Kalabumo Ebiama Vera & 21 ORS -VS- Bayelsa State Government & 2

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: SEPTEMBER 27, 2019 SUIT NO: NICN/YEN/08/2016

BETWEEN:

KALABUMO EBIAMA VERA
YABOH PREYE
SEJIAYO OJENAMAH
BEBEIBAGHA EBIKINEIN O.
OBASI VIVIAN
KALAMA EBIWARI
BUNU TIMILA
OGBOMADE SAMPSON JOE
FLORENCE AMAKIRI
OBU U. MISHAEL
OYII AMAZIZH
OGBECHE EBITIMI CLAIMANTS
ALAFURUGHA AYIBANATEI E.
FOWOWE IBITAYO O.
BUNUKIMISE-EBI
ZOLO DORCAS
DITON GEKU
KENIGUA SEIMOKUMO
YABEFA YINLAYEFA M.
GEKU SOUTIE
EBAKO ENDURANCE
OZUBIDE INENANAYEKI-INEYE

(SUING THROUGH THEIR LAWFUL ATTORNEY,

BUNU TIMILA)

AND

BAYELSA STATE GOVERNMENT
BAYELSA STATE UNIVERSAL

BASIC EDUCATION BOARD DEFENDANTS

MR. WALTON LIVERPOOL

REPRESENTATION

Mr. U.E Imoisili Esq holding the brief of Mr. Matthew Omonade Esq for all the Claimants.

Defendants not represented.

JUDGMENT

INTRODUCTION AND CLAIMS

The Claimants originally instituted this action by a Complaint dated and filed on the 7^th day of January, 2016 but made several amendments thereto. By their Amended Complaint dated and filed on the 13^th of May, 2019, the Claimants set out their claims as follows:

A DECLARATION that the announcement made by the 3^rd Defendant on the 4^th day of April, 2013, vide Bayelsa State Glory FM 97.1 purporting to suspend the Claimants’ appointment with the 1^st and 2^nd Defendants is ultra vires, null and void and of no effect whatsoever.

A DECLARATION that the purported suspension of the Claimants’ appointment by the 3^rd Defendant negates the Fundamental Rights Provision of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).

A DECLARATION that the Claimants are still in the service of the 1^st and 2^nd Defendants and are entitled to all their unpaid salaries and allowances till date.

AN ORDER compelling the Defendants to pay to the Claimants all their salaries and allowances from January, 2013 till the day of judgment and thereafter

Other accompanying documents alongside the complaint includes the Complainants’ Statement of Facts, Witness Deposition on Oath of their sole witness, List of and copies of the Documents to be relied upon at the trial.

The 2^nd and 3^rd Defendants entered a Conditional Appearance on the 1^st day of February, 2016. They also filed alongside their Statement of Defence, Witness Statement on Oath and other accompanying processes. The 1^st Defendant, on its part, did not file any process.

Trial commenced on the 7^th day of June, 2018, with Claimant number 7 appearing as the sole witness in proof of the Claimants’ claims and was cross-examined on the same date. CW1 tendered 5 EXHIBITS (EXHIBITS CW1 BN 001 – CW1 BN 005).

The 3^rd Defendant appeared as the sole witness at the opening of the Defendants’ defence and tendered 3 documents which was admitted into evidence, marked as EXHIBITS DW1 WL 001 – DW1 WL 003, as well as a document which was tendered through him by the Claimant during cross-examination and marked as EXHIBIT DW1 WL 004. At the close of evidence from both Parties, this Court ordered for the filing of Final Written Addresses, which were filed and same adopted on the 19^th of June, 2019.

CLAIMANTS’ CASE IN BRIEF

The case of the Claimants is that they were offered pensionable employments in 2011 by the 1^st Defendant through the office of the 2^nd Defendant, which is a body corporate established pursuant to section 12(1) of the Compulsory Free Universal Basic Education Act, 2004. That upon assuming office as the Executive Secretary of the 2^nd Defendant, the 3^rd Defendant conducted an interview exercise for the Claimants despite an earlier verification exercise conducted by the 1^st Defendant in that respect. That the 3^rd Defendant thereafter went on air to terminate the employment of the Claimants in September, 2012 without any reason and requested that the Claimants should reapply if they so desired.

According to the Claimants, they reapplied and were re-issued with another letter of employment in January, 2013. The Claimants stated further that after the said re-appointments and redeployments, the 3^rd Defendant, again on the 4^th of April, 2013, went on air via the Bayelsa State Glory FM 97.1 to announce the suspension of the Claimants from their employment and that they had since then not been paid any of their salaries and allowances. The Claimants states further that they were neither issued with any query(ies) nor were they served with any notice(s) of their purported suspension by the Defendants, until the institution of this action.

The Claimants claim that they were not given fair hearing by the 3^rd Defendant before the said suspension.

During cross examination, the CW1 reconfirms their position on the appointments and re-appointments made by the Defendants in 2011 and 2013, respectively. CW1 evidenced that no form of notice of suspension was issued to the Claimants by the Defendants and that it was not true that the suspension was based on double appointments. CW1 reiterated the Claimants’ position that the suspension was announced on the radio. CW1 states that the Claimants did not protest the suspension of their 2011 appointment because they were given the opportunity to re-apply, which they did, upon which the 2013 appointment was made.

THE CASE OF THE DEFENDANTS

The case of the 2^nd and 3^rd Defendants as per their Statement of Defence is that the Claimants were employees of the 2^nd Defendant, who were on probation as their employments were not confirmed. They contend that the appointment letters issued to the Claimants in 2011 were fraudulently issued. That the Claimants agreed to re-apply for the various positions in 2013 because they did discovered that indeed their employments were irregular. The 2^nd and 3^rd Defendant states that though the subsequent letters of appointment were issued by the 2^nd Defendant, it was for a probationary period, during which any of the Claimants could be suspended or dismissed. That the termination of the Claimants’ employment was based on a resolution of the Board of the 2^nd Defendant, and was appropriately conveyed to the Claimants.

Continuing, the 2^nd and 3^rd Defendants stated that the employment letters issued to the Claimants in 2013 was valid and that it was for a probationary period of two (2) years. The suspension of the Claimants before confirmation was statutory. They also contend that the 3^rd Defendant only acted within his capacity as the Executive Secretary of the 2^nd Defendant and as such his name be struck out from the suit.

Under cross examination, DW1 acknowledged that a committee was indeed set up, prior to his appointment, to carry out verification on the Claimants but could not verify the terms of reference of the said committee. He states that it was the Board of the 2^nd Defendant that resolved to terminate the appointment of the Claimants via EXHIBIT DW1 WL 003 and that it was on the authority of the 1^st Defendant that the termination of the appointment of the Claimants was made. DW1 confirmed further that the Claimants were asked to re-apply, which they did. That there was no petition, prosecution or misconduct levelled against any of the Claimants before the suspension of the Claimants. It was DW1’s further evidence that although he was advised by the Attorney General of Bayelsa State to pay the Claimants, he did not yield to the AG’s advice because he was acting based on the order of the State Government. According to his evidence, all the appointments of the Claimants were illegal as they did not receive approval from the State Government.

THE SUBMISSIONS OF THE 2^ND AND 3^RD DEFENDANTS

In their final written address learned counsel on behalf of the 2^nd and 3^rd Defendants (hereinafter called the Defendants) formulated two (2) issues for determination to wit:

Whether the Claimants have proved wrongful termination of their employment by the 2^nd and 3^rd Defendants as alleged to warrant their claims in this suit.

Whether the 3^rd Defendant is not improperly joined to this suit in his personal capacity

In arguing its issue one, Learned Counsel to the Defendants contends that the Claimants are members of staff who were on probationary appointments and that the law gives the employer the right to terminate such employment with or without reasons as there are no procedure required for termination of employment without statutory flavour. He submits further that the law is settled that the Court will only consider the terms of contract of service between the employer and the employee, which is a binding contract between them, in determining the rights of the parties thereto. Learned Counsel referred to several cases including that of CHUKWUDINMA v ACCESS BANK PLC (2015) 52 NLLR (PT.176) 513 AT 519 and FMC ADO-EKITI v OLAJIDE (2011) 11 (PT.1258) 256.

Counsel asked the Court to infer from the exhibits that the relationship which existed between the Claimants and the Defendants was one of master-servant and that the EXHIBITS CW1 BN 002 (A-V) and CW1 BN 005 (A-V) are the documents which stipulate the terms and conditions governing their relationship. He argues that the first appointment of the Claimants ended on the 28^th of September, 2012 and the Claimants never complained about it and that the Defendants were right to have ‘terminated’ the second employment while the Claimants were still on probation. He argues further and rightfully too that where an employee complains of wrongful termination of employment, it behoves on such employee to prove that the termination was wrongful by pleading the terms of contract and not for the employer to prove otherwise. Counsel relied on the well acclaimed case of OKUMU OIL PALM CO. LIMITED v ISERBIENRHIEN (2001) 6 NWLR (PT.710) PG 660, amongst others.

He urged the Court not to look outside the terms of contract between the Parties to determine the respective rights and obligations of the Parties arising from the contract and that the burden is fully balanced on the shoulders of the Claimants to prove that allegations with credible and cogent evidence. According to the Learned counsel, EXHIBIT DW1 WL-004 was not pleaded nor frontloaded and cannot be relied on as it is a public document which requires certification. He asked the Court to expunge the said document from its records.

He urged the Court to holds that the Defendants acted lawfully in terminating the Claimants’ employments.

On Learned Counsel’s issue two, I must state here that I do not seem to comprehend his arguments as contained in his final submission as it tends to move with such speed of confusing rigmarole, however, I will assume that Counsel seeks to argue that the 3^rd Defendant was wrongly joined as a party to this suit.

SUBMISSION OF THE CLAIMANT

The Claimants, on their part in the Final Written Address, raised only one issue for determination by this Court, to wit:

Whether the Claimants have proved their case and are entitled to the reliefs sought.

The Claimant’s Counsel responded in the affirmative to the sole question he raised for determination. Learned Counsel urges the Court to first determine the nature of the Claimants employment with the Defendants to enable the Court reach a decision on the actions of the Defendants. Counsel submits further that in an employment coated with statutory flavour, it does not matter whether an employee’s employment is under probation or whether he was a permanent or confirmed employee. All that matters in the said circumstances, according to counsel’s argument, is whether such employee’s terms of engagement is controlled and determined by a statute or regulations derived from statutes. He referred the Court to the case of BABATUNDE v GOVERNING COUNCIL, FEDERAL POLYTECHNIC, EDE & ANOR (2014) LPELR-24236 (CA).

According to the Claimants’ Counsel, the Claimants sufficiently established by their evidence that their employment was one regulated by the Bayelsa State Universal Basic Education Board Law, 2005 and the Public Service Rules, 2009 and those facts were not disputed or contradicted by the Defendants. Counsel also drew strength from some of the evidence led by the Defendants in support of this assertion.

Furthermore, the Claimants argued that pursuant to the relevant statutes guiding their employment, the Defendants did not follow the laid down procedures for suspending them and that in fact, none of the Claimants were issued any form of query prior to the suspension. Learned Counsel submits that the action of the Defendant was a disregard for the rule of law as they were not given the opportunity to be heard if at all there were any allegation of misconduct against them.

He also maintained that the Claimants are still members of staff of the Defendants since their employment, from the evidence, is yet to be terminated. Counsel finally concluded by urging the Court to tilt towards the evidence of the Claimants and give judgment in their favour.

COURT’S DECISION

I have thoroughly and thoughtfully read through all the processes filed by Learned Counsel for and on behalf of the Parties in this suit. I have listened to the witnesses who testified under oath and observed their demeanours and I have taken my time to evaluate the Exhibits tendered and admitted by this Court. Finally I have read through the final submissions of Learned Counsel for the Parties on the issues raised and I have formulated the following questions for determination, which are:

Whether from the entire evidence before this Court and the circumstances of the case, the suspension of the Claimants was proper, and

Whether the Claimants are entitled to all or some of the reliefs sought in this case.

On issue one, I am called to determine whether the Defendants have acted in accordance with the laid down rules and regulations required in the suspension of the Claimants’ employment as was done by them.

It is without doubt that the Claimants were employed by the Defendants and served within the period as members of staff of the Defendants before the said suspension of their appointments. The Claimants have contended that the suspension of their appointments was wrongful being that their employments with the Defendants is one clothed with statutory flavour having been issued with letters of PENSIONABLE TEACHING APPOINTMENT/POSTING (EXHIBITS CW1 BN 005 (A-V)) by the Defendants, and as such must be regulated by the relevant statutes for suspension/dismissal. The Defendants, on the other hand, have maintained that the Claimants’ employment were only probationary, consequently they could be suspended or dismissed at any time without recourse to the laws establishing the 2^nd Defendant.

The submission of the Learned Counsel to the Defendants that an employer in a master/servant relationship is not under any obligation to give reasons for the termination of his employee’s employment is trite. In fact, the law permits the employer to terminate the employee’s employment for no reasons at all. But is that truly the issue here from the circumstances of the case? I can confidently answer that question in the negative. The question of termination does not even arise in the first place.

What I find perturbing about the Defendants’ approach in this case is that they have employed all manner of defences in order to pressure this Court into picking and choosing any of the ‘favourable’ defence in their favour. This tactics is unethical.

Apart from the issue of termination raised by the Defendants, the status of the Claimants’ employment was also raised as a defence for justifying their suspension.

Without delving deep into the legal submissions of Counsel, I am inclined to look into the pleadings of the Parties to determine the status of the Claimants’ employment with the Defendants. Although the Defendants strenuously tried to call down the intents of the Exhibits especially Exhibits CW1 BN 005 (A-V), they failed to take away the clear purports of the said documents. The relevant part of the content of the said Exhibits is replicated below:

“Sequel to your success in the recent employment interview conducted by the Bayelsa State Universal Basic Education Board, I wish to inform you that the Board has approved your appointment as Master Grade II on Salary Grade Level 08/2” (underlining mine).

The categorization of the grade and salary placement of the Claiamnts is statutorily provided for by the Public Service Rules, which is one of the statutes regulating the Defendants. I thus do not find it difficult to toe the line of argument posited in the case of BABATUNDE v GOVERNING COUNCIL, FEDERAL POLYTECHNIC EDE & ANOR (2014) LPELR-24236 (CA) relied upon by the Claimants’ Counsel wherein it was stated that:

“the question that determines whether an employment has statutory flavour is not whether the status of the employee is on the higher echelon or low ladder of the service. It is also not determined by whether an employee is on probation or permanent or a confirmed employee. It is rather whether his terms of engagement is controlled and determined by statute as relating to engagement and termination….”

It is uncontestably obvious that the Claimants’ appointment with the Defendants is one coated with statutory flavour and as such they hold their employment under the provisions of the BAYELSA STATE UNIVERSAL BASIC EDUCATION (AMENDMENT) LAW, 2012 and the PUBLIC SERVICE RULES, 2009. Although it is also evident that the employment of the Claimants is still under probation as at the time of the purported suspension, the law is settled that where a Statute provides for the procedure(s) by which an act is to be done, a deviation from such procedure raises the issue of vires and administrative law, and not of contract, and thus renders anything done in violation of the statutory provisions, null and void.

With this, I need not go into the rigmarole of explaining the various types of employment there is, as the law is clear and unambiguous. I hold that the Claimants’ employment with the Defendants is one coated with statutory flavour and no other.

Having said that, the law is elementary that where an employment is one with statutory backing, any action sought to be taken must be undertaken in accordance with due process and the rules/regulations as prescribed by the laws governing such employment. PSYCHIATRIC HOSPITAL MANAGEMENT BOARD v EJITAGHA (2000) 11 NWLR (PT.677) PG.154; EKPEROKUN v UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) PG.162

Suspension under the Public Service Rules is employed as a form of disciplinary measure against a member of staff. It appears to the contrary in this suit that the Defendants had used the tools differently. The Defendants relied on EXHIBITS DW1 WL 003 and DW1 WL 004 as the grounds for the suspension of the Claimants. Part of the content of Exhibit DW1 WL 003 is replicated for emphasis:

“Following the inability of the Board to secure financial approval from the State Government concerning the payment of all teachers that were employed on the 2^nd of January, 2013, I wish to inform all employees in the above mentioned category that their appointments have been suspended forthwith until the issue is resolved.”

This negates the tenets of the Public Service Rules which provides for the grounds and procedures for suspension of a public servant. The fact that funds could not be accessed for the payment of the Claimants’ salaries does not justify their suspension from service. That is indeed unheard of.

Also the claim of the Defendants that the Claimants did not challenge their initial suspension is preposterous. The fact that the Claimants did not complain about the initial termination of their appointments by the Defendants does not justify the method of termination through a media announcement. More so, the Defendants’ assertion that the 2011 appointments were fraudulently made was not proved in evidence. In fact their assertion that the Claimants’ appointment of 2011 was fraudulently made is a smear on the face of the Board and not the Claimants, who believed at all times that their appointments were genuine. Despite having been expunged by the Claimants from their reliefs, this Court finds that such termination was a void venture.

However, since the Court is not a Father Christmas, it cannot grant wishes which were not asked for, as the Claimants, from their Amended Complaint seem to have jettisoned that arm of their claims and I so hold.

The contention that the Claimants were on probation is inefficient. Once an employee is appointed by an Institution or Agency whose employment procedure is regulated by a statute, such employee’s employment is automatically clothed with statutory flavour, the fact that it was still on probation, notwithstanding, does not make it lose its statutory flavour.

Even so, assuming the Board had contended that the Claimants had questions to answer due to misconducts or where it appears that there are reasons to remove any of the Claimants from office, the Board ought to first issue such employee a query, whether or not he/she is on probation, and to give such employee the opportunity of responding to such query. See the cases of MIAPHEN v UNIVERSITY OF JOS CONSULTANCY LIMITED (2013) LPELR-21904 (CA), A.G KWARA STATE v ABOLAJI (2009) 7 NWLR (PT.1139) PG 199 AT 212.

The Defendants, by virtue of their vested powers under the Bayelsa State UBEB (Amendment) Law, 2012, is vested with the powers to discipline a member of staff especially where the said staff has committed gross misconduct that is prejudicial to the interest of the Board or the institution where he/she serves. I am not surprised that this was the power the 3^rd Defendant exercised when he suspended the Claimants, while clinging onto EXHIBIT DW1 WL 002. The 3^rd Defendant is however required to immediately report the matter to the Board as required by the Public Service Rules.

I shudder to think that this was the situation in this material particular. Firstly, there is no evidence to show any misconduct on the part of the Claimants neither was there the setting in motion of a disciplinary procedure against any of the Claimants by the Defendants. A closer look at the evidence of the DW1 under cross examination reveals his admission to this fact. In his words, DW1 stated in evidence that:

“…before they were suspended, there was no petition, prosecution or misconduct levelled against them (“the Claimants”).”

The Claimants were not also informed, in writing of their alleged suspension but maintained that it was done through a radio announcement. This is indeed an infringement of their fundamental human rights to fair hearing. The entire procedure adopted by the Defendants negates the principle of natural justice and every other equitable principle known to law. In observing the principles of natural justice, justice must not only be done but must be seen to be done in all circumstances.

There was no justification for the suspension of the Claimants’ employment after they had been issued fresh letters of appointment. It is my candid view that any public body charged with the power to employ staff must act within the Statute creating it and ensure that it mandatorily abides with the provisions of that Statute governing its procedure for discipline or dismissal of its staff. Although the Defendants have the powers by virtue of the relevant Sections of the Statutes to suspend and discipline the Claimants, they have failed to adhere to the strict construct of the Statutes in the circumstance, and I so hold. Issue one is therefore resolved in favour of the Claimant.

On issue two, that is, on whether the Claimants are entitled to the reliefs sought, the law is settled that the granting of a declaration is a matter of discretion by the Court but such discretion must be exercised judiciously and judicially. See OKOYE & ORS v NWANKWO (2014) 15 NWLR (PT. 1429) PG 93 and CHUKWUMAH v SPDC (NIG.) LTD (1993) 4 NWLR (PT.289) PG.512. As I have resolved ISSUE 1 in favour of the Claimants, it becomes essential that I summarize my reasons. It flows from the facts and evidence before me that the Claimants’ suspension lacked credence having been suspended after their re-appointment for no just reason other than the “inability of the Defendants to secure financial approval”, as claimed by the Defendants. The Defendants’ explanation for this does not hold water, especially in the face of Exhibit DW1 WL 004, which is an admonition of a then serving Attorney General addressed to the 3^rd Defendant.

On the second issue formulated by the learned counsel to the 2^nd and 3^rd defendants on whether the 3^rd defendant is not improperly joined in this suit, its on record that it was the 3^rd defendant who conducted interview for the claimants, And it was also the 3^rd defendant who went on air on the 4^th day of April, 2013 to announce the suspension of the claimants from their employment without given them fair hearing. And that he acted within his capacity as the executive secretary of the 2^nd defendant and based on the order he received from the 1^st defendant. Therefore, this matter cannot be effectively and effectually settled or decided by this court without the 3^rd defendant being made as a party in this suit, being him a necessary party. See PEENOK INV. LTD VRS HOTEL PRESIDENTIAL LTD (1982) 12 SC PG 1. Also section 91 (1) of the Labour Act, defined an employer to mean any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first mentioned person and the personal representatives of a deceased employer. See SHENA SECURITY CO. LTD VRS AFROPAK LTD (2008) 18 NWLR (PT. 1118) PG 77. Therefore, the 3^rd defendant being him the agent of both the 1^st and 2^nd defendants is a necessary and proper party in this suit. I so hold.

I am satisfied by the evidence before me that the Claimants have proved their case and are entitled to the declarations and reliefs sought having established that their suspension was wrongful, null and void, ab initio.

While it is accepted that this Court cannot meddle in the affairs of the Defendants but where however, in the process of performing their functions under the law, the civil rights and obligations of its members of staff are infringed upon, denied or abridged, this Court will surely and truly grant remedies and reliefs for the protection of those rights and obligations. In the instant case, having held that the suspension of the Claimants’ appointment through a radio announcement lacks credence and form, I hold that the Claimants are still employees of the Defendants. It follows therefore that the Claimants are entitled to the payment of their salaries and allowances due to them from the date of their suspension, inclusive of any sum owed to them from the date of their re-appointment in January, 2013, until judgment is served.

For purpose of clarity and for the reasons stated in this judgment, I hold as follows:

The announcement of suspension of the Claimants made by the 3^rd Defendant via a radio platform on the 4^th day of April, 2013, is ultra vires, null and void, a breach of the fundamental rights of the Claimants, and hence is of no consequence whatsoever.

The Defendants are hereby ordered to reinstate the Claimants to the positions which they held prior to the 4^th day of April, 2013.

The Defendants are hereby ordered to pay the Claimants the arrears of their salaries and allowances from the month of April, 2013 and any other outstanding salaries/allowances from the date of their employment in January, 2013, till the date of this judgment is served.

All the Parties are to bear their respective costs

All the terms of this judgment are to be complied with within 30 days from today. Any Party dissatisfied by this judgment may take the appropriate steps provided under the law. I so hold.

Judgment is hereby entered accordingly.

SIGNED

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE