IN THE NATIONALINDUSTRIALCOURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: TUESDAY 21ST JANUARY, 2020 CONSOLIDATED SUIT NO:
NICN/YEN/111-118/2015
BETWEEN:
- DANIEL MONDAY
- DORATHY SUOBO
- KINGSLEY ORUBOR
- HENRY BAZIGHA CLAIMANTS
- JOB MAKKA
- NATHAN LAWRENCE
- AYAMASAOWEI JOSEPH PEREYE
- TONGUBOR PAUL MCANDRO
AND
- 1.ATTORNEY GENERAL OF BAYELSA STATE
- HON. (LT.COL.) BERNARD KENEBAI (RTD.) DEFENDANTS
REPRESENTATION
Mr. Lawrence S. Okojaja Esq with Clifford E. Ezugwu Esq for the Claimants.
- Okara Esq for the 1stDefendant.
JUDGMENT
INTRODUCTION AND CLAIMS
This is a consolidated suit comprising of several Complaints dated and filed on the 28th day of October, 2015, by the Claimants before this Court. Upon consolidation, the
Claimants filed an Amended Complaint which is dated and filed on the19th day of October, 2018. On the face of the Amended Complaint, the Claimants claim against the Defendants, jointly and severally, for the following reliefs:
- The sum of N6,050,000.00 (Six Million and Fifty Thousand Naira) only being arrears of salaries at the rate of N100,000.00, N70,000.00, and N60,000.00 per month from the1st day of November 2014 up to the 30th day of September, 2015, for Suit No. NICN/YEN/111/2015; NICN/YEN/113, 114, 115/2015 and NICN/YEN/112, 116, 117, 118/2015, respectively, and thereafter at the same rate per month from the1st day of October, 2015 until judgment is delivered.
- A DECLARATION that the Claimants having served for more than three months being their probationary period without their appointment being terminated are deemed to have been confirmed as permanent staff by the defendants notwithstanding that no permanent letter of appointment has been issued to them by the defendants.
- A DECLARATION that the Claimants’ employment with the Defendants are still subsisting and not terminated as no letter of termination of appointment has been issued to the Claimants in accordance with law, business, trade and employer/employee mode of practice and as stipulated in their letter of appointment.
A Chief State Counsel entered appearance on behalf of the 1st Defendant via a Memorandum of Conditional Appearance dated and filed on the 11th day of November, 2015 and filed its Statement of Defence on the same date. The 1st Defendant subsequently amended its Statement of Defence which was last filed on the 6th day of March, 2019. There was no representation for the 2nd Defendant throughout the trial.
At the commencement of hearing on the 28th day of January, 2019, Job Makka, the 5th Claimant on record, testified as the sole witness (CW1) on behalf of the Claimants and tendered several documents, which were all admitted and marked accordingly (CWDM 001(A-G) to CWDM 005). He was cross-examined on his evidence by the 1st Defendants’ Counsel after which the Claimants closed their case.
The 1st Defendant thereafter opened its defence and also called one witness who testified on its behalf as DW1. He is the Special Adviser to the Executive Governor of Bayelsa State on Security Matters. DW1 tendered documents in evidence which were marked as Exhibits DWBS 001–DWBS 009. He was also cross examined on his oral testimony and the 1st Defendant closed its case. Parties were consequently ordered to file and serve their respective Final Written Addresses, which were adopted on the 23rd day of October, 2019.
CLAIMANTS’CASE IN BRIEF
The Claimants aver that they were offered employment as Research Assistants under the Office of the Special Adviser on Security to the Governor of Bayelsa State and were subsequently posted to the Bayelsa State Auxiliary Research Services/Distress Call Centre (AURES) on a three months’ probation period. After the expiration of their probation period, the Claimants assert that they continued to work in the establishment for another 2 years without being confirmed.
Their travails began when the then Special Adviser on Security Matters to the Governor in the person of the 2nd Defendant suddenly resigned his appointment. This prompted the Claimants to write to the management of AURES, requesting that their appointments be confirmed. They were however surprised when the 2nd Defendant, who they believed to have resigned his appointment, came to the office and verbally terminated their employment. It is the averment of the Claimants that the purported termination of their employment is null and void because the 2nd Defendant, who had resigned his appointment at the time, did not have the powers to terminate their employment. They state that their employment was still subsisting, as they are only seeing their purported letters of termination of their employments for the first time at the trial.
Under cross examination, CW1 testified that he was appointed by the Bayelsa State government through the 2nd Defendant. He admits that the 2nd Defendant is a political appointee but does not know if the appointment of the 2nd Defendant’s appointment was at the pleasure of the Governor. CW1 states that he is not aware of the agency of government that was responsible for the employment of civil servants. Infact he states that he had never heard anything about the Bayelsa State Civil Service Commission. On resumption of his testimony on a later date, the CW1 recanted his earlier testimony denying that he had ever mentioned not knowing about the Bayelsa State Civil Service Commission. All he wants was for his appointment to be formalized as contained in his appointment letter. He reiterates his testimony that the 2nd Defendant cannot terminate his employment.
THE CASE OF THE 1ST DEFENDANT
The1st Defendant denies the entirety of the Claimants’ averments. It stated through its sole witness that it is only the Bayelsa State Civil Service Commission that is saddled with the responsibility of employing and deploying staff into ministries and agencies of the Bayelsa State and not the Office of the Security Adviser to the Governor. The 1st Defendant states that the Claimants were employed by the 2nd Defendant as personal staff and as such they are not employees of the Government of Bayelsa State.
According to the 1st Defendant, the employment of the Claimants is not within the knowledge of the Bayelsa State Government and that whatever terms of employment that existed between the Claimants and the 2nd Defendant, the Bayelsa State Government was not privy to it. The 1st Defendant further states that despite not being a party to the contract relationship between the Claimants and the 2nd Defendant, there was already evidence of letters of termination of the Claimants’ employment signed by the current Special Adviser on Security Matters to the Governor of Bayelsa State. That the 1st Defendant is not a proper party before this Court as the AURES is not a creation of law.
In his further evidence which was elicited during cross examination by the Claimants’ Counsel, DW1 admitted that there was in existence a Centre known as AURES, which is a creation of the Bayelsa State Government with an office located within the Bayelsa State Government House. He testifies also that the terms of employment of persons employed in the centre is as contained in their letters of employments. DW1 retraced his evidence in chief stating that the Claimants were not the personal staff of the 2nd Defendant but were employed by the 2nd Defendant while he was in office in order to assist him in carrying out his job. DW1, who appears to be the current Special Adviser to the Bayelsa State Governor did state on oath that the Claimants, by their letters of employment ought to be entitled to one month notice before the termination of their employments or one month salaries in lieu of notice. That although the termination of the Claimants’ employment was verbally done, their respective letters of termination were written but still in his custody.
THE 1ST DEFENDANT’S SUBMISSION
The 1st Defendant raised three (3) issues for determination by this Court as follows:
- Whether the 1st Defendant is the employer of the Claimants.
- Whether the 2nd Defendant can validly employ persons on behalf of the Bayelsa State Government without the express consent and/or authorization of the Governor or the Bayelsa State Civil Service Commission.
iii. Whether the Claimants are entitled to the reliefs sought from the totality of evidence (documentary and oral) before this Honourable Court.
Counsel argued his issues one and two together. He submits that neither the Special Adviser to the Bayelsa State Government nor the AURES are empowered to employ staff on behalf of the State Government. He maintains that the Special Adviser is a political appointee, while AURES is not a creation of law. According to Learned Counsel, Exhibits CWDM001 (A-G) did not give the 2nd Defendant the permission to employ staff or and on behalf of the Bayelsa State Government or the Bayelsa State Civil Service Commission. Counsel relied on several provisions of the Constitution and the Public Service Rules to give credence to his argument on the issue.
On his issue 3, Counsel contends that the Claimants are not entitled to the reliefs which they seek from this Court because the Claimants have failed to establish their claims. He maintains that the Claimants’ claims for various monetary payments were unsupported by evidence. Counsel maintains that on the authorities, in a claim for wrongful termination of employment, the Claimant sought to establish that they were employees of the Bayelsa State Government, the method of such employment, the terms and conditions of employment and the circumstances under which the employment can be determined.
According to the submissions made by Learned Counsel on behalf of the1st Defendant, the non-confirmation of the employment of the Claimants means that the Claimants were still under probation as mutual suitability were not determined and that the process of a permanent position was never commenced. It is the further contention of Counsel that the type of employment that exists between the Claimants and the 2nd Defendant was merely one of master and servant and the Court cannot impose a willing servant on an unwilling master. He urged this Court to resolve the issue in favour of the 1st Defendant.
SUBMISSION OF THE CLAIMANT
The Claimants’ Counsel also raised three issues for determination by this Court in his Final Written Address, as follows:
- Whether the Claimants are employees of the Bayelsa State Government having been issued letters of employment by the Government through the 2nd Defendant.
- Whether the Claimants’ employment were not by conduct confirmed by the Bayelsa State Government having served and were paid salaries beyond the 3 months probationary period
- Whether the Claimants are not entitled to the arrears of salaries sought?
By his submissions on his issue one, the Claimants’ Counsel opines that the Claimants are indeed employees of the Bayelsa State Government and exhibits CWDM 001(A-G) are clear evidence to this fact. He submits that the relationship that exists between the Claimants and the Bayelsa State Government is that of master and servant, which is not subject to the Public Service Rules. His further submission is that the 2nd Defendant is an agent of the Bayelsa State Government and that the acts of the 2nd Defendant ordinarily binds the Bayelsa State Government. Consequently, by signing the letters of employment of the Claimants, he as an agent was acting within the scope of his authority for his disclosed principal–which is the Bayelsa State Government. He also argued on this issue that since the Claimants were not issued letters of termination, it means that the employments of the Claimants with the Bayelsa State Government is still subsisting. He relied on the case of UKOHA & ANOR v OSILAMA (2016) LPELR-42936, (CA). He maintains further that verbal termination of the Claimants’ employment cannot stand as it cannot take the place of a formal letter of termination.
Further too, Counsel posits that the 2nd Defendant had resigned from active service at the time of the alleged verbal termination of the Claimants’ employment. According to Learned Counsel, the Letters of Termination (Exhibits DWBS 001-008) are an afterthought.
On his issue two, Counsel’s brief submission was that the employment of the Claimants was confirmed by the conduct of the Defendants. He maintains that the Defendants’ act of keeping the Claimants in their employment for a continuous period of 2 years and the payment of salaries beyond the 3 months’ probation period, implies that the Claimants’ employment have been confirmed by the Defendants’ conducts.
On his last issue, Learned Counsel contends that the Claimants have been able to prove that having been deprived access to their offices from where they could have earned their salaries when their contract of employment had not been terminated, it means that their employment is still running and they are entitled to the arrears of the requisite salaries. According to Counsel, the measure of damage to which the Claimants are entitled to ought to be the amount the Claimants would have earned from the period when the breach occurred to the period the employer could lawfully determine their employment. Counsel reiterates that the Claimants were duly employed by the Defendants and that their employments were confirmed by the conducts of the Defendants who continued to pay them salaries for 2 years after the expiration of the 3months’probation period.
1ST DEFENDANT’S REPLY ON POINTS OF LAW
Learned Counsel to the 1st Defendant also filed a Reply on Points of Law dated 11th July, 2019 wherein he argued that the temporal appointment of the Claimants by the2nd Defendant was not to the knowledge of the 1st Defendant nor with the approval of the Governor of Bayelsa State. He urged the Court to discountenance the Claimants’ Counsel’s argument in his attempt to raise the AURES to the status of an establishment by the Bayelsa State Government. He contends that AURES is not a Unit established by law. That the Claimants having not been employed by the Bayelsa State Civil Service Commission cannot be regarded as civil servants or public servants.
COURT’S DECISION
I have perused all the processes filed by Counsel on behalf of the respective Parties, I have also listened with spellbound attention to the testimonies of the Witnesses and looked at the Exhibits tendered through them. I have extensively considered the Final Written Addresses adopted by Counsel as their final arguments to support their case. It is apparent that both Counsel have formulated closely similar issues for determination, thus I shall adopt only one of the issues raised by the respective Counsel. That is:
Whether the Claimants are entitled to the reliefs sought from the totality of evidence (documentary and oral) before this Honourable court.
It is apparent from the facts of this case that the Claimants are alleging wrongful termination of their employment, having not been issued formal letters of termination and are praying this Court for declaratory reliefs that their employments are still subsisting. I will, in this light, address the first question raised by the Claimants’ Counsel, which I believe is exactly similar to that of the 1st Defendant’s Counsel.
The law is already well settled that where a party alleges wrongful termination of his employment, the onus is on that party to prove, as of necessity, the existence of a contract of employment between him and the Defendant and the terms of the very contract the employer breached in bringing the contract to an end. ORGANS & ORS v NIGERIA LIQUEFIED NATURAL GAS LIMITED & ANOR (2013) 16 NWLR (PT.1381) PG.506; UBAPLC v ORANUBA (2014) 2 NWLR (PT.1390) PG. 1; OKOMU OIL PALM COMPANY LIMITED v ISERHIENRHIEN (2001) 6 NWLR (PT.710) PG. 660. It is not the duty of the employer, who is sued as a defendant in the action, to prove any of these facts.
Furthermore, in circumstances such as this instant suit, where the Defendant denies the existence of any employment relationship between the Parties on record, it becomes the higher duty of the Claimant(s) to present credible evidence before the Courts showing that he is indeed an employee of the Defendant. NIGERIAN GAS CO. LTD v DUDUOLA (2005)18 NWLR (PT.957) PG.292 WAEC & ORS v IKANG (2013) LPELR-20422(CA).
From the facts relevant to this issue, the Claimants’ in their Amended Statement of facts stated as follows:
(4) The Claimants stated that by their letters of employment…they were offered employment as a Research Assistant under the Office of the Special Adviser on Security to the Governor of Bayelsa State, whose office was situate at Government House, Yenagoa and which was also their place of work…
(5) Further to the above fact, the Claimants were deployed to the Bayelsa State Auxiliary Research Services/Distress Call Centre (AURES) which essentially was a security co-ordination centre responsible for attending to security matters of the State including issues relating to kidnapping, armed robbery and the like.
In response to the above averments made by the Claimants, the 1st Defendant contended that it is only the Bayelsa State Civil Service Commission and other parastatals of government that are vested with the powers to employ or deploy personnel to different agencies and ministries of government and that the Claimants are not employees of the Bayelsa State Government.
The Claimants strenuously relied on their letters of employment (EXHIBITCWDM 001(A-G)), as proof of the existence of an employment relationship between themselves and the1st Defendant. For the purpose of emphasis and to ascertain the existence or otherwise of an employment relationship between the Parties, the content of the said letter of employment is reproduced hereunder:
GOVERNMENT OF BAYELSA STATE OF NIGERIA
Office of the Special Adviser to the Governor on Security Matters
Government House, PMB 1 Yenagoa
…
…
Offer of Employment as Temporary Staff
I am pleased to offer you employment as a RESEARCH ASSISTANT II with the Office of the Special Adviser on Security. This appointment is on a full-time basis and commences latest 01 August 2012.
You shall be reporting to the Head of Department where you may be assigned and is based at our offices in the Government House Yenagoa. You are required to work shifts including weekends.
You will serve a 3 month probation period which begins from the day of your assumption of duty. Mutual suitability will be determined during the probation period, and the processes for a permanent position may be initiated on its completion. During the probation period, your appointment may be terminated by either party providing one month’s notice, or payment in-lieu. Your remuneration is N70, 000. 00 which will be paid monthly in arrears.
This letter will be held in your personal file after you have endorsed it.
You may contact the undersigned for any clarifications
Yours sincerely,
Lieutenant Colonel Bernard Kenebai (rtd)
Special Adviser on Security Matters
I have underlined some phrases for emphasis.
From this Exhibit, it is obvious to ascertain who the Parties to this contract of employment relationship are. I do not align myself with the contention of the Learned Counsel for the Claimants that EXHIBITS CWDM001 (A-G) substantiates the fact that an employment relationship exist between the Claimants and the Bayelsa State Government. Although the title “GOVERNMENT OF BAYELSA STATE OF NIGERIA” can be conspicuously identified on the letters of employment, it is however palpable that the particular office that actually offered the Claimants employment is the Office of the Special Adviser to the Governor on Security Matters in one of their offices located within the government house.
The appointment of a personal special adviser is usually made at the pleasure of the Governor and the office so created for such special adviser (the special adviser on security matters in this instant suit) is for the administrative convenience. See SECTION 196 of the 1999 CONSTITUTION (AS AMENDED).The office is constitutionally recognized, however, actions of the office holder do not ordinarily bind the Governor of the State except in circumstances where such actions are ratified by the Governor. Both parties seem to be in agreement that the AURES is a unit (or centre) in the Office of the Special Adviser to the Governor of Bayelsa State on Security Matters. It is not a statutory corporation established by a law of the State House of Assembly or a company/enterprise in which the State government or its agency holds controlling shares or interest. The fact that the AURES continued to exist after the resignation of the 2nd Defendant does not change the conclusion that the Office of Special Adviser, and all its comprising units, is necessarily for administrative convenience. By EXHIBIT CWDM 001(A-G), the appointment of the Claimants does not place them in the realm of civil or public servants as defined by SECTION 318(1) OF THE 1999 CONSTITUTION (AS AMENDED). Apparently, the Claimants recognize this hence their submission that the relationship they have with the Defendant, is a simple master and servant relationship. See also Section 91 of the Labour Act.
Moreso, the identification of the Parties to the contract can be deduced from the mode of termination of the appointment contained in the EXHIBIT CWDM 001 (A-G).The contracting Parties are the respective names of the Claimants and the Office of the Special Adviser to the Governor on Security Matters, Government of Bayelsa State, duly represented by the Special Adviser himself, as these are the Parties who are entitled to terminate the contract, as per the letter of employment. I therefore hold that the Claimants’ argument on the existence of an employment relationship with the Government of Bayelsa State, does not hold water. The Claimants are duly aware of this position, hence their letter to the Governor of Bayelsa State (EXHIBIT CWDM 002), which was a passionate appeal rather than a demand or pre-action notice. Joining the 2nd Defendant, who happened to be a past holder of the office, does not also serve the cause of the Claimants. The Office of Special Adviser on Security matters is definitely a continuum and it is the current holder that ought to be joined in his capacity as such.
Now let us return to the material issue in this case. Unlike the contention of both Parties that the crux of the dispute resulting to this action is the non-payment of salaries, the real question that arises here is whether the employment of the Claimants were terminated properly, that is, in accordance with the terms and conditions as contained in the contract of employment.
Before delving into the issue of termination, it is pertinent that this Court determine the type of employment relationship that exists between the Parties. Without mincing words, it is clear from the evidence before me that the relationship between the Claimants and the Defendants was one of a master and servant relationship and not one clothed with statutory flavour. Ordinarily, a master in such kind of relationship is entitled to dismiss his servant from his employment for good or bad reasons or for no reason at all, yet the principle of sanctity of contracts must be maintained. It is trite that termination of a contract of service, even if unlawful, brings to an end the relationship of master and servant, employer and employee. This rule is based on the principle of confidentiality between master and servant which cannot continue in the absence of mutuality. It is a well-established principle of labour law, however that ordinarily while we agree that the master has the right to hire and fire, that right must be exercised in accordance with the due process of law.See NFOR VRS ASHAKA CEMENT CO. LTD (1994) 1 NWLR (PT. 319) 222 CA; LAYADE VRS PANALPINA WORLD TRANSPORT NIG LTD (1996) 6 NWLR (PT. 456) 544 SC.
Before an employment can have statutory flavour the statute must expressly make it so, otherwise the employment will have to be treated on the basis of the common law principle of master and servant. It is pertinent to ask, when will a condition of service be regarded to have statutory flavour? The answer is simple. A regulation with statutory flavour must be enacted by the Parliament or any Law making body as a schedule to an Act or Law or as a Subsidiary Legislation. The terms of service under which the Claimant was employed were drawn up by the 2nd Defendant. See the case of IDONIBOYE-OBU VRS N.N.P.C (2003) 1 SC (PT. I) 40 at 57 PARAS 15 – 25.
Indeed, while the Claimants frame ignorance of the termination of their employment, the 1st Defendant is unequivocal about its stance that it has terminated the Claimants’ contract of employment. The Claimants further assume that if it is held that the Defendant terminated their contract of employment, then the said termination was not done in accordance with the terms and conditions of the contract, particularly that they were not notified of the termination of their employment. The 1st Defendant, on the other hand, contends that it followed the proper procedure.
A peep at the contracts of employment (Exhibits CWDM 001 A – G) between the Claimants and the Defendants, particularly at the terms/condition for termination of the contract of employment, which is relatively similar, it requires either of the Parties who wish to terminate the employment, to give the other Party, “a one month notice or make payment in lieu of notice”.
From the content of the contract of employment, the method through which the notice of termination may given is not specified. Thus, the Party terminating may choose to inform the other Party by oral means or by writing. In fact, the Party terminating may choose to announce the termination of the employment using a megaphone in a public place provided it is directed towards the other Party, and the other Party can hear and understand the information. It is however proper that since the contract of employment is in writing that the notice terminating same also should be made in writing.
On the other hand, the term “in lieu of notice” simply means the amount which the employer ought to pay to the employee as salary for the period but which said period the employee needs not to work.” This was given judicial credence in the case of CHUKWUMAH v SHELL PETROLEUM NIG LTD (1993) 4 NWLR (PT.298) P.512 where the Court held as follows:
“The phrase has been defined in the Concise Oxford Dictionary of English Language 4th Ed., page 687 as “in the place, instead of, in substitution of…” Thus, when the condition of termination of the contract of service is the giving of two months’ notice or the payment of two months’ salary in lieu of notice, it can only mean the payment of two months’ salary instead of, in place, in substitution of the giving of two months notice.”
See also UDEMBA v NWABUEZE (2016) LPELR-41314 (CA)
In terminating the employment of the Claimants, the 1st Defendant issued Exhibit DWBS 001 – DWBS 009. Thus, the Claimants’ employment was terminated. From the definition of the term ‘in lieu of notice’ above, it simply means that the Defendant did not give the Claimants the required one month’s notice as stipulated in the contract of employment.
It becomes very evident therefore that the Defendants did not terminate the employment of the Claimants in accordance with the contract of employment. The least the Defendants could have done was to pay the Claimants their salary/entitlements for one month, being one month in lieu of notice of termination. This was never done.
Parties are bound to the terms of their agreement that they voluntarily entered into and the Court must give plain and unambiguous meanings to the terms used in the agreement. It must not add, subtract or subsume into the contract that which was not intended by the Parties. See A.G. FERRERO & CO LIMITED v HENKEL CHEMICALS (NIG) LIMITED (2011) 6-7 SC (PT.1) PG.165 AT 183. Exhibit CWDM – 001 (A – G) is a reflection of what the Parties intend to regulate their relationship and they are bound by it.
Having held that the employments of the Claimants do not enjoy statutory flavour, I hold no hesitation in holding that the termination of the Claimants’ employment by the Defendant was wrongful. However, since the position of the law is clear that in a master/servant relationship, an employee is not entitled to reinstatement, as a servant cannot be forced on an unwilling master, what the aggrieved servant can recover is damages which equal the length of notice which he ought to have been served with.
I am fortified with the position of the Supreme Court in NIGERIA PRODUCE MARKETING BOARD VS. ADEWUNMI (1972) ALL N.L.R. 870 PG. 872 where it was held that: “If under the conditions of service of a Plaintiff who has been wrongfully dismissed, his employment is determinable by notice of a stipulated length and on such determination the Plaintiff is also entitled to any benefits accrued to him under the staff provident fund, the rules of which provide for payment in fixed proportion to length of service, then all that the Plaintiff is entitled to as damages in respect of his pay is the salary which he would have received during the stipulated period of notice; without more”.
On the whole, the Claimants’ claims succeed in part, I hold that the Claimants’ claim that their employment is still valid and subsisting fails and same is dismissed. The termination of the Claimants’ contract of employment, though wrongful for having not followed the required procedure, still stands.
On that basis, the Claimants are only entitled to their salaries and entitlements for one month in lieu of notice of termination of their employments by the Defendant.
I also award cost of Five Hundred Thousand Naira (N500, 000. 00) in favour of the Claimants.
All the terms of this judgment are to be complied with by the Parties and their respective Counsel within 30 days. This is without prejudice to the right of appeal against the judgment by any of the Parties dissatisfied by the judgment.
I so hold.
Judgment is hereby entered accordingly.
________________________________________
HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
YENAGOA DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA



