IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

                                    IN THE LOKOJA JUDICIAL DIVISION

                                                HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUNMI

DATED: MONDAY, 13th March, 2023              SUIT NO:NICN/LKJ/04/2021

 

BETWEEN

1.         REV. Z.O. OLANREWAJU

2.         REV. E.O. AYODELE                                ……..CLAIMANTS

3.         PASTOR M.S. BAYERE

 

AND

THE BOARD OF TRUSTEES OF EVANGELICAL …DEFENDANT

CHURCH WINNING ALL(ECWA)

 

 

REPRESENTATIONS

Sam Owoyomi Esq with S.B. Omotunwase Esq, J.T. Elijah Esq and G.L. Kolawole Esq for the Claimants.

Chief Tunji Ologbonyo Esq with E.O. Obayomi Esq, L.A. Albert Esq and I.H. Eronmosele Esq for the Defendant.

                                               

  

JUDGMENT

1.      This action was commenced by a General Form of Complaint filed by claimants on 17th June, 2021 wherein they prayed to the Court for the following reliefs;

 

1.      A declaration that the false and malicious statements published against the claimants in the way of their vocation, calling and profession contained in the complaint laid before the Area Commander, Nigeria Police, Kabba, Kogi State dated 4th January, 2016 is libelous of the claimants

2.      A declaration that the purported termination of the Claimants from the employment of the defendant without just(sic) justification and without following the terms of the engagement is wrongfully (sic) wrongful, illegal, unconstitutional, null and void and of no effect whatsoever

3.      A declaration that the claimants are still in the employment of the defendant and entitled to their salaries, allowances, emoluments and other perquisites of office.

4.      An order of the Court compelling the defendant to pay the sum of N50,000,000 (Fifty Million Naira) only to claimants for defamation of their character by the defendant publishing false and malicious libelous publication against the claimants which has lowered them in the estimation of the right thinking members of the society.

5.      An order compelling the defendant to pay the sum of N8,904,227 to the 1st claimant, the sum of N11,146,161 to the 2nd claimant and the sum of N6,275,684 to the 3rd claimant making a total of  N26,326,072 (Twenty Six Million, Three Hundred and Twenty Six Thousand, Seventy Two Naira) as arrears of their salaries, bonuses, allowance and emoluments which the defendant has stopped since 2016 up to date. for the years 2014-2021 which the defendant has consistently failed, refused and/or neglected to pay to the claimants

6.      An order compelling the defendant to allow the claimants to perform the functions of their offices and enjoy all perquisites of their offices until their employment is properly and legal (sic) legally determined.

 

2.      It is the claimants’ case that they were appointed by the defendant as pastors in 2004. They averred that they accepted the offer of appointment and worked meritoriously without any blemish hence their appointments were subsequently confirmed by the defendant, they also averred that they have never misconducted themselves. They contended that they were falsely accused on a concocted criminal allegation of conspiracy, criminal breach of trust and mischief to properties were leveled against them by the defendant to the Area Commander Nigeria Police, Kabba. They further averred that they were invited by the Police and then got arrested, detained and investigated and were subsequently released unconditionally when nothing was found on them. They continued that the allegations damaged their reputation and good names both inside and outside the church as they were not able to move about freely in the society and among church members who now avoid them. They stated that base on the allegations they were dismissed by the defendant in 2016 without complying with the Reviewed conditions of service for employees, 2008 and their salaries were equally stopped, and were ordered by the defendant to leave their houses. They went further to state that after they were dismissed, the defendant went ahead to publish their names and pictures in the tribune newspaper of Thursday 14th January, 2016 disclaiming them noting that they committed financial misappropriation and impropriety. They finally averred that the total amount owed them by the defendant is N26,326,072.

 

3.      The defendant in response on the 18th day of October, 2021 filed a Notice of Preliminary Objection, wherein it is seeking an order striking out this action for want of competence and\or misjoinder on the following grounds;

1. That the defendant/objector is not juristic persons

2. That the claim before the Court constitute mis-joinder of parties.

The particulars of objection includes-

1.         That there is no juristic entity known as the Board of Trustees of Evangelical Church Winning All

2.         That the claimants’ claims are separate from each other.

4.      Accompanying the Notice of Preliminary Objection is a 7-paragraph affidavit deposed to by one Monday Sandawa, a litigation secretary in the law firm of Shanding, Danboyi & Co. Also accompanying the Notice of Preliminary Objection is a written address where counsel on behalf of the defendant formulated two issues for determination thus;

1.      Whether the claimants’ action as constituted against the defendant/objector before this Honourable Court is competent having regards to the Honourable Court is competent having regards to the fact that the defendant/objectors are not juristic persons.

2.      Whether the claimants’ claim does not constitute misjoinder.

 

5.      It is worthy of note that arguments were only put forward in respect of the first issue formulated for determination. counsel argued that it is trite that only competent persons can maintain an action in law, the determination of the legal rights and obligation of persons in any given situation and as such, it is only such natural/juristic persons whom the rights and obligations can be vested are capable of being proper parties to law suits before a Court. He relied on the case of Access Bank v. Agege Local Govt & Anor [2016] LPELR 40491 (CA). He stated that the juristic capacity of the defendant/objector becomes sacrosanct in ascertaining whether or not it can be vested with legal right or obligation. He noted that jurisdiction is to the Court what a gate is to a house as it is a threshold of the temple of justice, therefore, any defect in the competencies and jurisdiction of a Court or an action is fatal as the proceedings therein will result to nullity. He cited the case of Oyesele v. INEC (No.1)[2011] 27 W.R.N. Counsel maintained that the Court cannot order a non-existing entity to carry out any of its decision and as such the Court can only be competent to entertain a matter when parties before it are competent. He cited in support the case of Green v. Green [2001]45 WRN Pg 90. He posited while relying on the case of Dairo v. The Registered Trustees, T.A.D.; Lagos [2018] 1NWLR (Pt 1599) 63 @85, Paras E-F that a person must have the requisite capacity to be a party in a case before it can be made a party. He posited further that competence of parties is of utmost importance in adjudication. He called in aid the following cases; Access Bank v. Agege Local Govt & Anor, supra; Shell Petroleum Development Company & Anor v. Daniel Pessu [2014] LPELR-2325 (CA)16-17, Paras F-C; Niger Insurance v. Chase Ins. Brokers Ltd [2004]34 WRN; Abubakar v. Yar’Adua [2009]5 WRN; Abacha v. Eke-Spiff [2010]14 WRN P24.

 

6.      Learned counsel submitted also that the issue of competence of parties being an issue of jurisdiction can be raised for the first time not just at the trial Court but even at the Court of Appeal or Supreme Court by any of the parties or by the Court suo motu. He cited in support the case of Lado v. CPC [2012] WRN P25, Line 15-40. He submitted further that this issue can even be raised at the stage of enforcement of judgment which is a separate and distinct proceeding from the main action which is the end of the whole judicial exercise. He concluded that the Court can only be competent when the parties before it are competent and therefore urged the Court to strike out this matter for being incompetent.

 

7.      In response to the application of the defendant, Claimants on 27th day of October, 2021 filed a 13 paragraphs counter-affidavit deposed to by the 2nd Claimant with documents marked Exhibits A and B annexed to it.   Filed in support of the Counter affidavit is a written address wherein learned counsel on behalf of the Claimants formulated two issues for determination thus;

1.      Whether the notice of preliminary objection is competent and properly before the Court

2.      Whether there is any merit or substance in the objection.

 

8.      On issue one above, it is the position of learned counsel on behalf of the Claimants that the Notice of Preliminary Objection is incompetent because it was filed out of time without leave of Court. He relied on the case of Dangote Industries Ltd & Anor v. Ocean Bean Golf and Leisure Resorts Ltd & Ors [2021]LPELR-53464(CA). He submitted that the proper order to make in the circumstance is an order striking out the said objection or an order deeming same as abandoned. He relied on the case of Ekanem Ekpo Otu v. ACB International Bank Plc [2008]LCN/364/(SC). He submitted further that Rules of Court are meant to be obeyed. He cited in support the case of Ekanem Ekpo Otu v. ACB International Bank Plc, supra. He posited that the defendants by Order 9 Rule 1(1) and (4) of the Rules of this Court, 2017 ought to file its process within 14 days. He maintained that the defendant has not appeared in this case because the motion meant to regularize it memorandum of appearance was never moved and granted in Court. Thus, the defendant is deemed not to have appeared and as such cannot file the objection as it cannot put the cart before the horse. He urged the Court to discountenance the said objection for being incompetent.

 

9.      On issue two, counsel submitted that from the Constitution and Bye Laws of the defendant, it is known as Board of Trustees or the Trustees for the purpose of doing certain things which majorly is representing ECWA in all legal matters. He posited that the defendant has been suing in that name and as such cannot be allowed to approbate and reprobate. He submitted that it is basic knowledge in corporate law that it is the Trustees that registered under Part C as seen in Article VI Paragraph 1(b) of the defendant’s constitution. Counsel maintained that by the production of the certificate of incorporation of the defendant, the questions surrounding its juristic personality has been laid to rest. He relied on the case of Dairo v. Regd Trustees T.A.D, supra. It is counsel’s position that since the defendant did not deny that they are known by the acronym ECWA which was rightly inserted in front of the name in the Court processes it cannot deny their juristic personality. He maintained that the authorities cited and relied on by learned counsel on behalf of the defendant in his written address in support of the Notice of Preliminary Objection are not apposite or relevant to the case at hand. He urged the Court to discountenance the objection of the defendant.

 

10. Also, filed by the defendant in this case is a statement of defence which was filed on the 1st day of December, 2021, where it averred that in line with the conditions of service, a new employee is usually confirmed after two years where there is nothing withholding such confirmation, it averred that the claimants were issued with queries severally during their cause of employment and while it is true that it reported claimants to the Police, it is not true that it was after their dismissal from the service of the defendant and the claimants were not arrested but rather invited by the area commander who sought to settle the matter. it went further to state that when the secretaries and treasurers of the church made statement that they did not give the monies to the claimants and that the monies were still with the churches as they were yet to pay the assessments given to their churches, the police said they could not hold the claimants base on the evidence given. It continued that the claimants were the head of the churches concerned which for a period of two years before then did not remit any of the statutory dues which are for the operations and the payment of the assessment of the salaries and other emoluments of their Pastors which are usually paid to the DCC Office before they are remitted to the Pastors concerned. It also averred that it has not defamed the claimants as it was within its right to report to the police and did not make any publication of the complaint to any other body. It also averred that it took the necessary procedure to ensure that the claimants adhered to the defendant’s rules to enable them to continue their employment with the defendant but they were recalcitrant which led to their dismissal. It also averred that by its Bye Laws and Review conditions of service, the employees are liable to intra  and inter district  church council transfer and that subject to that, the claimants were informed of their transfers and when they refused to go on the transfer, the Mopa DCC issued warning letters to them and they were subsequently asked to report at their stations to the General Secretary of  the defendant, they were also invited to report to the headquarters in Jos but also failed to honor the invitation neither did they collect the said invitation letter, the defendant asked them to show cause why disciplinary action should not be taken against them but they yet again remained disobedient hence their case was reported at the General Church Council and their dismissal was approved and communicated to the Mopa DCC. It further averred that since the claimants refused to collect the said dismissal letter, it went ahead to published it in the Tribune Newspaper of 14th January,2016,it stated that the claimants were given an opportunity to write an apology letter and get reinstated but they refused and rather absconded.

 

11. At the close of pleadings, parties vide their respective counsel informed the Court of their desire to adopt the Argument on Record procedure pursuant to Order 38 Rule 33 of the National Industrial Court (Civil Procedure) Rules 2017. By this special procedure, parties have dispensed with the need for oral hearing and the case is to be tried on record by considering the pleadings of parties and documents frontloaded. Subsequently, parties were ordered to file their respective written addresses. As it is customary to do in this special procedure, learned counsel on behalf of Claimants filed their final written address first.

 

12. On the 15th day of March, 2022, learned counsel on behalf of the Claimants filed his final written address wherein he formulated a lone issue for determination thus;

Whether or not the claimants have proved their case on the balance of probability or preponderance of evidence to tilt the scale of justice towards them to entitle them to the relief they claimed.

 

13. On the sole issue for determination, learned counsel submitted that there is no controversy as to the employment of the Claimants by the defendant and thus urged the Court to resolve the issue of the employment of the claimant in the positive and hold that Claimants are employees of the defendant. He posited that in order to determine whether or not the employment of the Claimants have been properly determined, recourse must be had to the contents of Exhibit C4 which is the Conditions of Service particularly pages 11-21 on the matters of discipline. He maintained recourse must be had to the said conditions of service which gives the employment of the claimants a statutory flavor. He relied on the case of Oni v. Ekiti State [2019]5 NWLR (Pt 1664)1@20, Paras G-H. He posited that a look at the section will show that the procedures laid down therein were not complied with. He submitted that it has not been proven that the Claimants’ Head of Department took any action in respect of the Claimants as provided for in Sections 17, 18, 19 and 20. He relied on the case of Obanye v. UBN Plc [2018]17 NWLR (Pt 1648)375@389&392, Paras G-H. According to learned counsel, the acts that could lead to queries and warning are listed in Section 28 while those that Could led to suspension/dismissal are listed in Section 28(2) of the Conditions of service and which conditions have not been proven to be the case with the Claimants. Counsel posited that Chief Tunji Ologboniyo (counsel to the defendant) who had written glowingly about the Claimants in response to the disclaimer of Claimants as seen in exhibits 9, 10 and 11 cannot turn around now to change his position concerning Claimants as a party will not be allowed to blow hot and cold at the same time.

 

14. Learned counsel submitted that the Claimants were not given any query before their purported dismissal although the defendant pleaded query letters that were frontloaded which queries were not acknowledged by any of the Claimants as there is nothing to show that they were served on Claimants. He posited that the said queries are merely after-thought meant to defeat the case of the claimants. He equally posited that the notice of meeting which the defendant averred were served in Claimants through courier service is equally another belated cooked up evidence as there is no evidence showing service by any courier service. He urged the Court to hold that the failure of the defendants to comply with the procedure is fatal to its case and as such the purported dismissal of the claimants is null and void and of no effect.

 

15. It is equally the position of learned counsel that there is nothing before the Court to disentitle claimants in respect of their claims for salaries and emoluments. He submitted that the claims of the claimant to salaries and the amount claimed were not controverted by the defendants and the period during which they were claimed. He submitted further that civil cases are decided on the balance of probability. He cited in support the case of Odofin v. Oni [2001]3 NWLR (Pt 701)488. He urged the Court to hold that Claimants are entitled to their salaries since the case of the defendants as to dismissal of claimants have failed.

 

16. Learned counsel argued that the case of the claimants concerning the libelous publications made against them have not been controverted by the defendant. He maintained that the defendants have not given any viable defence to the claims of the claimants. He posited that the defendants had maliciously written the Police in Kabba making unfounded allegations of embezzlement and financial misappropriation against claimants when it knew that Claimants as Pastors had no dealing with money or funds of the Church and which allegation led to the invitation of claimants by the Police though Claimants were subsequently released when they were not found culpable. He posited that the defendant had published a disclaimer in the Nigerian Tribune and the response of the Chief Tunji Ologbonyo to same is a proof of the innocence of the Claimants. He submitted while relying on the case of Sule v. Orisajimi [2019]10 NWLR (Pt 1681)513@526-527, Paras G-B that the claimants have proven all that they need to succeed against the defendant in an action for libel. Learned counsel maintained that alleging Claimants who are Pastors of financial impropriety, breach of trust and mischief to property is libelous and the defendant has not put forward anything to controvert this. He submitted that libel is actionable per se and the Claimants are entitled to damages. He referred the Court to Kodilinye And Aluko: The Nigerian Law of Torts Revised Edition at pages 139-140. In conclusion, learned counsel urged the Court to grant the reliefs of the claimants in view of the state of pleadings and the evidence put forward before the Court.

 

17. On the 8th day of April, learned counsel on behalf of the defendant filed his final written address which was adopted on the 12th day of December, 2022 wherein counsel distilled the following issues for determination in this case;

1.     Whether this suit is incompetent in that the Defendant named herein is not a juristic entity and that the claims before the court constitute a misjoinder of parties in that the claimants’ claims are separate from each other.

2.     Whether this Honourable Court has jurisdiction to entertain and determine the aspect of the claim bothering on the claim for damages for defamation and whether the defendant by her complaint to the Police without more is liable to damages.

3.     What is the nature of the relationship between the Claimants and the Defendant, whether it is governed by Statute for it to have statutory flavor or mere contractual relationship to be guided by the terms of the contract?

4.     Whether the termination of a contract of employment governed by the terms of employment can be said to be null and void and whether the complainants for the termination as the Claimants herein are entitled to an order of reinstatement and claim for arrears of unpaid salaries.

5.     Whether the entire claim of the claimants ar nor (sic ) are not liable to be dismissed.

 

18. Counsel adopted his arguments and submissions in the written address in support of the Notice of Preliminary Objection as his arguments in respect of issue one above. He urged the Court to uphold the ground of the objection ad dismiss the Claimants’ claims.

 

19. On issue two, learned counsel submitted that the jurisdiction of a Court is determined by the Statute establishing in it and which in the instant case is the Constitution of the Federal Republic of Nigeria, 1999 as amended and the National Industrial Court Act. He submitted while relying on the case of Bisong v. UNICAL [2016] LPELR-41246(CA) that the National Industrial Court does have jurisdiction to entertain the tort of defamation as it is a Court of limited civil jurisdiction. He urged the Court to dismiss the claims of Claimants relating to reliefs 1 and 4. He posited that where the Court is inclined towards taking the case of the Claimants as regards the defamation, the Court should take cognizance of the fact that the defendant acted within its constitutional right in reporting to the appropriate authority the alleged criminal conduct committed by claimants. He posited further that it has not been alleged that it was the defendant that made the said publication of the report or that the defendant apart from the report did anything more. He relied on the case of Adama Beverages Ltd v. Akam & Ors [2015]LPELR-40417 (CA). It was Counsel’s position that under Exhibit D2 the Bye Law of the Defendant and in line with Sections 97(5), 98(1)(a),101(1)(h), 102(1) and 104(g), the Claimants were Chairmen of their respective Local Churches who has the responsibility to remit dues to the defendant and as such the report made to the Police was justified. He urged the Court to so hold.

 

20. As regard issue there, learned counsel posited that from the appraisal of the facts of this case and the exhibits before the Court, the nature of the employment contract between parties is clear. He posited further that parties are ad idem that the employment of Claimants was governed by the Defendant’s Constitution, Bye laws and Conditions of Service. He submitted while relying on the case of Osamata Macaulay Adekunle v. United Bank for Africa Plc [2016]LPELR-41124(CA) that the relationship between parties was that of contract of employment under common law and not under statute. He submitted further that there is a great difference between employment with statutory flavor and one of a master-servant. He relied on the case of Mobil Producing (Nig) Unitd v. Johnson [2018]14 NWLR (Pt 1639)342. He posited that the definition of an employment with statutory flavor has been given by the apex Court in the case of Oforishe v. NG.O. Ltd [2018] 2 NWLR (Pt 1602)5354, Paras E-A and C-H, 55, Paras A-D. He submitted in the light of the above decisions that the employment relationship between parties is one of a master-servant and not one with statutory flavor. He urged the Court to so hold.

 

21. On issue four, it is counsel’s position that it is only when an employment is with statutory flavor that termination can be declared null and void and the employee reinstated with an order of payment of arrears of salaries while an employee in a master-servant employment whose termination if found to be wrongful is only entitled to damages. He relied on the cases of Oforishe v. NG.O. Ltd, supra; BEDC Plc v. Esealuka [2015]2 NWLR (Pt 1444)416-417.; Johnson Omale v. University of Agriculture Makurdi & Ors [2011] LPELR-4366(CA). He posited that the Claimants in this case have not sought for damages for the alleged wrongful termination that assuming the Claimants have sought for same, the Court would have considered the quantum of the damages awardable in line with the case of Oforishe v. N.G.C. Ltd, supra and Johnson Omale v. University of Agriculture Makurdi & Ors, supra. He posited that in the instant suit there is no evidence as to the period of notice however Sections 26 and 27 of Exhibit D2, a dismissed staff is not entitled to any benefit. It is counsel’s further submission that the Court is not a Father Christmas to award a party what has not been sought for. He urged the Court to dismiss Claimants’ claims on this issue.

 

22. As regard issue five, counsel submitted that in the light of the evidence placed before the Court by the defendants, it was shown that the Claimants were given adequate opportunities to defend themselves but they failed to take advantage of it and that led to their dismissal. He also submitted that the defendants have been able to show that it was only the Claimants out of all those who exhibited acts of disobedience to defendants that refused to retrace their steps as shown in Exhibits D11, D15, D16, D17, D18 and D19. He submitted that Exhibit D12 shows that the Claimants’ dismissal were ratified by the General Church Council which is the highest policy making body of the defendant. He posited that the Central Planning Committee whose activities the Claimants sought to hide under had nothing to do with the employer-employee relationship between Claimants and defendants and the Claimants’ allegiance is supposed to be to their employer and not any other body. He posited that Claimants who denied service of the query letters on them has been shown by paragraph 1 of exhibit C9 that they were aware of their transfers and issuance of the query letters and cannot deny same. He posited further that by Section 98 E of Exhibit C4 it is clear that it the responsibility for Claimants remuneration is on the Churches under which they served. He submitted that the Claimants have not made out any case against the defendant nor proved that they are entitled any other relief claimed and urged the Court to dismiss their claims.

 

23. On the 19th day of April, 2022, learned counsel on behalf of the Claimants filed a Reply on points of law to the final written address of the defendant and he submitted in response to issue one in the final written address of the defendant that arguments was only offered in respect of the juristic personality of the defendant in the written  address in support of the Preliminary objection leaving out any argument in respect of misjoinder of parties and which implies that the issue has been abandoned. According to learned counsel the position of the defendant on misjoinder of claimants is bound to fail in view of the provisions of Order 13 Rule 1 of the Rules of this Court and the case of PDP v. Ezeonwuka [2018]3 NWLR (Pt 1606)187@224. He posited that the defendant failed to give any other name that is juristic and its certificate of registration shows that it was its trustees that were registered and that the Constitution and other instruments refer to the trustees as Board of Trustees and which name the defendant has been using to sue before now. Thus, the registration of the trustee gives the defendant a juristic personality.

 

24. In response to issue two, it was the position of learned counsel that the facts of this case are distinguishable from those of the case of Bisong v. UNICAL, supra and Adama Beverages v. Akam, supra which the defendant relied upon in its final written address. He posited that the defamation happened in the workplace and is a matter closely related to the labour and employment matter between parties. He submitted that it cannot be the intention of the Constitution that in this type of case issues be split and litigated on in different Courts when they can be conveniently taken together by this Court. He relied on Section 254C (1) of the Constitution as amended. He urged the Court to hold that it has jurisdiction and dismiss this leg of the objection of the defendant. He maintained that the case of Adama Beverages v. Akam, supra, is not apposite because in the instant case the defendant did not only report the matter to the Police but also went ahead to publish spurious allegation against claimants knowing fully well that Claimants don’t handle monies.

 

25. Learned counsel responded jointly to issues three and four and submitted that the cases of Oforishe v. NGC, supra and Johnson Omale v. University of Agriculture, supra relied on by the defendant in this case is distinguishable from this case in the sense that the Claimants in this case were not served letters of dismissal and in the eye of the law, there was no dismissal. He maintained that it was a mere unilateral dismissal that was not communicated to Claimants and the claimants’ salaries was abruptly stopped in an undignified manner and which wanton display of power by the defendant cannot be supported by the Court.

 

26. On issue five, he submitted that Rev S.O. Frank and Rev. Ikumemiya are not in Court and their issues have nothing to do with the case at hand. He posited that the admission of the defendant on the issue that the claimants were not served makes them liable to claimants. He urged the Court to discountenance the submissions of the defendant and grant the claims of the claimant.

 

27. Having carefully perused the Originating process together with its accompanying processes, the Notice of Preliminary Objection, the Statement of defence, the Reply to statement of defence, the final written addresses of parties and the Reply on Points of law filed by the Claimants, I am of the firm view that the issues the determination of which would do justice to this case are;

1.     Whether this action as presently constituted is competent against the defendant?

2.     Whether Claimants have proven their case to entitled them to the reliefs sought?

 

28. On issue one, it is the position of the defendant vide its Notice of Preliminary Objection that the defendant is not a juristic personality and as such its name should be struck out. I am mindful of the submission of learned counsel on behalf of the claimants in paragraphs 1.2-1.4 of the written address in opposition to the Notice of Preliminary Objection that the Objection of the defendant is incompetent since the defendant’s motion for extension of time to regularize only relates to the memorandum of Conditional appearance alone and does not include the Notice of Preliminary Objection which was also filed out of time. He argued that since the defendant did not seek leave to file the Notice of Preliminary Objection out of time in line with the Rules of Court, same is incompetent before the Court. He equally maintained that the defendant is not even before the Court because the application to regularize the memorandum of conditional appearance was not even moved by the defendant. It is noted that on the 20th day of October, 2021 when the defendant appeared in this Court and informed the Court of the fact that they have entered a conditional appearance and filed a Notice of Preliminary Objection, the application for extension of time to regularize the memorandum of conditional appearance was not moved. On the said date the defendant moved its Notice of Preliminary Objection without any form of complaints from the learned counsel on behalf of the Claimants and the Court ordered that the application would be considered together with the main suit. It is true that the application to regularize which though was not moved was only to regularize the memorandum of Conditional appearance and not the Notice of Preliminary Objection which was filed on the same date with it. This is infact, in contravention of the Rules of Court which ought to be obeyed. However, I am mindful of the decision of the Supreme Court in UTC Nigeria Limited v. Pamotei [1989] 2 NWLR (103) 244, where it was held that; “The Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For the Courts to read the rules in the absolute without recourse to the justice of the cause, will be making the Court slavish to the Rules. This certainly is not the raison d'etre of the Rules of Court” [Emphasis mine]. See also; Duke v. Akpabuyo L.G. [2005] 19 NWLR (Pt. 959) 130. Thus, Rules of Court are not meant to enable a party to score a cheap goal based on mere technicality and as such the Court in the quest of doing substantial justice may depart from the strict adherence with the Rules of Court. See; Sosanya v. Onadeko [2005] 8 NWLR (Pt. 926) 185 and Nneji v. Chukwu [1988]3 NWLR (Pt. 1981) 18. In my view, the objection of learned claimants’ counsel to the competence of the Notice of Preliminary objection based on the above grounds earlier stated is nothing more than reliance on crass and crude technicality.

 

29. In fact, it is my view that the appearance of the defendant in this case is competent notwithstanding that the Motion to regularize the memorandum of Conditional appearance filed out of time was not moved. In support of this view, I call in aid the dictum of Onnoghen JSC, CJN (Rtd) in Ebe v. COP [2008] 4 NWLR (1076) 211 @ 212 thus; “The word “appearance” is defined as a coming into Court as a party or interested person, or as a lawyer on behalf of a party or interested person, especially a defendant's act of taking part in a law suit, whether by formally participating in it or by an answer, demurer or motion or by taking post judgment steps in the law suit in either the trial Court or an appellate Court. An appearance can either be personal by the party to the action or appeal or through his legal practitioner. The word signifies or designates the express or overt act by which a party against whom an action has been instituted or who seeks redress from the Court of law submits himself to the jurisdiction of the Court. The act of appearing in Court may be expressly made by formal memorandum of appearance or to physically appear and make oral declaration or statement to that effect or may be implied from some act done with the intention of appearing and submitting to the jurisdiction of the Court.” [Emphasis mine]. See also the case of Ibironke v. MTN [2019] LPELR-47483(CA)1@11-25 Para. F. Thus the mere fact that learned counsel on behalf of the defendant appeared in person on the 20th day of October, 2021 to move the Notice of Preliminary Objection has cured whatever defect in the memorandum of Conditional appearance. Learned counsel on behalf of the Claimants needs to be reminded that the Courts are in the era of doing substantial justice and have shifted focus from mere technicalities. See the following cases; Ecobank v. Siloam Global Service Ltd [2021]LPELR-56227(CA)1@21-23, Para. F; Jitte v. Okpulor [2016] 2 NWLR (Pt 1497)542@577, Para B; Registered Trustees of the Airline Operators of Nigeria v. Nigerian Airspace Management Agency [2014] 8 NWLR (Pt 1408) 1@30 and; Etsako West L.G.C. v. Christopher [2014] 14 NWLR (Pt. 1426) 73. The mere fact that the motion to regularize the memorandum of appearance was not moved and the fact that the said Motion to regularize does not include the Notice of Preliminary Objection will not bar this Court from considering the Notice of Preliminary Objection which bothers on the jurisdiction of this Court that can be raised at any stage and especially where the Claimants responded to the same Notice of Preliminary Objection by filing a Counter-affidavit and Written address in opposition to same without any objection. Thus, this Court is inclined towards considering the Notice of Preliminary Objection. To my mind, to do otherwise, smacks of resurrecting the antics of technicality that is long buried in the bowel of our legal system. Accordingly, the objection of Claimants’ counsel to the competence of the Notice of Preliminary Objection is hereby discountenanced in line with Order 5 Rule 1 of the National Industrial Court Nigeria (Civil Procedure) Rules, 2017.

 

30. The question of juristic personality is so important in the sense that it touches on the jurisdiction and competence of a Court to entertain a case and as such can be raised at any stage. See; Uyo Local Govt v. Akwa Ibom State Govt [2021]11 NWLR (Pt 1786)1@41, Para F; Socio-Political Research Dev v. Min.,FCT [2019]1 NWLR (Pt 1653)313@340, Para E and Bank of Baroda v. Iyalabani Ltd [1998]2 NWLR (Pt 539)600@612, Paras C-D. It is the law that juristic personality can only be denoted by enabling law. If the enabling law provides a name by which a party should be sued the party would be sued in that name. See Abubakar v. Yar’ Adua, supra. The law attributes or ascribe juristic personality to natural and artificial persons. See Dairo v. Regd Trustees., TAD., Lagos, supra. The law is settled that only a juristic person can sue and be sued? The pertinent question at this stage is considering the facts and circumstances of this case can it be said that the defendant is not a juristic person? In my view, the defendant is a juristic person and if at all there is a mistake in stating its name, it was only sued in a wrong name which makes it a misnomer and I will proceed to explain why I take this view. From the facts of the case particularly looking at the pleadings of parties, it is clear that Claimants were known to the defendant and had a relationship which led to the dispute in this case. It is equally clear that the defendant is a faith-based organization. All through the affidavit in support of the Notice of Preliminary Objection deposed to by one Monday Sandawa, it was not stated that the entity intended to be sued does not exist. All that was stated therein was that there was no entity known by the name Board of Trustees of Evangelical Church Winning All. In fact, in paragraph 3 and 3a of the said affidavit, the correct name of the defendant seems to be “The Registered Trustees of Evangelical Church Winning All.” I say so in view of the fact that the deponent in paragraph 3 of the affidavit made mention of the fact that he was informed of the facts contained therein by the “legal, officer to the Registered Trustees of Evangelical Church Winning All”. In fact, he deposed further in paragraph 3 (a) of the affidavit that the Defendant was served with the Originating process through one Mrs Janet Joseph who conveyed the same to the Legal officer in her capacity as the Legal Officer to the Registered Trustees of Evangelical Church Winning All. Besides, Exhibit A attached to the affidavit in support of the Notice of Preliminary Objection which is the Certificate of Incorporation shows that The Trustees of the Evangelical Church Winning All were registered by Companies and Allied Matters Act, 1990 pursuant to its Section 682(3). In fact, the names of the Trustees were aptly captured in the said Certificate of Registration. It is therefore clear beyond doubt that there is an entity existing as Trustees of the Evangelical Church Winning All. It is juristic personality has been clearly shown by the production of the certificate of incorporation. See the following cases; Dairo v. Regd Trustees., TAD., Lagos, supra; G & T Invest Ltd v. Witt & Bush Ltd [2011] 8 NWLR (Pt. 1250) 500@540, Paras C - D and; ACB v. Emostrade Ltd [2002] 8 NWLR (Pt.770) 501. The problem seems to be that the name to be sued was not gotten correctly in the sense that it was supposed to be “The Registered Trustees of Evangelical Church Winning All” which is normal way Incorporated Trustees are sued instead of Board of Trustees of Evangelical Church Winning All” sued in this case.

 

31. It is the position of the law that where there is a mistake with regards to the name of a litigant in an action, such a mistake is described as a misnomer. That is a mis-description or wrong use of a name. In the case of Emespo J. Continental Ltd v. Corona Shifah - Rtsgellschaft & Ors[2006] 11 NWLR (Pt. 991) 365, the apex Court per Mukhtar JSC held thus; “A crucial factor in determining whether what happened was a misnomer or not is whether there is an existing entity which has been given a wrong name such wrong name not being the name of another entity.” [Emphasis mine]. Thus, a misnomer occurs where the entity suing or intended to be sued exists, but a wrong name is used to describe that entity. Thus, it is a mistake as to the name and not as to the identity of the particular party to the litigation. Put differently, a misnomer lies in mistakenly giving a wrong name to the right person and the person intended to be sued. See Njoku & Ors v. Onwunelega [2017] LPELR-43384(CA)1@38-41, Para C and; MTN Nigeria Communications Ltd v. Mr. Akinyemi Aluko & Anor [2013]LPELR - 20473 (CA)1@34-38, Paras B-F. In the light of the above decisions, which I adopt as mine and considering the facts of this case and facts deposed to in the affidavit in support of Notice of Preliminary Objection, I am of the humble view that the defendant had no misgiving nor was it misled that it was the right entity to be sued and indeed sued.

 

32. In fact, from the document marked Exhibit B which is annexed to the counter affidavit against the Preliminary Objection, it is clear that the defendant had before now taken out a Plaint to recover possession from the 2nd Claimant in the said name which it is now denying before a District Court in Kogi State. So, it is thus clear that the defendant had used the said name which it is now challenging in a previous proceeding between it and the 2nd Claimant. In the case of Registered Trustees of Air Line Operators of Nigeria v. Nigeria Air Space Management, supra @31, Paras A-H, Okoro JSC when considering the effect of a party abandoning a name which it has previously used in relation to juristic personality held thus; “This Court held that a misnomer occurs when the correct person is brought to Court in a wrong name. In the instant case the Appellant actually initiated the suit giving birth to this appeal at the High Court with the name he is now abandoning. He did not contest that name at the Court below. He has not shown how he has been affected by the use of that name. Let me state emphatically here that when both parties are quite familiar with the entity envisaged in the Writ of Summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, then there can be no problem of mistaken identity to justify a striking out of the action. A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued.” [Emphasis mine]. The name used in suing the defendant in this case was known to parties before the present suit. In fact, the defendant had used the name to sue the 2nd Claimant before now and it has not told this Court how the use of that name by the Claimants and has held itself out to be known has affected it. It is too late for the defendant to now wake up to be challenging the same name it has used in a previous proceeding. Besides, the Courts have departed the era of deciding cases on technicalities rather than on the merits as the aim of Courts now is to do substantial justice. The defendant having used the name before in a previous proceeding cannot at this stage be challenging the name under which it was sued. I therefore discountenance the objection on the juristic personality of the defendant.

 

33. It is equally the position of defendant vide the Notice of Preliminary objection that the Claimants’ claims are separate from each other. In fact, in the affidavit in support of Notice of Preliminary Objection it was deposed that the Claimants are three in number and the Claimants have separate claims against the defendant and that each claim is personal to the claimant. However, it is worthy of note that part of the questions formulated for determination in the written address in support of the Notice of Preliminary Objection is that the case of Claimants constitutes misjoinder of parties. Although learned counsel on behalf of the defendant did not offer any argument in support of this in his written address in support of the Preliminary objection. I am mindful of the submission of learned counsel on behalf of the Claimants in his Reply on points of law to the final written address that the defendant’s failure to advance arguments in support of this leg of the objection is tantamount to abandoning the said objection. The law is beyond arguments that failure to offer arguments in support of a preliminary objection will be deemed as abandonment of the preliminary objection. See; Onamade v. A.C.B. Ltd [1997] LPELR-2671(SC)1@ 17-18, Para. F and; Ajibade v. Pedro [1992] 5 NWLR (Pt. 241) 257. Thus, the most reasonable thing to do in this instance is to deem this issue in the said preliminary objection abandoned. Assuming arguments were even canvassed in support of the said objection, can same be sustained in view of the recent judicial authority and in view of the facts and circumstances of this case. In the case of CBN v. Adedeji [2022]13 NWLR (Pt 1847)361@393, the Supreme Court was of the view that employees who might have had separate contracts of employment with the cross-respondent, could sue together since it is their contention that the rationalization exercise was done in a blanket manner and across the board and therefore the effect of the exercise on all of them was the same. Thus, their common grievance/interest is therefore their redundancy and the restoration of their job and as such have common interest to enable them sue together. In the instant case, it is the case of the Claimants vide their statement of facts that the allegations leading to the dispute in this case were made against them by the Mopa District Council and which allegations led to their invitation by the Police and subsequent dismissal from employment and the stoppage of their salaries without following the laid down procedures in the ECWA Reviewed Conditions of Service. Their common grievance/interest is therefore the alleged dismissal and stoppage of their salaries and failure to follow the laid down procedure and as such can maintain this action together as they did.  Besides the position of the law is clear that misjoinder will not defeat an action unless there is miscarriage of justice. See; Olorunleke & Ors v. Afroworks Nig. Ltd & Ors [2021] LPELR-56400(CA)1@23-24, Para D and Okoye v. Nigerian Construction &Furniture Co. Ltd [1991]6 NWLR (Pt 199) 501. See also Order 13 Rule 1 of the National Industrial Court (Civil Procedure) Rules, 2017. As such, the objection even if argued, cannot terminate this action and is thus inconsequential. Accordingly, issue one is resolved against the defendants and in favour of the Claimants.

 

34. On issue two, let me first state that the general usual practice is for a Claimant to repeat the reliefs sought in the General Form of Complaint (or Writ) in the Statement of facts (or Statement of Claim). However, in the instant suit, while claimants sought 6 reliefs in the General Form of Complaint they sought 7 reliefs in the Statement of facts which means that they introduced a new relief to the statement of facts. However, apart from the fact that a new relief was introduced in the Statement of facts, the way the reliefs in the General Form of Complaint were even couched was different entirely from the way the ones in the Statement of facts were couched. The law is settled beyond peradventure that a statement of claim supersedes the writ of summons (herein as General Form of Complaint) and as such any claim or relief contained in the writ of summons which is not repeated or reproduced in the statement of claim is deemed abandoned. Thus, it is the reliefs as contained in the statement of claim (herein as statement of facts) that will be considered where there is a difference between the reliefs sought in the Writ and in the statement of claim. See the following cases; Zenith Bank Plc v. Igbokwe [2018] LPELR-44777 (CA)1@39, Paras. B – D; Ezenwa v. Oko & Ors [2008] 3 NWLR (Pt. 1075) 610; ELF Nig. Ltd v. Sillo [1994] 6 NWLR (Pt. 350) 258; Enigbokan v. American International Insurance Co. (Nig.) Ltd. [1994] 4 NWLR (Pt.348) 1@20, Paras F-H. In view of the above, I will consider the reliefs as sought in paragraph 34 of the statement of facts.

 

35. It is the position of learned counsel on behalf of the defendant in his final written address that this Court does not have jurisdiction over the defamation aspect of the case. He placed heavy reliance on the case of Bisong v. UNICAL, supra. The learned counsel on behalf of the Claimants in his Reply on points of law urged the Court to hold that it has jurisdiction on defamation because the facts of the cases of Bisong v. UNICAL, supra and Adama Beverages v. Akam, supra are distinguishable from the facts of the case at hand. Section 254 C (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as “the Constitution”) provides thus;  “Notwithstanding the provisions of Sub-Sections 252, 257, 272 and anything contained in the constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters:

(a)    Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the condition of service, including health, safety, welfare or labour, employee, worker and matters incidental thereto or connected therewith.”

 

36.It has been argued by learned counsel on behalf of Claimants in the final written address that this Court does have jurisdiction over the part of the claim that deals with defamation because it happened in the workplace of the parties and it is a matter closely related to labour and employment matter between the parties. He maintained that defamation is not only ancillary but within and forms part of what happened during the employment relationship between parties and as such cannot be completely removed from the jurisdiction of the Court. I am of the view that looking at it literally, that may be so that this Court has jurisdiction over matters arising out of workplace or incidental thereto. However, the Court of Appeal which is superior in status to this Court per Obaseki-Adejumo (JCA) had in the case of Olushola & Anor v. Andrew [2021]LPELR-56017(CA)1@ 14-17, Para. F interpreted the meaning of the phrases; “matters arising from workplace”; “matters incidental thereto” and “or connected therewith” used in Section 254C (1) (a) of the Constitution in relation to the jurisdiction of this Court thus; “…To interprete the phrases; "matters arising from workplace"; "matters incidental thereto" and "or connected therewith to mean any matter arising from the work place or incidental to the work place or connected to the workplace can only be litigated upon at the National Industrial Court is a profligate interpretation and negate the principle of main claim determining the jurisdiction of the Court. This would invariably vest the National Industrial Court with a very wide and almost limitless exclusive jurisdiction in respect of civil matters that arise from the work place within any claim which are ancillary and stand on a determination of the main claim. This cannot be the intendment of the provisions. It will lead to severance of claims” [Emphasis mine]. In fact, more emphatically the Court of Appeal per Pemu JCA held thus in the case of UBA & ors v. Oladejo  [2021]LPELR-55320 (CA)1@ 14-16, Para F as regards whether this Court has jurisdiction in respect of malicious prosecution arising out of work-place; A painstaking perusal of the provisions of Section 254 (c) (1) of the 1999 Constitution of the Federal Republic of Nigeria, seems to me that the provisions confers on the National Industrial Court jurisdiction over trade union, and labour matters, employment law rules. It does not pertain to criminal matters or tort. Section 254 (c) (1) (b) of the Constitution of the Federal Republic of Nigeria states:

"Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Union Act, Labour Act, Employees' Compensation Act or any other Act or Law relating to Labour Employment, Industrial Relations, Workplace or any other enactment replacing the Acts or Laws."

From above, it is indicative that the provisions of Section 254(c) (1) of the 1999 Constitution only cover Acts or Laws mentioned in Section 254(c) (1) (b) of the 1999 Constitution of the Federal Republic of Nigeria. These are matters arising from Factories Act, Trade Disputes Act, Trade Union Act, Labour Act, Employees' Compensation Act or any other Act or Law relating to Labour Employment, and indeed industrial relations. That Section of the Constitution does not pertain to malicious prosecution, assault, detinue or any liability in tort. The infringement of the right of a person in his work place is not enough to confer jurisdiction on the National Industrial Court except where there is employment issue. The case of the Respondent, being one for malicious prosecution, has nothing to do with Respondent's condition of employment or contract of employment. The High Court of a State is the appropriate forum seised with the jurisdiction to entertain the action.” [Emphasis mine] The point must also be stated that it is clear from the decisions of the Court of Appeal in Bisong v. UNICAL, supra and Akpan v. UNICAL [2016] LPELR-41242(CA) 1@34-35, Paras. D-D that a claim cannot be considered as ancillary to the main claim when it is completely removed from the subject matter of the main claim and as such a careful examination of the provisions of Section 254C of the Constitution, will not reveal that the powers of the National Industrial Court extend to entertaining a claim in tort, at all. The Court went further that a claim in tort cannot be considered as being ancillary to a claim for wrongful dismissal when brought before a Court which has its jurisdiction limited by Statute like the National Industrial Court. Consequently, the Court maintained that a claim for defamation stands on its own. By the doctrine of stare decisis, this Court is bound by the above decisions of the Court of Appeal as to the jurisdiction of this Court to entertain claims in tort arising out of workplace even when it feels otherwise. See Nigeria - Arab Bank Ltd v. Barri Engineering (Nig) Ltd [1995] LPELR-2007(SC)1@47-48, Para. G. It is in the light of the above that I find that the jurisdiction of this Court is ousted in respect of the tort of defamation part of this claim and as such reliefs i, iv, v and vi in the Statement of facts which are premised on the tort of defamation are accordingly struck out. I so find and hold.

37. It is the position of the Claimants that they were employees of the defendants having been employed. The facts of the employment of Claimants are not in dispute in this case considering the pleadings of parties. It is equally not in dispute that the employment relationship between parties is governed by the Conditions of Service of the Evangelical Church Winning All, the Constitution and Bye Laws of the defendant. It is a settled position in our labour jurisprudence that there are basically three types of employment namely; purely master-servant; employment held at the pleasure of the employer and; employment with statutory flavor or Employment protected by Statute. See the following cases; Longe v. FBN Plc [2010] 6 NWLR (Pt. 1189) 7; Iderima v.  R.S.C.S.C. [2005] 16 NWLR (Pt. 951) 378 and; Olaniyan v. Unilag [1985] 2 NWLR (Pt.9) 599. It is the submission of learned counsel on behalf of Claimants vide paragraph 4.03 (b) of the final address that the employment of Claimants is one with statutory flavor. Learned counsel on behalf of the defendant vide paragraph 6.4 of his final written address was greatly opposed to this view. An employment is said to be of statutory flavor when it is protected by statute. See; Oloruntoba-Oju v. Abdul - Raheem [2009] 13 NWLR (Pt.1157) 83; Idoniboye - Obu v. N.N.P.C [2003] 2 NWLR (Pt. 805) 589. In an employment that is purely of a master-servant nature relationship, usually governed and regulated by the terms and conditions agreed to by the parties in a contract, the right and the manner by which the employment is to be brought to an end by way termination, resignation or dismissal, are ordinarily spelt out in the terms and conditions of the contract. Since parties are ad idem that the employment relationship is one governed by Conditions of Service of the Evangelical Church Winning All, the Constitution and Bye Laws of the defendant, it is devoid of any statutory flavor contrary to the assertion of learned counsel on behalf of Claimants.

 

38. The position has remained settled that when an employee complains that his employment has been wrongfully terminated, that employee has the onus to; (i) to place before the Court the terms and conditions of the contract of employment and; (b) to prove in what manner the said terms were breached by the employer. See the following cases; Akpabio v. Union Bank [2021]LPELR-54301(CA)1@ 23-24, Para. A; Union Bank v. Salaudeen [2017] LPELR-43415(CA)1@18-20, Para D.. It is the position of Claimants vide paragraph 25 of the their statement of facts that they were purportedly dismissed since 2016 even though there is no instrument to that effect and the procedure laid down by the Conditions of service were not complied with. They further averred vide paragraph 30 of the statement of facts that they were not issued query or given any form of hearing and were not tried before the defendants purportedly dismissed them from employment and stopped their salaries. Without mincing words, the conditions or terms of the contract of employment is the kernel and bedrock of the case founded wrongful/unlawful termination of employment. In fact, it is hornbook law that parties are bound by the terms of their contract and the duty of the Court in such instance where the terms of the contract is placed before it is to interpret the terms of the contract to reflect the intention of the parties and give effect to the same. See the following cases; Sahara Energy Resources Ltd v. Oyebola [2020]LPELR-51806(CA)1@25-26, Paras. B-B; Omega Bank (Nig.) Plc v. O.B.C. Ltd [2005] 8 NWLR (Pt 928) 547. Tied to the above firm position of the law is the equally settled position of the law that where the words used in a contract are clear and not ambiguous, the words should be given their ordinary, simple, grammatical and natural meaning. See; Esset Petroleum Ent. (Nig) Ltd v. Petroleum Equalization Fund (Mgt) Board & Anor [2019] LPELR-47355 (CA)1@25-27, Para E; Arfo Construction Co. Ltd v. Minister of Works & Anor [2018] LPELR-46711(CA)1@42, Para. C; Dalek (Nig) Ltd v. OMPADEC [2007] 7 NWLR (Pt. 1033) 402 and; U.B.N. Ltd v. Sax (Nig) Ltd [1994] 8 NWLR (Pt. 361) 402.

 

39. The Conditions of service of the defendant is herein as Exhibit C4 and same will now captivate the attention of this Court. Chapter 4 of the said Conditions of Service contains specific provisions on Discipline of an employee of the defendant. For the sake of clarity, I will reproduce salient portions of the said provision;

                                                CHAPTER FOUR

                                                            DISCIPLINE

Section 17.  BASIS FOR DISCIPLINARY PROCEEDINGS:

Disciplinary proceedings in accordance with this chapter are initiated because of a staff’s misconduct, inefficiency and/or redundancy.

The discipline of Church members who are not ECWA staff or in ECWA employment shall be in accordance with the ECWA Constitution and Bye-Laws and the Minister’s Handbook.

                        Section 18.   AUTHORITY AND DELEGATION:

The power to discipline (interdict, suspend or dismiss or exercise any other disciplinary measures) over all staff in ECWA service is vested in the Department Board/DCC or other bodies appointed by ECWA.

                        Section 19.   REPORTING MISCONDUCT:

1.     It shall be the duty of every staff to report any case of   misconduct that comes to his notice, to a staff superior to the staff involved.

2.     When a staff’s misconduct is brought to the notice of his superior, it shall be the duty of that superior staff to report it to the Head of Department without delay.

3.     On receiving the report, the Head of Department shall take action in accordance with section 20 and if necessary may recommend to the Board or may himself order (if within powers delegated to him) the interdiction of the staff.

4.     At the appropriate point in the investigation the staff may be indicted.

5.     Disciplinary proceedings shall be conducted in accordance with the provisions of the relevant section.

Section 20     GENERAL PROCEDURE:

1.     Where there is allegation of misconduct against a staff under section 19 and the Head of Department or Board does not consider the alleged misconduct serious enough to warrant proceedings under section 21, it may cause an investigation to be made into the matter in such manner as it considers proper and the staff shall be entitled to know the whole allegation made against him and shall have an adequate opportunity throughout to make his defense.

2.     If as a result of the investigation, the Head of Department or Board finds that the allegation is proved, it may inflict such punishment upon the staff as by way of demotion, incremental penalty or any other approved punishment.

Section 21     DISMISSAL OF PERMANENT STAFF:

A permanent staff may be dismissed by the Board in accordance with the following rules:

1.     The staff shall be notified in writing by his Head of Department of the allegations against him, and he shall be called upon to state in writing, any grounds upon which he relies to exculpate himself;

2.     When the Head of Department is not satisfied with the grounds for which the staff relies, he shall refer the matter to the Board.

3.     The matter shall be investigated by the appropriate committee as may be approved by the Board;

4.     No documentary evidence shall be used against the staff unless he has previously been supplies with a copy thereof or give access thereto;

5.     The committee shall inform the staff of the date of its sitting, the allegation(s) against him and he shall be required to appear before it, and defend himself, and shall be entitled to call witnesses. His failure to appear shall not invalidate the proceedings of the committee.

6.     If the staff does not furnish any representation within the time fixed the committee may take such action as it deems appropriate against him.

7.     If the staff submits his representation and the committee is not satisfied after its sittings, that he has exculpated himself, and considers that the staff should be dismissed, it shall recommend his dismissal to the Board;

8.     If upon considering the report of the committee, the Board is of the opinion that the staff shall deserve to be dismissed, it shall direct accordingly;

9.     If upon considering the reports of the committee, the Board is of the opinion that the staff does not deserve to be dismissed from service, it shall impose any other punishment as it considers appropriate;

10.If during the course of the inquiry further allegations are disclosed and the Board thinks fit to proceed against the staff upon such grounds, the staff by the direction of the Board shall be furnished with a written statement thereof and same steps shall be taken as prescribed in respect of the original grounds;

11.Where the Board does not approve the staff’s dismissal and does not consider that any penalty should be imposed, the staff shall be reinstated forthwith and shall be entitled to full amount of salary denied him if he was interdicted.

12.If upon considering the report of the committee or panel, the Head of Department or Board is of the opinion that the staff does not deserve to be dismisses but the proceedings disclosed grounds for requiring him to retire, the Board shall without further proceedings direct accordingly

Section 26    EFFECT OF DISMISSAL

A staff who is dismissed forfeits all claims including retiring benefits, gratuity and pensions, etc

                        Section 27    EFFECTIVE DATE OF DISMISSAL

When a staff is dismissed, no notice or salary in lieu of notice shall be given to him.

                        Section 28.   TERMINATION OF EMPLOYMENT

1.     ACTS LEADING TO QUERIES/WARNINGS:

Act which could attract queries/warnings are as follows:

a.     Absence from duty without permission,

b.     Sleeping while on duty

c.      Negligence of duty

d.     Insubordination

e.      Making false statement in particular matter or failure to disclose relevant information required by a lawfully constituted authority.

f.        Behaving in a way that constitute a public nuisance or put ECWA in disrepute.

g.     Incompetence or Inefficiency.

2.     ACTS LEADING TO SUSPENSION/DISMISSAL

Any ECWA staff on suspension shall be on HALF OF BASIC SALARY ONLY. The following acts may lead to a staff’s termination and/ or dismissal.

a.     Drinking alcoholic drinks/taking illegal drugs

b.     False claims against ECWA

c.      Falsification or suppression of records

d.     Dishonesty

e.      Engaging in partisan politics without permission

f.        Unauthorized publication e.g talking to press or writing anonymous letters

g.     Unauthorized disclosure of official information to persons not entitled to such information.

h.     Fornication/adultery.

i.        Lack of or declining productivity.

j.        Disloyalty or disobedience to EWA Leadership and ministry.

k.      Any other act of misconduct which may warrant a suspension.

l.        Acts incompatible with ECWA Articles of Faith and Practice, ECWA Constitution and Bye Laws, ECWA Conditions of Service, ECWA Minister’s Handbook, ECWA Financial Policies and Guidelines and General Church Council Resolutions

m.   Engaging in professional private practice

n.     Polygamy, Polyandry, Divorce and Remarriage Contrary to ECWA guidelines

o.      Conviction for criminal offence (other than a traffic offence or the like)

p.      Fraud, embezzlement, misappropriation, mismanagement of funds and theft…..

 

40. The above provision of the Conditions of service is clear and comprehensible as such it requires no special aid to understand. The disciplinary procedure for dismissal is clearly captured in Section 21 of the said Conditions of service which provides for dismissal of a permanent staff. The pertinent question is are the Claimants permanent staff of the defendant? By the provisions of Section 8 of the Conditions of Service, there are three different types of appointment in the defendant namely; Short term contract; Permanent appointment and; contract appointment. The short-term appointment is for a maximum period of 6 months while the permanent appointment is the pensionable type of employment and the contract appointment is an appointment for a duration of 2 years renewable for a period not exceeding 2 years. Claimants in this case averred that their employment were confirmed by the defendant vide paragraph 9 of their statement of facts, this was not specifically denied by the defendant in its paragraph 9 in its statement of defence. The Claimants’ according to the facts averred in their pleadings were employed by the defendant in the years 1992, 1994 and 2004 respectively and their employment was confirmed two years later by the defendant. See paragraphs 1, 2 and 3 of the statement of facts. These facts were admitted by the defendant in its statement of defence. See paragraphs 4 and 5 of the statement of defence. It is trite that the burden on a Claimant is not to prove every fact he relies on, but to prove only those facts that are put in issue by the defendant because facts admitted needs no further proof. See; Akande v. Adisa [2012] 15 NWLR (Pt 1324) 538 and; Bunge v. Governor of Rivers State [2006] 12 NWLR (Pt. 995) 573. In view of the above, it is thus clear beyond arguments that Claimants are permanent staff of the defendant to which Section 21 of the Conditions of service applies.

 

41.  By the provisions of Section 28(2) (j) and (m), disloyalty or disobedience of ECWA Leadership and Ministry and misappropriation of funds could lead to dismissal which offences the Claimants were alleged of in this case. By the provisions of Section 21 of the Conditions of service, the first step in the dismissal of a Permanent staff of the defendant is by issuance of query requesting such an employee to make written representation. As reasoned supra, it is the Claimant’s contention that they were not given query or allowed to make representations concerning the issue. See paragraph 30 of the statement of facts. The defendant in this case has pleaded several query letters given to Claimants in the year 2014 which were frontloaded on record. I have perused all these queries purportedly issued to Claimants and I find a common trend in all of them and that is absence of acknowledgment or anything showing receipt of the query by the Claimants particularly queries dated 13th August 2014 and 10th September, 2014 which are pivotal to the disputes in this case. Ordinarily, where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by any of the following; (a) dispatch book indicating receipt or; (b) evidence of dispatch by registered post; or (c) evidence of witness, credible enough that the person was served with the document. See the following cases; Omale v. Federal Polytechnic Kaduna & Anor [2015] LPELR-25933(CA)1@18-19, Para. C; The Registered Trustees of The Apostles Church v. Mrs. Olufemi Fatunde [2009] 8 NWLR (Pt.1144)513@ 532, Paras E-G and; Nlewedim v. Uduma [1995] 6 NWLR (Pt 402)383@ 394, Paras B-C. There is no evidence before this Court whether by way of dispatch book, evidence of dispatch by registered post or evidence of a credible witness or evidence of acknowledgment of receipt showing that any of the Claimants was served with any of those several queries. It is therefore, difficult to believe that any of the Claimants was served with any of those queries at all in view of scarce of evidence in prove of same.

 

42. I am mindful of the submission of learned counsel on behalf of the defendant Chief Tunji Ologbonyo Esq on issue five that the claimants were aware of the query letters and transfer letters going by the contents of paragraph 1 in Exhibit C9. I have perused the said Exhibit C9 with particular attention on paragraph 1. I must first state that the said Exhibit was not written by any of the Claimants but by the Central Planning Committee and signed by one Elder S.M. Ologe and learned defence counsel himself. It is the law that a person is only bound by the contents of a document which he has signed or executed. See; Nwarie v. Daniel Adakwa [2016] LPELR-41600(CA)1@14 Para B-F; Adefarasin v. Dayakh [2007] 11 NWLR (Pt.1044) 89. Thus, the said Exhibit C9 having not been signed by any of the Claimants but by learned defence counsel and another person cannot be interpreted against Claimants. Besides, the query which Exhibit C9 in paragraph 1 stated to have been delivered to some selected Ministers is one dated 13th August 2014. First, the names of those selected Ministers were not mentioned in the said letter. Besides the said Exhibit C9 clearly states it in its heading that it is in response to query letters for failure to attend meetings and non-remittance of statutory dues and which query purport to be the one dated 13th August 2014. The query letters which were frontloaded by the defendant in this case is not just one dated 13th August 2014, there are other alleged to have been written to each of the Claimants dated 10/9/ 2014 which as reasoned supra have not been shown to have been served on Claimants. Thus, the submission of learned counsel will not avail the defendant to prove the service of the several queries on the claimants.

 

43. It is equally clear from the above provisions that the allegation against a staff shall be investigated by a Committee as may be approved by the Board and which Committee shall give the officer affected the Notice of its meeting. The defendant vide paragraph 25 averred that upon Claimants’ refusal to proceed on transfer they were invited by the defendant so that they would be able to make representations on the matter through the Mopa DCC vide a letter dated May 15, 2015 and which invitation was communicated to Claimants by the Mopa DCC vide a letter dated 21/5/2015 and others through DHL but they refused to accept the said letter going by DHL Report. The Claimants vide paragraph 8 of their Reply to Statement of defence averred among other things that they were never served with any transfer letters warning letters and were never invited to any meeting for reconciliation and no attempt was made to serve any letter through DHC (sic) DHL. The position of the law has remained unshaken that the burden of proving a particular fact is on the party asserting same. See; G & T Investment Ltd v. Witt & Bush Ltd [2011] 8 NWLR (Pt. 1250) 500 and; Kwasalba (Nig) Ltd. v. Okonkwo [1992] 1 NWLR (Pt 218) 407. The burden is clearly on the defendant to prove that the letter requesting Claimants to show cause why disciplinary action should not be taken against them was sent to claimant by DHL and they refused to accept same as asserted by it. The defendant in my view have failed to discharge this burden because from the documents frontloaded which this Court is to rely on by virtue of the special procedure in this case, there is nothing to show that the letter was even sent by DHL in the first place whether by way of receipt of payment for the courier service neither is there a Report of the DHL Office showing that they attempted to serve the letters dated 21/5/2015 on the Claimants but they were rejected. In the absence of any such evidence showing that the letters were sent through DHL and that Claimants upon being served refused to accept same, this Court does not believe same. The apex Court in the case of Nlewedim v. Uduma, supra held thus per Belgore JSC, CJN (now Rtd) as regard the probative value of a document which has not been proven to have been served on the other party as follows: “...the law is clear as to admissibility of such a contentious document in the face of a denial of having received it by the Defendant. The procedure for tendering of such document is after the Statement of Defence had clearly traversed the averment of having sent it to the Defendant and in the absence of a dispatch book indicating its receipt or evidence of having sent it by registered post, the probative value of such document will be worthless unless there are witnesses credible enough to testify that the Defendant was served with it.”[Emphasis mine]. It is in the light of this that I find the said letters dated 21st May, 2015 worthless and of no probative value in this case. I so hold.

 

44. In fact, from the facts and circumstances of this case, there is no evidence that any of the above steps was followed by the defendant in the purported dismissal of claimants. There is therefore no doubt that the provisions of the Conditions of service were not complied with in the dismissal of Claimants. However, it is so apparent that the relationship between the parties had gone sour and was severed wrongfully. The Claimants cannot deny the fact that they were no longer wanted in the employ of the defendant. In fact, by the averments in paragraph 25 (11-12) of the statement of facts the letter of dismissal of Claimants herein were not handed to them but was published in a National daily (Nigerian Tribune) of 14th January, 2016 and which publication the Claimants issued rejoinder to in the same paper of 21st January, 2016. These facts were not categorically denied by Claimants in paragraph 8 of their Reply to Statement of defence. In my view the Claimant admitted this much when in their statement of facts admitted the Notice of disclaimer published by the defendant on the 14th day of January. The fact that the contract was not determined according to the dictate of the conditions of service does not ipso facto mean it was not determined (albeit wrongly). See Keystone Bank Ltd v. Clarke [2020] LPELR-49732(CA)1@24-28, Para. D. The Court per Nimpar JCA in the case of Keystone Bank Ltd v. Clarke, supra held inter alia thus; “… It is settled that where the employment is wrongfully terminated, the employee is entitled to salary and entitlements over the period of notice, in this case one month. It is certain that once an employer takes step to terminate a contract wrongfully, the contract still remains terminated, the Court cannot find otherwise, See CHIEF FUNSO OLOGUNDE VS. CARNAUD METAL BOX TOYO NIGERIA PLC (2002) LPELR-12216 (CA). It is the wrongful action of the Appellant that gave the Respondent a cause of action. It is contradictory for the Respondent to assert he is still in the employment of the Appellant and still claim the reliefs he did before the trial Court...” [Emphasis mine] It is thus clear that from the moment an employer mulled over an intention to disengage an employee in a master-servant employment and expresses such intention albeit wrongly, the employment stands terminated from that date and such dismissal cannot be declared null and void. The apex Court per Ogbuagu JSC in Osisanya v. Afribank (Nig) Plc [2007] 6 NWLR (Pt. 1031) 565 held thus: “It need be stressed and this has long been settled, that in master and servant relationship, a dismissal of an employee by the employer, cannot be declared null and void and of no effect whatsoever. The remedy as is settled is an award of damages, where the termination or dismissal, held to be wrongful.”  The remedy only lies in damages. See Isheno v. Julius Berger (Nig.) Ltd. [2008] LPELR-1544(SC) and Union Bank of Nig Ltd v. Ogboh [1995] 2 NWLR (Pt. 380) 647. This simply is because the Court cannot foist a willing employee on an unwilling employer. See; Nigerian Bottling Company Ltd v. Idowu [2019] LPELR-49620(CA)1@31-32, Para C; Olanrewaju v. Afribank (Nig.) Plc [2001] 13 NWLR (Pt. 731) 691@705 and; Chukwumah v. Shell Petroleum Development Co. of Nigeria Ltd. [1993] 4 NWLR (Pt. 289) 512@560. Thus, Relief ‘ii’ succeeds only to the extent that the dismissal of claimants is wrongful for being in contravention of the Conditions of service while relief ‘iii’ in the statement of facts must fail. I so find and hold.

 

45. Now as regards Claimants claims for salaries from the year 2014- 2021. Claimants vide relief vii claims for the sums of N8,904,227, N11,146,161 and N 6,275,684 respectively as their salaries from the year 2014 till 2021. Monetary claims are in the realm of special damages. The law has been settled in plethora of cases that a claim for special damages must be specifically pleaded with distinct particularity and strictly proved. Put differently, the full particulars of the items have to be given in the pleadings and evidence led in proof of each item or each of the particulars of the item(s) given. See the following cases; Eneh v. Ozor [2016] 16 NWLR (Pt. 1538)219; Agi v. Access Bank Plc [2014] 9 NWLR (Pt. 1411) 121; Union Bank of Nigeria Plc v. Chimaeze [2014] 9 NWLR (Pt. 1411) 166; Abi v. CBN [2012] 3 NWLR (Pt. 1286) 1. First, let me state that Claimants cannot claim for salaries beyond 2016 when they were dismissed from the employment of the defendant albeit wrongfully. The Claimants cannot choose to still treat the employment as still subsisting and claim for salaries beyond the period of termination/dismissal. This is because a dismissed worker cannot claim for salary for work not done. See the following cases; Balogun v. Union Bank [2016] LPELR-41442(CA)1@21, Para D; C.C.B. Nig Ltd v. Nwankwo [1993]4 NWLR (Pt 286)159 and Olatunbosun v. NISER [1988] 3 NWLR (Pt. 80) 25. In the instant case, the Claimants can claim for salaries only up to the period of dismissal. They cannot claim for salaries beyond this period. As such the Claimants can only claim for salaries from 2014 till January 2016 when their employment was severed albeit wrongfully.  I so find and hold.

 

46. Claimants vide paragraph 31 of the statement of facts averred that from the moment they craved for and demanded the establishment of a new District Church Council the defendant stopped paying their salaries. They particularized their claims in respect of the monetary sums claimed vide paragraph 32 of the statement of facts. The defendant in response vide paragraphs 28-32 averred that Claimants are not entitled to be paid salaries because they have refused to remit the statutory payments, that by Section 98 of the defendant’s Bye Laws, the payment of salaries and emoluments of its Pastors are paid by the churches under which they serve through Annual Assessment of what the Pastor is expected to receive for the year from the District Church Council. It maintained that the Churches under Claimants have refused to remit any statutory dues and no money has been remitted to Mopa or Kabba DCC for the payment of the assessment levied for payment of Pastor’s salaries and which led to issuance of queries dated 13/8/2014 and 10/9/2014. It maintained that Claimants since April 2014 have not been having any fellowship with any of the Defendant’s Mopa DCC. The Claimants in response vide paragraph 10 of the Reply to statement of defence averred that it is the defendant that was paying the salaries, emoluments of claimants and all Pastors in ECWA and issue of remittance of money is to be taken up with the elders of the church not claimants. From the state of pleadings, it is clear that the defendant did not pay the claimants as averred but its only excuse is as stated supra, that Claimants failed to remit statutory dues and that by Section 98 of the Bye Laws, the salaries of Claimants are to be paid by the Church under which they serve. I have gone through the provisions of Section 98 of the Bye Law which is before this Court and I find that by the said Bye Law, the Local Churches are to be responsible for remuneration of Pastors. However, the said Bye law is said to be amended 2019 while the disputes in this case arose before the said 2019. In fact, the Claimants have been wrongfully dismissed since 2016. Thus, the Bye Laws dated 2019 is of no evidential value to this case. Only the one which was in force during the period of the disputes in this case can be of evidential value.  I am however mindful of the fact that from the contents of the queries purportedly written to be given to Claimants dated 10/9/2014 which the defendant frontloaded in this case and which the Court have held that they were not served on the claimants, the failure to release or remit of statutory dues seems not to be the fault of any Pastor but that of elders. I say so in view of paragraph 2 in the said queries which read thus;

Why you showed a nonchallant attitude as an ECWA Pastor by refusing to report to the DCC office about the negative reactions of your elders as regards their refusal to release the statutory dues for payment to the DCC office and also disallowing you from attending DCC/ECWA approved meetings but instead attend other unconstitutional meetings.

47. Also, lending credence to the above that it was the elders that refused to release the statutory dues and not the Claimants is the content of Exhibit C9 which is a letter written by Central Planning Committee which as reasoned supra was signed by learned counsel on behalf of the defendant. Therein particularly in the fourth paragraph of the said Exhibit C9, it was clearly stated thus; It is quite clear that from the decisions at the meeting of the Elders and Fellowship Leaders of each LCB in the six LCCs of the Proposed Kabba DCC of 13th April, 2014, that no Minister of God from the proposed DCC would attend any meeting with you nor remit any so-called statutory dues to you until further notice. The decision was properly conveyed to you in very clear details in our letter dated the same day. It is clear as crystal from the above that even the defendant knew that the non-remittance of statutory dues was not any fault of the claimants but the decision of the elders of the church. Therefore, it cannot be said that the claimants were not entitled to be paid because they failed to remit statutory dues. The defendant ought to have taken that up with the elders of the Church and not met out the punishment on the Claimants.

 

48. Howbeit, an employee is entitled to be paid salaries and allowances for the period of his lawful engagement. See Nwafor v. Anambra State Education Commission & Ors [2017] LPELR-42026(CA)1@ 32 Para. A. The defendant herein has not said that the Claimants have not worked in their capacity as Pastors in their churches till they were dismissed. It merely averred vide paragraph 32 of the statement of defence that since April 2014 the Claimants have not fellowshipped with any of the defendant’s Mopa District Church Council or any of its District Church Council. It is a fact of notorious knowledge of which this Court shall take judicial notice of that in Christian faith the basic duty of a Pastor is to preside over a Church. Where he is employed by a Commission to do the work of a Pastor, he has the basic duty to pastor his Church parish/branch where he heads. The defendant has not stated that the Claimants have not performed the work of a Pastor in their respective Church branches since 2014. In fact, the letters of transfer which were frontloaded by the defendant were only written on the 23rd day of December 2014 purporting to transfer Claimants from their several places of assignment to different places of Assignment which is an indication that Claimants worked till that day. Just as with other letters in this case, there is nothing on the said letters to even show any of the Claimants were served with these letters of transfer and the subsequent letters written as reminders dated 07/04/2015. In fact, Section 30 of the Conditions of Service clearly states that where a minister in charge of a Church is placed under Church discipline, he shall vacate the pastorium and be placed on half of his basic salary for the period of discipline. Thus, even if the discipline of claimants had been conducted properly, they would still be entitled to half of their basic salary for the period of the discipline. As such, there is nothing under the Conditions of service to warrant them not being paid at all as was done in this case.

 

49. Notwithstanding the above, it is still the duty of Claimants to strictly prove with distinct particularity the sum they claim as salaries from 2014 to 2016 when they were dismissed being special damages. The Claimants in this case merely gave a blanket particularization of their annual salaries of each of them for each of those years. They neither plead nor gave evidence of how much each of them was entitled to as monthly salary in each of these years particularly where they are claiming different amount as annual salaries for each of those years. It is not sufficient to particularize the claim of special damages as was done by Claimants in this case. Evidence must as of necessity be led to prove the particulars of the claim. The onus of this proof rests squarely on the Claimants, it will not shift to the defendant, and it has to be strictly discharged by the Claimants in this case. See the case of Beta Glass Plc v. Epaco Holdings Ltd [2010] LPELR-3872(CA)1@ 21-22, Para. E. I find that the Claimants have failed to discharge this burden leading evidence in support of the sums claimed from 2014 to when their employment was severed in January, 2016 notwithstanding the Court have found that they are entitled to be paid till when they were dismissed from the services of the defendant. Thus, failure to call evidence in support of the sums claimed from 2014 to when their employment was severed in 2016 is fatal to their claims for special damages. See; Yalaju & ors v. Adidi & Ors [2022] LPELR-56693(CA)1@46-47, Para. F. In view of all reasoned supra, relief vii is bound to fail and is thus dismissed.

 

50. In the light of the above reasoning, I find that Claimant’s claim succeeds in part and I declare and order as follows for the sake of clarity;

1.      Reliefs ‘i’, ‘iv’, ‘v’ and ‘vi’ are struck out for being in want of the jurisdiction of this Court.

2.      Relief ‘ii’ succeeds only to the extent that the dismissal of the claimants is wrongful for being in contravention of the conditions of service.

3.      Reliefs ‘iii’ and ‘vii’ fail.

 

51. Parties are to bear their respective costs.

 

52. Judgment is accordingly entered.

 

 

             

Hon Justice Oyebiola Oyewumi

         Presiding Judge.