IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

17TH DAY OF DECEMBER 2020                  SUIT NO: NICN/ABJ/346/2017

 

BETWEEN:

    AKOZOR GLADYS

DAODU GRACE

MARGARET KURE

PETER LADI

INI PAUL OKON                      CLAIMANTS

OGWUEGBU BONIFACE

MR. E. ADAGBA

DUNIYA JOSEPHINE KANDE

TIMOTHY OHI ISAAC

TUKURA PAULINA

(Suing for themselves and on behalf of 129 0thers) 

 

AND

COUNCIL OF LEGAL EDUCATION     DEFENDANT

JUDGMENT

The claimants are suing the defendant for themselves and on behalf of 129 others. The suit was filed on 29/11/2017, wherein they are praying for:-

An order of this Honourable Court directing the Defendant to immediately pay each of the Claimants his/her respective arrears of salary being owed by the Defendant from March 2007 to April 2017.

An order of this Honourable Court directing the Defendant to immediately pay each of the Claimants the interests that accrued on his/her respective arrears of salary being owed by the Defendant from March 2007 to April 2017 at the prevailing bank rate.

An order of this Honourable Court directing the Defendant to immediately pay the Claimants other entitlements due to him/her and reflecting his/her appropriate actual and entitled levels/promotions in service as at present and in accordance with guidelines for Appointment, Promotion and Discipline issued by the Federal Civil Service Commission.

An order of this Honourable Court directing the payment of 6% interest on the unpaid balance in A, B, and C above from March 2007 to April 2017 till judgement is delivered in this suit.

An order of this Honourable Court directing the Defendant to immediately pay each of the Claimants the sum of N500,000.00 (Five Hundred Thousand Naira Only) being general damages.

An order of this Honourable Court directing the Defendant to immediately pay of the Claimant’s the sum of N200,000.00 (Two Hundred Thousand Naira Only) being the sum expended by each of the Claimants in engaging the said solicitors for the recovery of his/her arrears, interest and other entitlements with the Defendants.

An order of this Honourable Court directing the payment of 10% interest on the judgement sum from the day judgement is delivered in this suit till final liquidation.

A perpetual injunction restraining the Defendant from ever withholding the arrears of salaries, interest and other entitlements of the Claimants.

In response to the claim of the claimants, the defendant vide the amended statement of defence dated 9/1/2019 and filed on 14/1/2019, denied the claims of the claimants. The Defendant in its statement of defence avers that the basis of disengagement of the claimants from service was that the Civil Service Reform introduced by the Federal Government of Nigeria in the year 2007 that required Government, Departments and Agencies to downsize its workforce which affected the Claimants.

The 1st and 2nd claimants testified as CW1 and CW2 in proof of the claimants claim.

From the pleading of the claimants, the witness statements on oath of the CW1 and CW2, as well as the oral testimony of the two witnesses it can be gleaned that the basis of the claimants complaint before the court is that the Claimants were employees of the Defendant before the salaries of the claimants were stopped in March 2007. The Claimants averred that some of them were promoted but the defendant failed and refused to pay the new salaries based on the promotion. 

The Defendants on their part called a sole witness (Mrs Rita O. Areh, who testified as DW1. In the course of giving evidence DW1 tendered several documents in evidence. They were admitted as exhibits and marked accordingly.

According to the defendant the claimants were aware that their employment had been determined having filled, signed and submitted their Clearance form. The Claimants have been paid their entitlements, directly by the office of the Accountant-General of the Federation. That the letter of promotion was issued to the affected Claimants because they were due for promotion before the effective day of the layoff. The promotions were therefore done in arrears, bearing in mind that it will have an impact on their severance package. The Defendant is not responsible for the payment of pensions of staff and is only obliged to submit the names of staff that are no longer entitled to pension’s contribution to the office of the Bureau of Public Service Reforms (BPSR) having been disengaged from service; a responsibility the Defendant discharged via a letter dated September 12, 2011. 

The Claimants participated in the Bureau of Public Service Reforms (BPSR) Social Assistance/Pre-Retirement Training Workshop, 2006 and were issued certificates of participation. The stoppage of payment of salaries to the Claimants was predicated on the fact of their disengagement and payment of severance package. The Claimants are been fraudulent in filing this action before this Honourable Court, claiming to still be in the employment of the Defendant and concealing the fact that they had been disengaged and their entitlements paid in full.

THE SUBMISSION OF THE DEFENDANT:

The defendant formulated four issues for determination. Viz:-

Whether from the evidence before this Honourable Court, the Claimants were not disengaged from the employment of the Defendant.

Whether the inconsistencies in the testimony of the Claimants witnesses and documents tendered   does not amount to contradiction which affects their credibility.

Whether an unwilling employer can be compelled to keep an employee?

Whether from the evidence before this Honourable Court, the Claimant’s has proved all the facts contained in their statement of claim on balance of probability to be entitled to the reliefs claimed.

ARGUMENT

Issue one: Whether from the evidence before this Honourable Court, the Claimants were not disengaged from the employment of the Defendant.

In arguing this issue, A. A. Abogede, Esq; counsel for the defendant contended that the position of the law is that parties are bound by their contractual agreement except there is proof of fraud or illegality or there is any oral agreement aside the written one. To support this contention the case of BFI GROUP CORPORATION v. BUREAU OF PUBLIC ENTERPRISES (2012) LPELR-9339(SC)

Counsel refers to the claimants appointment letters exhibit CWB1-227 wherein in paragraphs six (6) of the Appointment Letters it was stated that 

“This appointment which is subject to satisfactory work and conduct can be terminated on either side by giving one month’s notice or payment of one month’s salary in lieu of notice”.

Counsel contended that the appointment letter having stated how an employee of the Defendant can/could be disengaged from its service, and same having been followed/carried out by the Defendant on the instruction or directive of the Federal Government without any fraud or illegality that could warrant the Court to posit otherwise. It is also argued that the tenets or the wording as contained in the appointment be strictly given credence to, by the Court, on the basis that paragraph 6 of the appointment letter had  explicitly stated/enumerated how the employee or the appointee is to be disengaged from service of the Defendant. It is the contention of counsel that exhibit CWB1-227, the appointment letter per paragraph 6 therein has supported the defendant, since parties are bound by their agreement. 

It is also the contention of counsel that the Claimants having been in the employment of the Defendant which is an Agency of the Federal Government of Nigeria, has the undiluted loyalty to follow the directive(s) given to it by the Federal Government on its policies, it is sequel to this directive from the Federal Government to the Defendants in compliance with the directive(s) of the Federal Government through the Bureau for Public Service Reforms (BPSR) to Ministries and Agencies to embark on downsizing exercise in conformity with the Federal Government Reform policy disengaged the Claimants through (Exhibit DWA 1-10) and paid their severance entitlements (gratuity and pension where applicable) which was also corroborated by the testimony of the Defendants witness.

Flowing from the above, counsel contended that the stoppage of the Claimants salaries by the Defendant was predicated on their disengagement from service in compliance with the directive of the Federal Government through BPSR and the Claimants were duly informed through their letters of Disengagement from Service which are before this Honourable Court (Exhibit DWA 1-10).

Counsel argued that a person who is clearly and evidently disengaged from his/her employment and having been paid his/her severance package cannot be said to still be in the employment of the employer, because it is not and never done like that, which is the issue before the court. A careful perusal of Exhibit CWB 1-227,  Exhibit DWA 1-10, Exhibit DWB 1-12, and Exhibit DWC 1-74, will undoubtedly come to conclusion that the claimants were actually in the employment of the Defendant before there were subsequently disengaged from service and whatever that is due to the Claimants were given to them as required by the civil service rule.

Furthermore, the Claimants filled and signed the clearance forms (Exhibit DWB 1-12) issued to them to ensure that whatever belongs to the Defendant in their possession were duly returned, including the staff identity cards of the claimants, which they were not able to produce/tender it in Court to show that they are still in employment of the Defendant and they are also not indebted to the Defendant.

It is further submitted that the Claimants also participated in the Bureau of Public Service Reforms (BPSR) Social Assistance/Pre-Retirement Training Workshop, in 2006 and were issued Certificates of participation (Exhibit DWE 1-5) which are before this Honourable Court.

The Defendant in paragraphs 6 & 7 of their statement of defence stated that the Claimants who served up to 15 years were paid their retirement benefits and placed on pension and are still on the pension scheme till date. While those who served for the below 15 years and not pensionable were paid their gratuity and same was also collaborated by the Defendants witness (DW1). The Claimants were duly paid their benefits/gratuity by the Defendant through the Office of the Accountant-General of the Federation as seen in Exhibit DWC 1-74. On this contention counsel relied on the Court of Appeal case of DANIEL M. OGBAJE V. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (2007) LPELR-11855(CA) held thus;

“One of the hallmarks of a determined employment is the payment of terminal benefits by the employer and the acceptance of same by the employee after the employment is brought to an end. See the case of: Julius Berger (Nig) Plc. V. Nwagwu Supra at p. 540." Per OMOLEYE, J.C.A (Pp. 43-44, paras. F-A)

Issue two: Whether the inconsistencies in the testimony of the Claimants witnesses and documents tendered does not amount to contradiction which affects their credibility.

It is submitted that the Claimants called two witnesses and tendered documents in trying to prove their case. During Examination-in-chief and cross-examination of the Claimants first witness CW1 (Akozor Gladys), she stated that she was employed as a cleaner and works in the Cleaning Department of the Defendant while her appointment letter (Exhibit CWB 1-227) and Clearance Form (Exhibit DWB 1-12) which are before this Honourable Court clearly shows that CW1 was employed by the Defendant as a steward and she worked with the Catering Department which goes to the root of her testimony.

According to counsel from the evidence before the court, both oral and documentary as stated above, it is submitted that credibility of the witness is at the edge, and where a witness makes a contradictory statement in court, it signifies that the person making such statement has been untruthful. Counsel contended CW1 is obvious been economical with the truth in their effort to mislead the court into believing their own version of the case, even though their claims against the defendant are very weak and holds no water.

It is the contention of counsel that CW1 instead of her to corroborate the (Exhibit CWB 1-227) which was tendered through her, she ended up contradicting the fact that she was employed as a steward by the Defendant when her Employment Letter stated otherwise, which is a clear indication that she was not telling the court the truth. The veracity and credibility of PW1 been severely damaged. On definition of contradiction counsel refers to the case of OGOALA vs STATE (1991)2 NWLR(175)509.

It is also submitted that during cross-examination, PW2 (Margret Kure)  was also asked when last she received her monthly salary from the Defendant and again, her response was “I can’t remember” while in her statement on oath (Exhibit CWA 1-8) which is before this Honourable Court, particularly paragraph 9, PW2 (Margret Kure) stated and I quote “ The Claimant avers that surprisingly in 2007, Defendants said establishment, the Nigerian Law School, having already paid the Claimant’s their  January 2007 and February 2007 salaries respectively, abruptly stopped paying the Claimants their respective salaries since late March 2007 till date, and has withheld the said salaries and other entitlements till date for no just cause”. Furthermore, PW2 (Margret Kure) during examination-in-chief alleged to still be in the employ of the Defendant and have been going to work till the 7th of June 2019. During cross-examination, she was asked what her monthly salary was and her response was “I can’t remember”.

It is the contention of counsel that from the above discrepancies in the testimony of Claimants witnesses and the documents tendered which are before this Honourable Court, the testimonies of PW1 and PW2, are unreliable or untruthful which goes to the issue of their credibility. Counsel urged the court to so hold.

Issue three: Whether an unwilling employer can be compelled to keep an employee?

In arguing this issue, counsel contended that the law is trite that an unwilling employer will not be compelled to keep an employee he no longer wants. It is contended that the court cannot foist the Claimants on the Defendant since the Defendant going by the evidence tendered have shown that it has disengaged the Claimants and their service are no longer required, therefore the court cannot posit otherwise. In support of this contention counsel placed reliance on the case of OKWARA AGWU & ORS V. JULIUS BERGER NIGERIA PLC (2019) LPELR-47625 (SC).

It was also contended that in ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR-3544(SC) the Apex Court held that a court cannot impose or foist an employee on an unwilling employer. According to counsel from this decisions of the Supreme Court, an employer can disengage the services of employees it does not need as in the instant case before this court where the Claimants whose services were no longer required by the Defendant were duly disengaged by Exhibit DWA 1-10 and paid their entitlements Exhibit DWC 1-74. The Claimants cannot therefore foist themselves on the Defendant and we urge this Honourable Court to so hold. On this contention counsel placed reliance on these cases. ONALAJA V AFRICAN PETROLEUM LTD (1991)7 NWLR (PT.147) 506; OYEDELE V IFE U.T.H (1990)6 NWLR (PT.155)194 C.A; IWUCHUKWU V NWOSU (1994) 7 NWLR (PT.357) P 379.; SAVANNAH BANK PLC V FAKOKUN (2002)1 NWLR (PT.749) 544 RATIO 9.

It is the contention of counsel that all that this Honourable Court needs to look at are the documentary evidence in other to ascertain whether both the employment letters and the disengagement letters emanated from the Defendant who was the employer of the Claimants, and if that is established, then the position of the Defendant have been proved, that the claimants were actually employed and now disengaged and as such the Claimants cannot force themselves on the Defendant. 

It is further argued that the Claimants in a desperate attempt to prove their case tendered in evidence their witness statement on oath dated 29th November 2017 (Exhibit CWA 1-8). It is submitted that the Claimants witness statement on oath which are mere pleadings or assertions made by the Claimants and has not been proved cannot constitute evidence to support their case as they have not proofed to the satisfaction of the court the averments made in their pleadings of the contentions upon which they rest their case and counsel urged the court to so hold.

Counsel insisted pleading cannot constitute evidence. On this counsel relied on the case of BANJOKO & ORS V. OGUNLAJA & ANOR (2013) LPELR-20373(CA).

Flowing from the above decision of the Court of Appeal, counsel contended that the law has always been that he who assert must prove as in Section 131(1) of the evidence Act 2011, and the Claimants cannot maneuverer their way by tendering Exhibit CWA 1-8 which is nothing more than pleadings of the Claimants. Counsel urged the court to so hold.

Issue three; whether from the evidence before this Honourable Court, the Claimant’s has proved all the facts contained in their statement of claim on balance of probability to be entitled to the reliefs claimed.

Counsel began argument on this issue by making reference to concept of balance of probability in civil cases as enunciated in the case of AGALA & ORS. V. OKUSIN & ORS (2010) LPELR-221(SC).

According to counsel from the above decision of the Apex Court, and the evidence before this Honourable Court, the Claimants have not been able to establish/prove their claims to be entitled to the reliefs sought. The letter of appointments (Exhibit CWB 1-227) tendered by the Claimants before this Honourable Court clearly stated that “This appointment which is subject to satisfactory work and conduct can be terminated on either side by giving one month’s notice or payment of one month’s salary in lieu of notice”.

It is contended that the position of the law is that parties are bound by the terms of their contractual agreement, and it is not the function of the court to rewrite the contract of the parties or impute that which is not within the contemplation of the agreement. See NWAOLISAH VS NWABUFOH (2011) NWLR (PT.1268) 600. It is contended that Exhibit CWB 1-227, which are the appointment letters of the Claimants signifying the fact that they were employed by the Defendant is not in contention as the case of the Defendant is that the Claimants were employees of the Defendant before the civil service reform introduced by the Federal Government of Nigeria in the year 2007 that required government agencies to downsize and the exercise affected the Claimants. It is further argued that the Claimants were dully disengaged by Exhibit DWA 1-10 which are the disengagement letters issued to them that finally determined the employer/employee relation between the Claimants and the Defendant.

The Claimants witnesses (PW1 & 2) during cross-examination were asked whether there I.D cards were before this Honourable Court but they answered “NO” which proves that they were no longer in possession of same because paragraph 3 of the Exhibit DWA 1-10 (Disengagement letter) states and we quote;

“You are to submit all Councils’ property (including I.D card) to the Head of your campus for those in the Campuses and the Secretary/Director of Administration for the Headquarters….”.

It is contended that  from the question put to the Claimants witnesses and the answer provided, it is crystal clear that the Claimants have complied with Exhibit DWA 1-10 above which provided that they are to submit whatever belongs to the Defendant in their possession which is why they could not produce their I.D cards or tendered same in evidence.

According to counsel the question that begs for answer is; if the Claimants are still in the employment of the Defendant, why did they not frontload and tender their staff identity cards which could have sufficiently proved that they were not disengaged as claimed nor did they receive their disengagement letters? The Claimants knowing fully well that their claims are baseless, frivolous and misleading, having complied with the instruction in their disengagement letter which directed the staff affected to submit their ID card, cannot now claim otherwise. It is the contention of counsel the Court of Appeal on whether an employer who hires an employee has the right to fire him at any time; power of an employee to terminate the contract of employment between him and his employer held in FRANCIS ARINZE V. FIRST BANK OF NIGERIA LTD (1999) LPELR-5648(CA).

On the claim for legal service counsel contended that looking at the purported receipts of payment for legal services (Exhibit CW1E) before this Honourable Court, none of the Claimants signed the receipts and also, the column indicating whether the purported payment was made in cash or cheque was not filled out on any of the receipts (Exhibit CW1E). The Court of Appeal on Whether a party who signs a document is bound by it held in OTTI v. EXCEL-C MEDICAL CENTRE LTD & ANOR (2019) LPELR-47699(CA) thus;

“It is rudimentary law that a person who signs a document is bound by it…

The position of the law from the above decision of the Court of Appeal is that a person who signs a document is bound by it which also means that a person who did not sign a document cannot be bound by same.it is the submission of counsel that the purported receipts of payment for legal services (Exhibit CW1E) were only signed by Peace Ambassadors Law Office who were the issuers and therefore does not prove any purported payment for legal services and we urge this Court to so hold. It is contended that exhibit CW1E which are the purported receipts of payment for legal services, tendered by the claimants which are signed by only the Claimants counsel but not by the Claimants cannot be said be to be properly executed by the Claimants and their counsel. It is the view of counsel for the defendant that even though Exhibit CW1E, emanated from the Claimants counsel office, it was not properly executed/signed to show that parties were in agreement as to the legal fee payable to Peace Ambassadors Law Office. A document is properly executed when parties places their mark or thumb impression on the document and without such a mark, the document is no properly executed in law and such is the fate of Exhibit CW1E. In support of this contention, counsel refers to the case of A.C.B PLC V HASTON NIG.LTD (1997)8 NWLR (pt.515) p.110 pp. 125-126 Paras. h-a.

It is the contention of counsel that it is a long aged principle of law that employment contract is governed by contract of employment, and in this present case is the appointment letters (Exhibit CWB 1-227) before this Honourable Court which shows that the Claimants were employed by the Defendant and they were subsequently disengaged by a letter of disengagement (Exhibit DWA 1-10) in accordance with the terms of the contract between the Defendant and the Claimants. In support of this argument counsel relied on the case of IHEZUKWU VS UNIVERSITY OF JOS (1990)7 SC (PT.1)123.

It is contended that from the decision of the Apex Court in the above mentioned case, it is very clear that the Defendant had established the fact that the Claimants were duly disengagement from the service of the Defendant as contained on Exhibit DWA 1-10 which is before the Court and in accordance with Paragraph 6 of Exhibit CWB 1-227.

In concluding his submission counsel contended that the Claimants have failed woefully to prove that they are still in the employment of the Defendant. The Defendant has established that the claimants were duly disengaged from its employment and their entitlement duly paid, therefore the Claimants cannot still claim to be in the employment of the Defendant. Counsel urged the court to resolve all the issues in favor of the Defendant, and dismiss the case of the Claimants with substantial cost as same is frivolous and vexatious.

THE SUBMISSION OF THE CLAIMANTS.

The Claimants formulated five issues for determination. They are:-

Whether the Claimants, some of whom the Defendant admitted that it promoted in March 2007 via the promotions letters dated 20th March 2007 (Exhibit CW1D 1-2) and even paid their February 2007 salaries via pay-slips, were ever disengaged or retired from the service of the same Defendant on 31st December 2006 via the purported disengagement letters dated 31st December 2006 (Exhibit DW1A 1-10).

Whether any probative value can, in law, be attached to Exhibit DW1A 1-10 (letters of disengagement dated 31st December 2006), Exhibit DW1B 1-12 (Clearance Forms), Exhibit DW1C 1 – 74 (Bulk Pay Slips purported to be made by the Office of the Accountant-General of the Federation), and Exhibit DW1D (document dated 12 September, 2011), this Honourable Court having ruled already during trial that the said Exhibits were not properly certified.

Whether any probative value can be accorded to Exhibit DW1C 1 – 74 (Bulk Pay Slips purported to be made by the Office of the Accountant-General of the Federation) in the absence of the Defendant calling its maker to give evidence on/about its content and in the absence of any foundation laid by the Defendant on the non-procurement of the maker to give evidence.

Whether any probative value can be accorded to Exhibit DW1D (document dated 12 September, 2011) in the total absence of the LIST and BANK DETAILS it claims to forward/convey, and in the absence of the NAME OF THE DEFENDANT on it as its source/originator as claimed by the Defendant.

Whether the Claimants, on preponderance of the evidence they adduced at trial, have proved their claims to be entitled to the grant of their reliefs/claims sought in this suit.

ARGUMENT:

Issue one, Whether the Claimants, some of whom the Defendant admitted that it promoted in March 2007 via the promotions letters dated 20th March 2007 (Exhibit CW1D 1-2) and even paid their February 2007 salaries via pay-slips, were ever disengaged or retired from the service of the same Defendant on 31st December 2006 via the purported disengagement letters dated 31st December 2006 (Exhibit DW1A 1-10).

Joseph I. Ilora, Esq; counsel for the claimants in arguing issue one, contended that the position of the law is that facts admitted need no further proof. The defendant admitted in its pleadings and its Final Written Address that it promoted some the Claimants in March 2007. In support of  this contention counsel relied on the case of INNTRACO UNIVERSAL SERVICES LTD V. UNION BANK (2020) LPRLR - 49588 (CA), where the Court of Appeal inter alia recently re-echoed the position of the law that admitted facts need further proof; and that an admitted fact is the best evidence against the party making it:

The defendant however turned around to say that it did the said promotions in arrears. This goes to say that once the Claimants have shown/proved that the said March 2007 promotion of some of them were NOT done in arrears, they (the Claimants) have ipso facto proven that they were employees of the Defendant as at the 20th March 2007 the said promotions were made, and thus were never disengaged by the Defendant in December 2006.

During trial, the Claimants tendered their respectively pleaded (139) employment letters; and the said employment letters were admitted in evidence and marked Exhibit CW1B 1-139. The Defendant, in its Statement of Defence, is challenging Claimants’ claim of being its employees on the premise/claim that it (the Defendant) disengaged the Claimants from its employment in December 2006. But in same Statement of Defence, the Defendant made several material admissions over some basic facts pleaded by the Claimants in their claims, which admissions are to the effect that, as at February 2007 and March 2007, Claimants are/were Defendant’s employees. The said admissions of the Defendant clearly counter/negate Defendant’s basic tenets of defence, and thus are fatal and detrimental to the case of the Defendant. On the contrary therefore, the said admissions offer strong support to Claimants’ claims such that Claimants can securely rest their case on the said admissions of the Defendant.

It is contended by counsel that the implication of the above admissions of the Defendant is that the Claimants were its employees as at the year 2007.As held by the Supreme Court in KOMOLAFE V. FRN (2018) LPELR - 44496 (SC), “…admitted facts require no further proof....”.Thus, in the absence of any subsequent termination of Claimants’ employments in or after the year 2007, they remain employees of the Defendant till date. 

Defendant’s claim in this suit is that it disengaged the Claimants from its employment in December 2006. But Defendant’s cited admissions above rather prove the contrary. The said admissions in fact have proven the case of the Claimants by affirming that:

Many of the Claimants were paid their February 2007 salaries by the Defendant via pay-slips.

Subsequent to the payment of the February 2007 salary, the Defendant informed the Claimants of the approval of salary increment for them and indicated its intention to implement same forthwith.

Many of the Claimants were promoted by the Defendant in March, 2007 with promotion letters dated March 20, 2007.

The Defendant congratulated the promoted claimants in the said promotion letters, and stated its hope that the said promotions will spur them (the Claimants) further in the discharge of their duties to the Council.

The Defendant, in the same promotion letters, expressed its hope for a better future working relationship with the promoted claimants beyond April 2007.

It is contended with the above glaring admissions the effects of which are clear; the Defendant unequivocally admitted in its pleadings that as at March 20, 2007 when the said promotions were made by it, the Claimants are/were its employees. It is thus clear that promotions are given to employees in service; and not otherwise. Counsel urged the court to so hold.

It is further contended that during trial, the Claimants tendered the said promotion letters dated March 20, 2007; and same were admitted in evidence and marked Exhibit CW1D 1-2. While cross-examining the sole Witness of the Defendant (DW1) on the said Exhibit CW1D 1-2, more admissions began to roll in through the said DW1. Thus, in the viva voce (live voice) evidence of the DW1 on 20th July 2020, the DW1, Mrs Rita O. Areh admitted (during cross-examination) that the Claimants were still in public service under the employment of the Defendant as at March 2007. It is argued that by the above admissions of the Defendant in its pleadings and by that of DW1 during trial, it is very clear and beyond doubt that the Claimants were employees of the Defendant, at least as at 20th March 2007. And, with respect to the Claimant being still employees of the Defendant (at least as at 20th March 2007), the said promotion letters (Exhibit CW1D 1-2) are res ipsa loquitor. It is further stated/submitted that the remissions of Claimants’ pensions were made up to “December 2014”, on its own, is already an evidential surplusage. Counsel urged the court to so hold.

On the argument of Defendant’s counsel at paragraphs 2.7 and 8.15 of Defendant’s Final Written Address that the said promotion letters it issued to the Claimants dated March 20, 2007, were done in arrears, even after its sole Witness (DW1) has admitted on 20th July 2020 (during cross-examination) that the Claimants were still in public service under the employment of the Defendant as at March 2007, it we contended that the said promotions were NOT by any means done in arrears. The said admission of DW1 is in addition to Defendant’s own earlier admission of paragraph 13 of Claimants’ Statement of Facts (at paragraph 11 of its Statement of Defence) which admission is to the effect that it (the Defendant), in the said promotion letters, congratulated the promoted claimants and stated its hope that the said promotions “will spur them further in the discharge of their duties to the Council”. The said promotion letters were indeed futuristic in its expressed hope and expectations. If the said promotion letters were meant to “spur” the Claimants “further in the discharge of their duties to the Council” as was clearly stated on all of them, then they were never given or done in arrears as argued by the Defendant. Counsel urged the court to so hold.

It is the contention of counsel that it remains true that unless and until it is proven that there is/was a subsequent lawful termination of the employment of the Claimants after 20th March 2007, the Claimants are and remain public servants under the employment of the Defendant. More so, the said employments of the Claimants, being that they are public servants, enjoy statutory flavor. They are provided by statute. And on the authority of COMPTROLLER GENERAL OF CUSTOMS & ORS V. GUSAU (2017) LPELR - 42081 (SC), Claimants’ said employments “can only be terminated in the manner allowed by the very statutes that provided for them”. 

Counsel contended there is nothing before this Court suggesting or indicating that the employments of the Claimants under the Defendant were ever terminated after 20th March 2007. The Claimants therefore, since 20th March 2007, remain public servants under the employment of the Defendant until a lawful termination letter truncates the contract. But no lawful termination has truncated their contracts till date.

Counsel posited that Claimants were NEVER DISENGAGED OR RETIRED from the service of the Defendant on 31st December 2006 via any disengagement letter(s) dated 31st December 2006 (Exhibit DW1A 1-10); and that the said Exhibit DW1A, 1-10 were never served on or received/acknowledged by the Claimants.

It is the contention of counsel that under Public Service Rules and/or practice, promotions are given to those in the active service of the employer; and NOT to the disengaged, retired, or ex-employees. Salaries are also released and paid by the Federal Government of Nigeria to public servants in active service; and NOT to persons disengaged or retired. The fact that Claimants were being paid their respective salaries up to February 2007 as serving public servants under the employment of the Defendant is sufficient proof that they (the Claimants) are/were still public servants up to the said February 2007, to say the least. This fact was already admitted by the Defendant in its pleadings where it admitted that many of the Claimants were paid their February 2007 salaries by the Defendant via pay-slips. This fact was further established by Claimants during trial through Akozor Gladys’ Zenith Bank Statement of Account (Exhibit CW1C 1-2) tendered and admitted in evidence.

Counsel contended that it is surprising that the Defendant, at paragraph 5 of its Statement of Defence (and against Claimants’ position that they are serving public servants under its employment), averred that the Claimants were disengaged from its service and even pleaded letters of disengagement purported to have been accepted and signed by the Claimants. The claimed acceptance/signing of the said letters of disengagement by the Claimants was later negated and countered by Defendant’s sole Witness (DW1). DW1, when asked (under cross-examination) whether the tendered letters of disengagement (Exhibit DW1A 1-10) contain any signature(s) of the Claimants, said “NO”. DW1’s said answer in the negative shows that the claimed letters of disengagement (Exhibit DW1A 1-10) were never given to the Claimants and were never received or accepted by the Claimants, hence the absence of any form of acknowledgment signing/endorsement thereto by the Claimants. And the fact that the said letters of disengagement (Exhibit DW1A 1-10) tendered by the Defendant are not acknowledged copies of any original gives credence to their being unissued to anybody. This further supports the view that they are indeed fabrications. Again, whereas the tendered letters of disengagement (Exhibit DW1A 1-10) were respectively dated December 31, 2006; and whereas the tendered letters of disengagement were stated on their faces to be “with effect from 31st December, 2006”; and whereas the tendered letters of disengagement were also stated on their faces to be “in compliance with the directives of BPSR” but which “directives of BPSR” is stated therein to be “in conformity with Federal Government Reform Policy”; the Defendant, on the contrary, averred at paragraph 2 of its Statement of Defence that the civil service reform (it cited as reason for disengagement) was “introduced by Federal Government of Nigeria in the year 2007”. DW1 also confirmed her deposition in paragraph 3 of its Statement on Oath that the said Civil Service reform that “required Government Ministries, Department and Agencies to downsize its workforce” was “introduced by Federal Government of Nigeria in the year 2007”. 

It is contended going by Defendant’s averment in paragraph 2 of the Statement of Defence and DW1’s deposition in paragraph 3 of her Statement on Oath that the claimed “Civil Service reform” was “introduced by Federal Government of Nigeria in the year 2007”, the natural and logical implication/conclusion is that the said “Civil Service reform” was NOT YET introduced by Federal Government of Nigeria in 2006 when the tendered letters of disengagement (by which the Defendant claims it disengaged the Claimants) were made. What a fatal and detrimental contradiction and inconsequentiality which have divested DW1 of every form of credibility?

It is the contention of counsel that by the implication of the above cited contradiction and inconsequentiality (which obviously is untenable and unacceptable in law), the purported disengagement of the Claimants made in 2006 took place before the claimed Federal Government Reform Policy or Civil Service reform (upon which the said disengagement was allegedly based) was introduced in the year 2007. That goes to say that even if one holds that the said letters of disengagement dated December 31, 2006 (Exhibit DW1A 1-10) are not fabrications, one clear indisputable fact is that they are not letters predicated on or resulting from the alleged Federal Government Reform Policy stated by the Defendant as a policy “introduced by Federal Government of Nigeria in the year 2007”. And put simply, the purported disengagement which allegedly happened in 2006 predated the 2007 “reform” claimed to have informed and directed same disengagement. This is standing logic and reasoning on their heads. The purported letters of disengagement cannot be said to have been informed or instructed by the claimed Federal Government Reform Policy or the civil service reform already pleaded by the Defendant as a policy introduced “in the year 2007”. The tendered letters of disengagement (Exhibit DW1A 1-10) are thus fabrications. Counsel urged the court to uphold this position.

And ASSUMING WITHOUT CONCEDING that the said letters of disengagement dated December 31, 2006 (Exhibit DW1A 1-10) resulted from the alleged 2007 Federal Government Reform Policy (which actually is an impossibility), it is important to state, with due respect, that the position of the law is that a statement of policy CANNOT override or wipe away the specific provisions of the Public Service Rules. This is the decision of the Supreme Court in COMPTROLLER GENERAL OF CUSTOMS & ORS V. GUSAU (2017) LPELR - 42081 (SC).

Having said that and being that the Defendant’s case/defence is woven around the tendered letters of disengagement (Exhibit DW1A 1-10), the above cited contradictions are not only material, but fatal and detrimental to the case of the Defendant. on this contention counsel relied on the case of STATE V. AHMED (2020) LPELR - 49497 (SC).

It is contended that the above cited contradictions in the evidence of the Defendant are fundamental and therefore fatal to the defence of the Defendant because every other defence or evidence of the Defendant, be it the purported Clearance Forms (Exhibit DW1B 1-12), the purported Letter to Bureau for Public Service Reforms dated 12 September, 2011 (Exhibit DW1D), or the purported Pay Slips from Office of Accountant General of the Federation (Exhibit DW1C 1 – 74), is/are based on Defendant’s claim/defence that the Defendants disengaged the Claimants via the tendered letters of disengagement (Exhibit DW1A 1-10). And if the tendered letters of disengagement (Exhibit DW1A 1-10) fails to stand the test of evidential probation and/or evaluation, then the rest of Defendant’s defence or evidence which are built upon and connected with the tendered letters of disengagement (Exhibit DW1A 1-10) must equally fail and fall.

Counsel urged the court to reject the evidence as a result of contradiction. On this counsel relied on the cases of ZAKIRAI V. MUHAMMAD & ORS (2017) LPELR - 42349 (SC), Kayili V. Yilbuk & Ors (2015) LPELR -24323(SC). It is further argued that where the case or defence of a party is woven around the Exhibit riddled with such contradictions, the apex Court insists in ETIM V. AKPAN & ORS (2018) LPELR -44904 (SC)  that the party’s case or defence must fail:

According to counsel in the circumstance, the defence of the Defendant is woven around the tendered letters of disengagement (Exhibit DW1A 1-10). But the Defendant has failed to discharge the onus of proof placed on it by its assertion/tendering of the said letters of disengagement (Exhibit DW1A 1-10). The above cited contradictions in and about the tendered Exhibit DW1A 1-10 are clearly material. And being material, they are fatal. 

On attempting or purporting to terminate an employment clothed with statutory flavour by backdating of documents, the Court of Appeal, in NNADI  V. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR - 22910 (CA) stated:

"I do not think that in an employment with statutory flavour, a boss, assuming the office of employer, can simply wake up with imperial powers and issue a letter of termination or dismissal to an employee, bringing to an end his services, with a backdating effect, as purportedly done by 1st Respondent in this case, in complete disregard of the procedures stipulated in the conditions of service governing the contract of service. This is because employees who are members of the public or civil service and related services have a more secure and jealously guarded tenure and their position is not that of mere master and servant relationship,…. " Per MBABA ,J.C.A ( Pp. 23-24, para. C)

It is the contention of counsel that the confession of Defendant’s sole Witness (DW1) on the backdating of the said letters of disengagement (Exhibit DW1A 1-10) has definitively determined this matter in favour of the Claimants. The legal principle/maxim, “confessio facta in judicio omni probatione major est” “a confession made in court is of greater effect that any proof” is apt and applicable here; and thus holds true in the circumstance. It is submitted that beyond this Defendant’s sole witness’ confession on backdating of Exhibit DW1A 1-10, no further proof on the non-tenability of Exhibit DW1A 1-10 in law is needed. Counsel urged the court to so hold.

Counsel in reaction to Defendant’s argument under its Issue 1 in its Final Written Address where Defendant’s entire argument is based on the claimed statements on the Employment Letters of the Claimants to the effect that it (the Defendant) can validly terminate Claimants’  employment with it either by giving one month’s notice of termination to Claimants or by paying the Claimants one month salary in lieu of notice, it is contended that the Claimants are Public Servants under Defendant’s employment whose employments, by implication, are guided by Public Service Rules and enjoy statutory flavor.

ASSUMING WITHOUT CONCEDING that the statutory nature/flavour of Claimants’ employments and the applicability of Public Service Rules should be kept aside in the circumstance, it is contended that Defendant’s reliance on the claimed statements on the Employment letters of the Claimants, as argued by the Defendant especially at paragraphs 5.4 -5.7 of its Final Written Address, do not avail the Defendant as the Defendant has failed to prove that it gave the Claimants the said/purported Letters of Disengagement in the first place; in addition to the Defendant NOT pleading as a defence that it ever gave one month’s notice of termination to Claimants or paid the Claimants one month salary in lieu of notice. Since the Defendant FAILED to prove that it ever gave the Claimants the said/purported Letters of Disengagement, the question of how (i.e. which of the 2 alternate ways) Claimants were disengaged does not even arise at all because disengagement must first be proven to have been communicated to the Claimants before the Court can begin to ask or check whether or not Claimants were properly disengaged. But the Claimants were not given any Letter(s) of Disengagement and the Defendant did not prove otherwise during trial. Moreover, the Defendant DID NOT in any way plead in its defence that it either gave one month’s notice of termination to Claimants or paid one month salary in lieu of notice to the Claimants for the Court to even venture to ascertain which of the two alternatives it bases its argument on. And facts not pleaded go to no issue. Such un-pleaded facts can therefore not be entertained or considered by the Court in its evaluation of evidence in this suit. Defendant’s entire arguments under its Issue 1 therefore do not in any way avail the Defendant or help its case. Counsel urged the court to so hold.

Counsel urged the court to resolve Issue No. 1 by holding that the Claimants are still public servants under the employment of the Defendant on the facts of the admissions of the Defendant in its pleadings, on the strength of the viva voce evidence of DW1 on 20th July 2020 that the Claimants were still in public service under the employment of the Defendant as at March 2007, and on the strength of the fact that many of them were indeed promoted by the Defendant in March 2007via the promotions letters dated 20th March 2007. Counsel urged the court to hold that the Claimants were NEVER given any disengagement letter(s) (Exhibit DW1A 1-10); that the Claimants NEVER received any disengagement letter whatsoever from the Defendant; that the tendered disengagement letters dated 31st December 2006 (Exhibit DW1A 1-10) are grossly ridden with contradictions that are material and fatal; that the tendered disengagement letters must be rejected; and that the Claimants were thus NEVER DISENGAGED from the service of the Defendant on 31st December 2006via the said disengagement letters dated 31st December 2006 (Exhibit DW1A 1-10) or via any disengagement letter(s) whatsoever. 

Issue two; Whether any probative value can, in law, be attached to Exhibit DW1A 1-10 (letters of disengagement dated 31st December 2006), Exhibit DW1B 1-12 (Clearance Forms), Exhibit DW1C 1 – 74 (Bulk Pay Slips purported to be made by the Office of the Accountant-General of the Federation), and Exhibit DW1D (document dated 12 September, 2011), this Honourable Court having ruled already during trial that the said Exhibits were not properly certified.

In arguing this issue counsel contended that the position of the law is that the Court must not attach any probative value to a secondary copy of public document that is/was not properly certified as true copy of the original. The stipulation of the law is that the said secondary copy of public document must not only be certified, but that it must be “properly” certified in order to be admissible in law as a piece of evidence. This essence/necessity of certifying a secondary copy of public document properly for admissibility was clearly upheld by the Supreme Court in  EMEKA V. CHUBA-IKPEAZU & ORS (2017) LPELR - 41920 (SC) thus:

"…. The whole essence of the Court's insistence on the scrupulous adherence to the above certification requirement of public documents is to vouchsafe their authenticity vis-a-vis the original copies, to third parties, G and T. I Ltd and Anor v Witt and Bush Ltd (2011) LPELR -1333 (SC) 42, C-E. That explains why, in the absence of the original document, only such properly certified copies are admissible as secondary copies of public documents "but no other kind of secondary evidence." …. Put differently, in the absence of the original documents themselves, only such properly certified copies are admissible as secondary copies of such public documents "but no other kind of secondary evidence." …. Per NWEZE ,J.S.C ( Pp. 61-65, paras. F-C) [Emphasis supplied]

Counsel contended that none of the secondary copies of the public documents tendered by the Defendant’s sole Witness (DW1) during trial was properly certified as required Section 104 of the Evidence Act, 2011. Particularly, the DW1 tendered Exhibit DW1A 1-10 (letters of disengagement dated 31st December 2006), Exhibit DW1B 1-12 (Clearance Forms), Exhibit DW1C 1 – 74 (Bulk Pay Slips purported to be made by the Office of the Accountant General of the Federation), and Exhibit DW1D (document dated 12 September, 2011). The said documents/Exhibits tendered are all secondary copies of public documents. None of them was properly certified. Following the objection of Counsel to Claimants upon their being tendered, the Court respectively ruled on each of them as NOT BEING PROPERLY CERTIFIED. They were however admitted in evidence, but NOT under Section 104 of the Evidence Act, 2011 or under any section of Evidence Act, 2011.

Counsel urged the court not to attach any probative value or act upon the documents. In support of this contention counsel relied on the case of OKONJI & ORS V. NJOKANMA & ORS (1991) LPELR - 2476 (SC). Counsel also stated that by the decision in SUBERU V. STATE (2010) LPELR - 3120 (SC), an inadmissible evidence ought to be discountenanced by the Court and must be excluded from the case under consideration:

According to counsel since this honourable Court has ruled during trial that Exhibit DW1A 1-10 (letters of disengagement dated 31st December 2006), Exhibit DW1B 1-12 (Clearance Forms), Exhibit DW1C 1 – 74 (Bulk Pay Slips purportedly made by the Office Accountant General of the Federation), and Exhibit DW1D (document dated 12 September, 2011) were not properly certified and therefore were in NON-COMPLIANCE with Section 104 of the Evidence Act, 2011, it is trite that the Court cannot act upon any of the said Exhibits. Neither should the Court attach any probative value or weight to any of them. 

Issue three; Whether any probative value can be accorded to Exhibit DW1C 1 – 74 (Bulk Pay Slips purported to be made bythe Office of the Accountant-General of the Federation) in the absence of the Defendant calling its maker to give evidence on/about its/their content(s) and in the absence of any foundation laid by the Defendant on the non-procurement of the maker to give evidence.

It is submitted that section 83 of Evidence Act, 2011 is to the effect that it is only the maker of a document that can give evidence on its contents. It also remains trite law that it is the party tendering documents in bulk in court that has the duty to link each of them to the aspect of his/her case to which it relates. This is the holding of the Supreme Court in OKEREKE V. UMAHI & ORS (2016) LPELR - 40035 (SC):

Counsel submitted that exhibit DW1C 1 – 74 is the bulk of Pay Slips tendered by DW1 and said to be from the Office of the Accountant-General of the Federation. It is a fact that the Defendant failed during trial to call the maker of the tendered bulk of Pay Slips (Exhibit DW1C 1 – 74) to give evidence on the content of the said Exhibit DW1C 1 – 74. It is our position therefore that the failure of the Defendant to call the maker of Exhibit DW1C 1 – 74 to give evidence on the content of the said Exhibit DW1C 1 – 74, is detrimental and fatal to the defence of the Defendant as far as the said Exhibit DW1C 1 – 74  is/are concerned. Consequently, no probative value can be accorded to Exhibit DW1C 1 – 74 since the Defendant failed to call its maker to give evidence on/about its content after knowing that the authenticity of the said Exhibit DW1C 1 – 74, was challenged by Claimants.

Counsel argued that it is on record that Claimants challenged the authenticity of the said bulk of Pay Slips (Exhibit DW1C 1 – 74), pointing out, in addition to their not being properly certified, the fact that the said bulk of Pay Slips contains numerous strange names not known to be among the Claimants in this suit. Again, on 20th July 2020, Defendant’s sole Witness (DW1 who is an employee of the Defendant) affirmed, under cross-examination, that the Defendant was not the maker of Exhibit DW1C 1 – 74. Also under same cross-examination, DW1 admitted that the said bulk of Pay Slips she tendered (Exhibit DW1C 1 – 74) contain Pay slips bearing numerous strange/fictitious names not known to be among the Claimants in this suit. That being the case, DW1 could not be cross-examined on the contents of the said Exhibit DW1C 1 – 74 or on why the presence of numerous strange names littered  the bulk of Pay Slips the Defendant has described in its pleadings as being of and belonging to the Claimants.

Counsel argued that by the provision of section 83 of Evidence Act, 2011 and on the authority of OKEREKE V. UMAHI & ORS (Supra), it is only the maker of the tendered bulk of Pay Slips (Exhibit DW1C 1 – 74) that can give evidence and be cross-examined on the contents of the said Exhibit DW1C 1 – 74 and on which names on/among the tendered Pay slips are non-Claimants and strangers to this suit. More so, it is not the duty of the Court to delve into the tendered bulk (Exhibit DW1C 1 – 74) to begin to check and sift which names/ones are non-Claimants in this suit and which Pay Slips are therefore irrelevant and unconnected with this suit. In EMMANUEL V. UMANA & ORS (2016) 40037-LPELR (SC), the apex Court made it clear, with respect to the duty of the party tendering documents in bulk, that mere dumping of exhibits on the Court without tying them to the relevant aspects of the party’s case is not enough:

It is further contended as it is not the Court’s function to speculate on what the documents tendered in bulk were meant to specifically establish or prove, the Supreme Court further held in OKEREKE V. UMAHI & ORS (2016) (Supra) that failure of the party who tendered bulk documents to link the documents with what he/she pleaded is a justification for the Court or tribunal to refuse to act on them:

It is contended, oral evidence to link Exhibit DW1C 1 – 74 with what was pleaded in the Statement of Defence can only be led by the maker of the said Exhibit DW1C 1 – 74 to the exclusion of any other person. But the Defendant did not bother to call the maker of Exhibit DW1C 1 – 74 to give evidence on the content of the said Exhibit DW1C 1 – 74 or about the strange names thereon, despite the fact that the Claimants had already challenged the authenticity of the said Exhibit DW1C 1 – 74. And no foundationwas laid by the Defendant as to the maker’s absence from this duty to giving evidence. On this contention counsel relied on the case of G. CHITEX INDUSTRIES LTD V. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) LPELR - 1293 (SC), where it was held:

"Where a document is challenged and impugned as unauthentic, the maker of the document should be called to support the document, otherwise no weight should be attached to it." Per MUSDAPHER ,J.S.C (Pp. 18-19, paras. F-A).

It is further argued on effect of failure to call the maker of a document where the authenticity of same is challenged, the apex Court, in OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR - 24803 (SC) held:

''The exhibits tendered from the bar without calling the maker thereof were also held to attract no probative value because there was no opportunity given the respondents to cross examine upon for purpose of testing their veracity. See Saeed v. Yakowa (2011) All FWLR (Pt. 692) 1650....'' Per OGUNBIYI ,J.S.C ( P. 153, paras. A-C ) [Emphasis supplied]

And, in ONYEKWULUJE & ANOR V. ANIMASHAUN & ANOR (2019) LPELR - 46528  (SC), the Supreme Court recently held that failure to call the maker of a document where the authenticity of same is challenged is fatal, especially where the document is a fact in issue:

Issue four; whether any probative value can be accorded to Exhibit DW1D (document dated 12 September, 2011) in the total absence of the LIST and BANK DETAILS it claims to forward/convey, and in the absence of the NAME OF THE DEFENDANT on it as its source / originator as claimed by the Defendant.

Counsel contended the position of the law is that he who asserts must prove. This is the holding of the Supreme Court in SHARING CROSS EDUCATIONAL SERVICES LTD V. UMARU ADAMU ENTERPRISES LTD & ORS (2020) LPELR - 49567 (SC): Exhibit DW1D (document dated 12 September, 2011) tendered by the DW1, is purportedly a covering/forwarding letter about the forwarding of the Hard Copy and Soft Copy of the LIST and BANK DETAILS of the staff severed from the Defendant to the Bureau for Public Service Reform. The said LIST and BANK DETAILS are the supposed essence and portent of Exhibit DW1D. Again,Whereas the Defendant at paragraphs 12 and 13 of its Statement of Defence asserted that it discharged the responsibility of submitting the names of staff that are no longer entitled to pension contributions via the said Exhibit DW1D, a close observation of the said Exhibit DW1D reveals that there is nothing on the face of it to show that it even originated from the Defendant in the first place, contrary to Defendant’s claim. DW1 admitted under cross-examination that the name of the Defendant is not on Exhibit DW1D. Thus, the said Exhibit DW1D does not contain the name of the Defendant either as the place / address from where it emanated, or as the institution to which the therein signatory is a staff or employee. Exhibit DW1D was signed for “Director General”; but there is nothing its face to show which institution’s Director Generalit was purportedly is signed for. There is practically nothing on the face of Exhibit DW1D to show that it has anything to do with the Defendant. The Court, of course, will not work with speculation, and will not work on such in/about the nature or circumstance of the said Exhibit DW1D.

In JIMOH V. HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR -  46329 (SC), the apex Court maintained that he who fails to prove the existence of what he has asserted will not be entitled to the judgment of the Court. It is contended the Defendant has failed to prove that Exhibit DW1D emanated from it, and that it submitted the names of staff that are no longer entitled to pension contributions via Exhibit DW1D. Neither did the Defendant prove that it ever submitted the names of the Claimants as those who are no longer entitled to pension contributions. On the authority of JIMOH V. HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR - 46329 (SC)(Supra), the Defendant “shall not be entitled to the verdict or judgment of the Court" as far as Exhibit DW1D (the document dated 12 September, 2011) is concerned. Counsel urged the Court to so hold.

It is also contended that on 20th July 2020, DW1 affirmed/admitted under cross-examination that the claimed LIST and BANK DETAILS of the staff severed from the Defendant and referred to in Exhibit DW1D as purportedly forwarded to the Bureau for Public Service Reform alongside Exhibit DW1D were NOT tendered with the said Exhibit DW1D or tendered at all; and that the claimed LIST and BANK DETAILS of the staff severed from the Defendant referred to in Exhibit DW1D are not before this Court. The said LIST and BANK DETAILS have remained unseen and a mystery. The legal principle, nihil habet forum ex scena = “the court has nothing to do with what is not before it”is very apt here, and thus holds true in the circumstance. We urge the Court to so hold.

More so, Defendant’s sole Witness also admitted under cross-examination that the Federal Government of Nigeria did not at any time specify the name or names of any particular individual staff to be severed by the Defendant. The unseen LIST and BANK DETAILS referred to in Exhibit DW1D, not being before this Court, remains a mystery; and the Court cannot say whether or not the names of the Claimants are contained in an unseen list/details. Moreover, the Court is even barred from acting on an unpleased document referred to in a pleaded document. This is the decision of the Supreme Court in OBA OYEDIRAN V. OBA ALEBIOSU II & ORS (1992) LPELR - 2868 (SC) held:

"...it is settled law that reference in a pleaded document to another document which is itself not pleaded, is not tantamount to pleading that other document and it is not open to any court to act on such unpleaded document. (see Lawal v. G.B. Ollivant (1972) 1 All NLR 207). So it is in this case." Per KUTIGI ,J.S.C ( P. 11, paras. E-F )

And on whether reference in a pleaded document to another document which is not pleaded amounts to pleading that other document, the Supreme Court held in AKANDE V. ALAGA (1988) LPELR -317 (SC): 

"This Court has held in Lawal v. G.B. Ollivant 1972 3 SC 124 that reference in a document pleaded to another document not pleaded does not render the latter a document pleaded...." Per AGBAJE ,J.S.C ( Pp. 20-21, paras. G-B) [Emphasis supplied]

With respect to Exhibit DW1D counsel maintains that there is nothing before this court to show and/or identify who and who are the members of staff severed from the employment of the Defendant. The Defendant has thus failed to prove that the names of the Claimants (or their bank details) are among those (if any) that the Federal Government of Nigeria at any time directed it to severe from its employment. Interesting enough, DW1 admitted under cross-examination that there was Public Service Rules en force by the years 2006 and 2007; and that “downsizing” is/was NOT  stipulated in Public Service Rules as a ground or reason for dismissing a public servant.

More so, the purported letter dated July 25, 2011 and referred to in Exhibit DW1D, to which Exhibit DW1D is supposed to be a reply, is also NOT before the Court. Thus, the Defendant has failed to prove that the names or bank details of the Claimants are among the names or bank details (if any) which it claimed  to have forwarded to Bureau for Public Service Reform by/with Exhibit DW1D. Again, on the authority of JIMOH V. HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018) (Supra), the Defendant “shall not be entitled to the verdict or judgment of the Court" as far as Exhibit DW1D is concerned. Counsel urged the court to so hold.

On whether any probative value can be accorded to Exhibit DW1D with respect to its/their claimed content, and in the total absence of the name of the Defendant on it as its source or originator as claimed by the Defendant, counsel urged the court not to attach any probative value to Exhibit DW1D. 

Issue five; Whether the Claimants, on preponderance of the evidence they adduced at trial, have proved their claims to be entitled to the grant of their reliefs / claims sought in this suit.

It is the contention of counsel that the Supreme Court, on the Standard of Proof required in a civil case and on how a court arrives at the decision as to which evidence has more weight, has held in HUSSENI & ANOR V. MOHAMMED & ORS (2014) LPELR - 24216 (SC), per Per NGWUTA, J.S.C (Pp. 30-31, paras. G-B) that: "…civil cases are determined on the balance of probabilities which in itself means preponderance of evidence….”

It is the contention of counsel that the Claimants have, on the preponderance of the evidence they adduced at trial, proved their claims in this suit. In establishing that the Claimants have proved their claims on the preponderance of the evidence they adduced at trial i.e. on balance of probabilities, counsel adopted and incorporate as part of his submissions under this Issue No. 5, his above arguments and positions under issues Nos. 1, 2, 3, and 4 above.

It is also contended by the quality or probative value of the testimony of the witnesses during trial, the evidence adduced by Claimants’ witnesses weighs heavier than the evidence adduced by Defendant’s witness. It is further argued that the Claimants have, by the preponderance of their evidence, proven their claims in this suit with the above captured proofs, facts and submissions. They have proven that they NEVER received any letters of disengagement dated 31st December 2006 (Exhibit DW1A 1-10). Neither were they ever disengaged by the Defendant at any subsequent time. 

Counsel insisted facts not disputed stands admitted, in support of this contention reliance was placed on the case of OGAR & ORS V. IGBE & ORS (2019) LPELR - 48998 (SC), where the Supreme Court on facts not disputed are taken as admitted, and facts admitted are taken as established: stated, thus:-

"...The Plaintiffs, now Appellants, failed to join issues on these adverse facts. The law is trite: facts not disputed are taken as admitted, and facts admitted are taken as established. They need no further proof…."Per EKO ,J.S.C ( P. 11, paras. A-B) [Emphasis supplied]

In opposition to the Defendant’s arguments in paragraphs 6.1 – 6.7 of its Written Address on the testimony of CW1 (Gladys Akozor), it is submitted that a Cleaner is a Steward. Both terms are complementary. They are not contradictory or conflicting. As such, there is no contradiction in the testimony of CW1. Also, the tendered Employment letter of CW1 never stated that she works in the Catering Department. That impression is Defendant’s willful attempt to mislead the Court. It is an attempt by the Defendant to impose falsehood on CW1. All CW1’s testimony was the truth. As a Cleaner, CW1 is a Steward; but she never worked in the Catering Department as alleged by the Defendant. Nor was she ever a cook as alleged by DW1 during trial. More so, CW1’s tendered Zenith Bank Statement of Account remains un-refuted even after the Defendant subpoenaed the Branch Manager of Zenith Bank, but later declined after verifying CW1’s testimony as true.

Again, the Claimants, CW1 inclusive, joined issues with the purported Clearance Forms pleaded by the Defendant; and further established that they (Claimants) did not sign the said forms. In addition to the purported Clearance Forms not being properly certified as we have exposed during trial, the Claimants already stated in paragraph 6 of their Reply to Statement of Defence that the said forms are fabrications. It is the contention of counsel that the essence of Reply to Statement of Defence, on the authority of OSHODI & ORS V. EYIFUNMI & ANOR (2000) LPELR - 2805 (SC), (Supra), is to “to lead evidence in rebuttal….”The fact of the said forms being fabrications were proven by the Claimants to be evident from the purported issuing date of the said forms (i.e.February 3, 2006) which unbelievably was 8 MONTHS distant from and earlier to the 31st December 2006 date on the purported disengagement letters being claimed by the Defendant. According to Black’s Law Dictionary (Eight Edition), precisely at page 422, “DATE” means “The day when an event happened or will happen.” The contents of a document are therefore taken in law as having been made the day the document is/was dated. The said forms having been dated February 3, 2006, the only deducible interpretation in law is that the said forms were issued to the Claimants on February 3, 2006, without more. From decipherable facts, the issuing date of February 3, 2006, beyond being 8 MONTHS distant from and earlier to the 31st December 2006 date on the purported disengagement letters being claimed by the Defendant, occurred even while/when the claimed 2007 Civil Service Reform was neither in view nor contemplated by any imagination. It is submitted that any inconsistency or contradiction on the said Clearance Forms should be resolved against the Defendant; and no content of the purported Clearance Forms should be imposed on any of the Claimants as the said forms are riddled with inconsistencies and material contradictions impugning the authenticity of each of them. We urge the Court to so hold.

On the Issue 3 raised by the Defendant, it is submitted   that the issue of “Whether an unwilling employer can be compelled to keep an employee” can only arise where disengagement is established as communicated to an employee; and not where it is not communicated at all as in the instant case. The Defendant has failed to prove/establish that it gave/served the purported letters of disengagement to the Claimants. That being the case, Defendant’s Issue 3 does not arise. It is therefore irrelevant and uncalled for in the determinations in this case. Defendant’s Issue 3 should therefore be totally discountenanced by this Court. 

It is further argued that the purported Bureau of Public Service Reforms (BPSR) Social Assistance/Pre-Retirement Training Workshop, 2006 Certificates (Exhibit DW1E 1-5) tendered by the Defendant are also fabrications as stated by the Claimants at paragraph 18 of their Reply to Statement of Defence. This is because the essence of Reply to Statement of Defence, on the authority of OSHODI & ORS V. EYIFUNMI & ANOR (2000) LPELR - 2805 (SC) (Supra), remains to “to lead evidence in rebuttal….”. The Defendant averred in its Statement of Defence that the Claimants are in possession of the original Bureau of Public Service Reforms (BPSR) Social Assistance/Pre-Retirement Training Workshop, 2006 Certificates. DW1, in her Statement on Oath, did not depose to the source of her information since she did not herself witness the alleged giving of the said BPSR Social Assistance/Pre-Retirement Training Workshop, 2006 Certificates to the Claimants. DW1 did not also depose to how the Defendant or herself came to be in possession of the photocopy of the said Certificates. In reaction, the Claimants, in the said paragraph 18 of their Reply to Statement of Defence, denied Defendant’s said assertion that they (Claimants) are in possession of the original of Bureau of Public Service Reforms (BPSR) Social Assistance/Pre-Retirement Training Workshop, 2006 Certificates. Having laid the foundation for rebuttal with the said denial contained in their Reply to Statement of Defence, the Claimants led evidence in support of their said denial by tendering of the promotion letters(Exhibit CW1D 1-2) showing that Defendant’s employees promoted in 2007 could not be said to be retired in the first place or to have participated in Pre-Retirement Training Workshop in 2006. My Lord, the legal principle/maxim, “factum negantis nulla probatio” “no proof is incumbent on a person who denies a fact” remains true, valid; and is applicable herewith. The Claimants have sufficiently denied Defendant’s said assertion of being given the said certificates.  Therefore, no proof is incumbent here on the Claimants.

It is the contention of counsel that the Claimants have thus led evidence in rebuttal of the said BPSR Social Assistance/Pre-Retirement Training Workshop, 2006 Certificates (Exhibit DW1E 1-5) to the effect that they did not participate in any such Pre-Retirement Training Workshop and have not been retired. Claimants’ rebuttal of the said BPSR Social Assistance/Pre-Retirement Training Workshop, 2006 Certificates (Exhibit DW1E 1-5) remains a fact because, just as there was no such policy as Federal Government Reform Policy on 30th December 2006 when the said letters of disengagement (Exhibit DW1A 1-10) were made, there was also no such policy as Federal Government Reform Policy in 2006 when the said BPSR Social Assistance/Pre-Retirement Training Workshop, 2006 Certificates (Exhibit DW1E 1-5) was alleged by the Defendant to have been given to the Claimants. Having thus rebutted Defendant’s said assertion, the said rebuttal placed/shifted the onus of proof on the Defendant to prove its said assertion that the original of the said Certificates are with the Claimants.  And since mere tendering of secondary evidence is not same as the proof of its content, Claimants said rebuttal also placed/shifted the burden of proof of the content of the secondary evidence on the Defendant. More so, non-response to a notice to produce will not cause the Court to invoke the presumption of withholding of evidence under Section 149(d) of the Evidence Act, against the defaulting party. These are well captured in AINOKO V. YUNUSA & ORS (2008) LPELR – 3663, where the Court of Appeal held that service of a notice to produce a document does not relieve the person serving the notice of the burden of producing the document if he can or of proving its contents. Consequently the non-response to a notice to produce will not cause the Court to invoke the presumption of withholding of evidence under Section 149(d) of the Evidence Act against the defaulting party.…"

It is contended that the Defendant failed to discharge these burdens of proof on it as regards the tendered photocopy of BPSR Social Assistance/Pre-Retirement Training Workshop, 2006 Certificates (Exhibit DW1E 1-5). More so, Exhibit DW1A 1-10 (letters of disengagement dated 31st December, 2006) has been proven to be a fabrication. And as ‘something’ cannot be placed on ‘nothing’ and be expected to stand, it is argued that all the other exhibits presented/tendered as sequel to, connected with, flowing from, or predicated upon the said Exhibit DW1A 1-10 (letters of disengagement dated 31st December, 2006) collapse and fall alongside with it. And the co-fallen exhibits include: Exhibit DW1B 1-12 (purported Clearance Forms), Exhibit DW1C 1 – 74 (Bulk Pay Slips purportedly made by the Office Accountant General of the Federation), and Exhibit DW1D (purported document dated 12 September, 2011), and Exhibit DW1E 1-5 (purported Bureau of Public Service Reforms (BPSR) Social Assistance/Pre-Retirement Training Workshop, 2006 Certificates).

In concluding his submission, counsel urged the court to discountenance the argument/address of the Defendant in its entirety, resolve all the issues raised for determination in this suit in favour of the Claimants, hold that the Claimants have proved their claims on the preponderance of the evidence they have adduced in this case and thus are entitled to the grant of all their reliefs; and accordingly grant all the reliefs prayed in this suit by the Claimants.

THE DEFENDANT’S REPLY ON POINTS OF LAW.

On 11/9/2020, the defendant filed a reply on points of law to the claimant’s final written address filed on 26/8/2020. The defendant replied to the five issues argued in the claimants’ final written address.

In reply to issue one, counsel contended that the claimants completely misconceived the position to think that the claimants were still in the employment of the defendant as at March 2007. The reason being DW1 categorically stated in paragraph 11 of her witness statement on oath, that the claimants were due for promotion before the effective date of the lay off and the promotions were therefore done in arrears, bearing in mind that it will have an impact on their severance package. It is further argued that DW1 under cross-examination stated that the downsizing, laying off of claimants, was done in 2007 counsel contended that the defendant paid the claimants salaries for two months in good faith, while waiting for the official directive/instruction from BPSR to lay them off, having completed all the pre-retirement procedures and training as per exhibits DWE1-5, in 2006. The defendant paid salary to the claimants till February 2007 in good faith while waiting for the final directive from BPSR to lay them off and that does not in any way amount to an admission that the claimant are still staff of the defendant. Counsel further argued that the defendant tendered documents to show that the claimants were disengaged from the service of the defendant and they filed/signed clearance form exhibit DWB1-12.

Counsel relied on the decision in the case of Egbase V Oriareghan (1985) LPELR-1030(SC) on the bindingness of signing of clearance form. Counsel insisted that from the decision of the apex court, the claimants having filed and signed the clearance forms as stated by DW1 and also corroborated in the ruling of 27/5/2020, when this court painstakingly compared the signatures on the witness statement on oath and that of the clearance forms exhibit DWB1-12 and discovered that they are same, it is not in place for the claimants’ counsel to posit otherwise in his desperate attempt to mislead the court. Counsel also relied on section 108 of the Evidence Act 2011 and case of Akpan V Obot & Anor. (2019) LPELR-47150(CA).

According to counsel the disengagement of the claimant started in 2006 and was completed in 2007, when the policy came into effect when the directive was given to the defendant.

Counsel contended that the claimants were disengaged in accordance with the provisions of their contract of service which is the employment letter exhibit CWB1-227, where it was clearly written in paragraph 6 how the employee is to be disengaged from service of the defendant and also the public service rules. Counsel contended parties are bound by their agreement.

Counsel also distinguished the case of Comptroller Genera of Customs & Ors. V Gusau (2017) LPELR-42081 (SC) and the case at hand in that the facts are not on all fours with the facts of the case at hand.

It is the contention of counsel while relying on the case of Nigerian Gas Company Ltd V Dudusola (2005) LPELR-5958(CA), maintained that admission by defendant if, at all, it exist will in no way relieve the claimant from the onus placed on them on proving their claims. Counsel also contended that contrary to the submission of counsel for the claimants, the mere fact that an organization is creation of statutes does not mean that its employees are protected by statute.

On issue two, counsel contended that section 12 (2) (b) of the National Industrial Court Act 2006 has provided that the court may depart from it in the interest of justice. Counsel call on the court to in the interest of justice consider exhibits DWA11-10, DWB1-12 and DWC1-74, in line with section 12 of the National Industrial Court Act, though they were not in total compliance with section 104 of the Evidence Act having regards to the fact attempt of compliance has been made. Counsel also argued that equity will come to the aid of the defendant for having substantially complied with the certification.

On exhibit DW1E1-5, certificate of participation, being private document the defendant is entitled to tender a copy having put the claimants on notice t produce same and refused to do so.

On issue three, counsel argued that the contention of counsel is not tenable in that DW1 is a public officer and a staff of the defendant who is in custody of exhibit DW1C1-74, same having been sent by the office of Accountant General of the Federation, DW1 is competent to tender the documents in evidence. Counsel also relied on section 83(2) of the Evidence Act and submitted that DW1 can tender and the court can admit notwithstanding the maker was not called as a witness.

Counsel also contended that there was no dumping as witness has linked the document to the case of the defendant.

On issue four, counsel contended that there is a distinction between dismissal and disengagement. Counsel insisted exhibit DW1D has probative value.

On Issue five, counsel refers to the case of Agala & Ors. V Okusin & Ors (2010) LPELR-221(SC), on concept of balance of probability and contended that the claimants have not been able to establish/prove their claims to be entitled to the reliefs sought. Counsel queried if claimants are still in service why did they not frontload their identity cards which will show they were not disengaged. Counsel insisted that the claimants were disengaged in accordance with the terms of their employment, claimants were duly disengaged.

In concluding his submission counsel argued that the claimants woefully failed to prove that they are still in the employment of the defendant, the defendant has established that claimants were duly disengaged. Counsel urged the court to resolved all the issues in favour of the defendant.

The defendant in the course of the trial of this suit filed a notice of preliminary objection dated the 20th day of June 2019 and filed on the same day, wherein an objection was raised to the jurisdiction of the court to entertain this suit. counsel urged the court to strike it out or dismiss this suit.

The grounds for the objection are that:

The time stipulated by law for the prosecution of this claim against the defendant under the public officers’ protection Act, being a public officer had elapsed.

The time stipulated by law for initiating a suit against a public officer for breach of contract of employment has since elapsed.

This Honourable court lacks the jurisdiction to entertain this suit as presently constituted.

A written address was filed along with the notice of preliminary objection. In the written address twin issues were formulated for determination, they are:-

Whether the present suit is not time barred by the public officers protection Act.

Whether the present suit is not time barred being a contract of employment and same is covered by the public officers’ protection Act.

In arguing issue one, counsel for the defendant contended that the defendant is a public officer by the public officers’ protection Act. By section 2(a) of the public officers protection Act, an action, prosecution or proceeding shall not lie or be instituted unless t is commenced within three months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within three months next after the ceasing thereof.

Counsel made reference to the cases of El-Rufai V Senate of the National Assembly & Ors. (2014) LPELR-23115(CA) and Ibrahim V JSC Kaduna State (1998) 14 NWLR (pt.584) 1, and submitted that the defendant is a public officer, against whom an action against it for any wrong doing has to be instituted within three months.

It is submitted that by virtue of section 2(a) of the public officers’ protection Act this suit ought to have been filed in June of 2007. According to counsel instituting this suit in November 2017, ten years and eight months after the cause of action, this suit is statute barred. Counsel contended that this curt lacks jurisdiction to entertain this claim, same having been brought outside the time limited by statute for the institution of the said action. Counsel submitted that any action instituted in contravention of limitation law is incompetent and a court of law would have no jurisdiction to hear and determine same. In support of this view counsel relied on the case of Madun & Ors. V Adanchi & Ors. (2013) LPELR 20774(CA). 

Counsel also refers to Military Administration Ekiti State V Aladeyola (2007) 14 NWLR (Pt.105) 619, where it was held that limitation Act or law removes the right of action of a plaintiff his right of enforcement and the right of judicial relief, leaving him with a bare and empty cause of action which he cannot enforce if such cause of action is found to be statute barred. Also In Enugu Sate Civil Service Commission V Geoffery (2006) 18 NWLR (Pt.1011) 293, the court held that where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce it by judicial process if the period of time laid down by the limitation for instituting such an action has elapsed.

On issue two, counsel for the defendant submitted that this suit cannot be entertained by this court having exceeded the time within which it could be heard by a court of law. Counsel contended that the question of applicability of limitation law in cases arising from contract of employment was addressed by the Supreme Court in the case of Bakara V Nigeria Railway Corporation (2007) 17 NWLR (pt.1064) 628, while interpreting the provision of section 38(1) of the Nigerian Railway Act. 628, while interpreting the provision of section 38(1) of the Nigerian Railway Act. NBC V Bankole (1972) NSCC 220, Forestry Research Institute of Nigeria V Gold (2007) 11 NWLR (Pt.1044), where the apex court held that Public Officers Protection Act applies to contract of employment.

Counsel contended that the offer of appointments made to the claimants exhibits A1-73, A75-A99, A101-A103, A105-A137, were all made in writing and not under seal. It was also averred that the claimants equally aver that many of them equally received their promotion letters from the defendant since March 2007, but they are yet to receive either salaries or the monetary increments consequent to the said promotions. The promotion letters given by the defendant to Peter Ladi, Ini Paul Okon and Lawal Hanatu, all dated March 20, 2007 stand as evidence. From the foregoing, it is deducible that the cause of action arose in March 2007 when the defendant allegedly failed or refused to pay the salaries due to the claimants. Credence for this is also given by the fact that claimants claim the arrears of salaries due to them since March 2007 till April 2017.

Counsel contended this claim is over 11 years old and clearly beyond the 6 years permitted by section 7 of the limitation Act Chapter 532 Laws of the Federal Capital territory. 

In concluding his submission counsel urged the court to resolve the two issues in favour of the defendant.

The claimants on 5/7/2019, filed a reply to the defendant’s preliminary objection, of 20/6/2019. In the reply the counsel for the claimants formulated three issues for resolutions. They are:-

Whether the   present suit is not time barred by public officer’s protection Act.

Whether the present suit is not time barred being a contract of employment and same is covered by the public officers’ protection Act. 

Whether defendant’s instant preliminary objection dated 20th June 2019 constitutes/amounts to an abuse of court process and thus is liable to be dismissed.

In arguing issue one, counsel contended that this suit is not statute barred as argued by the defendant/applicant. It is the position of the claimants/respondents that the provisions of section 2(a) of the Public Officers (Protection) Act do not provide a blanket protection for public officers. According to the claimants, it is never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice that is on-going and unabated.  It is contended section 2(a) of the Public Officers Protection Act provide exception to the limitation period of 3 Months within which an action must be instituted against a public officer. The exceptions include continuance of damage or injury, where a public officer acts outside the colour of office or outside statutory or constitutional duty thereby making his action ultra vires or without jurisdiction. There are also breaches of contract, claims for work and labour done, or where the action lacked good faith, fraud, or abuse of office by a public officer.

It is contended that from the paragraphs of the statement of fact, it is clear that the case of the claimants is that they are employees of the defendant/applicant and that the defendant is withholding their respective monthly salaries already released by the Federal Government and entrusted to it to pay them. Counsel contended there is continuance of damage or injury by the defendant in the circumstance, and continuance of damage or injury has not ceased. In support of this view counsel cited and relied on the cases of INEC V Ogbadibo Local Government & Ors. (2015) LPELR-24839(SC), Attorney-General of Rivers state V Attorney-General of Bayelsa State & Anr. (2013) 3 NWLR (Pt.1340) 123. It is contended the deprivation of claimants of their monthly salary is continuance of damage and injury, which has not ceased. 

It is also contended the claimants’ claim being that on contract comes within another exception to the applicability of public officers protection Act. To buttress the point being made counsel relied on the case of Roe Ltd V UNN (2018) LPELR-43855(SC). Counsel contended that it is settled law that the public officers protection Act does not apply in cases of breaches of contract. Furthermore, claimants claim are for work and labour done, in which it is excluded from section 2(a) of the Public Officers Protection Act, on the authority of the case of Bureau of Public Enterprises V Reinsurance Acquisition Group Ltd & Ors. (2008) LPELR-CA/A/195M/05.

It is also contended that actions ultra vires, is another exception, where the defence of section 2(a) of the Public Officers Protection Act does not avail a defendant relying on it. By acting ultra vires, means acted outside colour of office or outside statutory or constitutional duties, thereby making the act ultra vires. In support of this view counsel relied on the case of A-G Rivers State V A-G Bayelsa State & Anr. (supra), Kwara State Pilgrim Welfare Board V Baba (2018) LPELR-43912(SC). Counsel contended that, it is not within statutory or constitutional duty of the defendant to withhold the already released salary of any of the claimants or to keep same in any other place or divert same to any unauthorized bank account where it yields interests without the knowledge or consent of the respective claimant.  

It is contended that another exception applicable to the claimants’ case, is fraud. It is submitted that the claimants have pleaded that the contributory pension which is a fraction of the claimants salary have been deducted and paid to their pension account, but the large chunk of the salary withheld and diverted by the defendant to unknown domiciles. This shows defendant was fraudulent. To support the inapplicability of section 2(a) to this suit as a result of fraud counsel relied on the case of Kwara State Pilgrims welfare Board V Baba (supra).

It is contended that the particulars/evidence of fraud in the defendant’s withholding of the claimants salary is also an evidence of abuse of office as well as an evidence of lack of good faith by the defendant in acting so maliciously and with no semblance of legal jurisdiction.

It is also the contention of counsel that the defendant’s lack of good faith in the said unlawful withholding of claimants salaries. Counsel cited and relied on the case of Sule & Ors. V Orisajimi (2019) LPELR-47039(SC), a case that established that section 2(a) of the Public Officers’ Protection Act, is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification..

It is the contention of the claimants that from the claimants statement of facts and the expositions above it is clear that, beyond the existence of continuance of the damage, breach of contract and actions ultra vires, the defendant has not acted in good faith in withholding the earned and already released salaries and entitlements of the claimants for no just cause and for avaricious motives. Counsel urged the court to hold that the claimants have right of action and that their case is not statute barred.

On issue two, counsel contended that the issue was vague as the defendant did not take a stand on it, is neither here or there. According to the claimant the defendant’s issue two has left the court to speculate. Counsel contended speculation has no place in our laws. Counsel stated that the counsel for the defendant ended his argument with section 7 of limitation law of the Federal Capital territory which is not synonymous with public officers’ protection Act.  Section 7 has no relation or correlation with the argument of the defendant. Counsel submitted that the confusion, incoherence, absurdity and inconclusiveness introduced by the defendant, is at the defendant’s peril, counsel urged the court to resolve the issue against the defendant. The counsel for the claimant stated the position of the claimants to be that the claimants’ case falls within exception of section 2(a) of the Public Officers Protection Act.

Counsel also distinguished the case of Bakara V Railway Corporation (supra) heavily relied on by the defendant in that the facts of the cases are not same. It was further contended that in the case at hand the withholding of salaries is not in the performance of official duty. There is no statute that confers power on the defendant to breach the claimants’ employment by withholding their salaries.

It is also the contention of counsel that the provision of section 7(1) of Limitation Law of Federal Capital Territory is not applicable to this case. The reason being that Labour Act, which is a civil liability enactment has prohibited exploitation of employees and workers on their wages, this means the salaries of the claimants’ falls within the exception to applicability of section 7(1) of the Limitation Law.

It is also argued that due to the status of claimants’ contract of employment being formal as excluded it from limitation law. To support this view counsel relied on the case of Adeniyi V Governing Council, Yaba College of Technology (2012) LPELR-8334(CA). The claimants’ contract being statutory contract is a formal contract that cannot be caught by limitation law. On this reliance was placed on the case of Utomodo V Military Governor of Bendel State (2014) LPELR-22880(SC).

Counsel contended that the defendant misconceived section 7 of limitation law. The claimants’ contract being formal is excluded from section 7 of limitation law. It is further contended that even if section 7 is applicable, this suit will still not be caught by limitation of action in that the law is trite where wrong is continuing one, the cause of action will accrue after the cessation of the wrong act. And in this case the wrong has not ceased it is continuous. In support of this position reliance was placed on the case of Gulf Oil Company (Nig.) Ltd V Oluba (2003) FWLR (Pt.145) 277.

On issue three, counsel contended that the present preliminary objection fled on 20/6/2020 is an abuse of process because of existence of objection dated 8/4/19 which is still pending. Counsel argued that the preliminary objection of 20/6/2019 having been filed while the preliminary objection of 8/4/2019 is still pending before the court and there was no application for discontinuance of same has rendered the present preliminary objection fundamentally defective. In support of this contention counsel relied on the case of Ajaokuta Steel Co. Ltd V Greenbay Investment & Securities Ltd & Ors (2019) LPELR-46929(SC). 

Counsel cited several decisions on abuse of court process and urged the court to dismiss the preliminary objection of 20/6/2020 for being abuse of process of court.

On the whole, on the preliminary objection, counsel for the claimants urged the court to hold that it has jurisdiction to entertain this suit.

COURT’S DECISION:  

I have carefully considered the processes filed in this suit, as well as listened attentively to submission of counsel for both parties canvassing the position of their respective clients.

The claims of the claimants are for payment of arrears of salaries being owed by the Defendant from March 2007 to April 2017, interests accrued on the arrears of salary being owed by the Defendant from March 2007 to April 2017, at the prevailing bank rate, payment of other entitlements due to the claimants reflecting appropriate actual and entitled levels/promotions in service as at present and in accordance with guidelines for Appointment, Promotion and Discipline issued by the Federal Civil Service Commission, payment of 6% interest on the unpaid balance in A, B, and C above from March 2007 to April 2017 till judgement is delivered in this suit, payment to each of the Claimants the sum of N500,000.00 (Five Hundred Thousand Naira Only) being general damages, payment of the sum of N200,000.00 (Two Hundred Thousand Naira Only) being the sum expended by each of the Claimants in engaging the said solicitors for the recovery of his/her arrears, interest and other entitlements with the Defendants, payment of 10% interest on the judgement sum from the day judgement is delivered in this suit till final liquidation and a perpetual injunction restraining the Defendant from ever withholding the arrears of salaries, interest and other entitlements of the Claimants.

Before dealing with the claims of the claimants, it behooves on me to first and foremost determined the preliminary objection raised by the defendant to the competency of this suit. The objection of the clamant was on section 2(a) of the Public Officers (Protection) Act and section 7 of the Limitation Law of the Federal Capital Territory, Abuja.

According to the defendant the claimants’ action is statute barred as it was not instituted within the time limited by the provisions of section 2(a) of the Public Officers (Protection) Act, for an action to be instituted against a public officer. It was also the contention of counsel for the defendant that the claimants’ action is also not maintainable in law because it was instituted beyond the time limit provided by Limitation law of the Federal Capital Territory, Abuja.

The counsel for the claimants Joseph Ilorah, Esq; has vehemently opposed the preliminary objection on the ground that the claimants’ action is not statute barred as claimed by the defendant. Counsel copiously submitted that the claimants’ action falls within the exceptions to the applicability of section 2(a) of the Public Officers (Protection) Act. Counsel further contended that the claimant’s action is that of continuous damage and injury. It was also argued that the action of the defendant in denying the claimants’ their salaries was tented with fraud and bad faith and above all it was outside the colours of office or function of the defendant as the denial of claimants salaries was illegal and unlawful.

It is clear from the provisions of the Public Officers (Protection) Act, that the provisions constitute a limitation law, which the legislature designed it to provide protection for public officers corporate or incorporated bodies from detraction in the conduct of their discharge of their official duties or assignment by litigation that might have become otiose or in which witnesses may no longer be available or may not reasonably be gotten to testify due to time lag. See OFFOBOCHE V OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (Pt.739) 458. The object of the provision is therefore to afford protection to public officers in respect of anything done in the discharge or execution or carrying out their duty, the protection comes into play after the expiration of three Months from the date of the Commission of the act or acts, neglect or default which give rise to the cause of action. See YABUGBE V COP (1992) 4 NWLR (pt.234) 152; EGBE V ADEFARASIN (1985) 1 NWLR (Pt.3) 549, EGBE V ALHAJI (1990) 1 NWLR (Pt.128) 546, EKEAGU V ALIRI ((1991) 3 NWLR (Pt.179) 258. It is quite clear that the general effect of section 2(a) of the Public Officers (Protection) Act, is that where a law provides for the institution of an action in a court of law within a prescribed period in respect of a cause of action accruing to the party entitled to enforce his remedy before the court, proceedings shall not be brought after the expiration of the period circumscribed by law. Where any action is statute barred, a party who might otherwise have had a cause of action loses right to enforce it by judicial process, because the period of time prescribed by the limitation law for instituting such an action has elapsed. Thus, an action commenced after the expiration of the period within which an action must be brought as stipulated in a statute of limitation is not maintainable. See EBOIGBE V NNPC (1994) 5 NWLR (Pt.347) 649, ALHAJI (DR) ADO IBRHIM Vs. ALHAJI MAIGIDAU LAWAL AND ORS (2015) LPELR – 24736, EGBE VS. ADEFARASIN & ANR (1987) 1 NWLR PT 471 AT 21, FADERE V A. G. OYO STATE (1982) 4 SC 1, A. G. ADAMAWA STATE V A. G. OF THE FEDERATION (2014)  LPELR-23221(SC),  OBIEFUNA V OKOYE (1961) 1 ALL NLR 357.

It is pertinent to note that the general rule in section 2(a) of the Public Officers Protection Act, like every other general rule is not without exception. Though, an action against public officer in respect of any act done in pursuance or execution of any Act or Law or public duty or default on same can only be commenced within three months next after the act, neglect or default complained of, the situation is not the same in a case of continuance of damage or injury in which the person aggrieved must institute the action within three months next after the cessation of the damage or injury complained of. See the case of CENTRAL BANK OF NIGERIA vs. JACOB OLADELE AMAO & 2 ORS (2011) ALL FWLR PART 558 PAGE 806 AT 812RATIO 3.

It is also the law that the provisions of section 2(a) of the Public Officers (Protection) Act, do not provide cover or protection to officer who acted in abuse of office or in bad faith or where fraud is involved. It is also not applicable in cases of continuance of damage or injury.

In the case at hand, counsel for the defendant/applicant maintained that the claimants’ action is caught by the provision of section 2(a) of the Public Officers (Protection) Act. While the position of the counsel for the claimants is that the act being complained of by the defendant/applicant is that which falls within the exceptions to the general rule.

In the defence put forward before the court by the defendant, it was made clear that the claimants were disengaged from the service of the defendant. This means that that the claimants were relieved of their employment by the defendant in the exercise of its powers as employer of the claimant. This has debunked the contention of counsel for the claimants that the defendant’s action was in abuse of office and bad faith.  

There is no disputing the fact that the claimants in this suit are claiming payment of arrears of salaries and other entitlement owed by the defendant to the claimants. This means that the claims of the claimants are for contract of service rendered by the claimants to the defendant. Therefore, it is for labour and work done. The law is now well settled that section 2(a) of the Public Officers Protection Act does not apply to cases of contract. See OSUN STATE V DALAMI NIGERIA LTD (2007) 9 NWLR (Pt.1038) 66, (2007) 3 SC (pt.i) 131, (2007) 6 SCM 145, (2007) LPELR-2817(SC), NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION & 2 ORS. V AJIBOLA JOHSON & 10 ORS (2019) 2 NWLR (PT.1656) 247.  Based on the cited decisions of the apex court of the land, I am left with no option than to hold that since this is an action based on contract of service, the provision of the Public Officers Protection Act is not applicable to this case. This means that the claimant’s suit is not statute barred as per section 2(a) of Public Officers Act.

I have come to the conclusion, I have reached on this issue notwithstanding the case of Forestry Research Institute V Gold (2007) NWLR (Pt.1044), relied on by the defendant in asserting that section 2(a) of the Public Officers (Protection) Act is applicable to employment cases. With the decision in the case of Revenue Mobilization and Fiscal Commission (2019) NWLR (Pt.1656) 274, there appears to be to two conflicting views expressed by the Supreme Court on the same issue.

By the doctrine of stare decisis I am bound by the decisions of the apex court. However, since the two cases are not saying the same thing I am obliged to choose the later decision in time. In the case at hand is the case of Revenue Mobilization and Fiscal Commission (supra). I wholly adopt the principle enunciated in that case respecting the provisions of section 2(a) of the Public Officers (Protection) Act, to the effect that section 2(a) of the Public Officers (Protection) Act is not applicable to cases of employment being contract cases. I so hold.

The law is that where there are two Conflicting judgments of the Supreme Court, all other courts are bound by the latter decision and must follow and apply it. In support of this principle of law the cases that comes to mind are: Okpozo v. Bendel Newspaper Corp. (1990) 5 NWLR (Pt. 153) 652, Igbinedion v. Watson and Sons (2018) 8 NWLR (Pt.1621) 374: C.A.; Osakue v. F.C.E., Asaba (2010) 10 NWLR (Pt. 1201) 1: S.C.

The counsel for the defendant has also relied on limitation Act of Federal Capital Territory, Abuja, in raising objection to this suit. The counsel for the claimant has responded to the request of the court for address on whether the provisions of section 7 (1) of the Limitation Act of the Federal Capital Territory, Abuja, will apply to this case or not. For proper appreciation, the section provides:

7(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued.

Action founded on simple contract;

Actions founded on quasi contract;

……………………………………………………..;

………………………………………………………

Actions to recover a sum recoverable by virtue of an enactment other than:-

A penalty or forfeiture or sum by way of penalty or forfeiture,

A sum due to a registered company by a member thereof under its article of association,

An amount recoverable against concurrent wrong doers under a civil liability enactment for the time being in force relating to current wrong-doers.’ 

According to counsel for the defendant, section 7(1) of the Limitation Act, is applicable to the case at hand to bar the claimants from maintaining this suit. The reason being that the contract between the parties is a simple contract that must be filed or instituted within a period of six years and in the case at hand from March 2007 to 2017 when this suit was instituted is a period of eleven years which is beyond the limited period of time permitted for institution of this kind of action. 

For the counsel for the claimants, the claimants’ action is not statute barred, because, the contract of employment is a formal contract though not required to be under seal. According to counsel the contract of employment is not a simple contract, which must be filed within six years. 

The determining factor of this issue lies in the finding of the court on whether the claimants’ contract of service can be categorized as a simple contract or not.

After careful perusal of the submission of counsel and the cases cited more particularly the case of Adeniyi V Governing Council Yaba Polytech (supra), I tend to agree with the counsel for the claimants that the claimants’ contract of employment is not a simple contract to which section 7(1) (b) of the Limitation Act of the Federal Capital Territory, Abuja, will apply to bar claimants from approaching the court for redress. However, under section 7(1) (e) of the Limitation Act of the Federal Capital Territory Act, a claim for recovery of any sum under any statute, the limitation law applies to bar action if the action is commenced outside the period allowed by the law. In the case at hand the claim of the claimants is for recovery of arrears of salary and other entitlement which is a claim under labour Act and Legal Education (Consolidation) Act. 

For proper appreciation of the position of the law, it is apt to refer to the Court of appeal case of Adeniyi V Governing Council Yaba Polytechnic (supra), where the court has this to say:-

‘’The Appellant's contract of Employment was not one required to be under seal. Was it a formal contract then I think it was. The Employment of the Appellant in an established institution, no doubt is a formal contract governed by terms and conditions binding between the parties. However, by Section 8(1) (e) of the Limitation Law of Lagos State, actions for the recovery of any sums recoverable under any statute shall not be brought after 5 years from the accrual of the cause of action. It would therefore appear that while the statute of Limitation of Lagos State is applicable to simple contracts, it would, in appropriate and in certain cases apply even to situations covered by statutes in situations where the action is for the recovery of any sum recoverable by virtue of any enactment. The Appellant, as Plaintiff, made his claims for certain sums of money purportedly as his entitlements, under certain statutes and regulations of the Federal Civil Service and the Polytechnic Act, 1990. The statute of limitation therefore applies.’’

It is clear as the day light by the above dicta in the Adeniyi;s case quoted above that: a part from limitation of action provided for in respect of simple contract, there is also provisions made in respect of recovery of any sum recoverable by virtue of any enactment. This means that the claimants action for recovery of their salaries and other entitlement plus interest being made under the labour law and other statutes, may be statute barred  under section 7(1)(e) of the Limitation Act of Federal Capital Territory, Abuja. However, the claims being that of continuous injury can only be barred in law after the cassation of the injury. In the case at hand the claimants are seeking of payment of their salaries as from March 2007 to April 2017, this has made the claim to be that of continuous injury. Therefore, section 7(1) (e) will not apply to bar the claimants’ action. With this finding the claimants actions on all fronts is not affected by statutes of limitation. The finding that the claimants’ action is not affected by the provision of section 7(1) (e) of the Limitation, Act, has disposed off the challenge to the jurisdiction to entertain this suit based on limitation law. This court has the requisite jurisdiction to entertain and determine this suit. 

I now turn to the substantive claims. As pointed out earlier the claimants’ claim borders on payment of salaries, entitlement, interest and damages. While the defendant’s defence on the other hand is predicated on determination of the claimants appointment as per exhibits DWC1-10. 

For the defendant, the claimants are not entitled to any of the reliefs being sought on the ground that the claimants were retired from service as a result of civil service re-organization. In line with their letters of appointment. 

Before delving into the issue of payment of arrears of salaries, interest and damages as per the claimants’ suit. It behooves on me to thrash a very important issue which the parties are not at ad idem. The issue is regarding the nature of the claimants’ employment.

For the claimants they averred that their employment is governed statute and Public Service Rules. They are of the view that their employment is one that has statutory flavor which means they are still in the employment of the defendant. 

For the defendant the employment of the claimant is one of master and servant and that court is not allowed to impose an employee on employer.

It has been settled by a long line of decisions, that a contract of employment is said to enjoy statutory flavour where its conditions are governed by provisions of statute or regulations derived from statute. That type of employment is said to invest an employee with a status higher than the ordinary one of master and servant. The status of employment with statutory flavour, in its own rights, guarantees an employee's right to fair hearing before the termination of his employment. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303. 

The question of whether a contract of employment is governed by statute or has statutory flavour depends on the construction of the contract itself and the relevant statute. The duty to construe an appointment with statutory flavour is within the exclusive preserve of the Courts. In determining an employment governed by statute, the procedure laid down in the statute must be complied with. The provisions of the applicable regulations and the memorandum of appointment must be followed to the letter as any breach would render the exercise of termination null and void. See Adeniyi v. Governing Council, Yaba College of Technology (1993) 6 NWLR (Pt. 300) 426. If the terms and conditions of a contract of employment of service are specifically provided for by statute or regulations made thereunder, then the contract is protected by statute or, in other words, the employment is one with statutory flavour. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162; Bamgboye v. University of Ilorin (1999)10 NWLR (Pt. 622) 290; U.M.T.H.M.B v. Dawa (2001) 16 NWLR (Pt. 739) 424; Shitta-Bey v. F.R.S.C. (1981) 1 SC 40. 

In Achibong Um, O Udo v. Cross-River State Newspaper Corporation & Ors (2002) FWLR (Pt. 104) P. 677, the Court held that: 

"An employment is said to have a statutory flavour when the appointment has been protected by statute. An employment is protected by statute when the appointment and termination are governed by statutory provisions...." 

Kutigi J.S.C (as he was then of blessed memory) had this to say on when an employment has statutory flavour in the case of Mrs. Fakuade v. OAU Teaching Hospital (1993) 5 NWLR (Pt. 291) P. 24; 

"Where the conditions of appointment or determination of a contract is governed by the pre-conditions of an enabling statute such that a valid determination of the appointment of the appellant is predicated on satisfying such statutory provisions, the contract is with a statutory flavour.

I shall in line with the principles of law established in the above cited cases construe the claimants letters of appointment and the statute establishing the defendant to see whether the employment of the claimants has statutory flavor as being claimed or not. I have observed that though the claimants were not employed on the same date, levels and posts, but, the content of the letters of appointment is the same. In the circumstance, I shall only reproduce one of the letters of appointment. It is as stated below:-

COUNCIL OF LEGAL EDUCATION

DIRECTOR OF ADMMINISTRATION SECRETARY

READER D. V. F. OLATERO-OLAGBIGI, 

LL.B (London), Barrister at law

NGERIAN LAW SCHOOL

BWARI

P.M.B. 170,

GARKI

Telephone ABUJA-NIGERIA

Telegraph

Cable

 

Our Ref. No. NLS/102/S.1./Vol.XIX Date: 10th February 1998

Re: Application for employment in the Nigerian Law School

Mr./Mrs./Miss KURE MARGRET

Dear Sir/Madam,

OFFER OF APPOINTMENT AS A TEMPORARY CLEANER.

I am directed to refer to your application for employment in the Nigerian Law School and subsequent interview and to offer you appointment as a Temporary CLEANER on an   initial salary of N6,090.00 per annum in the salary scale EUSSUSS 1 (N6,090.00) with effect from the date you assume duty.

The appointment is subject to your passing a medical Examination conducted by a medical officer as to your soundness in health and fitness for Government Service.

Accordingly, I enclose a letter addressed to the Medical Director, Nigerian Law School clinic, Bwari-Abuja who will arrange for your medical examination.

There is a prospect of your being absorbed into the permanent establishment, if, at the expiration of a year’s service your work and conduct are found to be satisfactory.

Upon your absorption into the permanent establishment, you will be on probation for a period of two years from the date of your absorption in the permanent establishment takes effect after which, subject to satisfactory work and conduct your appointment may be confirmed.

This appointment which is subject to satisfactory work and conduct can be terminated on either side by giving one month’s notice or payment of one month’s salary in lieu of notice.

Other conditions of service are similar to those existing in a Nigerian university and so may be prescribed from time to time by the Council of Legal Education.

You are expected to assume duty on or before Monday 16th February, 1998 and bring along with you your original certificates and four recent passport photograph of yourself.

If by 16th February 1998 you are unable to assume duty it will be deemed that you are no longer interested in the appointment and this offer will lapse automatically.

If this offer is acceptable to you, please let me know in writing immediately on your receipt of this letter.

 

Yours Faithfully,

SIGN

E. O. Iregbochu (Mr.) 

For: Director of Admin/Secretary to 

The council of Legal Education.

The relevant provision of the law that conferred power of appointment of members of staff of the defendant is section 6 of the Legal Education (Consolidated) Act, which read:-

6.   Staff

(1) Without prejudice to section 2 (5) of this Act, the Council may appoint such officers and servants as are deemed necessary by the Council for the proper discharge of its functions under this Act, upon such terms and conditions of service as the Council may determine:

Provided that rates and scales of salary and other emoluments relating to any such appointment or employment shall be comparable with those prevailing in Nigerian universities.

The content of one of the letters of appointment of the claimants as contained in exhibit CW1B1-2277, the content of which was reproduced above as well as the provisions of section 6(1) of the Legal Education (Consolidation) Act also reproduced above are very clear and unambiguous. There is nothing in them that invest the employment of the claimants with statutory flavour.

The claimants’ insistence on their employment being that with statutory flavour was predicated on the defendant being a creation of statute and the claimants being public officers. This is the kind of position taken in the case of Fakuade V OAUTHMB (1993) NWLR (Pt.291). however, the Supreme Court has made it very clear in Fakuade’s case that the character of an appointment and status of the employee is determined by the legal character and the contract of the employee. Hence where the contract of appointment is determinable by the agreement of the parties, simpliciter, there is no question of the contract having a statutory flavour. The fact that the other contracting party is the creation of a statute did not make any difference. Like in the case at hand.

The apex court further stated that where the conditions for appointment or determination of the contract is governed by the preconditions of an enabling statute, so that a valid determination of appointment is predicated on satisfying such statutory provisions, this is a contract with a statutory flavour. It is within this category that the cases of Olaniyan v. Unilag (1985) 2 NWLR (Pt.9) 599; (1985) 1 All NLR 314 and Shitta-Bey v. FPSC. (1981) Vol. 12 NSCC 28 and Laoye v. FPSC (1989) 2 NWLR (Pt. 106) 652, are located. The contract is determinable not by the parties, but only by statutory preconditions governing its determination. 

Having regards to the decision in the case of Fakuade (supra), I am convinced that the case of the claimants’ appointment is not that having statutory flavour. It is to be noted that a part from the ipse dexit of the claimants’ witnesses, there is nothing to show that their appointment is governed by Public Service Rules or the Legal Education (Consolidation) Act. In the circumstance, I am in agreement with the defendant that the claimants’ employment is that of master and servant relationship under the common law.

I am strengthened in my view by the fact that there is no legislation or any statute on record stating the claimants terms and conditions of service. it is on this premise that I find that the claimants employment by the defendant made in exercise of power vested by the defendant by Legal Education (Consolidation) Act is purely that of master and servant and not a statutory employment. it must be noted for a contract of employment to be invested with statutory flavour, there must be a nexus between the contract of service and statutory provisions that empower making of rules. See Comptroller General of Customs & Anor. V Gusau (supra).

The assumption of the claimant that the defendant being a creation of statute and the claimants being public officers their employment enjoys statutory flavour was based on misconception of law. The fact that the respondent is the creation of a statute does not elevate all its employees to that status or that the status of master and servant is no longer existent or that their employment or determination of their appointment must necessarily have a statutory flavour.

In the instant case the contract between the parties exhibit CW1B1-227 is clear and unequivocal, the claimants have their contract of service with the defendant encapsulated in exhibit CW1B1-227. The contract has also made ample provisions for its determination. The court must in construing the relationship of the parties confine itself to the plain words and meaning which can be derived from the rights and obligations provided thereunder. Exhibit CW1B1-227, constitute the entire provisions and must be construed in ascertaining the rights and obligations of the parties. See Adegbite v. College of Medicine, University of Lagos (1973) 5 SC. 149; Nigerian Produce Marketing Board v. Adewunmi (1972) 1 All NLR (Pt.2) 433; Sule v. Nigerian Cotton Board (1985) 6 SC. 62; (1985) 2 NWLR (Pt.9) 17. There is also no evidence adduced to show that the claimants were employed by the Federal Civil Service Commission, to make their employment being governed by the Public Service Rules. 

Coming to the substantive claims of the claimants, they are claiming payment of unpaid salaries, interest, damages and solicitors fees. 

Going by the reliefs and statement of facts, the main relief being claimed by the claimants’ is claim for payment of salaries from March 2007 to date of judgment. While the defence put forward by the defendant is that the claimants are no longer in the service of the claimant as their employment has been determined by the defendant as per exhibit DWA1-10, (letters of disengagement from service), exhibit DW1-12 (Clearance forms), exhibit DW1C1-74), exhibit (DW1D (letter to Permanent Secretary Bureau of Public service Reforms) and exhibit DWE1-5 (certificates of participation).

The counsel for the defendant has in his final written address contended that the defendant has established that the claimants were disengaged from service of the defendant as shown on exhibit DW1A1-10 and exhibit DWI 1-12. It was also contended that the claimants have been paid their entitlement as those that have served for 15 years and above have been paid their entitlement and placed on payment of pension. While those who have served below 15 years have been paid their gratuity.

For the counsel for the claimants the defendant has not proved disengagement of the claimants or payment of their entitlements. Counsel lampooned the exhibits tendered by the defendant as fabrication.

The law has always been that he who asserts must prove. See section 131 of the Evidence Act and that proof of claim or assertion is by preponderance of evidence. Thus, the burden of proof in civil cases has two distinct meanings, viz: the first is the burden of proof as a matter of law and the pleadings and it is usually referred to as legal burden or the burden of (a) establishing a case; the second is the burden of proof in the sense of adducing evidence usually described as the (b) (2009) 11 NWLR (Pt. 1151) 65, Henshaw V Effanga (2009) 11 NWLR (Pt. 1151) 65, Ndul Wayo (2018) 16 NWLR (Pt. 1646) 548.

It is clear that the burden of proof in civil cases is on the party who alleges the affirmative and that the party could be the claimant or the defendant depending on the state of the pleadings. By section 135 of the Evidence Act, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side. While the first burden is on the party who alleges the affirmative in the pleadings, the second burden, that is, the evidential burden, lies on the adverse party to prove the negative. The onus of proof in civil cases, swings like pendulum moving from one end to the other. See Atane v. Amu (1974) 10 SC 237; Fashanu v. Adekoya (1974) 6 SC83; Onyenge v. Ebere (2004) 13 NWLR (Pt. 889) 20; Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527.

In the case at hand the defendant having asserted in its defence that the claimants have been disengaged from the services of the defendant has the onerous task of convincing the court that the claimants have been relieved of their appointment as asserted in paragraph 5 of the statement of defence. 

I have carefully and painstakingly considered the evidence adduced by the defendant in the statement of defence, witness statement on oath the oral testimony given before the court both in chief and under cross examination of the sole witness for the defence. I have equally examined the response to the defence by the claimant tagging the exhibits of the defendant as fabrication and incapable of establishing the defence put forward.

The law has always been that an employer can terminate the services of his employee provided due process was followed in carrying out the exercise. Whether disengagement is in respect of employment governed by statute or that of master and servant as in this case compliance with due process is what authenticates the action of the employer. This means that deviation from the statute governing termination in respect of employment with statutory flavor will render the termination or dismissal null and void and of no effect whatsoever. See Olaniyan V University of Lagos (supra). Likewise determination of employment in master and servant relationship without followed the terms of the agreement, memorandum or conditions of service will render the action wrongful.

The averment in paragraph 5 of the statement of defence shows that the claimants were disengaged from the services of the defendant vide exhibit DWA1-10. The defendant also stated that the claimants signed their letters of disengagement and signed letters would be tendered in evidence. Exhibit DWA1-10. The claimants vehemently denied ever receiving exhibit DWA1-10 or even being told orally of their disengagement. I have studied exhibit DWA1-10, there is nothing on it to show that the claimants have been served with exhibit DWA1-10. The claimants by denying receipt of exhibit DWA1-10 have joined issues with the defendant on service and the onus of proof was cast on the defendant to establish service of exhibit DWA1-10, which duty the defendant has failed to discharge. As there was no evidence that the claimants have been served with exhibit DWA1-10, in the circumstances I came to the conclusion that the defendant has not proved service of exhibit DWA1-10, this means that the claimants were never disengaged as per exhibit DWA1-10.

Vide exhibit DWI1-12, which is clearance forms of some of the claimants, the defendant contended that the claimants who duly signed these clearance forms were duly aware and informed of their disengagement from service. The claimants have strenuously argued that exhibit DWI1-12 is fabrication. The reasons given were that there are two dates contained in the documents, in view of that since one of the two dates was after the institution of this case the document is fabrication and unreliable and incapable of proving anything. The claimants also denied signing these documents. DW1 has under cross examination answered why the document is having two dates, according to the witness the date of 9/1/19 was date of certification while the other date of 3/2/2006 was date of the form.

It is clear to me from careful examination of exhibit DWI1-12, that the form was dated 3/2/2006, while the date of 9/1/19 was date of certification, in view of this finding I overruled the argument counsel on fabrication, the said exhibit was not a fabrication. I have also noted that Gladys Akozor the 2nd claimants’ witness did signed her clearance form on 12-3-07 see item 6 in section A of exhibit DWI1-12. I have also noted that sections B, C and D of exhibit DWI1-12 were signed by the officers who cleared Glady’s Akozor, this finding applies to the other clearance forms in exhibit DWI1-12. It was clearly stated in exhibit DWI1-12, that the reason for leaving was disengagement. This finding has put to lie the denial of the claimants of not signing exhibit DWI1-12 and also not being told of their disengagement by the defendant.

The defendant has also relied on exhibit DWC1-74 and exhibit DW1D, to support the assertion that the claimants have been paid their entitlement as those who have served for 15 years and above have been paid their gratuity and placed on pension. While those who have served below 15 years have been paid their gratuity. The claimants vehemently objected to these documents in the course of the trial but the objection to the admissibility was rejected and the two exhibits admitted in evidence. This does not mean that the court has to accord these exhibits evidential value that can only be after proper evaluation. I have carefully looked at these exhibits vis-à-vis the evidence in respect of the assertion they tend to establish. It is curious that exhibit DW1D, has made mention of hard and soft copies of the list and bank details of the staff severed from the defendant, but the list was never tendered or shown to the court, this goes to show that exhibit DW1D is incomplete document, in the circumstance it has no evidential value, it is as if it never existed. It could also be that the defendant does not want the court to know the exact truth about the disengagement exercise carried out, thus why the documents sent via exhibit DW1D were not produced for inspection of the court.

On exhibit DWC1-74, this is a document that contained so many names that are strange to this suit. This court has time without numbers admonished counsel to ensure that witnesses coming to testify before the court are witnesses that are abreast and who have personal knowledge of the evidence they are coming to testify on. The mere fact that an artificial person like the defendant is free to field any member of its staff or anybody or person to give evidence on its behalf does not give blanket cheque for anybody or person to be presented to testify before the court, taking such step is a gamble at the peril of the person taking the risk of fielding such a witness not in the know-how of the evidence to be adduced before the court. DW1, to my mind is not appropriate witness to give evidence in respect of exhibit DWC1-74. In view of this finding no evidential value will be accorded to exhibit DWC1-74, this goes to establish that the defendant has failed to prove payment of disengagement of entitlement to the claimants. The defendant would have been on a solid footing if cogent and compelling evidence has been adduced to show the payment. From exhibit DWC1-74 it seems the purported payment of disengagement was done on 13/10/2008 through the various bank accounts of the recipients, including some of the claimants. But, the defendant has not made any effort to tender the statement of accounts of the claimants from their various banks to establish the actual receipt of the purported disengagement benefits, if such payment had actually been made. The failure on part of the defendant to tender concrete proof of receipt of the disengagement benefits of by the claimants is fatal to the defence.

There is also the argument that since vide exhibit CWD1-2, which are two letters of promotions in respect of Mr. I. Paul Okon and Miss H. Lawal, the claimants are still in service of the defendant as at 20/3/2007, when those letters were issued to the claimant, since it is only those in service that can be promoted. I do agree with the counsel for the claimants’, that exhibit CWD1-2, clearly shows that those who have been promoted are still in service of the defendant as at 20/3/2007. But, same cannot be said of the other claimants the reason being that there is nothing before the court to establish that the remaining claimants have also enjoyed the said promotion.

On the whole, it is my finding that some of the claimants were aware that they have been disengaged from service of the defendant on 12/3/2007, when they filed and signed clearance form. However, there is no proof that they had been paid any entitlement for the disengagement as averred by the defendant, to this end the defendant has not proved the payments as claimed.

The main claim of the claimants is payment of salaries from March 2007 to April 2017, this is a monetary claim. While the other remaining reliefs of interest, damages and injunction are ancillary, that is to say they are dependent on grant of the main relief of entitlement to salaries. The claim for salaries being monetary in nature translate to the claimants making claim for special damages, which by the decision in the case of NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) and 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) must be specifically pleaded, particularized and specially proved with credible and compelling evidence to the satisfaction of the Court. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence.

It has also been established by this court as per the decision in the case of Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018; that:

In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.

In fact, the case of Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc [2015] LPELR-24630(CA) specifically cautions against the reliance on an oral contract as proof of such entitlement.

It must be made clear here that the claimants in this case are not challenging their disengagement from service, their case is that they are employees of the defendant and entitled to be paid their salaries which was stopped in March 2007 to April 2017. They contended that being public officers employed by a statutory body their employment is clothed with statutory flavor. And, if they are to be disengaged Public Service Rules must be followed. They also stated that there is no provision for downsizing in the Public Service. The position taken by the claimants is faulty in that there is no evidence showing that they were employed in the Federal Civil Service of the Federation to make the public service rules applicable to their employment. The mere fact that they are public servant does not ipso facto make them to be civil servant under the Federal Civil Service Commission, to make their contract of employment to be that with statutory flavor. There was no evidence showing that they were employed by the Federal Civil Service Commission or that they were employed on the directive of the Federal Civil Service Commission. The evidence that is not in dispute is that the claimants were employed by the defendant in the exercise of the power conferred on it by the Legal Education (Consolidation) Act. The claimants having failed to adduced evidence to prove their employment being made under the public service rules or that it is applicable to their employment cannot be heard to claim that public service rules must be complied with in determination of their employment.  

The counsel for the claimant has in his final written address and in the oral adumbration before the court relied heavily on purported admission of their claim by the defendant. As pointed out claim of special damages is in a category of claim that has to be strictly proved before the court grants such a relief. I have in the earlier part of this judgment reproduced the reliefs being sought by the claimants, which to my mind represent a clear departure from the requirement of claim for special damages. A Part from non-particularization of the claims of the claimants, the reliefs were vaguely couched without specifity. These types of claims are not grantable by the court. 

To determine whether the claimants are entitled to salaries and entitled to be paid their backlog of their salaries together with all other entitlement, the claimants are duty bound to particularized and quantum ascertained, the claim have not been proved, as the claimant have not tendered any evidence of what their salaries are or entitlement on monthly basis or otherwise. The failure by the claimant to prove the quantum of their salaries has deprived this court of the power to grant such claim, the claim is nebulous and vague. See Chinyere B. Aharanwa (Mrs) V Peoples Bank of Nigeria Ltd & Anor. (2019) 16 ACELR32. Also The apex court has deprecated this type of claim and refused to grant it see University of Jos v Ikegwuoka (2013) 9 NWLR (Pt.1360) 478, in that case the plaintiff had claimed an order directing the appellant to confirm his appointment as lecturer ii in the department of political science at University of Jos with effect from 27th January 1995 with all his promotions, allowances and entitlements, etc. the entire claim of the claimant was dismissed on appeal the court of appeal allowed the appeal. But on further appeal to Supreme Court, the appeal was allowed in part. However, the part of the claim relating to promotions, allowances and entitlement were adjudged not to have been satisfactorily proved and accordingly dismissed. The apex court stated thus:

‘’All the reliefs to promotions, allowances and entitlements being reliefs that are vague, uncertain and lacking in particulars and proof by evidence must fails there was no evidence of any promotion, allowances or entitlements enuring to the respondent which appellant is withholding from being exercised in the respondent’s favour by the appellant.’’

I must observe in regard to this matter that the Claimants have neither pleaded satisfactorily their special damages to wit; emoluments and entitlements accruable to them. The law is well settled that unless pleaded specially and proved strictly, the court is not obliged to grant such claim or make any award in that regard for special damages. 

On solicitors’ fees, is a claim that is not grantable. It has been established that a claim for solicitors professional fees or fees like in this case does not form part of the cause of action that give rise to suit under consideration. In the case at hand the cause of action is on termination of employment period and not on refusal to settle solicitor’s professional fees as charged by the solicitors. 

It is trite law that a relief which a claimant in an action is entitled to, if established by the evidence, are those reliefs which form part of the claimant's cause of action. From the pleadings, in this case the cause of action is the alleged non-payment of salaries. The claim for Solicitors fees for prosecuting the claimants’ action is not part of the cause of action. In GUINNESS NIGERIA PLC vs. NWOKE (2000) 15 NWLR (pt.689) 135 at 159 the Court of Appeal held that a claim for Solicitors fees is outlandish and should not be allowed as it did not arise as a result of damage suffered in the course of any transaction between the parties. Similarly, in NWANJI vs. COASTAL SERVICES LTD (2004) 36 WRN 1 at 14-15, it was held by the Supreme Court that it was improper, unethical and an affront to public policy, to have a litigant pass the burden of costs of an action including his Solicitors fees to his opponent in the suit. Therefore, I think that on the current state of the law, a claim for Solicitors fees, which does not form part of the Claimant's cause of action, is not one that can be granted. See also MICHAEL V. ACCESS BANK (2017) LPELR-, ABURIME V NPA (1978) LPELR-60(SC).

On claim for injunction, this relief depends on grant of main relief with the failure of main relief this relief has failed. The claimants are not entitled to injunctions being sought.

I wish to observe here that the claimants though suing in representative capacity, their claims being peculiar to them individually have the bounden duty of proving being entitled to the reliefs being sought individually as it is not a collective claim, it is distinct to each of them. 

From all I have been saying above, the claimants have failed to prove their claim for payment of salary due to lack of proof. The claim lacks merit, same is hereby dismissed.

Judgment entered accordingly.

 

 

Sanusi Kado,

Judge.

 

REPRESENTATION:

Joseph O. Ilorah, Esq; for the claimants, appearing with Vivian Akwoe, Esq; and Joy Asije, Esq;

D. H. Bwala, Esq; for the defendant.