IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: FRIDAY 31ST JANUARY, 2020 SUIT NO: NICN/YEN/131/2016
BETWEEN:
OYEINTOKONI PONDEI & 463 ORS ———- CLAIMANTS
AND:
SOUTHERN IJAW LOCAL GOVERNMENT COUNCIL ——– DEFENDANT
REPRESENTATION
Mr. Freeman S. Oputa Esq with R.B. Ekpi Esq for Claimants.
A.V. Jonah-Eteli Esq for the Defendants.
JUDGMENT
INTRODUCTION AND CLAIMS
This action was commenced by way of a Complaint dated and filed by about 130 Claimants on the 12thday of July, 2016. Accompanying the Complaint were the Statement of Facts establishing the Cause of Action, Witness Deposition on Oath, List of Witness and the List of Documents to be relied upon at the trial. The claims of the Claimants are as set out in their Complaint and also their Statement of Facts establishing the Cause of Action.
On the 19th of January, 2018, an application for joinder of 334 additional Claimants was granted; and this brought the total number of Claimants to 464 Claimants. The joinder of additional Claimants necessitated the amendment of the processes filed before this Court and consequently there were series of amendment carried out on the processes filed by the parties to the instant action. The final amendment to the processes filed were made at the conclusion of trial before parties filed their respective final addresses. The claims upon which the Claimant wrestled their action after the amendments are:
- A DECLARATION that the employment of the Claimants vide the omnibus Letter of Temporary Appointment dated the 24th day of May, 2013 and the subsequent Letters of Regularization of Appointment dated the 1st day of July, 2015 issued by the Defendant is valid and in accordance with the relevant norms, rules and laws of the Defendant and Bayelsa State.
- A DECLARATION that the Radio Announcement made through the state owned Radio Bayelsa FM 97.1 sometimes in the month of May, 2016 by the Caretaker Chairman of Defendant Council preventing the Claimants from attending the Council verification exercise carried out thereby constructively terminating their respective appointments is wrongful, illegal, oppressive and gross violation of the relevant provisions of the laws and rules.
- AN ORDER of this Honourable Court reinstating the Claimants to their different cadres of employment in the Defendant’s Council with payments of owed arrears of salaries and other entitlements from the period of November, 2015 up to time of reinstatement.
ALTERNATIVELY, AN ORDER of this Honourable Court directing the Defendant Council to pay the sum of N78,731,676.45 (Seventy-Eight Million, Seven Hundred and Thirty-One Thousand, Six Hundred and Seventy-Six Naira, Forty-Five Kobo) as special damages to the Claimants for their net arrears of salaries from the month of November, 2015 to the month of May, 2016.
- AN ODER directing the Defendant to pay to the Claimants the sum of N15,000,000.00 (Fifteen Million Naira) only as general damages for wrongful termination of employment, psychological and emotional trauma, financial and economic indignity suffered by the Claimants since the purported termination.
The Defendant though entered appearance way back in 2016 when this matter was filed and also had to undertake consequential amendments to its processes each time the Claimants amended theirs.
It is important to note that this matter as at when it was filed was been presided over by His Lordship, Hon. Justice J. T. Agbadu Fishim. However, the matter was later transferred to me and on the 19th of October, 2017 the matter started de novo before me.
The Claimants opened their case on the 10th of July, 2018. Two witnesses were called in prove of their case and four(4) Exhibits were tendered (Exhibits CW1 OP 001 – CW1 OP 004). The first witness was the Oyeintokoni Pondei (the first Claimant himself) and the 2nd witness was Chief Remember Nicholas Pabraipi Ogbe who was the former Chairman of the Defendant who was subpoenaed. Both witnesses were duly cross-examined by the Defendant and consequently discharged.
The Defendant opened its defence on the 13th day of December, 2018. The Defendant called two witnesses; Ayebakenimi Beghemo (Administrative Officer/Secretary, Junior Staff Management Committee of the Defendant) and Mr. Clerkson Osoghoyai, who both testified as DW1 and DW2 respectively. In its defence, the Defendant tendered 4 sets of documents which were marked as EXHIBITS DWSJ001 – DWSJ 004A-L. Both witnesses were cross-examined and the Defendant closed its case on the 5th day of February, 2019.
At the close of parties’ cases, one last amendment of processes was grantedto the parties and thereafter, parties filed their respective Final Written Addresses and adopted same.
CLAIMANT’S CASE IN BRIEF
The brief fact of the case as contained in the Claimants’ Amended Statement of Facts is that the Claimants claimed to have been employed by the Defendant into the various cadres and departments within grade levels 01 to 06 across the Local Government Council. The Claimant claimed that before their employment, the then elected Executive Chairman, Chief R. P. N. Ogbe (DW2) had convened a meeting of the Finance and General Purpose Committee, which is the highest decision making body of the Council, which deliberated and agreed that in view of the lack of junior personnel, there is the need for employment of junior personnel. Consequently, the Director of Administration of General Services (DAGS) who is the Chairman of the Junior Staff Management Committee to proceed with the employment of the junior staff. Claimants also stated that the Chairman of the Local Government Council also wrote to the Chairman of the Local Government Service Commission, one Elder Alphosus Forcados, notifying him of the desire to employ junior staff of the Defendant; and that the Chairman of the Local Government Service Commission acknowledged the request, made recommendation and participated in the process of employment of the Claimants. The Claimant claimed further that they were properly temporarily appointed by the Defendant in May, 2013 to the different cadres and department of the Defendant and within the grade levels of 01 to 06 via Letters of Offer of Temporary Appointment dated the 24th day of May, 2013 (EXHIBIT CW1 OP 001). After two (2) years, the Claimants’ temporary appointments were regularized to permanent employments via Letters of Regularization of Appointment dated the 1st day of July, 2015 (EXHIBIT CW1 OP 002) signed by Mr. Clarkson Osoghoyai, then Director of Administration and General Services (DW2), on behalf of the Chairman. The Claimants then stated that their employments followed all due processes. The Claimants thereafter resumed duties at their various posts, carried out their duties diligently, and were paid salaries up until September and October, 2015 when they were last paid. That the Defendant was still owing them salaries from November, 2015 to May, 2016, when their employments were suddenly terminated vied newspaper and radio publication. They claimed that before they were sacked, they had undertaken a Staff verification exercise with the Defendant on the 14th day of March, 2016 where they were cleared by their various heads of Departments; and at the expiration of the tenure of the Elected Executive Chairman, a staff strength of 1,179 which included them (the Claimants) was handed over to the incumbent Caretaker Committee Chairman of the Defendant Council. The Claimant upon news of their sacks, had employed a lawyer to request for their immediate reinstatement as the manner in which they were relieved of their employment were not in accordance with due process. The Defendant has refused to honour the Claimants’ request, thereby the reason for this action.
THE CASE OF THE DEFENDANT
The Defendant on its part has put up a very strong defence to the claim of the Claimant stating that the Claimants were not properly temporarily employed as due processes for their employments were not followed; hence they were illegally employed and the salaried earned were unlawful. The Defendant admitted that a meeting of the Finance and General Purpose Committee was called which membership includes the Executive Chairman, Vice Chairman, Head Personnel Management (H.P.M), the Director of Administration and General Services (DAGS), Treasurer, Chief Accountant and others; however that the Committee is responsible for the financial matters of the Defendant and the Committee decision on employment is inchoate the Junior Staff Management Committee ratifies and the Local Government Service Commission approves it. The Defendant contended that it is the Junior Staff Management Committee that is responsible for the employment of the Claimants. It was stated that the Finance and General Purpose Committee cannot direct the DAGS to proceed with the employment of the Junior Staff as the DAGS cannot on its own employ junior staff and that any such directive given to the DAGS without the Junior Staff Management Committee meeting and resolving to employ the Claimants goes contrary to the Local Government Guidelines and Regulations. The Defendant stated that the Local Government Service Commission did not approve the employment of the Claimants and that the Local Government Service Commission never participated in the employment process of the Claimant neither did it make any recommendation on it. The Defendant stated that the Letters of Offer of Temporary Appointment dated the 24th May, 2013 and the Letters of Regularization of Appointment dated the 1st of July, 2015 were all issued in error and without the approval of the Junior Staff Management Committee and the Local Government Service Commission responsible for the employment, promotion and discipline of the staff of the Defendant. The Defendant further stated that it was during a verification exercise carried out in the entire state, due to the economic recession and inability of various Council to meet their financial obligations, that it was discovered that the Claimants were unlawfully employed by the Former Chairman of the Defendant and as such the withdrawal of the employment letters. The Defendant had written to the Bayelsa State Local Government Service Commission for details of the Claimants’ employment on the 18th of March, 2016 and the Commission’s reply was to the effect that the former DAGS acted in contravention of the Bayelsa State Government wide embargo on employment exercise and that the employments of the Claimants were illegal, null and void. The Defendant denied withdrawing the employments of the Claimants because it received the Letter from the Claimants’ solicitor (EXHIBIT CW1 OP 003) but that the Junior Staff Management Committee in a meeting held on the 17th June, 2016 had deliberated and resolved to withdraw the employment of the Claimants who were illegally employed and any other employment made by the Defendant from 2013 – 2016. Based on the foregoing the Defendant made radio announcement and newspaper publication in the Banner Newspaper withdrawing the employment of the Claimants and others without due process. The Defendant also proceeded to mandate Mr. Clarkson Osoghoyai (JP) the former DAGS who issued the Letters of offer of Temporary Appointment and Letters of Regularisation of Appointment to personally write to the claimants to withdraw the earlier appointment made for want of due process. The Defendant then urged the Court to dismiss this action for being unmeritorious.
THE SUBMISSION OF THE DEFENDANT
Learned Counsel on behalf of the Defendant formulated a sole issue for determination to wit:
- Whether from the facts of this case, due process was followed in the employment of the Claimants, to make the employment of the Claimants legal?
In arguing the sole issue for determination, the Learned Counsel submitted that the employment of the Claimants did not follow due process hence they are not legal/legitimate staff of the Defendant. The Learned Counsel quoted extensively the provision of Sections 42(2) and 47(1)(a) and (2) of the Local Government Law of Bayelsa State CAP 210 Laws of Bayelsa State 2006. For the sake of emphasis, the said Sections of the Local Government Law of Bayelsa State provide thus:
42(2) – The Staff of the Local Government shall be appointed by the Local Government Service Commission.
47(1)(a) – It is the duty of the Local Government Service Commission to appoint persons to office in the Local Government Service on grade level 07 and above.
47(2) – The Service Commission shall delegate powers to the Local Government to employ, dismiss and exercise disciplinary control over persons holding offices on grade levels 01 to 06.
The learned Counsel submitted that it is only the Local Government Service Commission that can employ persons from grade level 07 and above; however, the law permits the Service Commission to delegate power to the Local Government to employ staff holding office on grade levels 01 to 06. It was further submitted that there was no evidence that the Service Commission delegated power to the Defendant to employ and neither was there any approval of the Service Commission for the employment made by the Defendant as provided by Section 47(2) of the Local Government Law of Bayelsa State. Relying on the cases of Afrilac Ltd vs. Lec (2013) All FWLR (Pt.699) 1178 @ p.1198, para. D. and Military Governor of Lagos State & Ors vs. Adeyiga & Ors (2012) 2 MJSC (Pt.1) 76 @p.80, ratio 3., the Defendant’s Counsel submitted that it is not enough to plead that the Chairman of the Local Government Service Commission participated in the employments of the Claimants but that the Claimants need to adduce cogent and credible evidence that the Service Commission delegated power to the former Chairman to employ the Claimant or that the Service Commission approved such employment.
The Defendant’s Counsel quoted Chapter ii, Clause 5:3:1 of the Handbook on Local Government Administration published by the office of the Vice President of Nigeria in 1992 which states thus:
Each Local Government shall have a Junior Staff Management Committee (JSMC) which will have responsibility for the appointment, promotion and discipline of officers on grade levels 01 – 06
Further relied on Clause 5:7:2(b) of the Handbook on Local Government Administration which provides that the Local Government Service Commission shall monitor the activities of each Local Government on employment, discipline and promotion of Local Government Employees on grade level 01 – 06. The Defendant submitted that the employment of the Claimant falls within the responsibilities of the Junior Staff Management Committee (JSMC) and such employment has to be approved by the Service Commission. The Learned Counsel submitted that the evidence of DW1 (who was the Secretary of the JSMC at the time of the employment) and DW2 (who was the DAGS and Head of the JSMC at the time of the employment) showed that due process was not followed in the employment of the Claimants since the employment did not meet the conditions and requirements as provided in the handbook on Local Government Administration. This fact was captured in the minute of the meeting of JSMC dated the 20th June, 2016. Relying on Unity Bank PLC vs. Olatunji (2015) 5 NWLR (Pt.1452) 203 @p.218 ratio 20, the Learned Counsel submitted that where a Statute prescribed the mode of performing an act, that mode of performing the act must be strictly complied with. In this case, the procedure for the employment of the Claimants as provided by the Handbook on Local Government Administration and the Bayelsa State Local Government Law was not complied with and as such the employments of the Claimants were illegal. The Defendant’s Counsel submitted that since the Claimant’s employments were illegal, they are entitled to summarily removal in line with Clause 5:7:1, Chapter ii of the Handbook on Local Government Administration; moreso, the JSMC meeting held on the 20th June, 2016 effectively terminated the Claimants’ employment. It is the contention of the Defendant that it did not receive any pre-action notice from Claimants before the JSMC met on the 20th day of June, 2016 and that the Claimant has no evidence to prove that the Defendant received the pre-action notice. The Defendant submitted rather that the pre-action notice was served on the Bayelsa State Local Government Service Commission and that there is no prove that the meeting of the JSMC, the withdrawal of appointment and regularisation letters issued to the Claimants were done in anticipation of proceedings. The Court was also urge not to speculate on the allegation that the minute of the JSMC, the withdrawal letter and newspaper publication were done in anticipation of the instant suit. Defendant further submitted that the Letter of Withdrawal of Appointment/Regularisation as well as the publication withdrawing the Claimants’ appointment were sufficient as there is no legally prescribed mode for the termination of the Claimants’ appointments. As for the alternative prayer of the Claimants, the Defendant submitted that the employments of the Claimants were illegal ab intio and therefore not entitled to any arrears. Finally, the Defendant urge the Court to dismiss the Claimants’ suit in the interest of justice as their employments did not follow due process and as such they are not entitled to the relief sought.
SUBMISSION OF THE CLAIMANT
The Claimants on theirpart raised three (3) issues in their Final Written Address for the determine of this Court,to wit:
- Whether Claimants in this suit are employees of the Defendant in this suit.
- Whether in the eye of the law the Claimants’ employment can be said to have been terminated.
- Whether the Defendant can be allowed to take advantage of its own wrongful act.
On issue one, the Claimants’ Counsel submitted that the Claimants were employed by virtue of letters of temporary employment dated the 24th day of May, 2013 and regularisation of employment letter dated the 1st day of July, 2015. That the Claimants worked and were paid until October, 2015. But due to the recession, they were not paid from November, 2015 – May, 2016 (a total of 7 months arrears). It was further submitted that the Defendant didn’t deny employing the Claimants but asserted that there was failure to adhere to certain laid down rules which made the employments illegal. The Claimants’ Counsel relying on Section 140 of the Evidence Act, 2011 submitted that the burden to prove the employment of the Claimants were illegal rest on the Defendant. The Claimants’ Counsel submitted that the Handbook which the Defendant heavily relied on to hold that it did not duly employ the Claimants was published by the Military Vice President in 1992 and was not enforceable in this Court because it is neither an Act of the National Assembly nor a Law of the Bayelsa State House of Assembly. Counsel further reproduced Section 47(2) of the Local Government Law of Bayelsa State which was has already been reproduced above and also hold that that Section is inconsistent with Clause 5.7.2 of the Handbook. Relying on the authority of Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65 @p.89, Counsel submitted that from Section 47(2) of the Local Government Law of Bayelsa State, it is incumbent and compulsory on the Local Government Service Commission to delegate the powers to employ, dismiss and discipline employees between grade levels 01 – 06. He referred the Court to the opening paragraph of EXHIBIT CW1 OP 002 and conducts of the Defendant and the Local Government Service Commission indicative of the fact that everything concerning the employment of the Claimants was correctly done and in accordance with due process. The Learned Counsel urge the Court to hold the failure of the Defendant to produce a letter referenced SILGA/ADM/53(T)/119 of 25th May, 2015 as withholding of evidence against the interest of the Defendant. He cited Section 167(d) of the Evidence Act, 2011 and the case of UBA Plc vs. G. S. Industry Limited (2011) 8 NWLR (Pt. 1250) @p.621, paras. C-E in support of his position. Counsel relying on the cases of Mrs. Fari vs. Federal Mortgage Finance Ltd (2004) All FWLR (Pt.235) 55 and Anyanwu & Ors. Vs. Uzowuaka & Ors (2009) LPELR-515, ratio 5, submitted that EXHIBIT CW1 OP 002 oral denial of the document by the Defendant is not attainable in law except where there is fraud and in this case there was no allegation of any fraud. That based on the authority of Alhaji Aliyu N. Salihu vs. Suleiman Umar Gana & Ors (2014) LPELR-23069 the testimony of CW2, the past Executive Chairman of the Defendant Council, on the procedure which led to the employment of the Claimant further strengthened EXHIBIT CW1 OP 001 and EXHIBIT CW1 OP 002. Counsel submitted that it was erroneous of the Defendant to argue that there was no evidence before the Court to show that the Local Government Service Commission delegated powers to the Defendant to employ the Claimants.
On issue two, the Claimants’ Counsel submitted that there is abundant proof before this Court that the Claimants’ employments enjoyed statutory flavour and that the termination vide a radio announcement was illegal, null and void. That it was EXHIBIT CW1 OP 003 (pre-action notice) received on the 13th of June, 2016 which prompted the Defendant to call a rather emergency meeting of the JSMC on the 17th day of June, 2016, with the JSMC holding an emergency meeting on the subject matter on the 20th of June, 2016 and the Defendant’s preparing a Withdrawal of Appointment Letters for the Claimant and made a newspaper publication on the 24th of June, 2016. Counsel argued that the Defendant’s argument that EXHIBIT CW1 OP 003 was never received was misleading because on the face of the exhibit it was received by the Personal Assistance (PA) on behalf of the then Caretaker Committee Chairman of the Defendant and the Bayelsa State Local Government Service Commission; and that failure of the Defendant to cross-examine on the content of the said exhibit is a tacit acceptance of the truth of the evidence. Counsel citing the Section 83(3) of the Evidence Act and the case of Mr. Alfred Ugokwe vs. Chemcus Industries Limited & Ors (2018) LPELR-45562 argued that the actions of JSMC after receipt of the EXHIBIT CW1 OP 003 on the 13th of June, 2016 which were evident in documents were made in anticipation of legal proceedings and also that the Withdrawal of Appointment Letter dated the 24th day of June, 2016 has no probative value as it was not signed by the current DAGS who has the authority to sign it. The Court was urged to expunge all exhibits of the Defendant as they were made in contemplation of this suit.Learned Counsel submitted Section 47(2) of the Local Government Law of Bayelsa State provides for the termination of employment by delegation of same to the Defendant Council, that it was the Chairman of the JSMC who was also the DAGS of the Defendant who performed that duty. He said it was wrong and demeaning of the Claimants for the Defendant to attempt to terminate their employment through the media and newspaper publication instead of following the due process, the employment having enjoyed statutory flavour. He cited the case of Oak Pension Limited & Ors. vs. Mr. Michael Oladipo Olayinka (2017) LPELR-43207 in support of his argument. He urged the Court to discountenance the termination procedure adopted by the Defendant and order reinstatement of the Claimants and the payment of all their salaries from November, 2015 until the requirement of the law is fulfilled.
On issue three, the Claimants’ Counsel submitted that Defendant should not be allowed to benefit from their own wrongs, having led evidence that they employed the Claimants without the laid down rules; and if the employments of the Claimant is declared non-statutory, the Claimants should be awarded special and general damages as per their alternative reliefs. In conclusion, Counsel urge the Court to set aside the Claimants’ employments which were unlawfully terminated.
DEFENDANTS’ REPLY ON POINTS OF LAW
In reaction to the Claimants’ Final Written Address, the Defendant filed a Reply on Point of Law. The Defendant’s Counsel in his Reply on Point of Law submitted that the Claimants’ argument that the Handbook on Local Government Administration signed and published by the Vice Military President is not enforceable in Court should be discountenance because the said handbook enjoys legal flavour of a Decree since it was duly signed by the Vice Military President of Nigeria and became enforceable throughout Nigeria by virtue of Section 315 of the Constitution. He argued that the Handbook is an existing instrument and has not been repealed. Counsel also submitted that the burden of proofing that the Claimants’ employments followed due process has not shifted to the Defendant but still rest on the Claimant. He said that the cases of UBA Plc vs. GS Industry Limited (Supra), Mrs. Fari vs. Federal Mortgage Bank (Supra) and Anyanwu vs. Uzowuakapors (Supra) are not relevant in this case. He submitted that the Defendant by EXHIBIT DWSJ001, EXHIBIT DWSJ002(A) and (B), and DWSJ003 has successfully proved that the Claimants’ employments did not follow due process and that the salaries they were earning ab initio were in error; therefore, they were removed. He submitted by relying on the cases of UAC vs. Mcfoy (1961) 3 All ER 1169 @p.1172 and Osafile & Anor vs. Odi & Anor (1977) 1 SC 47 @p.59 to hold that you cannot put something on nothing and expect it to stand. Learned Counsel while submitting on issue two raised by the Claimants’ Counsel said that the Handbook on Local Government Administration and the Local Government Law of Bayelsa State employ the Defendant to terminate the employments of the Claimant and the Defendant terminated their employments on the ground that due process was not followed in employing them; consequently, they were issued letters of termination and publication in newspaper and radio was made directing them to collect their letters of termination from the Secretariat. He submitted that this fact pleaded were not denied nor discredited and as such needs no further proof. Counsel argued that contrary to the Claimants’ submission, there is no law that prohibits DW2 from signing the Letters of Withdrawal of Appointment on behalf of the Claimant. Such signing on behalf the Chairman is not irregular and the Claimants’ submission that the Letter of Withdrawal was not signed goes to no issue. He also submitted that the Claimants’ argument that the Defendant’s document was inadmissible because it was made in contemplation of proceeding was high misconceived. EXHIBIT CW1 OP 003– Pre-action notice – has nothing in it to show that it was served on the Defendant nor received by any staff of the Defendant and that the Defendant’s action was taken in line with the Handbook and in the ordinary course of its business. Also, he argued that Section 149(c) of the Evidence Act, Section 83 of the Evidence Act and the case of Ugokwe vs. Chemcus Industries Services Ltd & Ors (Supra) does not apply to this case but rather supported the case of the Defendant, as the pre-action notice was only served on the Local Government Service Commission which is not a party to this suit and as such the exhibits tendered by the Defendant were not made in anticipation of this suit. Citing the case of HMS Ltd vs. First Bank (1991) 1 NWLR (Pt.290) @Pp.312-313, the Counsel urge the Court to discountenance the submission of the Claimants’ Counsel and to uphold his argument. Also, relying on Akulega vs. Benue State Civil Service Commission (2002) FWLR (Pt.123) 255 @p.281, paras. D-E., Counsel submitted that all cases cited by the Claimants’ Counsel are irrelevant and out of context and goes to no issue. In reaction to issue three raised by the Claimants, Counsel submitted that one cannot put something on nothing and expect it stand and that by the Local Government Law and the Handbook the Claimant ought not to have been employed in the first place but they were employed in error and the claimants have benefited by earning an illegal and unlawful salary. He submitted that equity does not support illegality, so the Claimants are not entitled to any further benefit and doing otherwise will amount to legalizing illegality. Finally, Counsel urged the Court to dismiss this suit for lacking in merit.
COURT’S DECISION
Having read through all the processes filed and exhibits tendered by Learned Counsels for and on behalf of the respective Parties and heard their submissions in support of their cases and also listened to and observed the deportments of the witnesses who testified before this Court, I have carefully compressed the issues for determination to a sole issue by adopting that of the Defendant, which is:
- Whether from the facts of this case, due process was followed in the employment of the Claimants, to make the employment of the Claimants legal?
- Whether the employments of the claimants were terminated wrongly.
From the facts and evidence available before this Court, parties are ad idem on the position that the Claimants were employed on the 24th day of May, 2013 via Letters of Temporary Appointment and their employments were regularised on the 1st day of July, 2015 via Letters of Regularisation of Appointment. However, the sour blood that flows through the veins of this case is the legality of the employments of the Claimants. Where the Claimants tenaciously held on to the fact that they were properly employed to their various grade levels and cadres (See paragraphs 3 – 9 and 16 – 18 of the Amended Statement of Facts, paragraphs 4, 5 and 6 of the Deposition on Oath of Mr. Oyeintokoni Pondei (CW1)); the Defendant vehemently maintained that the Claimants were not properly employed as their employments did not follow due process (see paragraphs 3, 11 – 13 of the Consequential Amended Statement of Defence, paragraphs 3 – 4 of the Deposition on Oath of Mr. Clarkson Osogboyai (DW2) and paragraph 3 – 4 of the Deposition on Oath of Mr. Ayebakenimi Leghemo (DW1)).
The Claimants and the Defendant have relied on Section 47(2) of the Local Government Law of Bayelsa State Cap 210, Laws of Bayelsa State as one of the statutory provision under which a valid employment of a junior staff of a Local Government Council in Bayelsa State is based. The Defendant in addition has relied on Chapter II, Clause 5:3:1 and Clause 5:7:2(b) of the HandBook on Local Government Administration published by the Office of the Vice – President of Nigeriaas part of the guideline to determine the validity of the employment of a junior staff of a Local Government. For the purpose of emphasis, I shall now proceed to reproduce the provisions the Section and Clauses of the relevant authorities relied upon by the parties as below:
1) Section 47(2) of the Local Government Law of Bayelsa State:
“The Service Commission shall delegate powers to the Local Government to employ, dismiss and exercise disciplinary control over persons holding offices on grade levels 01 to 06.”
2) Chapter II, Clause 5:3:1 of the Handbook on Local Government Administration:
“Each Local Government shall have a Junior Staff Management Committee (JSMC) which will have responsibility for the appointment, promotion and discipline of officers on grade levels 01 – 06”
3) Clause 5:7:2(b) of the HandBook on Local Government Administration:
“The Local Government Service Commission shall perform the following functions:
(b) monitoring the activities of each Local Government on appointment, discipline and promotion of local government employees on Grade Levels 01 – 06 in order to ensure that the guidelines are strictly and uniformly applied.
From the above provisions, a conjunctive reading of the provisions would expose to one that the employment of local government employees on Grade Levels 01 – 06 involves both the Local Government Service Commission and the Junior Staff Management Committee (JSMC). A good look at the Local Government Law and the Handbook on Local Government Administration exposes to one also that the responsibility of the Local Government Service Commission varies. Where in the former, the Commission is empowered to employ, dismiss and discipline, in the latter, the Commission is only to monitor the appointment, discipline and promotion of the junior staff. As a matter of fact, the power to employ, promote and discipline a staff is vested in the JSMC. I find book the Local Government Law of Bayelsa State and the Handbook on Local Government Administration relied upon by the Learned Defence Counsel a major contradiction and unsaved for the Court to rely upon. In the light of this contradiction, the major challenge before me still remain which of the authorities, the Local Government Law of Bayelsa State or the Handbook on Local Government Administration, should the Court rely in determining this case? The Local Government Law of Bayelsa State is a Law properly made by the House of Assembly of Bayelsa State in pursuant of its constitutional power to make laws for the establishment, structure, composition, finance and functions of the Local Government Councils. However, the Handbook on Local Government Administration is just a guideline on Local Government Administration published by the Office of the Vice – President of Nigeria. Even though Learned Defence Counsel argued that it was made pursuant to a Decree and by virtue of Section 315 of the Constitution of the Federal Republic of Nigeria it becomes enforceable in the Court, I find it difficult to accept because the Decree which the Handbook was made pursuant to was not supplied and there is nothing in Section 315 of the Constitution that confers the Handbook with any force of law or validity before our Court. Under our democratic constitutional order, the constitution is very clear in its power sharing and scope of power assigned to the various tiers of government. It is completely against the Constitution for the office of the Vice – President to arrogate to itself a power not granted and to being to make guidelines that is mandatorily enforceable in the Local Governments. The Handbook on Local Government Administration is inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as Amended). The structure and composition of a Local Government Council is the exclusive reserve of the State Government and it is to this end that I find the Handbook on Local Government Administration published by the Office of the Vice – President obnoxious and antithetical to the Constitution of the Federal Republic of Nigeria 1999 (as Amended). I also hold that the relevant document to be relied upon for the determination of the employment and dismissal of the employees of the Local Government Council in Bayelsa State is the Local Government Law of Bayelsa State Cap.210 Laws of Bayelsa State 2006.
The Court having been satisfied that the Handbook on Local Government Administration is not a legal document capable of commanding a legal compliance by the Local Government Councils in Nigeria, it means that any provision therein (in the Handbook) is not binding and of no effect on the activities and affairs of the Local Government Council. Whatever action taken by the Local Government Councils in obedience or compliance to the Handbook is equally of no momentum; such action shall be null and void. This position leads me to a vital issue in this case which deals with the process of employment. If there should be any process for the employment and dismissal of any employee of the Council, such process should have come from the Law that gives the power for such employment and dismissal or such process should be made pursuant to the Law conferring powers of employment. In this case, procedure for employment and dismissal should either be made by the Local Government Law of Bayelsa State or by regulation made pursuant to the Local Government Law of Bayelsa State. The Handbook on Local Government Administration cannot be relied upon as supplying procedure for employment into the Local Government Council except if it’s made pursuant to the Local Government Law of Bayelsa State.
The Local Government Law of Bayelsa State Cap.210 Laws of Bayelsa State 2006 in Section 42(2)has placed the responsibility of appointing or employing any staff of the Local Government Council on the Local Government Service Commission. Yet by virtue of Section 47(2) of the same Law, the “Service Commission shall delegate powers to the Local Government to employ, dismiss and exercise disciplinary control over persons holding offices on grade levels 01 to 06”. “Shall” as used in this law connotes compulsion. This means that the direct employment of Local Government Council’s staff on grade levels 01 – 06 is the duty of the Local Government Council itself and on the condition that the power must be delegated from the Service Commission. The procedure for the employment or dismissal was not given; this leaves a huge vacuum for the Local Government Council to determine their own procedure of employment and dismissal. However, one thing that is clear from the provision of Section 47(2) of the Local Government Law of Bayelsa State is that only the Council has the power to make employment upon such power being delegated. Whatever process the Council adopts in executing such employment, such procedure would only be for administrative convenience. From the evidence before the Court, it is clear that the Defendant made use of the Junior Staff Management Committee (JSMC) in the process of employing the Claimants. Junior Staff Management Committee (JSMC) is a body created and recognised by the Handbook on Local Government Administration. The Handbook having been declared unlawful to impose any obligation on Local Government Council, it can equally be said that the Junior Staff Management Committee (JSMC) created by the Handbook for the purpose of employing, dismissing and disciplining staff of the Local Government Council is null and void. Whatever action the JSMC carried out in line with the Handbook is also null and void. However, since the Local Government Law of Bayelsa State did not provide for the procedure that the Council would comply with to effect any employment, the Council is at liberty to adopt its method or procedure of employment. If in devising its own procedure of employment, the Council chooses to utilize any internal Committee (inclusive of the JSMC) set up by it to carry out the process of employment, I don’t think the Council’s action would be out of place or against the enabling law delegating the power of employment to it. Action of such internal committee must not be tied to any Handbook but purely based and in pursuant of the enabling law delegating power to the Council to make employment. However, in this case, it is discovered with pity that the JSMC created and its responsibilities were done in pursuant of the Handbook on Local Government Administration. I must state here, that Section 47(2) of the Local Government Law of Bayelsa State delegates power to the Local Government Council to employ and not to any committee of the Local Government Council. Therefore, JSMC cannot employ or dismiss any person or employee of the Local Government. The only person authorised by the Law is the Local Government Council who can rightly act through its lawful officers. The implication and as well the lacuna created by the Local Government Law of Bayelsa State on the employment, dismissal and discipline of employee in grade levels 01 – 06 is that there is no procedure for such employment, dismissal or discipline and as such the Council can choose to employ and fire a person the way and manner it pleases. The situation created by Section 47(2) of the Local Government Laws of Bayelsa State is an employment without statutory flavour wherein the master can hire and fire at will so far the master possesses the necessary delegated power. This position is well explained in the case of Saibu vs. Kwara State Polytechnic, Ilorin (2008) LPELR-4524(CA) where the Court of Appeal held thus:
Where an employee is employed by a statutory body but the terms of employment or discipline of its staff are not embodied in the law creating the said statutory body, the employment is not one with statutory flavour. Where the statute creating the statutory body makes such provisions and regulations are made pursuant to these provisions, the employer is bound by the regulations so made. On the other hand, where the law creating the statutory body is silent on the mode of disciplinary action but the statutory body makes administrative rules and regulations for the employment, promotion and discipline of its staff, such regulations do not confer on employees the status of employees in employment with statutory flavour. A staff regulation of a statutory body is not a subsidiary legislation which can give the employment under it a statutory flavour. See KATTO vs. CBN (1999) 5 SCNJ 1 and (1999) 6 NWLR (Pt.390)
To support the above case of the Supreme Court in the case of Comptroller General of Custom & Ors vs. Comptroller Abdullahi B. Gusau (2017) LPELR-42081(SC) held thus:
An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions.
In the case of Oforishe vs. Nigerian Gas Co. Ltd (2017) LPELR-42766(SC) it was held that:
Conditions of service are said to have statutory flavour, where they are expressly set out by statute or statutory regulations made under a subsidiary regulation, such as Civil Service Rules which must be enacted by the parliament or any law making body as a schedule to an Act or Law or as subsidiary legislation in the instant case, the conditions under which the Appellant was employed are contained in the junior Staff Handbook, Exhibit N which were drawn up by the Board of Director of NNPC. They therefore have no statutory flavour. This being so, the Appellant’s employment falls within the common law principle of master and servants. See IDONIBOYEOBU vs. NNPC (2003) 2 NWLR (PT.805); FAKUADE vs. OAUTH COMP. MANGT. BOARD (1993) 5 NWLR (PT.291) 47
From the above authorities, it is clear that for the employment of any employee appointed by the Defendant’s Council to enjoy any statutory flavour, it is not enough for the statute to confer power to appoint or employ on the Defendant Council, such statute must proceed further to provide for the conditions of service for the employment, discipline and dismissal. In this case, the Local Government Law of Bayelsa State has not provided the condition of service for the employment of employees nor for their dismissal or discipline. To this end, one can safely conclude that the employment of the Claimants, if any, does not enjoy statutory flavour, rather it is a master and servant relationship.
Since the enabling law governing the employment, dismissal and discipline of the Claimants is silent on the conditions of service or procedure for the employment of the Claimants save for the provision that the power to employ shall be delegated to the Local Government Council, whatever mode or process the Defendant adopts to employ its staff should not be the prerogative of the Defendant in the absence of any concrete guideline, rules or regulations to that effect. It is the contention of the Claimants who through CW2 said that before their employment the meeting of the Highest body in the Council – i.e. the Finance and the General Purpose Committee – which take cares of employment and other issues., That they agreed in the meeting that there is the need for employment of junior staff and order was given to the Chairman of the JSMC who then was the Director of Admin and General Service (who was part of the meeting) to do assessment for the employment which was done and a notification sent to the Chairman of the Local Government Service Commission. It was stated that the Chairman of the Service Commission accepted the recommendation for employment of junior staff before they proceeded to employing the Claimants. On the part of the Defendant through the witnesses, it was stated that the procedure for employment is for the JSMC to meet and take the need assessment on the employment and then communicate same to the Service Commission for the commencement of the employment. Thereafter will be advertisement and call for application from applicants, then the interview, the shortlisting of successful applicant and issuance of appointment letters to successful applicants. The Defendant hold that this procedure was not followed. The Local Government Law of Bayelsa State does not provide for condition of service of the employees and neither does it provide for the procedure the Local Government Council should comply with in employing its staff. Since it is decided that the employments of the Claimants are not statutory flavoured, then whatever guideline the defendant gives shall be relied upon. But the challenge here again is that there is not concrete or cogent documentary guideline which the Court can rely upon to determine whether the procedure adopted by the Defendant in employing the Claimants is valid or not. However, from the evidence supplied by the Defendant about the JSMC meeting to do a need assessment then communicating same to the Service Commission, the Court can reasonable infer from the testimony of CW2 that the JSMC did assessment and notification was written to the Chairman of the Service Commission. CW2 said the Chairman of the Service Commission accepted the recommendations and also did the assessment for the employment of staff from grade levels 01 – 06. CW2 testified that the Claimants were interviewed and were subsequently employed. DW1 and DW2 both testified that it is the rule and practice of the Defendant that before any recruitment of staff will take place in the Local Government Council, the Junior Staff Management Committee of the Council (Defendant) will meet and approve same and then forward a letter to the Local Government Service Commission which must approve (notification) same before any staff can be employed (paragraph 3 and paragraph 6 of the Witness Statement of Oath of DW1 and DW2 respectively).I find the evidence of CW2 credible particularly on the aspect of the procedure adopted which was similar in nature to what the Defendant has provided and particularly where there was no denial from the Defendant, and DW2 in particular, that DW2 never participated in the meeting of the Finance and General Purpose Committee leading to ordering him to carry out an assessment consequent upon which a notification was sent to the Chairman of the Service Commission. Taking a look at the pleadings of parties, paragraphs 4 – 10 of the Consequential Amended Statement of Defence which should have been a counter opposition to the paragraphs 10 – 15 of the Amended Statement of Fact was completely abandoned by the Defendant during trial thereby allowing the evidence of the Claimant to sail through without contradictory evidence. It is trite law that where no evidence is led as to fact pleaded, it would be deemed abandoned. The Supreme Court in the case of C. N. Okpala & Sons Ltd vs. NB PLC (2017) LPELR-43826(SC) held thus:
Pleadings constitute notice of the case a party intends to canvass at the trial. For that reason, all material facts to be canvassed at the trial are to be pleaded and proved…
The corollary to the principle stated is that any evidence led on facts not pleaded will go to no issue and where no evidence is led to support a pleaded fact, pleading in that respect is deemed abandoned. See UBN LTD vs. OGBOH (1995) 2 NWLR (PT.380); FAWEHINME vs. N.B.A (NO.1) (1989) 2 NWLR (PT.105) 494; AJIDE vs. KELANI (1985) 3 NWLR (PT.12) 248.
In support of the fact that the Chairman of the Service Commission accepted the recommendations for the employments of the Claimants is the opening paragraphs of EXHIBIT CW1 OP 002 which is the “Regularization of Appointment” which reads thus:
With reference to the request vide letter SILGA/ADM/53(T)/119 of 25th May, 2015 and the subsequent approval from the Commission, I am directed to inform you that the Southern Ijaw Local Government has approved the regularization of your Appointment…
The Defendant was the one who issued out EXHIBIT CW1 OP 002 and confirmed without compulsion that based on “the subsequent approval from the Commission” the appointments of the Claimants are approved. The Defendant did not deny issuing the said exhibit and its content except that they were issued in error and without due process. The Defendant’s oral attempt to deny that the no approval was given by the Service Commission seem to contradict the Defendant’s position that “the subsequent approval from the Commission”. The law is trite that no oral evidence would be allowed to vary the content of a written document. In the case of Teju Investment and Property Co. Ltd vs. Subair (2016) LPELR-40087 (CA) it was held that:
Beside which, it is now firmly settled that documentary evidence is the best evidence. It is the best proof of the contents of such document, and no oral evidence will be allowed to discredit or contradict the contents thereof, except where fraud is pleaded.
I agree with the submission of the learned Counsel to the Claimants that documentary evidence can only varied with oral evidence except where fraud is alleged. In this case, no allegation of fraud was raised but of error and undue procedure. To prove non-compliance with laid down procedures in the employment of the Claimant, the Defendant tendered EXHIBITS DWSJ 001 AND EXHIBIT DWSJ 002A & B (i.e the Minute of the Meeting of the Junior Staff Management Committee (JSMC) of Southern Ijaw Local Government held on the 20th June, 2016 and a Letter from the Local Government Service Commission dated the 16th May, 2016 respectively). Let me first comment on all the exhibits tendered by the Defendant as there are surrounded by vehement objections from the Claimants that the documents were made in anticipation of proceedings because the documents were made after the receipt of EXHIBIT CW1 OP 003 and it became obvious that the Claimant would be heading to Court. The Defendant deny receipt of EXHIBIT CW1 OP 003 but from the endorsement on the face of the Exhibit addressed to the Caretaker Committee Chairman and copied to the Chairman of the Bayelsa State Local Government Service Commission, it is glaring that endorsement acknowledging the exhibit was made by the P. A. and by the Bayelsa State Local Government Service Commission. From the endorsements on the face of the Exhibit, I have no doubt in my mind that the document was received by the Caretaker Committee Chairman of the Defendant Council. Could it be said that it was the receipt of the Exhibit CW1 OP 003 that prompted Exhibits DWSJ 001 and DWSJ002A & B; this would depend on the circumstances surrounding the exhibits. First on EXHIBIT DWSJ001, it was made on the 20th June, 2016 while EXHIBIT CW1 OP 003 which is the pre-action notice was made on the 13th June, 2016 and received the same day by the Defendant. As at when the EXHIBIT DWSJ 001 was made, the cause of action in this matter has already accrued and with the Defendant anticipating the Claimants to approach the Court if their request is not met. The Court of Appeal in explaining what anticipation of proceeding is in the case of OMAC OILS NIGERIA LIMITED & ORS v. ELDER SAMSON OLUSHOLA EGBADEYI & ANOR(2014) LPELR-24112 (CA) held that:
…when proceedings are anticipated. The legal provision talks of proceedings pending or anticipated. Proceedings pending are easier to identify but anticipated is not that definite. In my view, anticipated is where there is evidence of taking such a step that would ordinarily end up with the filing of a suit, where there are definite steps towards initiating a legal process, that could mean anticipated proceedings but it all depends on the facts of the case. Exhibit P9 was made in 2001 while this suit was filed on 2002, there is no evidence to show that it was made in anticipation of proceedings.
Circumstances surrounding Exhibit CW1 OP 003 and EXHIIBIT DWSJ 001 are such that steps taken by the Defendant would, and as it later turned out, ordinarily end up with the filing of a suit. Also, the time line between producing EXHIBIT DWSJ 001 and the filing of this suit was barely up to a month interval. On the basis of the above I find EXHIBIT DWSJ 001 inadmissible because it was made in anticipation of this proceedings. Assuming the exhibit is to be admissible, what probative value would I have attached to it? EXHIBIT DWSJ 001 is the Minute of the JSMC which resolved that the employments of the Claimants be withdrawn with effect from when they were made because JSMC did not meet to approve the employments. This position of the JSMC to me is an arrogation of power it doesn’t possess and an arrogation of power not delegated to it. The power to employ is delegated to the Defendant and not committee set up by the Defendant and if there is any approval needed to employ or withdraw employments, it resides with either the Defendant or the Local Government Service Commission by virtue of Section 47(2) of the Local Government Law of Bayelsa State. Since the JSMC has no power to appoint or approve or withdraw any employment and the law does not delegate any such power to the JSMC. For this reason I refuse to accord the said EXHIBIT DWSJ001 any probative value. On EXHIBIT DWSJ002 was admitted without any objection. Being a letter from the Local Government Service Commission which predated EXHIBIT CW1 OP 003, it couldn’t have been made in anticipation of proceeding and particular, having been made by person in an official capacity. The Court was quite certain in its pronouncement in the case of OMAC OILS NIGERIA LIMITED & ORS v. ELDER SAMSON OLUSHOLA EGBADEYI & ANOR (Supra)when it held that:
A person interested was considered in the case of N.S.I.T.F.M.B v KLIFCO NIG LTD (2010) 13 NWLR (Pt 1211) 307 where the Supreme Court held as follows: “As regards the phrase “a person interested” I agree with the Respondent that the phrase has been examined in the case of EVAN V NOBLE (1949) IKB 222 at 225 where a person not interested in the outcome of an action has been described as “a person who has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest but completely detached, judicial, impartial, independent.” In other words, it contemplates that the person must be detached, independent and non – partisan and really not interested which way in the contest the case goes. Normally, a person who is performing an act in his official capacity cannot be a person interested under Section 91 (3). I think the phrase “a person interested” even moreso has been quite definitely put in the case of HOLTON v HOLTON (1946) 2 AER 534 at 535 to mean “a person who has a peculiarly or other material interest in the result of the proceedings” – a person whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means an interest in the legal sense which imports something to be gained or lost
Based on the above authority, I do not consider the Bayelsa State Local Government Service Commission as or the person acting on its behalf an interested party in this suit. However, I will return to its probative value shortly.
EXHIBITS DWSJ003 and EXHIBIT DWSJ004A-L are documents which fall in the same categories with EXHIBIT DWSJ001, having been made when proceeding was anticipated. The documents must suffer the same fate as EXHIBIT DWSJ001 and there are hereby declared inadmissible. No probative value would have been foist on EXHIBIT DWSJ004A-L because from the pleading of the Defendant and the evidence of DW2, the exhibits were product of duress which DW2 would be unable to refuse to sign for fear of unwanted consequences.
Back to EXHIBIT DWSJ002 which seemed potent to challenge EXHIBIT CW1 OP 001 and EXHIBIT CW1 OP 002 to contradict the Claimants’ position that the approval of the Local Government Service Commission was gotten for the employments of the Claimant. EXHIBIT DWSJ002 came as a response to the request of the letter of the Defendant demanding the employment details of the Claimant. The content of the document is to the effect that due process was not followed in employing the Claimants and that the JSMC did not sit and agree to embark on the employment exercise. Curiosity got the better side of me to ask the question, how did the Local Government Service Commission got to know that due process was not followed in the employment of the Claimants or which of the due process was not followed particularly where there was no procedure in the extant law for such employment. Also, how did the Service Commission know that the JSMC did not meet and agree on the employments of the Claimants. Failure to get answers to this curiosity of mine makes it unsafe for me to completely thrust probity on this document. From evidence before the Court, instances upon which one can hold that the Claimants were employed abound. Such instance is the assignation of responsibilities to the Claimants at the Local Government Council and the subsequent payment of salaries to the Claimants from May, 2013 to June, 2016 (even though salaries were owed from November, 2015 to May, 2016). It is shocking to note that Claimants were allowed to be engaged and invested their times and energies in serving the Defendant without the knowledge of the Service Commission knowing nor did the Service Commission find any fault in their services for three (3) years. Also, when the Defendant represented to the Claimants that the approval of the Commission was gotten in EXHIBIT CW1 OP 002, the Commission never faulted it; only for the Commission to after the exit of the elected Chairman of the Defendant’s Council and upon the unfortunate grip recession, the Claimant became casualties of change of regime in the Defendant Council. The conduct of the Service Commission contributed to and encouraged the employments of the Claimants and with the positive believe that the Claimants’ employments were approved by the Service Commission. The Service Commission cannot at this stage be allowed to deny its conduct or action which other persons have so much believed and relied upon to be true. In BPS CONSTRUCTION & ENGINEERING CO. LTD v. FCDA (2017) LPELR-42516(SC) the Court held thus:
Section 151 of the Evidence Act 1990, now Section 169 of the Evidence Act 2011 provides:
“When one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act, or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
This is what is meant by estoppel by conduct. See also: Olalekan V. Wema Bank Plc. (2006) 13 NWLR (Pt.998) 617 @ 622 – 626 H – G; Lawal Vs Union Bank Ltd. (1995) 2 SCNJ 132 @ 145
From the above analysis of the EXHIBIT DWSJ002, EXHIBIT CW1 OP 002 and the conducts of the Commissions, I find it unsafe for me to accord EXHIBIT DWSJ002 any probative value. I hold that EXHIBIT DWSJ002 is not enough to controvert the express content of EXHIBIT CW1 OP 001 and EXHIBIT CW2 OP 002 nor can EXHIBIT DWSJ002 be used to deny EXHIBIT CW1 OP 001 and EXHIBIT CW1 OP 002. Also, based on the evidence available before me I find that the employments of the Claimants were properly done and I so hold. I, therefore, resolve the sole issue for determination in favour of the Claimant. Unfortunately, this is not the end of the case as there are other hurdles to overcome in this case.
The next hurdle before the Court is to determine second issue on whether the employments of the Claimants were terminated wrongly. In guideline principle in the determination of termination of employment is that the Claimant must plead and prove that procedure which the Claimant has breach in determining or terminating his employment. In ORGAN & ORS v. NIGERIA LIQUEFIED NATURAL GAS LTD & ANOR (2013) LPELR-20942(SC) the Supreme Court held that:
In the instant case where the appellants allege wrongful termination of their employment by the 1st respondent the onus is on them to prove not only the existence of a contract of employment between them and the 1st respondent but the terms of the very contract their employer breached in bringing the contract to an end
Also the Supreme Court in University of Calabar vs. Essien (1996) LPELR-3416(SC) held thus:
In an action where a party seeks for a declaration that the termination of his employment was wrongful, null and void the most fundamental issue to put before the court is the condition of service. The aggrieved party must aver it as a cardinal point in his pleading and adduce evidence before the trial court on non-compliance with the terms of the condition of service in effecting the termination of his employment. If the conditions have been pleaded it is important to plead also that the disciplinary proceedings have not been conducted fairly
I have gone through the gamut of the entire pleading of the Claimants to find where they have pleaded the condition of service and the non-compliance or breach of the terms of the conditions of service in effecting the termination of their employments but I couldn’t find any. It is imperative to state that the natures of the Claimants’ claims are declaratory in nature. Being declaratory, the Claimants are expected to plead their case on the strength of their case and not on the weakness of the Defendant’s case. In the case of Akinbade & Anor vs. Babatunde & Ors (2017) LPELR-43463(SC) the Supreme Court held that:
It is also settled law that a claim for a declaratory relief is a discretionary remedy which is never granted as a matter of course, on the admission of the adverse party or in default of pleadings by the defendant. The claimant must lead evidence to establish his entitlement to the declaration he seeks and may not rely on the weakness of the defence, if any. See: Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Bello v. Eweka (1981) 1 SC 101; Emenike v. P.D.P. (2012) LPELR-7802 (SC) @ 27 D-G
Since the Claimants were not able to plead or prove the condition of service and the nature of breach of the condition of service which the Defendant had done, the Court finds it difficult to hold that the termination of the employment of the Claimant in whatever manner it was done was wrongful or illegal. Also, since Claimants failed to plead or prove any wrongful termination of their employments, I find no difficulty in holding that they are not entitled to reinstatement and I so hold. I resolved the second issue in favour of the Defendant.
However, since it has been proved that the Claimants were employed and were paid salaries, the pleading and evidence of the Claimant showed that they were owed arrears of salaries from November, 2015 to May, 2016. The defence of the Defendant to this piece of evidence was that the Claimants were earning unlawful salaries due to the fact that their employments were illegal. The Court having found out and held earlier in this judgment that the employments of the Claimants were not illegal or unlawful, whatever salaries they earned as consequence or reward for their employments were lawfully earned. Also, whatever salaries arrears the Defendant was owing the Claimants, its only lawful that the Defendant pays them their salaries arrears, as labourers deserve their wages. In the case of OFFA LOCAL GOVERNMENT v. TOYIN OLADIPO ESQ. (2012) LPELR-15339 (CA), it was held that a labourer, of any status, deserves his wages.It is in line with this that I found the merit in the alternative to relief three (3) as contained in the Claimant’s Complaint. I, therefore hold that the Claimant having worked for the Defendant and owed salaries arrears from November, 2015 to May, 2016 amounting to Seventy-Eight Million, Seven Hundred and Thirty-One Thousand, Six Hundred and Seventy-Six Naira, Forty-Five kobo (N78,731,676.45)are entitled to be paid the sum of Seventy-Eight Million, Seven Hundred and Thirty-One Thousand, Six Hundred and Seventy-Six Naira, Forty-Five kobo (N78,731,676.45)to cover the arrears owed to each and every one of them. I so hold.
Furthermore, in the absence of any conditions of service as to the notice to be given by either party in case of termination of contract of employment, I have no option other than to resort to the Labour Act. And section 11 (2) (d) of the Labour Act, the Claimants having worked for the Defendant for over three years, the Defendant ought to have given the Claimants a one month notice or salary in lieu. And having failed to do that the Claimants are entitled to a one month salary in lieu of notice in addition to their accumulated arrears of salary.
On a whole and from all I have said above, it is the decision of this Court that:
- The Claimants having held to have been lawfully employed, I grant relief one of the Compliant in favour of the Claimants and declared that the employment of the Claimants vide the omnibus letters of Temporary Appointment dated the 24th day of May, 2013 and the subsequent Letters of Regularization of Appointment dated the 1st day of July, 2015 issued by the Defendant is valid in accordance with the norms, rules and laws of the Defendant and Bayelsa State.
- The Claimants failed to plead and prove the condition of service which the Defendant has breached in the termination of their appointments, as such I refuse to grant relief two.
- Since the Claimants were unable to plead and prove any breach of the condition of service upon which their appointments were terminated, and for the refusal to declare any termination wrongful, illegal, oppressive and gross violation of the law, it follows that the Court cannot reinstate the Claimants to their appointment where no wrongful termination of appointment was declared; I, therefore, refuse relief three (3). However, since it was proved that the Claimants were lawful employees of the Defendant, they are entitled to be paid their salaries arrears in full; I, therefore, grant the alternative relief to relief three (3) by ordering the Defendant to pay the sum of Seventy-Eight Million, Seven Hundred and Thirty-One Thousand, Six Hundred and Seventy-Six Naira, Forty-Five kobo (N78,731,676.45)being the salaries arrears owed to all the Claimants forthwith.
- Since it was not proved that the employments of the Claimants were wrongfully terminated, the Claimants are not entitled to relief four (4).
- The claimants are also entitled to one month salary in lieu of notice in line with the provisions of section 11 (2) (d) of the Labour Act.
Judgment is hereby entered partly in favour of the Claimants by the grant of reliefs one (1) and the alternative relief to relief (3) and partly against the Claimants by the refuse to grant reliefs 2, 3 and 4.
All terms of this judgment are to be complied with by the parties within 30 days. This is without prejudice to the right of appeal against the judgment of this court by any of the parties dissatisfied by this judgment.
Judgment is hereby entered accordingly.
__________________________________________
HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
YENAGOA DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
