NIC Judgement: Abdullahi Dikko Bello & 27 ors V The Governor, Nassarawa State & 5 Ors(2020).
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
ON THE 20TH DAY OF FEBRUARY, 2020
SUIT NO: NICN/MKD/65/2017
BETWEEN:
1. ABDULLAHI DIKKO BELLO
2. ABDULAZIZ BELLO
3. AMINA U. GURKU
4. MOHAMMED IBRAHIM
5. ELIZABETH J. ASHIM
6. SALE D. IBRAHIM
7. JIBRIN AHMED
8. JOSEPH A. UMBUGU
9. GRACE DANLADI
10. RIFKATU TSAKU RAHILA YASHIM ….………………………. CLAIMANTS
11. RAHILA YAHSIM
12. VICTORIA MARKUS
13. ILIYA EMMANUEL
14. HAJARATU KUJE
15. GRACE T. ABALAKU
16. SYLVESTER A. ASHIEKENI
17. MONDAY AUDI
18. SOLOMON E. BAWA
19. AYE JOHN AZIGE
20. ABUBAKAR ISA LADAN
21. ABUBAKAR ABUTU
22. JULIET N. OSE
23. ABUBAKAR WADA
24. MADALLA A. LIZZI
25. LARABA MARKUS
……………………….…CLAIMANTS
26. MR. BARTHOLOMEW AJEGENA
27. MARYAM MUSA
28. IBRAHIM BELLO IBRAHIM
AND
1. THE GOVERNOR NASARAWA STATE
2. THE HON. ATTORNEY GENERAL/COMMISSIONER
FOR JUSTICE NASARAWA STATE ……DEFENDANTS
3. THE SECRETARY TO NASARAWA STATE GOVERNMENT
4. NASARAWA INVESTMENT AND PROPERTY DEV.
COMPANY LIMITED
AYUBA D. AYENAJE (LIQUIDATOR)
REPRESENTATION:
Claimants present
Defendants absent
E.O. Vincent for the Claimants
I.K. Nwafor with D.M. Balami for the Defendants.
JUDGMENT
BY way of a complaint dated and filed on 10/10/2017, the Claimants commenced this suit against the Defendants seeking from the Honourable Court the following reliefs:
“A. A declaration that the purported retrospective disengagement of the claimants from the services of the 4th defendant vide letters dated the 10th August, 2017, with reference No. NIPDC/S/PER/VOL.1/101 issued by the 5th defendant is null and void, and of no effect.
B. An order setting aside the purported retrospective letters of disengagement dated 10th August, 2017, with reference No. NIPDC/S/PER/VOL.1/101 issued by the 5th Defendant for being contrary to the terms and conditions of service of the 4th Defendant and also a nullity.
C. An order of this Honourable Court re-instating all the claimants to their positions and offices with the 4th defendant with all their entitlements till date and declaring that the claimants are still in the employment and at the services of the 4th Defendant with all their salaries allowances and benefits intact and running from 1st December, 2016 till date.
D. A declaration that the claimants can only be disengaged from their services in the employment of the 4th defendant in accordance with the terms and conditions of service of the 4th Defendant and with all their benefits and entitlements that are to be paid in accordance with the terms and conditions of service before termination.
E. An order of this Honourable Court restraining the Defendants from winding up the 4th Defendant or settling out any property of the 4th Defendant pending the determination of this suit.
F. An order of this Honourable Court awarding the sum of Fifty Million Naira (N50,000,000.00) as general damages on the premise of traumatic experience and psychological pains prompted by the issuance of the various retrospective letter of disengagement with reference No. NIPDC/S/PER/VOL.1/101 to 106 (serial Numbers) issued by the 5th Defendant.
G. The cost of this suit.”
CASE OF THE CLAIMANTS
From what the claimants called their Statement of Claims, the case of the claimants is that they are confirmed staff of the 4th defendant having their letters of appointment and confirmation. That the Defendants had terminated the appointment(s) of the claimants retrospectively. That the defendants lack the power to disengage the services of the claimants from the 4th defendants in the manner in which they have acted. The claimants are of the opinion that the Defendants acted outside the scope of the conditions of service. Following their alleged termination, the claimants stated that they were denied 9 months salaries spanning the period from December 2016 to August 2017.
Prior to their termination vide letter(s)dated 10/8/2017, the claimants had been Civil Servants working with the Nasarawa Investment and Property Development Company Ltd (NIPDC).The claimants have decried that their termination by the defendants has occasioned hardship, trauma, poverty, starvation and serious embarrassment as they are unable to fend for their families hence, the instant claim.
CASE OF THE DEFENDANTS
The Defendants caused a joint statement of Defence to be filed to the claim on 27/10/2017. The Defendants contended in the main that the claimants were employees of the 4th Defendant and not recognized as Civil Servants. That in any case, it was the 5th Defendant, acting as the sole shareholder and in exercise of the administrative powers vested in him that disengaged the claimants. That it became imperative to wind up the activities of the 4th defendant following the liabilities it continued to incur to its shareholders. That achieving the set objectives of the 4th Defendant became impracticable.
The Defendants maintained that the manner of the claimants’ disengagement was in line with the 4th Defendant’s Staff Condition of Service 2008 and the resolution mutually reached through collective negotiation. The Defendants stated that all the Claimants benefits against the 4th Defendant had been discharged hence there are no outstanding salaries or any entitlements. That the settlement of the claimants’ entitlements was done upon their signing and collection of their respective letters of termination. The defendants maintained that the hardship complained of by the Claimants cannot have any bearing on the defendants particularly considering that all the claimants’ benefits were settled at the point of terminating the claimants.
TRIAL
The matter came to trial on 31/01/2019, the 1st Claimant taking the witness stand to testify as CW1. The CW1 adopted his sworn statement on oath dated 10/10/2017 as his evidence in chief before the Honourable Court. The CW1 further tendered 27 letters of disengagement which were admitted in evidence and marked Exhibits ADB1 – 27. Letter from the Office of the Secretary to the State Government of Nasarawa State dated 28/10/2016 was also tendered and admitted as Exhibit ADB28 while 35-paged staff Conditions of Service dated 1/1/2008 was admitted as Exhibit ADB 29.
The CW1 was cross examined by learned counsel for the Defendants and minutes of meeting dated 31/07/2017 was tendered and admitted in evidence as Exhibit ADB30. The claimant was discharged after cross examination as there was no re examination.
The Defendants opened defence on 25/03/2019 with John Okoli, a Bank Manager with Fidelity bank Plc testifying as DW1, doubling as Account Officer and relationship manager. The DW1 sworn on the Holy Bible and tendered the statement of account Number 4010544186 of the 4th Defendant spanning from 1st July 2017 to 30th September,2017 which he had certified as emanating from the bank’s database. The said statement of account and the certificate of compliance were admitted in evidence as Exhibits NIPDI (A) - NIPDI (E).
The DW1 was thereafter cross examined by learned counsel for the Claimants and discharged.
Defence continued with one Ayuba Dogara Ayenajeh, who was a Public Servant as a Commissioner and the 5th defendant taking the witness stand to testify as DW2. The DW2 adopted his sworn statement on oath of 27/10/2017 as his evidence in chief and tendered the following documents which were admitted in evidence and marked thus:
1. Minutes of meeting with attendance list of 31/07/2015 and 10/08/2017 as Exhibits NIPD2 and NIPD3A and B.
2. Schedule of outstanding salaries, gratuities and salaries in lieu – Exhibits NIPD 4A, 4B and 4C.
3. Letter dated 15/08/2017 addressed to the 5th Defendants by AUPCTRE – Exhibit NIPD5.
4. Copies of Fidelity Bank Cheques – Exhibit NIPD6A, 6B and 6C
5. Statement of Account of the 4th Defendant - Exhibit NIPD7
The DW2 was thereafter cross examined and discharged upon conclusion of cross examination as there was no re- examination. Final written addresses were then ordered by the court.
Parties adopted their Final Written Addresses on 3/12/2019.
SUBMISSIONS OF THE DEFENDANTS
The Defendants’ Final Written Address was filed on 7/11/2019 and posed three (3) issues for the determination of the Honorable Court, to wit:
“i. Whether the claimants disclosed any reasonable cause of action against the 1st, 2nd and 3rd Defendants.
ii. Whether the claimants proved their claims against any of the defendants by credible evidence.
iii. Whether from the resolution of our issues 1 and 2 above, the claimants are entitled to the reliefs sought.”
On issue one, learned counsel for the claimants argued that pleaded facts in support of a case do not by themselves constitute a reasonable cause of action. That the cause of action must set out a legal right inuring to the claimant and show how such right has been infringed by the Defendant. Cited OWNERS MV. HOPE S.C. NIG. LTD (2007) 15 NWLR (PT. 1056) 189 @ 207; PHERMA-DEKO PLC V. FINANCIALDERIVITIES COMPANY LTD (2014) LPELR – 24047 (CA), amongst others. Counsel therefore submitted that the claimants had no established cause of action and that their pleading was absent of demonstrable evidence.
On issue two, while relying on the cases of UWAH V. AKPABIO (2014) 2 SCNJ 285 @ PG 288 R3; ATTORNEY GENERAL, RIVERS STATE V. ATTORNEY GENERAL, AKWA IBOM STATE (2011) 8 NWLR (PT. 1248) 31 SC, amongst others, counsel submitted that unsubstantiated pleadings go to no issue and that the claimants have been unable to establish their claims against the Defendants with credible evidence.
With regards to issue three (3), Counsel relied on the submission on issues one (1) and two (2) to maintain that pleadings as well as the evidence, particularly Exhibits ADB1-27 that the claimants are relying on to say that they were retrospectively disengaged also show that they duly signed the Exhibits. Therefore counsel urged the court to find that the disengagement of the claimants was lawful.
SUBMISSIONS OF THE CLAIMANTS
On the part of the claimants, counsel filed the Final Written address on 3/12/2019 and adopted the three issues raised by the defendants as follows:
“I. Whether the claimants disclosed any reasonable cause of action against the 1st, 2nd and 3rd Defendants?
II. Whether the claimants proved their claims against any of the defendants by credible evidence?
III. Whether from the resolution of our issues 1 and 2 above the claimants are entitled to the reliefs sought?”
While urging the court to answer issue one (1) in the affirmative, counsel placed reliance on the case of YUSUF V. AKINDIPE (2000) 8 NWLR (PT 376) and submitted that the cause of action for the claimants’ claim is not lost on the Defendants. That the Defendants are in fact rather querying the sufficiency of the averments in support of the cause of action. Counsel submitted that it is within the exclusive purview of the court to do and not for the Defendants to determine. Counsel prayed the court to resolve the issue in favour of the claimants.
On issue two, counsel argued that the obligation of the defendants with regards to the settlement of the obligations owed the Claimants cannot be likely waived by simply stating that the claimants had been paid specified amount as settlement of arrears of salaries owed them.
Considering issue three, counsel argued that the winding up of the 4th Defendant at the instance of the 1st, 2nd, 3rd and 5th Defendants without the participation of the shareholders or the board of directors of company is arbitrary and unlawful. Counsel urged the court to so hold.
OPINION OF THE COURT
I have gone through the pleadings of the parties, the evidence adduced and the submissions of the Counsel for the parties.
Although the Claimants have adopted the three issues formulated by the defendants but I think the issue of whether the claimants have proved their case against the defendants to be entitled to the reliefs sought can conveniently address all the three issues.
The Defendants have raised a preliminary objection in their joint statement of defence and argued the issue in their final written address. The objection borders on non-disclosure of cause of action or reasonable cause of action against the 1st, 2nd, 3rd and 5th defendants.
A cause of action means the factual situation stated by the Claimant, if sustained, entitles him to a remedy against the defendant. It is the entire set of circumstances giving rise to an enforceable claim. It is in effect, the fact or combination of facts which give rise to a right to sue. The phrase comprises every fact which is material to be proved to enable the claimant to succeed. See Rinco Const. Co. V. Veepee Ind. Ltd(2005) LPELR-2949 (SC).
While, reasonable cause of action means a cause of action with some chances of success. For a statement of facts to disclose a reasonable cause of action, it must set out the legal rights of the Claimant and the obligations of the defendant. It must then go on to set out the facts constituting infraction of the claimant's legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the claimant will succeed in the relief or remedy he seeks. The word reasonable means fair, proper, just, moderate, suitable under the circumstances. See Alhaji Ibrahim V Osim (1988) 12 NWLR (Pt. 576) 56.
In order to discover whether a cause of action is disclosed, the court must limit itself to the claimant's pleadings and no resort whatsoever ought to be had to the statement of defence.
The Claimants have in paragraphs 1, 2, 3, 4, 5 and 6 of the statement of facts stated that they are employees of the 4th defendant which was incorporated by the Government of Nassarawa State. That the 1st defendant is the Governor of Nassarawa State while the 2nd defendant is the Chief law officer of the State. That the 3rd defendant who is the Secretary to the Government of Nassarawa State appointed the 5th Defendant to wind up the activities of the 4th Defendant which led to purported disengagement of the claimants. In fact, it was the 4th Defendant who signed the disengagement letters.
Having carefully examined the statement of facts, I am of the opinion that there is a nexus between the claimants and the defendants. The statement of facts have set out the legal rights of the Claimant and the obligations of the defendants. The claimants averred that prior to their retrospective termination, the defendants owed them arrears of salaries for a period of 9 months and I consider this as a fact constituting an alleged infraction of the claimants' legal right.
Going by the above, I hold the view that there is a reasonable cause of action disclosed by the Claimants against the 1st, 2nd, 3rd and 5th defendants and the objection of the defendants is hereby overruled.
For the main claim, the law is well established in our judicial system that he who asserts must prove and whoever desires to have judgment in his favour must establish his case on a preponderance of evidence. Such a party therefore must lead credible and legally admissible evidence in order to succeed.
The Claimants in their reliefs No. 1 and 2 of the statement of facts ask for a declaration that their purported retrospective disengagement from the services of the 4th defendant is null and void, and of no effect and for an order setting aside the purported retrospective letters of disengagement for being contrary to the terms and conditions of service of the 4th Defendant.
The Claimants in their bid to prove their case, have produced their disengagement letters (Exhibits ADB1 - 27).They have also placed before the court the staff Conditions of Service (Exhibit ADB 29).
I wish to observe that although the claimants in their paragraph 7 of the “Statement of Claims” pleaded their appointment and confirmation letters but none of the said letters was tendered in evidence. I presume that the claimants have only decided not to tender any of such letters. At any rate, I will also presume that the letters of disengagement of the claimants presupposes that there were letters of appointment.
I also wish to observe that the staff conditions of service (Exhibit ADB 29) which is a 35 paged document was only tendered by the Claimants without specifically referring to a particular provision of the document that was breached by the defendants either in their pleading or in the witness statement on oath.
The position of the law is that it is the duty of a party who has tendered a document in Court in support of his case to specifically through oral evidence link or tie up the document to the purpose for which it was tendered in evidence for such document to be evaluated and ascribed probative value by the Court. It is not the duty of the Court to investigate documents placed before it to ascertain the purpose for which it was tendered in evidence. A party who did not lead evidence to tie up document he has tendered before a Court is deemed not to have talked to the document but merely dumped the document on the Court and in which case the document would not be accorded probative value. It is immaterial the way and manner the document was admitted in evidence. Even when a document was properly admitted in evidence and most useful in the determination of the case, once there is no admissible oral evidence to link up the document with the purport for which it was tendered and relate same to the case; then the document will not add value to the case of the party because the document though may speak for itself after oral evidence has led to its proper admission in proceedings, but before then, oral evidence must be called to speak to it at the initial stage of the proceedings to avoid the ailment of dumping the same on the Court. See DUNG vs. RAILWAY PROPERTY MANAGEMENT COMPANY LTD.(2018)LPELR-45378(CA), EJIOGU V. ONYEAGUOCHA (2006) ALL FWLR (PT. 317) 467; ARABAMBI V. ADVANCE BEV. IND. LTD. (2006) ALL FWLR (PT. 295) 581; LUMATRON NIGERIA LTD. & ANOR. V. FIRST CITY MONUMENT BANK PLC. (2016) LPELR- CA/L/860/2013.
The Court cannot assume the duty of tying each bundle of documentary exhibits to specific aspect of the case for a party when that party has not done so himself. The foundation of the principle is that it is an infraction of fair hearing for the Court to do in the recesses of its chambers what a party has not himself done in advancement of his case in open Court.
See ENUDI & ANOR. V. OSUMILI (2012) LPELR - 9844 (CA); HADYER TRADING MANUFACTURING LIMITED & ANOR. V. TROPICAL COMMERCIAL BANK (2013) LPELR - 20294." Per OBASEKI-ADEJUMO, JCA.(Pp.34-36,Paras.D-B).
The law is trite that Documentary evidence tendered and admitted in proof of a party's case remains dormant, unless and until they are activated by oral evidence to allow the Court speak to them. Where the party dumps them on the tribunal or Court, without relating them to the averments in its case, the Court will not discern and decide what document is meant to prove which particular averment in the case. See ACN Vs. Nyako (2015) 18 NWLR (Pt.1491) 352 at 395.
The essence of the above principles is to shield the Court from the error of abandoning its role of impartial arbiter, to descend into the arena of conflict, trying to make a case for a party. See Nwankwo & Anor. Vs. Agwo & Anor. (2016) 40808 (CA); Nobis -Elendu Vs.INEC (2015) LPELR - 25127 SC; Suberu Vs. The State (2010) 8 NWLR (Pt.1197) 586; (2010) LPELR - 3120 SC; Ajakaiye Vs. The State (2015)5 WRN 64.
In any event, let me refer to clause 10.4 of Article X of the conditions of service which talks about Termination. Clause 10.4(a) provides as follows;
" The appointment of any confirmed member of staff may be terminated at any time by the company giving the following period of notice in writing.
Management staff: Three calendar month's notice or three month's salary in lieu.
Senior staff: Two calendar month's notice or two month's salary in lieu.
JUNIOR STAFF: One calendar month's notice or one month's salary in lieu."
In the light of the pleading of the claimant and the provisions of the above clause, there is no evidence before the court that the Claimants are confirmed staff of the 4th Defendant. There is also no evidence before me that the Claimants are either senior or junior staff of the 4th defendant to enable the court know whether the provisions of clause 10.4 were breached or complied with.
Exhibits ADB 1 to 27 are letters of disengagement of the claimants. They were all dated 10/8/2017. The contents of the letters state as follows;
".....Following the decision of the Nassarawa State Government to wind-up the activities of Nassarawa Investment and Property Development Company, I am directed to inform you that your services are no longer required with effect from 1st day of December, 2016.
2. All your salaries due and payable as at 30th November, 2016 will be paid to you immediately, while your pension (if any) will be handled by the PFA in due course.
3. You are by thus letter requested to hand over all the company's properties in your possession (if any) to the liquidator.
4. Government appreciates your contribution and wish you well in your feature endeavor.
Ayuba D. Ayenajeh(fca)
Signed
I................ read the content of this letter and hereby consented to same.
Sign.......................... Date..................... "
It is clear from Exhibits ADB 1 to 27 that all the claimants save claimants NO. 21 and 22 signed on the documents and consented to same.
It is the law that where parties have entered into a contract or agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement. See A.G. Rivers State vs.A.G. Akwa Ibom State (2011) 8 NWLR (Pt.124831at83), Paragraphs. B-C.
It is imperative to state that there is no fact from the pleading of the claimants or any evidence adduced that the Claimants signed Exhibits ADB under fraud, mistake, deception or misrepresentation. In fact there is no particulars of those allegations in the entire pleading of the claimants.
In the light of the foregoing, I find that there is no sufficient evidence to grant reliefs NO. 1 and 2 of the claimants' claim by declaring the letters of disengagement null and void and setting them aside. I therefore refuse the said reliefs.
The Claimants also ask in their 3rd and 4th reliefs for an order of this Honourable Court reinstating them all to their positions and offices with the 4th defendant with all their entitlements still date and declaring that they are still in the employment and at the services of the 4th Defendant with all their salaries allowances and benefits intact and running from 1st December, 2016 till date. And a declaration that they can only be disengaged from their services in the employment of the 4th defendant in accordance with the terms and conditions of service of the 4th Defendant and with all their benefits and entitlements that are to be paid in accordance with the terms and conditions of service before termination.
The above reliefs are only applicable in employment with statutory flavour. The employment of the claimants appears to be a simple master and servant relationship. It is a contract of service and there is no evidence to show that It has any statutory flavor and cannot therefore be elevated as such. The Court cannot reinstate a staff in a contract of employment except of course the contract agreement between the parties expressly says so. It is trite that one cannot force a willing servant on an unwilling employer and so the court cannot treat the contract between the parties as continuous one by directing the defendants to pay the claimants their salaries, emoluments and benefits to date. Claimants` relief NO.3 is accordingly refused. See Afribank V Osisanya (1999) LPELR-5206 (CA).
The Claimants in their pleading averred that the Defendants are owing them 9 months’ salary although there is no specific prayer to that effect. And to prove an entitlement, an employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.)Ltd in unreported Suit No.NICN/LA/602/2014 the ruling of which was delivered on 17th January, 2017 by KANYIP J. (as he then was) and Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60NLLR (Pt.208) 39.
The law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022 (SC) and Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors [2009] LPELR-515 (SC); [2009] 13 NWLR (Pt.1159) 445SC. There is no document before me showing the monthly salaries of the claimants. DW1 said under cross-examination that his first Bank salary account was credited on the 15/8/2017 to the sum of N 1,385,534.49 and his monthly salary was N98, 167,66.That the other claimants also shortly after signing Exhibits ADB 1 to 27 received credit alerts. That the amount received on the 15/8/2017 is far more than above his annual basic salary. I observe that although the Claimants have not told the court what the payments made were for but DW1 stated that he received instructions from the 4th defendant to transfer money to some staff to the tune of One Hundred and Twelve Million, Eight Hundred and Ninety Thousand, four Hundred and Twenty Three Naira, Eighty Four Kobo(N112,890, 423.84) as arrears of salary, gratuity and in lieu of notice.
On the whole, claimants' reliefs No. 4 ,5 ,6 and 7 are also refused as the claimants have not been able to prove their case against the Defendants to be entitled to the reliefs sought. I am therefore unable to see merit in the case of the claimants and consequently the case of the claimants fails and is accordingly dismissed.
Judgment is entered accordingly and I make no order as to cost.
__________________________________
HON.JUSTICES.H.DANJIDDA
(PRESIDING JUDGE)
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