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NWEKE MICHAEL UZOR & 143 ORS. VS EBONYI STATE GOVERNMENT & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: 3rd October 2018   

                                     

SUIT NO. NICN/ABK/01/2018

 

BETWEEN

 

NWEKE MICHAEL UZOR & 143 ORS.                                                

[Suing for themselves and on behalf of concerned

Local Government Health Workers in Ebonyi State]

 

CLAIMANTS

 

 

AND

 

  1. EBONYI STATE GOVERNMENT                                     
  2. ATTORNEY GENERAL EBONYI STATE                          
  3. LOCAL GOVERNMENT SERVICE COMMISSION   

EBONYI STATE

  1. OHAUKWU LOCAL GOVERNMENT                       
  2. ONICHA LOCAL GOVERNMENT                           
  3. EBONYI LOCAL GOVERNMENT                            
  4. OHAOZARA LOCAL GOVERNMENT                       
  5. EZZA SOUTH LOCAL GOVERNMENT                    
  6. ISHIELU LOCAL GOVERNMENT                                              

10.IKWO LOCAL GOVERNMENT                               

     11.IZZI LOCAL GOVERNMENT                                 

     12.ABAKALIKI LOCAL GOVERNMENT                      

     13.EZZA NORTH LOCAL GOVERNMENT

 

DEFENDANTS      

 

REPRESENTATION:

 

Friday Ogazi Esq. with Petrus Elechi Esq. and Joseph Nwanga Esq. for the Claimants

Chidiebere Fidelia Etu-Odo [Mrs.], Principal State Counsel, with Dahiru Lawal Esq., Angel Chiamaka Nwachukwu Esq., Iheremelam Ogbonnia Joseph Esq. and Milicent Sewuese Tashan Esq. for the 1st and 2nd Defendants

Roy O. Umahi Nwaeze Esq. with Nnachiuwa Okoro Esq., John Obini Esq. and Solomon Agbom Esq. and Gold C. Onuora [Ms.] for the 3rd to 13th Defendants

JUDGMENT

 

  1. The Claimants commenced this action by Originating Summons dated 28th February 2018 and claimed against the Defendants as follows:

  1. A declaration that the variation and reduction of the salaries of the Claimants by the Defendants in the circumstance of this case constitutes a breach of contract.

  1. A declaration that the Defendants are bound by the respective contracts of employment as contained in the Collective Bargaining Agreement and Gen 35 to pay the Applicants the CONHESS salary, the same having been incorporated into their contract of service.

  1. A declaration that the “Report of the Exco Committee on the final harmonisation of CONMESS/CONHESS in the Local Government system of Ebonyi State dated 23rd November 2016 is irregular, unlawful, ultra vires and a nullity.

  1. An order of Court quashing or setting aside the directives/resolutions /recommendations contained in the “Report of the Exco Committee on the final harmonisation of CONMESS/CONHESS in the Local Government system of Ebonyi State dated 23rd November 2016 as it relates to the Claimants as same constitute unfair labour practices or actions inimical to the interest and labour relations of the Claimants.

  1. A declaration that the circular from the Head of Service of the Government of Ebonyi State with Ref. No. HOS/PMS/AD.009/V.IV/99 dated 28th November 2016 titled “Report of the Exco Committee on the final harmonisation of CONMESS/CONHESS in the Local Government system of Ebonyi State” is irregular, unlawful, ultra vires and a nullity.

  1. An order of Court quashing or setting aside the directives/resolutions /recommendations contained in the circular from the Head of Service of the Government of Ebonyi State with Ref. No. HOS/PMS/AD.009/V.IV/99 dated 28th November 2016 titled “Report of the Exco Committee on the final harmonisation of CONMESS/CONHESS in the Local Government system of Ebonyi State as it relates to the Claimants as same constitute unfair labour practices or actions inimical to the interest and labour relations of the Claimants.

  1. An order of this Court compelling the Defendants to restore the Claimants to their respective CONHESS salary positions and to the enjoyment of all their benefits and entitlements.

  1. An order of this Court compelling the Defendants jointly and severally to pay the Claimants the sum of N174, 096,224.03 [one hundred and seventy-four million, ninety-six thousand, two hundred and twenty four naira, three kobo] only being the total deductions from the monthly salary for all the Claimants from May 2016 to December 2017 by the Defendants as shown in column E of paragraph 64 of the affidavit setting out the facts relied upon in this case.

  1. An order of this Court restraining the Defendants from further deductions/reductions of the salaries of the Claimants forthwith.

  1. An order of this Court restraining the Defendants from taking any step or action that constitutes unfair labour practices or actions inimical to the interest and labour relations of the Claimants.

  1. N20, 000,000 [twenty million naira] general damages.

  1. Cost of this action.

  1. The Claimants filed with the originating summons an affidavit setting out the facts relied upon deposed to by the 1st Claimant, supporting exhibits and a written address. Upon receipt of the originating summons, the 1st and 2nd and 3rd to 13th Defendants filed separate notices of preliminary objection and counter affidavits together with written addresses. In response to these processes, the Claimants filed a further and better affidavit dated 11th May 2018 and a reply on point of law. In addition, the Claimants filed a counter affidavit to the 3rd to 13th Defendants’ notice of preliminary objection and a joint written address. The applications were heard together on 9th July 2017 and the case was set down for judgment.

 

COURT’S DECISION

  1. I have considered the processes filed in this suit and oral submissions of learned Counsel for the parties. The law is now settled that in civil cases the burden of proof is on the Claimants who assert same. See sections 131[1] and 133[1] of the Evidence Act 2011 and Alhaji Ganiyu M. B. Iseogbekun & Anor. v. Alhaji Sikiru Gberigi Adelakun & Ors. [2013] All FWLR [pt.664] 168 at 188D-E. It is also the law that the Claimants who seek declaratory reliefs have the onerous burden of establishing their entitlement to the reliefs. Evidence which must support a legal right or claim must be overwhelming, total, convincing and credible. The Claimants must succeed on the strength of their case and not on the weakness of the defence. See Isiyaku Musa Jikantoro & 6Ors. v. Alhaji Haliru Dantoro & 6Ors. [2004] 5 SC [pt.11] 1 at 15, Diamond Bank Plc v. Alhaji Usman Yahaya & Anor. [2011] LPELR-4036[CA] at page 27 and Yakubu Wondo & 2Ors. v. Mal. Ibrahim Bello & 2Ors. [2016] LPELR-40824[CA] at page 53. It must be noted, however, that the standard of proof remains the same, that is, proof on a balance of probabilities. The Claimants are only required to show that the law and facts of their case support their claims and cannot rely on the mere admission of the Defendants or absence of defence. See Dr. Kenneth Ojo v. ABT Associates Incorporated & Anor. [2014] LPELR-22860[CA] at page 25.

  1. The 1st and 2nd Defendants took out a preliminary objection to the mode of commencement of the suit and alteration and mutilation of the affidavit In support of the originating summons; and submitted that by Order 3 rules 2[2] and 4 National Industrial Court of Nigeria [Civil Procedure] Rules 2017, the suit should have been commenced by application for judicial review and not originating summons and this failure to comply with the rules deprives the Court of the vires to entertain the matter and relied on Anyanwoko v. Okoye [2010] 41 NSCQR 46. It was also submitted that the alteration in paragraph 12 of the affidavit setting out the facts relied on offends section 117[2] of the Evidence Act 2011 and robs the Court of its power to entertain the suit.

  1. The 3rd to 13th Defendants also raised a preliminary objection to the suit urging the Court to strike out the suit in its entirety or in the alternative strike out paragraphs 1 to 70 of the affidavit setting out the facts relied upon. There are six grounds in support of the objection including that the Court has no jurisdiction to hear the matter; the employees do not have collective right to sue jointly and severally for breach of terms of their contract of employment and that the action is statute barred. The preliminary objection is supported with 12 paragraphs affidavit sworn to by Mr. Solomon Agbom and a written address. Learned Counsel for the 3rd to 13th Defendants raised four issues for determination to wit: [i] whether this action is not statute-barred, stale and strips the Court of jurisdiction? [ii] Whether the Claimants as employees have a collective right to sue jointly and severally for breach of terms of their separate contracts of employment? [iii] Whether paragraphs 1 to 70 of the Claimants’ affidavit setting out the facts relied upon filed in support of the originating summons is not in breach of section 115 of the Evidence Act 2011? [iv] Whether after striking out paragraphs 1 to 70 of the Claimants’ affidavit setting out the facts relied upon for being in breach of section 115 of the Evidence Act 2011, this suit is not liable to be struck out for disclosing no cause or reasonable cause of action? Arguing issue one, learned Counsel submitted that the action is statute-barred and robs the Court of jurisdiction to determine same and referred to Ebere & Ors. v. IMSU & Ors. [2016] LPELR-40619[CA] p.88, Teibogren v. The Governor of Delta State & Ors. [2014] LPELR-23220[CA] 17; Nwankwo & Anor. v. Nwankwo [2017] LPELR-42832 [CA] p.6. and Ibrahim & Ors. v. Yusuf [2016] LPELR-40259[CA] pp16-17. It was submitted that the cause of action accrued either in May 2016, 23rd November 2016 or 6th December 2016 and the suit was commenced on 28th February 2018 more than the three months provided in section 2[a] of the Public Officers Protection Act and section 2[a] of the Public Officers Protection Law, CAP 106, Laws of Eastern Nigeria; and the six months provided in the Local Government Law, CAP 106 Laws of Ebonyi State, 2009. He urged the Court to resolve issue one in favour of the Defendants. On issue two, he submitted that a contract of employment is personal to each employee and that the employees cannot have a collective right to sue jointly and severally for breach of terms of their contract of employment and referred to Bemil Nigeria Limited v. Marcus Emeribe & Ors. [2009] LPELR-8732[CA] p.52 and Bossa v. Julius Berger Plc [2005] 15 NWLR [pt.948] 409 at 429-430. Arguing issues three and four, learned Counsel for the 3rd to 13th Defendants explained that the deponent has not disclosed the position he occupies that would make him have personal knowledge of facts pertaining to people from various places who were employed in the local Government system at various times and submitted that the content of a document can only be proved by its maker or a person who has personal knowledge of the content of such document and referred to First Continental Properties Ltd. v. Divine Triop Ltd [2017] LPELR-42869[CA] p.8. It was also argued that paragraphs 1 to 70 of the Claimants affidavit have no life and do not constitute evidence to sustain the application and also do not have evidential life because it breached section 115 of the Evidence Act and ought to be struck out. He referred to Buhari & Ors. v. Obasanjo & Ors. [2003] LPELR-813[SC] pp 45-46.

  1. In response to the preliminary objections, the Claimants filed a counter affidavit deposed to by Joseph Nwanga Esq. and a written address and raised three issues for determination namely: [i] In view of the facts and circumstances of this case, the state of affidavit evidence and applicable laws and legal principles, is the action of the Claimants statute barred? [ii] Whether the notices of preliminary objection filed by Roy O.U. Nwaeze and the one filed by Fidelia Etu-Odo Esq. in respect of the same set of parties do not constitute an abuse of court process and thus ought to be struck out. [iii] Whether in view of the applicable law and rules of this Court, can the Claimants maintain their action in a representative capacity; the same being an employment matter? On issue one, learned Counsel submitted that the objections lack merit because the injury was a continuous one and referred to Joseph A. Ali v. Prof. Danladi Slim Matawal & 3Ors., Suit no. NICN/ABJ/271/2015. It was also submitted that the limitation provisions of the Public Officers Protection Law and the Local Government Law have been repealed by sections 42 and 44 of the Limitation Law of Ebonyi State and referred to Onu Agha Uduma v. A.G. Ebonyi State CA/E/237/2011. On issue two, learned Counsel submitted that there is no feature that robs this Court of jurisdiction and referred to Order 13 rule 11[1] National Industrial Court of Nigeria [Civil Procedure] Rules 2017. It was further submitted that the submission of the Defendants that a contract of employment is personal to each employee and the employees do not have a collective right to sue jointly and severally is misconceived in the face of the Supreme Court decision in Ukpong v. Commissioner for Finance [2006] 19 NWLR [pt.1013] 187 at 218 and National Electricity Liability Management Ltd. v. Emmanuel Sunday Omotusi & 400 Ors. [2016] 17 NWLR [pt.1541] 314. On issues three and four he submitted that the deponent stated facts within his personal knowledge. On the issues raised by learned Counsel for the 1st and 2nd Defendants he submitted that the matter is properly commenced by originating summons under Order 3 rule 17 and that the action relates to interpretation or construction of instruments and laws governing terms of employment. He submitted that by virtue of Order 3 rule 17[2] National Industrial Court Rules 2017, the Court cannot strike out a suit commenced by originating summons if it raises a substantial dispute of facts but convert it to a complaint. On issue two, he argued that there was no erasure, mutilation or alteration and that the form of an affidavit cannot defeat its content.

  1. I agree with the submission of learned Counsel for the Claimants that there is no erasure or mutilation of the affidavit in support of the originating summons. I have looked at the 71 paragraphs of the affidavit and paragraph 12 in particular but I cannot see any mutilation or erasure. Section 117[2] of the Evidence Act, 2011 deals with erasure, interlineations or alterations made to an affidavit before it is sworn and provides that the alteration shall be attested by the person before whom it is taken, that is, the Commissioner for oaths but does not prescribe a penalty. Section 118 of the Evidence Act 2011 provides that:

“The person before whom an affidavit is taken shall not allow it, when sworn, to be altered in any manner without being re-sworn; and may refuse to allow an altered affidavit to be re-sworn and require instead a fresh affidavit.”

The power to reject an altered affidavit resides with the Commissioner for Oaths or the person before whom the affidavit is taken. At any rate, as I have observed earlier in this judgment, there is no alteration in my copy of the affidavit and section 108 of the Evidence Act 2011 provides, inter alia that “the original or an office copy [of an affidavit] shall alone be recognised for any purpose in the Court.” Learned Counsel’s copy of the affidavit is therefore not material for the purpose of this proceeding. This ground of objection is consequently misconceived and discountenanced. On the mode of commencement of the action, Order 3 rule 17[2] National Industrial Court of Nigeria [Civil Procedure] Rules 2017 provides that “Where in the opinion of the Court, a suit commenced by Originating summons raises substantial issues and dispute of facts, the Court shall not strike out the matter, but may order its conversion to Complaint and direct the parties to file and exchange pleadings and conduct the trial of the case in accordance with the Rules of the Court governing trial.” There is no dispute on the facts or documents tendered by the Claimants. The action seeks interpretation and implementation of documents relating to terms of their employment. In National Electricity Liability Management Limited v. Emmanuel Sunday Omotusi & 400 Ors. [2016] 17 NWLR [pt.1541] 314 at 327, Abubakar, J.C.A., held:

“The law is well settled that originating summons may be employed to commence an action where the issues involved are of construction of a written law, instrument, deed, will, or any other document or questions that are of pure law and law alone where it is unlikely that substantial dispute of facts may arise see: Keyamo v. L.S.H.A [2002] 18 NWLR [pt.799] 605 at 613. Proceedings are commenced by originating summons where the sole or principal question at issue is or likely to be one of construction of a written law, or any instrument made under any written law or deed or will or other document or some question of law where it is unlikely that any substantial dispute of facts will arise.”

  1. The Claimants have demonstrated that the issue before this Court is wholly and exclusively on interpretation and construction of certain documents forming part of their contract of employment. In this circumstance, originating summons becomes appropriate. This objection is misconceived and hereby dismissed. This takes me to the preliminary objection filed by the 3rd to 13th Defendants. The first issue is whether this action is not statute-barred, stale and thus strips the Court of jurisdiction? Learned Counsel relied on section 2[a] of the Public Officers Protection Law CAP 106, Laws of Eastern Nigeria; and the Local Government Law, CAP 106 Laws of Ebonyi State, 2009. First, section 137 of the Local Government Law does not provide for limitation of actions. It provides:

“Where it is intended to commence a suit against any Local Government for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, such suit shall not be instituted within six months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury within six months next after the ceasing thereof.” [Underlining mine] 

Clearly, this section does not prohibit the commencement of an action after six months, but provides that an action shall not be commenced within six months of accrual of the cause of action. The word “within” is defined in the Longman Dictionary of Contemporary English new edition for Advanced Learners at page 2015 as “before a certain period of time has passed” and “during a certain period of time”. I therefore hold that the section does not limit the time for commencement of action against a Local Government but prohibits commencement of an action before the expiration of six months from accrual of the cause of action. The issue of applicability of section 2[a] of the Public Officers Protection Law in Ebonyi State has been laid to rest by the Court of Appeal in the case of Onu Agha Uduma v. A. G. Ebonyi State [2013] LPELR-21267[CA] at pages 36-37. In that case, the Court of Appeal interpreted the effect of sections 42 and 44 of the Limitation Law, CAP 102, Laws of Ebonyi State 2009 and held thus:

“Section 44 of the Limitation Law of Ebonyi State, Cap. 102 Laws of Ebonyi State 2009 specifically repeals the Public Officers Protection Law of Eastern Nigeria, 1963 in the following words: “44. Any enactments relating to the limitation of action which were in force in the State immediately before the commencement of this law shall cease to apply.” Section 42 of the same law provides for time limits for action against the State and Public authorities and officers as follows:- “42. Notwithstanding anything contained in any other enactment or rule of law to the contrary all actions to which this law applies howsoever arising against the State or against any Public authority or officer thereof or any person acting in the stead of such Public authority or officer thereof, for anything done or intended or omitted to be done in pursuance or execution of any such act, duty or authority or in respect of any neglect or default in the execution of any such act or authority shall be commenced within the same period of time after the cause of action arose as if such action were brought by or against a private individual.” The import of the above provision as rightly suggested by the learned counsel for the Appellant is that limitation of time in actions against Public Officers should be calculated as the same period of limitation against private individuals. In other words, the discrimination in the calculation of limitation period which was previously in favour of Public Officers has been removed. In the instant case, even though the cause of action arose on 2nd day of July 2009, the Plaintiff/Appellant’s commenced the action by a writ of summons dated 18/5/2010 after the commencement of the Ebonyi Limitation Law Cap 102 on 23rd October 2009. It follows that the applicable procedure law in this case is the Limitation Law of Ebonyi State and not the Public Officers [Protection] Law, Laws of Eastern Nigeria 1963 as erroneously held by the learned trial judge.”

 

  1. The principle in that case applies with equal force to this case. However, learned Counsel for the 3rd to 13th Defendants argued that the Limitation Law of Ebonyi State is not one of the laws of Ebonyi State in that the Law Reform Committee was by section 20 of its enabling law required to collect and catalogue all the laws of Ebonyi State and the Limitation Law was not one of them. Illuminating as this submission is, it is misconceived. First and foremost, the issue canvassed by Counsel falls outside the jurisdiction of this Court. The interpretative jurisdiction of this Court does not include investigating the process of enactment of a law or questioning the competence of the authority which made the law to make the law. Secondly, the decision of a Court is authority for the law based on the facts it decides. See Central Bank of Nigeria v. Mr. Olasupo Adedeji & 11Ors. [2004] 13 NWLR [pt.890] 226 at 242-243. The Court of Appeal’s decision in Onu Agha Uduma v. A. G. Ebonyi State [supra] on the Public Officers Protection Law of Eastern Nigeria 1963 relates to the law in contention in this case and is final on the point until set aside by the Supreme Court or the Court of Appeal itself. It is a decision that is binding on me and there is no sufficient reason to depart from it. Thirdly, sections 3 and 6 of Ebonyi State Reviewed Laws and Related Matters Law, Cap. 70 Laws of Ebonyi State 2009 which was enacted by the House of Assembly as Law of Ebonyi State of Nigeria No. 008, 2009 validated all the laws compiled by the Law Review Committee. This negates the argument of learned Counsel that the Limitation Law, Cap. 102 Laws of Ebonyi State was smuggled in by the Law Reform Committee and is not a law passed by the House of Assembly of Ebonyi State. This ground of objection fails and it is dismissed.

  1. The next ground of objection is whether the Claimants as employees have a collective right to sue jointly and severally for breach of terms of their separate contracts of employment? I agree with the statement of the law by learned Counsel for the 3rd to 13th Defendants that a contract of employment is personal to an employee and, as a result, employees do not have a collective right to sue for breach of terms of their contract of employment jointly and severally. SeeJoseph Enugunum & Ors. v. Chevron Nigeria Limited [2014] LPELR-24088[CA] at page 23 and Bemil Nigeria Limited v. Marcus Emeribe & Ors. [2009] LPELR-8732[CA] 52. However, there are circumstances when the Court will countenance a representative action by employees. An example is where by the nature of the suit the relief which they seek will be beneficial to all the parties and they are united in that claim [common interest]. In the instant case, the breach of contract complained of relates to the terms of a collective agreement which was allegedly incorporated into the Claimants’ terms of contract affecting their entitlement to payment of CONHESS. Order 13 rule 1 of National Industrial Court of Nigeria [Civil Procedure] Rules 2017 provides:

“All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Claimant[s] as may be found to be entitled to relief and for such relief as the Claimant may be entitled to without any amendment.”

Interpreting a similar provision in Order 12 rule 1[1] of the Federal High [Civil Procedure] Rules 2000, the Court of Appeal in National Electricity Liability Management Limited v. Emmanuel Sunday Omotusi & 400 Ors. [supra] at page 335 held that:

“The learned trial Judge in my humble view clearly stated the settled position of the law, Order 12 rule 1[1] of the Federal High [Civil Procedure] Rules 2000 allows persons with the same cause of action to approach the Court as joint plaintiffs. In the instant case, the interest of the respondents is strictly on the interpretation of government circulars with regards to its application on their terminal entitlements. The law is well settled that where there are no diverse interests of the plaintiffs in a subject matter of an action, but a common interest, it is more convenient, advantageous, cost effective, and prudent to have the issue determined in a single representative action than for each of the Plaintiffs to embark on filing his own action to seek his own relief. Since all the 401 plaintiffs had common interest at the lower Court, they want to seek for interpretation of government circulars, …. The interest of the plaintiffs is strictly to secure judicial interpretation of the circulars. It will not be prudent for each of them to initiate his own suit to secure his own interpretation of the same circular. There is nothing wrong in all the plaintiffs coming together as joint plaintiffs.”

I therefore hold that this action is properly brought by the Claimants in a representative capacity and is in accordance with Order 13 rule 1 of National Industrial Court of Nigeria [Civil Procedure] Rules 2017. Accordingly, this ground fails and it is dismissed.

  1. The third and fourth grounds are whether paragraphs 1 to 70 of the Claimants’ affidavit setting out the facts relied upon filed in support of the originating summons is not in breach of section 115 of the Evidence Act 2011 and whether after striking out paragraphs 1 to 70 of the Claimants’ affidavit setting out the facts relied upon for being in breach of section 115 of the Evidence Act 2011, this suit is not liable to be struck out for disclosing no cause or reasonable cause of action? Learned Counsel did not specify which subsection of section 115 of the Evidence Act 2011 that he is relying on or the offensive paragraphs. In paragraph 4.25 of his written address, he posited that “paragraphs 1, 2 and 3 of the Claimants’ affidavit setting out the facts relied upon tell lies against themselves, especially having regard to the fact that some of the Claimants have disclaimed the suit.” This, with due respect, is not related to section 115 of the Evidence Act. The next statement that the witness has not disclosed the position he occupies to have personal knowledge of the facts deposed to is also not a valid objection because there are documents attached to the affidavit from which the information is derived. Thesedocuments are the source of the facts deposed to by him and the fact that this was not specifically stated does not render the affidavit incompetent or in breach of section 115 of the Evidence Act. See The Executors of the Estate of the Deceased Madam Cathrin Efejuku & Anor. v. Mr. Peter James Aziza & 5Ors. [2013] LPELR-19961[CA] at page 50. The facts relied on in the originating summons are largely documentary and I observe the extensive use of “a community phrase” in some paragraphs of the affidavit emphasising the representative nature of the suit. Examples of this can be found in paragraphs 4, 5, 7, 8, 9, 11 and 18. It is not clear what learned Counsel means by “Paragraphs 1 and 70 of the Applicants’ affidavit in support of the originating summons have no life and do not constitute evidence….” All the 144 Claimants in this suit cannot depose to separate affidavits attaching their respective employment contracts. That would be unwieldy. It suffices that they made available the documents to the 1st Claimant for the purpose of the affidavit. Paragraph 3 of the affidavit in support of the originating summons states “That except otherwise stated all the depositions herein are within my personal knowledge.” There is nothing in the 12 paragraphs counter affidavit controverting this. Section 115 of the Evidence Act 2011 provides:

“[1]    Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.”

“[2]    An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.”

“[3]    When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.”

“[4]    When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.”

I am of the view and, I so hold, that there is a substantial compliance with the above section of the Evidence Act and in the interest of justice that the affidavit should not be struck out. See The Executors of the Estate of the Deceased Madam Cathrin Efejuku & Anor. v. Mr. Peter James Aziza & 5Ors. [supra]. Accordingly, the objection is overruled.

  1. This now takes me to the main issues in this case. The facts of this case are simple. The Claimants are members of the Medical and Health Workers Union of Nigeria, Ebonyi State chapter and sue in a representative capacity for themselves and on behalf of concerned members of Local Government health workers in Ebonyi State. Their grouse is that by Circular with reference no. EB/SSG/M.07/V.V/163 dated 15th March 2011, exhibit E, the 1st Defendant approved full implementation of CONHESS in the State. In furtherance of exhibit E, the 1st Defendant through the office of the Head of Service issued a Circular with reference no. HOS/EPM/0074/68 dated 3rd August 2011 titled “Implementation of the Consolidated Health Salary Structure [CONHESS] and the Associated Allowances in Ebonyi State” exhibit F for the implementation of the salary structure to all health workers in the State. The 3rd Defendant endorsed exhibit F to Chairmen and Coordinators of Local Government Areas and Development Centres respectively for implementation by letter ref: LGSC/EB/S.1/VOL.1/T.1/16A and dated 27th October 2011, exhibit G. Subsequent to this, a meeting was held by the Local Government Chairmen under the auspices of Association of Local Government of Nigeria [ALGON], Medical and Health Workers Union of Nigeria Ebonyi State Council and a representative of the Ministry of Local Government, Chieftaincy Matters and Rural Development resulting in exhibit H, which provided for immediate payment of CONHESS and that all Health Workers in the Unified System of Ebonyi State should receive the consolidated basic salary with hazard allowance for now until the revenue accruing to the Councils improve. In line with exhibit H, the 4th – 13th Defendants commenced payment of CONHESS. Following complaints of abuse over implementation of CONHESS, the Secretary to the State Government by exhibit I clarified the categories of staff entitled to payment of CONHESS. Thereafter, on 27th November 2012, the Ebonyi State Local Government Joint Account Committee constituted a Committee on Harmonisation of payment of the consolidated salary structure for health workers in the unified Local Government system in the State. The Committee submitted its reports, exhibits J1 and J2 wherein it cleared the Claimants as entitled to receive CONHESS. By exhibit K the Ministry of Local Government, Chieftaincy Matters and Rural Development forwarded exhibit J2 to the Chairmen and Coordinators of Local Government Areas and Development Centres respectively for implementation. Arising from further complaints that CONHESS was being paid to non-health professionals, by exhibit EB18, the 3rd Defendant applied to the Governor of Ebonyi State for approval to revert the payment of CONHESS to qualified health professionals only with effect from April or May 2016 in line with the agreement between Government and Health Workers and all existing circulars on the subject matter. Pursuant to the above, the 3rd Defendant from May 2016 stopped payment of CONHESS to the Claimants. Consequently, some of the Claimants from the Social Welfare Department in the Local Government Areas and Development Centres wrote exhibit L to the Governor of Ebonyi State protesting the stoppage and requesting for a meeting with the Governor. There was no response to the letter; meanwhile, the 1st Defendant set up an Exco-Committee on final harmonisation of CONMESS/CONHESS in the Local Government System of Ebonyi State. The Committee in its report, exhibit M, excluded Food Scientific officers and Agric/Veterinary and Social Welfare officers from COMHESS/CONHESS. By exhibit N, the Head of Service conveyed the approval by the Governor of the report of the Exco-Committee on final harmonisation of CONMESS/CONHESS in the Local Government System of Ebonyi State to the 3rd Defendant which by exhibit O endorsed it to the State Local Government Joint Accounts Allocation Committee for implementation, hence this action.

  1. The Claimants raised three issues for determination. Issue oneis whether the Defendants are not bound by the terms regulating the terms of contract of employment as contained in: [i] the Collective bargaining agreement [exhibit H]; and [ii] the respective notification of promotions Gen 35 [exhibits LG1C-LG150C] to pay the Claimants as Local Government health workers the agreed CONHESS salary? If the answer to any of the above is in the affirmative, whether the unilateral variation/reduction of salary and other terms of contract do not constitute a breach of contract? The Claimants urged the Court to answer the question in the affirmative.

  1. It was submitted that contractual terms are sacrosanct and parties to a contract of employment are bound by its terms. On construction of exhibit H, learned Counsel for the Claimants submitted that it is obvious from the plain words used in the agreement that the parties agreed that CONHESS should be paid to Local Government health workers including the Claimants and urged the Court to give the words its simple and ordinary grammatical meanings and referred toUnion Bank of Nigeria v. Ozigi [1993] 3 NWLR [pt.333] 385 and Aderounmu v. Aderounmu [2003] 2 NWLR [pt.803] 1 at 22. Learned Counsel referred to section 9[2] of the Labour Act and submitted that the Defendants are bound to comply with terms of agreement entered into by its agents and explained that the Defendants complied with the terms of the agreement from December 2011 to April 2016 before it unilaterally stopped payment of CONHESS to the Claimants. It was also submitted that the terms of exhibit H were incorporated by necessary implication into the contracts of employment of the Claimants by payment of CONHESS and reflection of this sum in the notifications of promotion, exhibits LG1C – LG150C and accordingly binding on the parties and justiciable and referred to A.C.B. Plc v. Nwodika [1996] 4 NWLR [pt.443] 470, Nwobosi v. ACB [1995] 6 NWLR [pt.404]658 and Savannah Bank of Nig. Plc v. Blessing Fakokun [2002] 1 NWLR [pt.749] 544 SC. On construction of exhibits LG1C – LG150C, learned Counsel submitted that assuming without conceding that the collective agreement is not justiciable and binding on the Defendants, on a proper construction of exhibits LG1C – LG150C, the Defendants are bound to pay the CONHESS salaries to the Claimants. Accordingly, learned Counsel submitted that the measures taken by the 1st Defendant in setting up Exco-Committee which produced exhibit M and using it to vary the terms of contract between the parties is not permissible in law and constitutes a breach of contract and anti-labour practice. He referred to Ilodibia v. Nigeria Cement Company Ltd. [1997] 7 NWLR [pt.512] 172 and Federal Radio Corporation of Nigeria & Anor. v. Radio Television & Theatre Workers Union of Nigeria [1978-2006] DJNIC 272 at 273 and urged the Court to answer the question posed in issue 1 and the sub-issue in the affirmative. Relying on Fatima Abrahams v. Drake & Scull Facilities Management [SA] Pty, case no. C 1105/10, he submitted that an employer is not entitled to implement a change in the terms and conditions of employment without negotiating and obtaining the consent of the employee.

  1. In response to the originating summons, the 1st and 2nd Defendants filed a counter affidavit and written address and raised three issues for determination. Learned Counsel took up a preliminary point whether the Claimants have “community of interests” to justify a joint suit. Referring to Part IV, paragraph 23 of the Guidelines for Appointments, Promotion and Discipline he submitted that the conversions of the Claimants from one cadre to another not being backed up with additional qualification is ipso facto illegal and the deponent did not know about this fact because he was not informed by his co-claimants. The plausible inference, he submitted, is that there is no community of interests or similarity of conditions of employment among the Claimants to warrant a joint action. It was also submitted that a contract of employment is personal to each employee and accordingly two or more employees cannot “lump themselves up for the purpose of enforcing a right accruing to them;” and referredto Nigerian Bottling Co. Plc v. Edward [2015] 2 NWLR [pt. 1443] 201 at 206 Learned Counsel referred to section 115[1], [3] and [4] of the Evidence Act 2011 and Edu v. Cawrrd [2001] FWLR [pt.55] 433 and submitted that non-compliance with this mandatory provision will lead to a rejection of the relevant paragraphs of the offending affidavit. It was argued that save the paragraphs affecting the 1st Claimant personally, all other paragraphs affecting the other Claimants offend the above provision of the Evidence Act and ought to be struck out. Arguing their issue one, which is whether payment of the consolidated health salary structure has universal application to all civil servants working in health institutions throughout Ebonyi State whether they are designated health professionals or not, learned Counsel submitted that it is an elementary canon of interpretation that a document should be interpreted in a way that reflects the intendment of the maker; and having not obtained additional qualifications to justify their assumption of the status of professionals, the Claimants cannot earn salaries and allowances meant for health professionals. Arguing their issue three, which is whether the collective bargaining agreement purportedly entered into between the Claimants and the Defendants is binding on and enforceable against the State or respective local Governments without the input of the Commission especially where such had not been incorporated into the contracts of employment; learned Counsel submitted that exhibit H is not enforceable same having not been incorporated into the contract of employment of the employees.

  1. The 3rd to 13th Defendants also filed a counter affidavit and written address. In response to the Claimants’ issue one, it was submitted that the Claimants have the burden to prove their entitlement to the declaratory reliefs and referred toChukwumah v. SPDC [Nigeria] Ltd. [1993] LPELR-864[SC] 74 and Nzurike v. Obioha & Anor. [2011] LPELR-4661[CA] 35. Learned Counsel for the 3rd to 13th Defendants explained that some of the Claimants have disclaimed the suit and this casts doubts on the suit. He argued that the Claimants have not proved their entitlement to CONHESS and that the purported terms regulating the contract of employment of the Claimants in so far as it is based on exhibits H and LG1C – LG150C is baseless because the 3rd Defendant was not a party to exhibit H, the Claimants were not party to exhibit H and the basis of exhibits LG1C – LG150C is fraudulent. It was submitted that a contract affects only parties to it and the 3rd Defendant is not a party to exhibit H and since the Claimants have admitted that the issue of determining salaries of staff of Local Governments in Ebonyi State falls exclusively within its statutory functions, exhibit H cannot be binding on it. It was further submitted that even if the 3rd Defendant is a party to exhibit H, the express stipulation of exhibit H excludes the Claimants because they are not health workers within the definition of that term and referred to Mosby’s Dictionary of Medicine, Nursing & Health Professions, 8th edition. He contended that exhibits J1 and J2 is not in line with the terms of reference of the Committee on the Harmonisation of CONHESS for health workers in the unified local Government system of Ebonyi State. He submitted that the salary that the Claimants are laying claims to were arrived at without regard to the 3rd Defendant in breach of section 59 of the Local Government Law and therefore illegal and relied on Diamond Bank Ltd. v. Ugochukwu [2008] 1 NWLR [pt.1067] 1 at 35 and Onwuka v. Ononuju [2009] 11 NWLR [pt.1151] 174. The Claimants in their reply on point of law pleaded part performance and estoppel.

  1. It is settled law that in an originating summons proceeding, the issues to be addressed are those issues formulated by the Claimants in the originating summons. All arguments not related to the issues and prayers in the originating summons are amiss and go to no issue. SeeNational Judicial Council & 5Ors. v. Hon. Justice Jubril Babajide Aladejana & 2Ors. [2014] LPELR-24134[CA] at page 30. Accordingly, the issues for determination raised by the 1st and 2nd Defendants and the arguments thereon go to no issue and are hereby discountenanced. It is equally a settled principle of law that parties are bound by the terms of the contract they freely entered into. See Nigerian Deposit Insurance Corporation v. Jackson Devos Limited [2014] LPELR-23378[CA] at page 45. The Claimants forcefully urged the Court to hold that the Defendants are bound by exhibits H and LG1C to LG150C. Exhibit H is a collective agreement and by its title it is “An agreement between Government and Medical and Health Workers Union of Nigeria, Ebonyi State Council on the implementation of the consolidated health salary structure [CONHESS] to Local Government Health Workers in the State”. Section 47[1] of the Trade Disputes Act, CAP 432 Laws of the Federation defines collective agreement as:

“any agreement in writing for the settlement of disputes and relating to terms of employment and physical conditions of work concluded between –

[a] an employer, a group of employers or one or more organisations representative of employers, on the one hand; and

[b] one or more trade unions or organisations representing workers, or the duly appointed representative of any body of workers; on the other hand.”

A collective agreement is ordinarily not enforceable because it is regarded as nothing more than a manifesto for labour relations. In other words, no privity of contract arises between an individual employee and his employer and where the employer breaches a term of the collective agreement resort can only be had to negotiation or strike action. See Union Bank of Nigeria Limited v. Edet [1993] 4 NWLR [pt. 287] 288 at 298-300. However, where a collective agreement is embodied in the conditions of a contract of service whether expressly or by implication, it will be binding on the parties. See The Rector, Kwara State Polytechnic & 3Ors. v. Mr. Ola Adefila & 2Ors. [2006] LPELR-8248[CA] at page 95 and Friday U. Abalogu v. The Shell Petroleum Development Company of Nigeria Limited [2003] LPELR-18[SC] at page 34. Exhibits LG1C to LG150C are promotion letters issued to the Claimants by the 3rd Defendant, which the Claimants allege incorporate CONHESS in line with exhibit H. The Defendants did not controvert this fact. It is safe to assume therefore that exhibits LG1C to LG150C incorporate CONHESS. The terms of the collective agreement are therefore embodied in the Claimants contracts of service by implication and therefore ordinarily binding on the Defendants. The thrust of this action is that the 3rd Defendant stopped payment of CONHESS to the Claimants. The Defendants confirmed the stoppage of payment of CONHESS to the Claimants and justify the action on two grounds: the 3rd Defendant was not a party to exhibit H and the Claimants are not in the category of workers entitled to CONHESS. Arguing the first ground, the Defendants contended that the collective agreement is illegal and thus unenforceable. The illegality stems from breach of section 59 of the Local Government Law, CAP 106 Laws of Ebonyi State 2009 which makes the 3rd Defendant the statutory body responsible for promotion and fixing of the terms and conditions of service including salaries and allowances of the Claimants. Learned Counsel for the 3rd to 13th Defendants relying on the cases of Diamond Bank Ltd. v. Ugochukwu [supra] and Onwuka v. Ononuju [supra], submitted that a contract is illegal where its formation or performance is expressly forbidden by a civil or criminal statute or where penalty is imposed for doing the act agreed upon. It is my considered opinion and I so hold that there is nothing on the face of exhibit H which renders it illegal whether in its formation or performance. Although, the 3rd Defendant was not represented at the meeting which gave rise to exhibit H, this did not render exhibit H illegal. Section 59 of the Local Government Law does not prescribe a sanction for the performance of the 3rd Defendant’s functions by any other organ of government. At any rate, the 3rd Defendant could have opted out of exhibit H but it did not. By issuing exhibits LG1C to LG150C it adopted exhibit H which invariably became binding on it. Section 9[2] of the Labour Act CAP L1, Laws of the Federation makes an employer responsible for the performance of any contract made by any person acting on its behalf. While a principal is not bound by the acts of its agent not expressly authorised, where it adopts that act, it becomes binding on the principal. See the case of Vulcan Gases Limited v. Gesellschaft Fur Industries Gasverwertung A.G. [2001] LPELR-3465[SC] at page 22. By issuing exhibits LG1C to LG150C, the 3rd Defendant adopted the contract made on its behalf by the Ministry of Local Government. Elaborating on the concept of illegality of contracts, Achike, J.S.C., in Pan Bisbilder Nigeria Ltd. v. First Bank of Nigeria Limited [2000] LPELR-2900[SC] at pages 14-15 had this to say:

“A contract is illegal where the subject-matter of the promise is illegal or where the consideration or any part of it is illegal. Without getting unduly enmeshed in the controversy regarding the definition or classification of that term, it will be enough to say that contracts which are prohibited by statute or at common law, coupled with provisions for sanction [such as imprisonment] in the event of its contravention are said to be illegal. There is however the need to make a distinction between contracts that are merely declared void and those declared illegal. For instance, if the provisions of the law require certain formalities to be performed as conditions precedent for the validity of the transaction, without however imposing any penalty for non-compliance, the result of failure to comply with the formalities merely renders the transaction void, but if a penalty is imposed, the transaction is not only void but illegal unless the circumstances are such that the provisions of the statute stipulate otherwise.”

  1. Returning to the case in hand, section 59 of the Local Government Law does not prohibit the making or performance of exhibit H. Assuming we accept for a moment that the formality prescribed by section 59 of the Law is that the 3rd Defendant should initiate and drive any negotiation on salaries and it did not do so in the case of exhibit H, this merely rendered exhibit H voidable at the 3rd Defendant’s election and not illegal. A voidable contract is capable of performance at the election of the party in whose favour the right subsists. SeeBrewtech Nigeria Limited v. Folageshin Akinnawo & Anor. [2016] LPELR-40094[CA] at page 18. By issuing exhibits LG1C to LG150C the 3rd Defendant waived the non-compliance of the condition precedent. However, section 59 of the Local Government Law imposes a statutory duty on the 3rd Defendant to fix salaries and wages; and if in the performance of its functions it observes a distortion in implementation of government policy, it is my respectful view that it is within its powers to correct it. See Alhaji Chief A.R.O. Sanusi v. Alhaji Ibrahim Ayoola & Ors. [1992] LPELR-3009[SC] at pages 19-20 and section 10[2] of the Interpretation Act. In Emirate Airline v. Federal Republic of Nigeria & 4Ors. [2104] LPELR-24135[CA] at page 50, Oseji, J.C.A., posited that:

 

“Where a statute has prescribed the mode of performing a duty or taking a particular action, it will be an anomaly to condone or adopt any other method to the contrary whether done deliberately or by inadvertence. It will be improper to insist that such anomalous situation should be acted upon by a Court in reaching its decision.”

Consequently, I am of the considered opinion that if acting through exhibits EB18 and O, the 3rd Defendant corrects the perceived irregularities in exhibits H and LG1C to LG150C, it cannot be subject to any scrutiny. The overriding consideration is that the parties entitled to benefit from CONHESS pursuant to exhibit F are paid their due salaries. If the Claimants satisfy the conditions specified in exhibit F, they become entitled to CONHESS; but if they do not, they will be excluded. If exhibit H erroneously incorporated the Claimants into CONHESS, it would be wrong to allow the anomalous situation to continue. Learned authors of Mosby’s Dictionary of Medicine, Nursing & Health Professions, 8th edition, referred to by learned Counsel for the 3rd to 13th Defendants, defines health professional as “any person who has completed a course of study in a field of health, such as a registered nurse, physical therapist, or physician. The person is usually licensed by a government agency or certified by a professional organisation.” Looking at the evidence before me, there is nothing to show that the Claimants are health professionals and thus entitled to CONHESS in line with exhibit F. For this reason, the cases of S. O. Ilodibia v. Nigerian Cement Company Limited [supra] and Fatima Abrahams v. Drake & Scull Facilities Management [SA] Pty are not applicable to the peculiar facts of this case due to a fundamental irregularity in the implementation of exhibit F which gave rise to exhibits H and LG1C to LG150C. Accordingly, I answer issue one and the sub-issue in the negative.

  1. This takes me to issue two, which is whether from a holistic interpretation and a proper construction of the statutes governing the terms of employment of the Claimants particularly S.59[a], [c], [d][ii], [iii], S. 61[i], [ii] and section 63 of the Local Government Law Cap. 106, section 210[1] and [2] of the 1999 Constitution is the constitution of the Exco-Committee by the 1st respondent to determine petitions dealing on salaries and emoluments of the Claimants and determinations and recommendations of the Exco-Committee as contained in exhibit M not contrary to the provisions of the above stated provisions of the Local Government Law and the 1999 Constitution? In arguing this issue learned Counsel for the Claimants submitted that where words used in statute are clear and unambiguous the Court should give them their ordinary, natural and literal meaning in order to establish the intention of the law maker. Flowing from this, he submitted that a proper interpretation of S.59[a], [c], [d][i], [ii] will make it clear that the section confers the right to regulate and determine the labour rights of employees of Local Governments on the 3rd Defendant. This includes the right to determine petitions in respect of appointments, promotions and the right to provide for applicable salaries. It was thus submitted that it is a flagrant usurpation of the powers of the 3rd Defendant for the Committee to have been composed to determine such petition and thus ultra vires. It was further submitted that the recommendation of a Committee that offends legal provisions cannot be allowed to stand. Responding to this argument, learned Counsel for the 3rd to 13th Defendants referred to paragraphs 4[6], [7], [8], [12], [13], [14], [15], [16] and [22] of their counter affidavit and submitted that the 3rd Defendant acted within its powers in section 59 of the Local Government Law. I have read the provisions of the Local Government Law and the counter affidavit of the 3rd to 13th Defendants particularly exhibits EB 17 and EB18. It is obvious from exhibit EB18 that the 3rd Defendant initiated the process of constitution of the Exco-Committee. Section 59 of the Local Government Law did not specify how the 3rd Defendant is to discharge its functions or exercise its powers. Section 10[1] of the Interpretation Act provides that “Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.” Sub-section 2 provides that “An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.” It is a truism that the Local Government system though a third tier of government is supervised by the State Government. See section 7[1] and [6][b] of the Constitution of Federal Republic of Nigeria, 1999 and paragraph 2[d] of the Fourth Schedule to the Constitution. From exhibits M, N and O, it is clear that the recommendation of the Exco-Committee passed through the established channels and procedure. Exhibits H, J1, J2 and K were not initiated by the 3rd Defendant but were accepted and applauded by the Claimants. By exhibit EB18 the 3rd Defendant started the process leading to exhibits M and O. Thus, I agree with learned Counsel for the 3rd to 13th Defendants that the Claimants are being hypocritical with their criticism of exhibit M. They are blowing hot and cold. Where the decisions favour them even though in breach of section 59 of the Local Government Law they applaud it but where the 3rd Defendant in the exercise of its statutory powers sets up a process to ensure proper implementation of exhibit F, they cry foul. There is nothing before me to show that in the implementation of exhibits M, N and O, those entitled to CONHESS under exhibit F in the unified Local Government service of the State have wage disparity. Apart from exhibits LG138C and LG138D, there is nothing before me to show that the Claimants’ salaries have been altered to their disadvantage in breach of section 210[2] of the 1999 Constitution and sections 61 and 63 of the Local Government Law. Exhibits LG138C and LG138D are not representative of the case of the other 143 Claimants to justify the grant of the prayer sought. In the circumstance I return a negative answer to issue two and hold that from a holistic interpretation and proper construction of the statutes governing the terms of employment of the Claimants particularly S.59[a], [c], [d][ii], [iii], S. 61[i], [ii] and section 63 of the Local Government Law Cap. 106, section 210[1] and [2] of the 1999 Constitution, the constitution of the Exco-Committee by the 1st Defendant to determine petitions dealing on salaries and emoluments of the Claimants and determinations and recommendations of the Exco-Committee as contained in exhibit M is not contrary to the provisions of the above stated provisions of the Local Government Law and the 1999 Constitution.

  1. Issue three is whether the findings and recommendations of the Exco-Committee as contained in exhibit M as it affects the Claimants and its implementation by the Defendants and its agents in the facts of this case is not unconstitutional and thus liable to be set aside. Learned Counsel for the Claimants submitted that by virtue of section 36[1] and [2] of the 1999 Constitution, the Claimants are entitled to fair hearing in the determination of any question that affects their civil rights and obligations. In his response, learned Counsel for the 3rd to 13th Defendants submitted that in paragraph 36 of the Claimants’ affidavit in support the Committee set up by the Ministry of Local Government, Chieftaincy Matters and Rural Development cleared them as entitled to CONHESS package and that the Commissioner’s Committee is inferior to the Exco-Committee and the latter could set aside the report of the former. It was further submitted that the Claimants’ CONHESS-based promotions were paid till April 2016 after which it was stopped and they reverted to their previous salaries which they continued to receive until February 2018 when they initiated this action. Relying onEkeagwu v. Nigerian Army [2010] 16 NWLR 419, he submitted that the Claimants’ acceptance of the salaries they received from May 2016 rendered the reversion to the pre-CONHESS based salaries mutual. He also referred the Court to paragraph 7 [a] and [b] of the counter affidavit. The Claimants did not controvert the facts set out in that paragraph. Learned Counsel further submitted that the Claimants became entitled to CONHESS salary in breach of section 59 of the Local Government Law and relied on Emirate Airline v. Federal Republic of Nigeria & 4Ors. [supra] at page 50. First, it must be noted that fair hearing is not a magic wand wielded by a litigant in an attempt to overturn administrative decisions considered unfavourable to him or a panacea for resolution of all domestic industrial disputes. The requirement of natural justice, of which fair hearing is the fulcrum, must depend on the circumstances of the case, the nature of the inquiry, the rules under which the party is acting and the subject matter that is being dealt with. See Stephen O. Adedeji v. Police Service Commission [1968] NMLR 102 at 107. Much judicial time and litigation expenses will be saved if learned Counsel make this distinction. It is not every proceeding or dispute that learned Counsel waves the banner of fair hearing. Fair hearing is a potent instrument that must be guarded jealously and deployed cautiously. The counsel of my Lord, Oseji, J.C.A., in Emirate Airline v. Federal Republic of Nigeria & 4Ors. [supra] at page 50 is instructive. The learned jurist said: “Where a statute has prescribed the mode of performing a duty or taking a particular action, it will be an anomaly to condone or adopt any other method to the contrary whether done deliberately or by inadvertence. It will be improper to insist that such anomalous situation should be acted upon by a Court in reaching its decision.” There is nothing in section 59 of the Local Government Law or any other section of the law that mandates the 3rd Defendant or any of the Defendants to consult with the Claimants in fixing their salaries. The determination of wages in the unified Local Government Service is a statutory duty and the responsibility of the 3rd Defendant. The introductory paragraph of exhibit M reads: “Following the approval of the report of the screening of Local Government Health Workers for the purpose of payment of CONMESS/CONHESS by the Ebonyi State Ministry of Health on the 12th of August 2016, an exco-committee was set up by His Excellency….” This shows that the actions taken were not arbitrary. There was due process taken in determining the beneficiaries of CONHESS. Furthermore, acceptance of pre-CONHESS salary by the Claimants from May 2016 to February 2018 makes the reversion mutual. See Ex-Capt. Charles C. Ekeagwu v. The Nigerian Army & Anor. [2010] LPELR-1076[SC] at pages 22-23 Accordingly, I answer issue three in the negative. The findings and recommendations of the Exco-Committee as contained in exhibit M as it affects the Claimants and its implementation by the Defendants and its agents in the facts of this case is not unconstitutional and thus not liable to be set aside.

  1. Let me now go to the reliefs sought by the Claimants. Relief one seeksa declaration that the variation and reduction of the salaries of the Claimants by the Defendants in the circumstance of this case constitutes a breach of contract. Arising from the resolution of issue one above this relief fails and it is dismissed.

  1. Relief two is for a declaration that the Defendants are bound by the respective contracts of employment as contained in the Collective Bargaining Agreement and Gen 35 to pay the Applicants the CONHESS salary, the same having been incorporated into their contract of service. Arising from the answer to issues two and three above, by section 59 of the Local Government Law, the responsibility for determining issues of salaries and promotions of the Claimants inheres in the 3rd Defendant. It is my considered opinion that if the 3rd Defendant identifies an error in the implementation of CONHESS as specified in exhibit F, it has the statutory duty to correct it. The fact that an error or breach occurred previously is not a justification for continuation of the breach. See the obiter ofOseji, J.C.A., in Emirate Airline v. Federal Republic of Nigeria & 4Ors. [supra] at page 50. It will be improper to insist that such anomalous situation should be acted upon by a Court in reaching its decision. The Claimants will be entitled to CONHESS for so long as they come within the category of officers specified in exhibit F, which is the basis of payment of CONHESS to designated Local Government workers in Ebonyi State. Accordingly, for the reasons given above I hold that the Defendants are not bound to pay the Claimants CONHESS salary even though same has been erroneously incorporated into their contract of service. Relief two fails and it is dismissed.

  1. Relief three is for a declaration that the “Report of the Exco Committee on the final harmonisation of CONMESS/CONHESS in the Local Government system of Ebonyi State dated 23rd November 2016 is irregular, unlawful, ultra vires and a nullity. The words “ultra vires” mean beyond, above or outside the power conferred on the person undertaking or exercising it. It is an act which is invalid because it has been done in excess of authority conferred by law. SeeApostle Ekanem R. Ekanem & 2Ors. v. Bishop Rowland O. Obu [2010] LPELR-4084[CA] at page 13. It is agreed by the parties that the 3rd Defendant has the statutory responsibility to determine the wages of the Claimants. It has also not been disputed that the 3rd Defendant initiated the process that led to the setting up of the Exco-Committee whose report the Claimants are challenging. See exhibit EB18. If the 1st Defendant acting pursuant to exhibit EB18 to establish the Exco-Committee and the Exco-Committee made its report which was forwarded to the 3rd Defendant, it will be preposterous to hold that the act is irregular, unlawful and ultra vires the Exco-Committee. In this instance, the Exco-Committee was acting on a delegated authority and its findings and recommendations are advisory and non-binding. It is within the province of the Defendants, particularly the 3rd Defendant, to accept or reject it. See Alhaji M. K.  v. First Bank of Nigeria Plc & Anor [2100] LPELR-8971[CA] at page 32. Relief three also fails and it is dismissed.

  1. Relief four is for an order of Court quashing or setting aside the directives/ resolutions/recommendations contained in the “Report of the Exco Committee on the final harmonisation of CONMESS/CONHESS in the Local Government system of Ebonyi State dated 23rd November 2016 as it relates to the Claimants as same constitute unfair labour practices or actions inimical to the interest and labour relations of the Claimants. There must be a declaration of right in favour of the Claimants before an order can be made quashing or setting aside the directives/resolutions/recommendations contained in the “Report of the Exco Committee on the final harmonisation of CONMESS/CONHESS in the Local Government system of Ebonyi State. Once the principal relief sought is refused, no order incidental to the principal relief can be granted. SeeBenjamin Ukelere v. First Bank of Nig. Plc [2011] LPELR-3869[CA] at page 29. No such declaration was made in favour of the Claimants. This relief is only available where the act complained about is unlawful or ultra vires. Having held that the act is intra vires the Committee the remedy of quashing is not available to the Claimants. This relief fails and it is dismissed.

  1. Relief five is for a declaration that the circular from the Head of Service of the Government of Ebonyi State with Ref. No. HOS/PMS/AD.009/V.IV/99 dated 28th November 2016 titled “Report of the Exco Committee on the final harmonisation of CONMESS/CONHESS in the Local Government system of Ebonyi State” is irregular, unlawful, ultra vires and a nullity. Flowing from the resolution of issues two and three of the Claimants’ issues for determination and reliefs two to four above, it goes without saying that this relief is not grantable. The Head of Service is an agent of the 1st Defendant and acted within his delegated authority. As has been established, the setting up of the Exco-Committee is at the instance of the 3rd Defendant which has the statutory authority to fix wages of the Claimants. Section 10[2] of the Interpretation Act provides that an enactment which confers power to do an act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it. It is my considered opinion and I so hold that the powers conferred on the 3rd Defendant includes power to seek the intervention of the 1st Defendant in deserving cases. Where the 1st Defendant intervenes as requested, any act done in furtherance of that intervention within the powers conferred on the 3rd Defendant cannot be unlawful. Relief five therefore fails and it is dismissed.

  1. Relief six is for an order of Court quashing or setting aside the directives/ resolutions/recommendations contained in the circular from the Head of Service of the Government of Ebonyi State with Ref. No. HOS/PMS/AD.009/V.IV/99 dated 28th November 2016 titled “Report of the Exco Committee on the final harmonisation of CONMESS/CONHESS in the Local Government system of Ebonyi State as it relates to the Claimants as same constitute unfair labour practices or actions inimical to the interest and labour relations of the Claimants. Thisclaim flows from and is dependent on the success of relief five above. There must be a declaration of right in favour of the Claimants before an order can be made quashing the directives/resolutions/recommendations contained in the circular from the Head of Service of the Government of Ebonyi State with Ref. No. HOS/PMS/AD.009/V.IV/99 dated 28th November 2016 titled “Report of the Exco Committee on the final harmonisation of CONMESS/CONHESS in the Local Government system of Ebonyi State. Once the principal relief sought is refused, no order incidental to the principal relief can be granted. See Benjamin Ukelere v. First Bank of Nig. Plc [supra] at page 29. No such declaration was made in favour of the Claimants. This relief also fails and is dismissed.

  1. Relief seven seeks an order of this Court compelling the Defendants to restore the Claimants to their respective CONHESS salary positions and to the enjoyment of all their benefits and entitlements. This relief is not available to the Claimants. The Claimants forcefully argued that the 3rd Defendant has the statutory duty to determine issues relating to the wages and promotion of the Claimants. If the 3rd Defendant acting within its statutory powers determined the wages of the Claimants based on their qualifications and job specifications, this Court cannot reverse it. Moreover, as has been observe above, it will be improper to urge the Court to enforce an act that was done in error and in breach of government policy, exhibit F. SeeEmirate Airline v. Federal Republic of Nigeria & 4Ors. [supra] at page 50. This relief fails and it is dismissed.

  1. Relief eight seeks an order of this Court compelling the Defendants jointly and severally to pay the Claimants the sum ofN174, 096,224.03 [one hundred and seventy four million, ninety six thousand, two hundred and twenty four naira, three kobo] only being the total deductions from the monthly salary for all the Claimants from May 2016 to December 2017 by the Defendants as shown in column E of paragraph 64 of the affidavit setting out the facts relied upon in this case. Based on all I have said above and the fact of withdrawal of six Claimants from the suit this relief cannot be granted. The Claimants have not proved that this amount is due and owing to them. It is a well-known principle of law that a court of law does not embark on a jamboree of fact finding. See Peugeot Automobile Nigeria Limited v. Saliu Oje & 3Ors. [1997] LPELR-6331[CA] at page 16. This relief fails and it is dismissed.
  2. Reliefs nine and ten seek restraining orders. These reliefs are in the nature of a perpetual injunction and it is trite law that a perpetual injunction will only be granted in favour of the Claimants if they have satisfied the Court that they have a legal right to be protected by the Court. SeePa Tayo Ojo v. Chief Jerome Akinsanoye [2014] LPELR-22736[CA] 60 and Prince Rasak Yesufu Ogiefo v. HRH Jafaru Isesele 1 & Ors. [2014] LPELR-22333[CA] 59. In the latter case, Saulawa, J.C.A., held:

“A Court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his case. Perpetual injunction, because of its very nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”

There is nothing before me showing that the Claimants have a legal right to be protected by an order of injunction. These reliefs fail and are hereby dismissed.

  1. Reliefs eleven and twelve are for damages and cost of this action. General damages are within the discretion of the Court to grant. However, general damages are not granted in vacuo. Once a breach of contract is established, damages follow. General damages are thus losses that flow naturally from the adversary and it is presumed by law. It is awarded by the Court to assuage a loss caused by an act of the adversary. SeeCameroon Airlines v. Mr. Mike E. Otutuizu [2011] LPELR-827[SC] at page 31. The Claimants failed in all the reliefs sought. In the circumstances I do not see any justification to award general damages. Cost follows events. The Claimants action is unmeritorious and as a result they are not entitled to cost. See Order 55 rule 5 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. The order for general damages and costs are refused.

  1. Before I conclude, I would like to observe that exhibits EB 1to EB16 form part of the record of this Court and I am entitled to look at documents in the case file. SeeJoshua Dada Abiodun & Ors. v. Attorney General of the Federation [2007] LPELR-8550[CA] at page 60.

  1. On the whole, this suit fails in its entirety and it is hereby dismissed. There shall be no order as to costs. Judgment is entered accordingly.

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

3/10/18

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