IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

HOLDEN AT MAKURDI

SUIT NO NICN/MKD/18/2020

BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN

 DATE:2nd May, 2023.

 

BETWEEN

KWEN-ORNGU EUNICE                                                              CLAIMANT

          

AND

1. MAKURDI LOCAL GOVERNMENT

2. LOCAL GOVERNMENT SERVICE COMMISSION.                                                                                

3. BUREAU FOR LOCAL GOVT & CHIEFTANCY AFFAIRS

4. BENUE STATE GOVERNMENT                                                        DEFENDANTS

5. ATTORNEY GENERAL & COMM. FOR JUSTICE BENUE

     STATE                                                                                
                                                                                                            

JUDGMENT.

The claimant in this action commenced this suit by an originating summons dated and filed on the 4/2/2020. In the originating summons the claimant seeks the determination of the following questions:

1). Whether the neglect, refusal and or failure by the defendants to pay the claimant’s salaries, emoluments and other allowances as staff and or employee of the 1st defendant for work done without any formal or official notification of the reasons for such neglect, refusal or failure, since January, 2018 does not amount to a breach of the defendant’s contract of employment with the Claimant?

2.) Whether the claimant’s appointment in the service of the 1st defendant as evidenced by appointment letter issued since 20th October, 2011 and the subsequent confirmation on the 5th November, 2014 respectively, the claimant who has since then been performing her duties diligently, satisfactorily without any query, warning, suspension or order of termination of appointment or retirement been communicated to her is presently not a staff of the 1st defendant?

3). Whether it does not amount to an infringement of the claimant’s rights under
the contract of employment and also breach of the rules of natural justice for the defendants to refuse to pay the claimant her salaries, emolument and allowances or other benefits?

Upon the determination of the above questions the claimant seeks the following reliefs:

1.     A DECLARATION that the claimant is still a bona fide staff of the 1st Defendant having been employed in the year 2011 vide appointment letter No. KLG/S/EST /12/VOL.V/953, dated the 20th October, 2011 and subsequently confirmed in 2014 by virtue of a letter with No. M/S/LGS/26.T/VOL.H, dated 5th November, 2014.

2.     A DECLARATION that the claimant’s contract of employment With Katsina-Ala Local Government, later inter-service transfer to the 1st Defendant is therefore constitutional, legal, valid and subsisting.

3.     A DECLARATION that the continuous withholding of and refusal to pay the claimant’s salaries, emoluments and allowances by the defendants is unlawful, unconstitutional and illegal.

4.     A DECLARATION that the non-payment of salaries, emoluments and allowances from January 2018 till date and the exclusion/removal of claimant’s name on the payment vouchers/pay roll of the 1st defendant without claimant’s appointment being legally terminated is unconstitutional, unlawful, illegal, null, void and of no effect whatsoever.

5.     A DECLARATION that the claimant is entitled to her salaries, emoluments, allowances and all other fringe benefits from January 2011 to the date of for retirement

6.     AN ORDER directing the defendants to restore the name of the claimant on the payment voucher/pay roll of the 1st defendant forthwith.

7.     AN ORDER directing the defendants to pay the claimant her unpaid monthly salaries, emoluments and allowances from January, 2018 to December, 2019 to the sum of N705, 688.296 (Seven Hundred and Five Thousand, Six Hundred and Eighty Eight thousand Two Hundred and Ninty-six naira).

8.     AN ORDER directing the defendants to continue paying the claimant her monthly salaries, emoluments and allowances to the tune of N29,403.679 (Twenty-Nine Thousand, Four Hundred and Three Naira, Six Hundred and Seventy-Nine Kobo) per month or such higher sum of money as the claimant may be entitled to, from January, 2020 till the claimant retires from service.

9.     AN ORDER of perpetual injunction restraining the defendants jointly and severally, either by themselves, privies, agents and whosoever that takes directives from them from tempering with the name of the claimant on the payment vouchers/pay roll until claimant is due for retirement.

10. AN ORDER awarding general and aggravated damages of N 10,000,000 (Ten
      Million Naira) against the defendants jointly and severally and in favour of
      the claimant.

11. Costs of this suit at N300,000 (Three Hundred Thousand Naira) only.

The originating summons is supported by a 25 paragraphs affidavit deposed to by the claimant. Attached to the affidavit are Exhibits A to K. Also in support of the originating summons is the written address of the claimant counsel. Upon being served with the originating summons, the 2nd to 5th defendant filed a joint counter affidavit of 17 paragraphs along with a written address of the defendant counsel on the 2/3/2020. The claimant also filed a further and better affidavit with a written address on the 5/8/2020. The originating summons was heard on the 31/1/2023.

In the claimants address in support of the originating summons, the claimant counsel formulated one issue for determination to wit: ‘Whether the claimant is entitled to the relief sought’. The defendant counsel in his written address also adopted the above issue as his issue for determination. However the defendant counsel decided to embark on a voyage of discovery in an attempt to establish that the suit of the claimant does not disclose a cause of action against the 2nd to 5th defendant on record. I have carefully read the argument of the defendant counsel as contained in paragraph 3:01 to 3:13. I think the argument shows a lack of understanding of the manner in which local government administration is carried out. For the purpose of clarity, since the advent of the State/ Local Government Joint Account, no local government including the 1st defendant is financially independent to employ and pay salaries of its staffers. Local government staffers are employed and their salaries are paid by the state government in this case the 4th defendant. The 4th defendant uses the 2nd and 3rd defendant as the clearing house for the computation and payment of the salaries of the staffs of the 1st defendant. The above provision finds practice under the Local Government Law 2007 of Benue State. Under the law the power to employ local government staff is vested in the 2nd defendant. That is why section 64(2) of the Local Government Law, 2007 gives the commission the powers to delegate to the Local Government the duty of employing, dismissing and or exercising disciplinary measures over persons holding offices on salary Grade Level 01-06. For the avoidance of doubt, the said section 64(2) provide thus:

(2) The Commission may delegate powers to the local Governments to employ, dismiss, and exercise disciplinary control over persons holding offices on salary grade Lever 01-06,

The above provision not only makes the 2nd defendant a necessary party to any action involving the management of the affairs of the 1st defendant and indeed the 4th defendant whom supervises the 2nd and 3rd defendants. The Supreme Court in the case of Global West Vessel Specialist (Nig) Ltd V. Nigeria NLG Ltd. & Anor (2017) LPELR·4198 (SC) laid down a criteria in determining who a necessary party to a litigation is when it stated:

It has long been held that proper parties are those who though not interested in the Plaintiff’s claim, are made parties for some good reasons, for example, in an action instituted to rescind a contract, any person who was active or concurring in the matters which gave the Plaintiff the right to rescind, is a proper party to the action. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceeding could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the Plaintiff.

The argument that there is no privity of contract between the claimant and the 2nd to the 5th defendant is an academic argument which is of no practical relevance as far as live issues concerning the employment and payment of the claimant salaries is concerned in this action. It is the findings of this court that this matter cannot be fairly determined without joining the 2nd to 5th defendant on record. They are necessary parties to this action. For this reason this court would discountenance the argument of the defence counsel on this issue.

The claimant has raised 3 questions for resolution in this originating summons which has already been reproduced earlier in this judgment. This court would consider the 3 questions together. A community reading of the 3 question submitted for determination reveals that the claimant is calling on this court to determine her employment status with the 1st defendant having been employed on the 20/10/2011 and confirmed on the 5/11/2014. Also whether the defendants can stop the payment of her salaries and emolument since 2018 without any justification in breach of the contract of employment.

From the affidavit in support of this originating summons, the claimant was employed as a Legal Assistant on grade level 06/1 with effect from 20/10/2011 as evidenced in Exhibit A. Through a letter annexed as Exhibit B, Katsina-Ala LGC wrote to the 1st defendant requesting for inter local government transfer. The 1st defendant granted the request for the transfer in Exhibit C, following which the claimant was released by Katsina-Ala Local Government on inter- service transfer to the 1st defendant (Makurdi Local Government Council) as evidenced by Exhibit D on the 12/3/2012. The 1st defendant  Makurdi Local Government confirmed the claimant’s appointment as Legal Assistant on grade level 06 with effect from 1/11/2013. By an internal Memo of Staff posting the claimant was posted as Legal Assistant to the 1st defendant legal office as shown on Exhibit G. The employment information attached as Exhibit J, clearly shows that the retirement status of the claimant is ‘active’. Also the retirement of the claimant is stated to be 23/10/2044. These pieces of evidence were never contradicted by the defendants in their counter affidavit. The counter affidavit in as much as it tries to deny the existence of a contractual relationship between the claimant and the 2nd to 5th defendant is not and cannot constitute a valid defence to the action of the claimant in this originating summons. From the evidence before this court I cannot find where the claimant was queried, warned, suspended or terminated of his appointment. It is the finding of this court that the claimant employment with the 1st defendant as supervised by the 2nd, 3rd, and 4th defendants is still valid and subsisting. The 1st defendant is therefore negligent when they failed to continue to pay the claimant salary upon her being absorbed by them following the confirmation of the claimant as inter local government transfer staff in Exhibit F.

The claimant in paragraph 12 of the affidavit in support of this originating summons stated that the last time he was paid his salary was in November, 2017. That the payment was table payment. That from January 2018 she has not been paid her salary. She stated further that her monthly salary was N29,403.679.00k. That for no reason her name was dropped from the payment vouchers. I have examined Exhibit H, the Eco-bank salary account No 4702023618 of the claimant. The figure that consistently appear as her net salary is N29,018.67k. This court would adopt that figure as the take home salary of the claimant when her salary was paid before payment of the salary was suspended. The claimant claims salary from January 2018. The claimant should be allowed to take his salaries up to the April 2023. This would make a total of 64 months. When the net salary of N29,018.67k  is multiplies by 64 months, the claimant is entitled to the sum of N1,857,194.88k. This is the sum the 1st to 4th defendant is supposed to pay to the claimant as backlog of his unpaid salaries wrongfully withheld by the defendants.

On the whole I find that this originating summons succeeds. The reliefs claimed in this originating summons succeeds in the following terms;

1.     A DECLARATION is made that the claimant is still a bona fide staff of the 1st Defendant having been employed in the year 2011 vide appointment letter No. KLG/S/EST /12/VOL.V /953, dated the 20th October, 2011 and subsequently confirmed in 2014 by virtue of a letter with No. M/S/LGS/26.T/VOL.H, dated 5th November, 2014.

2.     A DECLARATION is made that the claimant’s contract of employment with Katsina-Ala Local Government, later inter-service transfer to the 1st defendant is therefore constitutional, legal, valid and subsisting.

3.     A DECLARATION is made that the continuous withholding of and refusal to pay the claimant’s salaries, emoluments and allowances by the defendants is unlawful, unconstitutional and illegal.

4.     A DECLARATION that the non-payment of salaries, emoluments and allowances from January 2018 till date and the exclusion/removal of claimant’s name on the payment vouchers/pay roll of the 1st defendant without claimant’s appointment being legally terminated is unconstitutional, unlawful, illegal, null, void and of no effect whatsoever.

5.     A DECLARATION is made that the claimant is entitled to her salaries, emoluments, allowances and all other fringe benefits from January 2018 till his date of retirement

6.     AN ORDER is hereby made directing the defendants to restore the name of the claimant on the payment voucher/pay roll of the 1st defendant forthwith.

7.     AN ORDER directing the defendants to pay the claimant her unpaid monthly salaries, emoluments and allowances from January, 2018 to April 2023 in the sum of  N1,857,194.88k (One million eight hundred and fifty seven thousand naira one hundred and ninety four naira and eighty eight kobo)

8.     AN ORDER is hereby made directing the defendants to continue paying the claimant her monthly salaries, emoluments and allowances to the tune of 29,018.67k  per month or such higher sum of money as the claimant may be entitled to, from May 2023 till the claimant retires from service.

9.     AN ORDER of perpetual injunction restraining the defendants jointly and severally, either by themselves, privies, agents and whosoever that takes directives from them from tempering with the name of the claimant on the payment vouchers/pay roll until claimant is due for retirement subject however to any disciplinary measure that may be taken against the claimant while still in employment

10.    Relief No 10 is refused.  

11.   Costs of this suit, is assessed as N 100,000 (One hundred thousand naira) only.

The sum hereby awarded shall be paid in 2 instalment the first instalment of N1,000,000 shall be paid within 60 days from the date of this  judgment.

Judgment is hereby entered.

 

----------------------------------------------------

Hon. Justice (Dr.) I. J. Essien

(Presiding Judge)

 

 REPRESENTATION:

 Chief F. A. Nomor Esq.with G. A. Iorvenda Esq. S. D. Kwen-Orngu Esq. and H. N. Igbalumun Esq. for the claimants.

A. D. Alagu Esq.  for the 2nd to 5th  defendants.