Tijjani Hassan & 68 ORS -VS-The Local Government Commission Yobe State & 5 ORSNational Industrial Court of Nigeria- Judgment Portal

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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BAUCHI JUDICIAL DIVISION

HOLDEN AT BAUCHI

BEFORE HIS LORDSHIP HON. JUSTICE MUSTAPHA TIJJANI

JUNE 27, 2024

SUIT NO: NICN/BAU/15/2020

BETWEEN

1. TIJJANI HASSAN

2. BABA GARBA

3. FATSUMA MOHAMMED BARDE

4. USAINA ISA GALADIMA

5. SHAIBU AHMADU SPAKO

6. SHEHU ISHYAKU

7. WADA ADAMU

8. GAMBO SANI

9. HARUNA MAMMAN

10. MUSA ABDULMUMINI MOH’D

11. MOHAMMED IBRAHIM

12. AISHATU BABAYO KUKURI

13. LARABA AHMADU

14. HAUWA AJE DAUDA

15. SANI BABA

16. MOHAMMED MUSA

17. IBRAHIM MOHAMMED MAISIDI

18. IBRAHIM UMAR

19. YAHAYA AUDU

20. USMAN SALISU

21. LAWAN MOHAMMED

22. ASHIRU L. WAZIR

23. USMAN YAHAI

24. YAHAYA A. AUDU

25. AISHA ABUBAKAR

26. ADAMA AJEJE

27. ABDULMUMINI KABIRU

28. SOLOMON JOSHUA

29. UMAR ADAMU

30. IBRAHIM UMAR

31. USMAN SALISU

32. MOHAMMED MUSA

33. HARUNA ALHAJI GARBA

34. SHEHU MUJTAPHA

35. SABO YAYAJI

36. HABU HASSAN

37. MAMMAN GARBA BADE

38. ISA GARBA

39. MAIMUNA AUDU

40. NAFISA T. ABDULLAHI

41. LAWAN IBRAHIM

42. MOHAMMED ABUBAKAR

43. HAMISU A. MUSA

44. AISHA BABA KAFITAL

45. NASURU ADAMU

46. YAHAYA MOHAMMED

47. UMAR ALI

48. SHAIBU IBRAHIM

49. ADO ALI

50. HASSAN AUDU

51. HALIMA USAINI

52. HAUWA SHAYIBU

53. GARBA HALILU

54. YUSUFU ABDULLAHI TSOHO

55. MUSA SALE

56. SUNUSI GALADIMA

57. IDI GIMBA

58. SAIDU BUKAR

59. HABU HASSAN

60. HASSAN ADAMU

61. MUSA JIBIR

62. UMAR SALE

63. MOHAMMED A. ILLIYASU

64. BABA IBRAHIM

65. GARBA MOHAMMED

66. BABA MAMUDA

67. SULE M. BADE

68. DAHIRU YUSUF GIDI

69. ABDULMUMINI UMARU -------------------------------------------CLAIMANTS

AND:

1. THE LOCAL GOVERNMENT SERVICE COMMISSION

2. NANGERI LOCAL GOVERNMENT

3. FIKA LOCAL GOVERNMENT

4. POTISKUM LOCAL GOVERNMENT-------------------------DEFENDANTS

5. THE ATTORNEY GENERAL AND COMMISSIONER

OF JUSTICE, YOBE STATE

REPRESENTATION:

N.B Ahmed Esq. with S.I Abubakar Esq. and S.S Garba Esq. for the Claimant

A. Yusuf Esq. and H. Ibrahim (Director Civil Litigation, Ministry of Justice, Yobe State).

JUDGMENT

1.0. INTRODUCTION:

The Claimants initiated this suit by a Complaint and Statement of Facts dated 9^th day of October, 2020 against the Defendants jointly and severally pursuant to Order 3 Rule 1 of the Rules of this Court, 2017 and seek the following reliefs:

A. DECLARATION that the withholding of the Claimants monthly emolument is illegal, unlawful and contrary to the contract of employment between the Claimants and the Defendants.

B. AN ORDER of this Honourable court directing the Defendants to pay the Claimants their outstanding monthly emoluments from the date of cessation thereof till date as each and every one of them may be entitled to.

C. AN ORDER directing the Defendants to pay the Claimants the sum of Two Million Naira only (N2,000,000.00) in favor of each of the Claimants as compensation, general and exemplary damages for breach of contract of employment and wrongful withholding of earned emoluments/salaries.

D. Cost of this action as assessed by this Honourable Court.

E. Any other incidental order this Honourable Court may deem fit to make in the circumstances of this case.

The Defendants responded vide a Statement of Defence dated 10^th December, 2021, accompanied by the Defendants sole witness Statement on Oath and other frontloaded documentary exhibits.

At the trial, the Claimants called three witnesses (CW1, CW2 and CW3) who respectively adopted their Written Statement on Oaths, testified on behalf of all the Claimants and tendered documentary exhibits which were admitted in evidence without any objection. The Defendants on the other hand called a lone witness (DW1) who also adopted his Written Statement on Oath, was duly cross examined and closed their case.

Upon close of trial, the Defendants filed a joint Final Written Address while the Claimants also filed their Final Written Address. There is no Reply on Points of Law in this case.

2.0. FACTS LED BY PARTIES:

CW1, CW2, and CW3 are respectively Claimant No 8, , , on record. By the evidence of C1, CW2 and CW3, all the Claimants were Local Government Staff of 2^nd, 3^rd and 4^th Defendants, respectively Nangeri Local Government, Fika Local Government and Potiskum Local Government, all of Yobe State. That they were duly and permanently employed through the 1^st Defendant as staff of their respective Local Governments being the 2^nd to 4^th Defendants and never have they been found wanting in terms of performance or the discharge of their responsibilities. That they diligently served the Defendants without any blemish on their side and are still in the service of Yobe State Government having not been dismissed. That sometimes in 2016, the Yobe State Government ordered for the verification of all the staff of the Local Government Councils and the said verification was carried out successfully, in which they attended and were verified successfully. That after the said verification, they were surprised and shocked when they did not receive salaries having successfully passed the verification exercise. That after waiting patiently for the error to be rectified and no sign of same being rectified, they through their Lawyer wrote several letters to the Defendants urging the Defendants to rectify the said error. That upon no signs of the Defendants acting, they caused a Pre-action Notice to be served on the Defendants. That upon the Defendants’ failure to yield to their demands, they have now brought this action.

In all, the Claimants tendered bundles of the Claimants employment documents and in particular, the CW1, CW2 and CW3 tendered the following which were admitted thus:

Exhibit C1: 8^th Claimant’s letter of temporary appointment.

Exhibit C2: Letter of Confirmation of Appointment of the 8^th Claimant.

Exhibit C3: Notification of Appoint of the 8^th Claimant.

Exhibit C4: Approval of Transfer of Service of the 8^th Claimant.

Exhibit C5: Solicitor’s letters.

Exhibit C6: 33^rd Claimant’s Offer of Appointment.

Exhibit C7: 33^rd Claimant’s Confirmation of Appointment.

Exhibit C8: 37^th Claimant’s Offer of Temporary Appointment.

Exhibit C9: 37^th Claimant’s Confirmation of Appointment.

Exhibit C10: 37^th Claimant’s letter of Promotion.

The case of the Defendants is that after the verification exercise conducted sometimes in 2016 in the Claimants Local Governments of Yobe State, the Claimants salaries were stopped, having discovered that the Claimants appointment were without approval or authorization and thus invalid. That before any Local Government can validly appoint staff, the approval of the Executive Governor must be had. That in this instance, the Claimants appointment did not follow due process but through unauthorized replacement which is invalid and void. That there is no valid and binding contract between the Claimants and the Defendants and thus the Claimants salaries were validly stopped and the Claimants are not entitled to any monthly emoluments being claimed in this case. DW1 tendered Exhibit D1, D2 and D3 in evidence.

3.0. THE SUBMISSIONS OF DEFENDANTS:

By the adopted Final Written Address, Defendants Learned Counsel submitted two issues for determination of this Honourable Court thus:

i) Whether or not this Honourable Court can determine the case of the 68 Claimants on the basis of letters of offer of temporary appointment, confirmation and promotion of (three) 3 Claimants only and similar letters of the other Claimants dumped on the Court?

ii) Whether or not the Claimants are entitled to any outstanding monthly emolument whatsoever from the Defendants in view of the absence of a valid contracts of employment with the Defendants?

On Issue (i), Defendants Learned Counsel contended that this Honourable Court cannot determine the case of the 68 Claimants on the basis of Offer letters of temporary appointment, confirmation and promotion of just three Claimants only, whereas similar letters of other Claimants were only dumped on this Court. Learned Counsel noted that 68 Claimants are before this Court but only three Claimants of the 68 Claimants adduced evidence in support of their claims. Learned Counsel relied on the judicial precedent of Morohunfola v Kwara State College of Technology (1990) 4 NWLR (Pt 145) 506 at 519, to the effect that where a Claimant fails to plead and prove the fact of his employment in a contract of service, the Claimant will not be entitled to the declaration that his appointment subsists. Defendants Learned Counsel also relied on the authority of Amodu v Amode (1990) 5 NWLR (Pt 150) 356 to the effect that it is the law that when an employee complains that his employment has been wrongfully terminated, he has the onus, first,to place before the court the terms of the contract of employment and second, to prove in what manner the said terms were breached by the employer. Learned Counsel thus submitted that the failure of the 65 Claimants to establish that contracts of employment exist between them and the Defendants is fatal to their case and therefore liable to be declared incompetent.

Defendants Learned Counsel contended that it was totally wrong for the 65 Claimants to dump on this Court those documents they considered vital and expected this Court to look at these documents and consider same in arriving at a just decision. Learned Counsel argued that this is more so when CW1 during cross examination informed this Court that he did not know how the other Claimants got their appointments and it is in evidence that the letters of employment and promotion tendered in evidence in this case only belonged to the CW1, CW2 and CW3 and not the other Claimants.

Defendants Learned Counsel cited and relied on the Judgment of my Learned Brother, Oluyinka Adeniyi J, of the Abuja Judicial Division in the case of KABIRU MUSTAPHA & 248 ORS v NITDA SUIT NO.NICN/ABJ/05/2017, delivered on the 5^th of July, 2018 to the effect that each Claimant has the duty to plead and prove the fact of his employment in a contract of service. Learned Counsel also referred to the provision of Section 119 of the Evidence Act, 2011 on the propriety of the testimonies of the Claimants before the Court given in Hausa Language.

Defendants Learned Counsel on the authority of Ajuwon v Akanni (1993) 12 SCNJ 32 submitted that those averments in the Claimants pleadings having to do with those 65 Claimants are not the evidence required to be adduced in proof of pleadings and as such, the averments must therefore be established by satisfactory evidence unless the same is expressly admitted.

Defendants Learned Counsel also urged the Court to note that CW1, CW2 and CW3 respectively under cross examination stated that they were appointed by the 1^st Defendant, contrary to what is contained in the respective Claimants Witness Statements on Oath, their evidence-in-chief. Learned Counsel on the authority of Nsirim v Nsirim (2000) 2 SCNJ 46 submitted that this is a serious contradiction that has created doubt as to the existence of any valid contract of employment between the Claimants and the Defendants in this case.

On Issue (ii), Defendants Learned Counsel contended that the Claimants are not entitled to any outstanding monthly emolument whatsoever from the Defendants in view of the absence of a valid contracts of employment with the Defendants in this case. Defendants Learned Counsel argued that salary is paid by employer for work done or services rendered and as such in this instance where there is nothing on record to show or prove that from the cessation of the Claimants salaries up to date the Claimants have been rendering their services to the Defendants that will justify them earning the emolument, this Honourable Court cannot order the Defendants to pay such.

Defendants Learned Counsel also contended that the Claimants did not place any material before this Court to warrant the Court to order the Defendants to pay the Claimants any monthly emoluments. Learned Counsel referred to Exhibits D1, D2 and D3 tendered by the DW1 and admitted in evidence and submitted that these documents are the proof that the Claimants’ employment did not comply with the procedure of appointments in the Claimants’ Local Government of service and hence the process is illegal and was cancelled. Learned Counsel expounded that the policy of Yobe State Government is that if any Local Government in the State wants to employ staff, it must write and seek for the approval of the Executive Governor. Learned Counsel argued that the Claimants in this case were employed without the observance of this established due process but through unauthorized replacement which made it void. Defendants Learned Counsel argued that the evidence of DW1 in his Statement on Oath on this score was not shaken during cross examination. Learned Counsel cited and relied on the judicial authority of Mcfoy v UAC Ltd (1961) 3 ALL ER 1169 at 1172 on the effect and implication of a void act.

In the light of the above, Defendants Learned Counsel submitted that the appointments of the Claimants having not followed the established process has become void ab initio. Learned Counsel to the Defendants thus urged this Honourable Court to resolve this Issue in favour of the Defendants and dismiss this case accordingly.

4.0. THE SUBMISSIONS OF THE CLAIMANTS:

Claimants Learned Counsel adopted the Claimants’ Final Written Address wherein they formulated three issues for determination of this Honourable Court as follows:

a. Whether in light of the facts, circumstances and evidence led in this case, the Claimants are staffs of the Defendants?

b. Whether the Claimants are entitled to their salaries having not been legally disengaged from the services of the Defendants?

c. Whether the Claimants are entitled to damages?

On Issue (a), to the view of the Claimants Learned Counsel, from the evidence led by parties in this Suit, parties are in ad idem on the following points:

a. That the claimants are employees of the defendants in this suit up to at least 2016.

b. That all the claimants were salary earners before the abrupt stoppage of the salaries by the defendants.

c. That in 2016 verification exercise was carried out and all the claimants were successfully verified.

d. That none of the claimants was ever queried by the defendants from the date of appointment of the claimants up to date.

e. That there is no document before this Hon. Court showing that the claimants failed the verification exercise or were dismissed by the defendants.

f. That there is no document to support the assertion that committees were set up to observe justification of salaries of all personnel, attendance at work and productivity and relevance.

g. That there is an agreement between parties that the claimants were duly issued employment letters and have served and been serving the defendants up to at least the date of this address.

h. That the claimants are the lawfully staffs of the defendants.

i. That the defendants were never served dismissal letters by the defendants.

Claimants Learned Counsel thus submitted that from the evidence of the facts and circumstances adduced before this Honourable Court, the Claimants have established that they are staff of the Defendants. Learned Counsel referred to paragraph 1 of the Statement of Facts. Learned Counsel posited that the Defendants though denied this paragraph 1 of the Statement of Fact, impliedly and tacitly admitted that the Claimants were their employees at paragraphs 13 and 11 of the Defendants Statement of Defence which averred that the Claimants were employed without government approval but through unauthorized replacement and back dated letters and part of Local Government Staff who made complaints after the verification exercise conducted by the Defendants. Learned Counsel thus submitted that this admission of the employment status of the Claimants with the Defendants requires no further proof.

Claimants Learned Counsel also referred to the testimony of the Defendants sole witness DW1 in the course of cross examination to the effect that the Claimants were appointed by the Defendants but without authorization. Learned Counsel argued that this is also an admission by the Defendants on the employment status of the Claimant. Learned Counsel cited and relied on the provisions of Section 27 of the Evidence Act 2011. Learned Counsel contended that the said DW1 who claimed that the appointment was without authorization failed to produce anything to substantiate that. Learned Counsel also referred to the answer of DW1 under cross examination when asked whether the documents of approval of appointment DW1 presented was the only instance of appointment, DW1 answered that there are other appointments. Learned Counsel to the Claimants thus submitted that it is unknown to Labor Law jurisprudence that the employee will know the internal mechanism of the employer at the time of appointment. Learned Counsel posited that this has cast the evidence of DW1 of “lack of approval” into thin air as same does not carry any weight in law.

Also on the evidence of DW1, Claimants Learned Counsel argued that it amounts to hearsay evidence which is inadmissible in law. Learned Counsel referred to the answer of DW1 during cross examination when DW1 was asked if he was part of the Committee that verified the Claimants and DW1 answered NO. Learned Counsel relied on the judicial authorities of Okechukwu Okolo v FRN (2018) LPELR-45431 (CA) and Utteh v State (1992) LPELR-6239 (SC).

Claimants Learned Counsel argued that DW1 who testified that there were Guidelines of the Committees and their outcome were all documented and are contained in a Report, failed to produce any documents of dismissal, nor any document to show the Guidelines of non-relevance and productivity of the Claimants. Learned Counsel argued that this amounts to withholding evidence and this Honourable Court is urged to invoke the provisions of Section 167(d) of the Evidence Act, 2011 against the Defendants in this case.

Claimants Learned Counsel referred to the evidence of CW1 and submitted that CW1 did not only testified that he is a staff of the 2^nd Defendant and together with other Claimants wrote the Defendants regarding their salary stoppage, through their Counsel, but went ahead to tender in evidence his Offer of Appointment Letter (Exhibit C1), Letter of Confirmation of Appointment (Exhibit C2), Notification Letter (Exhibit C4) and the Claimants Solicitors Letter written to the Defendants on behalf of all the Claimants (Exhibit C5).

Claimants Learned Counsel cited and relied on Olaniyan & Ors v University of Lagos & Anor (1985) 2 NWLR (Pt. 9) 599,669; Obimiami Brick & Stone Ltd v African Continental Bank (1992) 3 NWLR (Pt.229) 260 and Paul Okoro v Ogara & Ors (1964) 8 ENLR 99 on the elements and constitution of a valid and binding contract of service/employment. Learned Counsel argued that the Claimants have by their unchallenged and uncontradicted evidence proved before this Court that they were offered employment by the Defendants for consideration vide Exhibits C1, C6 and C8, which the Claimants unconditionally accepted thereby forming a valid and subsisting contract of employment. Learned Counsel argued that the Offers of appointment were accepted by the Claimants and same were made permanent and pensionable by the Defendants in Exhibits C2, C7 and C9. Learned Counsel also posited that these Exhibits tendered before this Court, more specifically Exhibits C1, C2, C6 & C7, and C8 & C9 have proved existence of valid, subsisting and binding contract between the parties in this case.

On the nature of the contract of service between parties in this case, Claimants Learned Counsel referred to the Claimants Letters of Appointments tendered by CW1, CW2 and CW3, particularly Exhibits C1, C2, C6, C7, C9, and C10 which respectively states “You will be subject in all respect to all conditions of service in the civil service rules, local government staff regulations and any other government regulations and instructions pertaining to temporary appointment”. Learned Counsel thus argued that the Claimants employment with the Defendants is governed and regulated by the Constitution, Labour Act, Staff Condition of Service (where available) and terms of employment etc, as well as the Civil Service Rules, Local Government Staff Regulations. Learned Counsel thus cited and relied on the judicial authorities of U.B.N Plc v Soares (2012)11 NWLR (Pt. 555) and Comptroller General of Custom v Gusau (2017) ALL FWLR (Pt. 911) 435 at R10 to the effect that not only are parties bound by their terms of engagement/employment but also this employment of the Claimants enjoy statutory flavor and can only be terminated in accordance with the statutes governing and regulating same, otherwise the termination is null and void and the employee will be entitled to damages and reinstatement.

Claimants Learned Counsel argued that in this instance, it is in evidence that after the verification exercise, the Defendants merely stopped the salaries of the Claimants till date, there was no communication that the Claimants were deemed unworthy of service, no communication of termination or dismissal. Learned Counsel cited and relied on Banke v Akure North Local Government (2015) 6 NWLR (Pt 1455) 408 at R4 to submit that an employment with statutory flavor, as in this instant case, cannot be terminated in this manner of the Defendants, as it must be terminated in the manner prescribed by the statutes regulating the employment as any other manner will be null and void and of no effect.

Claimants Learned Counsel argued that even where the Claimants were adjudged to be non-relevant or productive by the Defendants or without authorization, the legal way of termination of appointment ought to have been followed. Learned Counsel argued that it is glaring from all evidence that none was followed in the present scenario. Learned Counsel relied on R.C.O. & S. Ltd. v Rainbownet Ltd. (2014) 5 NWLR (Pt. 1401) 524 at R.10 to the effect that as it is, there is no legally admissible evidence in support of the pleading in defence and as such the Defendants’ pleadings must be deemed abandoned. Learned Counsel thus urged this Honourable Court to resolve this issue in favour of the Claimants accordingly.

On Issue (b), Claimants Learned Counsel contended that the Claimants are entitled to their salaries having not been legally disengaged from the service of the Defendants. Learned Counsel argued that from the evidence before the Court, it is clear firstly, the Defendants are in a monumental breach of contract between the Claimants and the Defendants and secondly, that the Claimants are staffs of the Defendants up to date and the Defendants have not legally dismissed the Claimants from service and thus are entitled to their salaries. Learned Counsel argued that Exhibit C1 clearly states that the contract between the parties shall be salaried, and goes further to state thus:”that you or the local government may terminate your engagement by a month’s notice or salary in lieu of notice”. Learned Counsel contended that it is a fact before this Court that the Defendants neither continued to pay the Claimants their salaries after the purported verification exercise nor paid the Claimants a month’s salary in lieu of notice as the term of contract between the parties stipulated. Learned Counsel thus submitted that the act of stopping the salaries of the Claimants without any justification and in clear breach of the terms of contract renders the stoppage of salaries an entire nullity in law. On the above submissions, Learned Counsel relied on the authorities of Ashibuagwu v AG Bendel State & Anor (1988) 1 NWLR (Pt. 69) 138 at 158; Ishola Olateju v Lufthabsa German Airlines (1966) 1 ALL NLR 294 and Kolawale v Alberto (1989) 1 NWLR (Pt.98) 382,410.

Claimants Learned Counsel posited that the Defendants ran afoul of the conditions precedent for the valid disengagement of the Claimants from its employment by the following acts: a. Non-service of termination of appointment or payment of salary in lieu of notice and, b. Discriminatory treatment and denial of fair hearing contrary to the rights of the Claimants as embedded in the 1999 Constitution of the Federal Republic of Nigeria. c. That the salaries of the Claimants were stopped from the month of July 2016 to date.

Claimants Learned Counsel also pointed out that the issue of non-service of termination letters and non-payment of salary in lieu of notice was not even in contention before this Court as the Defendants accepted by their pleadings and evidence led that the Claimants are indeed staffs of the Defendants and the Defendants were mute on the issue of service of termination letters and payment of salaries in lieu of notice.

On the implication and effect of a nullity as a void act, Claimants Learned Counsel cited and relied on the judicial authorities of Yar’adua v Yandoma (2015) 4 NWLR (Pt 1448) 123 at 139-140 and submitted that the act of the stoppage of the salaries of the Claimants in this case is null and should be set aside by this Court. On the implication of termination of employment with statutory flavor without following the rules and regulations governing same as well as the position of civil servants, Learned Counsel cited and relied on the judicial authorities of CBN v Igwillo (2007) 14 NWLR (Pt.1054) 393 and Olaniyan v Uni. of Lagos State (1985) 2 NWLR (Pt.9) 599. Claimants Learned Counsel thus submitted that the Defendants are a creation of the laws and regulations and cannot thus hold the Claimants at their pleasure. Claimants Learned Counsel urged this Court to hold that the act of stopping the Claimants salaries is null and void and therefore this Honourable Court is urged to order for the immediate payment of all the accumulated salaries of the Claimants from the date of stoppage of same to date.

On Issue (c), Claimants Learned Counsel submitted that the Claimants are entitled to damages in this case. Learned Counsel argued that the act of the Defendants in this instance infringed on the right to fair hearing and right against discrimination which are entrenched in the Constitution and enforceable by this Honourable Court pursuant to Section 254(c) of the Constitution. Learned Counsel referred to the averments at paragraphs 18 and 19 of the Claimants’ Statement of Facts and supported by the evidence led at paragraph 6 of CW1 Statement on Oath, paragraphs 6, 7 and 8 of the CW2 Statement on Oath and paragraphs 6,7,8,9 and 10 of the CW3 Statement on Oath. Learned Counsel argued that these pieces of evidence are deemed admitted by the Defendants, same having not been cross-examined upon or discredited or impeached. Learned Counsel also argued that the stoppage of salaries was not universal to all staffs of the Defendants thereby further proving that the Defendants used different standards to treat employees thereby discriminating against the Claimants. Learned Counsel in addition noted that the Defendants claimed that the purported screening was carried out to check for relevance and productivity of employees amongst others, but it is in evidence that none of the Claimants was informed of that nor was there any check for their relevance and productivity. Learned Counsel thus cited and relied on the pronouncement of the Court in Federal Polytechnic Ede & Ors v Oyebanji (2012) LPELR-19696, as to what fair hearing encompasses and submitted that the Defendants did not comply with any of these requirements of fair hearing in the stoppage of the Claimants’ salaries.

Learned Counsel to the Claimants submitted that the only act which the Defendants carried out was the invitation of the Claimants to a verification exercise which the Claimants gladly obliged and no reason was adduced to the Claimants for the said verification, only for their salaries to be unjustly fully stopped without any hearing, dismissal letter or even a communication as to the outcome of the said verification exercise. Claimants’ Learned Counsel thus urged this Court to find that the Claimants have done all that is needful in relation to their work with the Defendants and the salaries of the Claimants were discriminatorily stopped in a manner inconsistent with the constitutionally embedded right to fair hearing and freedom from discrimination. Learned Counsel thus posited that the Claimants are entitled to damages in this case.

While responding generally to the arguments of the Defendants Learned Counsel, Claimants Learned Counsel contended that the submission of the Defendants that the evidence of the three Claimants cannot be used to establish the case of 68 Claimants is misplaced in this instance where issues are not in contention and facts are not disputed. Learned Counsel relied on Section 123 of the Evidence Act, 2011. Claimants Learned Counsel also noted that not only have the Defendants by their pleadings and witness evidence admitted expressly and impliedly that the Claimants are indeed staffs of the Defendants, but also the Defendants Counsel’s submission in the introductory part of his Final Written Address that: ”following verification exercise conducted sometimes in the Claimants Local Government of Service wherein their salaries were stopped” is an admission that the Claimants are indeed staffs of Defendants.

Claimants Learned Counsel relied on Wema Bank Plc v Linton Industrial Trading Limited (2011) 6 NWLR (Pt 1244) PG 479 at 483 to submit that the entire submissions of Defendants Counsel at paragraph 3.3 of Defendants Final Address is out of context as no one alleged wrongful termination of contract before this Court but rather, stoppage of salaries after due employment. Learned Counsel urged this Court to discountenance the authority cited in those paragraphs for being out of context.

Claimants Learned Counsel also relied on Ashakacem Plc v Asharatul Mubasshurun Investment Limited (2019) LPELR -46541(SC) and Sections 128(1) of the Evidence Act 2011, and argued that the submissions of Defendants Counsel under paragraph 3.5 is also well misplaced as the Claimants witnesses tendered in evidence the documents of their appointment before this Court even thou same is not in issue. Learned Counsel argued that these documents speak for themselves and cannot be altered by oral testimony of witness.

Relying on the judicial authority of Mcfoy v UAC Ltd (1961) 3 ALL ER, Learned Counsel to the Claimants submitted that the law is trite that once employed, the employee is entitled to his wages whether or not the employer gives him work to do. Claimants Learned Counsel submitted that the Defendants contention that the Claimants did not work as to be entitled to salaries is not correct. Learned Counsel argued that this is more so in this instance where the Defendants did not lead any evidence before this Court to show that the Claimants did not render services and thus should not be entitled to their salaries. Learned Counsel thus submitted that evidence without pleadings is liable to be expunged from the records of the Court.

Claimants Learned Counsel also contended that the entire submission of Defendants Counsel under paragraphs 3.6 to 3.9 amounts to approbation and reprobation in that the same Defendants who argued that the Claimants were not staffs of the Defendants without leading any evidence in support, also argued that the Claimants were employed but without authorization and still without leading any evidence to that effect; and finally in another twist argued that the Claimants failed to render service after the verification exercise. Learned Counsel on the authority of Cappa v Akintolo (2003) 14 NSCQR (Pt 1) 469 at 472 urged this Court to take cognizance of how the Defendants were moving from one weak point to another in hope of denying the Claimants their legally entitled salaries and damages.

THE COURT’S DECISION

Having painstakingly examined and considered the evidence adduced before this Court vis-à-vis the pleadings of parties and the argument and counter-argument by the Learned Counsel for the respective parties, I am of the view that the issue that crave for the determination of this Court in this case is thus:

Whether the Claimants have proved their case as required by law as to be entitled to the reliefs sought?

The law is immutable and sacrosanct that in civil cases, the onus probandi lies on the head of the Claimants to establish by credible, cogent and compelling evidence their claims before this Court. The Claimants bear this legal burden which is also pontificated in Section 131 to 134 of the Evidence Act, 2011 (as amended) thus:

“131. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

133. (1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.

(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.

134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.”

See also APC & Anor v Obaseki & Ors (2021) LPELR – 55004 (SC) and Nduul v Wayo & Ors (2018) LPELR – 45151 (SC). Thus, where the Claimants fails to discharge this burden of proof to show their entitlement to the reliefs sought before the Court, the Claimants’ claim cannot succeed as the order the Court will make in such a case is a dismissal of the action for lack of proof. A Claimant who fails to prove his entitlement to the relief or reliefs sought goes home without victory. See Orji v Dorji Textile Mills (Nig) Ltd & Ors (2009) LPELR – 2766 (SC) and Osuji v Ekeocha (2009) LPELR – 2816 (SC). However, where the Claimants have led credible, cogent and sufficient evidence in proof of their claim, the burden to lead evidence in rebuttal is shifted to the Defendants who will have judgment entered against them if the Defendants fail to discharge this evidential burden.

In a case, like the instant one, where there is dispute as to whether there was an existing contract of employment between parties and whether same was breached, the Claimants, who asserted there is one, have the onus amongst others to prove the existence of such a valid contract of employment between the Claimants and the Defendants and what are the terms and conditions of the employment contract. See Ngun v Mobil Producing Nig Unltd (2013) LPELR – 20197 (CA), Katto v CBN (1999) LPELR – 1677 (SC), Afribank v Osisanya (1999) LPELR – 5206 (CA) and Angel Spinning & Dyeing Ltd v Ajah (2000) LPELR – 10724 (CA)

It is common sense and a trite position of the law that before issue of enforcement of terms and conditions of a contract of employment can arise, there must be in existence a valid and enforceable contract of employment upon which such right and obligation can derive. Therefore, the starting point is to answer the query as to what are the legal requirements and conditions for the formation of a valid and enforceable contract of employment?

It is an elementary law of contract that the essential elements for a valid contract enforceable at law are offer, acceptance, intention to enter into legal relationship and consideration. See Ajayi Obey v Executive Secretary Family Planning Council of Nigeria (1975) 3 SC 1. In Ngun v Mobil Producing Nig Unltd (Supra), the penultimate court dilated thus:

“Employer and employee relationship exists where a worker is employed under a contract of employment, i.e. a contract of service. No one test as formulated by the Courts over the years for determining employment status of an employee is a complete answer to such questions. The Courts have held that the issue is one of fact and not of law. The learned authors of Osborne’s Concise Law Dictionary (supra) at page 103 have defined “Contract” as: “An agreement enforceable at law. An essential feature of contract is a promise by one party to another to do or forbear from doing certain specified acts. The offer of a promise becomes a promise and acceptance. Contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it.”… For a contract to come into existence there must be an offer even if made to the whole world. See Carlil vs. Carbolic Smoke Ball Co. (1891 – 4) All ER Rep 127 where Lindley L.J., held at pages 129 -130 that even in advertisement cases, “…The offer is to anybody who performs the conditions named in the advertisement anybody who does perform the conditions accepts the offer. I take it that if you look at this advertisement in point of law, it is an offer to pay E100 to anybody who will perform these conditions, and the performance of these conditions is the acceptance of the offer.” There must be an unqualified acceptance for the contract to be complete and become legally binding and enforceable. See UBA Ltd vs. Tejumola & Sons Ltd. (1988) 5 SCNJ 73…In questions of dispute as to whether there was an existing contract, the onus is on the party asserting to prove offer and acceptance.”

The Claimants in effort to prove their case listed 11 witnesses with their written depositions but called only three witnesses and tendered 10 documents. The Defendants contention is that this Court cannot determine the case of the 68 Claimants on the basis of the letters of appointments, letters of confirmation and letters of promotion of only 3 Claimants and that the letters of the 65 Claimants were dumped on this Court. The reaction of the Claimant’s learned Counsel is that the Defendant’s Counsels’ argument is misplaced in this instance where issues are not in contention and facts are not disputed. Learned Counsel relied on Section 123 of the Evidence Act, 2011. Claimants’ Learned Counsel also noted that not only have the Defendants by their pleadings and witness evidence admitted expressly and impliedly that the Claimants are indeed staff of the Defendants, but also the Defendants Counsel’s submission in the introductory part of his Final Written Address that: ”following verification exercise conducted sometimes in the Claimants Local Government of Service wherein their salaries were stopped” is an admission that the Claimants are indeed staffs of Defendants.

Now, the Claimants’ learned counsel has strenuously argued that the Defendants have admitted the existence of employment relationship at paragraphs 11 and 13 of the statement of defence. For ease of reference, I shall reproduce the averments made by the Defendants at the said paragraphs hereunder:

11. The defendants deny paragraphs 10 and 11 of the claimants’ statement of claim and in response to same the defendants state that the complaints of the claimants were responded to by setting a committee the government to look into the complaints of all the Local Government as result of the verification exercise and make recommendations.

13. The defendants deny paragraph 13 of the claimant’s statement of claim and state that the claimants were employed without government’s approval but just through unauthorized replacements and backdated employment letters.

The above averments are what the Claimants’ learned counsel termed as admission of the existence of employment relationship by the Defendants in this case. With greatest respect to the learned counsel, none of the above averments amounts to admission of the allegation made by the Claimants in the statement of facts as to the existence of employment relationship between the parties herein.

The Claimants’ learned counsel seems to have ignored the fact that the Claimants’ main relief in this case is declaratory which relief is not granted merely because it is admitted by the Defendant. See Adamu v. Nigerian Airforce & Anor (2022) LPELR-56587 (SC) (Pp. 13-14 paras. E). In Ministry of Land and Survey, Nsarawa State v. Nwafor & Ors (2021) LPELR-56254(CA) (Pp. 33-35 paras. D), the Penultimate Court Per NIMPAR, J.C.A held thus:

"The general rule on declaratory reliefs is that it must be established by evidence and cannot be granted even on admission by the opposite party, see the case of AKANINWO & ORS V. NSIRIM & ORS (2008) LPELR-321(SC) where the apex Court held thusly: "...It is argued that declaratory reliefs are not granted on mere admission but after proper argument by the parties." And the case of MOGAJI V CADBURY NIG LTD. (1985) 2 NWLR (7) 393 where the Court held as follows: "Let me start by saying that the learned SAN for the Appellants is right on the law that declaratory reliefs are neither granted by a Court on admission in pleadings, weakness or even absence of a defence by a defendant. Such claims can only succeed and properly be granted on the strength of the evidence adduced by the claimants which establishes or proves their entitlement to the claims made in the case. Very recently, the Supreme Court in the case of Attorney-General, Rivers State v Attorney-General, Bayelsa State (2012) 6-7 MJSC (Pt. III) 149 at 198 had reaffirmed the law as follows:- "It is basic in claims relating to declaratory reliefs, it is for the plaintiff to establish his claim on the strength of its claim and should not rely on the weakness of the defence, if any. The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy. Such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declarations by his own evidence." See also Elias v Disu (1962) ALL NLR (Pt. 1) 214; Dantata v Mohammed (2000) 7 NWLR (664) 176 Kwajaffa v Bank of the North (2004) 5 SC (Pt. 1) 103; Alao v Akano (2005) 4 SC, 25; Dumez Ltd. v Nwakhoba (2008) 18 NWLR (1119) 361 at 373 - 4."

Applying the above principle to the instant case, I discountenance the Claimants’ learned Counsel’s argument on admission. I so hold.

Generally, the position of the law on fielding of witness in proof of a case has been pronounced upon by the Courts. In Dogo v Adamu (1997) LPELR – 5793 (CA), the penultimate Court put it succinctly thus:

“I think it is also a sound proposition of the law that there is no rule of law or practice which requires a plaintiff or defendant in a civil suit to testify if he can otherwise prove his case. See Cross River State Newspaper Corporation v. J. I. Oni & 6 Ors. (1995) 1 NWLR (Pt. 371) 270; (1995) 26 LRCN 57 at 78.”

See also Garba v Janfa & Ors (1999) LPELR – 6674 (CA), and Husseini & Anor v Mohammed & Ors (2005) LPELR – 7520 (CA) where the Court held that a party to an action is not bound to testify in person, provided he has other witnesses to prove his case. The operative word is if a claimant can otherwise prove his case, it is not mandatory that the claimant must testify as a witness in his own case.

While it is good practice for multiple claimants to jointly file a suit against a defendant even where the benefits are to accrue to each of them severally. See the case of Ige v Farinde (1994) 7 NWLR (Pt 354) 42, Oando Plc v Ajaigbe & Ors (2015) LPELR – 24816 (CA), this is for the purpose of convenience and avoidance of multiplicity of actions, so long as the claimants all have a common grouse or similar or different cause of action of same origin or against the same defendant or same question of law arising from the same transaction. In that case, the joint status of the claimants does not affect the individual capacity of each of the claimants, even to the extent that if one of the claimants dies, the joint action survives to the other claimants. See Olufeagba & Ors v Abdur-Raheem & Ors (2009) LPELR – 2613 (SC). It is the law that where all the claimants in the joint action act together, and none of them can set up a case which is in conflict with the other claimants.

Also the onus of proof on each of the joint claimants remains intact and as such each of the claimants is required to have the requisite proof that establishes his claim by credible and cogent evidence. Order 13 Rule 1 of the extant rules of this Court provides thus:

“All persons may be joined in one action as claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such claimant(s) as may be found to be entitled to relief.”

See also A/G Akwa Ibom State & Anor v Etukeyen & Ors (2020) LPELR – 49644 (CA) and Newspaper Corporation v Orie (1995) 1 SCNJ 218 at 220 – 221.

From the wordings of Order 13 Rule 1, a claimant in a joint action is only entitled to judgment as may be found from the evidence adduced that such claimant is entitled to. This simply means that there must be adduced before the Court credible and cogent evidence in proof of each claimant’s entitlements in the joint action. The proof can be achieved by the evidence of one of the claimants if it is sufficient to prove the case of the others. However, if the evidence of one claimant is not sufficient to prove the entitlement of the other, the latter must further adduce evidence in support of his entitlement for such to succeed. In Orogun & Anor v Fidelity Bank (2018) LPELR – 46601 (CA), the penultimate court held thus:

“The phrase “joint” means involving two or more people together like a joint bank account in the name of more than one person, for example a husband and wife (Oxford Advanced Learner’s Dictionary 7^th Edition page 801). The 1^st appellant is the husband of the 2^nd appellant. They took or filed the action at the court below jointly showing they sued together as one entity. Both of them filed joint pleadings for the action and against the counter claim of the respondent. Being a joint action with a joint defence to the counter claim the appellants are bound together with inseparable Siamese twins in the action and the joint defence to the counter claim vide Plateau Publishing Co. Ltd and Ors v Chief Chuks Adophy (1986) 4 NWLR (Pt 34) 205, Ogunleye v Arewa (1960) WRNLR 9, Okonkwo v Okolo (1988) 2 NWLR (Pt 79) 632. The 1^st appellant was thus competent to testify for himself and the 2^nd appellant in the action and in defence of the counter claim. It was not necessary for the 2^nd appellant to testify if she thought the evidence of the 1^st appellant sufficed for her vide Section 178 of the Evidence Act and the cases of Dikwa v Modu (1993) 3 NWLR (Pt 280) 170....”

See also the authority of Funmilayo & Ors v Folorunso & Anor (2014) LPELR – 22541 (CA) where the penultimate Court held thusly:

“There is no law that I know of that says all parties to an action must testify on their respective behalf’s especially where as in this case the claims are joint claims and one party only can testify in respect of the whole case. I am of the firm view that in the present case there was no need for the 2^nd, 3^rd and 4^th Plaintiffs to have testified. If the Plaintiffs’ case has been presented even by a sole witness, it is enough, calling of other witnesses is superfluous …. In the case of EME vs. WAMUOH (1991) 7 NWLR (PT. 203) PAGE 375 at p.387 C – D, this Court succinctly put it this way: “The submission of Appellants Counsel that it was wrong for the learned trial Judge to give judgment on the sole evidence of the 1^st plaintiff when the action was instituted in an individual capacity seems to me not to be well founded in view of the main contest between the parties. The pleadings and evidence show that the main claim is whether or not the Appellants and Respondents are adult members of Umuatako family. The battle was fought on that basis. There is no law which stipulates that apart from the 1^st Respondent the remaining two must testify.”…”

However, the pattern usually adopted where several claimants filed a joint action against the same Defendant(s) is to capture all the claimants’ claims in the written statement on oath of the witness they present in proof of their claims. It is not necessary for every claimant to testify, one claimant can competently testify for himself and on behalf of all the other claimants provided that his written statement on oath has captured the claims of all the other claimants.

It is not in dispute that the present suit is neither a class action nor a representative one, it is a suit jointly instituted by the claimants wherein they claimed severally against the defendant. Also not in dispute is the fact that the claimants have a common demand against the defendant in this case. Out of the 68 Claimants in this case, only the 8^th, 33^rd and 37^th Claimants have testified as witnesses, a careful perusal of their written depositions reveals that none of them had testified on behalf of the other Claimants, each of them testified for himself and tendered his letter of appointment, letter of confirmation and notification of promotion respectively. None of the Claimants’ witnesses have captured the cases of the remaining 65 Claimants in his written deposition. The Penultimate Court in Mustpha & Ors v. NITTDA (2021) LPELR-55505(CA), while deprecating a similar style/pattern adopted by the Claimants in the instant case held thus:

” One point that needs clarification in this appeal is that the suit of the Appellants before the lower Court was not brought in the form of class action or representative action or collective action. A class action or representative action is a type of suit where one of the parties is a group of people who are represented collectively by a member or members of that group. In a typical class action, a Plaintiff sues a defendant or a number of defendants on behalf of a group or class of absent parties. So in a class action, instead of each injured person bringing his or her own lawsuit, the class action allows all the claims of all class members whether they know they have been damaged or not, to be resolved in a single proceeding through the efforts of the representative plaintiff(s) and appointed class Counsel. Those who desire to sue in representative capacity must have joint grievance, the proposed representative must be one of them and the relief must be beneficial to all the persons being represented. Unfortunately, this action was not founded on a representative capacity but was rather styled in the form of the old common law practice where all the parties having common interest in the suit were individually named as parties in the suit. By the formula adopted by them, they were required to be present in Court to present their respective cases, tender the documents they individually rely upon in proof of their cases. It is a settled law that a party who sets out to assert the existence of a claim bears the burden of establishing the claim, and must fail if he does not succeed in establishing what he has undertaken to do. See Cardoso vs. Daniel (1986) LPELR-830(SC)”.

It is therefore my humble but firm view that by the way and manner the Claimants filed this suit, they are mandatorily required to be present in Court, to present their respective cases, tender the documents they individually rely upon in proof of their respective cases. This the Claimants have failed to do. The Claimants who listed 11 witnesses and frontloaded their written depositions ended up calling only three. The written depositions of 8 out of the 11 eleven witnesses shortlisted were not adopted. What then is the position of the written deposition on oath of the remaining claimants’ witnesses that were not adopted? Authorities are pretty clear that a witness statement on oath which has not been adopted by the proposed witness is deemed abandoned. In ADAKA v. OMESSAH (2023) LPELR-60857(CA) (Pp. 35-36 paras. D). The Penultimate Court held Per Wambai ,J.C.A thus:

"On the status of the witness statement on oath, it is trite that a witness statement on Oath is the evidence in Chief of a witness in written form deposed or sworn before a Commissioner for Oaths. The evidence on Oath transforms into evidence in chief only upon adoption by the deponent (witness). It can neither be tendered as evidence nor regarded as evidence without adoption. It cannot form part of the evidence adduced at trial unless the deponent testifies in Court as a witness and adopts the statement as part of his oral testimony. Therefore, where as in the instant case the witness fails to adopt the witness statement on Oath, same will be deemed as abandoned and the deposition therein becomes useless to the deponent. See, OBEYA V. OKPOGA MICROFINANCE BANK LTD (2019) LPELR-47615, NASCO MANAGEMENT SERVICES v. A. N. AMAKU TRANSPORT LTD (Supra)."

Applying the above principle to instant case, I find that the witness depositions of the 8 witnesses which have not been adopted is deemed abandoned. I so hold.

The testimony of the 3 witnesses fell short of the requirement for proof in that none of them was able to establish the existence of employment relationship with any of the Defendants in this case.

In the final analysis, for all the reasons stated, I find that the Claimants’ case lacks merit; it has failed in its entirety and is accordingly dismissed. I so hold.

Judgment is entered accordingly, I make no order for cost.

…………………………………………

HON. JUSTICE MUSTAPHA TIJJANI