Dr. Raymond R. Namshi Turyit -VS- The Governor of Plateau State

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.I. AMADI

DATED: July 5, 2019 NICN/JOS/35/2016

BETWEEN

RAYMOND.R. NAMSHI JURYIT……………. CLAIMANT

AND

THE GOVERNOR OF PLATEAU STATE…………. DEFENDANT

REPRESENTATION:

Francis Okafor, Sarah Okafor and Leah Okafor for the Claimant

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

JUDGMENT

INTRODUCTION

The Claimant commenced this case by a writ of summons and Statement of Claim dated and filed on the 31^st August, 2016. The claimant claimed against the defendant as follows:

A declaration that the appointment of the Claimant as the Executive Secretary, Plateau State Healthcare Board by the Governor of Plateau State on the 15^th of May, 2015 and the assumption of office by the Claimant is legal, valid and subsisting same having not been revoked.

A declaration that the Claimant having assumed duties since May 2015 is in a contractual employment relationship with the Plateau State Government and has a tenure as spelt out in the Law establishing the office the Claimant is holding/appointed into for a period of five (5) years.

A declaration that the Claimant cannot be removed from his duty post as the Executive Secretary of the Plateau State Primary Healthcare Board except on grounds stipulated in the Law establishing the office and governing the employment between the Claimant and the Plateau State Government.

An order of Court restraining the first Defendant from removing the Claimant from office until the expiration of the five (5) years employment contract or in accordance with the Law governing the office for the removal of an Executive Secretary of the Plateau State Primary Healthcare Board.
Costs of this action.

The Defendant filed its Statement of Defence dated and filed 16^th November 2016 and an Amended Statement of Defence dated 30^th May 2018 and filed on 31^st May 2018.

FACTS

The facts of this case according to the claimant are that he was appointed the Executive Secretary of the Plateau State Primary Health Care Board for a period of five (5) years tenure and upon assumption of office, he worked until he heard from radio announcement that, the Defendants have nominated another person to the Plateau State House of Assembly for screening to take over his employment. That it is against that screening, that he came to the Honourable Court to protect his employment.

The case of the defendants is that they terminated the employment of the Claimant by virtue of the power conferred on them by the Law establishing the Plateau State Primary Healthcare Board.

TRIAL

The case was mentioned on 11^th October 2017, and Trial commenced on 27^th April 2018. At the trial the Claimant testified for himself as the sole witness (CW1). The Claimant identified his witness statement on Oath dated 31/8/2016 and he adopted same as his evidence in the trial and tendered the listed and frontloaded documents in evidence as exhibits.

Under cross examination witness stated that he was appointed in 15/5/2015 as the Executive Secretary of Plateau State Primary Health Care Board and that he is still actively performing his functions. Witness stated that he was paid his last salary in November 2016. That before his appointment he was a staff of the State Ministry of Health as Chief Epidiomologist. That he was employed on grade level 14 but cannot remember his remuneration. The witness stated that he is aware that the Board was established by Law and so also his employment. The witness stated that he is a Civil servant and that it is not by way of appointment. Witness stated that his appointment as an Executive Secretary is not a political appointment and he is not a politician. That he has never been removed as the Executive Secretary. That he has never been queried. That the announcement he heard over the radio took away his appointment. Thereafter the Claimant closed his case.

Defence opened their case on 3^rd July, 2018 and called their sole witness EZRA D. BAWA (DW1). The witness identified his witness statement on Oath dated 31/5/2018 and he adopted same as his evidence in the trial.

Under cross examination witness stated that he was appointed as Senior Assistant to the Governor on 11/8/2017 and he retired on 10/8/2017. That he worked at the office of the Secretary of the Government. That he is aware that the Claimant was appointed as the Executive Secretary of the Plateau State Primary Health Care Board and that there is a law regulating the appointment to the Plateau State Primary Health Care Board. That upon appointment the Claimant assumed duty immediately and he started earning his salaries and other allowances. That he never worked with the Claimant in the same ministry and no query was ever issued to the Claimant. The defendants thereafter closed their case.

At the conclusion of hearing on 3rd July, 2018, the parties were ordered to file and exchange their Final Written Addresses.

ADDRESSES OF THE PARTIES

In his final written address, the learned counsel for the Defendants raised a sole issue for determination by this Honourable court to wit-

Whether the termination of the appointment of the claimant as Executive Secretary, Plateau State Healthcare Board by the 1^st defendant is valid having regard to the provisions of the Law establishing the Board.

In arguing this sole issue, counsel submitted that the position of the claimant as Executive Secretary, Plateau State Primary Healthcare Board is established by the Plateau State Primary Healthcare Board Law which came into effect on the 26^th November, 2013.

That section 5 of the Law provides thus:

“Membership 5(i) The Board shall comprise:

Executive Secretary to be appointed by the Governor, who shall be an experience health professional on the recommendation of, subject to the confirmation of the House and shall be responsible for the General administration, management and execution of the policy of the Board.

(a)…………..

(2)…………..

(3) …………..

The Executive Secretary of the Board shall hold office for a period of five years from the day of appointment and may be eligible for appointment for another term of five years and no more.

“Tenure 6(1) The Executive Secretary of the Board shall cease to hold office if he:

dies whilst in office;
is declared to be of unsound mind or adjudged to be a lunatic or bankrupt;
resigns his appointment by a letter addressed to the Governor;
is convicted and sentenced by a court of law for an offense involving dishonesty by whatever name called or has been found guilty of contravention of the code of conduct or
is otherwise removed from office for reason not herein mentioned”.

Counsel submitted that the narrow issue is whether the 1^st Defendant can terminate the appointment of the claimant before the expiration of the period of his five year term. That the issue should he answered in the affirmation.

Counsel submitted that from the pleadings before the court the defendants stated that the appointment of the claimant did not follow the due process of confirmation by the House of Assembly as provided for under section 5(1) (a) of the Plateau State Primary Health Care Board. Counsel referred to paragraph 4 of the Statement of defense and paragraph 3, 4 and 9 of the witness statement on oath and submitted that these facts were not refuted or discredited by the claimant during cross examination therefore these pieces of evidence remains uncontroverted.

Continuing, counsel submitted that, in the claimant’s witness statement on oath, he stated in paragraph 3 that before his appointment as such “interviews were conducted between 2014 and 2015 by the Plateau State government” which facts were debunked by the defendants in paragraph 9 of their witness statement on oath.

Similarly, that the claimant repeatedly asserted that his appointment was based on the Law establishing the Board. While the Defendants on the other hand stated that due process was not followed in the appointment of the claimant in that no interview was conducted neither was his appointment confirmed by the Plateau State House of Assembly as required by the Law establishing the Board.

Counsel submitted that the defendants having raised the issue of non-confirmation of the claimants appointment by the House of Assembly, it is for the claimant to have challenged same either by way of amending his pleading to that effect or through cross-examination or further still by the production of such evidence as the verbatim report/ Order paper from the House of Assembly of the day he alleged he was screened. But nothing to that effect thereby leaving the evidence of the defendant on that unchallenged. Counsel urged the court to hold that the silence of the claimant on that issue is an admission and the court can safely rely on same to determine the case in favour of the Defendant. Counsel referred to the case of Hon. Eseme Eyibo v. Mr. Dan Abia and 2 ors (2012) 7SCNJ 109 @ 140 para 15 where the Supreme Court had thus:

“With respect to competing affidavit evidence of the appellant and the 1^st respondent it is necessary to reiterate the fundamental principle of law that a specific deposition against an opponent not denied either expressly or by necessary implication should be deemed admitted by the opponent”

That the claimant is not being specific as to when the interview was purported to have been conducted as there is nothing before the court to show that he was in fact invited for the interview and on what dates between the period 2014 and 2015. That this line of evidence is very vague and not capable of being believed and trusted. That admittedly the letter of appointment indicated that it is for a period of five years just as provided for under Section 5 (4) of the Law establishing the Board. However, Section 6 provides for circumstances when the Executive Secretary shall cease to hold office as contained in sub section (1) (a)- (d) of the section and subsection (1) (e) thereof which gives the Governor the unfettered power to remove the Executive Secretary for reason not stated in the Law.

Continuing further, counsel submitted that, the 1^st defendant has already caused the claimant to cease being the Executive Secretary of the Board under section 6 (1) (e) of the Law establishing the Board since the 30^th May 2016, therefore it is not true that the claimant is still occupying the said office since then contrary to his evidence under cross-examination that he still performed his duty even a day before he gave evidence in court on the 27^th April, 2018.

That Section 6 subsection (1) (e) of the law establishing the Board is a discretion of the Governor that cannot be questioned by the claimant who is placing reliance on the same Law, which pegged his tenure to 5years yet he is questioning the power of the Governor to terminate the appointment even before the expiration of the 5 year term for any reason not stated in the said Law. That it is not for the claimant to claim benefit of the Law and at the same time calling on this Court to restrain the Governor from exercising his power and discretion provided under the same Law.

Counsel submitted that any evidence at variance with pleading goes to no issue. This principle of law is germane to the evidence of the claimant before the court. That the claimant in evidence stated that he is still performing his duty to date but that he was not receiving salary since November, 2016. That the claimant also confirmed under cross-examination that his appointment has been taken away from him by virtue of the announcement he heard on the radio.

Counsel argued that if the claimant is still performing his duty up to the 26^th April, a day before he gave evidence in court, then can he be believed that he has not been paid salaries since November, 2016? Yet he stated that by the announcement on radio his position has been taken away from him.

Counsel submitted that this court cannot make an order to preserve a non existence appointment which has since been terminated since 2016 and the same position has since been occupied by another as this court cannot make an order preserving a concluded act. Accordingly Counsel urged the court to dismiss the claim as same is frivolous and lacking in merit.

In conclusion Counsel submitted that, from the prayers of the claimant before the court counsel urged the court to hold that:

The appointment of the claimant has been terminated from the day he heard on the radio as confirmed in his evidence in court that another person has been appointed and his name forwarded to the Plateau state House of Assembly for confirmation;
With the stoppage of his salaries since 2016 the claimant had a constructive notice that his appointment has been terminated,
The first defendant has exercised his discretion and the power vested in him under section 6 (1) (e) of the Law establishing the Board which cannot be questioned by the claimant.

Accordingly, Counsel urged the court to hold as above and dismiss the claim as same is lacking in merit.

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

Has the Claimant proved his claim for him to be entitled to the judgment of this Honourable Court in his favour.

Counsel submitted that the Claimant has discharged the burden of proving his claims against the Defendants by not just giving evidence that were not challenged or contested by the Defendants but also by the Defendants admission of the facts presented by the Claimant to the Court in proof of his claim. That the Claimant’s evidence was not in any way challenged either by way of cross-examination to test the veracity of same or by contrary evidence from the Defendants. For example;

The Claimant testified that he was appointed the Executive Secretary of the Plateau State Healthcare Board and to that effect tendered the Letter of the appointment. That this piece of evidence was not challenged in any manner at all, rather the DW1 confirmed same.

That the Claimant testified that he was still discharging his duties as the Executive Secretary of the Plateau State Healthcare Board till date and that nobody has stopped him from his duties. That this piece of evidence was not shaken at all, not even by the feeble attempt by the Defendants’ question whether the Claimant had received any query.

That the Claimant also testified that he heard from Radio announcement that the first Defendant has nominated another person for his position by sending the person’s name to the Plateau State House of Assembly for confirmation. That in fact the Claimant testified that it was this particular act of the Defendants that compelled him to come to this Court. That this piece of evidence was not challenged in any way; rather, the Defendants in their written address termed the announcement as termination. So, the evidence that the Claimant merely heard about the nomination of another person to replace him was not contested or debunked by the Defendants.

That the Claimant further testified that his appointment is based on the Law establishing the Plateau State Primary Healthcare Board which stipulates five years tenure. That this piece of evidence was not challenged or contradicted by the Defendants.

That the Claimant again testified that he has not committed any wrongful act against the Defendants to warrant the termination of his appointment and that it is in order to protect the appointment that he has approached the Court. That this piece of evidence was not contested at all, instead the Defendants subtly indicted themselves by alleging that the Claimant’s appointment did not follow due process – a defence the Defendant failed to prove by credible evidence.

Counsel submitted that the Court should find and hold that the Claimant’s evidence as argued above are unchallenged and consequently should be believed and acted upon. Counsel referred to the cases of Chukwu vs. The State (2012) 12. SCNJ. (Pt. 1) 2008 at 223 par 15., and Salau vs. Araba (2004) All FWLR (Pt 204) 88 at 116 par B., where the Court held that: –

l must say with due respect that where the evidence adduced before the court is neither challenged nor contradicted and also was not rendered inadmissible by any enactment, the court is duty bound to rely on and act on it in arriving at its conclusion. See Nzeribe vs. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124; Onwuke vs. Omogui (1992) 3 NWLR (Pt. 230) 393; Amadi vs. Nwosu (1992) 5 NWLR (Pt. 241) 273; American Gynanical Co. vs. Vitality Pharmaceuticals Ltd. (1991) 1 NWLR (Pt. 171) 15.

Counsel submitted that the second leg of this address is that the Defendants have admitted the Claimant’s claims against them as they failed to prove by evidence all that they pleaded in their Joint Amended Statement of Defence in answer to the case of the Claimant. For example, the Defendants alleged that:-

That the Defendants have terminated the appointment of the Claimant,

That the appointment of the Claimant did not follow due process as provided by the Law establishing the Board, and

That the Board did not fully take off as there was no office accommodation and no other staff was constituted for the Board to be fully operational.

That by Section 136 of the Evidence Act, the Defendants have the sole duty to establish all the above itemized pleadings as their defence to the case of the Claimant against them.

On the first item (a), the Defendants failed to provide evidence of the termination of the Claimant’s appointment. Rather, their one and only witness testified on Oath that the “Claimant was replaced by the 1^st Defendant”. Questions are:

Who replaced him and why did the person not come to testify that he is the replacement to the Claimant.

Where is the Letter of termination or replacement as put by the sole witness for the Defendants?

iii. How come the DW.l. who is not a staff of the Plateau State Ministry of Health and had never worked in the same department with the Claimant as elicited from him during cross-examination give evidence as put in paragraph (7) seven of his Statement on Oath that the Claimant “never subjected himself to Ministry of Health Supervision”.

That the next item is that the Defendants did not give evidence of how the Claimant’s appointment did not follow “due process”. Questions are:-

What are those due processes that were not followed before the Claimant was appointed by the Plateau State government.

Who has the responsibility to carry out those due processes – the Claimant or first Defendant?

iii. Why did the Defendants allow the Claimant to work for about two years before alleging that his appointment did not follow due process?

Are they not estopped from claiming that due process was not followed?

In conclusion Counsel urged the Honourable Court to find and hold that:

The Claimant has established his claims against the Defendants who did not contest the facts/evidence the Claimant presented to the Court.
That the Defendants failed to provide evidence to prove their pleadings, rather they created their own “issue” for contention in the suit alleging that the Defendants have right to terminate the Claimant when they have no counter-claim to so move the Court.
That consequent upon the above, the Honourable Court should grant all the prayers of the Claimant.

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. I am of the view that the sole issue raised by the learned counsel for the claimant summarized the issues in controversy between the parties. I hereby adopt it as mine; consequently, I shall treat the claims of the claimant seriatim as follows:

Claims 1,2,3 and 4 are for declaratory orders to the effect that the claimant’s appointment as the Executive Secretary of Plateau State Healthcare Board by the Governor of Plateau State on the 15^th of May, 2015 and the assumption of office by the Claimant is legal, valid and subsisting, that the tenure created by that appointment is for a fixed term of five years, that the Claimant cannot be removed from his duty post except on grounds stipulated in the Law establishing the office and for an order of Court restraining the first Defendant from removing the Claimant from office until the expiration of the five (5) years employment contract.

From the evidence of the claimant it is firmly established that the appointment of the claimant as the Executive Secretary of Plateau State Healthcare Board by the Governor of Plateau State on the 15^th of May, 2015 is for a fixed term of 5(five) years.

There is equally evidence before the court that before the expiration of the five year tenure created by that appointment precisely after only one year and about the 27^th May 2016, the defendants nominated another person to the Plateau State House of Assembly for screening and appointment into the office of the as the Executive Secretary of Plateau State Healthcare Board which he was occupying.

Under cross examination, the claimant admitted that the said announcement sending another person to the House of Assembly in fact took away his job. In Opuo v NNPC & Anor (2002) FWLR [Pt. 84] 11, the Court held that termination can be express or inferred from the conduct of the employer; the choice is that of the employer. Consequently, with the appointment and screening of another person into that office, there is no office left as the Executive Secretary of Plateau State Healthcare Board to be preserved for the claimant since the action has already been concluded. Therefore, claims 1,2,3 and 4 have failed and are hereby dismissed.

In College 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.

Unfortunately, the claimant did not claim for his salaries for the unexpired or unexhausted period of the term created therein. However, this is a Court of law and equity. See section 13 of the National Industrial Court Act 2006.

Section 14 of the National Industrial Court Act 2006 provides that the Court shall in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.

Also Section 19(d) of the National Industrial Court Act 2006 provides that the Court may in all cases and where necessary make any appropriate order, including- an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.

In view of the foregoing, I hold that a lump sum in damages in favour of the Claimant, will meet the justice of this case, consequently, I award the sum of N5,000,000.00 (Five Million Naira,) only being the claimant’s supposed salaries for the unexhausted period of about 4(four) years in damages for wrongful termination of his employment as the Executive Secretary of Plateau State Healthcare Board without prejudice to his employment with the Ministry of Health of Plateau State.

I cannot end this judgment without stating clearly that the first defendant has discretion and the power vested in him under section 6 (1) (e) of the Law establishing the Board to terminate the appointment of the claimant herein. Be that as it may, the reason stated here that the claimant’s appointment was terminated because his appointment did not follow due process in that he was not screened nor interviewed by the Plateau State House of Assembly before his appointment cannot justify his termination herein. More so, when there is no evidence by the defendants that he was ever invited for such screening and or clearance. To hold otherwise will amount to encouraging the defendants to benefit from their own wrong which the law abhors, see Savannah Bank Ltd. v Ajilo (1989) NWLR 305.

In all, I make the following orders: ,

The defendants shall pay the claimant the sum of N5,000,000.00 (Five Million Naira,) only being the claimant’s supposed salaries for the unexhausted period of about 4(four) years in damages for wrongful termination of his employment as the Executive Secretary of Plateau State Healthcare Board without prejudice to his employment with the Ministry of Health of Plateau State.
The defendants shall pay the claimantthe sum of N200,000 being the cost of this suit.
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)