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OKPE FRANCIS & 5 ors -VS- IGBO ETITI LOCAL GOVERNMENT

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP:

HON. JUSTICE AUWAL IBRAHIM, PhD

 

DATE: 29th June, 2017                   SUIT Number: NICN/EN/25/2012

 

BETWEE

 

  1. OKPE FRANCIS
  2. UGWU JOHNSON
  3. ISIENYI ROMANUS
  4. DIDIGWU DOMINIC
  5. DIDGWU CLETUS
  6. UGWU CELINE==================CLAIMANTS

 

AND

 

  1. IGBO ETITI LOCAL GOVERNMENT

COUNCIL

  1. THE EDUCATION SECRETARY

IGBO ETITI LOCAL EDUCATION

          AUTHORITY OGBEDE

  1. LOCAL GOVERNMENT

SERVICES COMMISSION ENUGU

STATE======================DEFENDANTS

 

REPRESENTATION:

Ike Ozor Esq. appeared for the Claimants.

O.U. Ozor Esq. appeared for the 1st and 2nd Defendants.

NkechiOkigbe (Mrs), Principal Legal Officer, Ministry of Justice, Enugu State appeared for the 3rd Defendant.

 

JUDGMENT

The Claimants filed this action on 8th of March, 2012 and by their Amended Statement of Facts (leave of court granted on 27/2/2013), they claim against the defendants jointly and/or severally the following reliefs:

 

  1. A Declaration that the Claimants were duly appointed staff of Igbo-Etiti Local Government Council in 2002, while the defendants are the employers.
  2. A Declaration that the Conditions of Service of the Claimants are regulated by the statutory contracts of employment contained in Public Service Rules.
  3. A Declaration that the Claimants are entitled to their annual salaries, promotions and other entitlements obtainable in Civil Service Rules from the date of their employment as contained in the salary table.
  4. A Declaration that Igbo-Etiti Local Government are owing the Claimants, annual arrears of salaries, promotions, and allowances from 2002 till judgment is delivered and 25% interest rate on the judgment debt till execution of the judgment.
  5. An order directing the defendants to pay the claimants forthwith all salaries, entitlements and other allowances as shown in the salary chart from 2002 till judgment is delivered.
  6. An order that the defendants pay the claimants special damages of N1,800,000.00 being legal fee for this action.
  7. N6,000,000.00 (Six Million Naira) aggravated damages against the defendants for breach of contract.

 

The Complaint was accompanied with the necessary processes prescribed by the Rules of Court. Upon being served with the Claimants’ processes, the Defendants entered appearance and filed their Statements of Defence. The 1st and 2nd Defendants entered a joint defence while the 3rd defendant also filed its own Statement of Defence.

 

The matter proceeded to hearing where the Claimants called their witnesses, CW1 to CW6 to testify. Each one of them was cross-examined. They tendered and the court admitted several exhibits as Exhibits A, A1, B, B1, C, D, D1, E, E1, F, G, H, J, J1, K and L. then Exhibits M, N, O and O1 were tendered by the 1st and 2nd Defendants. Exhibits P and P1 were tendered by the 3rd defendant.The defendants called witnesses who testified as DW1 and DW2. They were cross-examined.

 

At the conclusion of trial the parties filed their respective final written addresses. The 3rd defendant’s final written address dated 13th December, 2016 was filed on the same day. Then that of the 1st and 2nd Defendants’ counsel dated 13th December, 2016 was filed on the same date. The claimants’ counsel’s final written address dated 10th January, 2017 was filed on 11th January, 2017. There was no any reply on points of law filed by either of the 1st and 2nd or 3rd defendants. The parties adopted their respective written addresses on 29th day of March, 2017.

 

In his final written address, the learned counsel for the 3rd defendant formulated and argued a lone issue for the court’s determination, namely, whether the correct procedure was followed in the alleged employment/appointment of the Claimants in 2002?

 

In his submission, the learned 3rd Defendant’s counsel stated that the claimants’ purported employment/appointment did not follow the correct procedure. That the alleged 2002 employment/appointment was not known to the Local Government Service Commission and there is no evidence to show that the employment was done in accordance with the law. He stated that Section 35 (3) & (5) of Local Government Law, CAP 109, Laws of Enugu State of Nigeria, 2004 provides as follows:

 

(3)     The Chairman shall have power to appoint, discipline and control staff Grade levels 01 to 06 subject to confirmation by the Local Government Service Commission.

(5)     All appointments made under this section shall be communicated to the Local Government Service Commission within one week of such appointments.

 

That in the instant case, there was no confirmation by the Local Government Service Commission of that employment/appointment of those Junior Staff by the then Chairman of Igbo-Etiti Local Government in 2002 and also there was no communication to the Commission of such appointment. The only appointment of Junior Staff in Igbo-Etiti which was made known to Commission was the 2010 recruitment of the Junior Staff as shown in Exhibits P and P1.

 

That during the cross examination of CW1 to CW6 by the 3rd Defendant, all the witnesses testified that they were not verified which shows that the alleged appointment did not follow due process and therefore was not proper and the Commission was not aware of such employment/appointment.

 

He further submitted that the Claimants are not entitled to any of the reliefs sought because there was no employment of Junior Staff in 2002 and since their appointment were never verified and confirmed by the Commission, they are not regarded as staff of Igbo-Etiti Local Government Area Council and therefore they are not entitled to any salaries and benefits.

 

He submitted finally that the Claimants are not entitled to the reliefs sought as they have not proved their case to warrant any of the reliefs sought to be awarded to them. He urged the court to dismiss the action as it lacks merit and is frivolous.

 

On his part, the learned counsel for the 1st and 2nd Defendants in his final written address formulated and argued the following issues for the court’s determination:

 

  1. Whether the Honourable Court has jurisdiction to entertain this suit? He then stated sub-issues as-
  2. Whether the 2nd defendant is a person known to law and whether the suit is bad for non-joinder of the State Primary Education Board?
  3. Whether the parties can bring a joint suit against the defendants in the present circumstances?
  4. Whether the pre-action notices as admitted in evidence suffice to ground this action?
  5. Whether the Claimants’ are employees of the 1st Defendant and are thereby entitled to their claims for salaries and arrears of salaries?

 

In his arguments on the first issue learned counsel submitted that the suit was not properly constituted and therefore the court’s jurisdiction has not been properly activated in this suit. He then argued the sub-issues.

 

On sub-issue (a), which is whether the 2nd Defendant is a person known to law and whether the suit is bad for non-joinder of State Primary Education Board, counsel submitted that the 2nd defendant is a non-juristic person and cannot sue or be sued. It is simply a portfolio. That in paragraph 5 of the Amended Statement of Facts dated 8th March 2013, the Claimants pleaded that “…Enugu State Primary Education Board (is) the parent organ of the 2nd Defendant”. That in failing to sue the State Primary Education Board and in suing a non-juristic person, the Claimants have failed to present proper and necessary parties before the court. That the non-inclusion of the Enugu State Primary Education Board is bound to affect the proper determination of the issues raised in this suit.

 

He submitted further that it is a fundamental principle of law that every person who stands to be affected one way or the other in litigation must be joined as a party and allowed a say in the proceeding before judgment is given by the court. The judgment of this court will ultimately affect the Enugu State Primary Education Board. The fact that they were not given a say in the proceeding is detrimental to the case of the claimants. He referred to Onabanjo vs Ewetuga (1993) 4 NWLR (Pt. 288) 445.

 

On sub-issue (b) which is whether the parties can bring a joint suit against the defendants in the present circumstances, learned counsel stated that the cause of action for each of the claimants arose from the purported letters of offer of employment tendered and admitted in evidence. That the claims did not therefore arise from the same transaction and the claimants cannot bring a common suit to seek redress as they did herein. That the approach of the claimants is akin to suggesting that all contractors of a given party who allege breaches of their contract can come together and bring a single suit to claim redress even where they have different contracts with the said party. The rules of proceedings do not support the approach. That where a number of trustees were joined as co-plaintiffs in an action for libel published then collectively, the joinder was upheld in Booth vs Briscoe (1877) 3 QBD 496, but where two persons were each libeled on different occasions by the same publisher, the joinder of two persons as co-plaintiffs in an action for libel was not permitted in Sanders vs Wildsmith (1893) 1 QB 77. He referred to the book, Civil Procedure in Nigeria, 2nd Edition, by Fidelis Nwadialor at p. 147 on joinder of parties.

 

That just as the Plaintiffs in Sanders’ case were libeled on different occasions and they have different publications to establish their cases, so are the claimants in this case, they were not jointly employed (if at all), they have different letters which they purported were their instruments of engagement with the 1st and 2nd defendants. They cannot therefore maintain one suit to address their respective issues. He urged the court to hold that this suit is bad for wrongful joinder of claimants and hence the court has no jurisdiction to entertain same.

 

On sub-issue (c), which is whether the pre-action notice as admitted in evidence suffices to ground this action, learned counsel stated that a pre action notice is sine qua non to the proper activation of the jurisdiction of this court against the defendants. The essence of the notice is to inform the defendant of the nature of the pending action and who intends to proceed against it. That the claimants did not give such notices. Some of the claimants gave notice of some claims and sued for different claims. Some of the claimants did not altogether give any notice whatsoever. That prayers b, c, parts of d, e, f and in the Amended Statement of Facts were not anticipated by the pre-action (notice) before the court. That the 6th Claimant did not serve any pre action notice.

 

That the parent body of the 2nd defendant is the Enugu State Primary Education Board, an organ of the State Government. The Secretary of the State Government ought to also be served pre-action notices before the 2nd Defendant (if at all) or its parent body could be effectively sued. He urged the court to hold that the claimants did not give valid pre-action notices to ground this case.

 

On issue 2 which is whether the Claimants were employees of the 1st defendant and are thereby entitled to their claims for salaries and arrears of salaries, learned counsel stated that the claimants alleged that they are employees of the defendants. That they have the onus of establishing that fact and they have failed. That employment in the Local Government Council is the function of the Local Government Service Commission created under section 56 of the Local Government Law, Cap 109, Revised Laws of Enugu State of Nigeria, 2004. That sections 58, 60 and 61 of the said law give the Commission the powers to make appointments into the Local Government system. That the Federal Republic of Nigeria Handbook on Local Government Administration 1999 especially sections 5.1.4, 5.1.5, 5.3.1, 5.7.1, 5.7.2 (b) 7 (c) and 5.9.3 are relevant in determining the correct procedure for recruitment into the Local Government system.

 

That taking from the above, the onus of proving that one is in the employ of a local government authority entails the onus of showing that he/she was so engaged by the competent authority saddled with the responsibility to make appointments into the local government system and that he/she is a person in the unified Local Government service of the state. The claimants have not shown that they were employed by the authorized commission. They did not show that they are persons in the unified Local Government service of the state. That the case of the defendants is consistent that there was no employment exercise in 2002, all the documentary evidence including one tendered by the claimants, which is a letter written by subsequent chairman of the 1st defendant said it all. There was no employment exercise in 2002. In the ordinary contractual parlance, an agreement is reached if an offer is marched with acceptance. The numerous offers of employment were not marched by any acceptance.

 

Furthermore, that the power granted the Chairman of the local government council in section 35(3) is made subject to the exercise of confirmation by the Local Government Services Commission both in sub-rules 3 and 5 of section 35. The chairman’s power is nominal. In reality he has no absolute powers to employ for the council. That Exhibits C, F and H in the reliefs sought, paragraph c is in consonance with the case of the defendants that the claimants were not recognized staff of the 1st defendant. In that paragraph the claimants agreed that they were never recognized as staff since 2002. The claimants ought to have called or subpoenaed witnesses to corroborate each of their testimonies; they neither did that nor corroborated each other’s testimonies by their individual testimonies. He urged the court to hold that the claimants did not discharge the onus imposed on them to establish that they are indeed staff of the 1st and 2nd defendants.

 

Learned counsel then presented a detailed analysis of the Exhibits tendered in court in paragraphs 8.1 to 8.17 of the final written address. He stated that the letter dated 4th February, 2002 purporting to offer appointment to Okpe Francis (Exhibit A) was indicated to have been made on the strength of memoranda ref IGT/AD.68/vol1/150 of 3rd February 2001 and ENS/SPEB/AD/486/11/339 dated 12th October 2001, none of these memoranda was produced in evidence. The Claimant tendered Exhibit O to indicate that they requested a copy of memo ref IGT/AD.68/vol1/150 of 3rd February 2001 from the 1st defendant. Exhibit O1 is a response from the 1st defendant to the effect that “the letter is not anywhere in the council”. The case of the 1st and 2nd defendants is that no such letter existed. That the Claimants did not request the State Primary Education Board to avail them a copy of memo ref ENS/SPEB/AD/486/11/339 dated 12th October 2001. The 1st and 2nd Defendants joined issues with the claimant on the existence of such memoranda. The onus was on the claimants to produce them in court.

 

According to learned counsel the claimants did not plead any of the memoranda rather they pleaded ones dated sometime in 2011, which were not also tendered. That Exhibit A is an offer letter; there is no corresponding acceptance letter. Exhibit A1 was captioned “posting of non tutorial staff”. It is a letter supposedly written by the HOS(P) Head of service personnel to Head Master C. S. Aku. The document is a public document. The admissible copy is a either the copy in the possession of the H/M C.S. Aku or a certified true copy of the original. The copy tendered by the Claimant was not from proper custody and ought to have been rejected. He then urged the court to discountenance Exhibit A1.

 

That Exhibit J is an offer letter, it required an acceptance within a fortnight from 26th February, 2002 when it was purportedly made failing which the offer would elapse (the fortnight is 14 days from then and it expired on the 11th day of March 2002), it also indicated that the effective date of appointment will be the date that the claimant assumed duty. There is no evidence before this court that Ugwu Johnson ever assumed duty. That Exhibit J1 indicated that Ugwu Johnson “accepted” the offer on 12th March 2002. The acceptance letter is not before the court and the acceptance if any was made beyond a fortnight from the 26th day of February, 2002. The offer elapsed before it was accepted. There was nothing to accept as at 12th March 2002.

 

In respect of Exhibits B, B1, L and L1, G and G1 counsel repeated the submissions above in respect of Exhibits A and A1 respectively. With regards to Exhibits E and E1, he repeated the submissions in respect of Exhibits J and J1. He added that Exhibits D and D1 are public documents which can only be established in court with their originals or certified true copies. The copies tendered and admitted were wrongly admitted and ought to be discountenanced. He urged the court to discountenance them. That section 102 of the Evidence Act 2011 listed documents forming the acts or records of the acts of official bodies and executives as public documents. By section 105 of the Evidence Act 2011, it is the certified true copies of such documents that ought to be tendered and admitted.

 

That Exhibit H was not indicated to have been received by anybody. There is no acknowledgment of receipt on the exhibit. The case of the 1st defendant is that it never received exhibit H, the claimants have the onus of establishing due service of Exhibit H. There is nothing before the court to prove that the claimant indeed served exhibit H on the foregoing basis.

 

Exhibits O1, N and P1 are consistent with the defendants’ position that there was no recruitment exercise in 2002 in the 1st defendant council. These exhibits further showed the due processes that ought to take place before employment can genuinely be said to have been made into the local government system.

 

Exhibit M gave details of how the recruitment exercise was done from the home of ex-officers of the 1st defendant three weeks after the expiry of their tenure. This exhibit cancelled whatever remained of the exercise.

 

Learned counsel then urged the court to dismiss the claims of the claimants with heavy cost against them.

 

On his part the learned counsel for the claimants’ in his final written address formulated and argued the following issues for the court’s determination:

 

  1. Whether this suit is properly constituted and competent in law?
  2. Having regards to the appointments and posting letters issued the claimants by the 1st and 2nd defendants and admitted in evidence as Exhibits A, A1, B, B1, E, E1, G, G1, J, J1, L, L1, whether the defendants are permitted in law to deny that the claimants were not employees of Igbo Etiti Local Government Ogbede and Igbo Etiti Local Government Education Authority respectively?
  3. Whether the claimants’ appointment can be terminated by executive fiat?
  4. Having regards to section 14(2)(b) of Enugu State Universal Basic Education Law of 2005 and Exhibit “M” whether the recruitment/appointments of the 1st, 3rd, 4th and 6th claimants into the service of Igbo-Etiti Local Education Authority, Ogbede are subject to the supervisory or disciplinary powers of the 1st and 3rd defendants?
  5. Having regards to the provision of section 60(c) of the Local Government Law Cap. 109, Revised Law of Enugu State 2004 and Exhibit “M”, whether the recruitments/appointments of the 2nd and 5th claimants into the service of Igbo-Etiti Local Government Authority, Ogbede are subject to the supervisory or disciplinary power of the 1st defendant?
  6. Having regards to the section 7(1) of the 1999 Constitution and section 3(1) Cap 109 revised laws of Enugu State of Nigeria 2004, whether Exhibit “M” has any legal effect on the claimants’ appointment, having been made by an appointed caretaker chairman of the Local Government?
  7. Whether the claimants are entitled to payment of arrears of salaries as claimed in their reliefs?

 

Arguing the issues, on issue Alearned counsel for the Claimants, stated that counsel for the 1st and 2nd defendants at paragraph 5.0 challenged the competence of this suit on the following grounds: (a) that the 2nd defendant is a person not known to law and the no-joinder of the State Primary Education Board is fatal to the suit. (b) that parties and cause of action in this suit were improperly joined and as such urged the court to dismiss the suit. On the first limb of the objection of the 1st and 2nd Defendants that the 2nd defendant has no juristic personality and that the non-joinder of the State Primary Education Board, learned counsel submitted that the issue is to be looked at from the nature of the claim of the claimants. To him, the claim is for the payment of the salaries of the claimants by the 1st defendant. Therefore, joining the 2nd defendant is in fact a mere surplussage. He stated further that the employment of the claimants was done by two distinct bodies created by different laws. Thus while the 1st, 4th, 6th, and 3rd claimants were employed by the 2nd defendant under the Universal Basic Education Law of Enugu State, the 2nd and 5th claimants’ were employed by the 1st defendant under the Local Government Law Cap 109, revised Laws of Enugu State of Nigeria 2004. That after their employment, the 1st defendant takes up the responsibility of payment of their salaries and other entitlements. Thus the non-joinder of the Universal Basic Education Board of Enugu State to this suit is not fatal. He referred to Adegbenro vs A-G Federation & Ors (1962) 1 All NLR 431, and Thomas vs Local Government Service Board (1965) NMLR 310. He referred to Section 14(2)(b) of Enugu State Universal Education Law of Enugu State to show that the function of the Local Government Education Authority is limited to appointment, posting, transfer, promotion and discipline of staff on grade levels 01-06 in its area of jurisdiction. That the 2nd defendant was created by section 11(h) of the Enugu state Universal Basic Education Law of 2005 while his functions are provided for under section 12 of the same law. Thus the 2nd defendant is a creation of law. That by the combined effects of sections 11, 12 and 14 of the Enugu State Universal Basic Education Law of 2005 the 2nd defendant being the Head of the Igbo Etiti Local Government Education Authority has only the responsibility of recruitment, appointment, posting, transfer, promotion and discipline of staff on grade levels 01-06 but lacks the duty or powers of paying salaries to affected staff. It is the 1st defendant that has the powers or duty to pay the salaries of staff recruited under Igbo Etiti Local Government Education Authority.

 

On the 2nd limb of the objection, on the mis-joinder of parties and cause of action, learned counsel referred the Court to Order 9 rules1 and 14, and Order 10 rule 1 of the Federal High Court 2009. He submitted that the rules authorize the joinder of parties as well as of causes of action. That no proceeding shall be defeated by reason of misjoinder or non-joinder of parties. He added that there are common questions of law and fact that would be determined by the court in the suit. The suing by all the claimants of the defendants would help to avoid multiplicity of actions. He referred to Ayankoya vs Olukoya (1996) 4 NWLR (Pt. 440) p. 1 at p.16 per Adio JSC.

He urged the court to disregard the objection on the competence of this suit.

 

Learned claimants counsel argued issue B in paragraphs 3.0 to 3.7 of his written address. He stated that the learned counsel for the 1st and 2nd defendants claimed that the claimants whom the 1st and 2nd defendants issued various appointment letters were not regularly issued. That the 3rd defendant’s counsel also raised the issue of the validity of the claimants’ employment.Learned counsel submitted that the claimants were employed by two distinct bodies which were also created by two distinct bodies. He stated that while the 1st, 4th, 6th and 3rd claimants were employed under the Universal Basic Education Law of Enugu State, the 2nd and 5th claimants were employed under the Local Government Law, cap 109, revised laws of Enugu State of Nigeria, 2004. That the DW1 while testifying for the 1stand 2nd Defendants admitted that the appointment letters of the Claimants admitted as Exhibits A, A1, B, B1, G, G1, L, L1, E, E1, J and J1 were documents validly issued by the 1st and 2nd Defendants.

 

He continued that the 1st, 4th, 6th and 3rd claimants who testified as CW1, CW2, CW4 and CW6 were issued with Exhibits A, A1, B, B1, G, G1, L and L1 by the 2nd Defendant stating that they were employed as staff of Igbo Etiti Local Government Education Authority. That Exhibits A, B, G and L expressly stated that the employment of 1st, 4th, 6th and 3rd claimants into the Igbo Etiti Local Government Education Authority was in line with Enugu State Primary Education Board Circular with reference No. ENS/SPEB/AD/486/11/339 dated 12th October 2001. Also Exhibits A, B, G and L were issued to the 1st, 4th, 6th and 3rd Claimants on 4th February, 2002 while effective date of appointment is 1st February, 2002 and Exhibits A1, B1, G1, and L1 are the posting letters issued the 1st, 4th, 6th and 3rd Claimants stating where they are to carry out their respective primary assignment as staff of Igbo Etiti Local Government Education Authority. Furthermore, learned counsel submitted that the appointment letters of the 1st, 4th, 6th and 3rd Claimants were duly issued by the 2nddefendant and same was expressly ratified by Enugu State Universal Basic Education Board Circular No. ENS/SPEB/AD/486/11/339 of 12th October, 2001 and as such valid in law.

 

On the 2nd and 5thClaimants, that their appointment letters admitted as Exhibits E, E1, J1 and J were issued on 26th February, 2002 and signed on behalf of the 1st defendant by C.E. Ezeiyoke (JP). That Exhibits E1 and J expressly stated that the appointment was made pursuant to an authorization circular of the 3rd defendant reference No. LGSC/PER.S.311/SUB.12/27 of 24th February 2001. According to counsel therefore, the employment of the 2nd and 5th Claimants was valid in law having been made by the appropriate employing authority. And that havi

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