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National Industrial Court

BRIGHT OWOLO & 18 Ors -VS- OGBIA LOCAL GOVERNMENT

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

                                                             

BEFORE HIS LORDSHIP:                                                          HON. JUSTICE M. N ESOWE

 

DATE: 18TH JUNE, 2019                                                           SUIT NO: NICN/CA/07/2013

BETWEEN

  1. BRIGHT OWOLO                                                               
  2. EBI MICHAEL ROLAND

(Suing for themselves and Attorneys of the under-listed persons)

  1. IRENE AGO
  2. SUNDAY NELSON
  3. JOYFUL SUNDAY
  4. DEIBO JOHN OGBARA
  5. GIFTSON JOSEPH OBU                     CLAIMANTS
  6. ALWELL ITESI
  7. EBOFA E.S OBU                                                                                                                                        

10.AZIBOLA DEINBO

11.EXPENSES EKOBO

12.EBIRIMORI OLUKUTU

13.JOSEPH DARARI OBU

14.OBOLOTASAM S. OGBARA

15.NANCY AMOS

16.TOM OBU EZEKIEL

17.IDUMEWARO ALAGIGHA

18.LIVINGSTONE WALSON

19.LARRY EZEKIEL OBU                                                              

 

AND

  1. OGBIA LOCAL GOVERNMENT COUNCIL
  2. MINISTRY OF LOCAL GOVERNMENT OF BAYELSA STATE
  3. BAYELSA STATE LOCAL GOVERNMENT SERVICE COMMISSION                                                      DEFENDANTS

 

 

REPRESENTATIONS

CHRIS EKONG Esq. for the Claimants

NDEZE ANTHONY Esq. for the 1st Defendant

BOMO TONS FETEPIGI Esq. for the 2nd & 3rd Defendants

 

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimants vide a Complaint dated and filed 11th November, 2013. By an amended Complaint dated and filed 27th November, 2014, the Claimants seek the following reliefs:

  1. N20,900,000.00 (Twenty Million Nine Hundred Thousand Naira) only being the Claimants’ accumulated salary arrears from October, 2008 to December, 2012 (except August, 2012) at the rate of N22,000.00 (Twenty Two Thousand Naira) only per month for each of the 19 (Nineteen) Claimants
  2. N22,000.00 (Twenty Two Thousand Naira) only being the salary per month of each of the 19 (nineteen) Claimants from January, 2013 until judgment, 10% pre-judgment and post judgment interest on reliefs (1) and (2) above
  3. N500,000.00 (Five Hundred Thousand Naira) only being cost of litigation.

SUMMARY OF FACTS

The Claimants, as can be gleaned from their Statement of Facts, were variously employed by the 1st Defendant. From 2008, the year of their employment, till date, they were never paid salary except the month of August 2012. The foregoing has led to the nature of reliefs sought by the Claimants.

 

On the part of the 1st Defendant, she stated in her amended Statement of Defence that the Claimants were not legitimate staff of the 1st Defendant but fraudulently got themselves employed into the services of the 1st Defendant. On setting up a verification committee which carried out a verification exercise on the employment status of her employees, the fraud in the employment of the Claimants was discovered thereby making the committee recommend the disengagement of the Claimants from the employment of the 1st Defendant.

 

On the part of the 2nd and 3rd Defendants, they stated in their joint statement of defence that the employment alleged by Claimants failed to comply with the laid down procedure into the employment of the 1st Defendant. They therefore urged the Court to dismiss the suit.

 

COMMENCEMENT OF HEARING

Hearing in this suit commenced before my humble self on the 31st of January, 2017. Bright Owolo, the 1st Claimant on record was called as CW1. He adopted his witness statement on oath, testified and tendered exhibits on behalf of all the Claimants. He was cross examined and, thereafter, Claimants closed their case.

 

On the Part of the 1st Defendant, they opened their defence on the 6th of June, 2017 by calling one Felix Daniel as DW1. He adopted his witness statement on oath, testified and on behalf of the 1st Defendant. He was cross examined and, thereafter, 1st Defendant closed their case on the 5th of October, 2017.

 

On the part of 2nd and 3rd Defendants, they opened their defence on the 12th of April, 2018 by calling one Bello Vella as DW2. He adopted his witness statement on oath, testified and tendered documents on behalf of 2nd and 3rd Defendants. He was cross examined and, thereafter, 2nd and 3rd Defendants closed their defence.

 

Subsequently, the case was adjourned to enable parties file, exchange and adopt their final written addresses.

 

1ST DEFENDANT’S FINAL WRITTEN ADDRESS

In 1st Defendant’s final written address dated and filed 15th May, 2018, Counsel on behalf of 1st Defendant formulated three (3) issues for determination, that is:

  1. Whether the Claimants are legitimate staff of the 1st Defendant

 

  1. Whether the Claimants are entitled to the reliefs sought

 

  1. Whether this suit is not statute barred.

ARGUMENT

ON ISSUE 1: Whether the Claimants are legitimate staff of the 1st Defendant

Learned Counsel to 1st Defendant, while pointing out certain discrepancies in the appointment letters and confirmation letters of the Claimants, submitted that the manner in which Claimants were employed runs contrary to the laid down rules and procedure for such employment.

 

It is the submission of Learned Counsel that the employment of the Claimants was unlawful and it offends the provisions of Paragraph 5.3.1 and 5.9.5 of the Handbook on Local Government Administration tendered in evidence as Exhibit D.

 

He therefore urged the Court to hold that Claimants are not legitimate staff of the 1st Defendant; they were never appointed nor confirmed by the 1st Defendant.

 

ON ISSUE 2: Whether the Claimants are entitled to the reliefs sought

Learned Counsel to 1st Defendant, while adopting their argument in issue 1 above, submitted that Claimants not being legitimate staff of the 1st Defendant are not entitled to the reliefs sought in this suit as there can only be a remedy where there is a wrong.

 

ON ISSUE 3: Whether this suit is not statute barred.

Learned Counsel to 1st Defendant submitted that this suit is statute barred therefore this Court lacks jurisdiction to entertain same. while relying on Section 2(a) of the Officer Protection Act and Section 1(a) of the Public Officer Protection Law, Cap 18 Laws of Bayelsa State 2006, Learned Counsel submitted that the cause of action arose in October, 2008 and Claimant instituted this suit on 10th of January, 2013, a period longer than the three months provided for in the limitation law.

                                 

2ND AND 3RD  DEFENDANTS’ FINAL WRITTEN ADDRESS

In 2nd and 3rd Defendants’ final written address dated 2nd May, 2018 and filed 22nd May, 2018, Counsel on behalf of 2nd and 3rd Defendants formulated three (3) issues for determination, that is:

  1. Whether the Claimants are employees of the 2nd and 3rd Defendants

 

  1. Whether the Claimants are legitimate employees of the 1st Defendant
  2. Whether the Claimants are entitled to any reliefs

 

 

ARGUMENT

ON ISSUE 1: Whether the Claimants are employees of the 2nd and 3rd Defendants

Learned Counsel to 2nd and 3rd Defendants submitted that from the facts and evidence adduced in this case, the Claimants are not employees of the 2nd and 3rd Defendants. That this is also given credence to by the Claimants’ Statement of Facts.

 

It is the submission of Learned Counsel that facts admitted need no proof. He relied on Edokpolor & Co Ltd V. Ofenhen (1994) 7NWLR (Pt. 358) @ 519 Per Fabiyi JSC; Section 123 of the Evidence Act, 2011.

 

He therefore urged the Court to resolve this issue in favour of the 2nd and 3rd Defendants.

 

ON ISSUE 2: Whether the Claimants are legitimate employees of the 1st Defendant

Learned Counsel to 2nd and 3rd Defendants submitted that given the facts and circumstances of this case, the Claimants do not have any valid or legitimate employment with the 1st Defendant.

 

ON ISSUE 3: Whether the Claimants are entitled to any reliefs

Learned Counsel to 2nd and 3rd Defendants submitted that the law is trite that you cannot put something on nothing and expect it to stand. That since it has been admitted by the Claimants that they are not employees of the 2nd and 3rd Defendants, the Claimants are not entitled to seek any reliefs from the 2nd and 3rd Defendants.

 

He therefore urged the Court to resolve this issue in favour of the 2nd and 3rd Defendants.

 

CLAIMANTS’ FINAL WRITTEN ADDRESS

In Claimants’ final written address dated 9th July, 2018 and filed 16th July, 2018, Counsel on behalf of Claimants, while not necessary formulating any issue (s) for determination, made his submissions based on issues formulated by Defendants.

 

ARGUMENT

Learned Counsel submitted that the position of the Defendants that the Claimants were never employed by them based on the report of the verification committee cannot be sustained as the said report was made in bad faith and geared towards victimizing some of the staff of the 1st Defendant. That an employee challenging his dismissal based on report of employer’s panel needs not prove prejudice, it is sufficient that there is risk of prejudice in the report. He relied on SPDC Ltd V. Olarewaju (2008) 18 NWLR (Pt. 1118) P. 23 Paras D – F. Learned Counsel submitted that the faulty process left some of the Claimants’ colleagues employed on the same day still in the employment of the 1st Defendant whereas the Claimants are not. There was no attempt to reach out to the Claimants after the panel’s report. The law is trite that after investigative panel establishes a prima facie case against an employee, the employer must give the employee ample opportunity to defend himself before dismissing him. He relied on Otukadejo V. Niger Dock (Nig) Plc (2015) 52 NLLR (Pt.173) P. 391 @399 held 4.

 

Learned Counsel submitted further that as employees with statutory flavour, disciplinary measure must be taken in line with the principles of fair hearing and the Public Service Rules. He relied on Yemisi V. Federal Inland Revenue Services (2014) 51 NLLR (Pt. 172) P. 624 @659 Paras C – G.

 

Learned Counsel therefore urged the Court to hold that Claimants are entitled to the reliefs sought.

 

COURT

Having gone through the Claimants’ case, Defendants’ defence, evidence adduced at trial and the final written submissions of Counsel to all parties, this Court, while adopting the issues formulated by Counsel, has distilled a sole issue for determination, to wit:

Whether the Claimants have proved their case to be entitled to the reliefs sought.

For starters, this Court wishes to state having adopted the issues raised by Counsel to all parties in their final written addresses, the Court will address same, when necessary, in the body of its judgment.

Before proceeding, this Court will like to comment on the issue of jurisdiction raised by the 1st Defendant on the ground that this suit is statute barred. This Court has gone through its record to discover that the same issue was raised before my Learned Brothers, Hon Justice Obaseki- Oseghae and Hon. Justice Agbakoba who at every stage gave considered rulings overruling the 1st Defendant on this. If 1st Defendant is not satisfied with such rulings, he ought to appeal same to the Court of Appeal and not bring same before me when he knows my jurisdiction with that of my brothers is one and equal and as such, I lack the vires to overrule decisions of my Learned Brothers. Issue of statute of limitation having been earlier decided by my Learned Brothers is an area I cannot venture into, and I so hold.

That said, the Court shall proceed and addressed the issue distilled above.

 

The fate of the Claimants herein was set off by the recommendation of the verification committee set up by the government of Bayelsa State. On verification exercise, it is apposite for the Court to state from the outset that verification exercise is a routine exercise carried out by the executive arm to ascertain the size of her labour force and weed out names and persons who are ghost workers; those who have reached retirement age but, in connivance with others in authority, are still working despite having attained the statutory retirement age; those who got fake/illegitimate employment and are still draining salary from the government on such fake/illegitimate employment; those who in the first place failed to meet the employment requirement but somehow got the employment by crook, etc. Anybody in the aforementioned category who fails to pass the hurdle or fails to convince the verification committee on the authenticity or legitimacy of his employment cannot turn around and say he/she was not given fair hearing in line with the principle of fair hearing, or with laid down rules when that was the purpose with which the Verification Committee was set up. The Committee was set up, simpliciter, to (1) verify and confirm those in lawful employment and (2) verify so that those in unlawful employment can be weeded out. This is a task expected to be carried out by the government who bears the wage bill of such workers on its shoulders, and it will amount to judicial insensitivity to say that the government has no such power or to say that the public service rules apply to such persons when, ab initio, the nature of their employment has no backing of the law. Therefore, the opportunity of fair hearing was presented to the Claimants when at the verification stage, they would need to subject themselves to data capture, and present documents evidencing their employment. If they are found wanting and disengaged, it behoves them to lead evidence that will convince the Court that their employment, even though terminated on the ground of illegitimacy, is actually legitimate. In this sense, it is their pleadings and documents tendered in support of their pleadings that the Court can use to conclude the status of their employment. The point here is that it is the Claimants that are alleging unlawful disengagement from employment, therefore, the onus is on them to prove the nature of their employment and how the termination of such an employment is unlawful. Once Claimants have proved their case, the ability or inability of the Defendants to prove that the employment was fake is of little or no consequence. Furthermore, the Claimants must succeed on the strength of their case and not build their case on the weakness of the defence of the Defendants. See Ehikhametalo V. Iyare (2014) All FWLR (Pt.740) P.1391 @ 1393, Ratio 3 where the Court held:

The Claimant has the onerous duty of proving his case against the Defendant on the basis of a preponderance of evidence or the balance of probabilities. He must predicate the success of the claim thereof on the strength of his case and not upon the weakness of the defence…

 

In Claimants’ final written address, Learned Counsel to Claimants submitted that the faulty system of the Defendants left some of the colleagues of the Claimants employed the same day with the Claimants still in the employment of the Defendants while the Claimants are not. I have gone through the pleadings of the Claimants, there is nowhere they pleaded that some of their colleagues employed the same time with them are still in the employment while they are not; issues were never joined on this. The law is trite that Counsel’s address, no matter how convincing, cannot take the place of evidence. See Okuleye V. Adesanya (2014) 12NWLR (Pt.1422) P.521 @539 paras B – C. See also SMOOTH V. SMOOTH (2015) LPELR-25732(CA), per Bada JCA, where the court of appeal held thus;

It is important to point out at this juncture that addresses of Counsel as important as it may be, cannot take the place of pleadings or evidence because cases are decided on credible evidence. No amount of brilliance in an address can make up for lack of evidence to prove and establish a case or to disprove and demolish a point in issue. An address may make a good impression on the judge but it certainly cannot make up for lack of evidence, and cases are decided on credible evidence. Address by counsel is only a forum where the last is brought in, not only to interpret the facts before the court but to edify them in lucid persuasive style of advocacy. See the following cases: – EKPEYONG VS ETIM (1990) 3 NWLR Part 140 Page 594. – NIGER CONSTRUCTION LIMIT ED VS. CHIEF OKUGBENI (1987) 4 NWLR Part 67 Page 787

In this light, arguments of Counsel that some of the persons employed same time with the Claimants are still in the employment of the Defendants while the Claimants are not, in the absence of having it pleaded in their pleadings and leading evidence in support of same, go to no issue and I so hold.

On the position of the Claimants that Claimants are entitled to be offered an opportunity to defend themselves on the conclusion of the panel report before dismissal as provided for in the rules, this Court wishes to state that it seems the Claimants do not understand the position of the Defendants in this case. To put it succinctly, the Defendants are saying they never employed the Claimants in the first place. In this vain, the Defendants are not under any legal obligation to accord the rights and privileges available to its legitimate employees to the Claimants. It is only in the event that this Court finds that the Claimants are legitimate employee of the Defendants that they can be accorded that right. In the absence of that, it is enough if during the verification exercise, Claimants’ data and employment documents were collected to verify the status of their employment. Furthermore, issue of employment with statutory flavor will not apply to an employment if the Court finds in the long run that the employment was defective, illegal, null and void ab initio. In this regards, arguments on employment with statutory flavor and cases cited thereat will not be applicable.

In employment of this nature, the usual steps are – vacancies are usually advertised; applications for such vacancies are made; interviews are conducted; employment letters are issued to successful applicants which ask such successful applicant to indicate acceptance of the employment, and it also states the period of probation before confirmation; the confirmation of employment will follow, the employee having satisfied the probation period. In the case herein, even though the Handbook of the Defendants did not make a detailed provision for the steps as highlighted above, it gave an insight as to how its employment is to be conducted when it provides in Paragraphs 7 – 9 of the Handbook on Local Government Administration as follows:

  1. That there must be a need for employment as a result of vacancy, either due to death, retirement and or necessity.
  2. The council shall write to the Local Government Service Commission requesting their approval to carry out employment with specification as to the number and categories of staff needed
  3. The local government service commission shall in turn reply them with either an approval or not
  4. Where an approval is given, the commission shall delegate its staff to monitor the said process to ensure its spread across the communities within the area under the council
  5. Then the list of the employment is sent to the Ministry of Local Government through and by the recommendation of the Local Government Service Commission for final approval and have the names included at the payment voucher of Local Government Council.

In the case herein, there is no evidence that vacancies were announced or advertised; no document evidencing application by the Claimants or that the Claimants filled an application form given to them by the Defendants. However, there are employment letters and there are confirmation letters referring to a time before employment letters were issued. For the avoidance of doubt, the confirmation letter of Bright Owolo (tendered in evidence as Exhibit C4) dated 5th March, 2012 reads:

CONFIRMATION LETTER

I refer to your letter of appointment Ref: OGBALGA/PF/2937/VOL. 1/1 OF 9th January, 2012, and to inform you that Council Management has approved your confirmation as Works Assistant 1 on Salary Grade Level 04 step One

  1. The effective date of confirmation of your appointment is 2ndOctober, 2008.
  2. This confirmation is due to your satisfactory performance during the period of probation.
  3. Congratulations.

On the appointment letter (tendered in evidence as Exhibit C5) dated 9th January, 2012, it reads:

APPOINTMENT LETTER

With reference to Letter No. GO/3/III/VOL.1/152 of 27th April, 2011 from the Office of the Head of Service, and the subsequent approval by the Executive  Chairman of the Ogbia Local Government Council, I am pleased to inform that you have been formally appointed as Works Assistant 1 on Salary Grade Level )4 Step One with effect from 2nd October, 2008.

  1. Accordingly, you are advised to reach the office of the undersigned to complete other employment formalities
  2. Accept the hearty congratulations of the Executive Chairman and Management of the Ogbia Local Government Council, please.

The above trend runs in all the appointment letters and confirmation letters tendered in evidence before this Honourable Court and they were all signed by one person – Iruo E. Watson.

 

On who lies the burden of proof in civil cases, the Court of Appeal in Alh. Tajudeen Ibrahim Olagunju V. Alhaja Habibat Yahaya (2004) 11NWLR (Pt.883) 24 held:

In a civil suit, the person who asserts has the primary burden of proving his assertion. The failure of the Defendant to prove or his refusal to testify cannot alleviate the primary burden on the Plaintiff.

On what a Claimant seeking declaration on wrongful termination of employment is expected to prove, the Court held in NIMASA V. Obey (2014) 2 WRN P. 83 @ 92 R. 9 as follows:

A Claimant who seeks a declaration that the termination of his appointment has wrongfully been termination must prove the following material facts namely: (a) that he is an employee of the Defendant, (b) terms and conditions of his employment; and (c) the way and manner, and by whom he can be removed. It is not in principle for the employer who is a Defendant to an action brought by the employee to prove any of these.

On confirmation of employment, this Court as a labour Court takes judicial notice of the fact that in informal setting, an employment can be confirmed after one month of employment.  As I said, informal setting of which an example is madam and her maid, master (oga) and his gateman. However, in formal setting, a first time employee is usually placed on probation for a period of at least 3 – 6 months before confirmation. In exceptional circumstances, the period of probation may last for one year or one year plus. If in formal setting the least probation period is three months, any period less than such is capable of raising the red flag. In the case herein, Claimants tendered appointment letters – appointment letters which do not state the terms and conditions of employment; no reference to any law or rules to guide the employment; no specific period of probation. In the absence of all of these, the employer of the Claimants or whoever they got the letters of appointment from was magnanimous enough to state in the appointment letters dated 9th February, 2012 that the employment would take effect from 2008. The employer or whoever they got the employment from was also quick enough like a flash to issue them letters of confirmation of employment dated 5th March, 2012, a period less than one month after letters of appointment were issued. While it is a marvel that appointment letters issued in 2012 are to become effective four years before the date on the appointment letters, this Court wishes to state that it is actually easier for a camel to pass through the eye of a needle than for any employer to employ you in a particular year and back date the employment to a time as far back as four years before the time of the actual employment. It makes one to ask – who will be responsible for the payment of the supposed four years that are earlier than the time of the employment? I have looked with interest at the evidence adduced before me, both documentary and oral evidence, to see if there is anything to reconcile or explain how an employment letter issued in 2012 will have effect from 2008, a period of four years before the letter of appointment was issued, but found none. What then informed the effective date of the appointment to be in 2008 when letters of employment were issued in 2012? It therefore means that the confirmation letter confirmed an employment which was not in existence in 2008 and the appointment letters made reference to an effective date of a time when no form of contractual relationship existed between the Defendants and the Claimants. Justice, they say, should not only be done but seen to have been done. In all fairness to the Claimants herein, having looked at the obvious discrepancies in their employment letters and confirmation letters, discrepancies which the Claimants are unable to offer any reasonable explanation to, as well as given the facts and circumstances of this case, I do not see how this Court as a Court of law, justice and equity can still turn the blind eye and say there was a valid employment of the Claimants by the Defendants. Doing justice is doing real justice and not a caricature of it. Justice is as real as portrayed in the symbol of justice and not a made-up artiste or a slay queen whose appearance, face, dress, stature, shape and height can be faked.

Given the fact that we are in an era of fake appearances, fake identity, fake faces, fake admission and fake employment, I think parties should always take extra steps to make sure that the paper they are holding in their hand as employment letter is a valid and genuine paper not an ordinary piece of paper that is being sold to desperate job seekers by some vendors or agents of a syndicate whose trade and expertise is on fake employment.

From the facts and evidence adduced in this case, this Court finds and I so hold that no valid and legitimate employment relationship exists/existed between the Claimants and the Defendants. Claimants have not been able to prove to the satisfaction of this Honourable Court that what they tendered as employment letters and confirmation of employment letters were issued to them by the Defendants. There is no merit in the case put forward by the Claimants.

Consequently, the case of the Claimants fail and same is hereby dismissed.

I make no order as to costs. Parties shall bear their respective costs.

Judgment is entered accordingly.

…………………………………

HON. JUSTICE M.N ESOWE

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