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IDRIS GARBA IBRAHIM & 64 ORS -VS- THE CHAIRMAN KADUNA

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP: HON. S. O ADENIYI

ON WEDNESDAY 10TH JULY,2019

                                                                 SUIT NO NICN/KD/05/2014

BETWEEN:

  1. IDRIS GARBA IBRAHIM
  2. HUSEINI ZAILANI
  3. ADENLE IDOWU
  4. ABDUL SABO ABDU
  5. NAOMI CHUKS
  6. SADIYA IBRAHIM KANO
  7. BASHIR YUSUF SAMBO
  8. NNEKA OLUCHI ONYEMAUWA
  9. ZAINAB MUSA JIBRIL
  10. ISAH UBA MUKTAR
  11. AMINA IBRAHIM
  12. HADIZA IDRIS
  13. KHADIJAH SHEHU SAMBO
  14. BASHIR ISAH
  15. UMAR SHEHU SAMBO
  16. WASILAT IBRAHIM
  17. HAUWA GARBA
  18. HAMZA ABUBAKAR USMANCLAIMANTS
  19. HABIBA M. TANI
  20. SALMANU IJBRIN MUSA
  21. HAUWA SABO ABDU
  22. SAFIYA ABDULRAHMAN
  23. AWA TAYE RACHAEL
  24. SADIYA MUHAMMED
  25. NASIBAT A. MUSA
  26. MUJIDAT HUSSAINI RAJI
  27. HAFSAT HARUNA
  28. GALADIMA MOHAMMED
  29. COMFORT TIMOTHY
  30. AISHA ALHASSAN
  31. DORCAS ALHAJI MAJAKA
  32. FWANGLE NANLOP ELISHA
  33. JOHN DYANET
  34. NAFIU JAFAR
  35. KEMI ADERONKE ADEYEMI
  36. NASARAWA MARWANA
  37. USMAN GARBA
  38. AISHA AHMED BASHIR
  39. IDRIS BABAGIDA
  40. BINTA DANGAJI
  41. MERCY HARUNA YUSUF
  42. HASSAN ALIYU KAITA
  43. KAMALDEEN S. SHEHU
  44. BASHIR SHEHU
  45. FARIDA ABUBAKAR
  46. AISHAT MUHAMMED RIMI
  47. FATIMA IDRIS
  48. AISHA NUHU ABDULLAHI
  49. HAFSAT DAHIR
  50. MAIKANO ABDUL
  51. SALAMATU MUSA          CLAIMANTS
  52. BINTA MUHAMMED
  53. NURAT MUHAMMED
  54. SALIMA M. LAWAL
  55. HAUWA ABDULKADIR
  56. ROSE NKECHENYERE IBE
  57. HALIMA B. GARBA
  58. EUNICE BATURAK
  59. IBRAHIM HAMZA
  60. RAIHANA Y. MOH’D
  61. BARNIKI S. KURE
  62. HAUWA A. YAHAYA
  63. MARY MAJIDADI
  64. HAFSAT SANI BALARABA
  65. MARY OLAYIDI OSHO

AND

  1. THE CHAIRMAN KADUNA NORTH LOCAL GOVERNMENT
  2. KADUNA NORTH LOCAL GOVERNMENT OF KADUNA STATE
  3. EDUCATION SECRETARY KADUNA NORTH LOCAL GOVERNMENT
  4. CHAIRMAN, UNIVERSAL BASIC EDUCATION BOARD KADUNA
  5. COMMISSIONER MINISTRY FOR LOCAL GOVERNMENT, STATE
  6. THE ACCOUNTANT-GENERAL OF KADUNA STATE …………..………………………………………………………….…DEFENDANTS

 

J U D G E M E N T

This suit has a chequered history. On record, it is the oldest case pending before this Court as at date. It was instituted by the Claimants on 19/03/2014. As borne out by the records, the proceedings in the suit had been plagued by unending objections, attempts by parties to settle out of court and countless applications for adjournments, which the Court had to accommodate in the overstretched interest of justice that “covers all sins!”

This case was commenced by His lordship, Late Hon. Justice Lawal Mani (of blessed memory); the case was subsequently taken over on 08/05/2018 by His Lordship Hon. Justice E. D. E. Isele. Again, this Court started the case de novo on 19/10/2018.

  1. The Claimants’ case as gathered from their claim before the Court is that, they were appointed as teaching and non-teaching staff of the 3rdDefendant, within the 2ndDefendant Area Council between 2011 and 2012. Having been employed, the Claimants reported and commenced duties at their various duty posts as directed by the 3rd Defendant. The Claimants alleged that they worked for thirteen (13) months without being paid salaries. They further alleged that they demanded for the payment of their unpaid salaries; but while they were waiting for the payment, letters of withdrawal of appointment were issued by the 3rd Defendant to some of them; while the appointment  of some others were terminated orally. The Claimants contended that, having worked for thirteen (13) months; it was unlawful for the Defendants to have terminated their appointment. 2. Being aggrieved by the Defendants’ action, the Claimants commenced the present action vide a Complaint and Statement of Claim filed on 19/03/2014 whereby they claimed against the Defendants jointly and severally the reliefs set out as follows:
  2.  A Declaration that the withdrawal of the Claimants’ employment from service of Kaduna North Local Government Education Authority is contrary to the conditions of service, and is null and void.
  3.  An Order directing the Defendants to pay the Claimants all their entitlements and arrears of salaries (after termination of appointment) and re-instate them.
  4.  The sum of Twenty – Two Million, Seventy Thousand, Two Hundred and Forty – Six Naira and Twenty – Eight Kobo (N22,070,246.28k) only being outstanding salaries for thirteen (13) months while working, due to the Claimants from the Defendants as reflected in paragraph 20 of the Statement of Claim. 
  5.  The sum of Fifteen Million Naira (N15,000,000.00) only, general damages for the unlawful and improper termination of the Claimants’ employment.
  6.  Cost of this suit.
  7. The Defendants joined issues with the Claimants in theirJoint Statement of Defenceand other accompanying processes filed on the 09/05/2014 by which they contended that the Claimants’ appointment was terminated on the ground that the entire process that culminated to the employment of the Claimants was not conducted in compliance with the procedure for appointment by the 2nd and 4th Defendants.
  8. The matter proceeded to trial. In support of their case, the 2nd, 3rdand 39thClaimants testified in person. The Claimants’ witnesses are, namely:
  • Husieni Zailani (CW1)
  • Adenle Idowu (CW2)
  • Idris Babangida (CW3)

The witnesses adopted their respective Statements on Oath as their respective evidence-in-chief.  The CW3 on his part tendered ninety – six (96) sets of documents in evidence as Exhibits CA (I) – CA (XLV),  Exhibits CB (I) – CB (XLV), Exhibit CC, Exhibit CD and Exhibits CE (I) – CE (III) to further support the Claimants’ case. The Claimants’ witnesses were in turn subjected to cross-examination by the Defendants’ learned counsel.

  1. For the Defendants, oneMuhammad Abubakar, who claimed to be the Education Secretary of the 3rdDefendant, testified as the sole witness. He adopted his Statement on Oath as his evidence-in-chief. No document was tendered in evidence as exhibit by the Defendants. He was equally cross-examined by the learned counsel for the Claimants.

Upon conclusion of plenary trial, parties filed and exchanged their written final addresses as prescribed by the provisions of Order 45 of the Rules of this Court.

  1. In the final address filed on behalf of the Defendants on06/02/2019, their learned counsel,Abdullahi Isiaka, Esq., formulated four issues for determination in the suit, set forth as follows:
  2. Whether the Claimants’ offer of temporary appointment was valid and proper?
  3. Whether the Claimants have complied with Clause No. 2 of the terms of their employment and have worked for 13 months to entitle them to the salaries of these months.
  4. Whether the Defendants have the power to withdraw the Claimants’ offer of temporary appointment
  5. Whether the Claimants are entitled to any general damages.
  6. The Claimants in turn filed their written final address on02/04/2019, wherein their learned counsel,Jummai Musa, Esq., distilled three issues as having arisen for determination in this suit, set forth as follows:
  7. Whether or not the appointment of the Claimants by the 2nd and 3rd Defendants as teaching and non-teaching staff with the 2nd Defendant is proper.
  8. Whether or not the Claimants having been issued with posting letters and having resumed work and worked for 13 months are entitled to the arrears of their salaries.
  9. Whether or not the 5th Defendant has the power to order for the withdrawal of the Claimants’ appointment.
  10. Even though the issues formulated by learned counsel on both sides, when considered together have adequately captured the field of dispute in this suit; however, for better appreciation, I have elected to reframe the issues as follows:
  11.  Whether or not there was a valid and enforceable contract of employment between the parties in this suit;
  12.  Whether or not the Claimants are entitled to their claims?

I should also state that I had carefully considered and taken the benefit of the totality of the arguments canvassed by the respective learned counsel in their written and oral final submission to which I shall endeavor to make specific reference as I deem necessary in the course of this judgement.

I shall proceed to take both issues upon which this action is to be decided together.

  1. For starters, it is pertinent to remark that the case put forward by the Claimants is substantially documentary in nature. In that circumstance, the focus of the Court is directed principally at the documents tendered as the yardstick to access the oral evidence adduced by the witnesses on either side of the divide. This course is in consonance with the established legal proposition that documentary evidence, being the best evidence, is the yardstick or hanger by which to access the veracity or credibility of oral testimony and that extrinsic evidence cannot be admitted to contradict it, add or vary the provisions contained in a document. SeeSection 128(1) of the Evidence Act 2011on the issue. See also Skye Bank PLC Vs Akinpelu [2010] 9 NWLR Pt 1198 Pg 179 (SC); Ndubueze Vs Bawa 2018 [LPELR] 43874
  2. In my estimation, the depositions in the Claimants’ WitnessStatements on Oathis no more than a repetition and I have intentionally lumped up the summary of their Statements on Oath together.

The case of the Claimants as proffered by the Claimants’ witnesses is that sometime between 2011 and 2012 they were offered appointment as teaching and non – teaching staff by the 3rd Defendant. The Claimants alleged that after their appointment, they were issued letters of posting and that they resumed work at their various duty posts.

CW3 tendered the letters of offer of temporary appointment and the letters of posting, as Exhibits CA (I) – CA (XLV) and Exhibits CB (I) – CB (XLV) respectively.

  1. The Claimants’ witnesses further alleged that the 3rdDefendant obtained the approval of the 1stDefendant before the appointment of the Claimants. The witnesses also alleged that they worked for a period of thirteen (13) months from November 2011 to January 2013 before the termination of their appointment. The Claimants’ witnesses further testified that they wrote a letter to the 3rd Defendant requesting for the payment of their outstanding salaries and further alleged that while they were waiting for the reply of the 3rd Defendant, some of the Claimants were issued letters of termination of appointment; and while the appointment of some others were terminated orally through their headmasters and head of offices. The Claimants’ witnesses further testified that as a result of the termination of their appointment, they caused their solicitors, the Legal Aid Council, to write a letter to the Defendants to contest the non – payment of the arrears of their salaries and the termination of their appointment.

CW3 tendered in evidence the letter of request for payment dated 19/03/2013 written by the Legal Aid Council and the reply of the 4th Defendant dated 20/03/2013 as Exhibit CC and Exhibit CD respectively. The Claimants’ witnesses testified further that in order to reach an amicable settlement, the Legal Aid Council held separate and several meetings with the 1st, 3rd, 4th and 5th Defendants, but the parties could not reach an amicable settlement.

The Claimants testified that their solicitors served Notices of Intention to file suit against the Defendants. The said notices were admitted in evidence as Exhibits CE (i), CE (ii) and CE (iii) respectively.

  1. While testifying under cross examination byAbdullai Isiaka Esq.of counsel for the Defendants, the CW1 testified that he was employed by the 3rd Defendant in 2012 but he did not sit for any examination or interview before he gained the employment. He testified further that he received his appointment letter from the Education Secretary but he did not tender his letter of acceptance of offer in evidence. He also testified that he cannot recall the exact date he resumed duties; that his appointment was not confirmed; that all the Claimants had not been paid any salaries by the Defendants; that his monthly salary was calculated by the information he got from the Education Secretary of Basic Education and that he did not know the specific number of months that the other Claimants had been engaged.

The CW2 was also subjected to cross – examination. She testified under cross – examination that she did not tender her letter of acceptance in evidence.

  1. The testimony of the CW3 under cross – examination is that the claim for outstanding salaries of the Claimants would be determined by each Claimant’s date of appointment and the date of assumption of duties. CW3 further testified that he did not know the precise dates of appointment and the dates of assumption of duties of the other Claimants. The CW3 also testified that no interview was conducted before the Claimants’ were appointed and that the document to prove the date of assumption of duty was the letters of acceptance of offer which was not tendered in evidence.

CW3 further testified that the Claimants were informed of the amount of salaries each Claimant at a meeting held with the 3rd Defendant but the minutes of the said meeting and the computation of the salaries of each of the Claimant were not tendered in evidence.

  1. On the part of the Defendants, the defence was offered through their sole witness, oneMuhammad Abubakar, who claimed to be the Education Secretary at the material time.

The DW1 testified that by the establishing law of the 3rd Defendant, the approval of the 4th Defendant is required for the employment of its junior staff to be valid.

DW1 further testified that neither the 4th Defendant nor his (DW1) approval was sought or obtained when the Claimants’ letters of appointment and postings were issued.

DW1 also testified that when the 5th Defendant was notified of the plan of the Chairman of the 2nd Defendant to employ the Claimants, he (the 5th Defendant) wrote a letter to the Sole Administrator of the 2nd Defendant to inform him that there was an indefinite suspension or embargo on employment and replacement of staff.

DW1 further testified that he was not aware that suspension had been placed on employment when he was instructed to write the letter requesting for permission to employ the Claimants and that he was later informed that the Chairman (sole administrator) gave the approval in spite of the suspension on employment.

In his testimony, DW1 also stated the process or procedure of appointment of staff by the Defendants and that the purported employment of the Claimants was marred with irregularities; and that the Claimants are not entitled to salaries as they are not bona fide members of staff.

  1. Under cross examination byJ. Musa Esq., of counsel for the Claimants, the DW1 further testified that he was directed to write the letter of request for employment after he had informed the 1stDefendant that an embargo had been placed on employment; and that the 5th Defendant does not have power to appoint the Claimants.

DW1 also testified that the Claimants did not submit their letters of acceptance of offer to his office as a condition for their employment as stated on their letters of offer of temporary appointment. He further testified that letters of posting were issued to the Claimants.

  1. On the basis of the evidence adduced on the record as highlighted in the foregoing, parties seem to be ad idemon the fact that the 3rdDefendant employed the Claimants between the years 2011 – 2012. Parties also agree that the 3rd Defendant issued letters of posting to the Claimants and that they resumed at their various duty posts.

However, the bone of contention is in the conduct of the Defendants in the appointment and termination of the Claimants as members of staff of the 3rd Defendant. The Claimants insisted they were validly employed by the Defendants having being issued letters of offer of temporary appointment and letters of posting; and having assumed duties at their various duty posts.

Contrariwise, the Defendants asserted that the Claimants were not validly appointed because the Claimants’ appointment was shrouded with irregularities and did not follow the process or procedure as stated in the express provisions of the law regulating the 2nd Defendant hence, the withdrawal of their appointment.

The learned Defendant’s counsel had submitted that the Claimants have no valid appointment by virtue of the provisions of Sections 9 (1), 10 (1) and 10 (2) of the Kaduna State Universal Basic Education Board (Amendment) Law 2007. Learned Defendants’ counsel argued that the affairs of the Local Government Education are subject to the control of the 4th Defendant and that the letters of offer of temporary appointment issued by the 3rd Defendant without compliance with the mandatory provisions was illegal. In support of this argument learned Defendants’ counsel cited the cases of Jerry Ikuepenikan Vs The State [2015] 9 NWLR (Pt 1465) 518; Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co Ltd [2014] 7 NWLR (Pt 1405) 165; NDLEA Vs Zakari [2015] 7NWLR (Pt 1458) 361.

  1. On the part of the Claimants, it is the argument of their learned counsel that the appointment of the Claimants conducted by the 2ndand 3rdDefendants was proper and legal as their appointment was conducted by the institution saddled with the responsibility, that is, the Local Government Authority – 2nd and 3rd Defendants.

Learned Claimants’ counsel further argued that the Claimants were issued their letters of posting, Exhibits CB (I) – (XLV) upon the fulfillment and satisfaction of the condition of the offer of the temporary appointment even though the Claimants’ letters of acceptance were not tendered in evidence.

Learned counsel for the Claimants relying on the case of Adeniran Vs NEPA [2002] NWLR (Pt 786) 30, submitted that the Claimants are entitled to their salaries having worked for thirteen (13) months with the Defendants. Learned Claimants’ counsel also submitted that the 5th Defendant has no right to give instructions for the withdrawal of the Claimants’ letters of appointment and finally submitted that the withdrawal of the said letters of appointment is invalid and void. The case of Kwara Investment Co Ltd Vs Garuba [2000] 10 NWLR (Pt 674) 25 @ 28, was cited in support of her proposition.

  1. Now, based the foregoing facts and evidence the Claimants’ grouse against the Defendants is that their appointment was wrongfully terminated by the Defendants.

It has been firmly established that when an employee complains that his employment was wrongfully or unlawfully terminated, he has the onus: (a) to place before the Court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. See Okomu Oil Palm Co V Iserhienrhien [2001] 5 NSCQR 802; Alhaji Mohammed Bala Audu Vs Petroleum Equalization Fund (Management) Board & Anor [2010] LPELR 3824 See also Order 3 Rule 13 of the NationaI Industrial Court of Nigeria Rules 2017 (NICN Rules), which listed the documents to accompany the Complaint in cases where a Claimant is challenging the termination of appointment. This includes inter-alia, the letter of appointment (if any), letter of confirmation of appointment, letter(s) of promotion where applicable, notice or letter of termination of appointment.

  1. The Claimants in challenging the termination of their appointment by the Defendants, averred inparagraph 8 of the Statement of Facts, as follows:

“The Claimants avers (sic) between 2011 and 2012, they were employed as teaching and non teaching staff by the 3rd Defendant, within the 2nd Defendant Area Council.”

The Claimants’ witnesses deposed to this fact in their Witness Depositions on Oath. CW3 further stated in paragraph 3 of his Witness Deposition on Oath that he has the consent of the other sixty – four (64) Claimants in this suit to depose to the Affidavit.  But then, CW3 tendered in evidence only forty – five (45) of the letters of offer of temporary appointment and letters of posting as Exhibits CA (I) – CA (XLV)  and CB (I) – CB (XLV) respectively. The letters of acceptance of the Claimants were not tendered in evidence.

  1. Learned Defendants’ counsel had made heavy weather on the issue that the Claimants’ contract of employment was invalid. His argument is that the Claimants’ had failed to establish that they fulfilled the condition stated in paragraph 2 of their letters of offer of temporary appointment. Citing the cases ofNDLEA Vs Zakari(supra) and W.A.E.C Vs Oshonebo [2006] NWLR (PT 994) 258, learned counsel further submitted that the onus is on the Claimants to prove that they had valid contracts of employment with the Defendants.

I have taken liberty to reproduce paragraph 2 of Exhibits CA (1) – (XLV) in issue. It states as follows:

“If you wish to accept this offer, I am to request you to submit a written acceptance letter within (as soon as possible) days so as to facilitate your early posting.”

The contention of the learned Claimants’ counsel on the other hand is that the Claimants had fulfilled and satisfied the said condition with the issuance of their letters of posting by the Defendants.

Exhibits CB (I) – CB (XLV) are the Claimants’ notifications (letters) of positing. The relevant portion thereof stated that “following the acceptance of appointment letter dated….”

It is imperative to state further that letter of acceptance of appointment is not a document mandatorily required as document to be filed by the Claimant who is challenging the termination of his appointment. See Order 3 Rule 13 of NICN Rules.

I therefore agree with the learned Claimants’ counsel that by Exhibits CB (I) – (XLV), the Claimants had fulfilled the conditions stated in their letters of offer of temporary appointment hence; they were issued their notifications/letters of posting.

  1. The learned counsel for the Defendants had in his written address further submitted that the Claimants’ have different contracts of employment with the Defendants. In my view, the learned Defendant’s counsel has aptly captured the crux of the case of the Claimants by his submission.

The evidence on the records of the Court undoubtedly reveals that the Claimants have different contract of employment with the Defendants. The Claimants had pleaded in paragraphs 11 and 12 their Statement of Facts that the 3rd Defendant issued the Claimants letters of offer of provisional appointment and letters of posting.

Before going further, I should state that the letters of appointment and letters of posting of Farida Salisu, Hafsat Aliyu Yakubu and Rukayya Abdullai who are not Claimants in this case were admitted in evidence as Exhibits CA (XLIII) – CA (XLV) and Exhibits CB (XLIII) – CB (XLV) respectively.  The said exhibits are hereby expunged for being wrongly admitted.

Meanwhile, the letters of appointment and letters of posting of only forty – two (42) of the Claimants were tendered in evidence, whilst twenty – three (23) of the Claimants did not tendered the said documents. The twenty – three Claimants whose letters of appointment and letters of posting were not tendered in evidence were listed as 5th, 7th, 8th, 25th, 29th, 35th, 37th, 38th, 40th, 41st, 43rd, 45th, 47th, 48th, 49th 50th, 52nd, 54th, 58th, 59th, 63rd, 64th and 65th Claimants respectively.

  1. It is trite thatan averment in pleadings is not and does not tantamount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted. See Ajuwon Vs Akanni [1993] 12 SCNJ 32.

Furthermore, it is required by the NICN Rules that individual letters of provisional offer of appointment of all the Claimants be tendered in evidence as proof of the contract of service, being the bedrock of the case. Generally, the letter of employment must be resorted to in considering the rights and obligations of the parties. The whole essence of the need to plead, tender and prove the letter of employment, in an action of this nature is to enable the Court determine the terms and conditions of service or rights and obligations of the parties under the contract of service. See Amodu Vs Amode [1990] 5 NWLR Pt 150 Pg 356 at 370; Katto Vs Central Bank of Nigeria [1999] 6 NWLR Pt 607 390 at 405

It is also settled that where the Claimant fails to plead and prove the fact of his employment in a contract of service, he will not be entitled to the declaration that his appointment subsists. Morohunfola Vs Kwara State College of Technology [1990] 4 NWLR Pt 145 Pg 506 @ 519

Applying the above principles, it is therefore clear without doubt, that only forty – two (42) of the Claimants who tendered in evidence their letters of offer of temporary appointment have established that they had a contract of employment with the Defendants. The other twenty – three (23) Claimants had failed to establish that a contract of employment exited between them and the Defendants. This is fatal to their case. It is on this basis that I find and hold that the action of the said twenty – three (23) Claimants against the Defendants is incompetent.

  1. The situation in this case is that the forty – two (42) Claimants who severally and jointly instituted the instant action and who with various letters of appointment employed by the 3rdDefendant, as different officers of different grades or categories, are by their claims severally and jointly, challenging the termination of their respective appointments and by which they claim other reliefs and damages which they consider as flowing from the unlawful termination of their appointment.

The grouse of the Claimants is that having being duly posted by the Defendants and having worked for thirteen (13) months, they are entitled to salary and that the purported withdrawal of their appointment by the Defendants is illegal and wrongful.

On its own part, the Defendant had contended that by Section 9 (1) and Section 10 (1) of the Kaduna State Universal Basic Education Board (SUBEB) Law No 8 of 2007, the power to appoint, post, transfer, promote and discipline the members of the junior staff of the 2nd Defendant is subject to the control of the 4th Defendant.

  1. Inparagraphs 3, 4, 5, 6, 7, 8, 14, 16, 19 and 20 the Witness Deposition on Oath, DW1 testified that the Claimants’ appointment is invalid because the 3rdDefendant did not request for approval of the 4th Defendant; that since the request was not made, the 4th Defendant did not approve the Claimants’ appointment; and that the Claimants were not invited for written tests and interview by the 4th Defendant.

DW1 further testified that the 5th Defendant merely instructed the withdrawal of the Claimants’ letters of appointment and that the Claimants are not entitled to salaries because they were not bona fide employees of the 2nd Defendant.

It is settled law that where an Act or Law prescribes a particular method of exercising a statutory power, any other method of exercising such power is excluded. Okon Johnson & Ors Vs Mobil Producing Nig. Unlimited & Ors 2009 LPELR 8280; William & Ors Vs Ascon Oil Co. Ltd & Ors 2018 LPELR 44107.

  1. Section 10 (1) of the SUBEB Law (supra) expressly stated that the functions of the Local Government Education Authority shall be carried out subject to the control of the State Universal Basic Education Board. Indeed, I am not under the misapprehension like the learned Claimants’ counsel that there is no provision of the law that requires that the 2nd and 3rd Defendants must seek the 4th Defendant’s agency before appointing its staff. But as the learned Defendants’ counsel rightly submitted, the word “shall” used in Section 10(1) of the SUBEB Law (supra) is mandatory to the exercise of the 2nd Defendant’s power. There is no evidence on record that the approval of the 4th Defendant was sought and obtained before the Claimants’ were issued the letters of appointment and letters of posting. Furthermore, CW1 and CW3 testified under cross – examination that they did not write any examination or interview before they were appointed. The DW1 had testified that writing of examination and conducting interview is a necessary procedure in the appointment of junior staff in the 2nd Defendant.

It is clear that any step short of the ones prescribed by the SUBEB Law will be null and void. I so hold.

  1. The learned Claimants’ counsel had however submitted with regard to the power of the 5thDefendant to withdraw the Claimants’ letters of appointment.

DW1’s testimony under cross – examination in this regard, is that the 5th Defendant does not have power to appoint the Claimants and that what he did was to merely instruct the withdrawal of the Claimants’ letters of appointment by the agency that had power to appoint and terminate appointment.

The law is that he who alleges must prove. In other words, it is the party who asserts the existence of a particular fact that must prove that fact and if he fails, his evidence will collapse like a pack of cards. See Kalu Vs Uzor [2006] 8 NWLR (Pt 981) 66.

The law is also well settled, that the burden of proof does not ordinarily shift to a Defendant until it has been proved by the Claimant. And that a Claimant must rely on the strength of his own case, and not on the supposed weakness of the Defendant’s case.

See Ansambe Vs Bon Ltd [2005] 8 NWLR (Pt 928) 650; Arabambi Vs Advance Beverages Ind. Ltd [2005] 19 NWLR (Pt 959) 1

In the instant case, the Claimants did not tendered in evidence letters of termination of their appointment. There is no evidence on the records of the Court that the letters of appointment were withdrawn based on the instruction of the 5th Defendant as alleged by the Claimants. Indeed, the Claimants would have proved on whose instruction or the office or the officer who wrote the letters of termination of appointment but the Claimants did not tender their letters of termination of appointment in evidence.

  1. Now, to determine the question whether or not the Claimants are entitled to the reliefs sought, turns on a correct interpretation of the letters of offer of temporary appointment tendered in evidence by the CW3 as Exhibits CA (I) – CA (XLV) respectively.

As I had earlier stated, the Claimants were appointed on different dates, on different cadres, different positions and different salaries. However, the term or condition stated in paragraph C of the said exhibits is similar. Paragraph C of Exhibits CA (I) – CA (XLV) states:

“That, the appointment will be “on probation” for 2 years or such longer period as may be deemed advisable.” (Underlining for emphasis)

The 7th Edition of the Oxford Advanced Learner’s Dictionary at page 1156 defines the word ‘probation’ inter – alia as:

“A time of training and testing, when you start a new job to see if you are suitable for the work: a period of probation.”

Similarly, the 8th Edition of the Black’s Law Dictionary at page 564, defines a ‘probationary employee’ as:

“A recently hired employee, whose ability and performance are being evaluated during a trial period of employment”. 

In other words, any period of testing, evaluation or trial period of employment is grammatically a probation period in the employment. See also Dr. Ajewunmi Bili Raji Vs Obafemi Awolowo University 2014 LPELR 2088.

CW1 testified under cross – examination that the Claimants do not have letters of confirmation of their appointment. Based on the Claimants’ evidence, I find and hold that the Claimants were on probation as at the time their appointment was terminated by the Defendants.

  1. What then is the position of the law on probationary appointment?

It has been held in a plethora of cases that where the contract of employment provides that the appointment is subject to a probationary period of a certain length of time, the employer reserves the right and discretion to determine the employment before the expiration of that period. See Ihezukwu Vs University of Jos [1990] 4 NWLR (Pt 146) Pg 598; Lake Chad Research Institute Vs Mallam Kolo Mohammed [2004] LPELR 5796

In the instant case, the Defendants reserve the right to determine the Claimants’ appointment and have rightly exercised this right when the Claimants’ appointment was terminated. Or to put it differently, the Defendants have the power to withdraw the Claimants’ offer of temporary appointment. And I so hold.

  1. Now, the Defendants did not dispute that the Claimants were not paid salaries for the period they were employed. If I may ask, what happens to Claimants’ salaries from when they were appointed till the date their appointment was terminated?

The Claimants’ relief for outstanding salaries is stated in Paragraph 24 (3) of the Statement of Facts. I am afraid to state that the said paragraph of the Statement of Facts stating the reliefs being sought by the Claimants is very shallow and porous. Worse still, there is no document tendered in evidence on the computation of the entitlement of each Claimant to be awarded by the Court. Indeed the evidence of CW1 and CW3 under cross – examination is that they were informed of the salary each Claimant is entitled to at a meeting held with the Education Secretary. The minutes of the said meeting was not tendered in evidence before the Court.

At this point, I take liberty to examine few of the letters of appointment of Claimants to drive home this point.

Exhibits CA (I), CA (VI), CA (XI) and CA (XXXVII) are the letters of appointment of 1st, 9th, 16th and 55th Claimants respectively. They were dated 27/10/2010, 12/12/2011, 08/02/2012 and 15/09/2011. Their respective salaries are N75,876.00, N54,168.00, N205,200.00 and N51,588.00.

  1. It has been established in a plethora of cases of the need for special damages to be strictly pleaded, particularized and established by credible evidence. It is trite that salaries, allowances, entitlements and benefits of Claimants being items of special damages must be adequately particularized in the pleading and also be proved by cogent and credible evidence at the trial.

Strict proof simply implies that a Claimant who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to the facts which make such calculation possible.

The Claimants have woefully failed to discharge the burden to entitle them to their claim for salaries and other entitlements. Therefore, I find and hold that Claimants are not entitled to legs (1), (2) and (3) of their Claim.

  1. The Claimants are also claiming the sum of N15,000,000.00 (Fifteen Million Naira) as general damages for unlawful and improper termination of their employment.

The Claimants’ claim for award of general damages for termination of appointment of their probationary appointment is strange. This is because what must be computed for a successful party in such circumstance cannot be general damages, but proven special damages, which actually are the salaries and other entitlements of the Claimants during the period of the purported termination. See New Nigeria Newspaper Vs Felix Atoyebi (2013) LPELR 21489; Adeniran Vs NEPA (2002) 14 NWLR (Pt 786) 30 at 48; SPDC Ltd Vs Olarenwaju (2008) 12 SC (Pt 111) 27

Since I had held that the Claimants’ are not entitled to their claim for salaries and other entitlements, I hereby find and hold that the Claimants are also not entitled to leg (4) of the claim for general damages.

  1. Perhaps, it may necessary to throw this poser at this point. Can the Claimants jointly bring the instant action to challenge the termination of their respective appointments at which they were engaged on different dates, as different officers, of different cadres on different salaries? The answer to this poser is in the negative.

I am of the view that the Claimants ought to have instituted separate actions based on each Claimant’s contract of employment/appointment. And that it is only upon the consolidation of the said separate actions/claims that the Claimants actions can properly be tried together.

This principle of law was considered in the case of Bossa & Ors Vs Julius Berger Plc [2005] All FWLR (Pt. 290) 1503 at 1518, where it was graphically stated the reason persons should sue on the basis of their respective contracts of employment. In the case under reference, Abba Aji, JCA; at page 1518 said:

“In the realm of master and servant relationship, although ten or more persons are given employment the same day under the same conditions of service, the contract of employment is personal or domestic to each of the persons. In the event of breach, the persons do not have a collective right to sue or be represented in the suit.”

See also Bemil Nig Ltd Vs Marcus Emeribe & Ors (2009) LPELR 8732.

  1. This case brings to focus the need for legal practitioners to be very careful in handling clients’ cases right from the drafting of the claims to the actual conduct of the proceedings in the courts.

In the instant case, though learned counsel for the Claimants pleaded some facts that could ground a cause of action arising from termination of employment sufficient facts were not made in the Statement of Facts for all the Claimants as the claims were wrongly lumped together.

This is a case of not allowing counsel to hide under the principle of not visiting the sins of counsel on the party, to shy away from his professional responsibilities to his client in the conduct of his case. The standard of legal practice in this country is very high and it is advised that counsel either retain it at that high level or raise it higher, they are definitely not to lower it under any guise.

  1. On the basis of the foregoing analysis therefore, I resolve the issues against the Claimants. I further hold that this case is lacking in merit. The Claimants’ case fails in its entirety and is hereby accordingly dismissed.

I make no order as to cost.

SINMISOLA O. ADENIYI

(Presiding Judge)

10/07/2019

Legal representation:

Jummai Musa Esq. for Claimant

Abdullai Isiaka Esq. for Defendants

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