IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
ON THE 10TH DAY OF JULY, 2019
SUIT NO: NICN/MKD/16/2012
1. DANJUMA OMAME
2. FELICIA JAMES AKWE
3. ISMAILA ALAGO SABO
4. PAUL ONYAPA
5. MUSA DAN-OMAKU
6. BENJAMIN ZACHARIA ………………………………..CLAIMANTS
[For selves and other colleagues
employed dircetly by Keana Local Govt.
of Nasarawa State]
7. SALIHU D. YUNUSA
8. SAFIYANU ABDULKARIM
9. MOHAMMED O. OKAKU
10. SAIDU SALIHU
[Colleagues employed by the defendant
through Giza Development Area]
KEANA LOCAL GOVERNMENT NASARAWA STATE ……………………….DEFENDANT
Ocha Ulegede with O.D. Obande for the Claimants.
Y.Y. Ede (ADPP) Nassarawa State Ministry of Justice for the Defendant.
Before me is a case with a stretched-out and peculiar background. The case was commenced since 2012 by way of writ of summons dated 2/10/2012 and filed on the same date. The reliefs sought by the Claimants against the Defendant jointly and severally are:
1. Declaration that the claimants are entitled to the respect for the dignity of their persons and freedom from discrimination.
2. Declaration that the Claimants having performed their duties for which they were employed are entitled to the payment of their salaries and allowances at the end of every month like every other employee of the defendant (Keana Local Government –Giza Development Area of Nasarawa State).
3. Declaration that it is unconstitutional for the Defendants to single out the claimants and stop payment of their monthly salaries and allowances while their counterparts in the state public service of the defendant are paid their own salaries and allowances at the end of every month and for the past fourteen (14) months from August, 2011 date (sic) and as at September, 2012.
4. Declaration that the accumulated salaries of the Claimants for the past fourteen (14) months as at 30th September, 2012, is in the sum of N41,094,103.20.
5. Special damages of Fifty-One Million Five Hundred and Ninety-Four Thousand, One Hundred and Three Naira Twenty Kobo (51,594,103.20) made up of N41,094,103.20 accumulated salaries arrears of the claimants for the period of 14 months – August, 2011 to September, 2012 and the legal Fees charged for this case in the sum of N10,500,000.00.
6. Declaration that the claimants total monthly salaries put together is in the, Seventy- Six Kobo (sic) (N2, 780, 427.76) monthly, from October, 2012.
7. General Damages of Five Million Naira (5,000,000.00) only for the humiliation, abandonment, inconveniences, pains, distress and injustice which the actions of the defendants have caused the claimants these fourteen months on the footing of exemplary and aggravated damages.
8. Order of the court directing the defendant to ensure the prompt payment of the salaries and allowances of the claimants along with its other civil servants in its employment henceforth.
9. Order of the court directing the defendant to issue claimants with relevant letters of confirmation of their appointment in the service of defendant, forthwith having served out their two years of probationary period stipulated in the letters of appointment.
10.Order of court directing the defendant to pay the professional legal fees in the sum of N10,500,000.00 charged for the prosecution of this suit."
The case of the claimants as disclosed in the statement of claim filed is that the Defendant employed the Claimants and issued letters to some of them directly while some were employed through Giza Development Area in the Defendant LGA of Nasarawa state. The claimants assumed duty at their respective posts and continued to work and received salaries and allowances as and when due until sometime in August 2011 when all payments to them were stopped albeit they continued to discharge their duties diligently.
It is the Claimants’ averred claim that they are owed fourteen (14) months salaries from August 2011 to September 2012 in the total sum of N41,094,103.20 (Forty-One Million, Ninety-Four thousand, One Hundred and Three Naira, Twenty Kobo). That the salaries of all the Claimants when put together for a month amounts to N2,780,427.76 (Two Million, Seven Hundred and Eighty Thousand, Four Hundred and Twenty-Seven Naira, Seventy – Six Kobo Only).Except for the differences in the respective names of the Claimants, their assigned posts, salaries and grade levels, all the letters of employment are similarly worded. The offers of temporary employment are all subject to the conditions of service stipulated in the Civil Service Rules.
That the terms of employment stipulate that the Claimants are to be paid their salaries at the end of every month but the Defendant has failed to pay as required and has equally failed to give any reasons for this failure despite repeated demands that were made, virtually on a monthly basis.
That funds for payment of staff salaries and allowances are usually provided every month by the government upon disbursement made from the Federation Account to the states and the local governments. The Defendant’s case is no different.
That, In spite of the Claimants continuing to work diligently, and making demands for payment through their solicitors, the Defendant has continued to owe the claimants since August 2011 till date.
Claimants also aver that they have served out their 2 year probationary period and have yet to receive letters of confirmation from the Defendant as provided in the terms of appointment.
Meanwhile, that the Defendant has employed other persons into several departments and these civil servants have been paid their salaries and allowances since August 2011 to date, with the exclusion of the Claimants.
As a consequence, the Claimants are jointly seeking redress and their claims are particularized as follows:
The Claimants prepared and annexed a bundle of documents comprising their letters of offer of temporary employment along with their solicitor’s letter of demand to the Defendant.
The defendant filed its statement of Defence on 17/01/2013 but dated 5/01/2013. Following the issuance of leave of court on 2/06/2015, an amended Statement of Defence dated 07/08/2014 was subsequently filed on 13/08/2014. The Claimants were similarly granted leave for the filing of a Reply to the Amended Statement of Defence. A further application by the Defendant to file a further Amended Statement of Defence was refused by court on 10/03/2016.
The case of the Defendant as revealed by the amended statement of Defence is that the Claimants were offered probationary appointment sometime in 2010. That following a biometric data analysis of all civil servants across the state, the employment of the Claimants was considered void in August 2011 for non compliance with circular dated 26/10/2010 and 08/6/2011 issued by the Nasarawa State Local Government Service Commission to the Defendant and Giza Development Area.
The Defendant further cited the Commission’s Circular dated 26/10/2010 and maintained that as per the benchmark set by the said circular, it was a matter of policy that an application with the proposed number of prospective staff and the record of financial implication be necessarily forwarded to the Commission under which the Defendant operates for approval and until such approval is sought and obtained, any purported appointment by the defendant is null and of no legal effect.
The Defendant maintained that it did not offer any appointment to any of the claimants in 2006 and 2007. That although some of the claimants were issued letters of offer of appointment in 2010 but they did not conform with the Commission’s circular.
That the defendant paid off the entitlements of the Claimants in July 2011 and that the Claimants have since abandoned duty as a result, meaning, the defendant is no longer indebted to the claimants in any way.
The Defendant pleaded the following documents: Appointment letters of all the Claimants, the Nasarawa State Local Government and Development Law, 2009(as amended), Payment vouchers for 2007, 2009 and 2010, Circular from the Local Government Commission dated 26/10/2010.
The Claimants on 14/10/2015 filed a reply to the Amended Statement of Defence via Order of the Court granted on the 17/12/2015. Upon leave being sought and granted on 5/02/2013, the Claimants filed additional depositions and documents, to wit: Nasarawa State Local Government Service Commission Letter No. LGSC/GEN/246/VOL.1/XX dated 26/10/2010 and Nasarawa State Local Government Service Commission Letter No. LGSC/GEN/246/VOL.I/XX dated 24/11/2010, Nasarawa State Local Government (Amendment) Law, 2011.
It is worth remarking that the history of this case has been somewhat protracted and checkered owing to frequent change of Coram. The matter was initially presided over by the former President of the court, Hon. Justice B. A. Adejumo on the 7/1/2013 and taken over by Hon. Justice Waziri Abali(Late) who took witnesses up to defence stage. Upon his transfer, Hon. Justice R. B. Hastrup presided over the matter and took a witness too. Added to that, in 2016 when Hon. Justice Hastrup was transferred the matter started de novo before Hon. Justice P. O. Lifu (now of the Federal High Court). Just before His Lordship could deliver judgment in this matter after hearing had been concluded, he took up appointment with the Federal High Court from where I took over the matter.
In keeping with the provisions of Order 38 Rule 33 of the 2017 Civil Procedure Rules of the Court, parties with their consent were allowed to address the court based on pleadings and documents frontloaded, thereby dispensing with the need to call oral evidence.
Pursuant to the above provision, the claimants filed their final written address on 29/1/2019. Learned Counsel for the Claimants formulated and submitted five issues for determination of the court, to wit:
"1. Whether Giza Development Area in Keana Local Government Area of Nasarawa State, though created by Section 70 of the Nasarawa State Local Government Law, 2009, as amended, has legal personality capable of suing and being sued in law.
2. Whether Giza Development Area is a necessary party for the purpose of this suit.
3. Between the defendant and the Nasarawa State Local Government Service Commission, who has the legal right to employ staff of the defendant on salary grade levels 01-06 under the Nasarawa State Local Government Law, 2009, as amended.
4. Whether the Nasarawa State Local Government Service Commission possesses the power to declare the employment of the claimants made by the defendant into positions carrying salary grade levels 01-06 in exercise of its powers under the Nasarawa State Local Government Law, 2009, illegal, void and of no effect.
5. Whether the claimants proved their case to be entitled to the reliefs sought from the court."
Taking issues one and two together, counsel argued that though created by law, Giza Development area is not a legal person capable of holding and acquiring properties, suing or being sued and that it is at best a development area, agent of the Defendant. Counsel cited and relied on Sections 3 (1), 70, 71 and schedule 3 of the Nasarawa State Local Government Law, 2009. Counsel was emphatic that the 12 Development Areas created in Nasarawa State, Giza was the only Development Area created out of the Defendant. Counsel further noted that the Defendant has admitted this fact in Paragraph 2 of the Statement of Defence. Counsel maintained that the law does not vest Giza Development Area with power to recruit or employ staff to any salary Grade Level so by issuing letters of appointment to some of the Claimants, Giza Development Area was doing so for the Defendant as its agent.
Claimant Counsel further argued that contrary to the contention of the Defendant, Sections 61 and 88 of the Nasarawa State Local Government Law are not complimentary to each other for the purpose of clothing Giza Development Area with capacity to sue and be sued for the following reasons:
a. Section 61 of the Law falls within PARTIX of the Law and comprised of Sections 52 to 65 of the Law and no more. This part of the law deals with the power of the Governor by Law to establish Emirate/Traditional Council and has nothing to do with the creation of Development Area and or to the attributes of legal personality and power of the Development Areas created by the same Law in PARTIX.
b. Section 88 of the Law falls within a completely different part of the Law, i.e PARTX II which has Sections 82 through to Section 94. It is within this part XII that provision is made for Legal Proceedings, the corporate nature of the defendant with all the attributes of legal personality of body corporate, perpetual succession, common seal, power to acquire and hold land and to sue and be sued as shown in Section 88.
c. The provision of Section 61 of the Law is very clear and in unambiguous language, it applies to only the provisions of Part XI of the Law, Section 61 of the Law does not extend to and cover Section 88 of the Law which is within the Part XII of the Law and the Court is urged to so hold.
Counsel cited and relied on several cases pertaining to the attributes of legal personality, including: ATAGUBA & CO. V. GURANIG . LTD (2005) ALL FWLR (PT. 258)1219 @ 1228 PARA. B-C; LAWAL V. ATT-GEN. KWARA STATE (2011) ALL FWLR (PT.590)1308 @1343 PARA. C amongst others.
On issues three and four, counsel relied on the provisions of Section 92 and 94 as well as plethora of case law to argue the point that where both general and special provisions are at play, the special provision would naturally take effect in such a manner that does not contravene the general provision. Counsel dwelled extensively on the interpretation of the words used in the relevant provision.
Arguing issue 5, counsel expressed the view that the case of the claimants has not really been challenged by the Defendant. Counsel submitted that the averments in paragraphs 4, 5 and 6 of the Claimant’s pleaded fact had not been denied by the defendant hence should be deemed accepted. Cited F.U.T MINNA .V.OLUTAYO(2018)ALLFWLR(PT.935)1255@1279PARAS.E-F.
Counsel similarly submitted that the defendant had cleared any doubt concerning the appointment of the claimants by its admission in paragraphs 4, 6, 7(a) and (b), 17, 18, 20, 23, 29, 30, 33, and 35 of the Statement of Defence. Counsel highlighted the areas featuring the said admissions for the consideration of court.
Finally, counsel urged the court to hold that the claimants had established their case to be entitled to the grant of the reliefs sought from the court.
On its part, the Defendant filed its Final Written Address on 29/04/2019. Counsel for the defendant formulated two (2) issues for the court to determine, thus:
“i. In view of the Claimants’ letters of appointment dated 2009, and by virtue of the provision of Sections 61 and 88 of the Nasarawa State Local Government Law 2009, whether Giza Development Area is an agent of the Defendant. And if the answer is in the negative whether there are necessary parties before the court.
ii. In consideration of Claimants’ Statement of Claim and the documents frontloaded thereof, whether claimants are entitled to the reliefs sought.”
Urging the court to resolve issue one in the negative, counsel argued that the Giza Development Area is not an agent of the Defendant. That the fact that the word “Local Government Secretariat” is used on the letters of appointment does not make Giza Development Area an agent of the Defendant as reasoned by the Claimants. Counsel cited for the court’s attention, the cases of: JAMES V. MIDMOTORS (NIG) LTD (1978)11-12 SC 2; BAGOYE V. UNIVERSITY OF ILORIN & ORS (1999) 8 NWLR (Pt.129).
Counsel submitted that Giza Development Area is a creation of statute. Referring to Sections 61 and 88 of the Nasarawa State Local Government Law, 2009.
Section 61 of the law provides that:
“any reference to the local government under this part of the law shall also include Development Area established under part XI of this law”
Section 88 provides:
“Every Local Government established under or pursuant to the Constitution or this law shall be a body corporate by the name designated in the instrument establishing such Local Government and shall have perpetual succession and a common seal and power to acquire and hold land and to sue and be sued”
Counsel for the Defendant sought to discredit the letter of demand written to the defendant by solicitors to the claimants. Citing Section 2(1) and 24 of the Legal Practitioners Act, counsel argued that it was wrong for the learned counsel for the claimant to have signed the letter in this format: Ocha P. Ulegede Esq, signed for Ocha P. Ulegede & Co. In consequence, counsel contended that it would mean that the Claimants did not make demand, nor was a pre-action notice issued as required by law. Defendant`s counsel then went on to highlight the fine points in the Statement of Defence while urging the court to take notice of same. Counsel further urged the court to consider the state of the documents pleaded, especially the letters of appointment emanating from Giza Development Area, implying that joinder of Giza Development Area is necessary and that failure to join it in this suit is detrimental to the case of the Claimants.
On issue two, while urging the court to resolve the issue in the negative, counsel argued that by default, the burden lies on the Claimants to prove their claim and that the Claimants failed to discharge that burden. Counsel cited and relied on Sections 131, 132, 133 and 134 of the Evidence Act 2011.
In turns, counsel attempted to cast doubt over the demand letter written by the claimants’ solicitor to the Defendant, as well as the letters of offer of appointment of the Claimants.
Moving further, pointing out that the Defendant is in denial of owing the claimants (reference was made to paragraphs 14, 17, 19, 25 and 32 of the Amended Statement of Defence), counsel contended that the calculation of arrears owed as done in paragraph 6 of the Statement of Claim is inflated. Counsel submitted that the calculation for the individual claimants ought to be done on a 14 months basis as alleged but was instead done on a 15 months basis.
Again while drawing the attention of the court to paragraphs 8, 9, 27, 28 and 30 of the Statement of Claim, counsel argued that some claimants who are without letters of appointment were subsumed in the total sum claimed. The Defendant highlighted and particularized the following claimants as being the affected:
Learned counsel for the Defendant then pointed to relevant portions of the Amended Statement of Defence and concluded by urging the court to dismiss the claim of the Claimants because, according to counsel, they failed to prove their case on the preponderance of evidence or a balance of probabilities.
Claimants on 2/5/2019 filed a reply on points of law to the Defendant`s final address. In their reply, Claimants reiterated that, though they conceded that Giza Development Area is a creation of State but submit that the law did not make it a body corporate with perpetual succession with power to sue and be sued.
Claimants also further argued that the pre-action Notice was duly signed by the Claimants` lawyer and Claimants finally urge the court to grant their claim.
At the invitation of this Honourable Court on 16/10/2019, parties had to further address the court on the following issues:
“1. Whether Giza Development Area is an agent of the Defendant or a necessary party in view of appointment letters issued to claimants by Giza Development Area.
2. Whether Claimants have pleaded facts or proved by documentary evidence that they (Claimants) were employed in February, 2007 or 2006.
3. Whether the Defendant amended its Statement of Defence.”
The Claimant's further address was filed on 31/10/2019 while that of the defendant was filed on 18/11/2019. The further written addresses were adopted on the 29/1/2020 and the matter was adjourned to the 22/4/2020 for judgment, but owing to the Corona virus Pandemic which led to the locking down of some part of the country and imposition of curfew and restrictions of inter-state travels, the judgment could not be delivered during the peak period of the pandemic until now when the restrictions have to some extent been eased.
While arguing with respect to issue one, counsel for the Claimants restated and relied heavily on the submissions in their earlier Final Witten Address urging the court to hold that Giza Development Area in Keana Local Government Area of Nasarawa State is an agent of the Keana Local government and not a necessary party to this suit.
Regarding issue two, learned counsel for the claimants directed the attention of the Honourable court to paragraph 4 of their statement of claim to maintain that the claimants pleaded sufficient facts in support of their employment in 2007.
On issue three, counsel similarly placed reliance on the introduction in paragraphs1.5 on pages 2 to 3 and paragraph 1.8 on pages 4 to 5 of their Final Written Address. Learned counsel for the claimants argued that the Defendant’s attempt to amend its statement of defence had failed. That the defendant's defence to this claim is simply as contained in the statement of Defence dated 15/01/2013.
On the part of the defendant on issue one, learned counsel for the Defendant largely and basically rehashed the submissions in his earlier address. Placing reliance on Sections 77 (a), (b) and 79 of the Nasarawa State Local Government Law, 2009, counsel maintained that Giza Development Area though created out of the Defendant, enjoys fiscal autonomy such that it is funded from the statutory allocation and internally generated revenue of the state. Counsel submitted that Giza Development Area is not an agent of the Defendant. And that by law, once an institution is created and given a name such institution can sue and be sued by that name.
On issue two, counsel contended that none of the claimants was employed between the years 2006 and 2007 as alleged. Counsel therefore submitted that the letters of appointment bearing the date of 2006 and February 2007 were fraudulently obtained.
Moving on to issue three, learned counsel for the Defendant whilst relying on the record of proceedings submitted that it was a misconception on the part of the claimants’ counsel to argue that the Defendant did not amend its Statement of Defence in the course of proceeding. Counsel maintained that the Defendant amended its Statement of Defence following leave of court on 2/06/2015 and that same was deemed properly filed and served on the claimants.
OPINION OF THE COURT
I have painstakingly gone through all the processes filed by the parties particularly the pleadings and the bundle of frontloaded documents. I have also studiously perused and considered the 54 paged written address of the claimants' counsel and his 10 paged reply on points of law and the Defendant's 32 paged written address and the further addresses filed as well. I am then of the considered view that the question of whether the claimants are entitled to the award of the reliefs claimed can conveniently address the whole lot issues raised by the parties.
As I have noted earlier, the case of the claimants as revealed is that the Defendant employed them and issued letters to some of them directly while some were employed through Giza Development Area in the Defendant LGA of Nasarawa state. The claimants said that they assumed duty at their respective posts and continued to work and received salaries and allowances as and when due until sometime in August 2011 when all payments to them were stopped albeit they continued to discharge their duties diligently. Claimants sated that their appointment letters are all subject to the conditions of service stipulated in the Civil Service Rules.
According to the claimants, the Defendant has failed to pay them as required and has equally failed to give any reasons for this failure despite repeated demands that were made.
Claimants also aver that they have served out their 2year probationary period and have yet to receive letters of confirmation from the Defendant as provided in the terms of appointment.
On the other hand and as noted earlier too, the case of the Defendant as revealed by the Amended Statement of Defence is that the Claimants were offered probationary appointment sometime in 2010.That following a biometric data analysis of all civil servants across the state, the employment of the Claimants was considered void in August 2011 for non compliance with circulars dated 26/10/2010 and 08/6/2011 issued by the Nasarawa State Local Government Service Commission to the Defendant and Giza Development Area.
I consider it necessary to quickly address some preliminary issues raised by the parties. In his submission, Claimant’s counsel has vehemently argued that the only Defendant's statement of defence is the one dated 15/1/2013 and filed on the 17/1/2013 and the defendant therefore does not have any Amended Statement of Defence. However, I need to say here on this that the record of the court reveals that there were two attempts by the defendant to amend its statement of defence and two Rulings delivered thereupon. The Ruling of the court by Hon. Justice R. B. Hastrup delivered on 2/6/2015 granted the Defendant's application to amend its statement of defence while the Ruling on the second attempt to amend refused the application on the 10/3/2016. In consequence therefore, I hold that the defendant has had essentially an Amended Statement of Defence via leave of court granted on 2/6/2016.
Counsel to the defendant in his submission urged the court to discountenance the letter of demand/pre-action notice written by the claimants' counsel for being incompetent because the letter was signed contrary to the Legal Practitioners' Act. Looking at the letter, I can simply say that the argument is misconcieved and the issue over flogged. Admittedly, a document will be incompetent and liable to be struck out where a legal practitioner signs the document in his partnership or law firm's name without indicating his name. But in the instant case, both the name of the Counsel and that of his law firm appear on the letter and there was a signature on top of the name of the Counsel (Ocha P. Ulegede Esq). I want to believe that these kinds of trivial issues are needless and just waste unnecessarily our precious judicial time. On this note, I refuse to be swayed by the argument of the defendant and hold that the demand letter/pre action notice is competent before the court.
In any event, where pre-action notice is proved to be enacted with a view to inhibiting citizens having access to the courts, it will be contrary to section 6(6)(b) of the 1999 Constitution. See Atolagbe V Alhaji A. Uwani (199) NWLR (Pt. 522)536 SC.
It was also held in the case of Attorney Gen. Bendel State V Attorney General of the Federation (1982) NCLR 1at 88, that the constitution has opened the gates to the courts by its provisions and there can be no justifiable reasons for closing the gates against those who do not want to be governed by a law enacted not in accordance with the provisions of the constitution. That it is common knowledge that access, or easy access, to the court for the determination of the civil rights and obligations of any person is an aspect of fair hearing of disputes. See also Amadi V. NNPC(2000) NWLR (Pt. 674) 76 SC and Port Harcourt Refining Company Ltd. V Okoro(2010)LPELR - 4861 (CA).
Moving on to the issue of the status of Giza Development Area. Both parties have posed a question on whether Giza Development Area is an agent of the defendant, or that it has capacity to sue and be sued thereby making it a necessary party.
Now, an agency is a fiduciary relationship said to be created when a person (principal) gives authority to another (agent) to act on his behalf and the agent accepts to act on the authority. The authority may be express or implied. This relationship is usually not determined by the terminology used by the parties to describe their relationship but on the nature of their agreement and the circumstances of the relationship between parties. See Bayero V Mainasara & Sons Ltd (2006) LPELR-7587 CA; (2006) 8 NWLR (Pt. 982) Pg. 391; Upkanah v Ayaya (2010) LPELR-8590 (CA).
An agency can be created by any of the following;1. Agreement whether formal or not between the parties.2. Ratification by the principal of the acts done on his behalf.3. Operation of law under the doctrine of necessity. See Niger Progress Ltd v N.E.L. Corp (1989) NWLR (Pt. 107) 68; (1989) LPELR-1996 (SC) 33; Edem v Canon Balls Ltd & Anor (2005) 12 NWLR (Pt. 938) 27; (2005) LPELR-1007 (SC); (2005) 6 S.C (Pt. II) 16; Ukpanah V. Ayaya (Supra).
I note that the idea behind agency is that the law acknowledges that a person does not always need to act in person to change his legal relations. He may either employ the services of another to change them or do something to change them. Ordinarily, the idea is that the agent can affect the principal's legal position by certain acts which, though performed by the agent, are to be regarded as acts of the principal. See Idowu V. Olorunfemi & Ors (2013) LPELR-20728 (CA). Per OGUNWUMIJU, J.C.A. (Pp. 16-17, Paras. D-D)and CHIEF GODWIN UKAH & ORS V. CHIEF CHRISTOPHER A. ONYIA & ORS(2016) LPELR-40025(CA).
I note that there are two sets of letters of employment issued to the respective claimants in this case. The first set is the one on the letter head papers of the defendant, signed by the DPM on behalf of the Chairman of Keana Local Government Council. Almost all the letters are dated 13/4/2010. While the second set is headed "Local Government Secretariat, Giza". All the employment letters issued by Giza were signed by the DPM, Giza Development Area, Giza Local Government Council and copied to all the Directors, of Finance, Primary Healthcare, Agric, Works and Housing and Social Services, Giza Local Government Council.
I also wish to note that Giza Development Area was created out of Keana Local Government Council and Giza Development Area takes 45% of Keana Local Government Council's statutory allocation from Federation Account, however, I wish to buy the argument of the defendant's counsel that, that does not invariably mean that Giza Development Area is an agent of the defendant. Looking at the two sets of the employment letters, both Giza and Keana have separate DPMs. None of them signed for each other but rather for their respective Local Government Councils. Here! I wish to find contrary to the contention of the claimants that the word "Local Government Council" used in the content of the letters written on behalf of Giza does not mean Keana Local Government Council but rather Giza Local Government Council.
Arising from the above, I hold the considered opinion that Giza Development Area is not an agent of the defendant and they are two separate entities. I feel there is nothing either express or implied or by any presumption that suggests that Giza is an agent of the defendant.
This brings me to the question of whether Giza Development Area is a necessary party.
Now, a necessary party is someone whose presence is necessary as a party. What makes a person necessary party is not of course merely that he has relevant evidence to give on some of the questions involved or that he merely has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance and is afraid that the existing party may not advance the made quietly, the only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which can not be effectually and completely settled unless he is a party. See Emmanuel Babayeju V. Elijah Ayo Ashamu (1998) Legal pedia SCMCY 3. Anabaronye V. Nwakaihe(1997)NWLR(Pt.482)374,SC.
It is settled in civil claims that parties against whom complaints are made in an action must be parties to such action and failure to join all parties necessary to come to court for the invocation of the judicial powers so as to give the court jurisdiction to grant the reliefs sought may render the suit incompetent. See Awoniyi V. Amorc (2000) W.R.N.1.
The Supreme Court in the case of Kalu V. Uzor (2004)12NWLR(Pt.886)1@ 33 has held that
“necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled, unless they are parties to the action instituted by the Plaintiffs. ”
Per Mohammed, J.S.C. (Pg.22, Paras, E-G). See also Bwacha V. Ikenya & Ors (2011) LPELR 8105(SC).
I observe that, although the claimants conceded that Giza Development Area is a creation of statute but it argued that Giza Development Area is not given capacity to sue and be sued thereby an agent of the defendant.
I need to say that the general law is that any person, natural or artificial, may sue and be sued in court. Although there can be no difficulty in determining who a natural person is. But the difficulty that has often arisen is as regards who is an artificial person that can sue and be sued. An artificial person is generally referred to as a corporation.
But it is not only a corporation (aggregate or sole)apart from a natural person, that has the attribute to sue and be sued. There are bodies generally regarded as quasi or near corporations on whom statutes expressly or impliedly confer a right to sue or be sued though unincorporated. They are not legal personae strict osensu but have a right to sue or be sued by a particular name. Examples of these are partnerships, trade unions, friendly societies and foreign institutions authorised by their own law to sue and be sued, "though not incorporated. However whether a quasi corporation has the right to sue or be sued eon omine depends on whether the statute creating it expressly or by implication gives it such power. See Carlen (NIG.) Ltd V. Unijos (1994) LPELR - 832(SC).
In the above case, it was held that the University of Jos Act has not expressly conferred on the council of the University nor the Vice-Chancellor such a right to sue or be sued nominee, but the right or obligation can be derived by implication from the Act. And since some functions are conferred on the council and the Vice-Chancellor, then considering the nature of those functions and other powers, duties and responsibilities conferred by other sections of the Act, e.g. the power of discipline over staff and students, it cannot be doubted that in their exercise of these functions and powers rights of third parties would necessarily be affected and it will amount to injustice if such third parties cannot seek redress for any wrong done to them. See also Thomas v. Local Government Service Board (1965) NMLR 310.
The Supreme Court in Carlen's case(supra)adopted the reasoning of Lord Farwell in Taff Vale Ry Co. V Amalgamated Society of Railway Servants (1901) A. C. 426 thus; " If the legislature has created a thing which can own property, which can employ servants, and which can inflict injury, it must be taken, I think, to have impliedly given the power to make it sueable in a Court of law for injuries purposely done by its authority and procurement."
It needs to be emphasized that Giza Development Area was created by section 70 of the Nassarawa State Local Government, Law, 2009 and the Law conferred to it some functions and obligations. It is clearly evident that some of the employment letters of the claimants were solely issued by Giza Development Area through its DPM. Assuming judgment is given against the defendant to pay all the claimants, then how can the defendant recover the money from Giza Development Area since all of them have their separate shares from the Federal allocation. Going by this and the decision of the Supreme Court in Carlen's case (supra), I am of the view that Giza Development Area is a necessary party and it can sue and be sued. I therefore find that it's presence is essential for the effectual and complete determination of the claim of the claimants whose employment letters were issued by Giza Development Area. Consequently, failure to so join Giza in this suit will render the suit defective and liable to be dismissed against the claimants whose employment letters were issued by Giza Development Area because their reliefs are declaratory in nature.
I am not unmindful of the Defendant's counsel submission that some of the Claimants do not have letters of offer of employment. Either that or they failed out rightly to produce them.
Having found no positive denial by the claimants of the assertion of the Defendant, then, I must agree with the submissions of the Defendant’s Counsel, that the letters of offer of employment, having not been produced, invariably renders the claims of the said claimants nugatory. A party is required to plead a document either specifically or plead to the facts which such a document is intended to support . See Inuwa V. BAYERO UNIVERSITY KANO & ANOR (2016) LPELR 1615 (CA); OGHONEVOGHOYONE (2010) 3 NWLR PART 1182 PAGE 564 AT 587 PARA BC; LPINLAIYEVOLUKOTUN (1996) 6 NWLR PART 453 PAGE 748 AT 166 PARA-B.
In consequence therefore, I am duty bound to resolve that for the purposes of this matter the following named claimants have no claim upon which this court can make a determination.
Coming to the substance of the case, the claimants asked for a Declaration that having performed their duties for which they were employed, they are entitled to the payment of their salaries and allowances at the end of every month like every other employee of the defendant, while the defendant alleged that claimants' appointment was considered void in August 2011 for non compliance with circular dated 26/10/2010 and 08/6/2011 issued by the Nasarawa State Local Government Service Commission to the Defendant and Giza Development Area.
The law is trite that a worker is entitled to wages that are earned and this right is automatically implied into a contract of employment. See the case of Udegbunam V. Federal Capital Development Authority & 2Ors. (2003) 10 NWLR (pt.829) 487 at 500-501,
That the right of payment of salaries and wages has remained unchanged and is determined by the letter of appointment as held in the case of Jeremiah V. Ziregbe & Anor.(1996)7NWLR347at 356.
It is therefore the duty of an employer to pay wages or salary in accordance with the terms of the contract whether expressly stated or implied to the employee. In the case of Browning V. Crumlin Valley Colleries Ltd. 5 (1926) 1K.B. 522; Greer J. said that an employer is under a duty to pay wages or salary to his employee where the terms of the contract say so. See case of Way V. Latilla 3 AllE.R.759.51K.B.522.
Once the duty to pay wages or salary exists, the employer is,at common law, to continue to pay such remuneration to a worker who is ready and willing to work, whether or not work is provided for the employee. See the case of Devonald V. Rosser & Sons (1906)2K.B.728.
Similarly, in the case of Chemical and Non-Metallic Products Senior Staff Association V. Benue Cement Co. Plc. (2006) 5 NWLR (pt. 14) 1, the National Industrial Court (NIC) stated that the law as regards the issue of payment of salaries is sacred. It is so sacrosanct that the employee is entitled to wages even during temporary incapacitation period once he is willing to work. See also the case of Under water Engineering Co.Ltd.V.Dubefon,(1996) 6 NWLR (pt.400)156.
The Claimants in their bid to prove their case have pleaded and frontloaded their letters of employment which contain some terms and conditions and their annual salaries.
The pleadings and documents frontloaded before this court show that there is a valid and subsisting contract of employment between some of the Claimants and the Defendant. However the Defendant appear to be in breach of the said contract by the non-payment of the Claimants’ salaries from 2011 to 2012. The Court has held in the case of Mmegwa V. Texaco (Nig.) Ltd (2005) 18 NWLR (pt.957) 279 at 281, that where there is a valid and enforceable contract, and one of the parties defaults in performance thereof, the other party has a right to ask for specific performance or seek damages for breach.
Thus, where a master and servant relationship has been put down in writing and accepted by the parties, it creates a sanctity of contract which the court must respect and give effect to at all times. See the case of A.G. Rivers Statevs. A.G. Akwa Ibom State(2011) 8 NWLR (Pt.124831)at 83, paras.B-C,where the Supreme Court held thus: "Where parties have entered into a contract or agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement."
In this instant case there is no credible evidence from the Defendant that the Claimants whose employment letters emanated from Keana Loca Government Council obtained their respective employments by fraud, misrepresentation, deception or mistake.
I need to refer to section to 169 of the Evidence Act, 2011 which says that when one person has either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such person or such person's representative in interest, to deny the truth of that thing.
I also need to state that there is a presumption of regularity of the employment of the claimants by virtue of section 168 of the Evidence Act which states that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
From the above therefore, it can be deduced that the Defendant who has not been able to take the necessary measures in determining the employment of the claimants as a result of the alleged infraction cannot be allowed to suddenly raise that defence to deprive the Claimants of their salaries. That defence cannot avail them.
The point sought to be made by the defendant with regards to the Circulars dated 26/10/2010 and 8/6/2011 emanating from the Commission is of no moment. Apparently the said circulars were not extended to the Claimants. Being a matter of policy, I would agree with the Claimants that Defendant ought to have complied with the stipulations in the circular by taking appropriate action. Having not done so at the time; it seems fairly clear that the omission, if it were, is not the making of the claimants but rather that of the defendant.
Added to that, having also failed to disengage the claimants in a manner befitting the circumstance as there exists a contractual relationship, I find that the defendant is caught by the doctrine of estoppels by conduct. It is therefore my respectful view that the defendant was wrong to withhold the salaries of the Claimants. The defendant cannot now turn around to punish them for its indolence or negligence.
It is therefore the right of the Claimants to be paid their salaries monthly for the period of work done and such right cannot just be taken away for no just cause.
In all, I hold that the case of the Claimants only succeeds in part. The Defendant shall pay to the Claimants (whose letters of offer of appointment are issued by Keana LGA) arrears of salaries owed as per their respective letters of offer of appointment beginning from August 2011to 30th September, 2012. This order is exclusive of the claims in respect of:
Similarly, the claims of the Claimants whose letters of Offer of appointment were issued by Giza Development Area are dismissed.
Judgment is entered accordingly and I make no order as to cost.
HON.JUSTICE S. H. DANJIDDA