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National Industrial Court

MR. IGBIRIKI AZIBANATARAM VS OGBIA RURAL DEVELOPMENT AUTHORITY & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

 

 

DATE: OCTOBER 2, 2018

SUIT NO: NICN/PHC/135/2013

 

BETWEEN

 

  1. IGBIRIKI AZIBANATARAM

(Suing for himself and as representing

The 22 staff/employees employed by Ogbia

Rural Development Authority)

             CLAIMANT

AND

 

 

  1. OGBIA RURAL DEVELOPMENT AUTHORITY
  2. THE CHAIRMAN, OGBIA RURALDEVELOPMENT

AUTHORITY

  1. THE SECRETARY, OGBIA RURAL

DEVELOPMENT AUTHORITY

DEFENDANTS

REPRESENTATION

 

Mr. J.E Amity Esq. appearing with A.D. Otti Esq. for the Claimants.

P.B Bereprebofe Esq. (State Counsel) appearing for the Defendants.

JUDGMENT

INTRODUCTION AND CLAIMS

 

The Claimants commenced this action vide a complaint dated and filed on 19th September, 2013. The Claimants sought an order to amend their processes vide a Motion on Notice filed on 11th January, 2018 and same was moved and granted on 1st February, 2018. The suit was instituted in a representative capacity. Claimants in the amended processes jointly and severally sought for the following reliefs:

  1. A DECLARATION that the employment of the Claimants as shown in their letters of offer of appointment dated 29th December, 2008 with effect from 1st January, 2009 issued by the Defendants employing the Claimants in their various positions is valid and subsisting since the day of the employment.

  1. A DECLARATION that the Claimants are entitled to be pay rolled and paid their salaries commencing from 1st day of April, 2009 till the Day of Judgment and thereafter to continue the payroll and payment of their salaries and entitlements, according to the terms of the employment/appointment and in line with the civil service rules.

  1. AN ORDER of this Honourable Court directing the Defendants to payroll and pay the Claimants their salaries and entitlements from 1st day of April, 2009, per month reflecting the annual salary as shown in the offer of appointment dated 29th of December, 2008 and any other entitlement thereto, till the day of judgment and thereafter to continue the payroll and payment of their salaries and entitlements according to the terms and conditions of the Claimants’ appointment with the Defendants.

  1. AN ORDER of this Honourable Court directing the Defendants to pay the sum of Five Hundred Thousand Naira (N500,000.00) only to the Claimants as exemplary/aggravated damages.

  1. AN ORDER of this Honourable Court awarding N50,000,000.00 (Fifty Million Naira) as general damages against the Defendants.

  1. AN ORDER of this Honourable Court directing the Defendants to pay five percent interest per month on any sum awarded or salaries, arrears or other financial entitlements of the Claimants on the would be judgment of this Honourable Court.

  1. AN ORDER of perpetual injunction restraining the Defendants from terminating or interfering with the employment of the Claimants without complying with the due process of law.

The Claimants alongside also filed Statement of Facts, Witness Deposition on Oath and List of Documents to be relied upon in the cause of trial. The Claimants sought an order to amend their processes vide a motion filed on 11th January, 2018 and was granted on 1st February, 2018. Claimants also filed a reply to the joint statement of Defence filed by Defendants dated 9th January, 2018 and filed on 11th January, 2018. The Claimant alongside also filed a further written statement on Oath filed 11th January, 2018.

The Defendants Joint Statement of Defence was filed on 23rd December, 2016. By a Motion on Notice filed on 27th October, 2017 which was moved on 8th November, 2017, the Defendants processes were regularized by an order of the Court. Hearing into this case commenced on 13th March 2018 and was concluded on 23rd April, 2018. In the cause of trial the Claimant called one witness and tendered Four EXHIBITS (EXHIBITS CW1 001 (A-W), CW1 002 (A-W), EXHIBIT CW1 003 and EXHIBIT CW1 004 being respectively letters of Appointment, Acceptance of offer of appointments, pre-action notice dated 15th April, 2013 and letter of Authority to sue in a representative capacity). DW1 (one Mr. Peace Amangala) testified and tendered one Exhibit (EXHIBIT DW1 001) for the Defendants.

At the close of the trial, this Court ordered parties to file their Final Written Addresses. Defendants filed their Final Written Address on 7th May, 2018 while Claimants filed their Final Written Address on 12th July 2018. 1st-3rd Defendants subsequently filed their reply on points of law on 16th July, 2018. Parties adopted their Final Written Addresses and the Defendants Reply on Points of law on the 18th day of July, 2018.

                                  THE CASE OF THE CLAIMANTS

The Claimants’ case is that they are employees of the 1st Defendant, still discharging their duties till date, salaries were paid to them up to April 2009 but stopped in May 2009, which is about four months after their employment and till date, no reason was given for the stoppage of their salaries.

In his witness deposition, the Claimant also stated that on or about October, 2008, there was a recruitment notice into various positions in the Ogbia Rural Development Authority in its headquarters then in Ogbia Town and that they applied for employment into the various positions advertised. Names of the Claimant’s were enlisted and an interview was conducted wherein the Claimants and others were successful and offer of employment letters where issued to the Claimants by the Ogbia Rural Development Authority (EXHIBIT CW1 001 A – W). The Claimants also tendered Exhibits CW1 002 (A – W) which is the acceptance of Offer of Appointment, Exhibits CW1 003 (pre-action notice) and Exhibits CW1 004 which is the Letter of Authority to sue in a representative capacity.

Claimants further state that their appointments were never terminated and no notice of wrong doing was given to them as well as the fact that no disciplinary action has been taken against them.

That the Claimant’s being aggrieved by the stoppage of their salaries seeks the reliefs as set out in the Complaint as well as in paragraphs 19 (a)-(g) of their Statement of Facts.

                                            CASE OF THE DEFENDANTS

The 1st – 3rd Defendants filed a Joint Statement of Defence wherein it stated that the Claimant’s employment and those he represents did not follow due process. The 1st – 3rd Defendants also challenged the employment letters as well as the acceptance letters and the fact that payments of salaries were stopped upon the discovery that Claimants were not duly employed.

                               THE SUBMISSIONS OF THE DEFENDANTS

The Defendants raised two issues for determinations as follows:

(i)    Whether the Claimants from the totality of the evidence before this Honourable Court are entitled to the reliefs sought.

(ii)  Whether the 2nd and 3rd Defendants are juristic persons with the capacity to sue and be sued.

On the 1st Issue for Determination, Counsel to the Defendants aver that the law is trite that the standard of proof in civil cases is on the balance of probabilities or preponderance of evidence. And that the burden of proof is on he who asserts. That the Claimant has the burden to prove his case on the strength of his case and not to rely on the weakness of the case of the Defence. Cited the authorities of OYINLOYE VS. ESINKIN (1999) 10 NWLR (PT. 624) 540 @ 549 PARAS. C-D; CHARLIE VS GUDI (2007) ALL FWRL (PT. 362) 1992 @ 2008 PARA. E.

Counsel to the Defendants referred to the provisions of section 131 (1) and (2) of the Evidence Act

  1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts do exist.
  2. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

That Section 132 of the Evidence Act 2011 stipulates that the burden of proof in a suit or proceeding lies on that person who will fail if no evidence at all were given on either side.

The Defendants contend that it is the Claimant’s case that a recruitment notice was pasted at the headquarters of the 1st Defendant advertising for various positions based upon which they wrote applications for employment to the various positions. But that they could not produce a copy of the said recruitment notice, the 1st – 3rd Defendants having denied same. That this fact of the said recruitment notice not forming part of the records of the 1st Defendant was given in evidence by DW1 and was not cross examined on the point. Defendants then submit that it is the law that it is the duty of the plaintiff to prove the averments denied by the Defendants. Cites ONIGBEDE VS. BALOGUN (2002) NWLR (PT. 726) 1 @ 4 RATIO 1. Also, the Defendants aver that the fact of the recruitment notice being pasted at the headquarters of the 1st Defendant is pleaded but the document is not produced in Court. The law is that where a party fails to produce a document pleaded by him, the presumption is that the document does not exist. Cites NTOE ANSA AND 3 ORS VS. CHIEF ASUQUO ISHIE AND 16 ORS (2005) 4 FWLR (PT 287) 1413 @ 1425 PARA G.

It is the contention of the Defendants that the Bayelsa State Local Government Service Commission is responsible for granting of approval to the Rural Development Authorities for employment of junior staff. The Defendants further avers that the Claimants were employed by the Chairman at the time, Chief Onifie Ene without approval from the Local Government Service Commission. And in paragraph 6 of Defendants Joint Statement of Defence, the Defendants denied the issuance of letters of appointment as there was no approval from the approving authority. This fact was strengthened when it was affirmed by DW1 under cross examination that letters of appointment carry the reference number of the approval. But in this case, none of the letters of appointment had reference numbers. Defendants submit that through that piece of evidence by DW1 as elicited under cross examination, it is direct and relevant and should be given probative value. Cites OGBEIDE VS. OSULA (2004) 12 NWLR (PT 886) 87 @ 95 RATIO 7.

The Defendants also submit that a look at EXHIBITS CW1 001 (A-W) show that the said EXHIBITS does not have the reference number of approval from the Local Government Service Commission. Thus, the paragraph in the said EXHIBITS are blank to wit “with reference to your application dated……..” Defendants aver that assuming the blank dotted line on EXHIBIT CW1 001 (A-W) are not intended to carry the reference numbers with respect to the approval obtained from the Local Government Service Commission, then it should be the dates of the applications as alleged as Claimants stated in paragraph 10 in their Amended Statement of Facts that based on the recruitment notice they applied for various positions as advertised.

The Defendants further avers that the Claimants through their sole witness could not produce their application letters. That the only evidence deducible from the above is that there was no recruitment notice and no letters of application. Defendants contend that this explains why the dates of their various appointments could not be stated in the “offer of appointment”. It is trite that contents of documents speaks for itself as best evidence. Cites OJOH VS. KAMALU (2005) 18 NWLR (PT. 958) 523 @ 535 RATIO 17. Also that the Court of Appeal in BIRI VS. MAIRUWA (1996) 8 NWLR (PT 467) 425 @ 432 PARAS. D – E, held that a party who wants to succeed in his case must make available to the court all materials required to support his case. And Defendants thus submit that the Claimants have failed to do so.

Defendants aver that the Claimants appointment is illegal, null and void and this has been established via EXHIBIT DW1 001 which is a circular dated 21st July, 2008 from the Bayelsa State Local Government Service Commission to all Rural Development Authorities. Defendants aver further that the said circular (EXHIBIT DW1 001) was received by the 1st Defendant on 28th July, 2008 as shown on the document itself. And that despite this circular, the then Chairman went ahead to employ the Claimant without approval. That the reason of the circular is because it is the Bayelsa State Government that is responsible for payment of staff of the Rural Development Authorities through the Ministry of Local Government as new employees’ salaries have to be budgeted for and by building same into the wage bill of the state.

Also, Defendant contend that the said circular (EXHIBIT DW1 001) checks the activities of the Chairmen of the Rural Development Areas in order not to allow for arbitrary employments, thereby incurring more money for the state to be expended on payment of salaries. That needs are assessed by the Local Government Service Commission before approvals are granted for employment by the Rural Development Authorities.

The Defendants aver that paragraph 11(a – f) of their Statement of Defence stated the procedure required to be complied with for employment of staff of junior cadre like the Claimants in this case. Defendants further avers that the said piece of evidence remain unchallenged. Cites F.M.C., IDO-EKITI VS ALABI (2012) 2 NWLR (PT. 1285) 411 @ 411 PARA. C, where the Court of Appeal held that by the Public Service Rules, appointments to public offices of the Federal Civil Service are made on the authority of the Civil Service Commission or by formal agreement between the officer and the federal government or its appointed agents. Defendants further submitted that it is not on record that the power to employ has been delegated to Chairmen of Rural Development Authorities.  That the Supreme Court in OKOMU OIL PALM CO. LTD VS. ISERHIENRHIEN (2001) 6 NWLR (PT. 710) 660 @ 665 RATIO 3, stated that it is when it has been satisfactorily established that an employer was appointed under the Federal Civil Service Rules that the question of his removal in compliance with the relevant provision of the said rules can arise.

Defendants contends that Claimants’ appointment were illegal as same was done without compliance with the relevant procedure. That their appointments never existed so that the issue of stoppage and or non-payment of salaries after three months is of no issue.

The Defendants denied the receipt of EXHIBITS CW1 002 being acceptance for offer of appointment letters. The Defendants contend that letters of acceptance of offer of appointments are usually endorsed by the Head of Personnel Management of a Rural Development Authority. Refers to paragraph 7 of 1st – 3rd Defendants Joint Statement of Defence. Defendants further aver that Claimants letters of acceptance of appointment had no such endorsements, and Claimants’ led no further credible evidence to the contrary, neither was the evidence of the 1st – 3rd Defendants on this point was controverted.

The Defendants also avers that Claimants attempt to explain the fact of non-receipt of EXHIBIT CW1 003 which is a letter dated 15th April, 2013 as stated in paragraphs 6 and 7 of Claimants Reply to Statement of Defence is an afterthought and was not supported by any piece of evidence. Further, the Defendant state that the fact as to the process of employment, and the need for approval from the Bayelsa State Local Government Service Commission remains unchallenged and uncontroverted. And that the circular (EXHIBIT DW1 001) from the Local Government Service Commission is clear and unambiguous on the issue of unauthorized employment and what would happen to staff so employed without approval.

Defendants also aver that paragraph 3 of the letters of offer of appointment (EXHIBIT CW1 001 A-W) states that “your appointment is covered by the rules and regulations governing the Unified Local Government Service”. The Defendants the contend that it behoves on the Claimants to produce the said Rules and Regulations in order to enable this Honourable Court to determine if Claimants were wrongly removed. The Defendants submit that this Honourable Court cannot embark on an expedition to get the Rules and Regulations, neither can the Court speculate as to the terms contained therein. The Defendants then states that this Honourable Court is enjoined by law to decide a case only on evidence presented to it and not to speculate on evidence not before it. Cited the authorities of SEISMOGRAPH SERVICE (NIGERIA) LTD VS. OGBENI (1976) 4 SC 101; ONIBUDO VS. AKIBU (1983) 13 NSCC 199 @ 207.

The Defendants contend that while Claimants stated in paragraph 16 of their Amended Statement of Facts that their appointments were never terminated and there is no allegation of wrong doing, the Claimants’ pleadings and evidence before this Court as well as their reliefs sought bothers on wrongful termination of employment. The position of law echoed by the Supreme Court in the case of MOROHUNFOLA VS. KWARA STATE COLLEGE OF EDUCATION (1990) 4 NWLR (PT. 145) 506 @ 519, is that in a case of wrongful termination of employment, the plaintiff must begin by specifically pleading: that he is employed by the Defendant; the terms and conditions of his appointment including duration and termination; who can appoint and remove him; the circumstances under which his appointment can be terminated; and that his appointment can only be terminated by a person or authority other than the Defendant.

Counsel to Defendants submit that the Claimants have not shown the terms and conditions of their appointment including duration and termination, who can appoint or remove them, under what circumstances under which their appointments can be terminated and who can terminate their appointments. Cited EMOKPAE VS. UNIVERSITY OF BENIN (2002) 17 NWLR (PT 765) 139 CA. Defendants also referred the case of OKOMU OIL PALM CO. LTD VS. ISERHIENRHIEN (SUPRA) PAGES 677 PARAS. A- B and PAGES 677- 678 PARAS H-D. The Defendants then aver that there is no evidence before this Honourable Court showing that the Claimants were employed with the approval of the Local Government Service Commission. That the 1st Defendant is a creation of the Bayelsa State Government, and the Bayelsa State Local Government Service Commission is also a creation of the Bayelsa State Government.

The Defendants also aver that in relief (b) of the Claimants Amended Statement of Facts, Claimants seem to suggest that their employment is governed by Civil Service Rules. The Defendants contend that there is no evidence that Claimants were employed under the Civil Service Rules, therefore, relief (a) also in the Amended Statement of Facts cannot stand as Claimants have not also shown the valid means by which they were employed and who can terminate their appointment.

The Defendants further contend that the Claimants from the reliefs sought at paragraph (c) of the Amended Statement of Facts, state that they are entitled to be continued to be pay rolled and payment of their salaries and entitlements according to the terms and conditions of the Claimants appointments with the Defendants. Whereas, the Claimants have already stated under cross examination that they were employed by the 1st Defendant through its Chairman and head of personnel Management at that time. Yet Claimants are relying on the Civil Service Rules.

The Defendants further submit that the reliefs sought by the Claimants are dependent on whether Claimants have shown that their appointments are valid, as to who appointed them and who can remove them, and whether the Claimants have also adduced evidence as to terms and conditions of their appointments are in line with the provisions of the Civil Service Rules. It is the law that where an employee complains that his employment has been wrongfully terminated, he has the onus to place before the Court the terms of contract of employment and to prove in what manner the said terms where breached by the employer. The Defendant then submits that it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts. Cites KATTO VS CBN (1999) 6 NWLR (PT. 607) 370 @ 405.

The Defendant then prayed this Honourable Court to resolve Issue One in their favour. The Defendants contend that if this Honourabe Court disagrees and holds that the Claimants are entitled to the reliefs sought, reliefs (a) (b) and (c) of the Amended Statement of Facts are reliefs based on reinstatement. The Defendant further contend that the law is that where a plaintiff seeks the reliefs of reinstatement and is granted, the issue of measure of damages for wrongful termination/dismissal/retirement becomes irrelevant because upon reinstatement, the plaintiff is entitled to be paid all his arrears of salary/endowments including fringe benefits up to the point/time of reinstatement and thereafter as when due and payable. Cites EKEAGWU VS. NIGERIA ARMY (2010) 42 (PT. 2) NSCQR 1238 @ 1248. The Defendants further aver that the remedy of reinstatement is only available where the employment is one with legal or statutory flavour, but the Claimants have not been able to prove if their employment is one with legal or statutory flavor.

The Defendants further aver that the Claimants were never staff of the 1st Defendant as their appointments where done without the requisite approval. It is the Claimants case that they were terminated without notice and seeks the reliefs of damages, reinstatement and “interests”. The Defendants contends that it is the law that the measure of damages where the employer terminates the employee employment without notice is one month salary in lieu of notice including all his benefits accruable within the period. Also, that where the employee is dismissed and the court finds the dismissal to be wrongful, then the employee is entitled to one month’s salary. But where the employee is rightly and justifiably dismissed by his employer, no damage would be awarded. Cites U.B.N. PLC VS. SOARES (2012) 11 NWLR 550.

That interest may be claimed as of right where it is contemplated by the agreement between the parties or under mercantile custom or under a principle of equity, such as breach of fiduciary relation. Interest may also be awarded where there is a power conferred by statute to do so in exercise of the Courts discretion. Where interest is claimed as of right, the matter must be specifically pleaded and evidenced led in proof of same as the court will not award an amount which is not claimed. Cited the authorities of UBA PLC VS LAWAL (2008) ALL FWLR (PT 434) 1548 @ 1561 PARAS. F- G; TEXACO OVERSEAS PETROLEUM CO. UNLIMITED VS. PEDMAR NIGERIA LTD (2002) FWLR (PT 126) 885.

The Defendants thus contend that if the claimants allege that their employment is governed by the Civil Service Rules, then they have to show by which statute, and if it is as of right, the claimants did not specifically plead and prove how they are entitled to the award of 5 per cent interest on any sum awarded or salaries, arrears or financial entitlements.

On the Second Issue, that is whether the 2nd and 3rd Defendants are juristic persons with the capacity to sue and be sued, Defendants aver that the Local Government Areas (Creations and Transitional provisions) Law Cap L11, Laws of Bayelsa state, 2006 created 32 Rural Development Authorities (inclusive of the 1st Defendant). However, the Defendant contend that by the Supreme Court Decision in AG, LAGOS VS. AG, FEDERATION (2004) 18 NWLR (PT. 904) 1, declaring the local government areas created by the state government as inchoate, the said local governments were not clothed with juristic personalities. Thus, the 2nd and 3rd Defendants cannot sue or be sued in its name as same does not possess legal personalities. The law is that only natural and juristic persons such as bodies corporate are competent to sue and be sued. Cited FAWEHINMI VS NBA (NO. 2) (2008) ALL FWLR (PT. 448) 205.

Finally, the Defendants urged this Honourable Court to dismiss the case of the Claimants in its entirety for failing to discharge the burden of proof placed on them, as well as failing to bring before the Court all the necessary materials required to support its case.

THE SUBMISSIONS OF THE CLAIMANT

The Claimants in their written address dated and filed on the 12th July, 2018 formulated five issues for determination as follows:

  1.             Whether the entire evidence of the Defence (DW1) is not hearsay evidence and therefore inadmissible evidence
  2.             Whether the Claimants have proved their case on the balance of probabilities to warrant this Court to grant the relief sought.

  iii.            Whether the 1st – 3rd Defendants having advertisement, interviewed and issued appointment letters to the Claimants and the Claimants having accepted the offer of appointment upon which salaries were paid can deny the existence, subsistence and validity of the employment of the Claimants.

  1.             Whether 1st -3rd Defendants can sue and be sued as juristic persons.
  2.             Whether the Claimants were accorded the right to fair hearing during the investigation and enquiry relating to their employment; the consequence for not according the Claimants fair hearing.

On the First Issue, that is whether the entire evidence of the defence (DW1) is not hearsay evidence, the Claimants submit that the entire evidence of the defence is “hearsay” and therefore not admissible in law. DW1 in his evidence-in-chief said “I am the head of Personnel Management in Ogbia Rural Development Authority and have worked in the Local Government system for 22 years. That I was posted to serve as Head of Personnel Management of the 1st Defendant sometime in August, 2013 and resumed work in the same month of August, 2013”

Also, Claimants aver that DW1 was brought to simply mislead the court as he is not an employee of the government. This is because under cross examination, he stated that he does not have an employment letter. Claimants submit that DW1 in the circumstances did not give evidence on matters within his knowledge as he is not an employee of the government or an employee of the Ogbia Rural Development Authority, as such the evidence of DW1 is “hearsay”. Cites ZAKI VS MAGAYAKI (2002) FWLR (PT. 135) 798.

Claimants state further that the law is that where a witness contradicts himself, the Court should view the testimony of that witness with suspicion as in the instant case, DW1 stated that he is the Head of Personnel Management of the Ogbia Rural Development Authority but failed to prove it during cross examination and stated further that he does not have appointment letter. Refers to the authorities of AKANNI VS ODEJIDE (2004) ALL FWLR (PT. 218) 82 @ PAGES 854 – 855 PARAS. G-A RATIO 2; AKANMU VS. ADIGUN (1993) 7 NWLR (PART 304) 218 AT 235.

On the Second issue, that is whether the Claimants have proved their case on the balance of probabilities to warrant this court to grant the reliefs sought, Claimants submit that they have proved their case on the balance of probabilities and as such entitled to the grant of all the reliefs sought.

Claimants further submits that the following issues are not in dispute to wit:

  1.             The fact that the 1st Defendant employed the Claimants.
  2.             That the Defendants paid the Claimant for Four (4) months as Claimants accepted the offer of appointment and resumed duty.

  iii.            There is no argument as to the genuiness of the appointment letters of the Claimants issued by the 1st– 3rd Defendants.

  1.             There is no argument or dispute that the Claimants were paid salaries for four (4) months.

Claimants submit further that the main areas of dispute between the parties relating to the second issue are as follows:

  1.             Whether the 1st – 3rd Defendants having employed the Claimants and caused the Claimants to be payrolled for four months validly deny the validity of their appointment.
  2.             Whether looking at the facts of the case, it can be said that the Claimants are to produce the Recruitment Notice as asserted or alleged in paragraph 4.04 – 4.06 of the Defendants Final Written Address.

  iii.            Whether EXHIBIT CW1 001 (A-W) do not carry reference numbers as asserted or alleged by the Defendants in paragraphs 4.07 – 4.10 of the Defendants Final Written Address.

  1.             Whether it is the duty of the Claimants to produce application letters and recruitment notice when the offer of appointment letters are not in dispute.

Claimants contend that they led evidence on how they were employed. (Refers the Court to paragraph 4-5 of the statement of facts and CW1 witness statement on Oath).

Claimants further contend that Mr. Orufie Ene was the Chairman of Ogbia Rural Development Authority and by virtue of Section 4(1) of the Bayelsa State Rural Development Authority Creation Law 2006, he was the Head of the Executive branch of the 1st Defendant. However, the appointment letters were signed by the designated authority, the Head of Personnel Management of the 1st Defendant. Therefore, the 1st to 3rd Defendants have waived their right in law to deny the existence, subsistence and validity of the Claimant’s employment. Cited the case of UKAEGBU VS. UGOJI (1991) 6 NWLR (PT. 196) 127 AT 157 wherein the statement of the law as stated by Lord Denning MR. in MOORGATE MERCANTILE CO. LTD VS. TWITCHING (1976) 1 Q.B. 225, was quoted with approval that Estopplel is not a rule of evidence. It is not a cause of action. It is a principle of justice and equity, it comes to this; which a man, by his words or conduct, led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust and inequitable to do so. Claimants further cited the authorities of UDE VS NWARA AND ANOR (1993) LPELR – 33289 (SC) PAGE 27; section 169 of the Evidence Act 2011, as well as OPARA VS. OMOLU (2002) 10 NWLR (PT. 774) 177 AT 190; BUHARI VS. INEC (2009) ALL FWLR (PT 459) 412 AT 517 and P.U.T.H AT VS. CEDDI CORP. LTD AND ORS (2012) 2 NWLR (PT. 1285) 465 AT 492.

Further submit that EXHIBITS CW1 001 (A-W) were issued by the Defendants upon which the Claimants were discharging their duties. The Defendants therefore cannot in law deny the existence of the employment of the Claimants and therefore have waved the right to deny same.

And that the Claimants have successfully proved their case by tendering their offer of appointment letters (EXHIBIT CW1 001(A -W), acceptance of appointment letters (EXHIBIT CW1 002 (A-W) and the payment of their salaries for four months. Claimants contended that this is a conclusive proof that:

  1.             There was a recruitment notice by the Defendants,
  2.             The Claimants applied for the employment,

  iii.            The Defendants caused the Claimants to be interviewed,

  1.             The successful persons were given offer of appointment letters,
  2.             Those who accepted the employment or appointment resumed duties.
  3.             Those who resumed were pay rolled which include the Claimants.

Claimants referred the court to EXHIBIT CW1 001 (A-W) where on the face of the said document it is clearly written “… and your subsequent interview on the 16th of December, 2008”. And that the person who signed the offer of appointment letters (EXHIBIT CW1001 (A -W) is the Head of Personnel Management of the 1st Defendants. The law is trite that oral evidence or extrinsic evidence cannot be admitted to vary the content of a written document. Refers the Court to the authorities of OGUNDELE VS. AGIRI (2009) 40 NSCQR 427 AT PP. 449 – 450; ANYUNWU VS UZOUKA (2009) 40 NSCQR 1 AT 22; OGBEDE VS. ASADE (2009) 40 NSCQR 386 AT 415.

Claimants further submit that without Recruitment notice, there cannot be an application for the subject of the notice as well as an interview. In this case, there is a proof that the Claimants were interviewed on the 16th day of December, 2008 (Refers to the contents of EXHIBIT CW1 001 (A-W).

Claimants also submit that the Defendants wrongly contend that the appointment letters of the Claimants do not carry a Reference Number in paragraphs 4.07 – 4.10 of their Final Written Address. The Claimants contend that the argument was made in error as at the top of EXHIBIT CW1 001 (A-W), contained and carries the Reference Number for all the Claimants. Also, Claimants submit that it is not the duty of the Claimants to produce their application letters submitted to the Defendants as the appointment letters are conclusive proof of the fact that the Claimants applied for the various positions advertised.

On the Third Issue, whether the 1st – 3rd Defendants having advertised, interviewed and issued appointment letters to the Claimants and the Claimants having accepted the offer of appointment upon which salaries were paid can deny the existence, subsistence and validity of the employment of the Claimants. The Claimants aver that the only denial regarding the employment of the Claimants is contained in paragraph 5 of the Statement of Defence when they stated that “…it was discovered that the said Claimant on record including those he represented , among others were employed by the Chairman of the 1st Defendant Chief Orufie Ene without due process and approval from the commission”. Claimants submit that an allegation of employment without due process and approval from the commission, upon which salaries were paid to the said Claimants is an allegation of fraud and abuse of office against the entire process that brought about the appointment and employment of Claimants which need to be proved beyond reasonable doubt.

Further submit that whether in civil or criminal proceedings where there is an allegation of crime, he who asserts is under a duty to prove beyond reasonable doubt. In this case, the Defendants who are alleging fraud and abuse of office ought to prove or at least show to this court that the Head of Personnel Management of the 1st Defendant who signed EXHIBIT CW1 001 (A-W) is being prosecuted for abuse of office, that is, if the allegation is true. Refers to the authorities of NWOBODO VS ONOH (1984) 1 SCNL; YUSUF VS OBASANJO (2004) ALL FWLR (PT. 213) 1834.

Claimant submit further that there was no evidence of fraud, abuse of office, or even employment without due process as the law is that a civil servant’s employment cannot be determined on the basis of misconduct amounting to a criminal offence without the prosecution of the erring civil servant before a court of competent jurisdiction. Refers the court to the case of CSC IMO STATE AND ORS VS UKWEOZOR (2017) 8 CAN (PT 1) 174.

Further, Claimants aver that there is no evidence of prosecution or proof of any allegation of lack of due process. And that the 1st -3rd Defendants have waived their right to complain or deny the subsistence, existence or validity of the employment of the Claimant having led the Claimants to believe the existence of their employment. Refers to the authorities of UKAEGBU VS UGOJI (SUPRA); and MOORGATE MERCANTILE CO.LTD VS TWITCHING (SUPRA).

Further, Claimants rely on the Supreme Court decision of UDE VS NWARA (SUPRA) where the court elucidated the principle of estoppel that “by the operation of the rule of estoppel a man is not allowed to blow hot and cold, to affirm at the time and deny at the other, or as it is said, to approbate and reprobate…” Claimants further refers to section 169 of the Evidence Act, 2011 as well as the authorities of OPARA VS OMOLU (SUPRA); BUHARI VS INEC (SUPRA, P.W.T.H. AT VS. CEDD1 CORP. LTD AND ORS (SUPRA).

On the Fourth Issue, that is whether the 1st -3rd Defendant are juristic person, Claimants submit that the 1st – 3rd Defendants are juristic persons in law. The 1st Defendant is established by section 1(iii) of the Bayelsa State Rural Development Authorities Creation Law, 2006 with powers conferred under section 2 of the same law. Further, the 2nd and 3rd Defendants are a creation of section 4 of the Bayelsa State Rural Development Authorities Creation Law, 2006. The position of law echoed by the Supreme Court on THOMAS VS LOCAL GOVERNMENT SERVICE BOARD (1965) NWLR 310 AT 312 were the court stated that we reject the submission that a statutory body with functions like those of the Local Government Services Board is not liable to be sued for a declaration, and we do so more readily since the statutory provision relating to the appellants office are such that injustice might result as the board cannot be made a defendant to any kind of proceedings. Similarly, in the case of CARLEN VS UNIVERSITY OF JOS (1994) 1 SCN 72 AT 88, the court held that although the university of Jos Act has not expressly confer on the Council of the University nor the Vice Chancellor the power to sue or be sued eo nomine, by implications, the Council and the Vice Chancellor can sue and be sued eo nomine considering the nature of the functions, powers, duties and responsibility given to them. In the instant case, the 1st Defendant is established by the enabling law and the 2nd and 3rd Defendants are the operators. Claimants refers to section 1 and 2 of the Bayelsa State Rural Development Authorities Creation law, 2006; Section 1(1) of the Bayelsa State Local Government Areas (Creation and Transition Provision) Law 1999.

Claimants submit that the 1st Defendant is sufficient to sustain the suit if the 2nd and 3rd Defendants are assumed not to be juristic persons.

On the Fifth Issue for determination, that is whether the Claimant were accorded the right to fair hearing during the investigation and inquiry relating to their employment, Claimants submit that they were never invited during the investigations or inquiry as stated in paragraph 5 of the Defendants Statement of Defence. Claimant further aver that during the cross examination of DW1, he was asked whether the Claimants were invited or given opportunity to be heard during the investigation or inquiry as stated in paragraph 5 of the Statement of Defence and paragraph 10 of DW1 Statement on Oath, DW1 answered, “No” that Claimants were never invited.

Claimants aver that it is a settled law that a breach of constitutional right to fair hearing as guaranteed under the provisions of section 36 (1) of the 1999 Constitution As Amended in any trial or investigation nullifies such trials or investigation and decision taken thereon is also a nullity. Cites CSC, IMO STATE AND ORS VS. UKWEOZOR (SUPRA).

It is further submitted that the Claimants were never given fair hearing during the investigation and inquiry that resulted to the removal of their names from the nominal roll and as such, the decision to stop payment of the Claimants salaries as a result such investigation and inquiry is a nullity.

Finally and from the totality of the above, Claimants urged this Honourable Court to resolve the issues raised in favor of the Claimants against the Defendants and grant the reliefs sought.

1ST – 3RD DEFENDANTS JOINT REPLY ON POINTS OF LAW

The Defendants filed a joint reply on points of law to the Claimants Final Written Address. The reply is filed on the 16th July, 2018 where Learned Counsel to the Defendants submitted that the Claimants Counsel misrepresented the response of DW1 at paragraph 4: 03 of Claimants Final Written Address, where DW1 was asked whether he has an appointment letter under cross examination.

The Defendants further submit beyond stating that he does not have his employment letter with him, he also stated he has an I.D card. The Claimants Counsel did not seek to tender the I.D. Card nor urged DW1 to show same to the court. The reason being that if Claimants Counsel had asked DW1 to show the I.D Card, the evidence would be unfavorable to him. Cites APC VS INEC (2015) ALL FWLR (PT. 771) @ 1450 PARA. E (RATIO 6).

On the issue DW1’s evidence being referred to as hearsay, the Defendants tendered EXHIBIT DW1 001 at the trial which is a circular from the Bayelsa State Local Government Commission certified by DW1 as the Head of Personnel Management of 1st Defendant. The Defendants cites section 146 (1) and (2) of the Evidence Act, 2011 to prove that the circular is in line with the provisions of the law. The Defendants then submit that the evidence before this court is credible, cogent and not hearsay.

On the prayer of the Claimants on the issue of estoppel as they were paid their salaries for four months, the Defendants aver that in ANIKE VS SPDC (NIG) LTD (2011) 7 NWLR (PT. 1246) 227, the Court of Appeal held that a contract of service cannot be presumed. The existence of a contract of service between one party and the other must be proved by empirical evidence. That it cannot be inferred from evidence or the facts that the salaries and allowances were paid. And that the Claimants did not place before this court their terms of employment and mainly relying on the payment of salaries. Further, the argument by the Claimants cannot stand as the Local Government Service Commission who is responsible for payment of staff of Rural Development Authorities and who authorizes the employment of the staff of the Rural Development Authorities did not authorize the employment of the Claimants. That Chief Orufie Ene who employed the Claimants was a servant and agent of the Bayelsa State Local Government Service Commission and the Bayelsa State Government, acted in excess of authority and this fact is substantiated by EXHIBIT DW1 001. Cites AZUBUIKE VS GOVERNMENT, ENUGU STATE (2014) 5 NWLR (PT. 1400) 372 RATIO 8.

The Defendants also submit that the issue of estoppel does not arise and the Bayelsa State Government who is responsible for payment of staff of the Rural Development Authorities through its agency, the Bayelsa State Local Government Service Commission communicated to various Rural Development Authorities of unauthorized employment due to employment embargo and the embarrassment that will be caused to staff so employed without due approval of the Commission. The Claimants have not shown that there was due approval, so as to raise the plea of estoppel successfully. It is trite law that the content of a document speak for itself as best evidence. Cites OJOH VS. KAMALU (2015) 18 NWLR (PT. 958) 523 @ 535 RATIO 17. Further the Defendants submit that it is the primary duty of the court to draw inferences from the evidence before it. Cites WOLUCHEM VS. GUDI (1981) 5 SC 291.

On the Claimants submission that the words “without due process” amount to fraud, the Supreme Court in OROWOLO VS IFABIYI (2002) WFLR (PT. 96) 296, held that where a strong language is employed to describe one’s conduct or motive in a transaction as was done in the present case by the use of the word “fraudulently”, that does not ipso facto convert the basis of a claim into a crime.

On the claim by the Claimants in paragraphs 4:11:2 to 4:11:3 that Claimants were not accorded fair hearing during the investigation of their employment, before their termination, thus breached their constitutional right to fair hearing, the Defendant submits that in a master and servant relationship, and employees appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly, an employee in such a relationship can lawfully be dismissed without observing the principles of natural justice. Cites OLAREWAJU VS. AFRIBANK PLC (2001) FWLR (PT. 72) 2008 RATIO 9.

The Defendants contend that the Claimants’ employment were not authorized, thus, Claimants are unknown. It therefore follows that the issue of fair hearing does not arise.

Finally, the Defendants urged this Honourable Court to dismiss the suit in its entirety.

COURT’S DECISION

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

          Whether taking into consideration the circumstance of this case and the evidence led, whether Claimants have proved their case to be entitled to all   or some of the reliefs sought.

From the facts of this case it is the contention of the Claimants that sometimes in 2008 there was a recruitment notice into various positions in the Ogbia Rural Development Authority Headquarters at Ogbia town which they applied for employment to the various positions advertised. And consequent upon that they were enlisted for the positions and an interview was conducted wherein the Claimants and other applicants were employed and offer of appointment letter issued to them by the 1st Defendant, and the Claimants accepted the offer of appointment (see Exhibits CW1 001 (A – W) and Exhibits CW1 002 A – W). Consequent upon this, sometimes in January, 2009, the 1st Defendant start with immediate effect the payment of their salaries and entitlements up to April, 2009. But the payment was stopped from May, 2009 and up to this moment. (See paragraphs 9 – 14 of the Amended Statement of Facts and CW1 Witness Statement on Oath). The Claimants further averred that their appointments were never terminated and notice was never given to them, and they were equally not found wanting for any wrong doing.

The Defendants in their defence argued that the reasons why the salaries and entitlements of the Claimants were stopped is due to the fact that, the appointment of the Claimants did not follow due process. That they were only appointed by one Chief Orufie Ene (Chairman of the 1st Defendant) without due process and approval from the Local Government Service Commission.

It is of legal importance to note that by Exhibits CW1 001 (A – W) and Exhibits CW1 002 (A – W), the 1st Defendant had actually issued an offer of appointment dated 29th December, 2008 to all the Claimants into various positions. And from the said Exhibits it was indicated that the Claimants did applied for employment and that they were subsequently interviewed on the 16th December, 2008, and that it was consequent upon that the 1st Defendant employed the Claimants into various positions with effect from 1st January, 2009. By this, there is indeed a contract of employment between the Claimants and the 1st Defendant see ODUA INVESTMENT CO. LTD VS AKINYEMI (2002) FWLR (PT. 84) 172 AT 188. And written contract of employment is binding on the parties there to. See LADIPO VS CHEVRON (NIG.) LTD. (2005) 1 NWLR (PT. 907) 277 AT 289. The Defendants in their defence made a heavy weather on the fact that due process was not followed in appointing the Claimants, and even outlined the procedure to be followed in appointing staff from GL 01 – 06 (See paragraph 11 (A – F) of the Defendants Joint Statement of Defence), But it is of legal importance to note that it is not the duty of the Claimants to investigate or make enquiries so as to ascertain whether the 1st Defendant has the capacity to employ them or not. From Exhibits CW1 001 (A –W), and Exhibits CW1 002 (A – W), it shows that the Claimants applied for employment into various positions, they were interviewed and subsequently they were employed by the 1st Defendant. And its trite that oral evidence or extrinsic evidence can not be admitted to vary the content of a document. See OGUNDELE VS AGIRI (2009) 40 NSCQR 427 AT PP 449450; OGBE VS ASASE (2009) 40 NSCQR 386 AT 415. And its not correct to say that the appointment letters did not carry any reference letter as argued by Counsel to the Defendants. This is because all the offers of employment carries one reference number as ORDA/ADM/07/2008. And  assuming but not conceding to the fact that the Defendants has no capacity  to employ the Claimants, as argued by the Learned Counsel to the Defendants, the payment of salaries for four months (from January, 2009 to April 2009) to the Claimants is a ratification or affirmation that the Defendants has the capacity to employ the Claimants.

Furthermore, although neither the Claimants nor the Defendants has supplied or furnished this court with the rules and regulations governing the unified Local Government Service as indicated in the offer of appointments (Exhibits CW1 001 (A – W), but the issue which has to be determined is whether Exhibit DW1 OG 001 dated 21st July, 2008 can serve as a notice terminating the appointments of the Claimants. Since the Claimants were issued with appointment letters (whether right or wrong) as canvassed by Counsel to the Defendants, that since the Defendants has the right to terminate the appointments of the Claimants (which the Defendants has not done), then Exhibit DW1 OG 001 can never serve as a notice terminating the appointments of the Claimants. And since the appointments of the Claimants is still subsisting then they are entitled to be paid their salaries and entitlements. See the case of HONIKI SAWMILL (NIG.) LTD VS HOLF (1992) 4 NWLR (PT. 238) 673 C.A. And the Claimants in Paragraph 18 of the Amended Statement of Facts, averred that they have been discharging their duties and also ever ready to discharge their duties, a fact which the Defendant failed to contradict same.

Furthermore, on the argument canvassed by the Learned Counsel to the Defendants that the 1st Defendant is not a juristic person, it is my considered view that this is a total misconception of the law. By the combined provisions of Section 1 and 2 of the Bayelsa State Rural Development Authorities Creation Law, 2006, and Section 1 of the Bayelsa State Local Government Areas (Creation and Transition Provision) Law 1999, the 1st Defendant is a creation of the law. Hence the 1st Defendant is a juristic person. The Claimants has also put the Defendants on notice to produce the vouchers for the payment of their salaries in Paragraph 14 of the amended Statement of Facts, but the Defendants failed to provide same. See the case of APC VS INEC (2015) ALL FWLR (PT. 771) AT 1450 PARA E, RATIO 6.

Having said all these, it is my ardent belief that the Claimants were able to establish and prove their case based on preponderance of evidence, and I hereby granted the prayers or claims contained in claims (a), (b) and (c) while this court refused to grant reliefs (d), (e) , (f) and (g) as sought by the Claimants. On claims (d), (e) and (f) the position of the law is that in breach of contract of employment what the court is enjoined to do is to put the Claimant in to the correct position he would have been, if the breach had not occurred. It is not intended to give the employee a windfall on all claims for damages. See IFETA VS S.P.D.C (NIG.) LTD. (2006) 8 NWLR (PT. 983) 585 SC. As such reliefs (d) and (e) of the Claimants’ Originating Process is hereby dismissed. Also relief (g) is also hereby dismissed on the grounds that court can not impose a willing employee over an unwilling employer.

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

  1. I declare that the employment of the Claimants as shown in their letters of         offer of appointment dated 29th December, 2008 with effect from 1st January 2009 issued by the Defendants employing the Claimants in their various positions, is valid, and subsisting from the day of employment.

  1. I declare that the Claimants are entitled to be pay rolled and paid their salaries commencing from 1st day of April 2009 till the Day of Judgment and thereafter to continue the payroll and payment of their salaries and entitlements, according to the terms of the employment/appointment and in line with the civil service rules.

  1. I direct the Defendants to payroll and pay the Claimants their salaries and entitlements from 1st day of April 2009, per month reflecting the annual salary as shown in the offer of appointment dated 29th of December, 2008 and any other entitlement thereto and thereafter to continue the payroll and payment of their salaries and entitlements according to the terms and conditions of the Claimants appointments with the Defendants.

  1. Reliefs (d), (e), (f) and (g) is hereby dismissed.

All terms of this judgment are to be complied within 30 days from today. Judgment is hereby entered accordingly.

­­­HON. JUSTICE BASHAR A. ALKALI

Presiding Judge

Signed

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