Hon. Frank Ekwere & ORS -VS- The Governor of Imo State & 2 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: WEDNESDAY 28^TH NOVEMBER 2018SUIT NO.NICN/OW/42/2015

BETWEEN:

HON. FRANK EKWERE CLAIMANTS
HON. LUCKY CHARLES UKACHI

AND

THE GOVERNOR OF IMO STATE
PROF. A.G. ANWUKA DEFENDANTS

(SECRETARY TO THE GOVT. OF IMO STATE)

ATTORNEY GENERAL, IMO STATE

APPEARANCES:

C.C. IWUOHA FOR THE CLAIMANTS.
A.O. ANYALEMECHI, CHIEF STATE COUNSEL, IMO FOR THE DEFENDANTS.

JUDGMENT

INTRODUCTION

This suit was commenced by WRIT on 3^rd June 2015. The Amended Statement of Facts [wrongly tagged ‘Statement of Claim’] dated 19^th April 2018 and filed 20^th April 2018 has the following reliefs in its paragraph 18:

(a) A DECLARATION that the claimants [sic] appointments as Deputy Mayor, Owerri Mayoral Affairs and New City Officer vide appointment letters dated 15^th April, 2013, and 12^th February, 2013 respectively, are subsisting and valid.

(b) A DECLARATION that the claimants are entitled to receive and be paid their monthly allowances as communicated to them in their letters of appointment together with their monthly entitlement [sic] and their benefits as bona fide employees of Imo State Government and cannot be denied same save a [sic] provided by law.

(c) A DECLARATION that the refusal, neglect and failure of the 1^st defendant to pay the claimants their monthly salaries and or allowances since August 2013 till date and their accrued arrears of entitlement and fringe benefit ever since February 2013 till date is wrongful, unlawful and contravenes the law.

(d) AN ORDER of the Honourable Court directing and commanding the 1^st defendant to pay the 1^st claimant the sum of N3,850,000.00 (Three Million Eighty Hundred and Fifty Thousand Naira) only representing his salaries or allowances from August, 2013 to May, 2015 (22) Months and subsequent months until the determination of the employment.

(e) AN ORDER OF the Honourable Court directing and commanding the 1^st defendants [sic] to pay the 2^nd claimants [sic] to [sic] the sum of N3,300,000 (Three Million Three Hundred Thousand Naira) representing his salaries or allowances from August 2013 to May 2015 until the determination of his employment.

Mean while, the claimants’ original Statement of Facts [wrongly tagged ‘Statement of Claim’ was dated 1^st June but filed 3^rd June 2015. Against the foregoing, the defendants originally filed the Statement of Defence dated 8^th September but filed 10^th September 2015 pursuant to the Court’s order of 6^th October 2015. However, when the claimants amended their Statement of Factsand written depositions pursuant to the Court’s order on 13^th July 2018, the defendants did not file any consequential amendment, thus leaving this Statement of Defence extant.

The matter was part heard before my learned brother, Hon. Justice Anuwe, who was subsequently transferred out of the Owerri Division before the matter could be concluded. On 6^th November 2017, when the matter came up before me, the counsel to the parties both prayed the Court to allow them adopt the proceedings of the previous trial before my learned brother, Hon. Justice Anuwe. Their prayer was granted. Meanwhile, in the previous proceedings, CW1 had been taken and cross-examined. The matter was thereafter adjournedto 4^th and 12^th December 2017 for continuation of trial. On 4^th December 2017, the matter could not go on,as the defence counsel did not come because of his attendance of promotion interview. The matter was therefore adjourned to 12^th December 2017. However, on this date too, the matter could not go on and was adjourned off record to 30^th January 2018. The matter came up as adjourned on 30^th January 2018.

On this date, CW2 was taken. After swearing on the Holy Bible and complying with all other preliminaries, CW2 adopted his written deposition on oath filed 3^rdJune 2015. Thereafter, CW2 tendered Exhibits C8 and C9, and the evidence-in-chief was brought to an end. The case was thereafter adjourned to 27^th and 28^th February 2018 for cross-examination and defence. On the 27^th February 2018, the matter came up as adjourned and the cross-examination of CW2 was conducted and brought to an end without re-examination.The case of the claimants was closed at this point. On this same day, the defence opened with DW1 who affirmed.DW1 tendered Exhibits D1 and D2 and the evidence-in-chief was brought to an end. The cross-examination of DW1 was adjourned to 28^th February 2018. On the said date, the matter came as adjourned. DW1 was cross-examined and there was no re-examination. Thereafter, the defence closed their case and the matter was adjourned to 23^rd April 2018 for adoption of final written addresses.

On 23^rd April 2018, the matter could not go on as planned, as the counsel to the defendant wrote for adjournment. The matter was therefore adjourned to 14^th May 2018 for motion/adoption of final written addresses. This motion dated 19^th April 2018 was filed on 20^th April 2018. That is, after the matter had been adjourned for adoption of final written addresses and the defendant had filed their final written address on 18^th April 2018. On 14^th May 2018, the matter came up as fixed. The motion filed by the claimants was taken and opposed. The ruling was thereafter fixed for 18^th June 2018. Ruling was not ready on the 18^th June 2018 and was further adjourned off record to 12^th July 2018. As it was still not ready on this date, the ruling was yet adjourned to 13^th July 2018. The ruling was delivered on 13^th July 2018 and the prayers of the claimants for amendment of their Statement of Facts and written depositions on oath were granted. Thereafter, the matter was adjourned to 24^th September 2018 for adoption of final written addresses. But before this date, I was transferred out of the Owerri Division and had yet to secure fiat to complete my part-heard matters. As a result, it was adjourned sine dieof record on that 24^th September 2018. At the obtainment of fiat,the case was fixed for 19^th October 2018 for adoption of the final written addresses. It came up as fixed.

On this date, A.O. ANYANLEMECHI, CHIEF STATE COUNSEL [CSC], IMO STATE, stated that he did not see any reason to consequentially amend his final written address already filed before the Court’s ruling of 13^th July 2018 allowing the claimant to amend their pleadings. The learned CSC therefore urged the Court to deem this final written address as filed pursuant to the Court’s order of the said 13^th July 2018. The learned counsel to the claimants: C.C. IWUOHA did not oppose this application and it was accordingly granted. Thereafter, the learned IWUOHA applied to regularize the final written address of the claimants dated 26^th September 2018 pursuant to the deeming order granted the defendants’ counsel. This application was not opposed. It was accordingly granted. Thereafter, the learned CSC adopted his final written address dated 13^th April 2018 and filed 18^th April 2018. The learned counsel also adopted the Reply on Points of law [RPL] dated 9^th October 2018 and filed 10^th October 2018. In adumbration, the learned CSC opined that,the claimants never filed additional written deposition in line with the amendment granted, and thus deemed to have abandoned the paragraphs 5, 6, and 7 of the Amended Statement of Facts, as it related to the amendment granted. The learned counsel therefore urged the Court to expunge any evidence led thereto. The learned counsel further opined that CW1 filed Further Witness deposition but never adopted it. The learned counsel submitted that, this amounted to abandonment and could not be deemed as properly filed and served. The learned counsel thereafter urged the Court to dismiss the case, and rested his case.

Thereafter, the learned counsel for the claimants adopted his final written address filed 26^th September 2018 and urged the Court to grant all the reliefs claimed. In adumbration, the learned counsel urged the Court to strike out the Reply on Points of Law filed for the defendants because it was not a reply on points of law as it raised issues that did not arise from the final written address of the claimants at paragraphs 1.0-3.01. The learned counsel relied on Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61 at 115, paras. C-E. The learned counsel thereafter urged the Court to grant the reliefs claimed by the claimants. The learned CSC for the defendants referred the Court to paragraph 2.10 of the claimants’ final written address, which he argued related to paragraph 6 of the Amended Statement of Claim, and submitted that, as a result, the Reply on Points of Law be allowed.

The adoptions and adumbrations on the final written addresses ended at this point; and the matter was adjourned till today for judgment. My next duty is to now summarise the final written addresses of the parties. I start with that of the defendants, which is first in time.

FINAL WRITTEN ADDRESSES OF COUNSEL

Final Address of Address of the Defendants

A.O. ANYANLEMECHI, CSC, IMO STATE franked this final written address on behalf of the defendants. The learned CSC formulated four issues for the determination of the suit, to wit:

Whether the appointment of the claimants have any statutory flavor. [sic]
Whether the contract of appointment of the claimants Exhibits C1 and C8 provided procedure for terminating their appointment. [sic]
Whether the claimants are entitle [sic] lead evidence on facts not pleaded in their statement of claim. [sic]
Whether the claimants are entitled to their claims. [sic]

The learned counsel argued the issues seriatim. On issue 1, the learned counsel cited Oforishe v. Nigerian Gas Company Ltd (2018) 275 LRCN 106 at 122 JJ & 123 AF on the meaning of employment with statutory flavour and the distinction between employment with statutory flavour and master/servant employment; and submitted that, the appointment of the claimants have no statutory flavour nor conditions of service to deduce the procedure for appointment and determination the appointment. The learned counsel referred to the evidence of CW1 under cross-examination on 5^th July 2017 and stated that CW1 replied that, it was not true that his appointment did not have conditions of service and that, his salary was reflected in Exhibit C1 as part of his conditions of service and that his condition of service was also monetized in the Obasanjo reform in Certain Political and Judicial Office Holders’ Salaries and Allowances 2002 signed into law July 1^st 2003, in which he was under category No. 22 therein but that, he did not plead this law.

Going further, the learned counsel referred to the cross-examination of CW2 on 27^th February 2018 and sated that, CW2 replied that the office of New City Officer, Owerri had no condition of service and but maintained that he was a public officer. The learned counsel submitted that, even when the condition of service of the claimants was made an issue, they still failed to lead evidence on it, and that, having failed to tender their conditions of service; this Court should hold that the appointment of the claimants has no condition of service. The learned counsel pointed out that, throughout the testimonies of the claimants they never said their appointment was governed by any statute; and subsequently urged the Court to resolve issue 1 in the defendants’ favour. The learned counsel thereafter moved to issue 2.

On issue 2, the learned counsel reproduced the appointment letters of the claimants and said, by virtue of exhibits C8 addressed to the 2^nd claimant and dated 12/02/13 and C1 addressed to the 1^st claimant and dated 15/04/13, and particularly from Exhibit C8, it was clear that the intention of the 1^st defendant was to make them a committee, which was why the letter was tagged “Reconstituted New City Committees”. The learned counsel submitted that, exhibits C1 and C8 did not contain anything relating to the procedure of terminating their appointment or any other thing apart from the allowance to be earned.The learned counsel submitted that, since Exhibit C8 was the only document that exists in relation to the claimants’ appointment, the parties are precluded from looking elsewhere for other applicable provisions. The learned CSC cited Adams v. Lagos State Devt. & Property Corporation (2005) 5 NWLR (Pt. 291)[no further details given]. There, counsel ended submissions on issue 2 and went to issue 3.

On issue 3, the learned counsel opined that, parties are not allowed to give evidence on facts not pleaded, and submitted that, the claimants never pleaded that they were public servants, and that, as such, evidence led on being public servants should be expunged.The learned counsel submitted that, the claimants are mere domestic servants of the 1^st defendant and hold their offices at his pleasure, not being public officers as could be gathered from their letters of appointment. Citing section 318(1) of the 1999 Constitution which defines public service and Dada v. Adeyeye (2004) ALL FWLR (Pt. 236) 248 on the fact that the governor of a State in Nigeria is not in the public service, the learned CSCurged the Court to hold that, the claimants are not public servants as their contract did not enjoy statutory flavour. The learned counsel submitted further that as a result, the evidence of the claimants relating to Reform on Certain Political Office & Judicial Office Holders Salaries & Allowances, 2002 should be expunged.Submissions on issue 3 were thus ended and counsel moved to issue 4.

On issue 4, the learned counsel argued that since the claimants did not prove their case, they are not entitled to the reliefs claimed. The learned counsel argued further that the claimants failed to address the issue at stake, particularly as raised in paragraph 8 of their Statement of Defence and testified in paragraph 11 of the deposition of DW1 that,the claimants’ appointments were terminated, which evidence was never controverted, the Court should deem it as admitted. The learned counsel cited William v. Tinubu (2014) ALL FWLR (Pt. 755) 200 at 231 and Yakubu v. ANPP (2014) ALL FWLR (Pt. 715) 395 at 410 in support of the submission. The learned counsel also argued that, the claimants having admitted that they never did any further job after July 2013; they could not be paid for work not done, and that, it has never happened in the whole world that a person is paid for work not done.

The learned counsel argued further that the case of the claimant was inconsistent and that theyadmittedat one stretch that their officeswere scrapped and at another argued that they had not been relieved of their offices. The learned counsel referred to the evidence of CW1 under cross-examination on 05/07/2017 and argued that, therein CW1 admitted that his office had been scrapped. The learnedcounsel also argued that, CW1 equally said he stopped functioning as Deputy Mayor on his own but also said at another instance that he stopped work on 28/05/2015 and at another instance, that it was coming to Court that put an end to his functioning as Deputy Mayor, whereas, it is on record that he only approached the Court on 03/06/15.The learned counsel therefore submitted that, where a claimant is not specific as to when his appointment was terminated, and the defendant gave a specific date, the Court is bound to believe the defendant, and urged the Court to so hold.

At this stage, the final written address of the defendants was brought to an end, by urging the Court to dismiss the suit. I now move to the final written address of the claimants in rebuttal.

Address of the Claimants

D.O. AGBO franked the claimants’ final written address. The learned counsel formulated two issues. They are:

(i) Whether the appointments of the plaintiffs [sic] as Deputy Mayor Owerri Mayoral Affairs and New City Officer Owerri subsist and valid to entitle them to their monthly salaries and allowances. [sic]

(ii) Whether the contract of employment of the plaintiffs [sic] vide Exhibit “C1” & “C8” was validly terminated by Exhibit “D1” tendered by the defendants. [sic]

The learned counsel submitted that, by virtue of Exhibits C1 and C8, the claimants are entitled to their salaries and allowances from August 2013 till 28^th May 2015 when they stopped work because of non-payment of their salaries, allowances and entitlements contained in the said Exhibits C1 and C8. The learned counsel submitted that, the contract between the parties is that of master/servant relationship and that, as such the employer can terminate the contract at any time and for any reason or for no reason at all, but that, where the termination is inconsistent with the terms of the contract, the master must pay for the breach. The learned counsel submitted that, Exhibits C1 and C8 contained the conditions of appointment of the claimants. The learned counsel argued that, by the said exhibits, the 1^st claimant was entitled to N175,000 monthly while the 2^nd was entitled to N150,000 monthly. The learned counsel argued that, in the absence of provision on how to determine the appointment, the claimants would be entitled to a month salary and other allowances that accrued to them legitimately in lieu of notice under labour law.

The learned counsel argued further that, Exhibit D1 cited by the counsel to the defendants, as terminating the appointments of the claimants, did not relate to the claimants at all, as the claimants were not mentioned as part of the people affected. The learned counsel opined that, the document speaks for itself and that, the law is that, he who alleges must proof by virtue of section 131 of the Evidence Act, and hence, the defendant who asserts that the positions of the claimants were scrapped on 17^thJuly 2013 must prove this. The learned counsel also argued that, even Exhibit D2 did not indicate that the claimants were affected but, only mentioned the Mayor of Owerri and submitted that, the Mayor of Owerri is different from the Deputy Mayor Owerri Mayoral Affairs and New City Officer of Owerri, which offices the claimants occupied. The learned counsel submitted that, as Exhibit D2 speaks for itself, it does not avail the defendants and oral evidence cannot substitute missing links in documents. On this, the learned counsel referred to N.I.D.B. v. Olalomi Industries Ltd (2000) 5 NWLR (Pt. 761) 532 and urged the Court to discountenance any evidence on record that sought to vary the contents of Exhibits D1 and D2.The learned counsel also cited Kanonda v. Director, Consolidation of Holdings Air 1990 SC 763 and other authorities on the fact that, the specific mention of one thing excludes those not mentioned and submitted that, the claimants were not thereby intended to be affected by Exhibits D1 and D2.

The learned counsel argued that the appointments of the claimants still subsistand the claimants entitled to their salaries and allowances as fixed by exhibits C1 and C8 until lawfully determined. The learned counsel submitted that, to hold otherwise, is to engage in speculation and argued that a court of law lacks the vires to speculate. The learned counsel cited Ejezie v. Anuwu (2008) 12 NWLR (Pt. 1101) 446 and others on speculation. The learned counsel later opined that, issue 1 of the defendant is off the mark because the claimants never claimed that their appointment had statutory flavour. The learned counsel submitted that,the letters of appointment would therefore govern these appointments where there is no employee handbook. The learned counsel submitted that the case of the claimants is that their appointments have not been terminated; therefore, they continue to be entitled to their salaries and allowances as contained in Exhibits C1 and C8, since no termination letters havebeen communicated to them till date. The learned counsel submitted that, the offices of the claimants were captured under Item B, No. 22 of Certain Political, Public and Judicial Office Holders (Salaries and Allowances) Act 2002[CPPJOHA] signed into law 1^st July 2003. with regards to their other conditions of service, which were monetized. The learned counsel submitted that, having been captured by this law, the claimants are entitled to the monetized conditions of service.

The learned counsel argued that the claimants did not claim this head of claims in their Statement of Facts because it was already fixed by law and that the Court is bound to apply a law when its attention is drawn to it; and that, having drawn the attention of the Court to it, the Court is bound to apply the law to this case, irrespective of the fact that they did not claim their entitlements under that law. The learned counsel submitted that in the event that the Court agreed with the defendants that, the appointments of the claimants were effectively determined by Exhibit D1, the Court is bound to give effect to the monetization policy as contained in CPPJOHA. Finally, the learned counsel urged the Court to find in favour of the claimants and grant all their reliefs.Thus ended the final written address of the counsel to the claimants. I shall now move to the Reply on Points of Law [RPL].

Reply on Points of Law

A.O. ANYALEMECHI, CHIEF STATE COUNSEL, IMO STATE franked the RPL. Let me preface this part with the warning that I am only duty bound to summarise what constitute RPL and none else – see Cross Country Limited v. A.G. Moeler Limited (2014) LPELR-24091 (CA) 25, D-F and Ecobank Nigeria Limited v. Anchorage Leisures Limited & Ors. (2016) LPELR-40220 (CA) 42, B-E. I have gone through the RPL and could not find anything approximating to RPL. All that was raised therein are issues supposed to be trashed out in the Final Written Address of the Defendants and not in the RPL. The RPL did not react to any point of law raised in the claimants’ address but only sought to improve on their Final Written Address.

It is on record that, when the Court allowed the claimants amend their pleadings after the defendants have filed their Final Written Address,was granted leave to the defendants to also consequentially amend their Final Written Address and also granted them cost of N10,000 naira to cover the cost of amending their final written address in view of the fact that, it was filed before the amendment was granted. The defendant never utilized this and learned CSC even said, at the adoption of the final written addresses that he saw no reason to amend his final written address. For the above reason and in view of Cross Country Limited v. A.G. Moeler Limited (2014) and Ecobank Nigeria Limited v. Anchorage Leisures Limited & Ors. earlier cited above, the RPL which is merely an improvement on the Final Written Address is hereby discountenanced.

The next thing is now to proceed to the last duty of a court in written judgment: that is, to apply the law to the facts of the case and arrive at a decision in the suit. In doing this, I have carefully read and digested all the processes relating to this suit. I have likewise scrupulously studied and appreciated the evidence led in the matter and the final written addresses of the parties. I shall therefore make references to these processes and the evidence as occasions demand.

DECISION

In deciding this case, I adopt only one of the two issues formulated by the claimants, which I have earlier reproduced above.Issue 2 as formulated by the claimants is purely tautologous.Issue 1 accurately captures the facts and reliefs framed in this case. The four issues formulated by the defendants are needlessly prolix and beat about the bush. The issue is:

Whether the appointments of the plaintiffs [sic] as Deputy Mayor Owerri Mayoral Affairs and New City Officer Owerri subsist and valid to entitle them to their monthly salaries and allowances?

In deciding this issue, it is important to know whether or not the claimants have continued to go to office or put in another way, when the claimant stopped going to office. This is threshold because, the dispute here is a very narrow one, centering on whether or not the appointment in issue had been determined. It is agreed by the parties that the defendants stopped paying salaries in July 2013. The parties are by now also agreed that the relationship in issue does not have statutory flavour. The implication of this is that,either party could terminate the contract at will. But if the employer exercises his right to determine, the claimants must be entitled to arrears of salaries and allowances earned and unpaid, nothing more, except if the contract otherwise provides – see Ativie v. Kabelmetal Nig. Ltd (2008) LPELR-591 (SC) 13-14, F-A. The earlier the parties take this into consideration the better, because this is the crux of the reliefs claimed.

This brings into focus the distinction between an employment clothed with statutory flavour and purely master/servant employment. There are two types of employment clothed with statutory flavour: (1) the various categories of civil and public servants and, (2) political appointees with secured tenures, though, not public servants as defined by section 318 of the Constitution, but their appointment are nonetheless clothed with statutory flavour, which confers secured tenures on them. For example, members of the Federal and State Civil Service Commissions who enjoy secured tenures by virtue of the 1999 Constitution.These categories of political appointees, though not public servants, are nonetheless entitled to payment of their unearned salaries and allowances, if their appointments are determined unlawfully, just like public and civil servants are. But all other categories of political appointees hold their offices at the pleasure of the person appointing them, and cannot therefore claim arrears of unearned salaries – see Hon. Commissioner for Local Government and Chieftaincy Affairs & Anor v. Onakade (2016) LPELR-41133 (CA)10-13, E-A. That is, because they are not entitled to reinstatement, they cannot therefore enjoy payment of arrears of salaries and allowances for the period they were out of service. Once they out of service, the appointment is determined. Once their appointments are determined, either rightly or wrongly, that ends the contract. The only thing that could be paid is damages in lieu of notice where that is provided for by the contract, and it is noted provided for in the instant case.

The situation here should not be equated with that of pure employment relations where the law presumes reasonable notice or payment in lieu thereof. These are purely political appointees whose positions are merely analogous to that of master/servant relationship but not equal to it. The person who appoints them retain the power to sack them at any point in time, anything not provided for by the Constitution [as in this case] under which they were appointed cannot be imported into the relationship – Hon. Commissioner for Local Government and Chieftaincy Affairs & Anor v. Onakade [supra]. The reference to the Labour Act would not avail the claimants, because, proviso (b) of section 91(1) of the Labour Act [the definition section], while defining ‘worker’, excludes persons exercising executive, technical or professional functions as public officers or otherwise. This proviso definitely excludes the claimants from the ambit of section 91 of the Labour Act. The claimants herein were exercising executive functions, as political appointees.

Now, the evidence on record via CW1 and CW2 is as contained in paragraphs 6 of the witness depositions of both witnesses adopted in this Court on 17^th March 2017 and 30^th January 2018 respectively. The said paragraph 6 of the two depositions, which are exactly the same, states:

“That consequent upon my employment I was being paid my salaries/allowances as indicated in my letters [sic] of appointment up to and including June, 2013. As from July 2013 till date, the defendants have refused, neglected and failed to pay me my salaries for any reason that I know of, or was informed of by the defendants”.

From the above, it is obvious that the claimants did not indicate when last they attended offices or worked after the payment of the June salaries. I mean, they did not indicate that they actually worked in July for which they were unpaid. Throughout the two depositions, nothing was said about the last time they went to office. Now, the defendants stopped paying them in July 2013 and pleaded in their Statement of Defence that they were dissolved on17^th July 2013 and tendered evidence [Exhibits D1 and D2]in support of this.The claimants have argued that the dissolution never applied to their offices because it they were not specifically mentioned. But I think this argument is not valid. The text of Exhibit DW1 clearly stated that the executive council of the State was dissolved. This clearly included the claimants. They have not argued that they were not part of the executive council. The principle of express mention of one excluding those not mentioned is not applicable in the instant case. This principle onlyapplies where the specific things are mentioned as the sole subject of the provision and not when those specific things mentioned, are preceded by general words, and those specific things mentioned are mentioned as examples of what the general word introducing them mean.

By first saying the state executive council was dissolved, it was clear enough that all members of that council were affected otherwise; the clause “…the Executive Governor of Imo State has dissolved the State Executive Council” would not have been employed to introduce the dissolution. The mere fact that when subsequently the instrument went on to mention those that were to handover to their respective permanent secretaries and omitted to mention the claimants’ offices, would not mean that they, the claimants, were not affected by the dissolution. To hold otherwise, is to defeat the plain intention of the instrument, which was to dissolve the whole executive council. The expressio unius rule is definitely not applicable here because the provisions being construed are not framed in the manner of expressiounius rule but actually in the manner of ejusdem generisrule except that the general words “executive council” came before the specifics instead of the other way round. In construing an instrument, a court’s duty is to ascertain the intention of the parties to the instruments or the intention of the legislators and in doing this, must choose the rule of interpretation that best bears this intention. I think it is a combination of the ejusdem generis and mischief rules that apply in the instant case.

The mischief intended to apprehend in this case is the dissolution of the whole executive. When the Governor asked the listed political appointees to handover to their permanent secretaries and scheduled a meeting with the permanent secretaries alone without inviting any other political appointee, the implication is that, for that while, He severed relationship with all political appointees and preferred, for the time being, to relate with the permanent secretaries who are technocrats/career officers.In furtherance of the foregoing, the DW1 deposed in paragraph 12 of his witness deposition adopted in this Court on 27^thFebruary 2018 that the offices of the claimants were abolished on 17^th July 2018 and that when the 1^st defendant [the Governor] reconstituted His cabinet, the new list did not include these offices. If the defendants stopped paying the claimants since July 2013 immediately after the dissolution, and the claimants did not tender any documentary evidence to show that they continued to go to work after June 2013, specifically after the said dissolution, is it not reasonable to deduce that the act of the defendants in the stoppage of their salaries is in furtherance of the dissolution and tantamount to termination of their appointment, because salary/wage is the basiclitmus test orinsignia of master/servant relationship.

Once a master stopped payment of salaries and the employees stopped attending work, the axiom is that, the contract had come to an end even without issuance of a formal letter of termination. And conversely, once the appointees stopped coming to work and the employer stopped payment of salaries, the contract has, for all practical purposes, been determined. Hence, the failure of the claimants to adduce evidence of when they attended their work last points to the fact that their appointments had been determined to their knowledge since July 2013, which was why they were not paid since that time.It also points to the fact that the claimants stopped going to office since the dissolution in July 2013. It means too, that the two sides were aware that the appointment had come to an end. It should be borne in mind that this is not strictly an employment relationship but merely analogous to that of master/servant – see Hon. Commissioner for Local Government and Chieftaincy Affairs & Anor v. Onakade [supra]but political appointments.It follows that the claimants failed to discharge the burden of proof placed on them. So, the claimants have failed to prove their case.

With regard to the argument that the claimants are entitled to be granted reliefs under the CPPJOHA since these are entitlements prescribed by law, even though, they did not claim their reliefs under it. I agree with the claimants’ counsel that a relief to which a person is entitled cannot be denied him/her simply because it was claimed under wrong law. But that is not the end of the matter.With the holding that the claimants failed to prove their case, the corollary follows that they are ordinarily not entitled to any relief. But, because I have earlier held that they might be entitled to earned salaries and entitlements, I might need to look into the reliefs, especially the monetary reliefs. I realized that the monetary claims are based mainly on unearned salaries and allowances, being that the claimants were labouring under the erroneous belief that their appointments subsist simply because no formal letters terminating them were issued.

I have since held that these appointments had been determined by the dissolution of 17^th July 2013. The monetary claims were based on the basis that they must continue to earn their salaries until formal letters of termination are received. I observed that the reliefs (d) and (e) specifically referred to arrears of unearned salaries from August 2013-May 2015 and did not say anything about being owed any outstanding salaries and allowances before the dissolution of 17^th July 2013. So, it means that the monetary reliefs only relate to unearned salaries and allowances flowing from the belief that the appointments still subsist. So, either under the CPPJOHA or whatever law they were originally claiming through, they are not entitled to any salaries or allowancessince I have held that their appointments were determined by the dissolution of 17^th July 2013.Hence, again, the claimants have failed to prove their entitlements to anything under the CPPJOHA or any of the reliefs claimed.

In all, the lone issue is resolved against the claimants and in favour of the defendants. All the reliefs are refused. And the suit is dismissed in its entirety as lacking in merits. No cost is awarded.

Judgment is entered accordingly.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Judge

NATIONAL INDUSTRIAL COURT OF NIGERIA