MR. RICHARD MATTHEW -VS- THE EXECUTIVE SECRETARY UNIVERSAL

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: JUNE 5, 2018 SUIT NO: NICN/YEN/23/2015

BETWEEN:

RICHARD MATTHEW —————— CLAIMANT

AND

THE EXECUTIVE SECRETARY

UNIVERSAL BASIC EDUCATION AUTHORITY-

NEMBE LOCAL GOVERNMENT COUNCIL.

THE EXECUTIVE SECRETARY

BAYELSA STATE UNIVERSAL BASIC

EDUCATION BOARD OKOLOBIRI

NEMBE LOCAL GOVERNMENT COUNCIL

DEFENDANTS

REPRESENTATION

Mr. A.P Inedi Esq appearing for the Claimant, holding the brief of High Chief Alaware Agum Esq for the Claimant.

Timi Songi Esq (State Counsel) for the 2^nd Defendant.

1^st and 3^rd Defendants not represented.

JUDGMENT

INTRODUCTION AND CLAIMS

The Claimant by a Complaint dated 17^th June 2015 and filed on the same date approached this court and sought for the following reliefs:

A DECLARATION that the Claimant was reinstated as a Primary School Teacher with Salary Grade Level 07/5 and entitled to N53,140.19 per month from 8^th April 2013 up to date by virtue of the re-absorption letter issued by the 1^st Defendant dated 8^th April, 2013.

A DECLARATION that the Claimant having being reinstated by the Defendants is entitled to monthly salary and any other entitlements, rights and privileges accruing thereto to a Primary School Teacher of the Claimant’s status effect from 8^th April, 2013 to the determination of the substantive suit.

A DECLARATION that the Claimant is entitled to the arrears of his unpaid salary and allowances amounting to N1, 328, 500 (One Million, Three Hundred and Twenty Eight Thousand and Five Hundred Naira) for two years (i.e. 8^th April, 2013 – 8^th April 2015) illegally withheld and working meticulously without pay.

A DECLARATION that the indefinite detention and withholding of Claimant’s salaries and allowances from the date of re-absorption (i.e. 8^th April, 2013) up to date by the Defendants is contrary to the available conditions of service or to the manner of the Defendants contract of employment with the Claimant and contrary to the Nigerian Labour Act, therefore, a fundamental breach of contract, unlawful, null and void ab initio.

AN ORDER directing the Defendants to regularize the reinstatement of the Claimant forthwith or alternatively terminate employment of the Claimant properly and pay all arrears and entitlements under the contract of employment.

Cost of this suit as the Honourable Court may assess.

The Claimant alongside also filed Statement of Facts, List of Witnesses, Witness Deposition on Oath and List of Documents to be relied upon in the cause of trial.

The 2^nd Defendant enter appearance on 2^nd October, 2015 and alongside also filed a Statement of Defence, List of Witness, List of Documents to be relied in the cause of trial and Witness Deposition on Oath of the 2^nd Defendant. The 2^nd Defendant further amended his Statement of Defence dated and filed on 27^th October, 2017. Thereafter the Claimant also filed a reply to the 2^nd Defendant’s Amended Statement of Defence and Further Statement on Oath of the Claimant dated and filed on 10^th November, 2017. Both 1^st and 3^rd Defendants remained in default of appearance as they never filed any process before this court not even Memorandum of Appearance.

In the cause of the trial the Claimant testified on the 16^th January, 2018 as CW1 and he was equally cross examined on the same day. The Claimant also tendered 4 Exhibits (EXHIBITS CW1 MT001 to EXHIBITS CW1 MT004). The 2^nd Defendant also testified on the 29^th January, 2018 and he was equally cross examined on the same day. The 2^nd Defendant did not tender any document. At the close of the trial, this court ordered parties to file their Final Written Addresses which same were filed and adopted on the 13^th March, 2018.

THE CASE OF THE CLAIMANT

The Claimant’s case is to the effect that he is an employee of the Defendants having being so employed in the year 1980 by the 3^rd Defendant; but now currently working under the 1^st Defendant. The Claimant by his pleadings and evidence before this court states that in the year 1998, he applied for leave of absence to contest Councillorship Election of his ward in Nembe Local Government Council. And while approval of the Claimant’s application for leave of absence was pending the Local Government Elections drew closer and the Claimant contested and won the Councillorship position. That at the expiration of the Claimant’s tenure of office, the Claimant applied formally through the 1^st Defendant in 2013 for re-absorption which same was granted. And the Claimant was re-absorbed by the Nembe Local Government Basic Education Authority (1^st Defendant) by a letter of re-absorption dated 04/02/2014 (EXHIBIT CW1 MT002), And consequent upon this, the Claimant was posted to St. Mark’s School 1, Okoroba and he was placed on Salary Grade Level 07 Step 5 and that he is entitled to N53, 140.19 (Fifty Three Thousand, One Hundred and Forty Naira, Nineteen Kobo) per month effective from March, 2014. But that the 2^nd Defendant has refused despite several pleas to heed to his plight by the non-payment of his salaries hence this action and the reliefs sought.

THE CASE OF THE 2^ND DEFENDANT

The 2^nd Defendant’s case as testified by DW1 one Mr. Walton Liverpool, who is also the current Executive Secretary of Bayelsa State Universal Basic Education Board is to the effect that 2^nd Defendant is not the employer of the Claimant. Also that the 3^rd Defendant as alleged by the Claimant as his employer was not in existence in the year 1980 when the Claimant was initially employed. And that the 2^nd Defendant did not receive any letter from the Claimant applying or requesting for leave of absence. That the Claimant only abandoned his job and ventured into politics for several years without any approval, And this amounts to gross misconduct which attracts a dismissal under the Public Service Rules. That the Claimant by the Public Service Rules had already resigned his job when he went and contested for Councillorship position. And also, by the Bayelsa State Universal Basic Education Board (Amendment) Law 2012, the 1^st Defendant does not have the power to recruit, appoint, promote, post, discipline, transfer, deploy, retire or re-absorb staff of the 2^nd Defendant’s Board on Grade Level 7 and above. And that whatever re-absorption done for the Claimant by the 1^st and 3^rd Defendants is illegal, null and void.

THE SUBMISSIONS OF THE 2^ND DEFENDANT

The 2^nd Defendant filed a Written Address dated 16^th February, 2018 and filed on the same date. In it, Learned Counsel set down three issues for determination as follows:

Whether from the totality of the evidence before this Honourable Court, the Claimant has discharged the burden of proof placed on him by law so as to be entitled to the reliefs sought.

Whether the Claimant by proceeding to contest election and actually winning the said election did not automatically resign from service by virtue of the provisions of the public service rules.

Whether the 1^st Defendant is a juristic person who can sue or be sued.

On Issue No. One, it is the submission of the Learned Counsel that from the totality of the evidence (documentary and oral) before this Honourable Court, the Claimant failed to prove his case on preponderance of evidence. There is no credible evidence before this court to entitle Claimant to the reliefs sought. That the law is trite that a party must put forward all materials to support his case. In the case of BIRI VS MAIRUWA (1996) 8 NWLR (Pt. 467) 425 @ 432 paras D – E, the Court of Appeal held that a party who wants to succeed in his case must make available to the court all materials required to support his case, which the Claimant failed to do. A very vital aspect of Claimant’s case was not before this court, that is Claimant’s letter of appointment. Claimant’s alleged letter of posting dated 14/11/1980 which Claimant tendered before this court as his letter of appointment cannot by any stretch of imagination translate to a letter of appointment. This vital piece of evidence touches on the very foundation of the Claimant’s case.

The burden of proof to show that indeed, Claimant is an employee of the Defendants has not been discharged. Cited Section 131 of the Evidence Act 2011. That section 132 of the Evidence Act 2011 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. It is the Claimant’s story that he was employed in 1980 by the 3^rd Defendant as contained in paragraph 3 of Claimant’s Statement on Oath, but the Claimant failed to show his Letter of Appointment. This Honourable Court cannot speculate as to the status of Claimant’s employment when there is nothing before the court. That it is the law that courts are enjoined not to speculate as to the existence of a fact but confine itself to the evidence before it – cited the case of EJEZIE VS. ANUWU (2008) ALL FWLR (Pt. 422) 1005 @ 1017 Ratio 8; ABDULAHI Vs. RAJI (1998) 1 NWLR (Pt 534) 481 @ ratio 4.

It is also the contention of the 2^nd Defendant that the burden of proof placed on the Claimants by law i.e the Evidence Act has not been discharged; and pray this Honourable Court to so hold. That the Claimant who claims to have been re-absorbed by the 2^nd Defendant did not show any letter to that effect. It would interest this Honourable Court to know that Claimant’s letter dated 8/4/2013 for re-absorption was addressed to the 2^nd Defendant. However, the 2^nd Defendant did not re-absorb him, but Claimant was re-absorbed by the Education Secretary of the 1^st Defendant who was to forward the letter to the 2^nd Defendant. A look at the letter dated 8/4/2013, it is addressed to the 2^nd Defendant through the 1^st Defendant, which is an appropriate channel of communication; therefore, the Education Secretary was wrong to have re-absorbed the Claimant without the approval of the 2^nd Defendant, assuming the Education Secretary of the 1^st Defendant had the power to do so. The 2^nd Defendant’s letter dated 13/1/2015 in response to Claimant’s letter also dated 13/1/2015 was perfectly in order.

That by the provisions of Section 4 (1) (b) of the Bayelsa State Universal Basic Education Law 2007, one of the functions of the Board includes – “ the recruitment, appointment, posting, promotion, discipline and transfer of staff on Salary Grade Level 07, and above. Section 4 (1) (f) of the Bayelsa State Universal Basic Education Law 2007 also provides as one of the functions of the Board – “retirement and re-absorption of staff”. It follows therefore, that the re-absorption of staff on Grade Level 7 and above falls within the powers of the Board, (i.e the 2^nd Defendant’s Board).

Section 7 of the Bayelsa State Universal Basic Education Law 2007 creates the Local Government Basic Education Authority while Section 9 of the law sets out its functions, which includes paragraph 9 (i) (h) the appointment, posting, transfer, promotion and discipline of staff on Grade Level 01 – 06; whilst Section 9 (1) (c), provides for making recommendations of posting, transfer, promotion and discipline to the board on the promotion and discipline of staff on Grade Level 07 and above. Further contended that the Claimant under cross examination on 16/1/2018 stated that he was on Grade Level 7 before he went for elections. The clear wordings of Section 9 (1) (b) and ( c) are to the effect that appointment, posting, transfer, promotion and discipline of staff within Grade Level 01 – 06 is a function the 1^st Defendant’s Board, whereas recommendations are made to the 2^nd Defendant’s Board with respect to posting, transfer, promotion and discipline of staff on grade level 07 and above. The education secretary of the 1^st defendant and the 1^st Defendant itself were in error and acted ultra vires its powers when it purportedly re-absorbed the Claimant. It is pertinent to mention that section 9 of the Bayelsa State Universal Basic Education Law 2007 does not give the Local Government Basic Education Authority Powers to reinstate or re-absorb, and the 1^st Defendant through its education secretary, did not show that the power to re-absorb was delegated to it by the Board of the 2^nd Defendant.

The 2^nd Defendant in its pleadings as well as evidence before this court have stated these facts, refers to paragraphs 6, 7 (a – b), 8 and 9 of 2^nd Defendant’s Amended Statements of Defence filed on 27/10/2017 as well as the 2^nd Defendant’s Witness Statements on Oath filed on the same day. That in the light of the arguments made above, 2^nd Defendant pray this Honourable Court to resolve Issue One in 2^nd Defendant’s favour and dismissed the Claimant’s case.

On Issue No.Two, the Claimant under cross examination on 16/1/2018 admitted that he is a civil servant and that his employment is governed by the Public Service Rules. By Rule 030423, of the Public Service Rules 2008, it provides that “Resignation is necessary before seeking elective public office”. Howbeit, any officer wishing to engage in partisan political activities or seek elective public office shall resign his/her appointment forthwith. Rule 030402 (g) provides for acts of serious misconduct to include engaging in partisan political activities. By the clear wordings of Rule 030423, the Claimant resigned his appointment effectively, and forthwith in 1998 or sometime in 1999 he proceeded to vie for an elective public office (the position of a councilor) which by his own admission, he contested under the Peoples Democratic Party and won.

The burden of tendering his resignation rests squarely on the Claimant. The use of the word “shall” in Rule 030423 of the Public Service Rules 2008 connotes mandatoriness and/or compulsion. It is trite law that words in statutes or regulations should be given its plain, ordinary and unambiguous meaning. It is therefore of no moment if the Claimant applied for leave of absence as alleged; the document itself is not even before the court. That assuming but without conceding that the Claimant indeed made an application for leave of absence, it would not avail the Claimant as the Public Service Rules provides for resignation forthwith. The fact of the Claimant’s appointment coming to an end by virtue of the fact that he proceeded to contest an election in to a public office is pleaded at paragraph 5 of 2^nd Defendant’s Amended Statement of Defence, and also given in evidence via 2^nd Defendant’s Witness Statement on Oath. The Learned Counsel pray this Honourable Court to resolve issue two in 2^nd Defendant’s favour and once again, urge this Honourable Court to dismiss the Claimant’s case.

On Issue three, it is the contention of the 2^nd Defendant establishing the 1^st Defendant mentioned above, it is not clothed with the power to sue or be sued but perform its functions subject to the supervision and control of the Board of the 2^nd Defendant, refers to Sections 7 and 9 (2) of the Bayelsa State Universal Basic Education Law 2007. And submit therefore, that the 1^st defendant is not a juristic person that can be sued and is liable to be struck out. Section 1 (2) of the Bayelsa State Universal Basic Education Law 2007 provides that – “The Board shall be a body corporate with perpetual succession and a common seal and may sue or be sued in its corporate name.” From the above provision of Section 1 (2) of the Law, only the Board of the 2^nd Defendant which is created by the law is conferred with juristic personality, and not the Local Government Education Authorities. The fact of the 1^st Defendant not being juristic person was pleaded at paragraph 2 of 2^nd Defendant’s Amended Statement of Defence. Refers to the decision of the Court of Appeal in ZAIN (NIG) LTD Vs. ILORIN (2013) ALL FWLR (Pt. 681) 1518 @ 1520 ratio 2; And that the trite law is well settled that a non juristic person, generally, cannot sue or be sued. Thus, no action can be maintained by or against any person other than a natural person or persons unless such a party has been given by statute expressly or impliedly or by common law. Refers to the authorities of BANK OF BARODA VS IYABALANI (1998) 2 NWLR (PT. 539) 600; CARLEN (NIG) LTD VS. UNIJOS (1994) 1 NWLR (PT. 323) 631.

That it has been held in a plethora of cases that where a trial court finds that a party not known to law has been sued, the proper order to make is one striking out the name of the party. Refers to the case of ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA (DECEASED) VS. EKE-SPIFF (2009) ALL FWLR (PT. 467) 1 @ 21 PARA C.

Finally pray to this Honourable Court to resolve issue three in 2^nd Defendant’s favour and strike out the name of the 1^st Defendant.

THE SUBMISSIONS OF THE CLAIMANT

The Claimant on his part filed his written address dated 15^th February, 2018 and filed on the same date. The claimant submitted two issues for determination as follows:

Whether the re-engagement of the Claimant as a Primary School Teacher by the Defendant through re-absorption letter dated 4^th February, 2014 is not a waiver of the Defendant’s right on the issue of Claimant’s abandonment of his teaching job for political activities.

Whether having regard to the control and supervisory role of the 2^nd Defendant as a principal officer in control of the 1^st Defendant over the performance of his official duties, the 2^nd Defendant will not be vicariously liable for the actionable act of the 1^st Defendant in the discharge of his official duties?

On the First Issue, the Learned Counsel contended that the re-absorption of the Claimant set the pace for a fresh contractual relationship between the Claimant and the Defendants in their employee and employer relationship. The situation could be likened to a mutual novation of the contract of employment as the Defendants voluntarily acceded to a request by the Claimant for re-absorption after his political engagement. Parties are by law bound by the terms of their agreement in their contractual relationship which in the instant case was recreated by the re-absorption letter and subsequent posting of the Claimant to State School Okoroba. Refer this court to the authorities of IDONIBOYE-OBU VS NNPC (2003) 4 MJSC 131 AT 168, PARA G. MBELEDOGU VS ANETO (1996) 2 NWLR (PT. 429) 157 CA where the Court of Appeal held that:

Where one party voluntarily accedes to a request by the other that he should not insist on the precise mode of performance fixed by the contract, the court will hold that he waived his right to insist that the contract be performed in that respect according to its original tenor. A waiver may be oral written or inferred from the conduct even though the provision waived is found in a contract in writing or required to be evidence in writing.

Further submit that from the principle of waiver in the above decided case, the Defendants including the 2^nd Defendant have waived their right to insist or claim that the Claimant abandoned his job for political activities after the re-absorption and effective engagement of the Claimant as a Primary School Teacher of Salary Grade Level 07 Step 5. Also the Defendants including the 2^nd Defendant have waived their right to discipline or even terminate the previous employment contractual relationship as same is extinguished by the re-absorption of the Claimant and cannot be enforced by any court of law. Refer to the case of NNPC VS CLIFCO (2011) 46 (PT. 1) NSCQR 114 AT 151 PER J.A FABIYI JSC.

That, the Defendants by the re-absorption and re-engagement of the Claimant as a Primary School Teacher have waived their right over the previous employment relationship as parties are now bound by the new employment relationship created by the re-absorption and re-engagement letter dated 4^th February 2014 and urge this court to resolve issue 1 in favour of the Claimant.

On the Second Issue, the Learned Counsel contended that it is not in dispute that the Claimant was re-absorbed into the teaching profession as a Primary School Teacher of Salary Grade Level 07 Step 5 by the 1^st Defendant through EXHIBIT CW1 MT002, a letter of approval of re-absorption of the Claimant. It is not also in dispute that before the re-absorption of the Claimant, the Claimant was an employee of the 2^nd Defendant working under the 1^st Defendant but left the teaching job for councillorship elections. Submit therefore, that the thrust of the 2^nd Defendant’s case, when other co-defendant’s conceded to the Claimant’s case is that the 1^st Defendant acted outside his powers as he can only re-absorb a Teacher of Salary Grade Level 06 and not above.

The 2^nd Defendant (DW1) during cross examination admitted that the 1^st Defendant is a Principal Officer of Nembe Local Government office at Nembe. The 2^nd Defendant also admitted during cross examination that he supervised and oversee the activities of the Local Government Offices and that the Local Government Office directives and instructions from him in their day to day activities, the 2^nd Defendant (DW1) further admitted during cross examination that quarterly and annual reports of the activities of the Local Government Offices are rendered to him during every preceding year. Submit that the 2^nd Defendant and the 1^st Defendant’s relationship is that of a principal officer and a subordinate which could be likened to that of master and servant relationship. Further submit that the law establishing the Bayelsa State Universal Basic Education Board placed upon the 2^nd Defendant the responsibility of the day to day administration of the activities of the 1^st Defendant who is subject to the control and supervision of the 2^nd Defendant. Cited Section 4 (4) (3) (b) BAYELSA STATE UNIVERSAL BASIC EDUCATION BOARD (Amendment) Law, 2012; SECTION 9 (1) (K) (2), 26 (1) (2) (a) (b) and (c) of the BAYELSA STATE UNIVERSAL BASIC EDUCATION BOARD LAW, 2007.

It is the submission of the Learned Counsel that assuming not conceding the fact that the 1^st Defendant acted ultra – vires by re-absorbing the Claimant on Salary Grade Level 07 Step 5 contrary to the limitation of the powers of the Local Government Office, it still does not absolved the 2^nd Defendant of liability to the Claimant. Cited FRANCIS GBOLADE VS. JOSEPH OLADEJO (1984) 8 NWLR (Pt. 362) pg. 281.

That an employee is not personally liable for an act he performed on behalf of his employer in course of the performance of his official duties. It is the 2^nd Defendant whom in the instant case is the master or employer of the 1^st defendant that is vicariously by his capacity liable for the act of his employee the 1^st Defendant. Cited JULIUS BERGER (NIG) LTD VS. EDE (2003) 8 NWLR (PT. 823) 526. The Supreme Court defined vicarious liability as a situation which arises when one person takes the place of another, it is an indirect responsibility of an employer for the act of an employee, or, a principal for torts and contracts of an agent, or, liability of a master for the act of a servant committed in course of the performance of his official duties. Cited IFEANYI CHUKWU (OSONDU LTD) VS. SOLEH BONEH NIG. LTD (2000) 5 NWLR, (PT. 656) pg 322 at 366.

That the contention of the 2^nd Defendant that the re-absorption of the Claimant by the 1^st Defendant was done in error, ultra-vires, therefore a nullity is of no moment as same only goes to prove the fault of the 1^st Defendant in the performance of his official duties as a subordinate officer who acted on behalf of his principal the 2^nd Defendant. It is the law that the liability of a master is always predicated on the fault of the servant being proved as done in the instant case. Refers to the cases of IYERE VS. BENDEL FLOUR MILLS NIG. LTD (2001) 7 NWLR (PT. 711) 76; BROOM VS. MORGON (1953) 1 Q.B. 597 at 612.

It is also part of the submission of the Claimant that there is no evidence to show termination of the re-instatement or re-absorption of the Claimant. The 2^nd Defendant on whose directive and instruction the 1^st Defendant acted in his capacity never took up step to formally terminate the re-absorption of the Claimant even as he detected the 1^st Defendant’s ultra-vires act of re-absorption and posting of the Claimant. The 2^nd Defendant’s conduct as a superior principal officer who oversee and control the activities of the 1^st Defendant amounts to ratification or approval of Claimant’s re-instatement or re-absorption as a Primary School Teacher of Salary Grade Level 07 Step 5. Finally, the Claimant urged this court to resolve issue 2 in favour of the Claimant. The 2^nd Defendant did not file any reply on points of law.

COURT’S DECISION

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

“Whether the re-absorption of the Claimant by the 1^st Defendant is valid thereby making the 2^nd Defendant vicariously liable to the act of the 1^st Defendant, And whether taking into the consideration the circumstances of this case, the Claimant has proved his case to be entitled to all or some of the reliefs sought.”

The Claimant contended that he was employed as a Teacher in the year 1980 under the then Rivers State but has not tendered any document (appointment letter) to buttress this assertion. According to his pleadings and evidence before this court, in the year 1998 he applied for leave of absence to contest Councillorship election which he did and won. But he has not placed any document before this court to show that his application for leave of absence was either approved or rejected. But the Claimant went for a sojourn for 14 good years only to resurface in the year 2013 where in a letter dated 8^th April, 2013 and addressed to the 1^st Defendant applied for re-absorption into the teaching system. And by EXHIBIT CW1 MT001 in a letter dated 4^th February, 2014, The said application for re-absorption was approved. And the Claimant was re-absorbed and placed on Salary Grade Level 07 Step 5 from March, 2014 and was subsequently posted to S.M.S 1 Okoroba.

When the salary of the Claimant was not forthcoming, the Claimant now briefed his lawyer who in turn wrote a letter to the 2^nd Defendant dated 13^th January, 2015 and demanded for payment of the Claimant’s monthly salary and salary arrears as evidenced in EXHIBIT CW1 MT002. Thereafter, the 2^nd Defendant hastily on the same date i.e the 13^th January, 2015 replied Counsel to the Claimant in EXHIBIT CW1 MT003 and categorically outlined the discrepancies involved in re- absorbing the Claimant by the 1^st Defendant on Salary Grade Level 07 Step 5. Let me state at this juncture that by the letter of the Claimant dated 8^th April, 2013 and addressed to the 1^st Defendant applying for re-absorption it signifies that the Claimant had accepted the fact that he was out of employment of the Defendants. In fact in the said letter, the Claimant had admitted to the fact that his application for leave of absence was not approved. And its trite that where a person by deeds or words or by conduct made to another a clear and unequivocal representation of a fact with the intention that it should be acted upon, or has so conducted himself that another would, as a reasonable man in his full faculties, understand that a certain representation of fact was intended to be acted upon, and that other person in fact acted upon that conduct or representation, that person who conducted himself in such a manner or made such representation will not be allowed to aver that the representation is not what he presented it to be. See UDE VS OSUJI (1998) 13 NWLR (PT. 580) 1 SC; OYEROGBA VS ALAOPA (1998) 13 NWLR (PT 583) 509 SC. The Claimant is therefore estopped from denying the fact that by his conduct and through the letter which he wrote and addressed to the 1^st Defendant dated 8^th April, 2013 had admitted the non existence of any contract of employment between him and the Defendants.

On the issue of whether the re-absorption of the Claimant by the 1^st Defendant vide EXHIBIT CW1 MT001 is valid, same has been explained by the 2^nd Defendant in EXHIBIT CW1 MT003. And same has also been explained by the Learned Counsel to the 2^nd Defendant in the written address, that by the combined effect of the provisions of Sections 4 (i) (b), 7 and 9 (i) (b) of the Bayelsa State Universal Basic Education Law 2007, The functions of the Board which the 2^nd Defendant is the Head includes recruitment, appointment, posting, promotion, discipline, transfer, retirement and re-absorption of staff from Salary Grade Level 07 and above. While the 1^st Defendant who issued EXHIBIT CW1 MT001 to the Claimant by re-absorbing him only has the powers to recruit, appoint, post, promote, discipline, transfer, retire and re-absorb staff from Salary Grade Level 01 – 06. Assuming that the 1^st Defendant is desirous in re-absorbing the Claimant on Salary Grade Level 07 under any guise, By the provisions of Section 9 of the Bayelsa State Universal Basic Education Law 2007 he can only make recommendation to the 2^nd Defendant and not to act unilaterally. And there is no any evidence to show that the 1^st Defendant did actually sent any recommendation to the 2^nd Defendant with a view to re-absorb the Claimant. And EXHIBIT CW1 MT001 clearly stated that the Claimant was re-absorbed on Salary Grade Level 07 Step 05 which is not within the purview of the 1^st Defendant. The act of the 1^st Defendant is void ab-initio and I so hold.

Learned Counsel to the Claimant also made a heavy weather on the fact that the 2^nd Defendant is vicariously liable for the act of the 1^st Defendant, the 1^st Defendant being an agent or unit of the 2^nd Defendant and also under the supervision of the 2^nd Defendant. In UNION BANK (NIG) LTD VS AJAGU (1990) 1 NWLR (PT. 126) 328 C.A, the Court of Appeal held that the wrongful act of a servant is deemed to be done in the course of his employment if, it is authorized by his master or it is an authorized mode of doing an act authorized by the master. And there is no any evidence lead by the Claimant to show that it was the 2^nd Defendant who instructed or approved the re-absorption of the Claimant by the 1^st Defendant as such I hold that 2^nd Defendant can not be held vicariously liable for the act of the 1^st Defendant. The submissions of the Learned Counsel to the Claimant that the Defendants are bound by the new contractual relationship is a total misconception of law, and we can not term the fresh contractual relationship (even if it exist)as a mutual novation of the contract of employment because the 1^st Defendant acted outside the colours of its office. The contract is void ab-initio as such the cases cited by the Learned Counsel to the Claimant are distinguishable from the case at hand.

Furthermore, the position of the law become rather elementary that a Claimant has the burden of proof to discharge in order to be entitled to positive judicial intervention. That burden is discharged by adducing cogent, credible and admissible evidence which the Claimant failed to do in this respect. Moreover the 2^nd Defendant is not even a juristic person pursuant to Section 7 and 9 (2) of the Bayelsa State Universal Basic Education Law 2007 and also not empowered to re-absorb the Claimant who is on GL 07 by the provision of Section 9 of the law, and as such the act of the 1^st Defendant can never serve as a waiver since the 2^nd Defendant was not even aware when the Clamant was re-absorbed until when counsel to the Claimant wrote EXHIBIT CW1 MT003 to the 2^nd Defendant who now in turn wrote EXHIBIT CW1 MT004 voiding the said act of the 1^st Defendant.

Finally, based on the reasons I adduced ab-initio I felt that the Claimant’s action failed. And the entire case of the Claimant is hereby dismissed for lack of credible, cogent and admissible evidence. Parties are to bear their respective costs.

Judgment is hereby entered accordingly.

HON. JUSTICE BASHAR A. ALKALI

Presiding Judge

Signed