IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
CONSOLIDATED SUITS NOS. NICN/EN/CS/25-52/2013 AND NICN/EN/CS/228-285/2013BY ORDER OF COURT DATED 6TH MARCH 2017
DATE: MONDAY 25TH FEBRUARY 2019
BETWEEN:
91 CLAIMANTS:
1. AMU FELIX
2. OKPARA SEBASTIN
3. ONWUBUARIRI DEUS
4. JOSEPH EDEH
5. OFFIAH BENARD
6. EZEOBA CANNICE
7. EZE O. FRANCIS
8. FRANCIS AWGWONU
9. MR. PATRICK NDIFE
10. BENEDICT ANEKE
11. MRS. REGINA IROH
12. LAMBERT ABARA
13. NONYELUM UKAMAKA ORANUSI
14. ODEMENA C.N.
15. AYA AUGUSTINE
16. IZUEKE CLETUS U.
17. ANUKWU ROMANUS
18. CHARLES O. EZE
19. UDEH A.N.
20. ALI ELIAS
21. ISAAC OKENWA
22. IGBONEKWU LINUS
23. OKORIE UGWUOZOR
24. ELO BONIFACE
25. BASSEY OZONYIA
26. CHARLES OGWUDILE
27. FIDELIS EDE
28. ONYIA FESTUS NWAORA
29. MRS. EKEIGWE STELLA
30. NWAMANI FRANCIS
31. JOSEPH EZE
32. OKONKWO CYPRIAN
33. NWANGA HYACINTH
34. NWACHUKWU E. OKEKE
35. AGBOGU C.C.
36.ONUOHA C.O.
37. JOHN OKORAFOR
38. SIMON ELO O.
39. MICHAEL AKPAN
40. MR. MATHEW BELEONWU
41. OZOR PETER
42. NWAWUTHE CLEMENT
43. MRS. ONUABUCHI A.I.
44. UDE CHARLES
45. ONWUNARA RAYMOND
46. AMAH STEPHEN
47. NNAJI CHRISTOPHER
48. IFEOMA A. EZE
49. KINGSLEY C. EZE [48A]
50. NWABUISI OFOEGBU
51. OGALAGU EMMANUEL
52. JUSTINA OGBU
53. JAMES OGBU [51A]
54. MR. SYLVANUS NEBO
55. RAPHAEL C. MBA
56. EUPHEMIA N. MBA [53A]
57. IBE FLORENCE
58. IBE NKIRUKA [54A]
59. CHARLES ELUKE
60. ONWUMERE RAPHAEL
61. OGBODO SUNDAY C.
62. AZIKE T.E.
63. MRS. MADUKWE CECILIA
64. NNAJI CHRISTPHER (SCFN)
65. DAVID UGWU OKAFOR
66. ENEMUO JUSTINA
67. ENEMUO JENNIFER [62A]
68. ENETE ALBERT
69. UGWU MODESTA
70. MR. ANEKE SAMUEL
71. AMADI MICHAEL
72. ANYAJIKE V.U.
73. EDWIN ONYIA
74. ANAYNWU NICHOLAS
75. OBILOR CHUKWUMA
76. OBIMALOKWU CHARLES
77. LINUS OFFOR
78. ANTHONY ONYESO
79. MRS. OKEREKE CLEMENTINA
80. NELSON O. OLERIBE
81. ANYATA VICTORIA
82. IGBOKWE VINCENT
83. MRS. UMERA PATRICIA
84. NDU MARK
85. UZU CHARLES
86. UDEH SILVANUS
87. MRS. JOY NMEZI
88. OPARAUGO FRANCIS
89. OKAIBE FELICIA
90. OKAIBE CHUKWUEBUKA [84A]
91. EGBO CHRISTOPHER
AND
2 DEFENDANTS:
1. NIGERIA RAILWAY CORPORATION
2. NIGERIAN RAILWAY PROPERTIES C. LTD
APPEARANCES:
1. C.C. EZE FOR THE CLAIMANTS.
2. E.A. NWORA FOR THE DEFENDANTS.
JUDGMENT
INTRODUCTION
These consolidated suits were originally commenced by Writs of Summons at the Federal High Court before exclusive jurisdiction on employment, labour and industrial matters was vested in the National Industrial Court in 2011. The cases were, as a result, subsequently transferred to this Court. On 6th March 2017, this Court consolidated all the cases vide the order of Hon. Justice A. Ibrahim. Later, on 13th February 2018, this Court, vide Hon. Justice I. J. Essien, ordered the suit to be heard on Originating Summons and subsequently adjourned for hearing. The parties filed their processes accordingly. This is the stage at which I met the consolidated suits on 26th November 2018 when the consolidated matters first came up before me. The claimants [wrongly titled ‘plaintiffs’] filed their Originating Summons dated 26th April 2018 on 11th May 2018. It was accompanied with affidavit, exhibits and the written address. In the Originating Summons, the following questions were submitted for the determination of the Court:
1. Whether Paragraph 17(c) of the Revised Guidelines for the Submission of Staff Severance List by MDA issued by the office of the Head of Civil Service of the Federation, dated 16th June, 2005 does not entitle the Plaintiffs [sic] to
i. Gratuity
ii. Pension (for one year in the first instance for the severance budget)
iii. 10% of gratuity
iv. 10% of pension for one year
v. Reparation allowance
Considering their years of service, in the Civil Service.
2. Whether Paragraph (i) of the Federal Establishment Circulars 2003 – 2005 of December, 2005 entitles the Plaintiffs to first option to purchase of the official residences which they occupy.
3. Whether by Paragraph 12 & 13 of the Approved Guidelines for the sale of Federal Government Property the Plaintiffs are not entitled to right of first refusal of the government quarters which they occupy.
4. Whether suit no FHC/EN/CS/29/2006 CHIZOBA ONOVO VS NRC & ANOR Judgment delivered by the Federal High Court Enugu which pronounced the 1st day of November 2005 as the effective date of retirement of the Plaintiffs, entitles the Plaintiffs to benefit from Pro-Forma (HAPSS) Salary Structure effective from the 1st of October, 2005.
The claimants seek the following reliefs:
1. A Declaration that the action of the 1st Defendant in withholding the Plaintiffs’ pensions is null and void.
2. A Declaration that the action of the 1st Defendant in expunging the Plaintiffs’ names from pension vouchers, is illegal, ultra vires and of no effect.
3. A Declaration that the status of the current plaintiffs’ effective retirement date is 1-11-05 vis-à-vis the judgment in FHC/EN/CS/29/2006 – CHIZOBA ONOVO VS NRC & ANOR.
4. An Order of the Honourable Court compelling the 1st Defendant to restore the Plaintiffs [sic] name to the relevant pension vouchers of the defendant.
5. An Order of the Honourable Court for the Plaintiffs to be paid their accurate monthly pension from 1st May, 2008 till date.
6. An Order of the Honourable Court mandating the 1st Defendant to give effect to the declaration in (4) above, by paying the plaintiffs their pensions with immediate effect, according to HAPSS of 1st October, 2003 and other increases in monthly pension based on monetization of 1st October, 2003, 15% increase in monthly pension [sic] took effect from January 2007 to June 2008, 33% increase in monthly pension took effect from June 2010 to February 2016 and 1% increase in monthly pension took effect 1st July, 2010 till date.
7. An Order of this Honourable Court restraining the Defendants from ejecting the Plaintiffs from the quarters or doing anything that is prejudicial to issues already joined in this suit until the payment of their right as may be granted by the Court.
8. An Order of this Honourable Court that the plaintiffs as Public Servants are entitled upon termination of their employment to pension and gratuity and all other benefits applicable to staff of their cadre.
9. An Order of the Honourable Court compelling the 1st defendant to pay to the Plaintiffs’ [sic] further special damages as contained in the schedule to this Accompanying Affidavit using the 28th plaintiff as forerunner being the short fall between what they were paid at retirement and their due benefits under the Monetization Scheme as itemized hereunder:
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SUMMARY OF TOTAL AMOUNT OWED ME BY MANAGEMENT OF NIGERIA RAILWAY CORPORATION FROM 1ST OCTOBER, 2003 – FEBRUARY 2016.
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NAME: …………………………………………………………………………………….
GRADE LEVEL: ………………………….. STEP: …………………………………….
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PENSION IDENTITY CARD NO: …………………………………………………
YEAR OF SERVICE FROM: …………………………. TO: …………………………..
BANK NAME: ………………………………………………………………………….
BANK ACCOUNTS NO: ………………………………………………………………...
SEVERANCE PACKAGES AS APPROVED BY THE FEDERAL GOVERNMENT
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1 |
One year pension in the first instance
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2 |
10% of gratuity |
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3 |
10% of pension for one year |
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OTHER CLAIMS
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Old Rate Paid |
New Rate Monetization |
DIFF |
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1 |
Difference in gratuity arising from monetization |
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2 |
Difference in repatriation arising from monetization |
8,078.40 |
11,391.20 |
3312.8 |
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3 |
Difference in 7 months pension paid on old rate for periods Sept, 2005 – March, 2006 |
74,986.52 |
213,062.08 |
138,075.51 |
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4 |
Difference in 9 months pension also paid on old rate for the periods July, 2007 – March, 2008 |
96,411.24 |
262,251.4 |
165,840.16 |
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5 |
15 Months unpaid pension for periods, April, 2006 – January, 2007 as follows: |
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A
B |
9 Months from April, 2006 – Dec, 2006 based on monetization
6 months from January, 2007 – June, 2008 based on 15% increase in pension |
Not pd
Not pd |
312251.4
250392.74 |
312251.4
250392.74 |
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6 |
Difference in months’ salary paid in lieu of notice arising from monetization. |
43,884.00 |
129,490 |
85,606.00 |
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7 |
Refund of 14 months contribution pension found deducted from my salary from July, 2004 – August, 2005 |
-------------- |
20,744.20 |
20,744.20 |
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8 |
Difference in leave grant paid/unpaid for 2004/2005 arising from monetization |
17,553.60 |
18,782.40 18,782.40 |
1,228.80 18,782.40 |
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9 |
2 Months unpaid salary Sept, 2005 and October, 2005 |
Not pd |
79,660.00 |
79660.00 |
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10
A
B |
Seizure of 95 Months pension cum expunging my name from pay-roll from April 2008 – February 2016 inclusive (i.e 7 years 11 months) as follows:
26 months from April 2008 – May 2010 still on 15% increase in pension
69 months from June, 2010 – February 2016 inclusive based on 33% increase in pension |
Not pd
Not pd |
8,483,168.54
2,786,157.60
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8,483,168.54
2,786,157.60 |
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11 |
Medical allowance of 10% of Annual Basic Salary from 1/10/2003 – 30/9/2005 |
Not pd |
37,564.80 |
37,564.80 |
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12 |
Furniture allowance of 40% of Annual Basic Salary from 1/10/2003 – 30/9/2005 |
Not pd |
150,259.20 |
150,259.20 |
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13 |
Payment of difference in salary arising from monetization |
PAID |
PAID |
PAID |
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14 |
Refund of December, 2003/January 2003 meal and Transport allowance |
PAID |
PAID |
PAID |
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15 |
Damages |
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GRAND TOTAL |
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NOTE: This my claims stopped on February, 2016 N5,988,448.94
10. In the alternative to 5, 6 and 8 above an order permitting the Plaintiffs to set off against the assessed value of the property so as to:
a) Acquire their respective staff quarters in lieu of their entitlements where their entitlements equal the value of the property; or
b) Where the entitlements exceed the value of the property occupied, to acquire the property while being paid by the defendants the difference in value; or
c) Where the entitlement is less than the value of the property, acquire same by paying the difference in value of the property and their terminal benefits to the plaintiffs through the 2nd defendant.
11.General damages of N500,000.00 (Five Hundred Thousand Naira Only) for EACH of the Plaintiffs.
Against the above, the 1st defendant filed a counter affidavit on 25th May 2018 with exhibits. This was accompanied with the 1st defendant’s written address. In reaction to this, the claimants filed a Further Affidavit on 29th June 2018 together with Reply on Points of Law dated 20th June 2018. In further reaction, the 1st defendant filed what it termed, “Further Counter Affidavit in Response to the Plaintiffs Further Affidavit” on 12th July 2018. The consolidated suits came up before me for the first time on 26th November 2018 and it came up for hearing.
HEARING PROCEEDINGS
At the hearing on the 26th November 2018, after the Court had granted the learned counsel to the parties leave to adopt their final written addresses, it was discovered at the point of adoption by the learned counsel to the claimants that, the written address of the claimants was not in the Court’s file. The matter was stood down for the Registry to sort out this, and when the written address could still not be found, the learned counsel to the claimant: EMEKA ASOGWA, applied that the claimants’ copy be used. The matter was stood down the second time to enable the learned counsel to the defendants to compare the claimants’ copy proposed for the Court’s use to the defendants’ copy. After the learned counsel to the defendants: E.A. NWORA had satisfied himself by careful comparison that the claimants’ copy was the same as defendants’ copy, the case was reopened; the learned counsel to the defendants indicated that he was not opposed to the application. The Court therefore accepted the claimants’ copy of the bundle of originating processes for use. Thereafter, the Court gave its nod for the counsel to continue with the adoption of their written addresses. The learned counsel to the claimants: EMEKA ASOGWA relied on the affidavit in support of the Originating Summons. The learned counsel informed the Court that the affidavit had 23 exhibits attached and thereafter adopted the written address filed in support of the Originating Summons. The learned counsel to the claimants thereafter informed the Court that, after service of the Originating Summons on the defendants, only the 1st defendant filed counter affidavit.
At this point, the Court sought to know if the 2nd defendant was served. The learned counsel to the claimants answered in the affirmative; and stated further that, the same counsel used to represent both defendants since the commencement of these suits but chose to file counter affidavit in respect of the 1st defendant alone. The learned counsel to the defendants: E.A. NWORA replied that the name of the 2nd defendant was struck out in a judgment of the Federal High Court in FHC/EN/CS/29/2008 – Chizoba Onovo v. Nigerian Railway Corporation and Nigerian Railway Property Company Ltd delivered 14th June 2014, which judgment had not been appealed till now. The learned counsel to the claimants said the present consolidated suits are different from the suit in which the name of the 2nd defendant was struck out and that, Chizoba Onovo, who was the plaintiff in that suit, is not a party in the present suits; and that, what the Court is being asked to do now, is to strike out the name of the 2nd defendant in this suit. The learned counsel to the claimants also submitted that, this is part of the prayers of the defendants against the consolidated suits.
The learned counsel to the defendants thereafter replied that it was wrong to say that the issue is being raised for the first time when it was raised in paragraph 6 of the counter affidavit. The learned counsel cited CCA Edo State v. Aguele (2007) 36 NWLR (Pt.???) 143 at 152 to the effect that this Court, being a court of coordinate jurisdiction to the Federal High Court, cannot set aside that decision. At this stage, the Court ruled that the issue would be determined with the substantive suits in view of the fact that it was raised in the counter affidavit.
Thereafter, the learned counsel to the claimant stated that, upon being served with the 1st defendant’s counter affidavit, the claimants filed a Further Affidavit. [This Further Affidavit was filed 29th June 2018]. The learned counsel informed the Court that, the Further Affidavit had one exhibit and the Reply on Points of Law attached. The learned counsel to the claimants adopted the Reply on Points of Law. Thereafter, the learned counsel informed the Court that, upon serving the defendants with the Further Affidavit and the Reply on Points of Law, the 1st defendant proceeded to file what it called a ‘Further Counter Affidavit.’ The learned counsel submitted that, this procedure was unknown to law; and that, having replied on points of law, the defendants had no further right of to address. The learned counsel thereafter urged the Court to strike out the said Further Counter Affidavit. The learned counsel to the claimants submitted further that, the Chizoba Onovo’s case cited by the learned counsel to the defendants is a test case and that, he was happy that the learned counsel agreed that, because the name of the 2nd defendant in that case was struck out, it must also be struck out in this instance. The learned counsel to the claimants submitted that, it meant that, the learned counsel to the defendants was saying that, that decision should now apply. The learned counsel to the claimants ended his adumbration on this point.
The learned counsel to the defendants took over and stated that the 1st defendant filed 34 paragraphs Counter Affidavit sworn on 25th May 2018 and that, it had 20 exhibits number A-T. The learned counsel to the defendants relied on the Counter Affidavit. The learned counsel also informed the Court that, the 1st defendant also filed a written address along with the Counter Affidavit, which was dated 25th May 2018. The learned counsel to the defendants proceeded to adopt the said written address. The learned counsel thereafter urged the Court to uphold the prayers of the 1st defendant and dismiss the suit. The learned counsel to the defendants, in adumbration, submitted that, Exhibit S is very clear on the position of all the allowances being claimed while Exhibit O took care of all these allowances. The learned counsel submitted that, paragraphs 14 and 15 of Exhibit O must be complied with before paragraph 17 of Exhibit O could be activated. Aggrieved parties must comply with conditions precedent before approaching courts. On this submission, the learned counsel cited Egwuwanse v. Amaghizemen (1993) 9 NWLR (Pt. 315) 1. The learned counsel to the claimants replied, saying the claimants are service occupants and cited Chukwuma v. SDPC (1992) 4 NWLR (Pt. 289) 41. Thereafter, the learned counsel to the defendants opined that, the Further Counter Affidavit filed is not alien to law and that, though, he did not check the rules; he knew provisions allowing it would be there. The learned counsel to the defendants submitted that, the 1st defendant had a right to react to objections and all issues raised in the Further Affidavit of the claimants; and ended his adumbration.
The case was at this point adjourned to 15th January 2019 for judgment. The judgment was not ready on this date. It was thus adjourned sine die till when it would be ready within the time frame at which point counsel to parties would be informed accordingly. The judgment became ready on 24th February 2019 and the parties’ counsel were accordingly informed of the date for delivery. The next thing is to summarise the written addresses of parties to the Originating Summons.
WRITTEN ADDRESSES OF THE PARTIES
A. Claimants’ Address
EMEKA ASOGWA franked the claimants written address. In the written address, the learned counsel submitted three issues for the determination of the suit, to wit:
A. Whether the effective date of retirement from service of the 1st Defendant is 1st September, 2005 or 1st November, 2005; [sic]
B. Whether the Plaintiffs have been paid their due retirement entitlements; [sic]
C. Whether the Plaintiffs are entitled to bid for the official quarters which they currently occupy and are also entitled to right of first refusal of the highest bid to the said quarters; [sic]
In arguing issue a, the learned counsel to the claimants submitted that, the effective date of retirement from service by the claimants is 1st November 2005. The learned counsel referred to Exhibit 1A, section 04207 of the Public Service Rules, to the effect that, it provides that, “if it is decided that the officer shall leave service immediately, he shall be paid salary equivalent to the period of notice.” The learned counsel argued that, until the claimants were paid the three months salaries in lieu of notice, they remained in service. The learned counsel argued that, the shortfalls in the terminal benefits of the claimants from 1st November 2005 when they were legally retired remained unpaid till date. It is the view of the learned counsel that, this arose because the calculation was based on old salary structure instead of being based on the applicable new salary structure in force as the time of retirement. The learned counsel referred the Court to Julius Berger v. Nwagwu (2006) 12 NWLR (Pt. 995) 518 at 942. The learned counsel also referred to Exhibit 7 [judgment of the Federal High Court in Chizoba Onovo supra] of the affidavit in support, which he said, was delivered on 24th April 2008 and stated that, at page 7, lines 14-16 thereof, the Court held that, the effective date of retirement of the plaintiff therein was 1/11/05 because, his three months salaries in lieu of notice was paid 14/11/05.
The learned counsel argued that, Exhibit 1 is the letter of retirement which the claimants received on 1st September 2005 as deposed in paragraphs 4-6 and 10 of the affidavit in support and that, Exhibit 2 showed the payment of the three months salaries in lieu of notice on 14/11/05. The learned counsel argued that, it was at this point that the claimants realized that they had been short paid. The learned counsel argued that, the facts of the case of Chizoba Onovo are similar to those of these consolidated cases and therefore urged the Court to apply them to these cases. There ended arguments on issue a, and the learned counsel moved to issue b.
On issue b, the learned counsel argued that, the claimants were underpaid in the gratuity, three months salaries in lieu of notice, severance allowance and reparation allowance. The learned counsel referred to Exhibit 3 to the effect that, monies were duly approved for full payment of the claimants’ benefits. The learned counsel argued that, by virtue of Chizoba Onovo’s case, the claimants were entitled to benefit from the new salary structure effective from 1st October 2005 and that, this is yet unpaid. The learned counsel referred to Exhibit 5, a Federal Government Circular dated 24/07/2008 and that, it states that, the period for the computation of the arrears of monetization shall be between 1st October 2003 and 30th September 2005 and that, instead of complying with this circular, the 1st defendant computed the arrears of the claimants based on the old salary structure [Exhibit 4]. The learned counsel referred the Court to Exhibit 15, which he stated, is the schedule of the amounts owed each of the claimants by the 1st defendant. The learned counsel referred the Court to Ekeagwu v. Nigerian Army & Anor (2010) 6 NWLR (Pt. 1270) 217; Isheno v. Julius Berger (Nig) Plc (2008) 6 NWLR (Pt. 1084) 582 and CBN v. Amao (2010) 16 NWLR (Pt. 1219) 271. The learned counsel went ahead to reproduce the tables reproduced under relief 9 of the claimants, showing the computation of the benefits to which the claimants are allegedly entitled.
Thereafter, the learned counsel to the claimants argued that, by the provisions of Article 17(c) of the Revised Guidelines for the Submission of Staff Severance List by Mda from Office of the Head of Service of the Federation dated 16th June 2005 [Exhibit 16], the claimants are entitled to the benefits claimed. The learned counsel reproduced the contents with regard to the bases of the computations. The learned counsel submitted that, the claimants are so entitled, based on the number of their years in service. Thus, arguments were brought to an end under issue b, and the learned counsel moved to issue c.
Under issue c, the learned counsel cited the 5th Edition of the Black’s Law Dictionary on the right of first refusal, to mean, the right of first opportunity to purchase a realty when the it is proposed for sale; and submitted that, the claimants are entitled to this right, as it was conferred on them by the approved guidelines. The learned counsel to the claimants placed reliance on Afolayan v. Ogunride (1990) 1 NWLR (Pt. 127) 369 at 391. The learned counsel submitted further that, this right, is not alienable and must be exercised by the legal sitting tenants of the staff official quarters. The learned counsel referred the Court to Exhibits 12, 13 and 14B as the exhibits containing these guidelines. The learned counsel argued that, where a statute specifically mentions a thing, the things not mentioned are excluded. On this, the learned counsel cited Mkpa v. Mkpa (2010) 14 NWLR (Pt. 1214) 612 at 645. The learned counsel, based on the doctrine expounded in the foregoing authority, referred the Court to Exhibit 12 at clause 16 thereof, which allegedly specified the categories of realty exempted and which does not include the staff quarters of the 1st defendant. The learned counsel argued that, by the said Exhibit 12 at paragraph 13 thereof, it was clearly stated that: “the right of first refusal must be exercised by the legal tenant and this right is not assignable, negotiable in any form or alienable whatsoever.”
The learned counsel also referred the Court to Exhibit 13 at page 30 to the effect that, public officers occupying government residential quarters would be given the option to purchase the houses at the price of the highest bidder. The learned counsel cited Omoghoni v. Nig. Airways Ltd (2006) 18 NWLR (Pt. 1011). The learned counsel also cited paragraph 7 of the Generic Guidelines for the Reform of the Parastatals published in March 2006 [Exhibit 14B] to the effect that, it provides that, “in implementing the payment of monetized allowances, the physical fringe benefits such as residential quarters, cars, residential telephones and other pre-requisites would have been dispensed with as stipulated under the government policy.” The learned counsel argued that, the claimants deposed to the fact that, the quarters were mandated to be sold to the claimants with effect from 1st October 2003 when the claimants were still in service but that, the 1st defendant failed to do this and instead continued to sent people to continually reevaluate the quarters.
The learned counsel argued that, the 1st defendant ceased to be in control of the buildings as soon as it was directed to offer them to the claimants for biddings; thus, the defendants wrongly seized the claimants’ pension on this basis since 2008 till date. The learned counsel cited Exhibit 14A, Suit No. NICN/LA/11/2011 [parties not given], which was allegedly delivered by this Court on 6th January 2016 to the effect that, no MDA is exempted from the monetization of quarters thus, taking care of the waiver/exemption from the monetization policy granted to the 1st defendant on the official quarters of the 1st defendant which the Court held was granted during the pendency of the suit to overreach the plaintiffs therein. Thus, the learned counsel to the claimants urged the Court to resolve this issue in favour of the claimants. The learned counsel finally urged the Court to grant all the reliefs claimed by the claimants. Thus, the written address of the claimants was brought to an end. I shall now go to the written address of the 1st defendant against the Originating Summons.
B. Written Address of the 1st Defendant
JHC OKOLO SAN franked the 1st defendant’s written address. The learned silk said he adopted the four issues formulated by the counsel to the claimants. On issue a, the learned counsel cited paragraph 17(c) of the Revised Guidelines for MDAs dated 16th June 2005 [Exhibit O] and posed, whether it entitled the claimants to the reliefs itemized and submitted that, these guidelines clearly spelt out the conditions precedent in paragraphs 14 and 15 for entitlement to the benefits listed, to the effect that, staff must voluntarily retire from service before the general severance. The learned Silk argued that, none of the claimants voluntarily retired before the general severance, and as such, are not entitled. The learned counsel argued that, paragraph 17(c) of the guidelines is a provision under the general list of severance package and that, before it could apply, the conditions stipulated in paragraphs 14 and 15 of the circular must be fulfilled. The learned counsel argued that, non-compliance with statutory provision would strip an applicant of any right to a claim. On this, the learned Silk cited Patrick Zioeeh v. Rivers State Govt. Civil Service Commission (2004) 1-2 SC. The learned counsel thereafter moved to issue b.
On issue b, the learned counsel raised the poser whether paragraph (i) of the Federal Establishments Circulars 2003-2005 of December 2005 entitles the claimants to first option to purchase the residences they occupy. The learned counsel opined that, the provisions of Circular No. SGF. 19/S.47/C1/11/371 of 27th June 2003 will not entitle the claimants to first option to purchase the quarters. The learned counsel argued that, from the disengagement of the claimants from service, they were paid all their allowances. The learned counsel argued that, the claimants claimed that they were not fully paid and submitted that, the Federal Government promptly paid all shortfalls in the monetization when it took over payments related to monetization arrears. The learned counsel argued that, the Generic Guidelines for Reform of Parastatals 2006 [Exhibit C] set out the procedures for implementation of the monetization policy. Citing paragraph 7(3) on page 11 of Exhibit C, the learned counsel submitted that, in accordance with this document, all those who have been paid their severance benefits are no longer entitled to the retention of their quarters. The learned counsel argued that, by this provision, the claimants are not supposed to remain in their official quarters, after receiving their severance benefits.
The learned counsel argued that, assuming without conceding, that the claimants have the right of first refusal after receiving their severance benefits, they had to wait till the 1st defendant offered its houses in Enugu for sale. The learned counsel argued that, the claimants were aware that, at their disengagement they had to vacate the houses as the houses were allocated to them while in service to enhance their job performance, in view of the nature of their employment, which entailed that they must reside in the houses to enable them effectively discharge their duties. The learned counsel argued that, they are not occupying these premises as tenants. The learned counsel cited African Petroleum Ltd v. Owodunni (1991) 8 NWLR (Pt. 210) 391 at 416-417. The learned counsel submitted that, if the occupation is subservient and necessary for the service, the occupation is that of the master, as the law presumes that the servant occupies it for his master. The learned counsel argued that, since the occupation is necessary for services the claimants rendered, the occupation is therefore subservient. The learned counsel cited Chukwuma v. Shell Petroleum Development Corporation Ltd (1993) 4 NWLR (Pt. 289) 512.
Arising from the foregoing, the learned counsel argued that, the claimants are licensees at the discretion of the 1st defendant. On this, the learned counsel cited Torbelt v. Fanlkner (1952) 2 TLR 659 to the effect that, where an employee is allowed to reside in an apartment as part of his employment package, he loses that right once the employment is determined. The learned counsel also cited Shell Co. (Nig) Ltd v. Jegede (1971) 1 African LR (Comm.) 304; Wemabod Estate Ltd v. Apara (1974) NCLR 243 and a host of other authorities on the same issue. The learned counsel opined that, the Nigeria Railway quarters in Enugu are so close and contiguous to the Nigeria Railway Offices and as such, it would be very risky to have non-staff occupy them. The learned counsel cited paragraphs 920, 908 and 909 of the Nigeria Railway Corporation Standard Conditions of Service (Senior Staff) [Exhibit Q] to the effect that, it shows that the claimants are service occupant of the quarters.
The learned counsel cited unreported Suit No. FHC/EN/CS/173/2009 – Onyia Festus v. Nigeria Railway Corporation delivered by the Federal High Court, Enugu Division on 6th November 2012 [Exhibit J] at page 6 thereof, to the effect that, it was wrong that the plaintiffs held their official quarters as liens against the terms in their letters of appointment. The learned counsel cited sections 43 and 44(1) of the 1999 Constitution to the effect that, since the 1st defendant is the owner of the quarters, it would be wrong to deprive it of the ownership. On this basis, the learned counsel argued that, the lien held on the quarters by the 1st defendant is unjustifiable.
On monetizing its quarters, the learned counsel argued further that, the 1st defendant has been exempted from the monetization of her quarters vide letter No. T. 0062/S.16/T4A/316 dated 14th May 2012 [Exhibit N]; and that, the exemption is covered by Cap. E8, Vol. 6, LFN 2004 at paragraph 5(a)-(c). The learned counsel argued that, from this, the powers of the Minister to grant exemption to any MDA from the monetization of its quarters is not in doubt; and that, paragraph 5(a)-(c) makes it imperative that the quarters of the 1st defendant cannot be sold. The learned counsel argued that, the Generic Guidelines provides continuous monitoring and evaluation of the monetization exercise. The learned counsel referred to paragraphs 10(1)-10(4) of the Generic Guidelines. The learned counsel argued that, the claim that the waiver was made during the pendency of this suit is incorrect, in that, this suit was commenced in 2013 while the waiver was granted in 2012. The learned counsel argued too, that, Chzoba Onovo’s case [supra] was on the correct date of retirement and not about the ownership of Railway quarters while Festus Onyia’s case [supra] was on payment of monthly pension and right to remain in the quarters till determination of the suit, which are different from these suit. The learned counsel argued that, at the end of these cases, it was held that the plaintiffs did not have to remain in the houses having retired from service. The learned counsel cited page 6, paragraph 3 of Exhibit H. The learned counsel argued that, since the approval to exempt the 1st defendant’s quarters from monetization was granted in 2012 before the commencement of this suit, there was no intention to overreach the claimants.
The learned counsel argued that, paragraph 16 of the Approved Guidelines for the Sale of Federal Government Property in Lagos of 26/6/2005 [Exhibit M] did not give blanket cheque for all MDAs of the Federal Government to sell their properties and that, it is to the effect that, properties to exempt included those excluded by government directives. The learned counsel argued that, pursuant to this and paragraphs 5, 10(1)-(4) of Cap. E8, Vol. 6, LFN, the Federal Government exempted the Railway realty. The learned counsel argued that, on the question of first refusal, the claimants must wait until the realty are offered for sale and should abide the decision of the Federal High Court in Festus Onyia’s case and vacate the realty. The learned Silk argued that, the claimants, having been disengaged, their contracts of service ceased. The learned counsel cited Ladipo Akanni v. SBN Ltd (1995) 5 NWLR (Pt. 397) 607 at 625.
The learned counsel went to what he tagged issue iv, [as I could not find issue iv in the claimants’ counsel’s issues adopted]. Under this, the learned counsel raised the poser: whether the Federal High Court judgment in Chizoba Onovo’s case, which decided that the effective date of retirement is 1st November 2005, entitled them to benefit from pro-form HAPSS Salary Structure effective from 1st October 2005. The learned Silk argued, it is conceded that the judgment varied the date of retirement from 1/9/05 to 1/11/05, but the monetization payment was limited to the period from 1st October 2003 to 30th September 2005; and that, the principle is that, no one should enjoy the monetized benefit and the enhanced allowances for monetization at the same time. The learned counsel argued that, the salary structure adopted in calculating the monetization payment was based on circular SGF 19/5.47/C.I/IV/950 of 3rd March 2008 [Exhibit G] at paragraph 2(vii), which allegedly prescribed the limit of the exercise. The learned counsel argued that, the Federal Government took over the payment of monetization in 2010 and claims arising from it were taken care of and payments made to individual accounts. The learned counsel argued further that, the claimants have been paid their severance allowances and therefore, they are no more staff of the 1st defendant. The learned counsel cited Raji v. O.A.U. (2014) 22 WRN 45 at 53; Temco Eng. & Co. Ltd v. SBN Ltd (1995) 5 NWLR (Pt. 397) 607 at 625 and a host of others on this point. The learned counsel argued that, the terms and conditions of service are the foundation of all cases where issues of conditions of service or wrongful termination are to be determined. Thus ended the written address of the 1st defendant. I shall now move to the reply on points of law filed by the claimants’ counsel.
C. Reply on Points of Law
EMEKA ASOGWA franked the Reply on Points of Law. The learned counsel replied on the issue of exemption of the landed property of the 1st defendant from sale by arguing that, clause 16 of Exhibit 12, which specified the categories of exempted realty did not include the staff quarters of the 1st defendant. The learned counsel referred the Court to Exhibit 14A on this submission. The learned counsel argued that, a look at pages 8 and 9 of Exhibit 7, would show that the 1st defendant is approbating and reprobating on this issue, in that, it said, it was still consulting with the National Salaries, Incomes and Wages Commission to enable it monetize the fringe benefits, which includes the quarters. The learned counsel cited Adeogun v. Fasogbon (2011) 8 NWLR (Pt. 1250) 427.
The learned counsel argued that, the monetization policy clearly mandated that, the realty be monetized to the claimants who are the sitting tenants, with effect from 1st October 2003 and that, the claimants were still in service as at that date. The learned counsel argued that, the cases of [inclusive of African Petroleum Ltd v. Owodunni] are totally irrelevant because, issue of monetization of the realty did not arise in the cases. The learned counsel argued that, sections 43 and 44 of the 1999 Constitution cited and the cases cited thereof are of no avail, in view of the fact that, the 1st defendant is bound to obey the directive of the Federal Government on the sale of the 1st defendant’s realty in issue, in accordance with Exhibit 12 at paragraph 13, Exhibit 13 at page 30 and Exhibit 14B at paragraph 7.
These are the areas that I found to relate to what is known as reply on points of law. The other pieces of argument I consider attempts to reargue and repair the original arguments of counsel in the written address. Such is not permitted in law. Having done with that, I shall move to the real duty of a judge: judging the facts, evidence and the law and, resolving the rights and obligations of the parties. Let me state that, I have not forgotten that the 1st defendant filed further counter affidavit after the reply on points of law of the claimants. I shall deal with this and some other teething issues first before going ahead to give my decision on the substantive consolidated cases. Let me also indicate that, I have carefully read all the processes germane to these consolidated cases, especially the various types of affidavits of the parties and written addresses. I have also carefully studied the authorities cited [both statutory and cases] by counsel to parties: Now, off to my decision.
COURT’S DECISION
A. Decision on Preliminary Issues
First of all, I shall deal with three preliminary issues, which are central to the determination of the merit of the consolidated cases. These are the issue of whether separate judgments are to be delivered for the 91 claimants in the 84 consolidated suits or just one composite judgment; the issue of the further processes filed by the 1st defendant after the claimants’ counsel filed the reply on points of law; and the issue of the status of the 2nd defendant in the matter: whether it has been struck out or not.
I observed that, this trial is with respect to 84 separate actions filed, and with 91 claimants, which were consolidated into one. Now, I am aware that the normal thing is that, when it comes to judgment in respect of consolidated actions, though trials were fused, separate judgments are to be written in respect of each and every of the consolidated lots: meaning that, 84 or so separate judgments are to be prepared and delivered separately in respect of these 84 cases fused into one only for trial purposes. I wondered how feasible this is! Although, I observed too, that, there is no opposition to the consolidation and no issue was raised as to the manner of delivering the judgment, but I felt it my duty, to see that the proper thing is done. For this reason, I have combed through the rules of this Court to find out what it says about judgments on consolidated cases. Order 62, Rules 17(1), (2), 22 and 23 of the NICN Rules become relevant: they provide:
“17.–(1) The Court may on application consolidate several actions pending before it, where it appears that the issues are the same in all the actions, and can therefore be properly tried and determined at the same time.
(2) The Court may suo motu consolidate several actions pending before it, where it is of the opinion that the parties in the matter are the same.
22. Where different claimants are suing the same Defendants and the claims are the same, the Court may direct consolidation of the matters.
23. The Court may suo motu order that consolidation of cases be made after hearing from counsel in the matter.
Provided that for cases to be consolidated parties must have joined issues and pleadings concluded in line with Orders 3 and 15 of the Rules of the Court.” [Underline supplied for emphasis]
Under Order 17.–(1) at the underlined portion, it is clear that the rules envisage where a single composite judgment could be lawfully delivered in respect of the consolidated matters. To be properly tried and determined at the same time simply means, to properly try the consolidated matters together at one trial and deliver one composite judgment in respect thereof. Considering that the rules quoted above are cumulative, they must be construed together. The need to deliver a composite judgment in respect of consolidated matters is not only limited to the situation where application for consolidation was made to the Court but, encompasses where the Court suo motu invited counsel to address it on consolidation or where it suo motu consolidated actions. The litmus test is: if the Court is convinced that the matters all raised the same issues or where the actions are the same and/or the parties are the same. The questions to be determined in these consolidated suits are, without exception, the same. So, they could be determined together in one fell swoop instead of writing 84 or so separate judgments.
Another thing I observed is that, these matters could be conveniently brought as class action. At https://www.califonialaborlawattorney.com [What is an Employment Class Action Lawsuit?], I found the following passage useful:
“Employee rights violations at work often affect more than just one individual. For example, if your employer fails to pay you rightful overtime wages, other employees are probably facing the same injustice. In some cases, thousands employees may all be the victims of the same workplace rights violations. In these instances, an employment class lawsuit can benefit all victims at once, by consolidating dozens of individual claims into one case…However, a successful class action claim usually results in a court ruling that forces the company in question to end the discriminatory and/or other illegal practices as well as compensate the victims.” [Underline supplied for emphasis]
The Internet source goes further to list the requirements that must be met. These requirements are that:
“1. The class is so big that filing individual claims would be impractical, 2. Each individual claim in the employment class action lawsuit must be similar, 3. The individual types of lawsuits as well as the defenses to these claims must be similar, and 4. The class representative must protect the interest of everyone in the class.”
It was additionally specified in the Internet source [supra] that the case must meet two of these three further requirements:
“1. Your employer broke the law. This means the courts can fix the problem through an official injunction, rather than just ordering compensations for victims. 2. The legal issues that affect the whole class must have greater importance than individual issues. 3. An employment class action lawsuit must be the best way to resolve the conflict. This typically means that it saves times, as well as prevents inconsistent judgments.” [Underline supplied for emphasis]
Employment class action is a form of representative action. From the excerpts above, it would be observed that the present actions meet virtually all the specifications listed above to qualify for employment class action. Thus, the a single suit ought to have been filed with a single of the claimants acting for all, in representative capacity, which is what the claimant had actually unwittingly done by putting forward the claim and evidence of only one of the parties as a test case for the whole lot. The claims of the 91 employees/retirees are the same: using wrong salary scale for calculation of their retirement benefits thereby suffering a shortfall, the correct date of retirement of the claimants who were all served letters of retirements the same date and paid three-month salaries in lieu of notices the same day, right of first refusal on their official quarters, and withholding of their pensions. The defence is the same to all the claimants. There is allegation that the employer broke the law: illegally in stopping payment of pension, refusal to give the claimants right of first refusal, and deliberately using the wrong salary structure to calculate retirement benefits of the claimants thereby owing them shortfall; the legal questions in the class action acquires greater importance than the individual action: this is because they deal with issues of rights to pension and rights of citizens to accommodation, the best way to treat the case, to avoid inconsistent judgments, save time and cost, is, through a consolidated judgment on the cases and; the Court can give injunction and direct, if the case is proved, that, the claimants be compensated in accordance with the data and mathematical bases for calculation adduced.
The provisions of Order 62, Rule 17(1) clearly anticipates class actions in employment matters and the desirability of consolidating such matters into one where the questions arising are the same, by trying them together and rendering a single judgment thereof. Besides, even without the provisions of Order 62, Rule 17(1), it is clear the law dose not even forbid delivering a single judgment in consolidated matters in Nigeria. A court must just be sure that care is taken while doing this – see Orija & Ors. v. The Chairman NPC & Ors. (2013) LPELR-20835 (CA) 20-21, E-D, where the Court of Appeal held:
“However, it is not automatic that once a single judgment is delivered in consolidated suits, it would be set aside. A complaint that a single judgment delivered in respect of consolidated suits is invalid only if it is established that a miscarriage of justice has been occasioned. Otherwise, it will not be disturbed…
The Ruling of the Tribunal delivered on 14th of September 2010, began by stating that the three named applications filed on 20th October, 2009 in Suit Nos. CTC/OS/08/3, CTC/OS/08/4 and CTC/OS/08/28 had been consolidated, with consent of counsel. It applied the law governing the subject matter and held specifically that –
‘The complaints Nos. CTC/OS/08/03, CTC/OS/08/4 and CTC/OS/08/28 filed on 11th January, 2010 are statute-barred and are hereby struck out. Application refused.’
So although a single Ruling was delivered, the Tribunal specifically mentioned and held that the three applications which had prayers 1 and 2, were refused and the three Suits declared statute-barred. Nobody is left in any doubt, as to the fate of the applications and the Suits. No miscarriage of justice has been occasioned and none has been established, especially as the reliefs, the evidence and the nature of the complaints are the same in all applications… It has been validly refused by the Tribunal.”
I, therefore, for all these reasons, hold that, it is proper to deliver a single composite judgment in respect of the 84 consolidated cases.” That is settled. I move to the issue of the further counter affidavit filed by the 1st defendant. Now, the 1st defendant filed what it termed “1st Defendant’s Further Counter Affidavit in Response to the Plaintiffs Further Affidavit in Support of Originating Summons”. This was filed on 12th July 2018. The Further affidavit of the claimants’ to which the said Further Counter Affidavit reacted to was filed on 29th June 2018. Now, Order 17, Rule 11 of the NICN Rule provides:
“Where a Counter-Affidavit together with a Written Address is served on the Claimant/Applicant, the Claimant/Applicant may file a Further and Better Affidavit to deal with new issues arising from the Respondent’s Counter-affidavit [sic] and a Written Reply on points of law within (7) days of service…”
When the above rule is read in conjunction with Order 41, Rule 1 and Order 3, Rule 17(1) of the NICN Rules, it would be observed that no specific rules are made for originating summons and that, the rules as regards the affidavits filed in an action commenced by Originating Summons abide those of affidavits filed in accordance with Order 41, Rule 1, which provides that, evidence may be given by affidavit in any motion, summons, or other application. The case here is Originating Summons, a form of summons. By Order 17, Rule 11, as quoted above, it is abundantly clear that, the last affidavit in the series of affidavit to be filed in any application is the Further and Better Affidavit together with the Reply on Points of Law. It should not be forgotten that, affidavits take the places of pleadings in Originating Summons – see Gbajabiamila v. The CBN & Ors. (2014) LPELR-22756 (CA) 36-37, E-D. By extrapolative analogy, the Reply is the last pleadings in the series of pleadings in suits begun by writ of summons by virtue of Order 33, Rule 1 of the NICN Rules; hence, the Further and Better Affidavit approximates to the Reply pleadings in Originating Summons. It follows that, the Further Counter Affidavit of the 1st defendant filed in reaction to further affidavit of the claimants is unknown to law. And the Court of Appeal in Chiedu v. Uti & Ors. (2012) LPELR-14391 (CA) 8, D-E held that “A court process which is filed but unknown to law is null and void ab initio. If the court process results in a judgment, ruling or orders, the judgment, ruling or order, is null ab initio…”
It is seen that filing a process that is not known to court is not a joking matter, as the learned counsel to the defendants would want the Court to believe, when he argued that, it was not necessary for him to cite any rule or authority to justify the Further Counter Affidavit. The oral argument of the learned counsel to the defendants during adoption to justify this legally unknown Further Counter Affidavit on the ground that, it sought to react to issues raised in the Further and Better Affidavit of the claimants cannot hold water. If new issues were raised in the Further Affidavit of the claimants, they are not a reason to file Further Counter Affidavit, but a reason to raise objection to such Further Affidavit after it had been served on the defendants. There must be an end to filing of affidavits like pleadings. That is why the law marks the end at Further and Better Affidavit just like it ends pleadings by the Reply pleadings. And to make matters worse, leave of Court was not sought and obtained before this unknown process was filed. The process, as it is, is plainly an abuse of the process of the Court, and as such, liable to be dismissed. In accordance with African Reinsurance Corporation v. JPD Construction Limited (2003) LPELR-215 (SC) 29, C-D, the “1st Defendant’s Further Counter Affidavit in Response to the Plaintiffs Further Affidavit in Support of Originating Summons” on filed 12th July 2018 is hereby dismissed.
I now move to the issue of whether because the 2nd defendant was struck out in a previous suit, it had been struck out from these suits or that, the decision striking it out is binding on this court and suits. The counsel to the defendants, in his oral address, specifically mentioned that, it was in another suit that the name of the 2nd defendant was struck out in Chizoba Onovo [supra] delivered 14th June 2014. It is this same case that the learned counsel to the defendants argued in the final written address of the 1st defendant that, it is not the same with these cases and that, the facts and issued decided were not the same. So, I wonder how counsel could at the same time argue that order given in that case should bind this Court because the Federal High Court that gave that order is a court of coordinate jurisdiction to this Court. It is common knowledge that stare decisis is only binding where the facts in cases are similar and not otherwise. Where a counsel conceded that the facts and issues arising in two different cases are dissimilar, it would be preposterous to argue that, the decision in one should bind the other.
I have read the counter affidavit of the 1st defendant and observed the depositions in paragraphs 5 and 6 thereof. I have also carefully perused Exhibit B of paragraph 6 of the counter affidavit, which is the judgment in Chizoba Onovo’s case. I observed that the relief claimed was for payment of shortfalls in retirement benefits simpliciter, unlike in the present cases, where claims of rights of first refusal against the property of the 1st defendant are made. From the name of the 2nd defendant, it is abundantly clear that, the 2nd defendant, though a corporate body with a life of its own devoid from the 1st defendant, but the fact remains that it must be in charge of the 1st defendant’s properties. The fact also remains that, it is a company owned by the Federal Government of Nigeria, which is equally the owner of the 1st defendant. It is therefore part of the public services of the Federation by virtue of section 318(1) of the 1999 Constitution.
The relationship between it and the 1st defendant is like that of Siamese twins. This is accurately captured in paragraph 7 of the affidavit in support of the Originating Summons. Where claims are made against the property of the 1st defendant, it would be wrong in the extreme, to argue that the 2nd defendant has no business with such claim, since it is the custodian of the properties of the 1st defendant. It is both a necessary and desirable party in such suits. I therefore hold that the 2nd defendant was properly joined in the all the consolidated suits and remained a party in all the suits. The oblique [I say ‘oblique’ because, the learned counsel never directly asked that the name of the 2nd defendant be struck out in these consolidated suits but that, it had already been struck out in another suit] objection of the counsel to the defendants to the joinder of the 2nd defendant therefore totally lacks merit and is accordingly dismissed. I now move to the substantive suits.
B. Decision on the Merits of the Consolidated Cases
The learned counsel to the claimants formulated three issues. The counsel to the defendants did not formulate any. I observed that issue a as formulated and argued is intertwined with issue b: that is, it merely lay foundation for issue b. I also observed that, no issue deals with claims for withheld pensions, on which evidence is available and on which many prayers/reliefs were urged – see reliefs 1, 2, 4, 5, and 6. Therefore, it is my view that, while issue a, as formulated by the claimants’ counsel is absorbed by issue b, there is the need for additional issue to capture the breadth of the issues arising in these consolidated cases and, the counterclaim and setoff. I therefore reformulate these three issues thus:
1. Whether the claimants have been paid their full retirement benefits in accordance with the law?
2. Whether the claimants are entitled to right of first refusal on the official quarters they presently occupy? And
3. Whether the 1st defendant is entitled to withhold the pension of the claimants?
ISSUE 1:
WHETHER THE CLAIMANTS HAVE BEEN PAID THEIR FULL RETIREMENT BENEFITS IN ACCORDANCE WITH THE LAW?
At paragraphs 4, 5, 6 and 10 are the depositions to the effect that the claimants were retired with letters dated 1st September 2005 but that the claimants all received their three-month salaries in lieu of notice on the 1st November 2005. It has been held in Chukwumah V. Shell Petroleum [1993] LPELR – 864 [Sc] 1 At 28-31, D – A by the Supreme Court that, the date of payment or receipt of payment in lieu of notice, is the effective date an employee is legally retired or terminated; and that, if this is not complied with in statutory employment, the employee is entitled to reinstatement. It is not in dispute that the employment here is clothed with statutory flavour and flowing from this, the claimants are ordinarily entitled to be reinstated, but they are not asking for reinstatement.
They only ask for their date of termination to be contemporaneous with the date they received their three-month salaries in lieu of notices. Of course, this needs no argument or cannot be challenged by the defendants. In any case, the 1st defendant, neither in the counter affidavit nor in the written address challenges this – see paragraphs 4 of the counter affidavit. Paragraph 9 is not an effective denial of the fact that payments in lieu of salaries were made on 1st November 2005, as it is evasive. In fact, in paragraph 1(c) of the Counter Affidavit under the heading: ‘Counter Claim of 1st Defendant – Test Case’, it was directly admitted that the claimants were retired on 1/11/2005. What is however is germane and central to these consolidated cases is paragraph 26 of the Counter Affidavit, wherein it is stated:
“That in answer to paragraph 44, we restate that after the 1st payment, the Federal Government took over the payment of all outstanding payments related to monetization which included three months in lieu of Notice, meal subsidy, Transport allowance and Repatriation allowance to disengaged staff directly into their individual Bank Account as on schedule. Exhibit D.”
I found that in paragraph 22 of the Further Affidavit of the claimants, the 1st defendant raised the issue of the Federal Government taking over all outstanding payments related to monetization; and that, the claimants did not deny this fact but, only said they were excluded on the excuse that they were still leaving in government quarters. The implication of this is admission. The necessary implication of paragraph 44 of the Counter Affidavit is that, the 1st defendant is no longer in charge of any issue related to monetization but the Federal Government is. And if the claimants admit the truth of this, the implication is that, the claimants ought to know that, the Federal Government becomes a proper, necessary and desirable party in the suit to which their complaints should be primarily directed, even if the 1st defendant would be joined as a party. It means, it is conceded that the Federal Government is the one to pay any such shortfall and not the 1st defendant. It means that the Federal Government is the ultimate party and not the 1st defendant. In a nutshell, it means a proper and necessary party, without which the decision of Court in this suit cannot be executed, is excluded – see Malittafi v. Modomawa & Anor. (2016) LPELR-40775 (CA) 26-28, B-E.
“In my respectful view, the Federal Government ought to have been made a party to the action now on appeal… “Where the nature of the evidence before the Court is such that the case of the parties can be determined in the absence of those not joined. It can proceed to do so. It is only in those cases where it will not be right and the Court cannot properly determine the issues before it in the absence of the parties whose participation in the proceedings is essential for proper, effectual and complete determination of the issues before it, will it necessary to insist on the joinder of such parties.”…
However, while it is the law that no cause or matter shall be defeated by reason of mis-joinder [sic] or non-joinder of any party, yet, in the absence of a proper party or necessary party before the Court, it appears an exercise in futility for the Court to make an order or decision which will affect a stranger to a suit who was never heard or given an opportunity to defendant himself. This will certainly be against the tenets and tenor of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in the instant case, there is no way the questioned [sic] posed by the appellant for determination would be effectually and completely answered in the absence of the APGA, the ultimate beneficiary of the outcome of the decision. Also, without the APGA as a party, the relief sought would not have any effect as APGA cannot be bound by an order of a Court in a matter it was not a party. This is sadly the lot of this case…
The end result of what I have said above is that although the trial Court had jurisdiction to hear the suit as constituted, the judgment generated thereby which have massive impact on the activities of the AFGA [sic], including its leadership, cannot be allowed to stand. A plaintiff is not bound to sue a particular party. However, where the outcome of the suit will affect that party one way or the other, it will be foolhardy not to join him in the suit. In fact, it would amount to an exercise in futility, as the said party will not be bound by the outcome of the case.”
A court of law cannot make an order in vain. In view of the above authority, the omission to join the Federal Government as a party is fatal to the consolidated actions. The Court cannot make any order against the ultimate party [the Federal Government] who is to pay this money, if it finds in favour of the claimants since, it is not made a party to the suit. If made, the order of the Court would be in vain. Thus, the Court cannot examine the merit or otherwise of the claims under this issue. Thus, issue 1 is resolved against the claimants and in favour of the defendants. I now move to issue 2.
ISSUE 2:
WHETHER THE CLAIMANTS ARE ENTITLED TO RIGHT OF FIRST REFUSAL ON THE OFFICIAL QUARTERS THEY PRESENTLY OCCUPY?
It is my humble view that the issue here revolved around the legality or otherwise of the approval [Exhibit N of the Counter Affidavit] purportedly secured from the President to exempt the Railway quarters allocated to retired staffers from the monetization programme. The argument of the claimants’ counsel against this letter is that, it is one made in anticipation of lawsuit and that, the decision of the National Industrial Court in its judgment in Exhibit 14A of the affidavit in support of the Originating summons held that, the property of the Nigeria Railway Corporation [NRC] is not exempted from monetization. First, I note that, it is not the judgment that is exhibited as claimed but rather enrolled order. It is a judgment, and not enrolled order, that is cited before a court to enable it see the ratio of the case and the reasons. Be that as it may, I will accord it the full complements of a judgment. I observed that the enrolled order did not deal with Exhibit N of the Counter Affidavit of the 1st defendant; maybe, because Exhibit N postdated it. I observed too that, the date of the judgment is not reflected on the body of the enrolled order. But I note that the judgment must have been related to an employment class action from the parties, meaning that, it was a representative action brought by the union to which the claimants herein belong. So, for purposes of sale of NRC quarters, the suit covers the claimants.
But that has not solved the problem of the approval of the President to exempt the NRC quarters. In paragraph 16(iv) of Exhibit M of the Counter Affidavit, I found the following: “For special, diplomatic or statutory reasons, the following properties shall be exempted from sale: … (iv) Properties excluded from sale by Government directives.” [Underline supplied for emphasis] Exhibit N of the Counter Affidavit is made up of three separate documents: 1. The letter from the Minister of Transport dated 14th May 2012, conveying approval of Mr. President exempting the NRC property from monetization to the Managing Director of NRC; 2. The very approval of Mr. President dated 2nd May 2012 through the Secretary of the Government of the Federation to the Minister of Transport; and 3. Memo from the Secretary of the Government of the Federation to Mr. President seeking approval for the exemption dated 20th April 2012. When Exhibit M is construed with Exhibit N, the conclusion is inescapable that, the NRC quarters have been exempted from sale. I have explained that, the judgment cited [Exhibit 14A of the Affidavit of the claimants] did not deal with the approval [Exhibit N] of Mr. President to exempt the NRC realty from sale. I found in paragraphs 20 and 21 of the Further Affidavit of the claimants in reaction to paragraphs 24 and 25 of the Counter Affidavit that, the claimants did not deny the authenticity of Exhibits M & N of the Counter Affidavit. Rather, what they did was to say that, the position of the 1st defendant could not override Federal Government policy and that; the defendants had all along been defiant.
On these, let me state that, the views taken in the Further Affidavit is erroneous. First, Exhibits M and N are not the position of the 1st defendant but rather, the directive of the Federal Government. Exhibit M is the Federal Government’s Policy itself, which gives room for subsequent exemptions and thus, validating Exhibit N: the exemption granted. The exemption thus, becomes part of the policy of the Federal Government on monetization with regard to the NRC realty. I therefore hold that, if Exhibit N had been in existence as at the time the judgment of this Court cited was delivered, the decision could have been different. I hold too that, the judgment of this Court cited, that is Exhibit 14A has no bearing on Exhibit N and did not and could not have invalidated it. All that Exhibit 14A did was to hold, in view of the available facts then, that the property of NRC were not amongst those exempted as at the date of the judgment and not that they could not be subsequently exempted in the proper manner and in accordance with law. Exhibit N, being in accordance with Exhibit M, is in accordance with law. Therefore, the subsequent exemption of the NRC property from monetization policy is in accordance with the law.
The next thing on this issue is to examine the argument that Exhibit N is a document made in anticipation of lawsuit and therefore void. This might be true but, the rule is not without exceptions. I cite Bukola v. Oshundahunsi & Ors. (2012) LPELR-8546 (CA) 61-62, C-B:
“On issue No. 2, let me begin my consideration of this issue by restating the position of law in relation to documents prepared in anticipation of impending litigations. Generally speaking, such documents are not admissible in evidence but there are exceptions to this general rule. In the case of Anisu v. Osayomi…this court per Abdullahi JCA held that: “As general principle, document made by a person interested when proceeding(s) are pending or is anticipated is not admissible. The provision, in my humble view, excludes documents made in anticipation of litigation by a person who is not personally interested in the outcome of the litigation. In other words, the disqualification of a person as (person interested) relates only to a situation where such a person has personal interest in the matter and not where he merely has interest in an official capacity. Thus where the interest of the maker of the document is purely official or as a servant or employee having no direct personal interest these provisions do not apply to him and as such admissible.”
It is very clear from the facts of these consolidated matters that all persons involved in the make of Exhibit N of the Counter Affidavit are public servants and acted in their official capacities. It is also clear that the reasons for the exemption are security of the rail system and economic viability of railway management in view of the proximity of these quarters to the service needs of railway management. It is also clear from Exhibit M of the Counter Affidavit that, the exemption of any Federal Government property from sale is an ongoing one, as may be approved from time to time before the actual sale of the property. It is not a closed issue, as the claimants would want the Court to believe. So, it is not correct to say the 1st defendant was defiant when it was making recommendations to the Federal Government as to why the NRC realty should not be put on sale. Paragraph 16(iv) of Exhibit M of the Counter Affidavit is made in full anticipation that it is impossible not to make errors in a scheme of such magnitude, so that, a closed exemption should not be decreed; and that, as an error is detected before sale, any such property could be exempted.
Even if after sale, it is discovered that grave public interest should have discouraged the sale, I am being told that, such property could not be re-acquired compulsorily in the public interest, how much more, the ones that have not been sold. It should be noted that no individual right should override that of the general public. The reasons for the exemption are for security to railway transport, service needs of residences for rail workers. These should far outweigh the private rights of the citizens to have the property put on sale. As the Supreme Court rightly put it in Badejo v. Federal Ministry of Education & Ors (1996) LPELR-704 (SC) 22, C-D:
“A fundamental right is certainly a right which stands above the ordinary laws of the land, but I venture to say that no fundamental right should stand above the country, state or the people.”
What is more: what is involved here is not even the fundamental right of the claimants. It is just the right of first refusal, an extension of rights accruing from their employment; and not that, they were originally the owners of the property. The owner of the property in view: the Federal Government, who designed the economic policy to sell the realty, subsequently exempted the realty in question from sale, in accordance with its policy guidelines: Exhibits M. What is then the hassle? If the property had been offered for sale to third parties, there could have been problem, but they are to be retained for the official use of the NRC. And if the plan of the 1st defendant is to secure the property from the claimants by this means with the plan, in future, to offer them for sale to third parties, the decision of this Court in Exhibit 14A, is there to take care of that problem, in that, a perpetual injunction had been granted restraining the defendants from offering the property for sale without first allowing all current sitting-tenants/retires affected their rights of first refusal, amongst whom are all the claimants. I therefore hold that, Exhibit N, which coveys the exemption of the NRC realty from sale, is exempted from the doctrine of document made during the pendency of a suit or in anticipation of a suit. I hold too that, since Exhibit N, is validated by Exhibit M, which contains the guidelines on monetization, Exhibit N is doubly valid. Therefore, the NRC quarters are validly exempted from sale. Issue 2 is thus resolved in favour of the defendants and against the claimants. I move to issue 3.
ISSUE 3:
Whether the 1st defendant is entitled to withhold the pensions of the claimants?
Issue 3 is intertwined with the counterclaim and setoff of the 1st defendant. I found that the 1st defendant acceded to the fact that it withheld the pensions of the claimants but tried to justify this. Because the 1st defendant agreed that it was the one that withheld the pension then, there is no dispute of fact on the person that is responsible for this – see paragraph Ii(C) of the Counter Affidavit under ‘Counter Claim of the 1st Defendant’. The 1st defendant claimed responsibility and justification. It can therefore be ordered to rectify, if it is found that it had no legal right to so act. In essence, the only issue involved, on which there is dispute, is that of law. I can therefore look at it and make the necessary decision. I found that the counterclaim and setoff have to do with the rents accruable during the time, which the claimants held over the 1st defendant’s quarters. It is in respect thereof, that, the 1st defendant also held over the continued payment of the claimants’ pensions. My answer to the counterclaim and setoff is that, the claimants holding over to the property in question is pursuant to Exhibit 14A [the judgment of this Court] and its various orders [including interlocutory], which grant all members of the Union, to which the claimants are members, right to hold over these property.
Hence, if, after the 1st defendant secured approval for exemption of the property from sale, the Court now holds that the claimants have no right to hold over the property, the 1st defendant cannot be entitled to a counterclaim and setoff, on a right exercised by the claimants pursuant to a court’s order not appealed. In the second place, he who comes to equity, it is said, must do equity. The 1st defendant resorted to self-help to arm-twist the claimants while they were pursuing their rights. Pension is a right guaranteed by law. The 1st defendant cannot take the law into their hands and now ask the Court to sanction the obvious illegality they perpetrated. The 1st defendant had no right whatsoever to withhold the pension and any other entitlements of the claimants just because they did not pay rents, even if they were by law expected to pay rents. What the 1st defendant ought to have done, if they felt strongly on this, was to approach a court for their right or, without first resorting to self help, making the counterclaim and set off, and not to take the laws into their hands. The courts frown against self helps – see Union Bank of Nigeria Plc v. Ajabule & Anor (2011) LPELR-8239 (SC) 28, D-F, the Supreme Court deprecated self help in this manner:
“Having regard to the decision of this Court in Chief Ojukwu v. Governor of Lagos State…in which the court condemned in strong terms that self help [sic] has no place in our civilized world as it is against the observance of the Rule of Law in a democratic set up like ours, certainly, the Respondent’s claim for general damages in the present case is quite in order as found by the court below.”
In view of all that I have said with respect to the withheld pensions, the counterclaim and setoff above, and more particularly in view of disrespect to Exhibit 14A of the affidavit in support of the Originating Summons by the 1st defendant, the counterclaim and the setoff fail and are dismissed as totally lacking in merit. Issue 3 is therefore resolved in favour of the claimants and against the defendants. The counterclaim and setoff are hereby dismissed. I move the conclusion.
CONCLUSION
The first two issues formulated with respect to the substantive consolidated cases have been resolved in favour of the defendants and against the claimants while the third is resolved in favour of the claimants and against the defendants. The cases of the claimants are theretofore liable to be dismissed in their entirety, except with regard to the issue of withholding of the pensions, on which the Court had found the 1st defendant had no right to do, and consequently damages. The counterclaim and setoff are also dismissed. It means the claimants succeed on the issue of their withheld pensions. I am also of the view that, the claimants succeed on the issue of general damages on the ground of illegally withholding of their pensions by the 1st defendant without any iota of legal justification. On this account alone, it is indubitable that the claimants, who are pensioners, have been put into a lot of stress and depravations by the withholding of their pensions illegally. They are therefore entitled to damages. For the avoidance of doubt therefore, I:
1. Dismiss the consolidated Suits Nos. NICN/EN/CS/25-52/2013 and NICN/EN/CS/228-285/2013 in their entirety, except with respect to issues of withholding of the pensions of the claimants by the 1st defendant and damages arising therefrom;
2. Dismiss the counterclaim and setoff of the 1st defendant against all the 91 claimants without exception in their entirety;
3. Order the 1st defendant, with immediate effect, to restore back all the 91 claimants to the pension roll and pay back all the correct and accurate arrears of their pensions illegally withheld with effect from May 2008 till date, and thereafter accordingly on monthly basis;
4. Give all the 91 claimants without exception, a grace period of 90 days within which to vacate their quarters and turn over same to the 1st defendant.
5. Order the 1st defendant to pay damages of N5,000,000.00 [Five Hundred Thousand Naira Only] to each and every of the 91 claimants for illegally withholding their pensions since May 2008 till date.
6. Order no cost against all the 91 claimants.
This shall be the judgment of the Court. Judgment is entered accordingly.
…………………………..
HON. JUSTICE O.O. AROWOSEGBE
Presiding JUDGE
ENUGU DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA