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National Industrial Court

Oche Unogwu John & 9 ors -VS- Governor of Benue State & 2 ors

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

HOLDEN AT MAKURDI

BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA.

 

DATE: 4TH DECEMBER, 2019                                             SUIT NO. NICN/MKD/28/2017

 

BETWEEN:

 

  1. OCHE UNOGWU JOHN
  2. EJEH DAVID AGADA
  3. IKYAAHEMABA ROBERT
  4. MKAANEM ORAHUNGURGA
  5. AKPA ANTONIA KSAEV HEMBA
  6. IORGILIM KUMADEN LOIS                        ………………CLAIMANTS
  7. IKYOIVE VIVIAN NGUEMO
  8. IBER STELLA KUMADEN
  9. OCHE BESSIE ENOCHE

10.IJALE AUGUSTINE OGO

(For themselves and 580 other Graduate

Internship Scheme (GIS) beneficiaries of

The Benue State Subsidy Re- investment

Empowerment program (SURE- P)).

 

AND

 

  1. GOVERNOR OF BENUE STATE
  2. GOVERNMENT OF BENUE STATE      ………………DEFENDANTS
  3. ATTORNEY- GENERAL OF BENUE

STATE

 

 

REPRESENTATION:

Ocha P. Ulegede with D.A. Awuru and P.O. Onah for the Claimants.

S.C. Egede (DCL) Benue State Ministry of Justice for the Defendants.

 

JUDGEMENT

 

The Claimants vide a Complaint dated and filed on 11th April 2017 seek the following reliefs against the Defendants as contained in paragraph 25 of the Statement of Facts;

 

“1.     Declaration that by virtue of their engagement in the Graduate Internship Scheme (GIS) of the Sure- P Programme of Benue State, the Claimants are entitled to the payment of their monthly stipends of N20,000.00 (Twenty Thousand Naira) each from January 2015-date.

  1. Declaration that by virtue of the Head of Service letter Reference No. S/HCS/BN/132/11/169 dated 7th May 2015 addressed to the Claimants, Claimants were absorbed into regular staff of the Benue State Civil Service with effect from the 7th May 2015.
  2. Declaration that the Claimants are entitled to be paid their monthly stipends of N20,000.00 under the Graduate Internship Scheme (GIS) pending the time the Government works the details of their new status of regular staff of the Government in the civil service into which they have been absorbed.
  3. Declaration that each of the Claimants is entitled to the payment of N20,000.00 monthly stipends and cumulatively to N11,800,000.00 every month.
  4. Order of court directing the Defendants to pay the Claimants the total of N330,400,000.00 (Three Hundred & Thirty Million, Four Hundred Thousand Naira) only, being the arrears of their monthly stipends of N20,000.00 each from January 2015 to April 2017 (28 months) and subsequently from May 2017 and until the Government works the details of their new status and regular staff in the civil service of Benue State.
  5. General damages of N50 million naira only.
  6. 10% interest on the judgment debt with effect from 30th April 2017 till judgment and until the entire judgment debt is paid up. the 1st -43rd Claimants are entitled to their salaries for all work done until their disengagement by the Defendants which stands totally at the sum of N8,482,000 (Eight Million, Four Hundred & Eighty- Two Thousand Naira) only in May 2015.
  7. The sum of N645,000 (Six Hundred & Forty- Five Thousand Naira) only, representing their cost of retaining a counsel to defend them.
  8. Interest on the sum outstanding at N8, 482,000 (Eight Million, Four Hundred & Eighty- Two Thousand Naira) only.
  9. Cost of this suit.”

 

The Claimants filed their statement of facts and accompanying processes in line with the provisions of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. They also filed a reply to the Defendants’ statement of defence on 11/5/2018 via a motion on Notice. I observe from the record that the Claimants filed a motion on 11/5/2018 but dated 2/5/2018. The motion was for extention of time to file the claimants’ reply to the statement of defence out of time. However, I have been unable to see from the record of the court when that motion was taken and granted. When the matter was fixed for mention on the 22/11/2018, claimants’ counsel informed the court that pleadings were in and there was no pending application.

 

The Defendants with leave of the court granted on 12th October 2017 entered a memorandum appearance on 7th June 2017 and filed a statement of defence with accompanying processes thereof.

 

The matter proceeded to trial on 6th February 2019 and the 1st Claimant, Oche Unogwu John testified as CW1 for himself and on behalf of the other Claimants and tendered the following as Exhibits;

  1. Exhibits OUJ1-OUJ590- Letters of Engagement of each Claimant.
  2. Exhibit OUJ59- Letter by the Defendants dated 7/5/2015

iii.            Exhibit OUJ60- Hand over speech by the Governor delivered on 29/5/2015.

  1. Exhibit UJ61- Claimants’ letter to the Benue state Governor dated 15/7/2015.
  2. Exhibit OUJ62- Claimants’ Solicitor’s letter dated 16/1/2017.
  3. Exhibit OUJ63- Newspaper Publication of monthly allocation from Federal Government dated Feb – May 2014.

 

The CW1 was crossed examined by the Defendants’ counsel and closed their case. DW1, James Ode testified on behalf of the Defendants and tendered exhibit OUJ64-CTC of circular dated 13/11/2015. The Defendants equally closed their case after DW1 was cross examined by Counsel to the Claimants. Final written addresses of parties filed by their respective counsel were adopted on 9th October 2019.

 

CASE OF THE CLAIMANTS

 

By the pleadings before the court, the Claimants stated that they were engaged as Graduate Internship Scheme under the Subsidy Re- Investment Empowerment Programme in Benue State sometime in 2014. According to the Claimants, each of them was to be paid a stipend of N20,000.00 per month. However, in January 2015, this stipend was stopped without any reason and that the then Governor of Benue State directed that they be absorbed into the Benue State Civil Service. This was not done hence the Claimants are before the court seeking payment of the arrears of their monthly stipend and also payment of salaries as civil servants.

 

CASE OF THE DEFENDANTS

 

The Defendants have vehemently denied these assertions by the Claimants and stated that the Subsidy Re- Investment Empowerment Programme was funded by the Federal Government thus in January 2015, the Federal Government stopped funding the scheme and eventually scrapped same due to unavailability of funds. The Defendants also stated that the Benue State Government though desirous of absorbing the Claimants, could not complete the process owing to the financial strain on the state hence the Claimants were not absorbed into the State Civil Service.

 

DEFENDANTS’ SUBMISSIONS

 

Counsel to the Defendants, Simon C. Egede, Esq raised three issues for determination in their final written address to wit;

“1. Whether this action is maintainable in law as to warrant the grant of the reliefs sought by the Claimants as they are neither employees nor workers of the Benue State Civil Service.

  1. Whether Claimants have been absorbed into the Benue State Civil Service even when they have not been issued appointment letters.
  2. Whether the Claimants are entitled to the arrears of stipends claimed from the time the programme was discontinued for lack of funds to date.”

 

On issue 1, counsel submits that the competence of the court to adjudicate on a matter depends on the conditions enunciated in the cases of Ugbu V. Ikerechi (2013) All FWLR (pt. 663) 1975, Madukolu V. Nkemdilim (1962) 1 All NLR (pt. 4) 587 and Ezeobi V. Daily Times (2013) All FWLR (pt. 672) 1778. That is proper constitution of the court as regards the number and qualification of members of the bench, the subject matter and the case initiated by due process of law.

Counsel argues that the suit of the Claimants has satisfied two conditions to confer jurisdiction except that relating to subject matter of the reliefs claimed as the reliefs of the Claimants fall completely outside the ambit of Section 254C (l) (k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel therefore submitted that the Honourable Court lacks the jurisdiction to entertain the claims of the Claimants as the letter of engagement of the Claimants is titled “Offer of place on the Benue Sure- P”. Thus the Claimants were never in the employment of the Benue State Government nor workers in the Benue State Civil Service or Public Service but were placed in the programme as interns on a monthly stipend of N20,000.00.

 

Counsel in quoting the 9th Edition of the Black’s Law Dictionary on page 890 defines an intern to be “an advanced student or recent graduate who is apprenticing to gain practical experience before entering a specific profession”.

Counsel contends that the Claimants were never intended to be workers of the Benue State Civil Service or Public Service and urged the court to take judicial notice of the fact that employees and workers of the Government are always employed in a particular position and salary grade level commensurate with their qualifications and experience. Thus the action of the Claimants is incompetent and should be dismissed.

 

On issue 2, Counsel submits that in paragraph 4 of the Statement of Facts dated 10/4/2017, the Claimants admitted that the Benue State Government was experiencing shortfall in funds and decided to discontinue five of the six schemes being operated except the Graduate Internship Scheme to which they belong and they were subsequently converted to regular staff in the State Civil Service with effect from 7/5/2015. According to Counsel, this fact was admitted by the Defendants in paragraph 1 of their Statement of Defence and by that the Claimants were no longer under the Graduate Internship Scheme with effect from 7/5/2105. Counsel contends that the Claimants were not issued letters of employment to absorb them into the State Civil Service. The Claimants also admitted in paragraph 13 of their Statement of Facts that they have not been issued formal letters to that effect till date. Therefore, the relief in paragraph 25 (2) of the Statement of Facts is misconceived and lacking in merit.

 

On issue 3, Counsel submits that the Defendants have in paragraphs 2, 5 and 6 of their Defence that the Graduate Internship Scheme of Benue State SURE- P was discontinued in May 2015 for non- remittance of funds from the Federal Government. Thus it was to ameliorate the sufferings of the Claimants that the Head of Service submitted a memorandum to the Benue State Executive Council for absorption of the Claimants into the State Civil Service and subsequent circular. However due to the cost implication and paucity of funds, the approval was never implemented to date and the Claimants were never employed into the State Civil Service. Counsel referred the court to paragraphs 5-7 of the witness statement on oath of James Ode.

According to Counsel, the stipends owed the Claimants is from January 2015 to May 2015 which can be paid when the funds are remitted by the Federal Government. Thus the reliefs claimed in this regard is equally misconceived and lacking in merit and should be dismissed.

Counsel urged the court to answer all the issues raised in the negative and dismiss the claims of the Claimants.

CLAIMANTS’ SUBMISSIONS

 

The Claimants via their counsel, Ocha Ulegede, Esq raised a single issue for determination as to; “whether the Claimants have established their case and are entitled to the judgment of the court granting them the reliefs sought from the court.”

Counsel sought the leave of the court to argue the three issues raised by the Defence Counsel before making submissions on the single issue raised on behalf of the Claimants.

 

Counsel to the Claimants in arguing issues 1 and 2 raised by the Defence submits that this action is maintainable and that the Claimants were absorbed into the Benue State Civil Service by the circular issued by the Defendants dated 7/5/2015 (Exhibit OUJ 59) and the hand over notes between Governor Gabriel Suswam and Dr. Samuel Ortom (Exhibit OUJ60).

 

Counsel also submits that the Claimants’ absorption into the civil service of Benue State as regular staff was completed with the release of exhibit OUJ59 dated 7/5/2015 addressed to all SURE- P participants and that exhibit OUJ59 constitutes the instrument of absorption without a formal letter of engagement. According to Counsel, the Claimants relied on the representation of the Defendants vide exhibit OUJ59 and remained at their places of posting where they were serving under the Graduate Internship Scheme and performed their duties till date.

 

On the 3rd issue raised by the Defence, Counsel submits that the Claimants are entitled to arrears of stipends as claimed.

Counsel submits that by exhibit OUJ59, the Defendants undertook to take over payment of the monthly stipends of N20,000.00 even upon absorption into the State civil service  and that there is nothing from the Defendants to displace exhibits OUJ59, OUJ60 and OUJ63 from the Defendants. Also that exhibit OUJ 64 dated 13/11/2015 has nothing to do with the Claimants as the Claimants have ceased to be under the SURE- P programme since 7/5/2015.

 

Counsel submits that the Defendants have failed to appreciate the true bearing of the Claimants’ case as the Defendants failed to contest the case of the Claimants but rather supported same.

Counsel submits that it is not in doubt that the Government of Benue State participated in the implementation of the SURE- P programme to which the Claimants belong, that due to shortfall of finances the scheme was stopped and about 2,300 persons including the Claimants were absorbed into the regular state civil service with effect from 7/5/2015 and that the absorption was regular by exhibit OUJ59 and the Claimants are owed monthly stipends of 28 months covering January 2015 to April 2017 totaling N330,400,000.00 (Three Hundred & Thirty Million Four Hundred Thousand Naira) only at the time of filing this suit and N11,800,000.00 (Eleven Million Eight Hundred Thousand Naira) only cumulatively monthly from May 2017.

 

Counsel submits that the Defendants admitted that the Claimants have not been paid the monthly stipends of N20.000.00 till date hence the Claimants are entitled to arrears of the stipends and the Defendants are duty bound to pay the arrears until the Claimants are properly graded in the State Civil Service. According to counsel, the circular of 7/5/2015 absorbing the Claimants makes no provision to accept the absorption hence the Claimants have accepted same by conduct as they have remained in their MDAs performing their respective duties to date.

 

Counsel contends further that the Claimants have not been found wanting, have not been queried and there is no letter terminating their absorption and there is no circular displacing that of 7th May 2015 issued by the Defendants.

 

Counsel submits that from the pleadings and evidence before the court, the Defendants have not really contested the case of the Claimants as the Defendants admitted the claims of the Claimants but proceeded on a wrong notion that they discontinued the SURE- P programme hence they are not liable to the claim by relying on exhibit OUJ64 date 13/11/2017. Counsel argues that the Claimants testified through the 1st Claimant and tendered evidence without objection and none of the evidence of the Claimants were contradicted or effectively challenged.

 

Counsel submits that exhibits OUJ59, OUJ60 and OUJ64 are clear and do not require any extraneous interpretation and the principle of interpretation of contents of documents is that the ordinary and clear words used therein be given their plain and ordinary meaning. Citing the cases of Kpiishi Kuusu V. Vanger Udom (1990) LPELR- 1725 (SC), Okotie- Eboh V. Manager & Ors. (2004) LPELR_ 2502 (SC) and Awolowo V. Shagari (1979) 6-7 SC 73. Therefore, exhibits OUJ59 which has been reemphasized by exhibits OUJ60 and OUJ63 are straight forward as to the absorption of the Claimants into the State civil service and payment of their stipends.

Counsel contends that although the circular which is exhibit OUJ59 did not specify any particular salary, it is taken that the Defendants will pay the Claimants the existing stipends of N20,000.00 monthly until any other condition affecting their unconditional absorption as civil servants of Benue State is completed. Thus having represented overly to the Claimants by exhibits OUJ59, OUJ60 and OUJ64 and by keeping the Claimants in the positions and Departments they were working under the SURE- P programme, the Defendants are estopped from contending otherwise. That the principle of estoppel has been restated in the case of Awonusi V. Awonusi (2007) All FWLR (pt. 391) 1642.

 

Counsel submits that the Claimants relied on the unconditional representation and offer made to them by the Defendants vide exhibit OUJ59 dated 7/5/2015 and remained at their duty posts till date. The Claimants in accepting this offer never agreed to work for free and a worker is entitled to payment of his wages.

 

Counsel submits further that there is nothing before the court contrary to the exhibit OUJ59 to counter their absorption as regular staff of the Defendants.

 

Counsel contends that the gravamen of this case is found in exhibit OUJ59 which is documentary evidence that cannot be altered, added to or subtracted. Citing section 128 of the Evidence Act 2011 and the case of Agbareh V. Mimra (2008) All FWLR (pt. 409) 559. That the court has held in the case of Olubodun V. Lawal (2008) All FWLR (pt. 434) 1468 that documentary evidence is the best form of evidence. Citing also Osunbor V. Oshiomole (2009) All FWLR (pt. 463) 1363 and Ojo V. Kamalu (2006) All FWLR (pt. 297) 978.

 

Counsel submits that exhibit OUJ59 served dual purpose by removing those under the Graduate Internship Scheme of the Benue State SURE- P with effect from 7/5/2015 and absorbing them into the workforce of Benue state.

 

Counsel submits that the Claimants have established their case before the court and entitled to the reliefs sought and urges the court to grant same in the interest of justice.

 

DECISION OF THE COURT.

 

From the pleadings filed by the parties and oral evidence of the witnesses on behalf of the parties, the issue to be resolved is, whether the Claimants have proved their claims before the court to be entitled to judgment.

The grouse of the Claimants is that they were engaged as Graduate Internship Scheme under the Benue State Subsidy Re- investment and Empowerment Programme (SURE- P) vide exhibits OUJ1- OUJ590 in 2014 on a monthly stipend of N20,000.00 (Twenty Thousand Naira) only, and they were posted to various Government MDAs. The Claimants stated that they enjoyed this monthly stipends until January 2015 when the Defendants stopped paying their monthly stipends and subsequently conveyed on 7th May 2015 that the Federal Govt. was no longer funding the SURE- P Programme hence the Defendants have resolved to absorb the Claimants among others into the State civil service. See Exhibit OUJ59.

The Claimants via exhibit OUJ59 were informed that the Defendants have resolved to absorb them into the State Civil Service. Exhibit OUJ59 reads;                                          “To all Benue Sure- P Participants

Following the non- release of Sure- P funds by the Federal Government since January 2015 which has led to the non- payment of Sure- P stipends, Government has decided as follows:

  1. That all graduates under the graduate Internship Scheme be absorbed into the Civil Service as regular staff.
  2. That the State Government will take over the payment of the stipends of Sure- P participants on the rest of the schemes. However the transport scheme and training under the skills acquisition scheme are put on hold until the economic situation changes for the better.
  3. These measures are to come into immediate effect, please.

Terna Ahua, mni

Head of Service.”

 

The contents of exhibit OUJ59 though straight forward is an intention of the Defendants to absorb the Claimants into the state civil service. This absorption however was not carried out to conclusion. That, there was no issuance of the letters of employment and subsequent documentation in favour of the Claimants to fully entrench them into the state civil service. Both CW1 and DW1 admitted these set of facts during their evidence in chief and under cross examination. It is settled principle of law that facts admitted require no further proof. See the cases of A.C.B. Ltd V. Oba (1993) 7 NWLR (pt. 304) 183, Chirodo World Ltd V. Total (Nig.) Plc (2001) 16 NWLR (pt. 739) 321 and Mobil Producing Nig. Unltd V. Monokpo (2003) 18 NWLR (pt. 582) 346 at 405.

 

Having established that the exhibit OUJ59 was not finalized by the parties, I need to ask whether this court can compel the Defendants who made the initial offer to formalize the absorption of the Claimants. Before I answer this question, I will consider the defence of the Defendants as regards exhibit OUJ59. From the pleading and evidence elicited via DW1,it shows an admission as to the fact that exhibit OUJ59 was made by the Defendants with the intention to absorb the Claimants since the Federal Government could no longer continue with the scheme. However, the Defendants admitted also that the state government was having difficulty in payment of salaries of the current civil servants and was owing five months salaries hence cannot employ more workers. See paragraphs 6c, 6d and 6e of the statement of defence. The DW1 in his deposition stated in paragraph 8, “that I know as of fact that the memorandum was approved and a circular to that effect was issued. Due to the cost implication and paucity of funds, the approval was never effected and the Plaintiffs were not employed into the state civil service”.

 

The reason given by the Defendants further corroborates the fact that the Claimants absorption into the state civil service was never processed to entrench them as regular staff of the Benue State Civil Service. The law is trite that the court cannot force an employee on an unwilling employer. The court can only order payment of entitlement of the employee based on the terms of employment. See the case of Okwara Agwu & Ors. V. Julius Berger Nig. Plc (2019) LPELR- 47625 (SC) wherein the apex court held that the court cannot compel an unwilling employer to retain employees it does not need thus it is beyond the powers of the court to make an order deeming the Appellants to be employees of the Respondent. See also Savannah Bank Plc V. Fakokun (2002) 1 NWLR (pt. 749) 544 and Adewunmi V. Nig. Eagle flour Mills (2014) 14 NWLR (pt. 1428)443 at 447.

 

From the foregoing, it will be ultra- vires the powers of this court to compel the Defendants to issue letters of employment to the Claimants when the Defendants are unwilling to so do.

 

It is on record that though the Claimants were not employees of the state civil service, they were receiving stipends for serving the Defendants under the SUREP programme hence can claim for arrears of their monthly stipends which were being paid by the Defendants under the Graduate Internship Scheme of the State Subsidy Re- Investment and Empowerment Programme SURE- P). Exhibits OUJ1- 590 reveals that the claimants were receiving their monthly stipends through their respective bank accounts. However there is no evidence before the court of bank statements to show when last the Claimants were actually paid.

 

Claimants ask for the arrears of their stipends. I must state here that it is the law and practice that he who alleges must prove. And the burden lies on the Claimants who are alleging that they are entitled to their stipends amounting to the total of N330,400,000.00 (Three Hundred & Thirty Million, Four Hundred Thousand Naira) only, being the arrears of their monthly stipends of N20,000.00 each from January 2015 to April 2017 (28 months) and subsequently from May 2017 and until the Government works the details of their new status and regular staff in the civil service of Benue State.

The claim for stipends being monetary sums is a claim for special damages. The task therefore lies on the claimants to prove their specific claims. By the provisions of Section 131 (1) of the Evidence Act 2011, it is the duty of the Claimant who asserts the existence of a legal right that must prove that those facts exist. In the case of Veepee Ind. Ltd. V. COCA Ind. Ltd (2008) All FWLR (pt.425)1667,the court held that the burden of proof in all cases rests on the person who asserts. See also the case of Jolasun V. Bamgboye (2010) 44 NSCQR 94 @ 98.

In the case of Ibitokun V. Strabag (2010) 43 NSCQR 521 at 528 and that of Hamza V. Kure (2010) 42 NSCQR (pt.1) 592 at 595, the Supreme Court held that the Plaintiff by law is required to plead and support what he has pleaded by credible and convincing evidence and that evidence should preponderate in civil matters before his claims can be acceded to by the court and where he fails to discharge the onus, his claim must fail.

To prove an entitlement, an employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd in unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 by KANYIPP. J. then and Mr. Mohammed Dungus & ors V. ENL Consortium Ltd [2015] 60 NLLR (Pt.208) 39.

The law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages, it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC V. Clifco Nig. Ltd [2011] LPELR-2022 (SC) and Mr. Ignatius Anyanwu & orsv. Mr Aloysius Uzowuaka & ors [2009] LPELR-515 (SC); [2009] 13 NWLR (Pt.1159) 445SC.

In this suit, the Claimants have failed to plead and show by any document like their previous pay slip, voucher or Bank statement of account what was their monthly salary, mode of payment and how they arrived at the figures claimed as stipends. The Supreme Court has in Ajigbotosho V. R. Const. Co. Ltd (2018) 281 LRCN 57, held that for a claim in special damages to succeed; it must be specifically pleaded and strictly proved in evidence. Thus claims for special damages based on mere estimates or estimation of the Plaintiff (Claimant) is not precise but guess work and a court cannot issue an order on mere conjecture. See also Taylor V. Ogheneovo (2012) All FWLR (pt.610).

The Court of Appeal has also opined in the case of New Nigeria News papers Limited V. Mr. Felix Atoyebi (2013) NGSC2 that

“as far as special damages are concerned, a trial judge

Cannot make his own individual assessment but

act strictly on the evidence before him which

he accepts as establishing the amount to be

awarded. So, it would be improper for the

court without empirical evidence by the Plaintiff

to make award based on the figure stated in the

particulars of claim of the Plaintiff (Claimant).”

I therefore, do not find any piece of evidence before the court to warrant a grant of the relief of the sum amounting to the total of N330,400,000.00 (Three Hundred & Thirty Million, Four Hundred Thousand Naira)only, being the alleged arrears of their monthly stipends of N20,000.00 each from January 2015 to April 2017(28 months) and subsequently from May 2017 until the Government works the details of their new status as regular staff in the civil service of Benue State.

The courts have held that deciding cases based on speculations or conjecture will occasion miscarriage of justice. See the cases of Gwandu V. FRN (2014) LPELR- 23992 ((CA), Takuma & Anor V. Liman & Ors. (2009) LPERL- 5000 (CA) and Okadigbo & Ors. V. Ogechi & Ors. (2011) LPELR- 4687 (CA).

 

On the whole, the claimants’ case fails as the court cannot compel willing employees on an unwilling employer as that will be ultra- vires the powers of this court. I must observe here that an intention to employ cannot turn into an employment relationship that will have statutory flavor. That relationship may only be akin to a master and servant relationship. The common law principle that a court would not order for specific performance in the case of contract of service or any remedy the effect of which would lead to specific performance of such a contract is still part of our law of employment. The principle is not without variety of reasons, one of which is the absence of mutuality and the declaratory reliefs sought by the Claimants would only be made in the presence of special circumstances and the special circumstances have been held by the Supreme Court to arise where the contract of employment has a legal and statutory flavor thus putting it over and above the ordinary master and servant relationship. See Shitta-bey V FCSC(1981) 1 SC 40 and Chukwuma V Shell Petroleum Development Company of Nigeria Ltd(1993) 4 NWLR (Pt. 289) 512.

Consequently, having the claimants’ declaratory reliefs failed, the other orders sought also fail and are accordingly dismissed.

 

Judgment is entered accordingly. I make no order as to cost.

 

 

____________________________

HON. JUSTICE S.H. DANJIDDA

(PRESIDING JUDGE)

 

 

 

 

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