IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE BAUCHI JUDICIAL DIVISION
HOLDEN AT BAUCHI
BEFORE HIS LORDSHIP HON. JUSTICE R.H. GWANDU
DATE: SEPTEMBER 20th, 2016
SUIT NO: NICN/BAU/02/2016
1. DAUDA M. ALIYU
2. EZEKIEL JOHN
3. DANIEL A. WORMI
4. IRMIYA CHIMA CLAIMANTS
5. HANNATU G. DADI
6. NAOMI KUSHI
7. SAMUEL D. BATURE
8. SARATU DUNNA
1. STATE UNIVERSAL BASIC EDUCATION BOARD (SUBEB) BAUCHI
2. BAUCHI STATE CIVIL SERVICE COMMISSION
3. BAUCHI STATE GOVERNMENT
Samaila Idris Esq for the Claimant
Respondents not represented
By an Originating Summons dated and filed on 15th February 2016, the Claimants raised Four (4) questions thus:
(1) Whether in the light of Exhibit K, L, N, R & (A1, B1, C1, E1, F1, H1) the Applicants would said (sic) to have voluntarily retired from the service of the Respondent.
(2) Whether if the answer to one above is in the negative and having regard to all the Exhibits, the Applicants services were not unlawfully terminated?
(3) Whether having regards to all the Exhibits placed before this Honourable Court, the services of all the Applicants is still subsisting.
(4) Whether the stoppage of the salaries of all the Applicants without any just course from April, 2015 till date is not a breach of their respective fundamental right under Section 42 of the 1999 Constitution of the Federal Republic of Nigeria.
Wherefore, the Applicants sought the following reliefs:
1. A declaration that all the Applicants had not voluntarily retired.
2. A declaration that the termination of the Applicants’ employment by the Respondents is unlawful, void and of no effect.
3. A declaration that the services of all the Applicants with the Respondents still subsist and or reinstating each of the Applicants to his service.
4. An order directing the Respondents to pay to the Applicants all their arrears of salaries from April 2015, to when they are finally reinstated and all other benefits accrued to the Applicants.
5. General damages of N8, 000,000.00 for all the Applicants covering the trauma and sufferings they have been subjected to as a result of the wrongful termination of their employment.
6. 10% post judgment interest in respect of the judgment sum from the date of delivery of judgment and final satisfaction of same.
7. An order directing the Respondent to make all the Applicants through their Solicitors Chambers (Samalia Idris & Co. Al-Farma Chambers) (sic).
The Originating Summons was supported by an affidavit of 41 paragraphs deposed to by the 1st Applicant, Dauda M. Aliyu. Attached to the affidavit were several documents tagged “Exhibit A – R”.
In line with the Rules of Court, the Applicants filed a written address. The written address as settled by Samaila Idris Esq distilled two (2) issues for the determination of the Honourable Court thus:
1. Whether having regard to the Exhibits placed before this Honourable Court, the services of the Applicants were not wrongly terminated by the Respondents.
2. Whether having regard to all the Exhibits placed before this Honourable Court, the Applicants are entitle to the reliefs sought? (sic)
Counsel argued the two (2) issues together and stated the essence of an Originating Summons by relying on the case of FAMFA OIL LTD. Vs. A.G. FEDERATION (2003) 51 WRN p.1 @ 5 Ratio 3 thus:
“The very nature of originating summons is to make things simpler for hearing. It is viable to any person claiming interest under a deed, will, or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for the declaration of his interest, it is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in dealings of parties to the suit. In such situations there is no serious dispute as to the facts, but what the Plaintiff is claiming is a declaration of his rights…”.
Counsel maintained that by the Exhibits attached to the Originating Summons, the Applicants are seeking the Honourable Court to pronounce on the propriety or otherwise of the termination of their services and consequently whether or not their respective rights have been infringed upon by the action or inaction of the Respondents.
He noted that for the Applicants to succeed, they must justify that they were/are employees of the Respondents and equally show the terms and conditions of their contract of employment and any violation thereof. He relied on the decided cases of KATTO Vs. CBN (1999)6 NWLR (PT.607) 390 @ 405 paras D – F and IFETA Vs. SHELL PET.DEV. CO. LTD (2006) 7 MJSC 121@ 133 para G.
Counsel maintained that the Applicants’ letters of employment automatically distinguished them from ordinary master and servant relationship and placed them as employees whose employments were with statutory flavour. He observed that paragraphs 3 & 4 of the 1st Applicant’s letter of employment as well as paragraph 2(c) or (d) of the 2nd to 8th Applicants’ letters of employment respectively referred their employment to be subject to terms and condition of the Local Government Authority Regulation.
He reproduced the afore-stated Paragraphs 3 & 4 of the 1st Applicant’s letter thus:
3. The Education Authority may terminate your appointment without giving you reasons, by giving you thirty days notice (section 1, sub-section 8 of Local Government Authority regulation).
4. You may resign from the services of the Local Government Education Department by giving at least thirty days’ notice or one month salary in lieu of notice (section 1, sub-section 27 of Local Government Authority Regulation).
2(c) or (d) of the 2nd to 8th Applicants’ letters read thus:
“That your appointment may be terminated giving you one month’s notice or one month’s salary in lieu of notice”.
Counsel emphasized that the employment of the Applicants had statutory backing and that non-compliance to the letters of their employment and the Bauchi State Local Government Rules and Regulations were injurious to the position of the Respondents.
He noted that the Applicants did not breach any regulations upon which disciplinary proceedings as enunciated in Sections 62 and 63 of the Bauchi State Local Government (Staff Regulations) Regulations 1977 would have applied. Thus, in reliance to the authorities of IMOLOAME Vs. WAC (1992) 9 NWLR (PT.265) 303 and LAWRENCE JIRGBAGH Vs. UNION BANK OF NIGERIA PLC (2000) FWLR, P.1790 @ 1794 ratios 7 and 8, Counsel submitted that “where the contract of service is governed by the provision of statute or where the conditions of service are contained in regulations derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavor and the court could invariably reinstate a dismissed employee”.
Further, Counsel submitted that because the Applicants were/are civil servants who perform public functions, their employment ought not to be terminated without complying with the statute and the rules of natural justice. He therefore challenged the authority of the Respondents in effecting the voluntary retirement of the Applicants noting that the Applicants never volunteered to be retired. He faulted “Exhibit K” maintaining that the Respondents acted without the consent of the Applicants. Thus, Exhibit I, tagged APPROVAL FOR THE VOLUNTARY RETIREMENT FROM SERVICE when compared with Exhibits R & Q (sic), it would be construed that the purported termination of the Applicants appointment was wrongly made. This, Counsel urged the Honourable Court to hold.
Further, Counsel believed that the stoppage of the Applicants’ salaries without any just cause from April, 2015 till date amounted to the breach of the Applicants’ fundamental rights under Section 42 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
He reproduced the 1st Applicants’ paragraphs 32, 33, 34 and 35 of the Affidavit in support of the Originating Summons and concluded that the above deposition showed clearly that the Applicants are being subjected to disabilities to the extent that they could not pay their children school fees and the upkeep of their families, a situation the Applicants faced alone as against other civil servants in the Local Government Area and region.
Counsel maintained that the law is trite that an employment protected by statute (Like in the instant case) when terminated unlawfully, the remedy is to declare the termination null and void and to reinstate the employee to his former position (IDERIMA V. R.S.C.S.C.(2005) 16 NWLR (PT.951) 478 Sc.
Also, he stressed the fact that the law today is settled that if a person has suffered a legal injury, he is provided a remedy irrespective of the fact that no remedy is provided either at common law or by statute. Thus, agreeing with the principle of Law “UBI JUS IBI REMEDIUM” (where there is wrong, there is remedy as seen in the case of AMAECHI V INEC (2007) 18 NWLR (PT.1065). He submitted on the above authority that the Applicants are entitled to general damages as shown in their reliefs 4 & 5 respectively.
In conclusion, Counsel submitted that in line with the Applicants depositions in the Affidavit, and the argument proffered in the written address the Applicants are entitled to all the reliefs sought and therefore urged the Honourable Court to so hold.
I have carefully gone through the Originating Summons, the affidavit and the Exhibits therein attached. Equally, I have considered the written submission of Counsel which embedded the reasons for the grant of the prayers sought by the Applicants. On the other hand, it is pathetic that the Respondents did not react at all to the processes filed by the Claimants. Put simply, there was nothing from the camp of the Respondents challenging the application despite being served with the Originating Summons and subsequent hearing notices.
As a prelude and ordinarily the silence on the part of the Respondents means admission. However, one can not rely on this opinion (silence) alone but to candidly look carefully at the processes before the Court. It is glaring from the questions raised by the Applicants that the sole disturbing issues is the untimely termination/retirement of the Eight (8) Applicants from the services of the 1st Respondent vide Exhibit I dated 26th February 2015. Notably, the 1st Respondent did not act on its own but on the request of the Acting Education Secretary of Bogoro Local Government Education Authority, Bogoro, Bauchi State, vide Exhibit “K” seeking the retirement of Fifteen (15) staff on ill health ground including the Eight (8) Applicants.
However, angered by the purported voluntary retirement of the Claimants (by their Solicitor) wrote Exhibit Q” (dated 20/11/2015) complaining about their none involvement and consent to the purported voluntary retirement and that they were not permanently incapacitated to carry on their duties and thus sought for their reinstatement to their various duties (as already granted their colleagues (the 9 others) by the 1st Respondent. The 1st Respondent vide Exhibit R (made on 30/12/2015) acknowledged receipt of Exhibit Q and urged the Claimants to co-operate with it while awaiting a confirmation of the Claimants health and psychological status from a certified medical officer. The Claimants had been waiting till this suit was filed before this Honourable Court on 15th February 2016 and further, till date without recourse to them. Having thus chronicled the events thus far, the question is what is the fate of the Claimants?
From the available Exhibits (before me), it is not in doubt that the Claimants were workers in the 1st Respondent, until their purported voluntary retirement effective 31/03/2015 having been thus converted vide Exhibits A3, B2, B3, C2, C3, D2, D3, E2, F2, F3, G2, G3 and H2 & H3 respectively.
Also, it is a truism that out of the Fifteen staff that were purportedly voluntarily retired, Nine (9) had been reinstated leaving out the Claimants still struggling to be reinstated or paid their disengagement benefits. Unassailably, Sections 28 & 29 of the Bauchi State Local Government Staff Regulations 1977, stated.
S.28: Normal Retiring Age:
“The compulsory age of retirement for all servants other than district and village Heads is 60 years.”
S.29 Retiring Prior to the Age of Sixty:
“An officer may retire or the Board at its discretion may require him to retire on reaching the age of forty five subject to three months notice on either side”.
Further Sections 31 and 32 stated:
Section 31: Retirement of Employee other than daily rated staff:
“Employees other than daily rated staff may retire or be retired at the discretion of the Local Government Subject to three calendar months’ notice on either side”
Section 32: Entitlements of those Retired under Regulation 30 and 31.
“In cases of retirement under regulations 30 and 31 the employee shall, where appropriate be entitled to the payment of gratuity in accordance with the pension regulations”.
The fore-going Sections of Regulations 1977 (supra) are in Law “res ipsa loquitur” meaning they speak for themselves.
The simple intendment of Regulation 1977 is that a staff (as in this instance) of the Local Government (precisely Bogoro LGA) is meant to retire at the age of 60 years certain and peradventure it was not possible as above, retire or the Board at its discretion may require him to retire at the age of forty-five (years) subject to three months notice on either side.
Indeed, staff under Regulation 31 above on retirement shall be entitled to the payment of gratuity in accordance with the pension regulations.
Corollary to the above, and in juxtaposition of the Regulation 1977 with Exhibit I (SUBEB letter of approval or voluntary retirement from service dated 26/02/2015), it becomes common knowledge that Exhibit I did not say anything concrete to accommodating the true spirit of the Bauchi State Local Government Staff Regulation (1977) as discovered and reproduced above. This notwithstanding, it is equally correct to say that Exhibit I did not also synchronize with the spirit of the letters of the Claimants’ appointments earlier referred to, particularly, as regards to the Claimants disengagement.
Exhibit I in paragraphs 2 and 3 has this to say:
Paragraph 2: “Returned herewith are the officers” personal files for retention and further necessary action” and;
Paragraph 3: “This letter is copied the Chairman Local Government Pensions Board, the Auditor General for Local Government Audit, the Chief Internal Auditor and the Chief Statisticians SUBEB, Bauchi for their information and record purpose”
The conclusion of Exhibit I obviously did not say that the Claimants were honourably discharged or paid their entitlements as envisaged from the Regulation 1977 and/or the appointments letters.
However, more impetus is derived from Exhibit R (letter dated 30/12/2015) emanating from Bauchi State SUBEB addressed to Samaila Idris & Co intimating him of the fact that the Board is awaiting the response of the certified medical officer for the confirmation of the Claimants’ health and psychological status for the next line of action.
Further and more glaring are Exhibits Q1 – Q8 dated 24/10/2015 confirming the physical and mental fitness of the Claimants to resume their respective duties as forced on them to so justify with medical certificate.
From Exhibits Q, Q1 – Q8, it is clear that an answer has been offered to Exhibit R. As Exhibits Q1-Q8 speak individually for every one of Claimants, it now becomes incumbent on SUBEB to reconcile and up date itself with the available medical certificates of the Claimants and do the needful. Simply put, the Claimants have voluntarily fulfilled their own part of the bargain by subjecting themselves to the rigors of sourcing and obtaining the requisite medical certificates to authenticate their fitness to work, thereby leaving the next line of action to SUBEB (as originally pre-empted by it) to recall and reinstate the Claimants back to their respective duty posts. It is worthy of note that no other requirement is further expected from the Claimants to be thus re-absorbed having not committed any offence warranting disciplinary action against any one of them as already seen in Sections 62 -63 of Regulation, 1977.
From my findings, it is absolutely necessary that the Claimants be returned and reinstated to their respective duty posts as enunciated in the case of ODIASE V AUCHI POLYTECHNIC (1998) 4 NWLR (PT546) P 477 @ P 491 Paras C-D per Nsofor JCA.
Having thus stated, I shall now return to the prayers of the Claimants and therefore declare thus:
1. That all the Applicants had not voluntarily retired.
2. That the termination of the Applicants employment by the Respondents is unlawful, void and of no effect.
3. That the services of all the Applicants with the Respondents still subsist and the Applicants are hereby reinstated each to his service.
4. Further, I hereby order that the Applicants be paid all their arrears of salaries and benefits owed them from April 2015 to date.
5. Every (each) Applicant shall be entitled to
N50, 000:00 only as general damages for wrongful termination of his/her employment.
6. 10% post judgment interest shall accrue on judgment sum after 30 days of delivery of this judgment.
7. I further Order that the Applicants’ entitlements be made payable to them via their respective agreed payment plans/schedules.
I make no Order as to Cost.
Judgment is entered accordingly.
HON. JUSTICE R.H GWANDU