IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP:
HON. JUSTICE AUWAL IBRAHIM, PhD
DATE: 10th July, 2017 SUIT NO.: NICN/EN/38-742/2014
BETWEEN:
OSMOND UGWU==================CLAIMANT
AND
- ENUGU STATE CIVIL
SERVICE COMMISSION.
- GOVERNMENT OF ENUGU STATE
- ATTORNEY-GENERAL
OF ENUGU STATE============DEFENDANTS
REPRESENTATION:
Emma Awuja Esq. appeared for the Claimants.
- N. Ogbuaku (Mrs), Legal Officer, Ministry of Justice, Enugu State, appeared for the Defendants.
JUDGMENT
This is a transferred matter pursuant to the Order of Hon. Justice P. I. Enejere made on 10th day of May, 2013 at the High Court of Justice, Enugu State. The suit was consolidated before the said order of transfer and the list of the parties are contained in the attached schedule to the Order of Consolidation made the Court. The Claimants sought the determination of the following questions and then followed by the reliefs sought as follows:
- Whether having regard to the provisions of paragraph 13110 of the Public Service Rules and 15109 Civil Service Rules of Anambra State both applicable to Enugu State, which provide thus: leave without pay whenever it is granted the Permanent Secretary shall report the matter to the Auditor General & Account(sic) General, quoting the name of the office (sic), his rank and station of the Officer and full details of the leave granted, leave without pay is foisted on the Public Officer concerned or applied for and granted before it takes effect?
- Whether having regard to the policy Statement contained in Enugu State Government circular Ref: ENS/CSC/S.248/11 dated 23RD February 2000, reinstatement of employee is prospective or retrospective?
The Claimants then seek the following reliefs:
- A DECLARATION that the Plaintiff is entitled to arrears of his salary from December, 1999 when he was unlawfully and unconstitutionally disengaged from the Services of Enugu State Civil Service to 1st August, 2007 when he was recalled or reinstated.
- A DECLARATION that the contents of letter to the Plaintiff by Defendant dated 29th July, 2007 to the effect that he (the Plaintiff) will not be paid arrears of salary is null and void.
- AN ORDER of Court mandating or compelling the Defendants to pay the Plaintiff his arrears of salary from December, 1999 when he was illegally and unconstitutionally disengaged from the Services of Enugu State Government to 1st August, 2007 when he was recalled or reinstated.
The Originating Summons is supported by an affidavit of 17 paragraphs deposed to by the Claimant himself. There are exhibits, marked as Exhibits A, B, and C attached to it as well. The Claimant also filed a written address in support in which the learned counsel formulated and argued a single issue for determination as follows:
Whether a reinstated Public Officer or Servant (Civil Servant) is entitled to arrears of salary?
Arguing the said issue, learned counsel for the Claimant stated that it is common ground among the parties that the Claimant was disengaged and reinstated by the Defendants. The bone of contention is whether the Claimant is entitled of arrears of salary between the period of disengagement and time of reinstatement. Learned counsel continued that it is also not in contention that the Claimant’s employment in the Public Service has statutory backing. That his terms of employment are embedded in the Civil Service Rules or Public Service Rules, which is made pursuant to the Constitution and therefore enjoys statutory flavor. He submitted that from the tenor of Government Policy in Exhibit C, the position of the law is that a reinstated Public Servant is entitled to salaries from the time his salary was last paid.
He further submitted that leave without pay must be applied for before it is granted. This is by virtue of the provisions of paragraph 13110 of the Public Service Rule applicable to Enugu State. The said paragraph provides thus:
Leave without pay whenever it is granted, the Permanent Secretary or the Head of Department shall report the matter to the Auditor-General and Accountant General quoting the name of the officer, Rank and station and full detail of the leave granted.
Also paragraph 15109 of Anambra State Civil Service Rule Applicable to Enugu State provides thus:
When an Officer or an employee is granted leave on half or no pay, his Head of Department will report the fact to the Auditor-General and the Accountant General of Anambra, where appropriate quoting the name, rank and station of the Officer or employee and full details of the leave granted.
He submitted that inherent in the above provisionof the Public Service Rule is that “Leave without” pay must be applied for before it can be ‘granted’. The word ‘grant’ is defined by the Oxford Advanced learner’s Dictionary New 7th Edition as follows:
To agree to give somebody what they ask for, especially formal or legal permission to do something.
THE SHORTER OXFORD DICTIONARY 3RD EDITION VOL 1 at page 880 define the word ‘grant’ as follows:
To accede to, consent to,
To allow as an indulgence,
To bestow as a favour or in answer to a request.
To permit or agree.
He submitted that from the above definitions, before something is granted, it must be requested for or applied for. Consequently, the Defendants cannot legally foist leave without pay on a Public Servant who is reinstated to his position.To show that leave without pay is applied for before it is granted, regard is had to paragraph 15110 of the Civil Service rule afore-stated which further states that an Officer or employee may be granted by the Government special leave without salary for the purposes of undertaking a course of study which is considered likely will be subject to such conditions as may be specified at the time it is granted.
He continued further that disengagement from the service does not materially enhance the value of a Public Servant. Rather, it diminishes his value and reduces his life expectancy by virtue of the trauma associated with living without income.This is because reinstatement is retrospective in nature and involves a revocation of the act of disengagement and restoration of payment of wages for the intervening period. That in Olaniyan vs. University of Lagos (1985) 2 NWLR (pt 9) 599 at 684 Paragraph A-B the Supreme Court defines reinstatement as follows:
I do not take the word reinstatement to be a term of art-see Hodge Vulter – electric Ltd (1943) IK B 462, 466. Its ordinary and primary meaning is to replacethe person to the exact position in which he was before his removal. That is to restore him to his status quo ante. It is therefore retroactive in effect and involves a revocation of the act of dismissal and restoration of payment of wages for the intervening period.
That in Sadiq vs. Bundi (1991) 8 NWLR (pt 210) 443. The Court of Appeal also defined reinstatement as follows:
The ordinary and primary meaning of reinstatement is to replace the person to the exact position in which he was before his removal. That is to restore him to his status quo ante. It is therefore retrospective in effect and involves a revocation of the act of dismissal and restoration of payment of wages for the intervening period.
The above judicial definition of reinstatement embodies that the reinstated Public Officer is entitled to payment of his arrears of salary.
He further submitted that this is in accordance with the Policy of Government in Exhibit C which states inter alia:
The commission hereby makes it clear that a disengaged officer who is duly reinstated is entitled to his salaries with effect from the month following that which the salary was last paid.
Learned counsel then urged the court to grant the relief sought bearing in mind that to deny a Public Servant his due in flagrant contravention of the Rules governing his employment, whether under contract or Statute or regulations made thereunder, is to act capriciously and to destabilize the security of tenure of the Public Servant, frustrate his hopes and aspirations and thereby act in a manner inimical to order, good governance and the well being of society.
In his response to the Originating Summons, the learned counsel for the Defendants filed a counter-affidavit and a further counter-affidavit along with written addresses.
In his written address in support of the further counter affidavit in opposition to the Originating Summons learned counsel for the Defendant stated that the claimant was one of the public servants disengaged from the public service of Enugu State in a December 1999 rationalization exercise. That in July 2007, the claimant was reinstated into the Enugu State Civil Service with effect from 1st August, 2007.
That the letter of reinstatement reads in part as follows:
2.Please note that the period of your disengagement is to be treated as leave without pay, but is pensionable.
That the claimant, who had the option to reject his reinstatement on the above condition, WILLFULLY accepted the above stated condition and reported to his ministry/department for registration formalities and deployment, as directed in the said letter.The claimant did not challenge his disengagement in court. He later commenced this suit contending that he ought to be paid for the period of his disengagement (that is the periods he did not work) notwithstanding the express provision of his letter of reinstatement to the contrary.
Furthermore, the Claimant did not apply for, and was not granted the Honourable Attorney-General’s fiat before they instituted this action.
Thereafter learned defence counsel formulated and argued the following issues:
- Whether the claimant’s right of action (if any) is not extinguished.
- Whether this suit is competent.
Arguing the first issue, learned counsel stated that it is common knowledge that the claimant was disengaged from the public service of Enugu State in December, 1999.It is also a common knowledge that the claimant was reabsorbed into the public service of Enugu State on 1st August, 2007.The claimant was not paid any salary during the period, December 1999 to July, 2007 when he remained disengaged.
Then by the defendants’ letter dated 29th day of July, 2007 (annexed to the claimant’s Originating Summons as Exhibit B), the claimant was reinstated into the Public Service of Enugu State.That reinstatement of the claimant was upon the condition that the claimant would not be paid for the period of his disengagement.For the sake of clarity, learned counsel reproduced the said letter of reinstatement in part as follows:
REINSTATEMENT INTO THE ENUGU STATE CIVIL SERVICE
I wish to inform you that……………………you are hereby reinstated into the Enugu State civil Service………………. Accordingly, you are to report to your former Ministry/Department for deployment
- Please note that the period of your disengagement is to be regarded and treated as leave without pay, but is pensionable.”
(Underlining is learned counsel’s for emphasis.).
Learned counsel submitted that the letter of reinstatement (Exhibit B) is akin to an offer which was made to the claimant by the defendants. The claimant has theoption to accept or reject the offer. If the claimant is desirous to accept the offer, the prescribed means of communicating his acceptance is by reporting to his former Ministry/department for deployment.That the claimant infact accepted the offer by reporting to his former ministry/department for deployment. He even went further to collect his salary for about one year before commencing this action.
He continued that it is a principle of the law of contract that where a party has made another believe that a particular state of affairs exist, and that party believing has acted on that representation to his detriment, the party which made the representation (expressly or impliedly) will not be allowed to deny the existence of such state of affairs. He cited and relied on the case of Central London Property Trust Ltd V. High tress House Ltd (1947) KB 130, (1956) 1 ALL ER 256.
Thus, assuming, but without conceding, that under the Public Service Rules of Anambra State (both applicable to Enugu State), the claimant was entitled to be paid for theperiod of his disengagement, it is submitted that the claimant’s right of action was extinguished by the acceptance of the offer of reinstatement.
That Section 12 (a) of the Actions Law, Cap. 4 Revised Laws of Enugu state 2004, provides as follows:
- A right of action shall cease to exist in the following circumstance:
- a)Accord and Satisfaction: Where a person who has a right of action for a tort or a breach of contract agreed with the person against whom that right exists to accept some advantage, monetary or otherwise, in satisfaction of his claim, and that other person performs his side of such agreement.
He submitted that the above principle of law is apposite in this case. The claimant, having accepted to be reinstated uponthe condition to forfeit his unpaid salaries for the period of disengagement cannot later renege onhis agreement or modify the terms of his reinstatement.
The claimant cannot approbate and reprobate. It is also not proper for the claimant to accept the first clause of his letter of re-instatement and refuse the second clause. The doctrine of estoppel will not allow the claimant to renege on his agreement.
He finally urged the court to hold that the claimant’s right of action is extinguished.
On issue 2, learned counsel submitted that this suit is incompetent. He stated that it is a common Knowledge that the claimant is a public servant, referring to paragraph 3 of the claimant’s affidavit and paragraph 5 of the further counter affidavit of the defendants.
That by Section 8 (1) (2) and (3) of the State proceedings Law, Cap. 146, Revised Laws of Enugu State, 2004, the claimant, as a public servant, cannot initiate a suit against the State e
