LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

SULE MUHAMMAD AND 82 ORS -VS- JIGAWA STATE GOVERNMENT AND

admin 0

THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN AT KANO

Before His Lordship:-

HON. JUSTICE E.D. E ISELE                                       JUDGE

 

DATE: 30TH DAY OF JANUARY, 2019       

SUIT NO: NICN/KN/39/2016

BETWEEN

  1. SULE MUHAMMAD & 82 ORS             CLAIMANTS
  2. IBRAHIM A. USMAN
  3. AMINA A. MAGAMA
  4. IBRAHIM MOHD AMINU
  5. KABIRU TIJJANI
  6. HAMZA GARBA
  7. ADAMU A. YA’U
  8. NURA ABUBAKAR
  9. ABUBAKAR HARUNA
  10. SABO ABDULLAHI
  11. ABDULLAHI G. BAYI
  12. ABDULLAHI ISYAKU
  13. IBRAHIM MALANDI
  14. ZUBAIRU ABUBAKAR
  15. GARBA SULE
  16. HAUWA DAUDA SULEIMAN
  17. KABIRU MOHD SULEIMAN
  18. ZAKARI ALIYU
  19. ADO MOHD SIDI
  20. MOHD BELLO ABBAS
  21. AHMAD INUWA
  22. BELLO GARBA
  23. ISYAKU HASSAN
  24. MUHD SALISU
  25. UMAR SHEHU
  26. MUHAMMAD M. HASSAN
  27. IBAHIM MOHD
  28. SULEIMAN I. YAKUBU
  29. HARUNA ABDU
  30. USMAN S. AREWA
  31. ALI WAKILI
  32. MOHD ALIYU AJABO
  33. ALHAJI YAHAYA JABO
  34. GARBA A. ALIYU
  35. IBRAHIM BABA
  36. USMAN ABUBAKAR
  37. HABU MOHD SANI II
  38. ABBAS ABDULLAHI
  39. BABANGIDA IBRAHIM
  40. ABUBAKAR YAMUNA
  41. ABUBAKAR BELLO
  42. ABDULLAHI ADAMU TAHIR
  43. USAINI USMAN
  44. MUSA A. KAWU
  45. ALI ALHASSAN
  46. ABDULLAHI USMAN
  47. TAHIR IBRAHIM
  48. IBRAHIM BABANDI
  49. MUTARI ALIYU
  50. SULAIMAN FAROUK
  51. MUHAMMAD MUKTAR
  52. USAINI DAN’SULE
  53. RABBILU HALADU
  54. NAFI’U YAHUZA
  55. AUWALU ADAMU
  56. ADO MAGAJI
  57. HABU AHMED
  58. MOHAMMAD UMAR
  59. YUSIFU ABDULLAHI
  60. MANNIRU ABDULLAHI
  61. USAINI UMAR ABDULLAHI
  62. AHMED MUSA
  63. JANAIDU MOHD
  64. LAWAN SABO
  65. RABI’U MOHD SHATIMA
  66. MURTALA MOHD
  67. SANI IBRAHIM
  68. ABUBAKAR A. BAFFA
  69. MOHD IBRAHIM
  70. ABDU ABDULLAHI
  71. SAMINU SULE DUTSE
  72. HASSAN SURAJO SARA
  73. YUSUF UBA
  74. SANI SA’DU
  75. BASIRU ADO
  76. YAHAYA SALE
  77. ABDULLAHI MUKTAR
  78. BASHIR SARKI
  79. JIBRIN ADAMU
  80. HASHIM SALISU
  81. ABDULLAHI IBRAHIM
  82. MUSA SULAIMAN

(For themselves and for and on behalf of others)

AND

  1. JIGAWA STATE GOVERNMENT                      –        DEFENDANTS
  2. ATTORNEY GENERAL JIGAWA STATE

             

REPRESENTATIONS: Claimant Present. Defendants absent Adam H. Umar for the Claimants

Aliyu Abdullahi, Chief State Counsel, Ministry of Justice Jigawa State

 

JUDGMENT

This is a judgment pursuant to an originating summons filed before this Court on the 19th of July 2016 by the Claimant against the Defendants seeking the following questions:

  1. Whether the Defendants under and by virtue of a circular from National Salaries, income and Advances commission from the office of presidency dated 8th Sept, 2009 reference No. SWC/S/04/05/49/Vol.11/349 over Consolidated Health Salary Structure (CONHENS) and the associated allowances which directed that all health workers shall be paid under this new salary structure and equally the adoption and implementations of the circular by the Directorate of salary and pension administration, Jigawa State which equally approved the implementation of new salary of health workers as per its circular dated 5th/08/2010 Ref. No DSP/ADM/OFF/48/Vol.II/9 coupled with the implementation of same by Jigawa State Government to all health workers can now reverse the implementation of the Federal Government Circular as well its circular over the issue.
  2. Whether in the absence of any circular from the Federal Government cancelling its earlier circular over this issue and whether again Jigawa State Government in the absence of new circular cancelling its earlier circular over this issue can now reverse the implementation of the circular dully agreed upon and implemented for years by it.
  3. Whether Jigawa State Government can limit the implementation of its circular which is still valid and subsisting to a category of health worker i.e. Health worker on GL7 downward.
  4. Whether the rights of health workers sequel and by virtue of non continuous implementation of Jigawa State circular approving CONHENS to health workers by the Defendants, the right of health workers affected by the new policy are infringed upon.
  5. Whether Jigawa State Health Workers as a whole are entitled to the continuous enjoyment of new salary structure approved by the Defendants, and if so, whether they are entitled to an order from this Court directing that health workers be paid in accordance with CONHENS salary structure as approved by the Federal Government and Defendants.
  6. Whether pooling system is known to Civil Service Rules of any Government in the whole of Nigeria.
  7. Whether pooling the aggrieved health workers to various ministries by the Defendant in view of the professional nature of the workers duties is justifiable and is done in good faith.
  8. Whether the health workers of Jigawa state are entitled to the payment of COHENS whether they may be posted by the Defendant in view of the professional nature of their field of endeavour.

WHEREOF the plaintiffs pray this Honourable Court for the following reliefs:-

  1. AN ORDER directing the Defendants to continue to implement the payment of the plaintiffs’ salary in accordance with the CONHENS as approved by it.
  2. AN ORDER directing the Defendants to pay all accumulated arrears in favour of the plaintiffs from the date when the implementation of CONHES salary structure was suspended by the Defendants.
  3. A PERPEATUAL INJUNCTION restraining the Defendants from any further acts that will tantamount to non implementation of CONHES salary structure in favour of the plaintiffs.
  4. AN OTHER relief (s) deemed appropriate by this Court.

In the affidavit in support of the originating summons the Claimant exhibited    the Federal circular as Exhibit A of the 8th of December 2009. The Deponent had averred that the Claimants had for years been working with the 1st Defendants as health workers in various units of the ministry of health, Jigawa State and that sometime in the year 2009 the salary structure of health workers nationwide was restructured by the Federal Government as per the Federal Government circular in said Exhibit A. That the 1st Defendant equally adopted and implemented the said Federal Government circular to its health workers. And the Claimants together with others continued to enjoy the new salary structure called CONHESS.

The Deponent also averred that the circular annexed as Exhibit B dated 5/08/2010 Ref. No DSP/ADM/OFF/98/Vol./11/9 adopted and approved the new salary structure and the Claimants enjoyed the said salary structure for some years until the 1st Defendant stepped the full implementation of the circular. That the Defendant is only partially implementing the structure to a certain category of health workers particularly from GL 1-7 and that their complaints had been to no avail that the efforts of the solicitors they briefed to write to the Defendants in Exhibit C dated 31st May 2016 and D of 13th July 2016 did not yield results that they were directed to the office of the Head of Civil Service to issue a letter of a purported pooling system that all Claimants not mentioned in this case be posted to various ministries outside the ministry of health so as to deprive the Claimants from enjoying the fruit of the approved salary structure as shown in Exhibit E dated 22nd June 2016. That is the letter from the office of the Head of Civil Service. Directorate of establishments & service matters Dutse, Jigawa State.

Headed: POOLING OF ACCOUNTS STAFF FROM MINISTRY OF HEALTH

“Following Government Directives for the pooling of all Administrative and Accounts staff under the Health Sector who were identified in the recent verification exercise in respect of CONHESS salary structure. I am directed to convey approval for the pooling of the affected Accounts staff (12on) as per attached list to your office with immediate effect.

To this effect you are therefore requested to arrange for their posting outside the Hospital Environment to other zones/units of MDAS preferably around their locality, please…..”

The Deponent went on to aver to that the effect of the partial implementation of CONHESS has meant a sharp drop in the salary of workers such that workers who earned N150,000 now earn N50,000.

In written address of the Claimants in support of the originating summons these 3 issues were formulated for determination.

  1. Whether the Court under the circumstances of this case can determine this issue by means of originating summons.
  2. Whether the Defendants’ circular approving the implementation of CONHESS is still valid and existing and failure to comply with same tantamount to breach of contract between the Claimants and the Defendants in this matter.
  3. Whether the Claimants are entitled to the claim sought in the matter.

In response the Defendants filed a counter affidavit in which the Deponent averred that sometime in the year 2016, the Jigawa State Government through its Ministry of health constituted a committee and saddled it with responsibilities to which among other things to update the number of staffs in the ministry and to study and review where necessary some allowances earned by underserved staff in the ministry and its Agencies and the Committee found out that interalia the respective names of the Claimants, not being health workers and professional were earning CONHESS special allowance.

          The deponent averred that it was a distortion of facts to say that sometime in 2009, the salary structure of health workers nationwide was restructured by the Federal Government that the Federal Government only restructured the salary structure of Health Professionals in the Federal Public Service vide circular reference number SWC/S/04/S.410/Vol.11/349 of 8th December, 2009. That said circular was neither addressed to any official of the Defendant nor to any state of the federation that at no time did the 1st Defendant adopt and implement the Federal Government’s circular regarding the salary structure of Health workers that the 1st Defendant being an autonomous entity separate from the Federal Government initiated and implemented its new salary of CONMESS and CONHESS for Health workers vide letter of reference number DSP/ADM/OFF/G8/V.1/9 dated 5th August 2010 annexed as exhibit D2.

          That the Claimants were pooled to the office of the Head of the Civil Service and Ministry of Finance and Economic planning respectively for purposes of appropriate posting to appropriate Ministries, Department and Agencies that this pooling system has been a policy since the year 2009 and also contained in the Jigawa State Government (Revised) Public Service Rules, 2013 letters in exhibits D31 and D33 were annexed evidencing these practices.

          In the written address in support of the counter affidavit a lone issue was formulated for determination:

“Whether the Claimants not being health workers can benefit from the content of the circular on the implementation of the new salary structure of CONMESS and CONHESS for Jigawa State Health workers.

In response the Claimants filed a further and better affidavit the deponent averred that the purported committee constituted by the Defendant did not take in   to consideration the Federal Government and state circulars over the salary structure of health workers. And none of the Claimants was invited before the purported committee to make a case against the plan of categorising them as non health workers that in their letters of appointment (of Claimants) nowhere in the letter was it indicated that they are not health workers and/or that they are not entitled to CONHESS salary structure. There was no written reply on points of law in support of the further and better affidavit.

Now the Claimant had in the written address in the 1st issue addressed on the nature of an originating summons, the central question posed by the Claimants was that whether the Defendants circular Exhibit B is still valid and subsisting and ought to be complied with. To this, the Claimant in legal argument whether the Claimant not being health workers can benefit from the content of the circular from Exhibit B. That circular from the Directorate of the Salary and Pension Administration of Jigawa State dated 5th August 2010, written to the Director General Gunduma Health System Board, Jigawa State. It is headed and states:

IMPLEMENTATION OF THE NEW SALARY STRUCTURES OF CONMESS AND CONHESS FOR JIGAWA STATE HEALTH WORKERS

          As you are aware, the State Government has approved the implementation of the new Salary scales for health workers with effect from October, 2010, of Consolidated Medical Salary Structure (CONMESS) for Medical Doctors/Dental Doctors and Consolidated Health Salary Structure (CONHESS) for Pharmacists, Nurses and other health workers. The scales are each made up of two broad components namely the Consolidated Salary Component and Special additional allowances (appropriate to one’s job nature).

          Special allowances are as follows:

 

CONMESS SPECIAL ALLOWANCES

  1. Specialist Allowance for Doctors employed as Consultants.
  2. Health Professional Non-Clinical Duty Allowance for doctors deployed to render health related services at the Ministry of Health Headquarter Gunduma Board and Gunduma Councils.
  3. Clinical Duty Allowances to Honorary Consultants employed as academic staff in Universities but render Clinical Services to Specialist Hospitals.
  4. Teaching Allowance for doctors engaged in teaching doctors or other health professionals-in-training in Specialist Hospitals.

CONHESS SPECIAL ALLOWANCES

  1. Specialist Allowance for consultants employed as such.
  2. Shift duty allowance for nurses and other health workers who shifts with an existing shift duty roster.
  3. Health Professional Non Clinical Duty Allowance to Professionals deployed to Ministry of Health Headquarters, Gunduma Board, Gunduma Councils and rendering health related services.
  4. For Pharmacists, Medical Lab, Scientists, radiographers, physiotherapists and Scientific Officers.
  5. For theatre and anaesthetic nurses and other health professionals.
  6. For Nurses and other health professionals not entitled to call duty allowance.
  7. Clinical duty allowances for honorary consultants employed by Universities as academic staff but render clinical services to Specialist Hospitals.
  8. Teaching allowance to health professionals engaged in teaching health professionals-in-training in specialist hospitals

For each class of the allowances please provide beneficiary information on a station by station basis in the following format:

S/N.       Name        Professional Title               Personal/Sub Head No. (PSN)

  

You will note that the Salary package also provides for payment of Call Duty Allowance, payable only after it is actually carried out and not based on an hourly basis, but on number of calls carried out during each month. It will therefore be payable in arrears, that is to say, the allowance for a particular month will be payable in the following month based on certified request for each beneficiary.

The package also provides for the payment of hazard allowance payable across the board for all professionals and staff.

Even though the package also includes the payment of rural posting allowance, it is only payable to officers working in stations located outside the towns described as urban centres by the Law establishing the Jigawa State Urban Development Board.

Finally please endeavour to complete the format latest by 31st August, 2010 to enable us have enough time to commence preparing and payment of the new Salary package with effect from October, 2010.

Accompanied herewith is Salary printout for the month of July, 2010 in respect of MDA’S to serve as guide for generating the required data, please.

I have copied this letter to the Chairman Nigeria Medical Association Jigawa State Chapter and the Chairman Joint Action Committee of Unions and Associations in the Health Sector, Jigawa State Chapter for their information, guidance and necessary action.

Esteem regards,

 

BASHIR ADO KAZAURE

Permanent Secretary.

From the content of this letter, Counsel queried on behalf of the Defendants whether the Claimants being Administrative and Accounts staff could be included when the circular had excluded them. Citing P.A. PIC V. SARA PRODUCTS LTD (2016) ALL FWLR (part 818) page 829 paras G. and urged the Court to hold that the specific mention of the health professional in the circular excludes the Claimants from enjoying the CONHESS special allowances as they were not mentioned in the circular.

In addition the Claimants had submitted on their second issue for determination that parties in any transaction are bound by their commitments, that exhibit B is a total commitment of the Defendant who had been implementing the commitment to CONHESS salary structure as per its approval and as such they were bound by its commitment. That this commitment was more or less like the contract which creates reciprocal legal obligations to do a particular thing citing JTI LTD V.        

OLUBISI (2015) pt. 793 pg. 1872-1873 (law report not stated) and urged the Court to enter judgement for the Claimants.

As to the pooling system counsel for the Claimants submitted that it was unknown to any civil service wherein the Defendants by submitting at paragraph 3.08 that pooling system is known to the Jigawa Sate civil service citing section 01103 of Jigawa State Government (Revised) Public Service Rules 2013 which makes the following provision:

“Executive Officers pools (General Administration) are a pool Executive Officers available for posting to certain Ministries or Extra-Ministerial Departments as required. It is controlled by the Permanent Secretary of the States Directorate of Establishments and Service Matters who is regarded as the Head of the Department for the pool.

COURT’S DECISION

I must state right away that I am in agreement with the submission of the Defendants in response to the Claimants submissions on contracts and obligations created by exhibit B. I am in agreement with the Defendant’s response at paragraph 3.06 where it was stated that it is pertinent to note that the Claimants failed woefully to show that they are health workers. And their affidavits in support do not have any annexure therein indicating that they are health workers or health professionals.

They equally failed to annex their offer of appointment which is very vital to the issue in contention. They deliberately refused to produce it in order to mislead the Court. That the position of the law still is he who asserts must prove.

The Claimants assert they are Health workers but did not back up their assertion with their offer letter, hence they are unable to establish their claims see Section 131 (1) and (2) of the Evidence Act 2011 as amended.

I also find the Defendant contention on pooling hollow and in addition I find that they did not exhibit salary slips indicating discrepancies in salary. I do so hold. In essence I hold that the Claimants suit is entirely not established against the Defendant and it is hereby dismissed. There are no awards as to costs. Parties to bear their own costs.

Judgment is entered accordingly.

_____________________________

HON. JUSTICE E. D. E. ISELE

JUDGE

admin

Website:

Related Story