluded by urging the court to grant all their reliefs.

By way of reply on point of law, the 1^st to 3^rd Defendants’ Counsel, Abdulwahab Muhammed responded to the contentions raised by the learned Counsel to the Claimant.

Counsel submitted that an executive order that has been gazetted need not be tendered in proof of the contents thereof. That the Claimants in paragraph 4.08 of their written address argued that this Court is bound to take judicial notice of all statutes and laws in Nigeria and any subsidiary legislation made there from citing Section 122 of the Evidence Act, 2011 and the case of Friday C. Mgbere v. INEC (2014) 46 NLLR 421 @ 442 para. H. In the same vein the executive order terminating the appointment need not to be tendered before this Honourable Court as the Court can take judicial notice of same.

With regards to the action being statute barred, Counsel argued that Contract of employment is not an exception to the operation of section 2a of the Public Officers Protection Act. Citing the case of JOHN EGBELE V. THE POST MASTER GENERAL (NIPOST) (2009) LPELR-8870(CA).

Counsel concluded by urging this Honourable Court to discountenance the Claimants’ argument in their written address and hold that the Claimants failed to establish their claim in accordance with law, as a result of which the suit should be dismissed.

I have painstakingly evaluated and understood all the processes filed by learned Counsel for the parties in this suit. I have reviewed the testimonies of the witnesses called on oath, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I also heard the oral submissions of learned Counsel on both side. Arising from the totality of the issues raised and addressed by the Learned Counsel in the final written addresses for both parties and the reply on point of law filed by the Defence, the following are the issues for determination by this Honourable Court:

Whether or not from the circumstances of the suit, this action is statute barred.
Whether or not the employment of the Claimants is subsisting, entitling them to the reliefs sought

Issue one, without doubt, relates to the jurisdiction of this court even though it was raised in the final address of the Defendants for the first time. It concerns lack of jurisdiction of the court after a stipulated statutory period has elapsed before commencing a suit. It is an elementary principle of law that the jurisdiction of the court is very fundamental to the adjudication of the matter before it as the Court of Appeal restated the authority in BATURE MANYA v. STATE (2012) LPELR-15185(CA) that:

“Jurisdiction being a fundamental gateway to an assumption of power can be raised at any time as the practice is not immutable. It is a sine qua non for the existence of power to adjudicate on a matter See, also, Alao v C. O. P. (1987) 4 NWLR (pt 64) 199; State v Onagoruwa (1992) 2 NWLR (Pt 221) 33; Ifegwu v FRN (2003) 15 NWLR (Pt 842) 113.”

Having said that, it is noteworthy of mention, that the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribes such periods and regulates the subsistence of causes of action are known as statutes of limitation.

Where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such an action has elapsed. See the cases of EBOIGBE v NNPC (1994) 5 NWLR (Pt. 347) 649; Aremo II V Adekanye (2004) LPELR 544 (SC) Per Edozie JSC. P.17 Paras C-F.

In the instant case, the limitation law that is in question as raised by the Defendant is section 2 (a) Public officers Protection Act, Laws of Federation of Nigeria, 2004 which provides thus:

Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance 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 following provisions shall have effect –

(a) the action, prosecution, or proceeding shall not 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.”

The Court in AJAYI V ADEBIYI (2012) 11 NWLR (Pt.1310) p.146 noted authoritatively that the yardsticks for determining whether an action is statute barred are:

The date when the cause of action accrued;
The date of commencement of the suit as indicated on the writ of summons (in this case the Complaint and statement of fact); and
The period of time prescribed to bring an action to be ascertained from the statute in question.

In even more precise position, the Court in ARCHIANGA V A.G. AKWA IBOM STATE (2015) 6 NWLR (PT. 1454) 1 at 55 para F-H per Garba JCA noted as follows:

In law, the period of limitation begins to run from the date on which the right or cause of action accrued to the party entitled to it and against another who is responsible for the grievance in respect of which the cause of action arises. To determine whether an action or cause of action is statute barred, all that is required for the court to do is to examine the writ of summons or other initiating process of the action and the statement of claim wherein the facts as to the dates when the wrong complained of and giving rise to the cause of action was committed and then comparing it with the date on which the writ of summon or other process initiating the action was filed. If the date on which the action was initiated was beyond the time or period prescribed, and limited by the Limitation Law, then the action is statute barred by the law and so it cannot be maintained. See also the unreported case of MR. I.O. OZOEMENAM v CENTRAL BANK OF NIGERIA. (SUIT NO:NICN/OW/11/2016).

The facts of the case presented by the Claimants as narrated in the Statement of facts in support of the Complaint shows clearly that the Claimants were aggrieved that since their employment as Forest Guards in the 1^st Defendant, they have not been trained nor paid salaries. See Paragraph 4 and 5 of the statement of facts. From paragraph 7 of the statement of fact, the Claimants aver that “The Defendants commenced process of appointment of another set of Forest Guards in February, 2017 and have trained the new set of Forest Guards excluding the Claimants whose appointments were first in time.”

The claimants then sought the declaratory relief that they are civil servants in the service of Kogi State Government and are entitled to salaries, allowances and trainings for the effective performance of their duties as Forest Guards and wants the court to Order same.

While learned Counsel to the Defendants, Abdulwahab Muhammed, argued that the “substratum of this suit is the disengagement of the claimants by the 1^st and 2^nd Defendants which disengagement was done in January, 2016.”, Counsel to the Claimant contended in response that while the Claimants did not plead disengagement at all, it is now settled law that court look at the writ of summons and statement of claim to determine whether or not an action is statute barred. He cited the case of EDMUND v. NIGERIA CUSTOMS SERVICE BOARD (2014) 48 NLLR (Pt. 157) 401 at 429. Learned Counsel further added that the claimants claim is for payment of their salaries and allowances which has not been paid up-to-date. This means that the injury complained of is still continuing as salaries is due for payment monthly, which is an exception to the application of the Public Officers Protection Act.

I have looked at the Complaint and the statement of facts filed in this suit, I cannot find any allegation of disengagement or termination of employment by the Claimants in the Complaint nor in the statement of fact. Also, I agree with the Claimants’ Counsel that between February 2017, when the Claimants discovered that new forest guards have been employed and embarked on training, and 12^th April, 2017 when this claim was filed as clearly evidenced by the stamp of the court on the process, it is less than 3 months and that brings this suit within the period of limitation prescribed by the Public Officers Protection Act and I so hold.

I therefore resolve this issue in favour of the Claimants that considering the circumstance of the suit, this action is not statute barred.

With regards to issue 2.

Let me start by addressing the objection raised by Abdulwahab Muhammed, Learned Counsel to the Defendants, with respect to the admissibility of the Exh. C4 on the ground that the said Exhibit C4, which was tendered through CW1 is a public document and not in doubt that it was not certified. The said Ex,C4 is a list of successful applicants for employment from various local governments Learned Counsel cited sections 102, 89 and 90 of the Evidence Act, 2011 to assert that notice to produce should not give the Claimant recourse to tendering uncertified copy of ExhC4. Counsel placed emphasis on section 90 (1) (f) of the Evidence Act. Learned Counsel to the Claimants, Umoru Ada Muhammed on the other hand maintained that the failure of the Defendants to produce the certified true copy of the document which is in their custody despite notice to produce same, have them estopped from challenging the documents as inadmissible on the ground that they (Defendants) refused to certify and produce same. Reliance was placed on the case of ONYEKWULUJE & ANOR. v. BENUE STATE GOVERNMENT & ORS. (2015) LPELR – 24780.

I have read the provision of the Evidence Act cited which does not specifically provide that notice to produce does not preclude a public document from being certified. Also, the judicial authority cited by Learned Counsel to the Claimant wherein the court demands the party who has served notice to produce to go an extra-mile in certifying the document sought to be tendered.

By section 12 (2) (b) of the National Industrial Court Act, 2006 and Order 1 Rule 9 (2) of the Rules of this court, 2017, the rule of evidence are to be applied but may be departed from in the interest of justice. The requirement of justice in this case is that considering the difficulty that may be involved in getting the said Exh.C4 certified by the Employer makes the notice to produce sufficient and considerable in the admissibility of document in question. In this regard, and standing on the admonition of the NIC Act and Rules, the said Exh. C4 is hereby declared admissible and accordingly admitted in evidence considering the decision of the court in Ilesanmi v Uginleye & Anor (2016) LPELR- 41348 (CA) where it was stated that:

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

Having said that, I proceed on this issue by acknowledging that the parties are in accord as to the fact that the Claimants were appointed by the 1^st and 2^nd Defendants. Although, the Defendants do not consider it an appointment per se and attempted to make it clear that the Claimants were offered provisional appointments as Forest guards subject to certain terms and condition. The Defendants also admitted that the Claimants accepted EXh.CW2 (a) – (e).

It is desirable to therefore present a copy of the exhibit which is dated the 27^th November, 2017 for clarity. It reads:

OFFER OF PROVISIONAL APPOINTMENT

I have the honour to offer you a provisional appointment as FOREST GUARD on a basic salary of N12,825.79 (GL.03) per month with effect from 1stDecember, 2015 on the following conditions that:

You produce evidence of qualification;
You produce certificate of state of origin duly issued by your Local Government;
You produce (2) passport size photographs;
During the period of your probation you or the Government may terminate your engagement.
You produce certificate of medical fitness from Government hospital;
So long as you remain in Government service, you will be liable to be employed in any part of Kogi state;
You will be subjected to all conditions of service stipulated in Civil Service Rules and other Government Regulations and Instructions pertaining to Provisional Appointment.
if you wish to accept this offer, you are requested to submit a written acceptance within two weeks/14 days from the date of this letter.
I am to emphasize however that if at the expiry of the period stated in paragraph 2 above, the offer has not been accepted, it will be regarded as having lapsed.
you are posted to ……AREA FORESTRY BASSA

Congratulations.

TPL.JEROME.H. IKANI

Permanent Secretary

For Hon. Commissioner

The Claimants’ Counsel in the final address urged the court to take judicial notice of the Civil Service Rules in holding that that the appointment of the claimants are with statutory flavor. Learned Counsel to the Defendants had in his final address earlier argued that the appointment of the Claimants was provisional and was validly terminated through an executive order of the Governor of Kogi state in January, 2017. The said executive order was not tendered in court and Counsel to both parties made a heavy weather of this. While the Counsel to the Claimant argued that the said executive order is not before the court and the burden is on the Defendant to prove disengagement of the Claimants, the Defence Counsel submitted that an executive order that has been gazetted need not be tendered in proof of the contents thereof and placed reliance on section 122 of the Evidence Act earlier cited by Counsel to the Claimants.

The court in COSMOS C. NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) expoused on the meaning of an employment with statutory flavor by holding that:

“In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of Kwara State Polytechnic Ilorin v. Shittu (2012) 41 WRN 26.

In the case of University of Ilorin v. Abe (2003) FWLR (Pt. 164) 267 at 278,”

An appointment with statutory flavor has been defined by a plethora of authorities. See Idoniboye-Obu v NNPC (2003) 2 NWLR (Pt. 805) 589; Eze v NAMA & Ors (2016) LPELR-41453 (CA) and Texaco (Nig.) Plc. v Kehinde (2001) 6 NWLR (Pt. 708) 224 where the court held that:

“an employment is said to have statutory flavor when the appointment and termination of such employment is governed by statutory provision. In other words, where the contract of service is governed by the provision of statute or where the condition of service are contained in regulations derived from statutory provisions. Hence, such an employment is said to enjoy statutory flavor”.

Considering the employer in this case and paragraph 1 (f) and (g) of the letter of Offer of Provisional Appointment, there is no gainsaying that the Claimants’ employment was governed by the Public Service Rules 2008. In other words, the employment enjoys statutory flavor and I so hold.

Having established that the employment is with statutory flavor, how should it then be terminated? The Defendants called one witness in this suit i.e. Dw1 who during cross examination stated that it was the pronouncement by the Governor that all the appointments done in 2015 be terminated across board. No document was tendered through DW1 in support of the fact that the Governor of the state made an executive order terminating the provisional appointment of the Claimants. I have perused the list of facts that the courts shall take judicial notice of under section 122 of the Evidence Act, 2011 to see if a gazetted Executive Order terminating a provisional appointment is one of the facts that must be judicially noticed and I cannot find same. For avoidance of doubt I hereby reproduce section 122 (1) (a) – (m):

(2) The court shall take judicial notice of-

(a) all laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria;

(b) all public Acts or Laws passed or to be passed by the National Assembly or a State House of Assembly as the case may be, and all subsidiary legislation made under them and all local and personal Acts or Laws directed by the National Assembly or a State House Assembly to be judicially noticed:

(d) the assumption of office of the President, a State Governor or Chairman of a Local Government Council and of any seal used by any such public officer:

(e) the seals of all the courts of Nigeria. the seals of notaries public. and all seals

which any person is authorised to use by any Act of the National Assembly or other enactment having the force of law in Nigeria;

(f) the existence, title and national flag of every State or sovereign recognised by

Nigeria:

(g) the divisions of time, the geographical divisions of the world, the public festivals fasts and holidays notified in the Federal Gazette or fixed by an Act:

(h) the territories within the Commonwealth;

(i) the commencement, continuance and termination of hostilities between the Federal Republic of Nigeria and any other State or body of persons;

(j) the names of the members and officers of the court and of their deputies and

subordinate officers and assistants. and also of all officers acting in execution of its process, and of all legal practitioners and other persons authorised by law to appear or act before it;

(k) the rule of the road on land or at sea:

(I) all general customs. rules and principles which have been held to have the force of law in any court established by or under the Constitution and all customs which have been duly certified to and recorded in any such court; and

(m) the course of proceeding and all rules of practice in force in any court established by or under the Constitution.

It must be stated that even if the Executive Order were to be on the list, this court is clothed with discretion to refuse to take judicial notice of same as SECTION 122 (4) of the Evidence Act 2011 provides that:

“If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document, as it may consider necessary to enable it to do so”.

The Supreme Court reaffirmed this position in Osafile v. Odi (1990) 2 NWLR (Pt.137) 130, holding that:

“The refusal to exercise the discretion of the court to examine the document is even more supported by a statutory provision as contained in section 73 subsection (3) of the Evidence Act, Cap. 62, which provides: “73(3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.” It follows that the better view is that where a counsel relies on a document including the judgment of the court concerned, whether valid or nullified, in supporting any argument in his client’s brief, counsel should either quote in the brief the relevant portion of the document concerned or produce it as a whole to the court. Any shortcut to this will not do unless the court considers otherwise.” PER UWAIS, J.S.C. (Pp. 46-47, paras. E-B)

It is also instructive to add that the burden is on the Defendant who alleges termination of the provisional appointment to prove it.

In LAFARGE CEMENT WAPCO NIGERIA PLC v. ENGINEER LATEEF ISHOLA OWOLABI (2014) LPELR-24385(CA) the court held that:

‘In civil matters, the burden of proof shifts from the plaintiff to the defendant and vice-versa. The onus always rest on the party who would fail if no evidence is adduced on either side. The nature of proof, of course, is on balance of probabilities or preponderance of evidence, i.e. which side outweighs the other.” Per GUMEL, J.C.A.

See also IBENEME v. AWOLABI & ORS (2014) LPELR-23541(CA); Obi v. Onyemlukwe (2011) NWLR (Pt. 1228) 400; section 131, 132, and 133 of the Evidence Act, 2011.

While the Defendant has stated that by paragraph 1 (d) of the provisional appointment, the Government has the option of terminating the appointment, there is no proof that same has been complied with by the Government.

The burden of proof is on the Defendant to prove the existence of the gazetted executive order which he claims exist.

In Okoye & Ors v Nwankwo (2014) LPELR-23172 (SC) it was held that the burden of proof is two-fold. The first is the ability of the Plaintiff to establish and prove the entire or reasonable portion of his case before a court of law that can give judgment in his favour. This is always constantly on the Plaintiff. The other type is related to particular facts or issues which a party claims exists. It is this burden of proof that oscillates from one party to the other. While the first type of burden of proof is called legal burden or the burden of establishing a case; the second one is called evidential burden.

In line with the above authorities therefore, this court is not obliged to take cognizance of the executive order not before the court. It is rather preferable for the Defendant to provide the official gazette so referred. Therefore, I am inclined to hold that there is no termination of the employment of the Claimants as no useful material has been placed before the court to establish the termination of the appointments.

Learned Counsel to the Defendants also made a heavy weather over the fact that the appointment is provisional and rightly so, CW1 stated during cross examination that they were never given any letter confirming their appointment.

The question that comes to mind is that, is there no procedure for terminating a provisional appointment regard being had to the fact that the appointment is one with statutory flavor? This question fortunately has been answered in a long line of cases as stated by the court in COSMOS C. NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) that:

“It is now firmly established by a long line of decided cases by apex Court that when an office or employment has statutory flavour, in the sense that the conditions of service of the employee are provided for and protected by a statute or regulation made there under, a person holding that office or is in that employment enjoys a special status over and above the ordinary master/servant relationship. In order to discipline such a person, the procedure laid down in the relevant statute or regulation must be complied with strictly. Consequently, the only way to terminate such a contract of service with a statutory flavour is to adhere strictly to the procedure laid down in the statute or regulation made thereunder.” The above was followed in the case of New Nigeria Newspapers Ltd v. Atoyebi (2013) LPELR-21489 (CA) where we said this of employment with statutory flavour: “In employment with statutory flavour, that is, employment governed by statute wherein procedure for employment and dismissal of employees are clearly spelt, the employment cannot be terminated other than in the way and manner prescribed by the statute concerned and any other manner of termination inconsistent with the statute is null and void… such is applicable in contract of employment under the public and civil service of the Federation, States, Local Government and agencies of Government…” See also Osumah v. Edo Broadcasting Service (2005) All FWLR (Pt. 253) 773 at 787, Oloruntoba Oju v. Abdulraheem (2009) 26 WRN 1; (2009) 13 NWLR (Pt. 1157) 83.” Per MBABA, J.C.A

It was also held in the case of MR. CAMILUS TSEMWAN & ORS v. GOVERNOR OF PLATEAU STATE & ANOR (2012) LPELR-7922(CA) that:

“An employment which is clothed with statutory flavor as in this case must be terminated in a way and manner prescribed by the relevant statute and any other manner of termination which is inconsistent with the statute will be null and void and of no effect . see the case of IBAMA V SPDC (NIG) LTD 2005 17 NWLR Pt. 954 AT 364. Also the case of UBN Ltd. V Ogboh (1995) 2 NWLR (Pr 380) 647.”PER EKPE, J.C.A(P.27, Paras. E-F)

The reasons for their removal were never communicated to them. They were never accused of misconduct or found wanting in health of mind and body. In my opinion the reason adduced by the Respondents that their services were not confirmed or that due process was not followed in their appointment is to my mind an afterthought and an excuse to remove any unwanted officer at their whims and caprices”

In the instant case, DW1 during cross examination stated that there is no letter of termination and that the appointment stands terminated by the pronouncement of the Governor. This is without doubt not in tandem with the procedure for termination of provisional appointment in the Public Service Rules which is applicable to civil servants all over the country.

Chapter 2, Section 8 of the 2008 Public Service Rules provides for the procedure for termination of employment during probationary period by stating that:

020801 – If within his probationary period it is established to the satisfaction of the authority empowered to appoint an officer that he is not qualified for efficient service, his appointment may be terminated by that authority at any time without any further compensation than free transport to the place from which he was engaged and such free transport will be granted only if his conduct has been good. Provided that termination is not due to misconduct on the officer’s part, it will be effected by means of a month’s notice and, subject to the same proviso, if the officer is eligible for vacation leave in respect of his/her service to date, such leave may be granted together with (if the officer so desires) normal vacation leave transport grant in lieu of the free transport mentioned above. Such leave, if any, shall be so arranged as to take place within the period of notice and, if possible, to expire on the same day as the notice. The position regarding the refund of the cost of any training given the officer is governed by the bond relating to the such training.

In ALHAJI ABDULLAHI BABA v. NIGERIAN CIVIL AVIATION TRAINING CENTRE (1986) LPELR-21095(CA) the court made exposition on termination of appointment of employees on probation. Per AKPATA, J.C.A. stated that:

“The word “probation” is defined in the Black’s Law Dictionary 5th Edition page 1082, amongst other things, as “the initial period of employment during which a new, transferred, or promoted employee must prove or show that he is capable of performing the required duties of the job or position before he will be considered as permanently employed in such position”

He further stated that:

“There is no doubt that if the appellant was the Establishment Staff and had completed his probation period Exhibit A would have been binding on him. As stated in the case of McClelland v. Northern Ireland, General Health Service Board (1957) 2 ALL ER 129 at page 134 Lord Goddard had this to say:

“I think the fair conclusion is that the Board offered and the applicant accepted employment on terms as secure as in fact enjoyed by civil servants. Although a civil servant as is well known, is employed at the pleasure of the Crown and can be dismissed at any moment, in fact once he is qualified by examination or probation and is taken on the establishment, he is secure in his employment till he reaches the retiring age apart of course for misconduct or complete inefficiency.”

“The facts of this case clearly showed that the appellant was on probation, even though he was promoted to the post of a security officer, he was not yet confirmed. In that case the rules governing his termination can either be under Chapter 3.6(d) or under 3.14(b) of the Staff Regulations which empower the Board or the Principal to terminate the appointment of an officer who is on probation subject to the provisions of chapter 5.3.9.”

In BANKE & ORS v. AKURE NORTH LOCAL GOVERNMENT (2013) LPELR-20893(CA), with relation to how statutory employment under probation can be terminated, the court held that:

“The court agrees with the findings of fact of the learned trial Chief Judge that the appellants were still on probation and as such their employment could be terminated at any time and for any reason provided they were given one month’s notice of the impending termination or one month’s salary in lieu of notice. As noted a while ago the letters issued to the appellants terminating their employment did not comply with the express provision of Regulation 31. The position of the law remains that:

“Employment with statutory backing must be terminated in the way and manner prescribed by that statute, and any other manner of termination inconsistent with the relevant statute is null and void and of no effect.”

Going by the above authority, it is evident that the procedure for terminating a provisional appointment in the instant suit is not in accordance with the Public Service Rules and I so hold.

In totality of the above analysis, issue 2 is resolved in favour of the Claimants.

On the whole, it is crystal clear that the termination of the employment of the claimants did not follow the statutory procedure. I am convinced that the claimants have proven their case. I find in the final analysis that the termination of the Claimant’s employment was improper, unlawful, null and void. It is trite that where there is an improper removal of an employee from an employment protected by statute, the consequence is that the employee has not been removed from office. In other words, once dismissal or termination of employment is declared null and void, there is nothing standing in the way of the Claimants from having their jobs back with its attendant rights, benefits and privileges. See Kwara Polytechnic Ilorin v Oyebanji (2008) All FWLR (Pt.447) 141 at 199 and Olaniyan v University of Lagos (1985) NWLR (Pt.9) 599.

With regards to the payment of salaries to the Claimants. The Claimants alleged in paragraph 5 of their statement of fact that the salaries and allowances of the Claimants have not been paid since 1^st December, 2015. This was restated in the witness statements on oath before the court. On the part of the Defendant, When DW1 was asked whether he remunerated the appointment of the Claimants, he said the appointment stands terminated by the pronouncement without further proof that they were remunerated.

That being said, the Claimants are entitled to the status quo ante as:

“it is settled law that once the dismissal or termination of a civil servant is deemed null and void, the effect is that the civil servant was always and still is a civil servant and entitled to all his salaries and benefits” Per Edozie JSC see Iderima v River State CSC (2005) 7 SC (Pt.111) p.135 at 151; Saibu v Kwara Polytechnic, Ilorin (2008) LPELR-4524 (CA)

In totality, this court hereby orders as follows:

A DECLARATION that the Claimants are Civil Servants in the service of Kogi State Government and are entitled to salaries, allowances and trainings for the effective performance of their duties as Forest Guards.