Dr. Eugene Pam -VS- The Plateau State Government & 4 Ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.I. AMADI

DATE: 5^TH JULY 2019 SUIT NO. NICN/JOS/31/2015

BETWEEN:

EUGENE PAM—————————— CLAIMANT

AND

THE PLATEAU STATE GOVERNMENT
THE GOVERNOR OF PLATEAU STATE
THE SECRETARY OF THE GOVERNMENT———— DEFENDANTS

OF PLATEAU STATE

PLATEAU STATE WATER BOARD
THE ATTORNEY GENERAL OF PLATEAU STATE

REPRESENTATION

A.G Yirvomsfor the Claimant

N.D. Shaseet DCR/LR (Ministry of Justice) with N.J Agaba (SSC), S.G Deme (SSC) for the Defendants

JUDGMENT

INTRODUCTION

The Claimant commenced this case by a general form of complaint and Statement of Claim and a Motion for Summary Judgment dated and filed on8thSeptember, 2015. The claimant claims from the Defendants jointly and severally as follows:

Judgment in the sum of N2,424,816.94k (Two Million, Four Hundred and Twenty – four Thousand, Eight hundred and Sixteen Naira, Ninety – Four Kobo) representing salaries and allowances (excluding housing allowances) due to the Claimant from the 1^st and/or 4^th Defendants from December 2014 till June 2015 when his appointment was terminated.
Judgment in the sum of N11, 777, 682.28k (Eleven Million, Seven Hundred and Seventy-Seven Thousand, Six Hundred and Eighty – Two Naira, Twenty – Eight Kobo) representing income the Claimant would have earned between July 2015 and April 2018 when his contract with the 1^st defendant was to elapse.
Judgment in the sum of N2, 674, 261.25k (Two Million, Six Hundred and Seventy – Four Thousand, Two Hundred and Sixty – One Naira, Twenty – Five Kobo) representing the Claimant’s housing allowance from July 2015 to April 2018 when his contract with the 1^st defendant was to elapse.
Judgment in the sum of N4,219,190.12k (Four Million, Two Hundred and Nineteen Thousand, One Hundred and Ninety Naira, Twelve Kobo) representing legal fees incurred in prosecuting this action.
Interest on the judgment sums at the rate of the 21% (Twenty – One Percent) per annum from date of judgment till liquidation of the judgment debt.
The costs of this suit as may be assessed by the Honourable Court.

The Defendants filed a Memorandum of Appearance dated 8^th October 2015 and filed 13^th October 2015, they alsofiled a Joint Statement of Defence and Counter Claimand a Counter Affidavit to Claimant’s Motion for SummaryJudgment dated and filed 2^nd November 2015. The Claimant filed a reply to the Joint Statement of Defence and Defence to Counter – Claim dated and filed 24^th November 2017.

The case was mentioned on 12th October 2017, and hearing commenced on 12th April 2018, the Claimant testified as a sole witness, headopted his witness statements on oath dated 8/9/2015 and 24/11/2017, tendered ten (10) documents in support of his case. The Claimant was subsequently cross examined by the defendants’ counsel and was discharged from the witness box on the same 16th April, 2018 after which the claimant closed his case.

The Defendants opened their case on 4th July, 2018 and called a sole witness who testified on their behalf and was cross examined. The Defendants closed their case on the same 4th July, 2018. The matter was adjourned to 12th October 2018 for adoption.

THE CASE OF THE CLAIMANT.

The claimant’s case is that he was appointed the General Manager of Plateau State Water Board (4^th Defendant) vide a letter of appointment dated May 3^rd, 2013 for a fixed tenure offive-year term (exhibit CA-CA1). The appointment was accepted by him vide a letter of acceptance dated May 7^th, 2013 (exhibit CB) after which he assumed duty. That before the expiration of his five-year term, his appointment was terminated by a letter dated the 10^th June 2015(exhibit CD). That before the termination of his appointment, hewas owed salaries from December 2014 to June 2015. That following his said termination of his appointment, he was forced to vacate his official residential quarters, hence this suit claiming for his salaries for the unexpired tenure of his employment, arrears of salaries and for unexpired period of his housing allowance.

THE CASE OF THE DEFENDANTS.

The Defendants in their Defence admitted liability for the arrears of the Claimant’s salaries but denied liability for the salaries for the unexpired terms of his appointment, on the ground that the Claimant’s appointment was terminated for poor performance and he is not entitled to the salaries he would have earned had his contract not been terminated. They stated that the Claimant is not entitled to any housing allowances for the unexpired term rather they counter – claimed for the refunded of the alleged housing allowances paid to the claimant on the ground that he was offered free accommodation.

ADDRESSES OF PARTIES.

In his final written address dated and filed on 23rd July 2018; the learned counsel for thedefendants raised a sole issue for determination by this Honourable court to wit-

From the pleadings and evidence before the court the issue for determination is whether the claimant is entitled to any of the reliefs sought?

Counsel submitted that, from the claim of the claimant he is claiming for expected salaries and allowances for the remaining period he ought to have served as the General Manager of the Board, his appointment having been terminated before the expiration of the 5years period. That he is not challenging his termination as such but is only interested in the monetary claim which he would have earned has his appointment not been terminated before the expiration of the period.

Counsel submitted that; the Plateau State Water Board was established by the Plateau State Water Board Edict No. 4 of 1991 (hereinafter referred to as “Edict no. 4 of 1991).

That section 15 (1) provides for the appointment of the General Manager thus:

“15 (i) The Chief Executive Officer of the Board shall be its General Manager who shall be a professionally qualified engineer with sound experience of water supply engineering and management and shall have ultimate responsibility for the implementation of the policies and divisions of the Board in accordance with the provisions of the Edict”

That paragraphs 1, 2, 3 of the Schedule to the Edict made provisions for tenure of office of member and eligibility for reappointment and vacation of office of members thus.

“1. Every member of the Board (other than an Ex-officio member) shall, subject to the provisions of this schedule, hold office for a period to be stipulated by the Military Governor

—————-
(i)———–

(a) ———-

(b) ———-

(c) ———-

(d) ———-

(e) ———-

(f) ———

Notwithstanding anything contained in the instrument by which a member is appointed, a member can resign his office as a member by notice in writing to the Military Governor or, and upon receipt of such resignation by a Military Governor the appointment of such member shall be terminated
Notwithstanding the provisions of Subsection (1) the Military Governor may at any time remove any member from his office.

That in the letter of appointment(Exhibit CA-CA1) of the claimant as General Manager of the Board, paragraph 2 therein stated thus:

“2 it is expected of you to work hard towards the revitalization of the Board for maximum productivity however, Government reserve the right to terminate your appointment if your performance is below average”

Counsel submitted that, from the provisions of the Edict establishing the Board quoted above, the employment of the claimant is at the pleasure of the Governor as such the defendants reserve the right to terminate his appointment at anytime.

Continuing counsel argued that, by section 4(1)(F) of Edict No 4 of 1991 the General Manager is a member of the Board, accordingly his appointment can be terminated by the “Military Governor” in this case, the Governor, at any time. Counsel referred to paragraph 3 (3) to the Schedule to Edict No 4 of 1991.

That paragraph 1 to the schedule conferred on the Governor with the unfettered power to stipulate the period in which any member of the Board shall hold office and, in that exercise, the Governor vide exhibit CA-CA1 (Letter of Appointment) stipulated the tenure of the claimant as General Manager of the Board to afive year term. However, that in exercise of his power to remove the claimant from office under paragraph 3 (3) of the schedule to the Edict the claimant was issued with Exhibit CD (Letter of Termination).

That by the rules of interpretation of statutes courts are always enjoined to give every statute or document its ordinary interpretation except where same is ambiguous. Counsel referred to the case ofComptroller-General of Customs &Ors. v Comptroller Abdullahi B.Gusua (2017) ALLFWLR [pt.911] 422 @ 453 paras B-Cwhere the Supreme Court held thus:

“Where the main object and intention of a statute are clear, the court in its interpretative power, must give effect to those main object and intention. The words and language used in the statute to convey its main object and intention shall be given their ordinary meaning. The words of the constitution are not to be read with stultifying narrowness, but are to be read and given the meaning that will effectual their purpose”

Counsel urged the court to hold that by virtue of the ordinary interpretation of Edict no. 4 of 1991, the appointment of the claimant is at the pleasure of the Governor who decides on the tenure but reserves the right to terminate the appointment before the expiration of the tenure. Accordingly, this court cannot interpret the terms and condition of contract between the claimant and the defendants otherwise than as it is clearly spelt out both in the Statute and exhibit CA-CA1.

Continuing further counsel argued that in line with Edict No. 4 of 1991 and paragraph 2 of Exhibit CA-CA1(Letter of Appointment) the appointment of the claimant was lawfully and validly terminated. That the appointment of the claimant was terminated for non compliance with paragraph 2 of Exhibit CA-CA1 (Letter of Appointment).

That although, the claimant tried to refute the above facts by tendering in evidence exhibit CK-CK17 (IGR of 4^th Defendant)counsel submitted that the said exhibit is inadmissible and cannot be relied upon because same is a public document which did not comply with the requirement of certification as provided for under sections 104 and 105 of the Evidence Act 2011. Counsel urged the Honourable Court to discountenance same by expunging it from the records.

Counsel urged the court to hold that the performance of the Board was below average and therefore the defendants have the right to relieve him even before the expiration of his 5 years term and without necessarily stating the reason in the letter of termination.

That, in the case of arrears of salaries being owed the claimant, the defendants admitted that in their paragraph 9 of their statement of defence where they further averred that:

“arrears of salaries is being owed all civil servants, pensioners and political office holders in the state and same is being paid as at when cash is available”.

In respect of the claim for unearned salaries and allowance for the period from June 2015 to April 2018 had his appointment not been terminated, counsel submitted that he is not entitled to same on the authority of Texaco Nigeria PLC v Kehinde (2001) 6 NWLR [pt. 708] 224 at 242where the court held thus:

The trial court awarded to the respondent his salaries and other entitlements from the time of termination… The law is very clear on the point that a servant would only be paid for the period he served his master and if dismissed as in this case, all he gets as damages is the amount he would have earned if his appointment had been properly determined. That is, the servant isto be paid his salaries and entitlements up to the date of his dismissal.

Counsel submittedthat what the claimant here is entitled to is his arrears of salaries only up to the date his appointment was terminated which is June 2015 and not expected salaries between July 2015- April 2018 as claimed,that he would have earned had his appointment not been terminated. This was equally the position of the Court of appeal in the case of DR. Victor Igwilo v CBN (2005)NLLR 377@ 429 paras B-D where it held thus:

“claims by an employee for arrears of salary, gratuity and allowances for the unexhausted period of the employee’s contract of service is an ‘unusual relief’. Even if an employee has been dismissed in breach of his contract of employment, he cannot choose to treat the contract as subsisting and sue for an account of profit, that is, salary, gratuity and other allowances, which he would have earned to the end of the contractual period”

It further stated at page 428 paras. H as follows:

“In an action for wrongful termination, claims based on expected salaries and allowances are not maintainable since they are futuristic and speculative in nature”

Counsel urged the court to discontinuance exhibit CH as the claimant is not entitled to such claim.

Also that the claimant’s claims for 21% interest per annum from the date of judgment till liquidation of the judgment debt is a trench prayer which is on salaries unearned or expected to be earned. That salary is not a profit from a business venture that can attract interest because same is not proceed of trade.

COUNTER CLAIM

Counsel submitted that, the Defendant/counter claimant is claiming a total sum of N1,411,468.39 (One Million, four Hundred and eleven Thousand, four Hundred and Sixty-eight Naira,Thirty-nine Kobo) only, being the housing allowance that the claimant/ Defendant collected within the period of June 2013 to June 2015 when he was in office.

That it is also not in dispute that by exhibit CA-CA1, it is clearly stated therein that if the claimant is provided with accommodation, he is not supposed to enjoy housing/rent allowance. It is the evidence of the counter claimant that the claimant/ Defendant was provided with furnished accommodation yet he was still being paid housing/rent allowance. That this fact is not denied by the claimant/defendant in his pleading and evidence in court where he unequivocally admitted that he was provided with accommodation by the defendant when he served as General Manager of the Board.
Counsel submitted that, the counter claimant in order to prove that the claimant/defendant was still collecting housing allowance/rent, tendered exhibit DA, his pay advice. That Exhibit DA indicated that the claimant/ Defendant collected N74,287.81k (Seventy-Four Thousand Two Hundred and Eighty-Seven Naira Eighty-Onekobo) monthly from May 2013 to November 2014 when his salaries were paid to him.
Counsel submitted that, the claimant/Defendant in his defense to the counter claimdenied same and tendered his bank statement in evidence as exhibit CC-CC12. That the exhibit tendered is a lump sum of his salary and allowances with housing/rent inclusive as same did not give any breakdown, this fact he admitted in cross examination. Counsel urged the court to rely on exhibit DA tendered by the counter-claimant and enter judge in their favour in the counter claim, the claimant/defendant having woefully failed to refute the counter claim.

In his own final written address,the learned counsel for the Claimant alsoraised a sole issue for determination for the court to wit-

Whether from the facts of this case and the totality of evidence placed before this Court, the Claimant is entitled to the reliefs sought?

Counsel submitted that the answer to this lone issue for determination is in the affirmative. That a careful perusal of ExhibitsCA-CA clearly shows that an employment contract existed between the claimant and the Defendants. That the apex Court of the land in Shena Security Company Ltd vAfropa (Nig.) Ltd&Ors. 2008 LPELR – 3052(SC) in defining what a contract of employment is held thus:

“A contract of employment entails agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker”.

That from the above cited authority and Exhibits CA-CA1 and CB (Letter of appointment and Acceptance), it is crystal and abundantly clear that there exists a contract of employment between the parties in this suit. That this fact was admitted by the Defendants, that they do not deny engaging the Claimant as the General Manager of the 4^th Defendant or that the term of employment was for (5) five years.

Continuing counsel argued that there are no facts or documents tendered by the defendants to show that the Claimant performed below expectation or below average. That under cross examination the DW1 categorically informed the Court that the content of Exhibit CD (Claimants’ letter of termination) is not in tandem with the depositions in paragraph 9, 10 & 11 of his witness statement on Oath, which were made to suggest that the Claimant performed below expectation. Counsel submitted that this contradiction in the Defendants’ case eroded the credibility of the witness and their evidence; it further shows that he is not a witness of truth.

Counsel submitted thatthe Defendants failed to prove that the Claimant performed below average and that was the reason for the termination of his contract and therefore lacked any justification for terminating his contract, except for political expediency following the change of administration in the state, which as expected is not admitted by the Defendants.

Counsel submitted that the Defendants made a counter-claim for housing allowances they allegedly paid the Claimant during his tenure, having also provided the Claimant with official accommodation. That the Claimant pleaded in his defence to the counter-claim that the payments made into his account was his gross income with nothing indicative of the alleged sum paid to him. Exhibit CA-CA1 (Letter of Appointment), the appointment letter of the Claimant listed several sub-heads under the remuneration of the Claimant, besides the accommodation allowance that the Claimant would have been entitled to, if he had not been provided with official accommodation. That these subheads make up the gross income of the Claimant. That the Defendants only tendered the Claimants pay advice (Exhibit DA) with no other evidence that the advice was a reflection of the Claimants monthly salary. That the Claimant had tendered his statement of account in evidence as Exhibit CC-CC12.That he had nothing to hide.

That the Supreme Court in Surveyor B.J.Akpan v Akwa Ibom Property& Investment Co. Ltd(2013) LPELR-20753(SC) held thus;

“The Plaintiff needs to prove the exact indebtedness of the defendant including the interest and default charge and the basis of the calculation. This needs to be demonstrated in open court. The court cannot verify the claim of the plaintiff within the closet of the learned trial Judge. This would amount to cloistered justice which is not the duty of the court. See ACN V LAMIDO & ORS [2012] LPELR – SC 25/2012 where Fabiyi JSC said; “It is not the duty of a court or Tribunal to embark upon cloistered justice by making enquiry into the case outside the open court not even by examination of documents which were in evidence but not examined in the open court. A judge is an adjudicator; not an investigator”.

Counsel submitted that, on the strength of the authority cited that the Defendants were unable to demonstrate to the Court or prove that they paid the Claimant the sum of N74, 287.81 monthly during his tenure as Chairman of the 4^th Defendant. The Defendants had the duty of pleading and proving by credible evidence and with mathematical accuracy that the alleged housing allowance counter-claimed formed part of the Claimants monthly gross income before his contract was terminated. That the burden is on he who asserts to prove by Section 131 of the Evidence Actand the Defendants failed to prove their counter-claim and urged the Honourable Court to so hold in dismissing same.

Counsel referred to the caseof Audu v Petroleum Equalisation Fund (Management) Board& Anor (2010) LPELR-3824 (CA)where the court held thus:

“Although an employer is not bound to follow a proper procedure in summarily dismissing an employee, there is a long line of judicial authorities identifying some exceptions where to properly and effectively terminate a contract of employment, the employer has to follow the proper procedure. The following are exceptions:

Where the contract itself has made provisions for a procedure to be followed, that procedure has to be followed to effectively determine the contract.
Where a statute regulating the appointment and dismissal of a Servant, the requirement of the statute must be complied with. In that case, the master/servant relationship has what is called “statutory flavour.
The other third category affects holder of office involving public function. Here, the roles of the natural justice must be complied with in the dismissal. Per Odili JCA (PP22-23, Paras D-A)”.

Counsel submitted that, it is clear that by the spirit and letters of exhibit CA-CA1 (letter of appointment) the Governor has the right to terminate the appointment of the Claimant only if his performance is below average. Thathis performance was never an issue. That he was never queried on his performance. That the Claimant was therefore taken aback by exhibit CD (termination letter) without any reason whatsoever or any form of notice of termination of contract. That the procedure to be followed to determine the Claimants contract was therefore not followed by the Defendants.

Thaton the contrary, the claimant pleaded and proved that during his tenure as the General Manager of the Plateau State Water Board, there was massive improvement in the performance of the Board. That the Defendants did not disprove or discredit the Claimant on this assertion.

That the Defendant expended a lot of energy in trying to convince the Court to expunge Exhibits CK-CK17 from the records of the Court for allegedly not being certified. That the submission is misconceived as the documents tendered and admitted are counter-part copies as provided for under Section 86(3) Of the Evidence Act, 2011(as amended) and so require no certification, having the same quality as originals and therefore admissible. Counsel urged the Honourable Court to discountenance the objections as raised. That assuming but not conceding that the documents were not certified, that the Claimants had pleaded the documents in paragraphs 1:3:2 of the Claimants’ reply and placed the Defendants on notice to produce the originals. That the Defendants refused/neglected to produce the documents at trial. Counsel urged the Court to invoke Section 167(d) of the Evidence Act 2011(as amended) in holding that the originals if produced would not have been helpful to the Defendants’ case hence the presumption of withholding evidence against them. Counsel relied on the case of Dr JohnOlukayode Fayemi v Olusegun Adebayo Oni (2010) 17 NWLR

(pt. 1222) 326 @ 342.

Counsel submitted that, by the final address of Defendants, and in an attempt to justify their illegal actions, their Counsel relied solely on the Plateau State Water Board Edit No. 4 of 1991 particularly paragraph 1(b) which provides thus:

“Notwithstanding the provisions of subsection (1) the Military Governor may at anytime remove any member from his office”

That, the crux of the Defendants argument is that by reason of the provisions of the above stated lawthe Governor can remove any member of the Board at any time from office, the Chairman inclusive. However, that this was never the case of the Defendants from their Statement of Defence. That the Defendants never pleaded any fact to the effect that the Claimant’s employment was terminated in accordance with the powers of the Governor under the Law above cited. Counsel submitted that the Law is trite that parties and indeed the Court are bound by pleadings. Counsel referred to the case of Anyanwu vUzowunaka (2009) 13 NWLR (pt 1159) 445 at 475 – 476 where it was held that

“Parties as well as the Courts are bound by issues raised by parties in the pleadings.”

Counsel submitted that, it is clear that this issue was never raised in the pleadings of the Defendants or in their Evidence. That the case of the Defendants is that the Claimant underperformed and that was the reason for the termination of his Contract. Counsel referred to the Defendants’ pleadings in paragraphs 8 and 10 of their Defense.

That the Defendants only raised the issue for the first time in their final address contrary to the case they had put up by their pleadings. That the position of the law is as elucidated in the case of Chiokwe v State (2013) 5 NWLR (Pt. 1347) 205 S.C where the Court held that:

“Submission of Counsel, however beautiful or enticing cannot take the place of evidence. This is because, address of Counsel to be accepted and utilized must be a reminder to court on evidence proffered. On its own, address of Counsel cannot stand.”

That assuming without conceding to the fact thatthe Governor can terminate the appointment of the Claimant as he pleases, worthy of note is the position of the law in the case of Shena Security Company Ltd v AFROPAK (Nig.) Ltd&Ors.(2008) LPELR 3052 (SC) where the court held thus:

where a contract of an employee is determined before the expiration of the term agreed, the employer shall be made to pay the employee the full unexpired period of his fixed contractual term

Counsel submitted that the defendants having failed to comply with the terms of the contract, the Defendants are bound by the authorities cited above to the extent of paying the Claimant the full unexpired period of his fixed contractual term.

Counsel argued further that, a careful look at the entirety of this case raises a question that begs for answer; was there any notice of termination given to the Claimant? Obviously, the answer is in the negative, that the law is not silent in this scenario. ThatinShena Security Company Ltd v AFROPAK (Nig.) Ltd &Ors. (supra)the courtdecided on where no mode of termination by any form of notice is providedthus:

“Where there is contract of service which contains no provision for notice required for termination thereof, there is an implied term that the contract can only be terminated on reasonable notice. What is reasonable notice is dependent on:

The nature of the contract
The status of the employee in the establishment.

Thus the higher the position held by the employee, the larger his salary, the longer will be the notice required to put his contract to an end…”.

Per Mohammed JSC Page 27 Para C-F.

Counsel submitted further also that having failed to issue notice of any form to the Claimant, the one and only option open to the Defendants is to pay compensation to the Claimant in damages for the salaries the Claimant ought to receive if not for the illegal act of unilateral termination of the contract of employment entered by parties.

Counsel submitted that the breach of the ‘term’ of the contract by the Defendants which was stipulated to be for five years and the failure of the Defendants to issue any notice of termination of the Claimants contract of employment entitled the Claimant to the salaries he would have earned had the employment been determined as stipulated by the terms of the contract.

In conclusion Counsel submitted that the Claimant has proved his case on the preponderance of evidence as required by law and is therefore entitled to all the reliefs as claimed. Counsel urged the Honourable Court to dismiss the Defendants’ Counter-claim.

COURT’S DECISION.

I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. In view of the counter claim of the defendants, I am of the view that the issues raised by the parties can be summarized into one issue and that is whether the parties are entitled to their claims. I shall therefore treat the claims of the parties seriatim in the resolution of this case starting with the claimant’s case as follows:

Claim 1, is for the sum of N2,424,816.94k (Two Million, Four Hundred and Twenty – four Thousand, eight hundred and Sixteen Naira, ninety – Four Kobo) representing salaries and allowances (excluding housing allowances) due to the Claimant from the 1^st and/or 4^th Defendants from December 2014 till June 2015 when his appointment was terminated. The defendants admitted this claim. It is trite that admitted fact needs no further proof, seeEkpemupolo&Ors. v. Edremoda&Ors(2009) 8 NWLR (Pt. 1142) 166, this claim is therefore granted.

Claim 2, is for the sum of N11, 777, 682.28k (Eleven Million, Seven Hundred and Seventy-Seven Thousand, Six Hundred and Eighty – Two Naira, Twenty – Eight Kobo) representing income the Claimant would have earned between July 2015 and April 2018 when his contract with the 1^st defendant was to elapse.

Both parties agreed that the appointment of the claimant was for a fixed period of 5(five) years in the first instance. Both parties also agreed that the appointment was terminated before the said five years created by the appointment letter. While the claimant’s contention is that the termination was wrongful and not in terms with his letter of appointment, the defendants contended that the termination was within the power of the 2^nd Defendant based on unsatisfactory performance on the part of the claimant. To resolve this issue first, the relevant part of the letter of appointmentof the claimant(Exhibit CA-CA1) is hereunder reproduced thus:

I am pleased to inform you that the Governor of Plateau State, Jonah David Jang has approved your appointment as General Manager, Plateau State Water Board with effect from 26^th April, 2013 for a period of five years in the first instance on the following conditions…

It is expected of you to work towards the revitalization of the Board for maximum productivity. However, Government reserves the right to terminate your appointment if your performance is below average.

From this exhibit CA-CA1, there is no dispute to the fact that the defendants reserved the right to terminate the appointment of the claimant if his performance is below average(emphasis mine).InKatto v. CBN (1999) 6 NWLR (Pt. 607) 390 @ 405 Paras D-Ethe Court held thus:

Therefore, in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties. The provisions of a written contract of service bind the parties thereto and it is outside the province of the court to look anywhere for terms of termination of contract other than in the written agreement.

It therefore means that, the five-year tenure created by the appointment letter of the claimant (exhibit CA-CA1) is sacrosanct, and can be tampered with only; if the performance of the claimant is below average.

From the foregoing therefore, it is very important to look at the letter of termination of the appointment of the claimant(exhibit CD) which is equally hereunder reproduced:

10^th June, 2015

Dr. Eugene Pam,

Plateau State Water Board,

Jos.

DISSOLUTION OF CHIEF EXECUTIVES, CHAIRMEN AND MEMBERS OF COMMISSION, BOARD AND PARASTATALS IN PLATEAU STATE.

The Executives Governor of Plateau State, Rt. Hon. Barr. Simon Bako Lalong has approved the dissolution of Chief Executives, Chairmen and Members of Commissions, Board and Parastatals, except the Statutory bodies as specified in the constitution.

Consequently, I am to inform you that you have been relieved of your appointment as General Manager of Plateau State Water Board with effect from 9^th June, 2015. You are to hand over the affairs of the office and Government property in your possession to the most senior officer in your Organization/Agency.
Also dissolved are Chairmen and Members of the Board of your Organization/Agency.

4.The Executive Governor wishes to thank you for your contributions and wish you success in your future endeavours.

HON. RUFUS D. BATURE,

Secretary to the State Government.

From this exhibit CD, it is very clear that the termination of the appointment of the claimant has nothing to do with his performance as the General Manager of the 4^th defendant. I therefore find and hold that the argument of the defendants that the said termination of the claimants was based on his performance being unsatisfactory or below average is a ruse. The termination is clearly wrongful and the claimant is entitled to damages in compensation thereof.InCollege of Education, Ekiadolor v. Osayande[2010] 6 NWLR (Pt. 1191) 423, the court held that where a contract of service is for a fixed term, the employee cannot be removed during the period of the term contracted, except for misconduct or where the employee dies; where the contract of an employment is determined before the expiration of the term agreed, the employer shall pay the employee the full salary he would have earned for the period of the fixed contracted term. This rule is reinforced by Shena security Co. Ltd v. Afropak (Nig.) Ltd [2008] 18 NWLR (Pt. 1118) 77 where it was held that where the term of service is pre-determined at the commencement of a contract, notice may or may not be in the contemplation of the parties. In such a situation, the employee cannot be removed during the period of the term contracted except for misconduct or where the employee dies. Where the employer determines the contract before the expiration of the term agreed, the employer shall be made to pay the full salary the employee would have earned for the unexpired period of his fixed contractual term.It is very imperative to note that the defendants did not challenge the sum claimed by the claimant under this head of claim consequently I find that the claimant is entitled to the sum of N11, 777, 682.28k (Eleven Million, Seven Hundred and Seventy-Seven Thousand, Six Hundred and Eighty – Two Naira, Twenty – Eight Kobo) representing income the Claimant would have earned between July 2015 and April 2018 when his contract with the 1^st defendant was to elapse. I so hold.

Claim 3 is for the sum of N2, 674, 261.25k (Two Million, Six Hundred and Seventy – Four Thousand, Two Hundred and Sixty – One Naira, twenty – Five Kobo) representing the Claimant’s housing allowance from July 2015 to April 2018 when his contract with the 1^st defendant was to elapse. For the same reasons I gave in granting claim 2, and further on the authorities of College of Education, Ekiadolor v. Osayande (supra), andShena security Co. Ltd v. Afropak (Nig.) (supra),this claim is equally granted.

Claim 4, is for the sum of N4,219,190.12k (Four Million, Two Hundred and Nineteen Thousand, One Hundred and Ninety Naira, Twelve Kobo) representing legal fees incurred in prosecuting this action.By Guniess (Nig) Plc vNwoke (2000) 12 NWLR (Pt.689) 135 @ 150 it is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the opposing party. AlsoProfessional fees, like special damages, must be specifically pleaded, particularized and proved.See Fortune International Bank Plc&Ors v City Express Bank Ltd (2012) LPELR-7900 (CA), see also Savannah Bank of Nig. Plc v OladipoOpanubi (2004) LPELR03023 (SC). In view of these authorities I hold that this claim has not been proved, it is bound to fail and it has failed.

Claim 5 is for interest on the judgment sums at the rate of the 21% (Twenty – One Percent) per annum from the date of judgment till liquidation of the judgment debt.By the provision of Order 47 Rule 7 of the National Industrial Court Rule 2017 may not be less than 10% but discretionary.

Claim 6 is for the costs of this suit. It is not in dispute that the claimant attended court from the United Kingdom. It is also not in dispute that this case has been in court since 2015, I am of the view that the claimant is entitled to cost which I access as N400,000.

I shall now turn to the counter claim. The counter claim is anchored on exhibit DA which is said to be the pay slip of the claimant for the month of November 2014, a close look at that exhibit will show that the date when it was issued was not stated, even though, there is a provision for the entering of the date. Not only that, the person who prepared it was not stated on the column provided for such person. Worse still, it was not signed by the maker. The particulars on it are that of the person who certified on 30/10/2015. That exhibit appears to have been made in contemplation of this case. The law is clear and trite that a document made during the pendency of a suit is inadmissible in law. Seesection 83 (3) Evidence Act 2011 and the case of Koiki v Magnusson (1999)8NWLR (Pt.615) 492. In Global Obal Soap and Detergent Industrial Ltd v NAFDAC (2011) 50 WRN 108 @ 136 Paras. 40-45 the position of the law as regards unsigned and undated document was stated as follows:

“It is trite that unsigned and undated document is worthless piece of paper that has no evidential value in law see the cases of Amaizu v Nzerube (1989) 4 NWLR (PT. 118) 755 and Salibawa v Habilat(1991) 7 NWLR (PT 174) 461”

Flowing from the foregoing, I find and hold that the Defendants / counter claimants have failed to prove their counter claim.

In all, I make the following orders:

The defendants shall pay the claimant the sum of N2,424,816.94k (Two Million, Four Hundred and Twenty – four Thousand, Eight hundred and Sixteen Naira, Ninety – Four Kobo) being his arrears of salaries and allowances due to him from theDefendants from December 2014 till June 2015 when his appointment was terminated.
The defendants shall pay the claimant the sum of N11, 777, 682.28k (Eleven Million, Seven Hundred and Seventy-Seven Thousand, Six Hundred and Eighty – Two Naira, Twenty – Eight Kobo) representing income the Claimant would have earned between July 2015 and April 2018 when his contract with the 1^st defendant was to elapse.
The defendants shall pay the claimantthe sum of N2, 674, 261.25k (Two Million, Six Hundred and Seventy – Four Thousand, Two Hundred and Sixty – One Naira, Twenty – Five Kobo) representing the Claimant’s housing allowance from July 2015 to April 2018 when his contract with the 1^st defendant was to elapse.
The claim for sum of N4,219,190.12k (Four Million, Two Hundred and Nineteen Thousand, One Hundred and Ninety Naira, Twelve Kobo) representing legal fees incurred in prosecuting this action is dismissed.
The defendants shall pay the claimant the sum of N500,000 being the cost of this suit.
The counter claim of the defendants is dismissed in its entirety.
The defendants shall pay all monetary awards in this judgment within 30 days from the date of this judgment failing which they shall attract 10% interest per annum until fully liquidated.

Judgment is entered accordingly.

……………………………………………

Hon. Justice K. I. Amadi, Ph.D.

(Judge)