IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA

DATE: THURSDAY, 19TH MAY 2022                                 SUIT NO: NICN/EN/01/2014

BETWEEN:

·          ONWUCHEKWA O.A

·          DR. (MRS.) IWUALA PATRICIA EBERE

·          NWACHUKWU EDISON N.

·          OSUOJI N.V.E                                                     1ST SET OF CLAIMANTS

·          OSUEGWU S.N.

·          ESONU M.O and 92 other members of

       Staff of Abia State University Uturu whose

Names are set out in Schedule “A”.                                                                    

 

AND

 

·          SENIOR STAFF ASSOCIATION OF

NIGERIAN UNIVERSITIES (SSANU)

·          NON-ACADEMIC STAFF UNION

OF EDUCATION AND ASSOCIATED (NASU)           2ND SET OF CLAIMANTS INSTITUTIONS

·          NATIONAL ASSOCIATION OF ACADEMIC

TECHNOLOGISTS (NAAT)

AND

 

·          ABIA STATE UNIVERSITY                              DEFENDANT

 

REPRESENTATION:

·        D.O. OKORO FOR THE CLAIMANTS.

·        OKEY AMECHI (SAN); J.O. NWAIWU FOR THE DEFENDANT.

 

JUDGMENT:

This case essentially transmuted from what it initially was when it was first filed in 2014 and had passed through 2 coram judice from 2014 before it eventually begun de novo before me from 4/2/2020 until this judgment delivered today, 19/5/2022. In this action though, there are 2 sets of designated claimants. The 1st set of claimants (claimants nos. 1 to 98), are purportedly the defendant’s employees deployed to the defendant’s staff schools to work in various positions. The 2nd set of claimants (claimants nos. 99 to 101) are 3 staff unions allegedly operating within the defendant’s institution to which the 1st set of claimants are all members of. According to their pleadings, this 1st set of claimants were duly employed by the defendant (Abia State University) and their respective employments are accordingly subject to the Abia State University Law as well as the conditions of service for the defendant’s staff. The 1st set of claimants were at some point of their respective employments, placed on the prevalent salary scales operational in the university, that is EUSS/USS or HATISS. In the course of time and the 1st set of claimants’ services within the institution, a sub-committee was organized and set up by the defendant’s governing council, which came up with a suggestion inter alia, for the salaries of the employees of the staff schools, to be determined under a new salary scale to be known as Teachers’ Salary Scale. This suggestion did not augur well with the 2nd set of claimants’ unions. In spite of the unions’ objectionable stance, the governing council wrote a letter dated 7/10/2013, communicating its ultimate decision to transfer the 1st set of claimants from their subsisting salary scale at that time, to the said Teachers’ Salary Scale (TSS) and gave directions to the heads of the staff schools to comply and implement effectively. Despite the overwhelming disapproval of this decision, the defendant insists on utilizing the TSS scheme to determine what the 1st set of claimants’ salaries would be. Thus aggrieved, these claimants approached this court for possible redress.

 

CLAIMANTS’ RELIEFS AGAINST THE DEFENDANT:

2.                  The claimants’ complaint and accompanying processes were originally filed on 6/1/2014. They subsequently amended their statement of facts severally, and the latest and eventual of these amendments, finally became what they called their further amended statement of facts filed on 7/2/19 even though they relied on the sworn depositions of their sole witness filed on 20/1/2020. Within, these claimants seek the following mainly declaratory reliefs:

 

                                        i.      A declaration of the honourable court that the defendant has no right in law to alter the contractual terms and conditions of employment and services of the 1st set of claimants who are members of the 2nd set of claimants in its employment, who were (all) seconded to the university staff schools from the university elongated salary structure otherwise called Consolidated University Senior Staff Salary (CONUSSS)/ Consolidated University Non-Academic salary (CONUNAS) to the Teachers Salary Scale (TSS) not applicable to their employment with financial effect from 1st January 2013.

 

                                      ii.      A declaration of the honourable court that the defendants’ alteration and change of the terms and conditions of employment and services of the 1st set of claimants serving in the university staff schools of the defendant from the University Elongated Salary Structure otherwise called Consolidated University Senior Staff Salary (CONUSSS)/ Consolidated University Non-Academic Salary (CONUNAS) to the Teachers Salary Scale (TSS) vide letter No. ABSU/DVC/ACAD/157 of 7th October 2013 is unlawful, null and void and of no effect whatsoever.

 

                                   iii.      An order mandating the defendant to revert the 1st set of claimants’ terms and conditions of employment to that obtainable at their various points of employment in accordance with CONUSSS/CONUNAS salary structure aforesaid.

 

                                    iv.      Damages against the defendant to the tune of Two Million Naira (N2,000,000.00).

 

3.                  At the close of filing their respective pleadings, the claimants eventually opened their case before this court on 16/10/2020, calling in the testimony in chief of 1 witness (C.W.1 – OKPAN LEKWA KANU) who tendered 18 documents in all (exhibits C1 - C18). CW1 was subsequently cross examined by the defendant’s counsel whereupon the claimants closed their case on the same 16/10/2020.

 

4.                  Meanwhile, the defendant who had initially filed its statement of defence and accompanying processes on 16/3/2015, however applied to amend and to replace same with the one filed on 12/4/2019.

 

5.                  The defendant thus opened its case on 1/12/2021 and closed on the same day, calling in the testimony of 1 witness (DW1- Henry N. Abgaeze) who tendered 5 documents (exhibits D1 - D5) as exhibits.

 

6.                  At the end of trial, the defendant’s counsel filed his final written submissions and arguments on 20/12/2021. The claimants’ counsel filed his on 8/2/2022. On the 30/3/2022, the respective parties’ counsel adopted their arguments and submissions whereupon this court reserved the case for judgment today.

 

                                                       CLAIMANTS’ EVIDENCE:

7.                  It was mentioned that these claimants filed a further amended statement of facts and sworn depositions by their witness, and as gleaned therein, CW1 after adopting his sworn depositions in open court, avers that the 1st set of claimants are the defendant’s staff who were deployed to the defendant’s staff schools as employees of various cadres.

 

8.                  He posits that the Senior Staff Association of Nigeria University (SSANU) is a registered body responsible for their welfare and for the protection of all of its members, including those within the defendant institution. Also, that the Non-Academic Staff Union of Educational and Associated Institutions (NASU), is responsible for the interests of non-academic junior staff of Nigerian Universities whereas the National Association of Academic Technologists (NAAT), is duly registered and responsible for all its members who are academic technologists in Nigeria Universities and associated institution inclusive of staff of the defendant.

 

9.                  These claimants state that a senior staff is determined by his salary status. That while senior staff in the civil service do not include officers at grade level 6, the university elongated scale CONUSSS/CONUNAS considers those on CONUNAS 6, as senior staff while CONUNAS 1 to 5 are junior staff. And the 1st set of claimants were recruited under the said elongated salary scale.

 

10.             According to them also, employment in the defendant institution had always been by due process, which included advertisements of the position or vacancies displaying the salary structure of the positions advertised etc. The recognized salary structure of the staff of the defendant is the elongated university salary structure (USS) otherwise known as CONUSSS/CONUNAS, which is different from the Teachers Salary Scale (TSS).

 

11.             Accordingly, it was on the basis of the more attractive elongated varsity salary structure that the 1st set of claimants who are the best qualified individuals in their various fields of endeavours, applied for and got employed to various positions advertised for by the defendant in the staff schools.

 

12.             The claimants maintain that their individual employment letters are all tenable until their eventual retirements as it is in the case of other staff of the varsity’s mainstream. Also, that the conditions of service provided by the governing council of the institution, provides for the rights of these claimants, to pension and gratuity. These benefits are calculated based on an individual’s terminal salary as such, any changes effected to the salary schemes shall invariably affect the person’s terminal benefits upon retirement.

 

13.             These 1st set of claimants hitherto occupied various positions in the institution such as senior administrative/technical officers, master, etc. in various gradations but many of them were thereafter drafted and posted to the defendant’s staff school as teachers on secondments, while others remained in the defendant’s varsity as administrative officers of different cadres.

 

14.             The claimants are vehement that while some of the 1st set of claimants were working in the staff schools, the defendant institution placed advertisements for academic and administrative positions in the varsity. Some of the staff schoolteachers applied for those positions and were successfully taken and converted to either academic staff or other senior administrative positions on the same salaries without minding the entitlements of their new positions. The witness mentioned a few of them for instance Dr. Mrs. N.D. Nkpa who was a school principal was moved to academic staff position as a senior lecturer. Mrs. P.U. Onuoha who was admin officer was converted to an academic staff in the varsity. Same applied to Dr. E.O. Okorie, H.C. Mbadiwe, Douglas Iwo – Ude, John Ude Igwe, and Obasi Lekwuwa all of whom were converted from the staff schools to various positions in the varsity system by the defendant. Their grouse is that even though they had all applied for either academic or senior administrative positions in the varsity, the quantum of their salaries remained the same with that of the staff schools as determined under the elongated university salary structure (CONUSSS/CONUNAS). It is a mixed set up with the same elongated university salary structure called CONUSSS/CONUNAS.

 

15.             These claimants aver that in 1999, a visitation panel was set up by the then governor of Abia State. Consequent upon the panel’s investigations and the submission of white papers, some of the members of the 2nd set of claimants’ unions were laid off by the defendant with a promise to reinstate them when the defendant’s finances improved.

 

16.             Accordingly, in 2009, the Federal Government of Nigeria/Staff Unions’ agreement package was signed which inter alia gave the federal government 100% responsibility for the welfare of all staff primary schools, federal government/university joint responsibility for capital expenditures for the staff secondary schools and joint university/parent teachers’ associations recurrent expenditure of staff secondary school. The agreement was domesticated and implemented by the defendant since January 1, 2011, even though it was to have taken effect since 2009.

 

17.             They assert that the Abia State Government conferred on the defendant the duty to provide for the welfare of the members of its staff, and in exercise of this duty, the defendant’s staff schools were reorganized for the purpose of deriving more revenue much as these schools were not established for profit making.

 

18.             Accordingly, in the 1st quarter of 2011, there was a negotiation wherein the chairman of the Academic Staff Union of Universities (ASUU), suggested a staff audit and subsequently a sub-committee was organized and setup. The committee however suggested that the salaries of the staff schools be transferred to the boards of the schools for placement under a new salary scheme to be known as TSS.

 

19.             This suggestion was virulently refused and rejected by the chairman of ASUU via a letter to the council chairman, but on 18/12/2012 the governing council of the defendant accepted the recommendation and by a letter dated 7/10/2013, the council communicated and directed the heads of the staff schools to adhere with the new scheme. This letter contained the decision of the council’s approval to the unilateral transfer of the salary scales of the 1st set of claimants who work in the staff schools, from the elongated salary scale of CONUSSS/CONUNAS to the new Teachers Salary Scale (TSS).

CLAIMANTS’ REPLY:

20.             The claimants, in response to the defendant’s statement of defence, reiterated that the 1st set of claimants are members of the 2nd set of claimants’ unions as they are at liberty to belong to any unions or associations of their choice as enshrined under section 40 of the CFRN 1999 and that the various union constitutions of the 2nd set of claimants apply to them.

 

21.             According to the claimants also, the advertisement referred to by the defendant in its statement of defence were numerous, including those for the positions of senior administrative staff, technical staff, and masters in the staff schools etc. But that the appointment letters will show that they were all employed as mainstream employees and subsequently seconded to serve in the staff schools.

 

22.             These claimants further aver that it is stated in some of the employees’ letters of employment that the defendant reserves the right to move the employees to any of its departments. Some of these letters are akin to one issued to one Jonah Uba.

 

23.              They maintain that the salary scale of these claimants were never rigid but changed with time from one structure to the other. Equally, members of the staff schools had their salary structures changed much like some employees of the defendant. That the 1st set of claimants have been placed on CONUSSS and CONUNA from 1/1/2011 until December 2014.

 

24.             Accordingly, they (the claimants), have locus standi to institute this action being employees of the staff schools and the unions who reached a resolution to have them institute this action in a representative capacity. That some of the employees of the staff schools were employed at a time when HATISS or CONTISS were applicable.

 

25.             They maintain that it is immaterial what term was used in describing their fluid migration from the varsity to the staff schools so whether it is called a secondment, re-assignment, redeployment, or reposting, what matters most is that the defendant employed people for the purpose of sending them to work at another place. This had happened to several employees including Mr. V.I Nwokike, Mrs. Nenna Nmaji, Jonah Uba, Miss. Otuwachere Eze, Mrs. Glady Nkpado etc.

 

26.               As to the staff school’s financial status, the claimants aver that the schools generate sufficient funds to cater for both their capital and recurrent needs even though the defendant varsity deducts these funds away from the staff schools.

 

27.             The claimants further aver that the council’s staff audit committee was set up to ascertain the overall staff strength of the defendant; to ascertain the exact sums paid to all categories of her staff in the university; and to make any other recommendations as regard her wage bills. Accordingly, the committee went outside its mandate to recommend for the change of the salary scale of the employees of the staff schools against the spirit of the agreement made between the unions and the Federal Government in 2009 which was adopted by the defendant.

 

28.             According to these claimants therefore, the employees of the staff schools of the defendant gained promotions from one salary scale to another as was the case with other staff from USS or EUSS to HATISS and to CONUNAS/CONUSSS. Finally, the claimants state that the management board of the staff school was always in existence, and the staff schools had never had issue with deficiencies with school fees.

29.              

 

30.             In all, the claimants’ witness tendered 18 documents in evidence in this suit. These are:

 

                                        i.      Copy of adverts by the defendant (Exhibit C1).

                                      ii.      Letters of appointments and regularization (Exhibits C2 (1) to (41)).

                                   iii.      Samples of letters of confirmation (Exhibits C3 (a) to (g)).

                                    iv.      Copy of the conditions of employment (Exhibit C4).

                                      v.      White paper by the visitation panel dated 29/1/2000 (Exhibit C5).

                                    vi.      Agreement between Federal Government and SSANU (Exhibit C6).

                                 vii.      Staff audit report (Exhibit C7).

                               viii.      Letter from SSANU to governing council (Exhibit C8).

                                    ix.      Letter from the defendant varsity to the heads of staff schools 7/10/2013 (Exhibit C9).

                                       x.      Resolution by the 3 unions (Exhibit C10(a), (b), and  (c)).

                                    xi.      Pre-action letter dated 29/10/2013 (Exhibit C11(a) and (b)).

                                  xii.      Constitution of SSANU (Exhibit C12).

                               xiii.      Constitution of NASU and NAAT (Exhibits C13 (a) and C13(b) respectively).

                                xiv.       Letter written to the Governor of Abia State by the forum of nonteaching staff of the defendant varsity dated 6/3/2015 (Exhibit C14).

                                  xv.      Defendant’s letter to head of staff schools dated 3/8/1995 (Exhibit C15).

                                xvi.      Letters from the Ebonyi State University and IMSU dated respectively 25/2/2015 and 2/3/2015 (Exhibits C16(a) and (b)).

                             xvii.      Letter from nonteaching staff to the pro chancellor dated 14/10/23 (Exhibit C17).

                           xviii.      Letter from the defendant dated 10/3/1994 (Exhibit C18).

 

31.              At the conclusion of his testimony in chief, CW1 was cross examined whereupon the claimants closed their case.

 

DEFENDANT’S EVIDENCE:

32.              In line with its amended statement of defence filed on 12/4/2019 and DW1’s sworn deposition of 18/3/2021, the defendant, also through its sole witness – HENRY M. AGBAEZE, denies that the teaching and nonteaching staff of the defendant’s varsity, are members of the 2nd set of claimants (the unions). That  the 1st set of claimants are not employed in the university system and as such, are not in the university mainstream. Accordingly, the staff schools are adjuncts of the university and not to be considered as a department in the defendant’s institution.

 

33.               The defendant stated that the advertisement placed to fill those vacancies in the staff schools, clearly establishes that the employment was for the staff schools only. The defendant only placed the staff of those schools on the elongated university salary scale (EUSS) or on university salary scale (USS) both of which do not exist anymore. These staff were accordingly not employed on the salary structure of CONUSSS or CONUNAS as these 2 salary schemes only emerged in 2009 and strictly applied to only the staff of the mainstream varsity. That prior to the emergence of the said CONUSSS and CONUNAS, the varsity’s staff were placed under the EUSS or USS, which equally applied to the staff of the schools’, i.e. these claimants.

 

34.             According to the defendant also, these 1st set of claimants do not have any locus standi to institute and pursue these claims as they are not employees of the staff schools and or not privy to the individual contracts of employment between the defendant and the various employees of the staff schools.

 

35.             The defendant averred that it always advertised vacancies for employments in the university (mainstream) depending on the needs, and the applicants are always free to apply both from the staff schools or from outside. The defendant accordingly does not second or redeploy its employees to the staff schools from the varsity or vice versa but only sends relevant employees to the staff schools for the purpose of auditing or administrative verifications, especially since the defendant funds the staff schools.

 

36.             According to the defendant also, there was always the worrisome issue about the capital and recurrent expenditures of the varsity to contend with which often leads to industrial conflicts initiated by the 2nd set of claimants’ unions. These disharmonies are accordingly actions settled by negotiations between the defendant varsity and the unions, and one of the areas of negotiation has been the running costs of the staff schools.

 

37.             The defendant avers that the staff schools were introduced originally as a welfare scheme with the conception that they would render quality educational services to children of the staff of the university, grant affordable school fees for them to pay, and to eventually meet their recurrent needs independently. Unfortunately, the staff schools have not generated sufficient funds to even pay for the salaries of their employees as the defendant even discovered that only about 10% of the students’ population are actually children and wards of the varsity’s staff thus being one of the major militating factors. Realizing the odds, the defendant decided that it was either the staff schools were shut down outrightly or to create a supervisory management structure to enable the schools to cater for the salaries of their employees independently.

 

38.             The governing council of the defendant’s varsity thus formed a committee to consider the burning issues. The committee, at the end of their sessions, made recommendations to the defendant which at the 115th regular meeting of its council, were accepted for implementation. One of the recommendations made is that the staff schools should be made to generate sufficient funds for the purpose of settling salaries. Also, it was accepted as part of the recommendations, that the employees of the staff schools should have a special salary scale called the Teachers’ Salary Scale (TSS) since the EUSS and USS under which they were employed, were no longer operable at that time save for the Consolidated Tertiary Institution Staff Salary (or CONTISS).

 

39.             The decision of the council was communicated to the heads of the staff schools by the then DVC and other key stake holders without any adherence and so at her 70th Extra-Ordinary Meeting held on 25/8/2014, the council decided to cease funding the staff schools all together and directed the VC to also create a special management team to find procedures for running the staff schools independently. Subsequently, at the 71st Extra-Ordinary meeting of the said council held on 27/10/2014, the Vice Chancellor presented a proposal to the management board. In September 2014, the defendant institution set up a management team for the staff schools and duly communicated the various heads of the staff schools through a letter dated 3/9/2014.

 

40.             That the problems associated with running staff schools by the universities, is not peculiar to the defendant alone but the same in other varsities that own staff schools in the country.

 

41.             In 2009, there was a negotiation between the federal government of Nigeria and the 2nd set of claimants which gave birth to an agreement arrived at by the parties. Within, it was agreed inter alia, that a new salary structure will be introduced for the Senior Staff Association of Nigeria Universities (SSANU) known as CONUSSS. Other agreements were that the university will bear the full capital and recurrent costs of the university staff primary schools as well as the capital costs of running the university’s staff secondary school, whilst the parents shall bear the recurrent costs.

 

42.             The defendant averred that notwithstanding that the said agreement did not involve the defendant (a state university), the 2nd set of claimants mounted pressure on it to apply the terms of the said agreement on the claimants, which was nonetheless done in 2010. Despite this, the claimants turned around to encourage the heads of the staff secondary schools to resist the full application of the agreement, insisting that the defendant must continue to pay the salaries of the two staff secondary schools located at Uturu and Aba fully.

 

43.             That the negative reactions to the salary scale of TSS by the claimants is merely alarmist even as they have not yet seen the packages spelt under the scheme so as to judge whether they will be receiving more or less than they had been used to under the USS or EUSS with which they were first employed with. As such, the decision of the council of the defendant to transfer the claimants’ salaries to the TSS, is lawful and valid and in terms with their respective contracts of employment as employees of the staff schools.

 

44.             In all, the defendant’s witness tendered 6 documents in evidence as follows:

 

                                        i.      Copy of advertisement for the staff school (Exhibit D1).

                                      ii.      Copy of minutes of 115th meeting of the governing council (Exhibit D2).

                                   iii.      Copies of the 70th and 71st extra – ordinary meeting of the council (Exhibit D3).

                                    iv.      Copy of letter by the Vice Chancellor dated 3/9/2014 (Exhibit D4).

                                      v.      Copy of the agreement between the Federal Government and SSANU dated November 2009 (Exhibit D5).

                                    vi.      Letter by J.C Ogbonnaya dated 10/4/2007 (Exhibit D6).

 

45.             At the close of the defendant’s testimony, DW1 was cross examined by the claimants’ counsel whereupon the defendant’s case was also closed.

 

DEFENDANT’S COUNSEL’S SUBMISSIONS AND ARGUMENTS:

46.             Counsel for the defendant filed his final written submission on 2/12/2021. Within, he nominated 5 issues for determination by this court as follows:

 

                                        i.      Whether without being privy to the individual contracts of employment of each affected staff in issue, the claimants can be said to possess the requisite locus standi to bring this action on behalf of the staff of the staff schools.

 

                                      ii.      Whether this suit can be said to disclose a justiciable cause of action that is within the jurisdiction of this court to hear and determine.

                                   iii.      Whether the 1st set of claimants were employed by the defendant as staff of the defendant’s staff schools or as the university’s mainstream staff.

 

                                    iv.      Whether from the pleadings and evidence adduced on both sides, the terms of employment of each of the 1st claimants could be said to have been varied or reviewed particularly with regard to the applicable salary schemes.

 

                                      v.      Whether or not from the pleadings and evidence adduced in this case, the claimants can be said to have proved their case to be entitled to reliefs sought in this case.

 

47.             On counsel’s issues 1 and 2 argued jointly, he submits that the claimants failed to show any reasonable cause of action in this suit. Counsel further submits that the purported 92 employees of the staff schools have separate contracts of employment with the defendant to which the 2nd set of claimants are not party to. Counsel argued that there is no authority shown to have been given to these claimants by the affected members of staff of the staff schools, hence these claimants cannot act as agents without any authorization from a principal. On these submissions counsel relied on Rector Kwara State University v. Adetilo (2007) 15 NWLR (Pt. 1056) 42; Nigerian Arab Bank Ltd v. Shuaibu (1991) 4 NWLR (Pt. 186) 450, among others.

 

48.             On the justiciability of this suit by them, learned counsel submits that these claimants have not disclosed any dispute between them and the defendant, hence there is no cause of action to warrant the filing of this suit. He urged this court to so find and grant issues 1 and 2 raised in favour of the defendant.

 

49.             On issue numbers 3, 4 and 5 learned counsel submits that there are 98 employees of the university staff schools each with an individual letter of employment wherein it is clearly stated that their employments are subject to the governing and policy making powers of the university’s governing council. Accordingly, the 1st set of claimants claim to be representing 92 other members of staff of the defendant’s varsity but only tendered 31 letters of employment. Relying on the case of Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (145) 506, counsel submits that tendering of a letter of employment is sine qua non to the success of a claimant’s cause. As such, tendering those 31 letters of employment without calling each of them to testify in evidence, amounts to dumping documents on the court to sieve through them in order to determine if the claims are true.

 

50.                Learned counsel made reference to the employment letters of the senior and junior staff tendered by the claimants to reiterate that these documents have in them provisions stating that the employments are subject to the Abia State University Edict, statutes and any other amendments made therein, and to the regulations governing their conditions of service. Relying on U.B.A ltd v. Ozigi (1991) 2 NWLR (Pt. 176) 677; Oduye v. Nigerian Airways Ltd. (1988) 2 NWLR (Pt. 55) 126, counsel thus urged this court to give effect to the agreement between the defendant and its staff as contained in their various letters of employment only.

 

51.             Citing section 7(1) and (2) of the Abia State University Law, learned counsel submits that the university governing council has the right to change the salary scale of her employees. Since the university’s governing council changed the scale from EUSS or USS to CONTISS for both university’s mainstream staff and the staff of the staff schools, the same governing council saw the need to change to the scale of CONUSSS and CONUNAS for the university mainstream staff alone, and later changed that of the staff schools at the 115th regular meeting of the defendant’s governing council, from CONTISS to TSS. Relying on the case of A.G Rivers State v. A.G Akwa Ibom State (2011) 8 NWLR (pt. 1248) 31, learned counsel submits that this 1st set of claimants are bound by the terms of their individual contracts which they accepted.

 

52.             He referred to exhibits C1, C2(1 to 41), D1 and the employment letters tendered by the claimants to submit that these evidence show that vacancies were advertised for the staff schools, and the 1st set of claimants were employed to work in those staff schools and not in the university’s mainstream. Counsel relied on Kebbi v. Kwara Investment Property Development Co. Ltd. (2021) LPELR-53992 (CA) to submit that extrinsic evidence cannot be admitted to change the contents and terms of a written contract reached by parties. He finally urged this court to dismiss this suit as the claimants accordingly failed to sustain any of their claims within.

 

CLAIMANTS’ COUNSEL’S SUBMISSIONS AND ARGUMENTS:

53.             The claimants’ counsel filed a written submission on 8/2/2022. Within, he raised 4 issues for determination by this court as follows:

 

                                        i.      Whether  having regards to exhibits  C2 (1 – 41), C3(a – g), C10, D6 and the law that established the defendant, the 1st set of claimants being members of staff of the defendant are different from other employees of the defendant and ought to be on a different salary structure from other employees of the defendant?

 

                                      ii.      Whether in view of the totality of the oral and documentary evidence adduced before this honourable court, there is any mainstream staff and staff of the staff schools categorization in the employment of the defendant or a distinct salary structure for the 1st set of claimants and other employees of the defendant?

 

                                   iii.      Whether in view of the totality of the oral and documentary evidence adduced before this honourable court, the midway polarization of the Consolidated University Senior Staff Salary (CONUSSS) & Consolidated University Non-Academic Salary Structure (CONUNAS) and the subsequent creation of Teacher’s Salary Structure Scale (TSS) is not a midstream alteration of exhibits C2(1 – 41), C3 (a – g) and C4 as well as the claimants’ accrued vested interests/rights and thus illegal, null and void?

 

                                    iv.      Whether in view of the oral and documentary evidence adduced before this honourable court, the claimants have not proved their case on a preponderance of evidence to be entitled to the reliefs sought?

 

54.             On issues 1, 2, and 3 jointly taken, learned counsel submits that by paragraphs 1, 6, 12, 14, and 35 of their amended statement of facts and paragraphs 3, 8, 14, 16, 17 and 37 of CW1’s sworn deposition, as well as exhibits C2 (1 – 41) (various letters of employments of the claimants), C3 (a – g) (various letters of confirmation of employments of some of the claimants), and exhibit C4 (conditions of service), all indicate that the 1st set of claimants were employed by the defendant as statutorily protected employees who were deployed to the defendant’s staff schools. Counsel submits that the defendant acted ultra vires by changing their salary scheme from what it was to TSS.

 

55.             Learned counsel cited the case of Organ & Ors. v. Nigeria Liquefied Natural Gas Ltd & Anor (2013) LPELR – 20942 (SC) to submit that the letters of employment of each of the 1st set of claimants, are the bedrock of their claims. Counsel argued that apart from the categorization under Article 2.1 of exhibit C4, it is clear that there is no such categorization into “mainstream staff” of the defendant varsity and “other staff of the defendant’s staff school”. He stated that there are no different conditions of service for the 1st set of claimants and other staff of the defendant university. Also, that the quantum of salary of a staff depends on whether he is a senior staff or junior staff and not on the fact that an employee is a mainstream or a member of the staff schools basis.

 

56.             He ministered that a statutory employment is governed by statute or where the conditions of service are contained in regulations derived from a statute citing the case of Comptroller General of Customs & Ors. v. Gusau (2017) LPELR – 4208 (SC) as inspiration. He then submits that the claimants tendered documents in evidence in this suit without any objections from the defendant as such, this court has every competence to rely on the exhibits in this suit – ZACCALA V. EDOSA & ANOR (2017) LPELR-48034 was cited in aid of these submissions.

 

57.               Relying on Sky Bank PLC & Ors. v. Akinpelu (2010) LPELR-3073 (SC), learned counsel emphasized on the importance of documentary evidence to submit that the defendant did not tender any letter of employment to show that there are differences in the individual letters of employment owned by any of the 1st set of claimants and or other employees of the defendant’s varsity.

 

58.             He argues further that exhibit D1 which is a copy of advertisement of vacancies in the defendant’s staff schools, does not affect the fact that the staff schools are one of the units of the defendant’s varsity and so the said advertisement does not show any dichotomy between “mainstream staff” and “staff of those staff schools”. Counsel urged this court not to isolate any portions of the evidence before this court, but to consider all wholly, eschewing the temptation to import or add anything – Anaelo & Ors. v. Maduagwuna & Anor (2018) LPELR-53390 (CA).

 

59.             He canvasses that DW1 contradicted himself when he stated that the 1st set of claimants are teachers who belong to the Nigerian Union of Teachers and not the 2nd set of claimants on one hand, and further stated that TSS is not a known salary scale in Nigeria. DW 1 accordingly also stated on oath that TSS is still under negotiations. Counsel thus queried that if the 1st set of claimants are members of NUT, why then are they not paid on the same salary scale as other Nigerian teachers?

 

60.             He believes that these claimants adduced cogent and credible evidence in support of their case and ought to succeed on the balance of probability – Section 131 of the Evidence Act.

 

61.             On the question raised by counsel to the defendant as to whether there is a reasonable cause of action disclosed in the claimant’s suit, learned counsel for the claimants submits that in probing the statement of facts, this court would ascertain whether there are triable issues or questions which requires the court to resolve – Henry Stephens Engineering Ltd v. S.A Yakubu (NIG) Ltd (2009) LPELR-1363 (SC). He further submits that the alteration of the 1st set of claimants’ vesting rights/interests is an impropriety this court is urged to redress. He impresses the court to grant the reliefs sought.

 

62.             On the question of locus standi of the 2nd set of claimants, counsel submits that membership of the 1st set of claimants in the 2nd set of claimants’ unions, is indisputable because the question is resolved in exhibit C10 and besides, the law allows a person whose interest would be affected by the outcome of a suit to join in such action – INCORPORATED TRUSTEES OF CHRISTIAN ASSOCIATION OF NIGERIA V. KWARA STATE GOVERNMENT OF NIGERIA & ORS (2019) LPELR-48561 (CA). He states further that this suit was not filed in a representative capacity as the parties to the suit are clearly stated on the face of the originating processes as well as in the schedule provided thereto.

 

63.             Counsel reproduced paragraph B of Exhibit C4 to submit that in light of the fact that the defendant acted ultra vires when it altered the claimants’ contracts of employment in total disregard to the procedures for amending the conditions of service by the council as contained in the said document, the said act should be declared a nullity – Salami v. Union Bank of Nigeria Plc (2020) lpelr-8975 (CA).

 

64.             According to counsel, all other salary structures operable in the varsity, wholly applied to all its employees including the 1st set of claimants. Therefore, the salary structure of TSS is a downward review which is a lesser value than that of the CONUSSS or CONUNAS on which all the employees were. Furthermore, he believes that the said TSS would affect the claimants’ terminal and post-employment benefits and so it is a worthy cause to challenge it. He cited and relied on A.G Federation & Co. Ltd v. Henkel Chemical (Nig ) Ltd (2011) LPELR-12 (SC) to support his submissions on the need for contracting parties to keep to the terms of their contracts. Counsel ventured to submit that there is nothing in exhibits C2 (1-41), C3 (a-g), and C4 empowering the defendant to create a separate salary scale for a section of the employees of the defendant’s varsity instead of having one which shall apply to all the employees generally.

 

65.             It is thus his submission that the defendant has no such right to alter the accrued interests of the 1st set of claimants midstream into their employments which consequently puts them disadvantageously uneven with their colleagues employed in the varsity by the introduction of a discriminatory, divisive and repressive salary scale – Comptroller General of Customs & Ors v. Gusau (2017) LPELR-42081 (SC).

 

66.             Finally, on these issues 1, 2, and 3 he submits that the defendant intentionally withheld producing evidence of the TSS at trial as doing otherwise would be against their favour if same were physically produced. Counsel cited section 167 of the Evidence and urge the court of so hold.

 

67.             On issue 4, learned counsel argued that it is trite law that a party seeking the exercise of the discretion of the court in his favour must place sufficient materials before the court to succeed.  Moreso, a party who places enough evidence that outweighs that of his opponent on an imaginary scale is entitled to succeed – Obasi Brothers Merchant Company Ltd. v. Merchant Bank of Africa   Security Ltd (2005) LPELR-2155 (SC). As such these claimants accordingly proved their case as per their pleadings through the testimony of CW1 and the numerous documentary evidence before this court. Accordingly, CW1 also substantiated that some employees were redeployed by the defendant from the staff schools to the department of education without fresh appointment letters.

 

68.             Counsel argued that the defendant stopped paying the 1st set of claimants their salaries based on the CONUSSS/CONUNAS structures, sometime in December 2014 and abruptly begun paying them based on a strange salary scheme. Counsel further stated that the defendant never denied the suspension of the 1st set of claimants’ salaries since 2017/2018 with justifiable reasons which in effect, amounts to an admission that they acted illegally thereby. He thus urged this court to consequentially order the defendant to pay the 1st set of claimants, backlogs of salaries and entitlements relying on the case of APC & Ors v. Karfi & Ors (2017) LPELR-47024 (SC) for inspiration. He finally urged this court to enter judgment in favour of these claimants against the defendant.

 

 

DEFENDANT’S COUNSEL’S REPLY:

69.             Learned counsel for the defendant filed a response on points of law to the claimants’ counsel’s written submissions. The reply was filed on 17/2/2022 though dated 14/2/2022.

 

70.             Within, he submits that the defendant has the power to create units, departments, colleges, institutions, etc. but that the claimants to refer the staff schools as a unit, defeats the initial arguments by them claimant that there are no categorization of staff of the defendant’s institution. He reiterated that in virtue of exhibit C4, the defendant’s governing council has the power to create separate salary scales for her employees if and when necessary.

 

71.             Counsel stated that the case of Obanye v. UBN Plc (2015) LPELR-25891 (CA) relied on by counsel for the claimants, is different from and inapplicable to the current suit, particularly since in the instant suit, the defendant did not admit all the issues concerning the categorization of all the employees of the defendant’s staff schools, to be entitled to the same salaries on the same salary structure with the employees in the mainstream of the defendant’s varsity.

 

72.             On the alleged refusal to pay the salaries of the 1st set of claimants, he finally submits that the claimants expressly refused to be paid their salaries on the new salary scale of TSS  even when they had not seen the contents and details of it. He re-campaigned for a dismissal of the claimants’ suit.

 

COURT’S DECISION:

73.             In prelude of my decision, I wish to first and foremost observe that this suit had its first judicial departure in 2014 at the Enugu division of this court and was initially presided over by brother the Hon. Justice O.Y Anuwe, and later by the Hon. Justice O.O. Arowosegbe from 23/10/2017 before it finally came before me in 2020. I thus deem it fit to appreciate the industry and the tenacity of these parties and their counsel in prosecuting and defending this suit to date.

 

74.             I carefully read through the vast processes filed in this suit from 2014 to date as well as the abundant submissions and judicial authorities supplied by the parties’ counsel for and against this suit. For the purpose of this judgment however, this court is convinced that the sole and all-encompassing issue sufficing determination, is simply “whether the claimants are entitled to the reliefs sought in this suit.”

 

75.              I shall determine this sole issue on the strength of the facts before this court and flowing from the evidence adduced by both parties. That said, it is imperative to reproduce the reliefs sought by these claimants before advancing to their merits. Again, as per the claimants’ further amended statement of facts filed on 7/2/2019, these claimants claim against the defendant as follows:

 

                                        i.      A declaration of the honourable court that the defendant has no right in law to alter the contractual terms and conditions of employment and services of the 1st set of claimants who are members of the 2nd set of claimants in its employment, who were seconded to the university staff schools from university elongated salary structure otherwise called consolidated university senior staff salary (CONUSSS)/Consolidated University Non-Academic Salary (CONUNAS) to the Teachers’ Salary Scale (TSS) not applicable to their employment with financial effect from 1st January 2013.

 

                                      ii.      A declaration of the honourable court that the defendant’s alteration  and change of the terms and condition of employment and services of the 1st set of claimants serving in the university staff schools of the defendant from the university elongated salary structure otherwise called consolidated university senior staff salary (CONUSSS)/ Consolidated University Non-Academic salary (CONUNAS) to the Teachers’ Salary Scale (TSS) vide letter No. ABSU/DVC/ACAD/157 of 7th October 2013 is unlawful, null and void and of no effect whatsoever.

 

                                   iii.      An order mandating the defendant to revert the 1st set of claimants’ terms and conditions of employment to that obtainable at their points of employment in accordance with CONUSS/CONUNAS salary structure aforesaid.

 

                                    iv.      Damages against the defendant to the tune of Two Million Naira (N2,000,000.00).

 

 

76.             It should be noted before going further that the defendant objected to the following documents at the point of tendering same by the CW1. These are exhibits C1, C7, C11 (a & b), C13, C14, C15 and C17 (all which have been set out before in this judgment). Learned counsel to the defendant reserved his arguments in support of his objections to the admissibility of these said exhibits till the final address stage by order of this court. I however observe that no submissions were eventually devoted to their inadmissibility in defendant’s counsel’s written submissions and arguments. Regardless, I evaluated these exhibits and found that they are relevant in determining this case. Relevancy is indeed a precursor to admissibility – section 1 of the Evidence Act. Hence, exhibits C1, C7, C11 (a & b), C13, C14, C15 and C17 were duly and properly admitted, and I so hold. Their evidential values are indeed separate kettles of fish anyway.

 

77.             Of course, in civil proceedings the burden of proof is not static, and it behooves on the ‘vulnerable’ party who would lose to establish his case by leading credible evidence to that effect – ONOBRUCHERE V. ESEGINE (1986) 1 NWLR (Pt.19) 799 and section 132 of the Evidence Act. The Evidence Act 2011 is clear on whom the burden of proof lies and how to determine same. Thus, it suffices to state that whoever desires any court to give judgment on any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. The legal standard of proof here is proof on a balance of probability – sections 131 and 134 of the Evidence Act.

 

78.             The defendant in this suit is a creature of statute, i.e. the Abia State University Law. The facts pleaded by these parties reveal that these 1st set of claimants were employed by the defendant varsity and their individual employments are thus regulated by the Abia State University Regulations Covering Conditions of Service. Being inarguably statutory employments, it is imperative that the employer and employee relationship must be in accordance with the enabling statutes and regulations derived therefrom for there to be a harmonious relationship. It is trite that actions found to be contrary with the laws and regulations governing such employment relationships, are unlawful, null and void. – Adeniyi V. Yaba College of Education (1993) 7 SCNJ (Pt. 11) 304 at 336; Central Bank of Nigeria & Anor V. Mrs. Agnes Igwilo (2007) 5 SCNJ 52.

 

79.             Now, it is undisputed that the defendant’s governing council is the supreme governing and policy making body of the varsity duly empowered under section 7 (1) and (2) of the Abia State University Law for the general management of the institution, as well as to do anything which in its opinion is calculated to facilitate the carrying on of the general activities of the university. At least there is no controversy over this.

 

80.             However, one might ask whether it is one of the inherent or constituting powers of the governing council of the defendant’s institution to change the salary schemes of its employees unilaterally?

 

81.             The language used by these claimants in paragraph 6 of their amended reply is that the salary scale for the employees of all the universities in Nigeria (inclusive of the defendant’s), is the one derived from the agreement entered into between the various staff unions in Nigeria and the federal government which were adopted by the universities which terms were incorporated into the individual contracts of each employees of the varsities. The claimants memorialized in their sub-paragraphs (d) to (h) to the effect that by the various agreements between the staff unions and the federal government of Nigeria, universities in Nigeria metamorphosed from applying the USS to EUS, then to HATISS and later CONTISS, and then to CONUSSS/CONUNAS salary schemes to determine the salaries of all employees of the varsities.

 

82.             What this court considers to be a relevant provision of the defendant’s staff conditions of service is as found in paragraph 3.1 which provides for the university salary scale. Sub-paragraphs (1) to (3) read thus:

 

(i)                    Members of the senior staff shall be paid salaries assigned to their respective posts in accordance with the prevailing scales or as may be approved from time to time by the governing council of the university.

 

(ii)                 The current salary grades and scale for senior staff are as listed in the attached appendix 1 to these regulations.

 

(iii)               The point on salary scale at which an appointee is placed at the time of appointment shall be determined on the basis of his qualification, previous experience, and membership and academic standing where applicable.

 

83.             From these provisions, it is evident and inarguably so, that the governing council of the defendant’s varsity have the vires to approve salary schemes or scales for all her employees or staff. It is however not stated in the regulations what the sources of the salary schemes or scales to be approved are and/or whether it will be the products of collective bargaining and agreements with the governments and the various staff unions which seems to be what is suggested by these claimants, and/or from the unilateral and internal management of the defendant and/or a combination of both. What is plain is that for a scheme to become applicable to the employees of the defendant’s institution, the governing council must approve same.

 

84.             Having understood the foregone, can the governing council of the defendant unilaterally and abruptly exchange an existing salary scheme or scale like it did for these 1st set of claimants especially in the pendency of their services to the institution? In order to appreciate the importance of this question, one must understand the awkward context the 1st set of claimants must have found themselves when confounded with the fact that their salaries would suddenly be based on a replaced salary scheme from 2014. It is not like it was the first time they had their salaries dependent on a different scheme while working, but it certainly was the first time their salaries would be based on a separate scheme which may likely entitle them to lesser salaries than they previously received and also henceforth be on different scheme from the employees who were in the varsity who probably before the decrease in salaries, received the same salaries with their contemporaries who worked in the staff schools regardless of the positions they occupied. It certainly also was going to be the first time their salaries would be decreased without the opportunity of both parties unanimously agreeing to this. There is consensus between these parties that salary scales were never static but actually changed from USS to EUS, then to HATISS and later CONTISS, then at the material time of this suit, to CONUSSS/CONUNAS. There is no evidence suggesting whether any of the parties regretted those changes then until now.

 

85.             In any case, who are these claimants? They described themselves in paragraph 1 of their further amended statement of facts as, “the 1st set of claimants are members of staff of the defendant who were deployed to the defendant’s staff schools”. Interestingly, the defendant states in paragraph 2(ii) of the amended statement of defence that, “the said teachers and nonteaching staff are not employed in the university system and are therefore not university’s mainstream staff cadre”.    

 

86.             Beyond these averments by the parties in their pleadings, there are exhibits C2 (1 to 41) which are numerous copies of letters of offer of employment issued by the defendant to some of the 1st set of claimants who were variously appointed to positions such as masters, teacher aids etc. Noticeably engraved in these letters is the statement that says:

 

“The appointment is subject to the regulations of Abia State University Edict, and the statutes and any other amendments made therein and to the regulations governing the conditions of service of senior staff made by council from time to time. A copy of the current regulations (referred to in the letter as “the regulations”), will be made available to you on demand.”

 

87.              These letters were evidently signed by the registrars, deputy registrars (personnel) and other senior administrative officers of the defendant’s varsity. There are also exhibits C3 (a) to (g) which are copies of letters of confirmation of appointment again issued by the defendant to some of this 1st set of claimants. The claimants equally aver that they are members of the 2nd set of claimants’ unions even though the defendant finds it difficult to accept this fact. The fact that they are union members of the 2nd set of claimants remains uncontroverted especially as the said unions joined as parties in this suit. This is more so because CW1 stated under cross examination on 16/10/2020 that he is the Vice Chairman of SSANU (the 1st listed union of the 2nd set of claimants).

 

88.             I diligently scrutinized the exhibits above mentioned as well as considered the averments made in respect thereto as to who these claimants are and giving the concept of what is more probably true than not, this court reasonably accepts that the claimants have sufficiently established that they were all individually employed by the defendant’s varsity at various times, as employees of the staff schools which are under the control and management of the defendant varsity. The defendant has  not been able to disprove this fact and also the fact that they are all members of the 2nd set of claimants’ unions as claimed by them in their sworn depositions and oral testimony in chief in open court. In therefore resolving the question of their locus standi to institute this action as raised by the learned counsel to the defendant, I am inclined to disbelieve the defendant’s counsel for stating that these claimants do not have the requisite consent of the other employees of the staff schools to institute this action. It must be borne in mind that the reliefs sought are mainly declaratory in nature which entails that all employees whose dispositions are akin to the claimants’, may, if these claimants succeed in being granted the reliefs sought, subsequently sue for the applicability of the orders to their individual contracts of employments. It is for this reasonable thought that the defendant’s objection challenging these claimant’s locus standi, shall be overruled in favour of the claimants. I therefore find that the claimants are who they say they are, and I so hold.

 

89.             Meanwhile, the defendant described the staff schools as welfare products in paragraph 4 (11) of its amended statement of defence. The claimants’ case is that the 1st set of claimants are one and the same as all other staff of the defendant’s varsity. The defendant animadverts in opposition to contend that the 1st set of claimants were not employed into the varsity’s system and are therefore not recognized in the mainstream cadre presumably for them to continue to enjoy the largesse CONTISS/CONUNAS scale provides to the varsity staff.

 

90.             It is manifestly clear on the pages of exhibits C2 (1 to 41) that the applicable salary scale at the point of the claimants’ employment was EUSS and USS, while latter appointment letters reveal the applicable scale to be HATISS. Buttressing on the import to the 1st set of claimants, the CW1 stated as follows under cross examination:

 

Quest: Previously your salaries were on EUSS and USS scales?

Ans:    It was initially USS, then in 1992, it was changed to EUSS until in 2001 when it was changed to HATISS. In 2007, It changed to CONTISS, and in 2009 it was changed to CONUSSS and CONUNASS. The members of the staff schools and workers in the university have been enjoying all these all those years until on December 31st 2014, when the university stopped members of the staff schools from enjoying this salary scale and decided to transfer them to a salary structure which is alien to the university called TSS.

91.             The same position is deduced from the averment of the defendant in paragraph 4 (i) of its amended statement of defence. I have also found as a settled fact that the prevailing salary scale of EUSS and USS at the time most of the 1st set of claimants were employed, long ceased to be operable even before the time of filing this suit. These claimants seek by this suit, to challenge the transfer of the applicable salary scheme or scale applicable to the 1st set of claimants from the university elongated salary structure otherwise called consolidated university senior staff salary (CONUSSS)/Consolidated University Non-Academic Salary (CONUNAS), to the Teachers’ Salary Scale (TSS).

 

92.             Albeit the 1st set of claimants were not employed by the defendant on the salary structures provided by CONUSSS or CONUNAS, hence there is no such terminology found in all of exhibits C2 (1 to 41) or exhibits C3 (a – g). What it automatically implies is that the salary structures for the 1st set of claimants had always been flexible and did in fact change from time to time dependent on what the defendant paid all its employees both at the varsity and in the staff schools.

 

93.             The defendant’s counsel argued cheek in tongue that these claimants did not complain all that while their salary structures changed from EUS or USS to HATISS and CONTISS etc. but now complain about the likelihood of the alteration of their contractual terms once the salary scheme is changed to TSS. I see this line of argument as unimpressive especially as it has been established by this judgment that in virtue of the conditions of service of the defendant’s staff (exhibit C4), the salary scheme or scale applicable to its employees can change as the governing council may approve from time to time. 

 

94.             I have also found as a fact that any extant salary structure applicable or operable at any given time, applied generally both to the defendant’s varsity staff and the employees at the staff schools, uniformly.  Thus, the salary structure changed for all and sundry (including the 1st set of claimants), when it was converted from EUSS to USS, and to HATISS, to CONTISS, and to CONUSSS/CONUNAS. The defendant however averred in paragraph 2 (9) of its statement of defence that the 1st set of claimants are not entitled to the salary structure provided under CONUSSS and CONUNAS but failed to state the applicable salary scale for these 1st set of claimants immediately before the introduction of TSS.

 

95.             It is interesting to point out that throughout the over 8 years this case remained in this court, the said TSS structure was never produced even for once for the purpose of the court’s perusal in order to even determine, as the defendant’s counsel puts it, whether it provides more advantage to the claimants whom he claims have never reviewed it to know what it contains. Having failed to produce as evidence (at least not before me), it will be difficult to confirm or refute any statement made in that regard as same will be purely speculative and inadmissible in law. The onus is on the party who asserts a fact, to prove such fact exists.

 

96.             Learned counsel for the defendant again submitted that these 1st set of claimants cannot be placed on the same salary structure as professors and other academic lecturers in the mainstream of the university. No matter how palatable this submission might seem, it would not find strong footing in the face of incontrovertible facts and evidence that the employments of those same professors and lecturers are subject to the same conditions of service and the Abia State University Edict (now law), which is akin to the 1st set of claimants. Until 2013, the same salary scheme was utilized to determine the salaries of all of them, yet the heavens did not fall then. It is of common knowledge that lecturers or professors are not the only employees in a university. There are other nonteaching staff of different cadres, administrative, technical, etc. Of course, the court is not implying that a janitor should receive equal pay as a professor, but his salary should be based on the same structure which was used in determining how much each should be entitled to as graduated within.

 

97.             I have no hesitation in coming to the unfettered conclusion that the terminology, “mainstream” as employed by the defendant is useful only because it facilitates the convenience of discriminatingly separating the employees of the staff schools from the employees who serve the defendant in the varsity. Such term was never employed in any of the instruments creating the defendant as such it is declared to be discriminatory and repressive in the context it is employed here, to sidetrack the claimants from enjoying any benefits any applicable unified salary structures might provide.

 

98.             Besides, there is no scintilla of evidence actually differentiating the employment of these 1st set of claimants from the rest of the defendant’s staff. It would have been useful if the defendant produced an employment letter of any staff from the said “mainstream” university system to show the line of dichotomy between that and the claimants’. It is even interesting that some of these claimants are members of the 2nd set claimant unions since the late 80’s.  

 

99.             I am not unmindful of exhibit D1, (copy of vacancy advert). This evidence contains the heading: IMO STATE UNIVERSITY, PMB 2000, OKIGWE NIGERIA, which heading is immediately followed by the following words: “STAFF VACANCIES: IMO STATE UNIVERSITY INTERNATIONAL SCHOOL, UTURU”. The defendant alluded that this is evidence that the 1st set of claimants were not employed as “mainstream” staff of the defendant’s varsity. This position is misconceived with all due respect. One may ask, who employed the 1st set of claimants? Of course, the defendant did. There is absolutely no evidence to show that the defendant is a manpower company, or an institution registered with the object of employing persons with different skills and qualifications for onward deployment to other institutions and organizations that might need such personnel. I only made this analogy to re-emphasize that I have absolutely no doubt in my mind that 1st set of claimants are employees of the defendant. I so declare.

 

100.         The claimants had stated consistently that they were employed and “deployed” to serve as employees in the staff schools by the defendant varsity. A “deployment” has been described by the Court of Appeal in ALEXANDER OKOH AND ORS V. UNIVERSITY OF LAGOS (2010) JELR 47534 CA per Rita N. Pemu, JCA in this light: “The nature of their jobs as supernumerary police officers vis-a-vis the respondents, was a "deployment" or "posting" that was needed to fill a particular vacuum but does not connote an employment of a permanent nature that attracts pension and gratuity”.

 

101.         In that case, there was no justification for the appellants to believe their postings to the respondent’s varsity, was an employment which attracted gratuity and pension as they were merely “deployed” by the Police to provide security services in the university. The point made is that even where an employee establishes that he was deployed to serve in a particular place to work, that does not automatically translate to an employment with or by the person he is deployed to serve unless there is evidence of a contract of employment between them. In the instant case, the 1st set of claimants satisfactorily established how they were employed for the purpose of serving in the staff schools by the defendant varsity which this court believes to be true.

 

102.         The governing council of the defendant set up a staff audit committee pursuant to the extra-ordinary meeting in ABSU. Exhibit C7 was purportedly produced by the said committee, and on page 6 of the report, paragraph ‘f’ recommends that the salaries of the employees of the international secondary school, the university’s staff and the university’s staff primary schools should be based on the income generated by each of them so as not to constitute a financial drain on the university’s already poor funds. I see the last page (page 7) where the names of the committee members are set out as follows: Dr. David Chikezie (ASUU, ABSU), Mr. Frank Nwosu (SSANU, ABSU), Chief Chuku Nwachuku, Lady Bridget Nwankwo, Prof S.E Ananaba, and Mrs. Victoria O. Chigbu.

 

103.         I found that the said report admitted as exhibit C7, is signed by Dr. David  Chikezie alone. Exhibit C8 meanwhile, is a letter by Mr. Frank Nwosu to the Pro-Chancellor/chairman of council of the defendant, where he stated reasons for his refusal to sign exhibit C7. Paragraph 3 of exhibit C8 reads:

 

At the committee’s meeting on 8th June 2012, there was disagreement on that recommendation. I was surprised to notice this morning that it was included as part of the committee’s recommendation”                                                        

104.         It should be noted that on 1/12/2021, DW1 stated under cross examination that the payment of the university staff is not based on the funds generated by the university (the defendant), but from the State Government as subventions. DW1 also stated that the TSS is merely a proposal which is yet to be implemented.

 

105.         Curiously and as already noted previously, the said TSS salary scale, which is at the heart of this suit, was not produced by the defendant even when by the nature of this suit it ought to have been, being a relevant document. This was not done despite this court’s order made on 10/10/2020 directing the defendant particularly, to produce same before this court. It must be presumed that the defendant is adamant and would not produce same since it will not be favourable to its case. The defendant (through the DW1), however maintained that the 1st set of claimants are members of the umbrella Nigerian Union of Teachers (NUT), and not members of the 2nd set of claimants unions. This piece of testimony is nothing short of untenable in the face of other evidence before this court. Indeed, the defendant wants this court to accept that the claimants are NUT members, whose employments are subject to the Abia State University Act and Regulations Governing Conditions of Service of Senior Staff of Abia State University. That is a ludicrous supposition as the defendant seems only to be clutching on straws given this line of defence.

 

106.         Flowing from the decision in MOGAJI V. ODOFIN & ORS. (1978) 4 SC 91AT 93 SC, this court placed the evidence of both parties on an imaginary scale and finds it more probable and reasonable to believe the claimants’ case. In virtue of my findings in this judgment above, I have no doubt that the TSS salary scale to which these 1st set of claimants are intended to be subjected to by the defendant, is in violation of paragraph 3.1 of the regulations governing the conditions of service of senior staff of the defendant in that the said TSS is neither an existing salary structure in the defendant’s institution or one which might likely advance their overall welfare in line with international best practices or labour standards on collective bargaining.

 

107.         Assuming but in no way conceding that the said TSS salary scale is an approved instrument in the defendant institution, the sectional, discriminatory and segregating application of same to the 1st set of claimants alone, offends all sense of justice and equity. Justice would not sleep whilst the claimants, who are bona fide employees of the defendant unlike every other staff of the varsity, suffer because of an employment policy that is discriminatory in nature. Accordingly, the sole issue for determination is this judgment is ultimately resolved in favour of the claimants and against the defendant, and I so hold.

 

108.         In all, it is worthy of mention that the claimants’ suit succeeds and the declaratory reliefs specifically I, II and II, are hereby granted in their entirety.

 

109.         The sum of N3,000,000.00 is awarded to the claimants as punitive cost against the defendant payable within 30 days from this judgment which in default of payment shall attract 10% interest per annum until fully liquidated.

 

110.         The claimants’ counsel’s application for a consequential order to pay the claimants all outstanding arrears of salaries and other entitlements which accrued throughout the years of privation whilst this suit was pending, cannot be granted without special proof by way of particulars of those claims. His application is therefore denied.

 

111.         Judgment is entered accordingly.

 

 

DELIVERED IN OWERRI THIS 19TH DAY OF MAY 2022.

 

 

Mr. Justice I.S. Galadima,

Judge.

 

 

 

Public access to NICN decisions:

Judgments and reasons for the judgments are published, in full, online at https://nicnadr.gov.ng. NICN decisions are immediately available to the general public shortly after a copy each has been sent to the claimant(s) and respondent(s) in a case.