Imoke Imoke Imoke & 23 ORS -VS- AG. Federation and Minister of

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 19^TH JULY, 2018 SUIT NO: NICN/ABJ/164/2013

BETWEEN:

IMOKE IMOKE IMOKE
GRACE OKOKON ASANGA
COMFORT EMMANUEL EGOZI
ULONG ANTHONIA UKAM
EKANEM INWANG EKWERE
FELIX JOSEPH EBONG
CAROLINE ETIM AKPAMA
IKWO E. EPIKEN
GRACE EKONG EDIMOTOP
EFFIONG EKPENYONG EKPO
ENENE INYANG UFIA
INAMETI EMMANUEL BASSEY
MARTHA OWOR TABI
GRACE ASUQUO ONOFIOK CLAIMANTS
AYUK MARIA AZIN
UMOH INYANG ASUQUO
ETON EFFIONG ASUQUO
ONAN MBA ONUGU
ATIM WILLIAM TUKU
VERONICA OFFIONG EFFIWATT
EKO COMFORT SUNDAY
OGAREKPE OGAREKPE UNO
UGAR DOUGLAS AKPANKE
OGUDU CATHERINE EGEDE

(For themselves and on behalf of the erstwhile

Employees of National Identity Management

Commission Cross River State Office Calabar)

AND

ATTORNEY – GENERAL OF THE FEDERATION AND

MINISTER OF JUSTICE

HEAD OF THE FEDERAL CIVIL SERVICE

OF THE FEDERATION

THE DIRECTOR – GENERAL, NATIONAL DEFENDANTS

IDENTITY MANAGEMENT COMMISSION

NATIONAL IDENTITY MANAGEMENT COMMISSION

REPRESENTATION:

U. Ewa for the Claimants
O. Omonowa (Director Legal Services, Office of the Head of the Civil Service of the Federation) for the 2^nd Defendant
N. Esangbedo (Head of Litigation, National Identity Management Commission) for the 3^rd and 4^th Defendants.

No representation for the 1^st Defendant

JUDGMENT

By a Writ of Summons and Statement of Claim filed on 9^th November, 2012, the Claimants commenced this suit against the Defendants at the Federal High Court, Calabar Judicial Division. The matter was subsequently transferred to this court vide Order of the Federal High Court Calabar Judicial Division made on 30^th of May, 2013.

With the transfer of the suit, parties re-filed their processes before this court. By the Claimants’ Complaint together with Statement of Facts, Witness Statements on Oath, List of Documents and List of Witnesses all dated 10^th April, 2014 but re-filed on 13^th May, 2014, they are claiming the following reliefs against the Defendants:

A declaration that the Claimants disengagement from the service of the 4^th Defendant is wrongful, illegal, cruel and an aberration to the Defendants conditions of services 2011 and therefore null and void.

An order directing the defendants to reinstate the Claimants to their various positions in the service of the 4^th defendant forthwith.

An order directing the 2^nd and 4^th Defendants to pay the Claimants the arrears of their monthly emolument commencing from the month of September, 2012 when they seized (sic) to pay them to when they are finally reinstated to their various jobs.

In the alternative

The Claimants claim against the defendants, the sum of one billion naira as general damages for wrongfully disengaging them from the service of the 4^th
An order directing the defendants to retire the Claimants from the service of the 4^th Defendant having variously served up to the years of retirement from the service of the Federation of Nigeria.

Upon service of the Originating Processes on the Defendants, the Defendants filed various processes in response to the Originating Processes. The 3^rd and 4^th Defendants filed Joint Statement of Defence together with Witness Statement on Oath, List of Witnesses and List of Documents all dated and filed on the 17^th of March, 2014. These processes filed by the 3^rd and 4^th Defendants were deemed to have been properly filed and served by order of court on 18^th March, 2014. The Claimants in response to the 3^rd and 4^th Defendants’ Joint Statement of Defence filed a Reply together with Additional Witness Statements on Oath dated 10^th April, 2014, filed on 13^th May, 2014, but deemed to have been properly filed and served by order of court on 9^th June, 2014.

The 2^nd Defendant’s Statement of Defence together with Witness Statement on Oath, List of Documents and List of Witnesses all dated 4^th June, 2014 but filed on 5^th June, 2014 were deemed to have been properly filed and served by order of court on 9^th of June, 2014.The Claimants also filed a Reply to the 2^nd Defendant’s Statement of Defence together with an Additional Witness Statement on Oath dated 9^th June, 2014 but filed on 19^th June, 2014.

It is pertinent to point out at this juncture that, when this matter came up for hearing on 30^th January, 2018, the learned counsel for the parties, i. e. Simon Ewa, E. O. Omonowa and F. N. Esangbedo who appeared for the Claimants, 2^nd Defendant and the 3^rd and 4^th Defendants respectively, informed the court of their decision and agreement to dispense with oral testimonies and/or cross examination of witnesses and argue the matter on record. In view of the agreement and decision of counsel in this suit, this court on 12^th March, 2018, ordered parties to file their Written Addresses beginning with the Claimants pursuant to Order 38 Rule 33 of the Rules of Court, 2017. The matter was subsequently adjourned to 9^th of May, 2018 for adoption of Written Addresses.

On the 9^th May, 2018, parties could not adopt their Written Addresses because the 3^rd and 4^th Defendants had not yet filed theirs, as a result, the matter was adjourned at the instance of the 3^rd and 4^th Defendants to 28^th May, 2018 for adoption of Written Addresses.

When the matter came up on 28^th May, 2018, parties adopted their Written Addresses respectively and made additional arguments is support of their cases by way of adumbration. The suit was thereafter adjourned to 19^th July, 2018 for Judgment.

The Claimants’ Written Address is dated 15^th March, 2018 but filed on 20^th March, 2018, wherein learned counsel for the Claimants distilled three (3) issues for the determination of this Court, to wit:

Whether the 3^rd and 4^th defendants can disengaged (sic) the claimants from the service of the 4^th defendant by a declaration of redundancy without complying to the extant public service rules, 4^th defendant’s condition of service and the Act creating the 4^th

Whether it was proper to disengage the claimants from the service of the 4^th defendant summarily by a purported declaration of redundancy instead of retiring them, the claimants having served and attained the years of service.

Whether the 2^nd defendant can deny liability and responsibility for the illegal disengagement of the claimants by the 3^rd and 4^th defendants as a body umbrella in which the claimants were under and the 3^rd and 4^th defendants staffs are under it.

The 2^nd Defendant’s Written Address is dated 10^th April, 2018, but filed on 16^th April, 2018, wherein the 2^nd Defendant identified two (2) issues for the determination of this court, to wit:

Whether the National Identity Management Commission Act, 2007, being the enabling Act of the 4^th Defendant or any law or Rules of the Federal Civil Service imposed any duty on the 2^nd Defendant with respect to any of the Claims of the Claimants in this matter?

Whether the Claimants’ case as constituted before this Honourable Court discloses any reasonable cause of action against the 2^nd Defendant thereby making the 2^nd Defendant a necessary party to this suit?

Upon service of the 2^nd Defendant’s Written Address on the Claimants, the Claimants filed a Reply on Points of Law dated 27^th April, 2018, but filed on 2^nd May, 2018, wherein the Claimants made submissions in opposition to the submissions in the 2^nd Defendant’s Written Address.

The 3^rd and 4^th Defendants’ Joint Written Address was dated and filed on the 9^th of May, 2018, but deemed to have been properly filed and served by order of court on 28^th May, 2018. The 3^rd and 4^th Defendants submitted two (2) issues for the determination of this court, and these are:

Whether or not the Redundancy declared by the 4^th Defendant have fulfilled the requirement of the law i.e. section 20 of the Labour Act.

Whether or not and base (sic) on the evidence so far adduced by the Claimants, they are entitled to all the reliefs sought.

Upon service of the 3^rd and 4^th Defendants’ Joint Written Address on the Claimants, the Claimants filed a Reply on Points of Law dated 21^st May, 2018, but filed on 22^nd May, 2018, wherein the Claimants made submissions in opposition to the submissions and arguments made by the 3^rd and 4^th Defendants in their Joint Written Address.

May I state that, the 1^st Defendant did not file any process in this matter and from the court’s records no appearance was put up for the 1^st Defendant throughout the trial of this suit before me.

THE CASE OF THE CLAIMANTS:

It is the case of the Claimants that, they were employed at various times by the Department of National Civic Registration, Federal Ministry of Internal Affairs (now Federal Ministry of Interior) into different posts and grade levels, and their appointments were at various times regularized/ratified and gazetted. That they subsequently gained promotions to various grade levels at various times while working for the Department of National Civic Registration.

According to the Claimants, when the 4^th Defendant (National Identity Management Commission, NIMC) was created pursuant to an Act of the National Assembly, the Commission inherited the staff of the now defunct Department of National Civic Registration, including the Claimants.

That their services continued with National Identity Management Commission (NIMC) until on 15^th August, 2012 when the 3^rd Defendant issued letters to the Claimants disengaging them from the service of the 4^th Defendant.

That their services were disengaged despite the fact that they were performing their duties to the 4^th Defendant and they had never been found to be in breach of any of the conditions of service or regulation and had never been issued with any query whatsoever. This development according to the Claimants, threw them off balance as their families began to have challenges as they could no longer afford to pay their children school fees, medical bills and even feed their families.

That they were neither given fair hearing nor participated or authorized any person to represent them at any meeting before they were disengaged on 15^th August, 2012. And also that, the 3^rd Defendant did not observe due process in line with the Rules and Regulations guiding the Claimants’ employment especially the National Identity Management Commission Conditions of Service 2011.

That upon receipt of the letters disengaging them from the service of the 4^th Defendant, they retained the services of the Law Firm of Ob. Obeten and Associates who wrote to the Defendants letter dated 29^th August, 2012, together with a reminder letter dated 1^st October, 2012 but there was no response from the Defendants.

According to the Claimants, at no time were they told to go to school for further studies since no officer in the civil service goes to school without a formal authorization from his employer as required by the Civil Service Rules. And that most of the Claimants in this suit if not all of them have attained their retirement years in service.

2^ND DEFENDANT’S CASE:

According to the 2^nd Defendant, it neither employed the Claimants nor was it at any time responsible for the payment of the Claimants’ remuneration. That the Claimants are in the know of who employed them, who inherited their services, and who disengaged them from service.

The 2^nd Defendant’s contention is that, since the Claimants were employed by the 3^rd and 4^th Defendants who equally issued the letters of disengagement to the Claimants, and since the 3^rd and 4^th Defendants are independent of the 2^nd Defendant, the Claimants’ case as constituted discloses no reasonable cause of action against the 2^nd Defendant to warrant the 2^nd Defendant being made a necessary party to this suit.

3^RD AND 4^TH DEFENDANTS’ CASE:

The case of the 3^rd and 4^th Defendants is that, the Claimants were originally employed by the now defunct Department of National Civic Registration (DNCR). That with the promulgation of the National Identity Management Commission Act, Cap. N154 LFN, 2004, particularly section 32(3) thereof, the 3^rd and 4^th Defendants inherited over 3000 employees of the defunct DNCR including the Claimants in this suit and issued to them letters of offers of employment on 29^th December, 2009.

That the 3^rd and 4^th Defendants after making its Staff Regulations and in compliance with the Public Service Reforms of 2006, subsequently embarked on staff audit and verification exercise in 2008 with a view to ascertaining the state of human resources inherited from the defunct DNCR.

To the 3^rd and 4^th Defendants, the Governing Board of the 4^th Defendant (NIMC) sometimes in 2012 approved an organizational structure for the Commission and stipulated a minimum qualification of either HND or First Degree for service in the Commission. That the resultant effect of the said re-organisation was the reduction of the Commission’s staff strength from 5490 as at March, 2012, to 2740 approved by the Governing Board. And that as part of the exercise, the Commission wrote a letter dated 5^th April, 2012 addressed to the Honourable Minister of Labour and Productivity informing the Hon. Minister of the Commission’s desire to declare redundancy; and the Hon. Minister of Labour and Productivity in response vide letter dated 23^rd July, 2012, nominated one Mr. Nyamali John Audu (an Assistant Director, Monitoring) to represent the Ministry during the redundancy negotiations.

According to the 3^rd and 4^th Defendants, all the Trade Unions to which the Claimants belonged such as the Nigeria Union of Civil Service Secretaries, Stenographers and Allied Workers, Amalgamated Union of Public Corporation Civil Service Technical, Recreational Service Employees, Nigeria Civil Service Union, and Association of Senior Civil Servants of Nigeria were duly notified of the desire to declare redundancy in the Commission, and the said trade unions participated in the negotiations which led to the Agreement between the Commission and representatives of the trade unions wherein the following were agreed as redundancy entitlements of the affected staff including the Claimants herein:

Two grade level promotions for those to be severed to make up for backlog of stagnation;
Payment of 3 months’ salary in lieu of notice;
10% as repatriation allowance; and
Training allowance.

That over 3000 junior staff of the Commission nationwide including about 50 staff of the Calabar Office where the Claimants worked were affected by the redundancy exercise.

According to the 3^rd and 4^th Defendants, the Governing Board of the Commission subsequently approved the implementation of the negotiated terms for the disengagement of the affected staff after which the Commission’s bankers, Skye Bank Plc and Zenith Bank Plc were instructed vide letter dated 2^nd August, 2012 to credit the Claimants’ bank accounts which instructions were duly complied with by the banks.

That since the Claimants are not being owed any salaries or allowances, their employments have been properly determined by reason of redundancy and in accordance with the law.

CLAIMANTS’ SUBMISSIONS

The Claimants in their Final Written Address dated 15^th March, 2018 but filed on 20^th March, 2018, submitted three (3) issues for the determination of this court, to wit:

Whether the 3^rd and 4^th Defendants can disengaged(sic) the claimants from the service of the 4^th defendant by a declaration of redundancy without complying to the extant Public Service Rules, 4^th defendant’s Condition of Service and the Act creating the 4^th

Whether it was proper to disengage the claimants from the service of the 4^th defendant summarily by a purported declaration of redundancy instead of retiring them, the claimants having served and attained the years of service.

Whether the 2^nd defendant can deny liability and responsibility for the illegal disengagement of the claimants by the 3^rd and 4^th defendants as a body umbrella in which the claimants were under and the 3^rd and 4^th defendants staffs are under it.

It is pertinent to state from the onset that, even though the Claimants submitted three (3) issues for the determination of this court, the said issues were argued together by the learned Claimants’ counsel.

The learned Claimants’ counsel referred the court to all the documents pleaded and frontloaded by the Claimants including the 4^th Defendant’s Conditions of Service 2011, the Federal Public Service Rules and the National Identity Management Commission Act, 2007, which allegedly regulate the Claimants’ employments, and submitted that the trial on pleadings is in line with the decision of the Supreme Court in the case of ACB V. Obmiamia (1993) 6 S.C.N.J. page 98 at 101.

It was further submitted by the Claimants that, since from the pleadings of the 3^rd and 4^th Defendants they admitted being the Claimants’ employers and also that they disengaged the Claimants from service, such admitted facts need no further proof and the court should therefore act on same. See Nwankwo V. Nwankwo (1995) 5 S.C.N.J. 44 at 47; and Egbunike V. A.C.B. (1995) 2 S.C.N.J. 58 at 61.

It was further argued by the Claimants’ counsel that, since the 3^rd and 4^th Defendants admitted that the Claimants were going about their normal lawful duties before they were disengaged, the Claimants were therefore not redundant as claimed by the 3^rd and 4^th Defendants in the disengagement letters dated 15^th August, 2012. The court was referred to the definition of ‘redundancy’ in the Oxford Advanced Learner’s Dictionary, International Student’s Edition at page 1221, where the word is defined as, “a person without a job because there is no more work available.” See also the cases of Union Bank of Nig. Plc. V. Ariba (2015) All FWLR (Pt. 763) 1868 at 1873; and N.S.E. V. Ozah (2014) All FWLR (Pt. 761) 1571 at 1586.

That the provisions of the 4^th Defendant’s Conditions of Service, the National Identity Management Commission (NIMC) Act, and the Public Service Rules all provide for the offences/misconducts and the procedure to be followed for the removal from service, and none of these laws/regulations provide for removal from the service on ground of redundancy; and so the reasons of redundancy advanced by the 4^th Defendant that by the 31^st of July, 2012 the Claimants did not possess the requisite qualification of Higher National Diploma or First Degree is not tenable in law, as the Claimants were duly employed and their employments were confirmed. That what the 3^rd and 4^th Defendants ought to have done in the circumstance was to invoke the provisions of section 32(3) of the National Identity Management Commission Act 2007 by requesting the Head of the Civil Service of the Federation (2^nd Defendant) to redeploy the Claimants.

It was further argued that, where a contract of service has a statutory flavor as in the instant case, the court has the powers to declare any purported termination of such contract of employment as still subsisting as such employments must be brought to an end in the way and manner provided for in the statute, and anything contrary to that will be declared null, void and of no effect. See Okocha V. C.S.C. Edo State (2004) 4 NWLR (Pt. 861) 494 at 514 para. D.

That since redundancy was not made part of the Claimants’ conditions of service by the 4^th Defendant, any agreement or negotiation authorizing the 3^rd and 4^th Defendants to disengage the Claimants from service on ground of redundancy is untenable. See N.S.E. V. Ozah (2014) All FWLR (Pt. 761) 1571 at 1573.

The Claimants therefore urged the court to declare as wrongful and illegal their disengagement from service and award damages in their favour, or in the alternative, order the retirement of the Claimants from service since they have variously served up to the mandatory years of retirement.

2^ND DEFENDANT’S SUBMISSIONS.

The 2^nd Defendant in its Final Written Address dated 10^th April, 2018 and filed on 16^th April, 2018, distilled two (2) issues for the determination of this court. These Issues are as follows:

Whether the National Identity Management Commission Act, 2007, being the enabling Act of the 4^th Defendant or any law or Rules of the Federal Civil Service imposed any duty on the 2^nd Defendant with respect to any of the Claims of the Claimants in this matter?

Whether the Claimants’ case as constituted before this Honourable Court discloses any reasonable cause of action against the 2^nd Defendant thereby making the 2^nd Defendant a necessary party to this suit?

On Issue one (1), it was submitted by the learned counsel to the 2^nd Defendant that, since it is the law that parties are bound by their pleadings filed before the court and issues outside the pleadings of the parties are of no moment, the Claimants are bound by their pleadings wherein they stated that they were employed by the Department of National Civic Registration (DNCR) in the then Federal Ministry of Internal Affairs now known as Federal Ministry of Interior before they were subsequently transferred and/or inherited by the 4^th Defendant pursuant to section 32(3) of the National Identity Management Commission Act, 2007.

The 2^nd Defendant reproduced the provisions of section 32(3) of the National Identity Management Commission Act, 2007, and submitted that the roles of the 2^nd Defendant in the circumstance was statutorily limited to the re-deployment of officers of the defunct DNCR to whom the Commission did not give offers or absorb and not the payment of their remuneration, or the conversion of their removal to retirement. That since in the instant case, the Claimants were offered appointments by the Commission (4^th Defendant), which they accepted, they had become staff and employees of the 4^th Defendant.

The 2^nd Defendant’s counsel therefore urged the court to hold that the 2^nd Defendant is not liable to any of the claims of the Claimants in this suit because the Claimants do not fall within the category of staff covered by the limited roles expected of the 2^nd Defendant as provided in the 4^th Defendant’s Act.

On Issue two (2), it was argued that, the case of the Claimants does not disclose any reasonable cause of action against the 2^nd Defendant, referring to the case of Alhaji Aminu Ibrahim V. Felix Osim (1988) 3 N.W.L.R. (Pt. 82) 257 at 260, Paras. A – B, where it was held that, “A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements:

The wrongful act of the defendant which gives the plaintiff his cause of complaint; and
The consequent damage.”

See also Dim Chukwu Emeka Odumegwu Ojukwu V. Alh. Umaru Musa Yar’adua & 4 Others (2009) 28 N.S.C.Q.R. (Pt. 1), 492 at 565, Paras. A – D.

It was further submitted on this Issue that, since the Claimants emphatically pleaded that they were employed by the 4^th Defendant and also declared redundant and disengaged from the service by the 3^rd and 4^th Defendants, and since the 2^nd Defendant had no input in the Claimants’ employment and subsequent disengagement from the service, there is no wrongful act of the 2^nd Defendant to make it a necessary party to this suit as the 3^rd and 4^th Defendants are creatures of statute with powers to either sue or be sued.

That nowhere in the enabling law of the 3^rd and 4^th Defendants is the 2^nd Defendant mentioned as the authority to handle staff matters for the 3^rd and 4^th Defendants, and the court should not be swayed by sentiments but to decide this case based on law and the issues before the court. See Rt. Hon (Dr) Olisa Imegwu V. Mr. Eugene Uche Okolocha & 2 Others (2013) 54 NSCQR 1395 at 1423.

The 2^nd Defendant therefore urged the court to either dismiss this suit in its entirety or in the alternative, strike out the name of the 2^nd Defendant from the suit for want of reasonable cause of action against the 2^nd Defendant.

It is important to state at this juncture that, the Claimants filed a Reply to the 2^nd Defendant’s Final Written Address on 2^nd May, 2018, wherein it was argued that the 2^nd Defendant is a necessary party to this suit because if the 4^th Defendant no longer needed the services of the Claimants, the 2^nd Defendant ought to have redeployed the Claimants. That the 2^nd Defendant allegedly failed in the performance of this legal duty, as such the Claimants’ case has disclosed reasonable cause of action against the 2^nd Defendant.

3^RD AND 4^TH DEFENDANTS’ SUBMISSIONS

The 3^rd and 4^th Defendants in their joint Written Address dated and filed on 9^th May, 2018, distilled two (2) Issues for the determination of this Honourable Court, to wit:

Whether or not the Redundancy declared by the 4^th Defendant have fulfilled the requirement of the law i.e. Section 20 of the Labour Act.

Whether or not and base (sic) on the evidence so far adduced by the Claimants, they are entitled to all the reliefs sought.

On Issue one (1), learned counsel to the 3^rd and 4^th Defendants reproduced the provisions of section 20(1) of the Labour Act, Cap. L1 LFN 2004, and argued that, since the 3^rd and 4^th Defendants notified the Secretary to the Government of the Federation, the trade unions operating in the 4^th Defendant, the Ministry of Labour and other stakeholders of the declaration of redundancy and even negotiated redundancy payments for the affected staff, they have complied with the legal requirements for the declaration of redundancy as provided in the Labour Act. That the payment of negotiated favourable severance packages to Claimants’ bank accounts is indicative of the 4^th Defendant’s compliance with the law in the severance of the Claimants. See Hotel and Personnel Service Senior Staff Association V. Owena Hotel Ltd Akure (2005) 3 NLLR (Pt. 7) at 163.

It was further submitted relying on the case of Osu V. Nigerian Railway Corporation (1978) 10-12 CCHCJ 326, 330, that in the course of reorganization of a business, an employer is at liberty to have recourse to the past records of the employees in deciding who to lay-off provided notice is given to the employee affected by the redundancy. See also Obaleye V. Dunlop Nig Ltd (1975) 5 ECSLR 445; Rule 020806(ii) of the Public Service Rules.

According to the 3^rd and 4^th Defendants, the technical nature and system in the 4^th Defendant necessitates that only HND and First Degree holders can be accommodated as a result of which the Board allegedly gave all staff up to 1^st July, 2012 to upgrade themselves academically. That the Claimants who failed to upgrade their academic records to either HND or First Degree did not qualify to remain with the 4^th Defendant hence the principle of ‘Last In First Out’ (LIFO) does not apply to the Claimants’ case because they have not shown any special skill to necessitate their continued stay in the 4^th Defendant. See Agoma V. Guiness (Nig) Ltd (1992) 7 NWLR (Part 256) 728.

Regarding the 3^rd and 4^th Defendants’ Issue 2, it was submitted that, it is the law that he who asserts must prove and the burden/onus is on the Claimants to establish through credible evidence the claims before the court. See sections 131, 132 and 133 of the Evidence Act. See also the case of Alhaji Isah T. Sokwo V. Joseph Dakukpongbo and 3 Ors. (2008) 7 NWLR (Pt. 1086) 342 at 362, paras. D – F.

The 3^rd and 4^th Defendants finally urged the court to dismiss this suit as the Claimants have allegedly failed to discharge the burden/onus placed on them to establish their case before the court.

It is important to state that the Claimants filed a Reply on Points of Law to the 3^rd and 4^th Defendants’ Written Address dated 21^st May, 2018 but filed on 22^nd May, 2018, wherein it was submitted that, by section 32 (1)(2)(3)(4) and (5) of the National Identity Management Commission Act 2007, where the 3^rd and 4^th Defendants did not require the services of the Claimants any longer, they ought to have been redeployed since they were transferred to the 3^rd and 4^th Defendants from the defunct Department of National Civic Registration (DNCR) by law.

That the principle of ‘Last In First Out’ (LIFO) does not apply to the Claimants’ case because they were not new employees as they had served variously for over 20 to 30 years, and their employments have statutory flavor which were preserved and transferred from the defunct DNCR to the 4^th Defendant (NIMC) on terms and conditions no less favourable than those obtaining immediately before the commencement of the 4^th Defendant (NIMC) Act.

The Claimants therefore urged the court to uphold their claims before the court.

May I reiterate once again that the 1^st Defendant neither put up appearance nor filed any process in defence of the suit.

COURT’S DECISION

Having carefully considered the processes, arguments and submissions as well as adumbrations of counsel for the parties, it will be pertinent to first consider the case and submissions of the 2^nd Defendant on whether or not the Claimants’ case discloses reasonable cause of action against the 2^nd Defendant as to make the 2^nd Defendant a necessary party to this suit. Since the Issues one (1) and two (2) argued by the 2^nd Defendant are similar to Issue three (3) distilled by the Claimants, I shall consider them together.

The argument of the 2^nd Defendant in a nutshell is that, from the provisions of section 32(3) of the National Identity Management Commission Act, 2007, the role of the 2^nd Defendant is limited only to the re-deployment of officers of the defunct Department of National Civic Registration who were not absorbed by the 4^th Defendant.

That since the Claimants were offered appointments by the 4^th Defendant which they accepted, the 2^nd Defendant by law was not under any obligation to re-deploy them, hence, the Claimants’ case as presently constituted discloses no reasonable cause of action against the 2^nd Defendant as to make the 2^nd Defendant a necessary party to this suit.

In resolving these issues, let me reproduce hereunder the provisions of the said section 32(3) of the National Identity Management Commission Act Cap. N154, LFN 2004:

“As from the commencement of this Act, any director, employee, staff or officer who immediately before the commencement of this Act holds office in the Department of National Civic Registration (hereinafter referred to as “the Department”) existing before the commencement of this Act, and who have been made an offer by the Commission shall be deemed to have been transferred to the Commission established under this Act on terms and conditions no less favourable than those obtaining immediately before the commencement of this Act; and service or employment in the Department shall be deemed to be service or employment in the Commission established under this Act and any director, employee, staff or officer to whom the Commission did not make an offer shall be re-deployed by the Head of the Civil Service of the Federation.”

It is one of the canons of interpretation that where the provision of a statute is clear and admits of no ambiguities, the statute should be given its literal, natural and ordinary meaning. See the case of Mohammed Abacha V. Federal Republic of Nigeria (2014) 57 NSCQR, 99 at 176 where the Supreme Court per Kudirat M. O. Kekere-Ekun, JSC held as follows:

“The purpose of the interpretation of statutes is to discover the intention of the lawmaker, which is usually deducible from the language used. Where the words of the statute are clear and unambiguous they must be given their natural and ordinary meaning, unless to do so would lead to absurdity. It is also trite that in the exercise of its interpretative function the court must stop where the statute stops. Another guide to the interpretation of statutes is that the legislation must be read as a whole. See Ibrahim Vs. Barde (1996) NWLR (Pt. 474) 513 at 577 B – C per Uwais, CJN (as he then was); Ojokolobo Vs. Alamu (1987) 3 NWLR (Pt. 61) 377 at 402 F – H; Ahmed Vs. Kassim (1958) SCNLR 28 at 30; Kuusu Vs. Udom (1990) 1 NWLR (Pt. 127) 42.”

Applying the literal canon of interpretation to this case, it will seem that the whole essence of the provision of section 32(2) of the National Identity Management Commission (NIMC) Act was to ensure that with the repeal of the National Civic Registration Act, the employments of the staff of the Department of National Civic Registration were not cut short.

The said section clearly requires that, any employee of the Department of National Civic Registration (DNCR) offered an appointment by NIMC shall be deemed to have been transferred to NIMC; but any employee of DNCR who was not given an offer of appointment by NIMC shall not be disengaged but be re-deployed by the Head of the Civil Service of the Federation (2^nd Defendant herein). The main operative part of subsection (3) of section 32 of the NIMC Act is, “…….any director, employee, staff or officer to whom the Commission did not make an offer shall be re-deployed by the Head of the Civil Service of the Federation.”

It will therefore seem that, the statutory duty imposed on the 2^nd Defendant is circumscribed, limited and restricted only to the re-deployment of employees of the defunct DNCR who were not given any offer of appointment by NIMC (the 4^th Defendant herein).

The Claimants pleaded in paragraphs 1 and 6 – 31 of the Joint Statement of Claim (Facts) that they were employed at various times by the Federal Ministry of Internal Affairs, Department of National Civic Registration, and with the establishment of the 4^th Defendant vide the NIMC Act, the 4^th Defendant inherited them, and they continued working with the 4^th Defendant until they were issued letters of disengagement from service on the 15^th of August, 2012.

In a bid to establish their case, the Claimants front-loaded their respective letters of appointment by the Federal Ministry of Internal Affairs, Department of National Civic Registration. I have however observed that, for whatever reason, the Claimants did not front-load their individual letters of offers of appointment with the 4^th Defendant.

But a recourse to the documents front-loaded by the 3^rd and 4^th Defendants in their Joint Statement of Defence indicates clearly that, the Claimants were issued letters of offers of appointment respectively all dated December, 28, 2009 which were accepted by the Claimants vide their respective letters of acceptance ostensibly all dated 22^nd April, 2010.

Since all the letters of offer of appointment issued to the Claimants have the same wordings except for their respective Reference Numbers, names, positions and grade levels, may I reproduce that of the 1^st Claimant for the purpose of clarity.

The Presidency

National Identity Management Commission

11 Sokode Crescent, Off Dalaba Street, Zone 5, Wuse, P.M.B. 18 Garki, Abuja. Tel: 09-6726457 Fax: 09-6726456 www.nimc.gov.ng

NIMC/HCM/CR126 December 28, 2009

IMOKE IMOKE IMOKE

National Identity Management Commission,

Cross River State Office,

Calabar.

Dear Sir

OFFER OF APPOINTMENT INTO THE SERVICE OF THE NATIONAL IDENTITY MANAGEMENT COMMISSION

The National Identity Management Commission (NIMC), in line with the provisions of Section 32(3) of the NIMC Act No. 23, 2007, is pleased to make an offer of appointment to you as SENIOR SUPPLIES ASSISTANT, Grade Level 07/15 with effect from November 1, 2009.

The Conditions of Service are as applicable in the Federal Civil Service until the NIMC issues its own Conditions of Service, a copy of which would be made available to you.

Your appointment is subject to the receipt, within two weeks from the date of delivery of this letter to you, of a written acceptance of this offer, after which the offer shall lapse.

Please accept the Director General’s congratulations.

Aderonke O. Agunbiade

Head, Human Capital Management Department

For: Director General/CEO

I am therefore of the humble view that, since the Claimants were given offers of appointment by the 4^th Defendant which they all accepted, the 2^nd Defendant is not under any obligation statutory or otherwise to re-deploy them in the Federal Civil Service.

The law is trite and settled that for a suit to be maintained and sustained against a party, there must be disclosed reasonable cause of action against such a party the substance of which is a set of facts that can be proved to entitle a plaintiff to some reliefs for the injury caused. See Attorney General of the Federation and 2 Others V. Alhaji Atiku Abubakar and 3 Others (2007) 10 NWLR (Pt. 1041) 1 at 121 – 122 paragraphs G – A. where the Supreme Court held as follows:

“It is settled law that there must exist a matter in actual controversy between parties to a suit in which the court of law is called upon to determine and that once there is no such live issue between the parties, a court will lack the jurisdiction to entertain the matter. In other words, there must exist a cause of action between the parties which term may be described as a civil right or obligation for the determination by a court of law or dispute in respect of which a court of law is entitled to invoke its judicial powers to determine. See Chief Afolayan v. Oba Ogunrinde (1990) 1 NWLR (Pt. 127) 369 at 371.”

It is also trite that in determining whether or not a case discloses any reasonable cause of action, the court will as a matter of law restrict itself to the plaintiff’s Statement of Claim (in this case, the Claimant’s Statement of Facts) without any recourse to the Statement of Defence filed by the Defendant. See Union Bank of Nigeria Plc V. Romanus C. Umeoduagu (2004) LPELR – 3395 (SC).

See also the case of Alhaja Morufa Disu (Otherwise known and called Mrs. Morufat Arikewuyo and 14 Others V. Alhaja Silifat Ajilowura (2000) LPELR-9888(CA), where the Court of Appeal per Suleiman Galadima, J.C.A. (as he then was) held as follows on what a court of law should do where a suit discloses no cause of action:

“For any statement of claim to be struck out for non-disclosure of a cause of action, care ought to be taken so that the party affected may not be deprived of his right to a plenary trial. It is only where pleading is obviously incontestably bad or is ex-facie unsustainable or where it is unarguable that it will be struck out. See Ibrahim V. Osim (1988) 3 NWLR (Pt. 82) 207; Mills V. Awoonor Renner (1940) 6 WACA 144.”

Having regards to the Claimants’ Complaint and Statement of Facts filed in this case vis-à-vis the provisions of section 32(3) of the NIMC Act, I am satisfied and convinced that the facts as revealed in this suit do not disclose reasonable cause of action against the 2^nd Defendant herein.

It is the law that a plaintiff who brings a Defendant to court must show in his Pleadings not just the wrongful acts of the Defendant but also the consequential damages suffered as a result of the said wrongful acts.

See Attorney General of Bayelsa State V. Attorney General of Rivers State (2006) LPELR – 615 (SC).

I therefore see no basis for the inclusion of the 2^nd Defendant in this suit. I am therefore not convinced that the Claimants’ case has disclosed any cause of action against the 2^nd Defendant to make the 2^nd Defendant a necessary party to this suit.

It is therefore the considered decision of this court that the 2^nd Defendant was improperly joined in this suit. Consequently, the name of the 2^nd defendant is hereby struck out of this suit. I so find and hold

I shall now proceed to consider the Claimants’ case against the 1^st, 3^rd and 4^th Defendants to ascertain whether the Claimants have established their case to be entitled to the reliefs being sought from the court.

The Claimants in their issues one (1) and two (2) which were argued together submitted that the Claimants’ appointments were regulated by the provisions of the Public Service Rules, the National Identity Management Commission Condition of Service 2011, and the National Identity Management Commission Act 2007. That since none of these Regulations and Laws provide for redundancy as a mode of termination of appointments, or HND/First Degree as minimum educational certificate, the reasons advanced by the 3^rd and 4^th Defendants for the disengagement of the Claimants are not tenable in law and the disengagement of the Claimants should therefore be voided by this court.

The Claimants further argued in paragraph 02.26 of their Final Written Address that, the removal of the Claimants from the service of the 4^th Defendant on ground of redundancy is wrongful because redundancy was not made part of the Claimants’ conditions of service relying on the Court of Appeal case of N.S.E. V. Ozah (supra).

To the 3^rd and 4^th Defendants, they complied fully with the provisions of section 20 of the Labour Act, Cap. L1 LFN, 2004 in the declaration of redundancy which led to the disengagement of the Claimants. The 3^rd and 4^th Defendants are therefore placing heavy reliance on the case of Obaleye V. Dunlop Nig Ltd (supra) where it was held that, “There must be a change of circumstance of the business in which the employee is or has been employed and this change must result in a state of affairs which the employers find themselves with too many employees or too many employees in a particular place of work of a particular kind. This is what excess manpower means and it must be shown to exist before a claim to have been made redundant may properly succeed.”

There is no doubt as rightly argued by the Claimants that their employments with the 4^th Defendant have statutory flavor as they were regulated by the National Identity Management Commission Act 2007, the Public Service Rules 2008, and the National Identity Management Commission Condition of Service 2011.

The 3^rd and 4^th Defendants in the exercise of their statutory powers under section 8 of the NIMC Act on appointment of the employees of the Commission issued letters of appointment to the Claimants which they all accepted. They continued to work as employees of the 4^th Defendant until they were variously issued letters of disengagement from service on the ground of redundancy which is the subject of the case before the court. These letters all dated 15^th August, 2012 were frontloaded by the Claimants and annexed to the Statement of Facts.

Since the letters of disengagement have the same wordings, may I reproduce below that of the 1^st Claimant for the purpose of clarity.

The Presidency

National Identity Management Commission

11 Sokode Cresecent, Off Dalaba Street, Zone 5, Wuse, P.M.B. 18 Garki, Abuja. DL Tel: (09) 6726456. www.nimc.gov.ng

NIMC/989/1 15^th August, 2012

IMOKE IMOKE IMOKE

Ufs

The Ag. State Coordinator

National Identity Management Commission

Calabar

Cross River State

RE: DECLARATION OF REDUNDANCY IN THE NATIONAL IDENTITY MANAGEMENT COMMISSION – DISENGAGEMENT FROM SERVICE

With reference to the declaration of redundancy by the National Identity Management Commission and the agreement reached and signed after negotiation between the National Identity Management Commission, the Association of Senior Civil Servants of Nigeria, Nigeria Civil Service Union, Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees, and Nigeria Union of Civil Service Secretarial and Stenographic Workers, I am directed to inform you that the Governing Board has approved your disengagement from the service of the Commission, on grounds that by 31^st July, 2012, you did not possess the requisite minimum qualification of Higher National Diploma or First Degree.

I am further directed to inform you that since your severance is at the instance of the Commission, you are to be paid the following:

3 months salary in lieu of notice
10% annual salary as repatriation allowance

Training allowance

Your entitlements will be paid into your account by the Finance and Investment Department, upon handing over of all government properties in your possession.

While thanking you for your service to the Commission, I am to wish you the best in your future endeavours.

Winifred Ojeih

For: Director-General/CEO

The learned Claimants’ counsel submitted in paragraph 01.19 of the Claimants’ Final Written Address that there is no provision in the Public Service Rules relating to declaration of redundancy. I beg to disagree with the learned Claimants’ counsel in this regard. Rule 020806 of the Public Service Rules, 2008 provides for redundancy in the following words:

“020806 (i) Officers who fail promotion examination on three (3) consecutive attempts on the same grade and whose on-the-job performance has been assessed to be below average shall be required to leave the service.

(ii) An officer whose service is no longer required in the event of abolition of office, re-organisation of the office or redundancy shall be required to leave the service.”

I shall now consider the provisions of the law with a view to ascertaining whether or not the disengagement of the Claimants on the ground of redundancy complied with the legal requirements.

Section 20 (1) of the Labour Act, Cap. L1 LFN 2004 states as follows:

“20(1) In the event of redundancy-

the employer shall inform the trade union or workers’ representative concerned of the reasons for an extent of the anticipated redundancy;
the principle of “last in, first out” shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability; and
the employer shall use his best endeavors to negotiate redundancy payments to any discharged workers who are not protected by the regulations made under subsection (2) of this section.”

I have looked at the documents frontloaded and annexed to the 3^rd and 4^th Defendants’ Statement of Defence and it is glaring that, letters dated 16^th July 2012 were written by the 3^rd and 4^th Defendants addressed to some trade unions such as the Nigeria Civil Service Union, Association of Senior Civil Servants of Nigeria, Amalgamated Union of Public Corporation Civil Service Technical, Recreational Service Employees and the Nigeria Union of Civil Service Secretaries, Stenographic and Allied Workers notifying the trade unions of the 4^th Defendant’s intention to declare redundancy in respect of staff in its employment.

The letter addressed to the Nigeria Civil Service Union which is in pari materia with the ones addressed to the other trade unions is reproduced hereunder.

The Presidency

National Identity Management Commission

11 Sokode Cresecent, Off Dalaba Street, Zone 5, Wuse, P.M.B. 18 Garki, Abuja. DL Tel: (09) 6726456. www.nimc.gov.ng

NIMC/989/1/3 16^th July, 2012

The Secretary-General,

Nigeria Civil Service Union,

National Secretariat, Abuja.

Sir,

INTENTION TO DECLARE REDUNDANCY AND INVITATION TO ATTEND NEGOTIATION MEETING.

I am directed to refer to our previous meetings and to inform you that the National Identity Management Commission (NIMC) intends to declare redundancy in respect of staff in its employment.

You may wish to recall our earlier agreement that the Unions will be consulted on issues that concern the Human Resource aspect of the Commission’s reform. Consequently, in line with the extant Labour Laws, especially Section 20 of the Labour Act, 2 (two) representatives of your Union are hereby invited to attend a negotiation meeting as scheduled below:

Date: 24^th July, 2012

Venue: Reiz Continental Hotel, Central Area, Abuja

Time: 10:00 am prompt

3.Endeavour to be punctual please.

Ayo Olorunfemi

For Director-General/CEO

Suffice it to add that, the Secretary to the Government of the Federation, and the Honourable Minister of Labour and Productivity were also notified of the 4^th Defendant’s intention to declare redundancy vide letters addressed to them dated 19^th July, 2012 and 5^th April, 2012 respectively.

The negotiations between the 4^th Defendant and the trade unions led to the Agreement dated 25^th of July, 2012 which was equally frontloaded by the 3^rd and 4^th Defendants. The Agreement was subsequently ratified by the Board of the 4^th Defendant during its 4^th Emergency Meeting held on the 8^th of August, 2012. There are also documentary evidence frontloaded by the 3^rd and 4^th Defendants indicating that the Claimants were paid their negotiated severance/redundancy packages.

I have carefully examined the letters of disengagement issued to the Claimants by the 3^rd and 4^th Defendants and since the reason advanced in the said letters is redundancy, I shall restrict myself to the reason advanced in the disengagement letters and not go into any extraneous reason(s) not stated in the disengagement letters.

In the case of Nigerian Society of Engineers V. Mrs. Bimbo Ozah (2015) 64 N.L.L.R. (Part 225) 1 at 33 – 35 paras. H – A, the appellate court per Ikyegh, J.C.A. held as follows on the implication of declaration of redundancy by an employer:

“The termination of appointment of an employee is therefore in a bracket of its own far removed from the incident of an employee leaving service because of redundancy. Termination of appointment implies complete severance of an employer/employee relationship by dispensing with the services of an employee with his post extant, while redundancy implies that the post occupied by an employee is no longer necessary and/or useless to the employer.

The case of Peugeot Automobile Nigeria Limited (P.A.N.) V. Oje and Ors. (1997) 11 NWLR (Pt. 530) 625 at paras. A-C illustrates with clarity the implication of redundancy in employer/employee relationship as stated in the lead judgment of Muhammad, JCA, (now J.S.C.) and concurred by Ogebe, JCA, later J.S.C. (Mahmud, J.C.A., (now J.S.C.) thus-

“Redundancy in service in my view, is a mode of removing of an employee from service when his post is declared “redundant” by his employee(sic). It is not a voluntary or forced retirement. It is not a dismissal from service. It is not a voluntary or forced resignation. It is not a termination of appointment as is known in public service. It is a form unique only to its procedure where an employee is quietly and lawfully relieved of his post. Such type of removal from office does not, in my view, carry along with it any other benefit except those benefits enumerated by the terms of contract to be payable to an employee declared “redundant.”

So the conditions applicable to redundancy are quite distinct from those applicable to retirement or other conventional modes of relieving an employee from active service, such as termination, resignation or dismissal.”

It is therefore my humble view that for declaration of redundancy by an employer to be lawful, it must satisfy all the conditions enumerated in section 20(1) of the Labour Act, failure of which such declaration of redundancy cannot stand and therefore liable to be set aside by the court.

May I also state that, aside from the conditions required for declaration of redundancy by an employer of labour, the employer is by law at liberty to also consider certain factors such as the relative merit of the workers including skill, ability and reliability, productivity, diligence, efficiency and even experience of the workers concerned. See Labour Law in Nigeria by Egerton E. Uvieghara, Malthouse Press Ltd, 2001, page 114.

May I state that the provisions of section 20(1) of the Labour Act came up for interpretation before the appellate court in the case of Guinness Nigeria Ltd V. Mrs. Margaret Agoma (1992) 7 N.W.L.R. (Part 256) 728 at 741, paras. B – D, where it was held thus:

“In this case, I have earlier quoted the provisions of section 20(1)(b) of the Labour Act which enjoined a company when termination or retrenching from its services the principles of “Last in First Out” “L.I.F.O.” It is however clear from that section that the application of the principle of LIFO, was made subject to factors of relative merit, including skill, ability and reliability.

In my view while that section seems to preserve the rights of an employee who had been long in the employment of an employer to remain in his employment in a general retrenchment exercise by his employers, it would appear that he can only escape being retrenched if he has shown that he is relatively better, in merit, skill, ability than the other workers who are in the same category with him.”

Suffice it to state that, this pronouncement of the appellate court was affirmed on appeal by the apex court in the case of Mrs. Margaret Agoma V. Guinness Nigeria Ltd (1995) 2 N.W.L.R. (Part 380)672 at 688.

See also the case of Council of the Enugu University of Science and Technology and 1 Other V. E. N. Ude (2016) 8 ACELR, 142 at 152.

Having considered the pleadings of the parties and the documents submitted before the court, I am of the humble view that the 3^rd and 4^th Defendants complied with the provisions of section 20(1) of the Labour Act in the declaration of redundancy in the 4^th Defendant which led to the disengagement of the Claimants from the service of the 4^th Defendant.

The Claimants who were paid their severance benefits which they have not denied cannot be heard to challenge their disengagement from the service. See Mrs. Margaret Agoma V. Guinness Nigeria Ltd (supra) at 689, paras. F – G; and Ex Captain Charles Ekeagwu V. Nigeria Army and 1 Other (2006) 11 N.W.L.R. (Part 991) 382 at 397, paras. E – F, where the appellate court held that, “The law is well settled that where an employee accepts salary or payment after employment is brought to an end he cannot be heard to complain later that his contract of employment was not properly determined. Acceptance of payment by the appellant has rendered the determination mutual. See Dr. O Ajolore V. Kwara State College of Technology (1986) 2 SC p. 374.”

In the circumstance, Issues one (1) and two (2) submitted by the Claimants for determination are resolved against the Claimants. Claimants’ Issue three (3) had been considered together with the 2^nd Defendant’s Issues one (1) and two (2) and resolved against the Claimants.

Regarding the reliefs being sought by the Claimants before the court, I find and hold on relief one (1) that the disengagement of the Claimants from the service of the 4^th Defendant was proper and validly done. Same does not contravene the Defendants’ Conditions of Service 2011; and the said relief one (1) is hereby refused.

Relief two (2) for an order directing the defendants to reinstate the Claimants to their various positions in the service of the 4^th defendant forthwith is also refused because I have held that their disengagement was proper and valid in law. More so, the Claimants pleaded in paragraph 37 of the Joint Statement of Claim (Facts) that they have attained their retirement years. They are therefore not eligible to remain in the Federal Public Service.

Relief Three (3) for payment of arrears of monthly emolument to the Claimants also fails and is refused.

Since the main reliefs have all failed, the alternative reliefs four (4) and five (5) for one billion naira general damages and an order for the retirement of the Claimants also fail and same are hereby refused.

In the final result, I hold that the Claimants’ case fails and same is hereby dismissed.

I make no order as to cost.

Judgment is entered accordingly.

Hon. Justice P. I. Hamman

Judge