IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
DATE: 4TH DAY OF MARCH, 2020
SUIT NO: NICN/MKD/46/2017
STEPHEN YINA MSON ……………………………………………………CLAIMANT
1. BENUE STATE BOARD OF INTERNAL
REVENUE …………………. DEFENDANTS
2. THE ATTORNEY- GENERA, BENUE STATE
3. BENUE STATE GOVERNMENT
A.A. Agboh with V.K. Ayangbee for Claimant
P.O. Agbase (DCR) Benue State Ministry of Justice for the Defendants.
This suit was filed by way of a complaint dated and filed on 22nd June 2017 and the reliefs of the Claimant against the Defendants are endorsed as follows:
"1. An order declaring the purported termination of the Claimant’s appointment through letter of termination of appointment by the 1st Defendant dated 24th March 2017 was unlawful and not in accordance with laid down rules.
2. An order re- instating the Claimant in the services of the 3rd Defendant.
3. An order of this court directing the Defendants to pay the Claimant his salary arrears from December 2016 calculated at the sum of
N53,335.33(Fifty- Three Thousand Three Hundred & Thirty- Five Naira Thirty- Three Kobo) only per month till date.
4. General damages of N20,000,000.00 (Twenty Million Naira) only for the hardship, trauma and negative public image the unlawful termination of Claimant’s appointment has caused him and his family."
Upon being served with the Claimant’s originating processes, the defendants entered a conditional appearance on 6/7/2017 and proceeded to file joint statement of defence and accompanying processes dated 26/7/2017 with the leave of the court granted on 1st November 2017.
CASE OF THE CLAIMANT
The relevant facts of the Claimant’s case as shown by his pleading are that, he was employed by the 3rd Defendant on 12th June 2014 as a Programme Analyst and deployed to the 1st Defendant. The Claimant stated that he worked dutifully until 24th March, 2017 when he received a letter of termination of his appointment from the 1st Defendant hence this suit. (Challenging the purported termination, for re- instatement and accrued benefits.)
CASE OF THE DEFENDANTS
The Defendants on the other hand have denied that the Claimant is entitled to any of the reliefs sought for, because due procedure was followed according to the Civil Service Regulations in terminating the appointment of the Claimant for acts of misconduct.
Trial commenced on 13th March2019 with the Claimant testifying as CW1 by adopting his two depositions dated 22/6/2017 and 12/9/2017 and also tendering the following documents as exhibits;
1. SYM1-Letter of Appointment dated 12/6/2014
2. SYM2- Letter of Termination dated 24/3/2017
3. SYM3- Solicitor’s letter dated 17/5/2017
4. SYM4- Payment Voucher of November 2016
CW1 was cross examined by Counsel to the Defendants and the Claimant closed his case as there was no re- examination.
The Defendants opened their defence on 24th October 2019 with one Maureen Agbaka who testified as DW1 by adopting her deposition dated 29/10/2019 and tendering the following documents as exhibits;
1. BIR1- Letter of Complaint of absenteeism dated 20/1/2017
2. BIR2- Query Letter of Termination dated 24/1/2017
3. BIR3- 2nd Query letter dated 6/3/2017
4. BIR4- Termination of Appointment letter dated 24/3/2017
5. BIR5- Letter dated 19/6/2017 addressed to the Claimant’s Solicitor.
The DW1 was cross examined and the case of the Defendants was closed as there was no re-examination and the matter was adjourned for adoption of final written addresses.
Counsel to the Defendants filed their final written address on19th November 2019 and that of the Claimant was deemed as properly filed and served by the Court on 28/11/2019.
SUBMISSIONS OF THE DEFENDANTS
Counsel on behalf of the Defendants raised a lone issue in their final written address for determination to wit:
"Whether from the available evidence before the court the Claimant has proved his case to warrant the court to award the reliefs and orders sought in the Claimant’s statement of claim."
It is the submission of Counsel that the power to recruit staff by the 1st Defendant who is a statutory body lies in section 12 (2) & (3) of the Benue State Board of Internal Revenue Administration Law, 2015. And that section 6 (02601) of the Benue State Civil Service Rules 2013 recognizes the transfer of an officer from one schedule of service to another or from one class to another within the same service.
Counsel argued that the termination of the appointment of the Claimant by the 1st Defendant was not unlawful but in accordance with the laid down procedure regulated by the Civil Service Rules applicable to the 1st Defendant. Therefore the power to dismiss and exercise disciplinary control over officers in the Benue State Civil Service is vested in the Civil Service Commission and such powers may be delegated to any member of the commission or any officer in the Benue State Civil Service. Thus the 1st Defendant is empowered by the Labour Act Cap 198 and by the letter of appointment to terminate the employment of temporary staff as long as he is informed of the grounds on which it is proposed to terminate him and accord him the opportunity to represent himself.
According to counsel, though the Claimant’s appointment is not one with statutory flavor, he was given the opportunity to exonerate himself from the misconduct but failed. It is the contention of the Defendants that the Claimant was found to be engaging in other business without authority as stated in section 3 (14301) (ii) of the Benue State Civil Service Rules 2013.
Counsel submitted that where there is a recommendation of discipline and an officer is called upon to respond and he refuses or neglects to answer within a reasonable time, the concerned authority may proceed to enforce any recommendation against the officer. Counsel referred the court to section 3 (04303) of the State Civil Service Rules 2013. That the Defendants acted in good faith and did not breach the rules of natural justice in any manner. Counsel cited the case of Oju & Ors. V. Prof. Abdul Rabeern & Ors. (2009) 39 NSCQR 105.
It is the submission of Counsel that evidence which is not debunked or controverted is deemed to be good and reliable evidence. Counsel cited the case of Adesumo V. Ayantebe (1989) 3 NWLR (pt. 110) 417 and also NBC V. Ubani (2013) 56 NSCQR 283.
It is the further submission of Counsel that once a witness statement on oath is adopted as evidence in chief, the documents tendered without objection can be assessed and evaluated by the court to draw necessary inferences from them. Counsel supported this assertion with the cases of Maku V. Al- Makura (2017) All FWLR (pt. 909) 76, Uzu V. Ogbu (2012) LPELR- 9775 andAgagu V. Mimiko (2019) All FWLR (pt. 462) 1122.
Counsel submitted further that the appointment of the Claimant having not been confirmed is not one with statutory flavor and can be terminated at will. That even if the appointment of the Claimant was laced with statutory flavor, the Claimant would still be in violation of section 3 (04301) (ii) of the Civil Service Rules.
Counsel submitted on the issue of declaratory orders/reliefs that the termination of the Claimant’s temporary appointment was proper and the Claimant cannot be reinstated or awarded any entitlements or emoluments or allowances as the court is not a magician or father Christmas to allocate monies arbitrarily. According to Counsel, the Claimant has failed to show how the termination of his appointment was wrongful and the actual benefits accruable to him. Counsel cited the cases of Sylva V. INEC (2017)65 EJSC 115 and G.K.F. Investment Nig. Ltd V. Nig. Telecom Plc (2009) 6-7 SC (pt. 11) 163.
Counsel submitted that in declaratory reliefs, the burden is on him who alleges to establish his case and not to rely on the weakness of the defence. In support of this assertion, Counsel relied on the cases of Nyemson V. Peterside (2016)47 EJSC 100 and CPC V. INEC(2011) 18 NWLR (pt. 1279) 452.
Counsel equally submitted that an unwilling employer cannot be compelled to keep an employee he no longer wants. Counsel referred the Court to the case of Savannah Bank Plc V. Fakokum (2002) 1 NWLR (pt. 749) 544.
Counsel finally urged the court to refuse all the reliefs of the claimant and dismiss the entire claim.
SUBMISSIONS OF THE CLAIMANT
The final written addresses of the Claimant contained three issues for determination to wit;
“1. Whether or not 1st Defendant has the capacity to terminate Claimant’s appointment.(sic)
2. Whether or not 1st Defendant followed the right procedure in terminating Claimant’s appointment.(sic)
3. Whether or not Claimant is entitled to the reliefs sought.”(sic)
On issue one, It is the submission of Counsel that by exhibit SYM1 (letter of appointment), the Claimant was appointed by the Civil Service Commission and only posted to the 1st Defendant.
According to Counsel, the 1st Defendant is an agency of the 3rd Defendant and answerable to the 3rd Defendant thus cannot cloth itself with an autonomy it does not have.
Counsel submitted that the power to hire is accompanied by the power to fire. Counsel referred to section 11 (1) (b) of the Interpretation Act Cap 123, Laws of the Federation of Nigeria 2004 and the case of Okomu Oil Palm Company Limited V. Iserheirhen (2001) FWLR 670.
It is the contention of Counsel that by exhibit SYM1, the Claimant was employed by the body vested with the power to employ in Benue State and the 1st Defendant could not have usurped for itself the power to fire when it did not in fact employ. Counsel contends further that by exhibit SYM2 (letter of termination), the Claimant’s appointment was terminated in accordance with the Public Service Rules of Benue State and not Board of Internal Revenue Service Rules. Counsel relied on Rules 02102 (i), 02102 (ii) and 02801 of the Civil Services Rules to show that it is the person with the power to hire that can fire even during the probationary period and not the 1st Defendant.
On Issue 2, it is the submission of Counsel that the right procedure was not followed in the termination of the appointment of the Claimant as a contract of service is either governed by statute, the contract of employment or letter of appointment and such employments have statutory flavor. Counsel cited the case of Akinode V. Edo State Government (2012) 7 WRN 64.
According to Counsel, the rules governing the employment of the Claimant is the Benue State Civil Service Rules. Under rule 04302, a superior officer who is dissatisfied with the behavior of his subordinate shall inform the officer in writing. However in the instant case no such warning was issued by the Defendants.
Counsel contends that though the Defendants alleged that the Claimant refused to collect the letter of query, reference was made in exhibit SYM2 as to the Claimant’s reply to a second query. However, the said reply was not pleaded.
Counsel further argued that all the letters of queries purportedly issued to the Claimant talked about abscondment from duty and no more. Also the Defendants failed to tender the attendance register which the Claimant gave evidence that he signs it daily.
Counsel argued that exhibit SYM 2 showed that the reason for termination of Claimant’s appointment was his engagement with another organization but the details were not captured in any of the purported letters of query. This shows that the reasons for the query letters were not the reasons advanced for the termination of appointment and it also means that the Claimant was not afforded the opportunity to defend himself of the allegations against him. Thus the Public Service Rules were not complied with in the termination of the Claimant’s employment.
It is also the submission of Counsel that a contract of employment is governed by the appointment letter thus by the contents of exhibit SYM1, the appointment of the Claimant can be terminated upon the giving of one month’s notice. This notice was not given to the Claimant before the termination of his appointment. Counsel relied on the case of Kwara State Polytechnic V. Saliu (2012) 41 WRN 26.
On issue 3, Counsel submits that the Claimant has successfully asserted that the termination of his appointment was wrongful, malicious and done by the authority who had no power to do so. That the 1st Defendant who terminated the appointment of the Claimant claimed to be autonomous but has not shown any proof thus the court can order re- instatement in favour of the Claimant.
Counsel contends that the court can order for the payment of the Claimant’s salaries till date as the Claimant was last paid in December 2016and owed four months salaries before his purported termination.
Counsel contends further that since the appointment of the Claimant was unjustly terminated, the Claimant is entitled to general damages.
Counsel urged the court to grant all the claims of the Claimant as they are meritorious and justified.
DECISION OF THE COURT
I have perused the submissions of Counsel along with the pleadings filed, the evidence adduced and exhibits tendered. The issue to be resolved by this court is, whether the Claimant on the balance of probability has shown proof to be entitled to the reliefs sought.
The Claimant is seeking for a declaration that the termination of his appointment by the Defendants was unlawful, an order of re-instatement and payment of outstanding salaries and allowances and general damages.
By Sections 131, 132 and 133 of the evidence Act, the person who asserts has the onus of proof. See the cases of Ezeanuna V. Onyema (2011) 13 NWLR (pt.1263) 36 at 41 and Nwavu V. Okoye (2008) LPELR-2116(SC).
In proof of wrongful termination, the Claimant has the heavy burden to plead the terms and conditions of employment and how they have been breached as held in the cases of Oforishe V. N.G.C. Ltd (2018) 275 LRCN 106 at 115, JohnHolt V. Nzeribe (2018) LPELR-4494 (CA)and UBA V. Oranuba (2013) LPELR-20692 (CA).
Similarly, in the case of Aji V. Chad Basin Dev. Authority & Anor (2015) 246 LRCN 194 at 201, the Supreme Court has held that the burden is heavy on the Plaintiff to establish declaratory reliefs as declaratory reliefs are never granted even upon admission by the Defendant. The Plaintiff must place before the court the terms of his contract of employment and also prove the manner the terms were breached by the employer. See also CBN V. Amao (2011) 201 LRCN 48 at 57.
Looking at relief 1 which is the main relief of the Claimant, the Claimant seeks an order declaring the purported termination of his appointment through letter of termination of appointment by the 1st Defendant dated 24th March 2017 as unlawful and not in accordance with laid down rules. The Claimant has neither pleaded the conditions of service breached nor the rules regulating his employment for the court to see how the terms of his employment have been breached. The Claimant has equally not pleaded in his statement of facts what these provisions or procedures are.
The Claimant tendered exhibit SYM1 (Offer of Temporary Appointment) which embodies the terms regulating the employment relationship between the parties. This to my mind is to show the existence of an employment relationship and no more. The pleading of the Claimant is silent on which of the terms of exhibit SYM1 was breached. The Claimant stated that the termination of his appointment is unlawful and not in accordance with the laid down procedures. What are these procedures and where can they be found to determine if they were actually not followed? These questions remain unanswered.
It is trite law that a person who alleges wrongful or unlawful termination of employment must establish his case as the burden lies on such an employee to found his claim on the contract of service and also show the wrong and the manner it was done. It is not the duty of the employer who is sued as the Defendant to prove that the termination was not wrongful. See the cases of Okumo Oil PalmCo.Ltd.V. Iserbienrhien (2001) 6 NWLR (pt.710)660, (2001)5 NSCQR 802 and Idoniboye-Obu V. NNPC (2003) 2NWLR (pt.805) 589.
It is also settled law that an employee who complains of wrongful termination must not only plead the terms and conditions of employment but also show how the terms and conditions were breached by the employer. See the cases of Okoebor V. Police Council (2003) 5 SCNJ 52 and Nigerian Insurance Corp. V. Obende (2002) All FWLR (pt.116)951.
In the case of NRW Ind. Ltd. V. Akingbulugbe (2011) 11 NWLR (pt.1257), the Court has held that an employee who seeks declaration that his employment was wrongfully terminated must prove;
* That he is an employee of the Defendant.
* The terms and conditions of his employment.
* The way, manner and by whom he can be removed.
*The way and manner the terms and conditions of his employment were breached by his employer.
In the instant case, the Claimant has only satisfied the first condition as stated above by pleading and tendering exhibit SYM1 to show that he was an employee of the Defendants. The Claimant has however failed to establish or show the terms and conditions of his employment and how his employer has breached same.
The Claimant has not deemed it fit to plead or tender the regulations or Civil Service Rules governing his employment for the court to ascertain that the provisions were breached in the course of terminating his employment. It is not the duty of the Court to fish for evidence or documents in support of the case of a Claimant before the Court. In the Court of Appeal case of Dame Pauline K. Tallen & Ors. David Jonah Jang & Ors. (2011) LPELR-9231 (CA), it was held that “It is not permitted by our adjudication that the Court should on its own and in the comfort of its recess engage in sorting out a party’s case for purpose of sound footing”.
Similarly, where a party fails to adduce evidence in support of an assertion in his pleadings, he is deemed to have abandoned his pleading on that fact. See the cases of Salgitter Stah (GMBH) V. Tunji Dosunmu industrial ltd. (2010) 42N SCQR (pt.2)1085 at 1109 and Omodele Ashabieya & 2 Ors. V. Alh. Risikatu Lopade & Anor (2011) NWLR (pt.1259) 505 at 534.
The Court has held in the case of Chief (Mrs.) Eunice Akinyele V. Afribank & Anor (2005)17 NWLR (pt.955) 504 that in declaratory reliefs, the plaintiff has the abounding duty to satisfy the court by evidence, and not through admission in the pleadings of the defendant, that he is entitled to the declaration claimed. The necessity for this arises from the fact that the court has a discretion to grant or refuse the declaration, and success of a claimant in such an action depends entirely on the strength of his own case. In the instant case, the trial court not only rightly found the evidence of the appellant and her witness to be inadequate to grant the declaratory reliefs sought, but also found their evidence to be without weight.
The hurdles of proofs outlined above must be crossed by the Claimant before the burden can shift to the Defendants. And to determine if the Claimant has crossed these hurdles, the set of evidence adduced by the Claimant must come into play which I must admit has not been placed before this Court. Even though the defence of the Defendant may be porous, the Claimant can only rely on the weakness of the defence where the case of the Defendant supports his own case. See Eze V. Atasie (2000) 10 NWLR (pt.676) 470 and Shittu V. Fashawe (2005)14 NWLR (pt.946)671.
I am therefore well guided by the decisions of our superior courts outlined above incoming to a conclusion that this head of relief by the Claimant cannot be granted.
Having found that the first relief of the Claimant which was to declare his termination unlawful and wrongful has failed, the remaining reliefs equally fail as the Claimant cannot be re-instated in the absence of the conditions of service or regulations upon which the employment of the Claimant lies.
The appointment letter of the claimant (Exhibit SYM1) is a temporary one and the claimant did not produce any conditions of service, regulations or Public service Rules or any instrument that will guide the court in dealing with a case of temporary appointment. The claimant has not been able to guide me on whether the appointment is deemed confirmed after serving for certain years. All these things appear difficult to prove in the absence of any conditions of service. I need to refer to the claimant's letter of termination which has been referring to the public service Rules but the claimant ignored to produce same.
The letter of termination of appointment which is exhibit SYM2 provides as follows;
"Mr. Stephen Yina
Head Enforcement Unit
Termination of Appointment
Refer to your reply to the second query issued to you dated 6th March 2017and your response dated 13th March 2017.
2. I am to inform you that the Board of Internal Revenue has terminated your appointment w.e.f. 24/03/2017.
3. This is in line with Public Service Rule No. 02207 subsection (i) where if it is dictated that any Government worker is engaged with another organization, the punishment will be instant termination of appointment without notice.
4. Your act is indeed against the Public Service Rule No. 02206 (a) for you to work with both the Benue State Internal Revenue Service and also work with Nice Assets & Resource Management Nig. Ltd. as stated in your letter with Ref. No: BIRS/S/PER/535/1/23.
5. You were offered temporary appointment as programme analyst II on grade level 08/2 w.e.f. 12/6/2014 which means you are still on probation and you have not yet presented your certificate of induction hence you are not yet confirmed.
6. Being on probation means being on trial in the Benue State Civil Service and until your conduct in the service is in line with what is obtainable in the Public Service your appointment will be confirmed and if not, your offer of appointment will be terminated.
7. During your probationary period therefore, you have on several times gone against the Public Service Rules.
8. You had earlier on involved yourself with Teshimo Nig. Ent. Ltd which you were warned verbally to desist from such act and concentrate on your work, it was at that instance that the firm’s contract was terminated w.e.f 10th March 2016.
9. It seems it is in your character to do consultancy, even though you were warned verbally, you still went ahead to engage yourself with Nice Assets and Resource Nig. Ltd which is also being terminated henceforth.
10. You deviated from your main duty to become a Consultant, you also nominated yourself for training and when your action became unbearable, you were then issued a query which you refused to collect.
11. Your action amounts to a case of serious misconduct, insubordination and embezzlement which is against the Public Service Rule No. 04401 subsection (iv), Rule No.04301 subsection (i), Rule No. 04302 subsection (c) and Rule No 02206 subsection (a).
12. In view of the above therefore, your appointment has been terminated and you are however required to handover any Government property in your possession to the Head, Enforcement Unit before you finally leave the service.
13. Accordingly, this correspondence is copied to the Head of Service, the Honourable Commissioner of Finance, State Accountant General and the State Auditor-General for information and necessary action, please.
Mrs. Mimi Adzape Orubibi
It is clear from the above that the Benue State Civil Rules has been severally mentioned in the termination letter but the claimant did not bother to tender it before the court.
In the same light, the claims for arrears of salaries have no evidential proof before this court. There is no bank statement of account of the Claimant showing his salaries and when it stopped. Exhibit SYM4 which is headed Benue State Government Payroll Voucher November 2016 Salary, is neither signed nor certified by any person. On that note, I discountenance the said document as it is only worth a piece of paper and nothing more.
Consequently and upon the above, I am of the opinion that the Claimant has failed to tilt the balance of probability in his favour to warrant a grant of any of his reliefs. The entire Suit No. NICN/MKD/46/2017 filed by the Claimant fails and is accordingly dismissed.
Judgment is entered accordingly and I make no order as to cost.