IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT-HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT-HARCOURT
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE (FCIArb)
Date: October 18, 2021 Suit No: NICN/PHC/79/2018
Between:
1. Tekena Obrabiel Lawson
2. Felix Ejims Otto
3. Iteke Peri Thomas ------ 1st Set of Claimants
(For themselves and representing 92 staff of
Rivers State Sustainable Development Agency)
4. Amadi Godwin Ejiogu
(For himself and representing 54 staff of -------- 2nd Set of Claimants
Rivers State Sustainable Development
Agency)
And
1. The Attorney-General and
Commissioner for Justice, Rivers State ------- Defendants
2. Rivers State Sustainable Development
Agency
REPRESENTATION
Isah Seidu for the Claimants.
A. Sibi, Chief State Counsel, Rivers State Ministry of Justice for the Defendants.
COURT’S JUDGMENT
1. This is a transferred case from the Rivers High Court of Justice and by its Amended Statement of Facts filed on October 23, 2019 at pages 1434 -1437 of the record as ordered by this Court, the claimants are seeking for the following reliefs against the defendants jointly and severally:
(a) A Declaration that the Claimants (Staff of Rivers State Sustainable Development Agency) an agency that came into existence by the laws duly enacted by the Rivers State House of Assembly are Civil Servants in the employment of the Rivers State Government and their employment can only be determined in line with the Civil Service Rules and by no other means, that is, having attained the statutory retirement age of 65 years and/or having worked in the Civil Service of Rivers State Government for a continuous period of 35 years whichever is earlier in time.
(b) A declaration that the Claimants are entitled to their salaries, wages, pension, gratuity and emoluments from February 2015 till June 2018 and same still running until the determination of their respective employments in line with the Civil Service Rules.
(c) A declaration that it is tantamount to unfair labour practice for the Respondents to have refused, failed and/or neglected in paying the Claimants their accrued salaries, wages, emoluments for work done and/or even when their employment with the Rivers State Government still subsist.
(d) An Order of mandatory injunction restraining the Defendants and/or whosoever from further intimidating, illegally tempering with the employment of the Claimants until same is determined in line with the Civil Service Rules and no other means.
(e) An Order of mandatory injunction compelling the Defendants to pay forthwith to the Claimants their salaries, wages and emoluments due and still running from February 2015 till June 2018 and same still running.
(f) An Order of mandatory injunction compelling the Defendants to remit to the Claimants accrued pension and gratuity to their respective PFA’s.
(g) N500,000,000.00 (Five Hundred Million) Naira only being compensation for unfair labour practice by the Rivers State Government against the Claimants.
Other initiating processes were filed by the claimants with their complaint in line with the Rules of this Court. Upon receipt of the claimants’ processes, the defendants entered appearance through their counsel and filed their defence processes in compliance with the Rules of this Court.
2. THE CASE OF THE CLAIMANT AS PLEADED
The case of the Claimants as pleaded is that they are staff of the 2nd Defendants (Rivers State Sustainable Development Agency), which was created by the laws of the Rivers State House of Assembly and under the direct control of the Rivers State Government). They further aver that they have the consent, mandate and approval of other Claimants to represent them in this suit. The Claimants aver that by virtue of the relevant Constitutional and statutory provisions, their employment are governed by the Civil Service Rules as their employment is with statutory flavour. They further aver that their employment can only be determined in line with the Civil Service Rules either by having attained the statutory retirement age of 65 years or having worked for a period of 35 Years, whichever is earlier in time. They went on to state that it is tantamount to unfair labour practice for the Defendants to refuse, neglect or failed to pay their accrued salaries, wages and emoluments from February 2015 till date despite the status of their employment.
3. During hearing of the case, the 1st Claimant gave evidence as CW1, he adopted his written statement on oath (at page 1193 of the record) as well as identified 4 documents he is placing reliance on. The documents were marked as Exhibits C1-C4 at pages 1197 -1198, 7-9, 11 - 37 & 763 of the record.
Under Cross Examination, CW.1 maintained his earlier testimony and confirmed that it is the Board that is in charge of the 2nd Defendant. He confirmed that his employment has not been formally terminated but that on 20/01/17, he was served with a suspension letter. He further testified that he was contacted to impound a vehicle and represent the 2nd Defendant in Court but he was not remunerated for these services. He lastly confirmed that he took part in the last screening exercise for all civil servants in Rivers State.
4. THE DEFENDANTS’ CASE AS PLEADED
The case of the Defendants on the other hand is that 2nd Defendant is a creation of law and enjoys the status of a distinct and separate cooperate personality from the Rivers State Government and or the Rivers State Civil service. Rather it has and exercises direct authority and control over its activities via the "Executive Board", which includes the employment of its staff in accordance with the terms contained in their contract of employment and not in accordance with Rivers State Civil Service Rules. They averred again that in 2015, following the dwindling economic of the Rivers State and the cut of Federal allocation, all Government agencies needed to downsize to match up with the reality of the times and so, instead of terminating the employments of its staff the Claimants, the 2nd Defendant suspended them with a view to sourcing mitigating measures- particularly to ensure that the 2nd Defendant’s employees (the Claimants) return to work from suspension.
5. The defendants aver further that the suspension and non-payment of salaries of the claimant do not give rise to an action for pension as they are administrative matters and will be treated as such. They continued that in order to further establish that their employment has not been terminated, the Rivers State Government in her biometric exercise captured the Claimants’ on suspension. It is further averred by the Defendants that the Claimants’ contract are distinct and personal to each of them and that they cannot come under Class action to seek redress. Lastly, the Defendants aver that the case of the Claimants is statute barred.
6. During hearing, Rita Tamuno, a substituted witness of the Defendants testified as DW.1. She adopted her written statement on oath and relied on some documents jointly marked as Exhibit D1 (see pages 1329 to 1418 of the record). Under Cross examination, DW1 stated that she is a public servant and an administrative staff of the 2nd Defendant. She confirmed that Staff of the 2nd Defendant were also captured in the biometric capturing done by Rivers State Government in January 2017. She stated further that they were last paid salary in 2016. She stated that she was absent at the meeting and does not know if the content of Exhibit C.1 was taken in a staff meeting. She confirmed that it is true that the staff on suspension and those still working have not been paid salary since 2016.
The Court subsequently directed counsel to the parties to file their respective final written addresses in line with the Rules of this Court and they complied with the said direction.
7. CLAIMANT’S WRITTEN ARGUMENTS
In the Claimants’ final written address at page 1452 of the record, their counsel raised these four issues for the determination of the Court:
i. Whether the Claimants on record are not entitled to the payment of their salaries and emolument, their employment not having been determined and/or terminated by the Defendants on record?
ii. Whether both Defendants are employers of the Claimants?
iii. Whether the Claimants’ employment is one with statutory flavour?
iv. Whether the Claimants are entitled to the reliefs sought in this suit?
8. Arguing issue one of whether the Claimants are not entitled to the payment of their salaries and emoluments, their employment not having been determined by the Defendants; counsel submitted that the pendency of the Claimants’ employment is not in dispute as all parties have manifestly agreed and stated that their employment was not terminated as substantiated in paragraphs 9 of the Statement of Facts filed on 27th November, 2018 and paragraph 9 of the witness Statement on oath accompanying same as well as paragraphs 9 and 10 of the Defendants’ joint Statement of Defence filed on 26th February, 2019 and paragraphs 9 (e) – (i) of the witness Statement on Oath deposed to on 4th February, 2020.
Counsel therefore submitted that the Claimants are entitled to their salaries and all other emoluments as long as their employment has not been terminated by the Defendants. He relied on the case of N.B.C. Plc. v. Edward [2015] 2 NWLR (Pt.1443) page 201 at pages 235 paragraphs F-G where the court held that: “An employee whose employment has not been terminated is entitled to his salary and emoluments”. He urged the Court to make an Order of Specific performance on the Defendants to pay the accrued salaries and emoluments of the Claimants relying on the Supreme Court decision in Adeoonde v. Eleran [2019] 4 NWLR (Pt.1661) pg. 141 at 161 paragraphs G-H.
9. On Whether both Defendants are Employers of the Claimants;
Counsel submitted that the 2nd Defendant is under the direct control of the 1st Defendant. To him therefore, both are the employers of the Claimants. He cited the case of Animba v. Integrated Corporate Services Ltd & Anor [2015] 57 NLLR (Pt.195) 268 which applied the principle in the case of Onumalobi v. NNPC & Warri Refining & Petro Chemical Company [2004] 1 NLLR (Pt.2) 304 in urging the Court to hold that both Defendants are employers of the Claimants having regards to the pleadings and the content of Exhibit C3, which is the enabling law establishing the 2nd Defendant, particularly to sections 1(b)(v), section 4(2) & 3(v)(4), section 22(1), sections 26(1) & (2), sections 31 and 32 of this statute.
10. On Whether the Claimants’ Employment is one with Statutory Flavour
Counsel to the Claimants submitted that the Claimants are Civil Servants and/or Public Servants in the employment of the Rivers State Government, hence, they are Civil or Public servants and as such, their employment is laced with statutory flavour. He placed reliance on the decision of the Court of Appeal on the definition statutory flavour in Inuwa v. Bayero University, Kano [2018] 13 NWLR (Pt.1637) pg. 545 at 554- 555, paragraphs H-F. The Court of Appeal interpreted section 318 of the Constitution of the Federal Republic of Nigeria when it held inter alia that by the provision of section 18 of the Interpretation Act, “Public Officer” means a member of the Public Service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999 or of the Public Service of a State. The court went on that “Public Service” in section 318 of the Constitution of the FRN, 1999 (as amended) means “Public Service of a State”; the service of the State in any capacity in respect of the government of that state. Counsel further placed reliance on the definition of Public Officer and Public Authority in Section 91 Labour Act Cap L1.
Counsel submitted that the mere fact that an employment can be determined by notice does not mean that it has statutory flavour, referring also to NEPA v. Ango [2015] 59 NLLR (Pt.204) PG. 160 at 208, paragraphs B-D (CA). Therefore, he urged the Court to hold that the Claimants’ employment is laced with statutory flavour.
11. Furthermore, counsel submitted that all the case laws referred to by counsel to the Defendants in their final address are not apposite in the circumstance of this case and urged the Court to discountenance them. He contended that the sole witness of the Defendants, DW1 admitted that she is a public servant in her witness statement on oath and this admission should be construed in favour of the Claimants. He relied on the following authorities on this principle: Omisore & Anor v. Aregbesola & Ors [2015] LPELR-24803 (SC); Eco Int’l Bank Plc V. Nulge, Jalingo Lgc & Anor [2014] LPELR-24171 (CA); Owosho & Ors v. Dada [1984] NSCC 568 cited in Omowood Industries Ltd v. The Registered Trustees of Bible Believers Fellowship Church CA/1/5/2014 & Salami v. Oke [1987] 4 NWLR (Pt.63) page 1 at 3, paragrph E.
12. On whether the Claimants are Entitled to the Reliefs sought
Counsel contended that the Claimants are entitled to Judgment considering the pleadings in this case. He submitted that Suspension is a disciplinary action used to punish wrongful act done. He argued that from the content of Exhibit D1, the suspension letters served on the Claimants; the claimant having done nothing contrary to their terms of employment and so, their suspension should be declared unfair labour practice against the Defendants; relying on the case of Mariam v. University of Ilorin Teaching Hospital Mgt. Board [2013] 35 NLLR (pt.103) pg. 40. @ 127, paragraphs D-G. To counsel, the issues of unlawful suspension and denial of deserved promotion fall squarely within the realm of unfair labour practice, which this Court has power to handle under section 254(C) (1) (f) of the Constitution of the FRN, 1999 (As Amended).
He also relied on the cases of Amadiume v. Ibok [2006] 6 NWLR (Pt.975) I at 182, and University of Calabar v. Esiaga [1997] 4 NWLR (Pt. 502) 719 to further explain the essence and definition of the “Suspension”. He went on to contend that there is nothing on the face of the pleadings or evidence to show that the Claimants had erred or committed any misconduct. Counsel submitted that the Claimants cannot be suspended in law without reasons connected with their capacity or misconduct as required by Article 4 of the International Labour Organization Convention on Termination of Employment 1982 (No.15).
13. Counsel maintained that in an action for specific performance against the Government, it is imperative that the Attorney General (1st Defendant) becomes a party as its power to sue and be sued is what confers capacity on the Government.
14. In addition, counsel argued that where the suspension melted out on an employee is mala fide, unfair, vindictive, a clear case of victimization, it will amount to unfair labour practice on the part of the employer against the employee and as such becomes unlawful. He urged the Court to hold that the suspension of the Claimants via Exhibit D1 is unlawful and prayed the Court to grant the reliefs sought in this suit to the claimants.
15. DEFENDANT’ WRITTEN ARGUMENTS
At page 1476 of the record is the final written address of the defendants, in it their Counsel formulated two issues for determination of the Court this way:
i. Whether from the pleadings and evidence led, the claimants’ employment is regulated by the Civil Service Rules
ii. Whether the claimants have proved their entitlement to the reliefs being sought?
16. Arguing issue one of whether the Claimants’ employment is regulated by the Civil Service Rules, Counsel submits that the Claimants did not throughout the case not even through evidence prove that their employments were indeed governed by the Civil Service Rules as he who asserts must prove, relying on section 131 Evidence Act, 2011. He further argued that the Claimants offers of appointment/employment only state that a notice of 1 month is to be given before termination of employment by either party or one month salary in lieu of notice. He contended that by section1(b) of the enabling law that created the 2nd Defendant, the agency as a body corporate, can sue and be sued and it is also self-accounting amongst others. Counsel maintained that this suit is totally misconceived by the Claimants by considering themselves as Civil Servants when the business of the agency is being governed by the Board and its rules are encapsulated in its Management Handbook. He place reliance on the case of U. B. N. Ltd v. Penny Mart Ltd [1992] 5NWLR (Pt. 22) @ P.237 and Salomon v. Salomon & Co Ltd [1897] AC to resolve the distinction between a shareholder and the corporate entity.
17. He submitted that very recently, the Supreme Court of Nigeria resolved whether the Civil Service Rules regulate conditions of Service of the employees of a company owned by the Government in the Case of Engr. Emmanuel Oghenese Awala v. Nigerian Telecommunications Plc. [2019] 15 NWLR (Pt.1695) @ p. 377 – 378, ratio 1 thus;
“A limited liability company, incorporated under the Companies and Allied Matters Act or any other Law under such company is registered, whether owned by government or by private persons, is governed by its rules and conditions of service and not by the Civil Service Rules. In this case although the respondent was wholly owned by the Federal Government of Nigeria, it was not part of the Civil Service of Nigeria. It is a limited liability company with power to sue and be sued. It has its own sets of conditions of service for its employees. Therefore, any argument that the respondent’s employees, such as the appellant, were civil servants is an attempt to obliterate the corporate identity of the respondent…..” Therefore, Counsel urged the Court to hold that the Claimants’ employment is not regulated by the Civil Service Rules; neither are the claimants Civil Servants under the direct and immediate control of the 1st Defendant.
18. On Whether the Claimants Have Proved Their Entitlements to the Reliefs Being Sought?
Counsel to the Defendants argued that the Claimant did not lead any evidence to substantiate their Claims for non-payment of salaries, wages, pensions and other emoluments to date. He made reference to Exhibit D.1 which is the Temporary Suspension letters of the Claimants. He particularly referred to the wordings of this exhibit stating that the Agency never contemplated payment of salaries during the suspension period until the Agency gets funded. He urged the Court to give the suspension letters (Exhibit D1) its plain and ordinary meaning. To counsel, with effect from January 17, 2017; the suspension of payment of salaries and the physical presence of the Claimants from the Agency is valid until the Government funds the Agency relying on Dickson v. Sylva & Ors [2016] LPELR – 41257(SC). He contended further that in view of the freezing of payments of salaries and suspension of the Claimants, they can only raise the issue of non-payment of salaries and the like when the Agency recalls them to work. As for the claimant’s claims for pension, there is no evidence before the Court that their employment has been determined and urged the Court to so hold.
19. Additionally, the defendant’s counsel submitted on the claimants’ contention of their employment being with statutory flavour and governed by statute, that the claimants’ contracts of employment are neither incorporated in the enabling statute of the 2nd defendant nor governed by the Civil Service Rules of Rivers State but only in the terms of the contracts of employment. Therefore, the Claimants are just bound by the terms of their contracts of employment with the 2nd defendants; relying on Alabi David Uanzekin v. United Bank of Africa Plc. Suit No: NICN/IB/110/2014 Delivered on N 19, 2019 and NEPA v. Adesaji 58 NLLR (Pt. 202) 498. CA. 545 – 546.
20. COURT’S DECISION
I have read through the facts of this case as presented in their pleadings and testimonies, the arguments of counsel to the parties including their cited authorities, both statute and case laws. From all of these, I am of the considered view that the following issues need to be resolved by this Court between the parties:
i. Are both Defendants Employers of the Claimants and are the Claimants’ Employments laced with statutory flavour; thus, regulated by Rivers State Civil Service Rules?
ii. Is the indefinite suspension of the claimants without pay by the defendants in line with the terms and conditions of their employments or it amounts to unfair labour practice? Are the claimants entitled to the sum of N500,000,000.00 for unfair labour practice or their employments are still subsisting?
iii. Are the Claimants entitled to payment of their salaries with effect from February 2017 until their employment is determined? Are they entitled to gratuities and pensions?
21. Are both Defendants Employers of the Claimants?
The Attorney-General and Commissioner for Justice, Rivers State is the 1st defendant while the 2nd defendant is the Rivers State Sustainable Development Agency in this case. On this issue, this Court is required to determine whether the two defendants are jointly the employers of the claimants. Counsel to the claimants answered this question in the affirmative while counsel to the defendants answered the same question in the negative in their final written arguments as summarized above. It is however trite in Labour Jurisprudence that an employer in a contract of service is ascertained from evidence showing who gave the employee his appointment, who pays his salary, who the employee works with/for and who determines/ends or can determine/end his employment.
In section 91 of the Labour Act, an employer is described as “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person and includes the agent, manager or factor of that first-mentioned person and the personal representatives of a deceased employer. Also in the case of Animba v. Integrated Corporate Services Ltd & Anor [2015] 57 NLLR (Pt.195) 268 at 309 paragraphs D-E, this Court states that employment relationship between an employer and employee can be determined from the service agreement between the parties or in the letter of employment issued to the employee.
22. In the instant case, section 1(b) (i & ii) of Exhibit C.3 – the Enabling Law that established the 2nd Defendant states that the 2nd defendant is a body Corporate with perpetual succession and a common seal and that it may sue and be sued in its corporate name. This means prima facie that, even though the Rivers State Government whom the 1st defendant represents and who created the 2nd defendant, this 2nd defendant can face its own legal tussles by itself without involving the Rivers State Government or the 1st defendant. However, if it is found from evidence before the Court that the two defendants participate in the employments, payment of salaries, discipline and determination/disengagement of the claimants; then both defendants will be held to be employers of the claimants, see the case of Animba v. Integrated Corporate Services Ltd & Anor (Supra).
23. From the content of Exhibit C.2, the claimants’ letters of employment and confirmation at page 38 to 763 of the record; the 1st to 6th, 8th, 10th 11th 42nd, 43rd, 54th to 56th ,58th to 63rd ,67th ,72nd to 73rd ,77th to 89th , 100th ,117th and 118th claimants as arranged in Exhibit C.2 were employed by the 2nd defendant, the Rivers State Sustainable Development Agency (RSSDA). Again, although the employment letters of the 9th, 12th to 41st, 44th to 53rd, 57th 64th to 66th, 75th, 76th 93rd to 97th 99th, 101st, 103rd, 106th 110th, 112th to 114th 116, 118th 122nd 124th 126th and 129th claimants are on the Letter Head Papers of Songhai Rivers Development Initiative (SRDI), these letters are signed by officers of the 2nd defendant (RSSDA). In addition, the Employment letter of the 91st claimant on record is on the Letter Head Paper of Workmanship & Technical Training Centre (WTTC); it is signed by an officer of the 2nd defendant (RSSDA). Nevertheless, the Employment letters of the 69th to 71st, 74th, 76th, 90th, 95th, 98th, 102nd, 105th,125th 127th and 128th claimants were issued and signed by Songhai Rivers Development Initiative (SRDI). On the other hand, the employment letters of the 104th 111th and 115th claimants are on the Letter Head Papers of Songhai Rivers Development Initiative (SRDI) but they have no signature pages, and so, their authors are not known; see in particular, pages 370, 387 to 388, 398 to 399 of the record.
24. In the circumstance, I find and hold that the employer of the 69th to 71st, 74th, 76th, 90th, 95th, 98th, 102nd, 105th,125th 127th and 128th claimants, the Songhai Rivers Development Initiative (SRDI) is not a party in this case. In the same vein, I find that the employment letters of the 104th 111th and 115th claimants cannot be verified since they are not authored by anybody. As a result, I find and hold that the claimants’ counsel failed to prove to the satisfaction of this Court who their employer (s) is or are. Consequently, I hold that the 69th to 71st, 74th, 76th, 90th, 95th, 98th, 102nd, 105th,125th 127th together with those of the 128th, 104th 111th and 115th claimants are not employees of any of the two defendants before the Court in this case.
25. Likewise, the claimants’ letters of suspension are jointly marked as Exhibit D.1 in this case; they are at pages 1329 to 1418 of the record. Each of these letters is issued on the Letter Head Paper of the Government of Rivers State of Nigeria and signed by one Lawrence Pepple, Executive Director/CEO RSSDA. For instance, at page 1378 of the record is a copy of the letter of suspension of the 1st claimant, Mr. Tekena Lawson. It is titled: “Temporary Suspension of Employment Due to Prolonged Lack of Funding to the Agency from the Rivers State Government”. The 1st paragraph of this letter states: “Please this is to notify you that as we await the release of funds from the sole Financial of the Agency, the Rivers State Government, from where staff salaries and entitlements are usually paid, Management is hereby constrained to freeze payment and suspend your continued employment with the Agency until the long awaited funds are released to the Agency.”
26. It is my findings from the content of Exhibits C.2 and D.1 that even though the remaining claimants were employed by and work for the 2nd defendant, except the 69th to 71st , 74th , 76th , 90th , 95th , 98th , 102nd , 105th ,125th , 127th and 128th , 104th , 111th and 115th claimants; they were suspended by an Officer of the Rivers State Government whom the 1st defendant represents in this case. Additionally, paragraph 1 of Exhibit D.1 states in part that it is the Rivers State Government that releases fund from where salaries and entitlements of staff of the 2nd defendant (the claimants) are paid. This means that it is the Rivers State Government whom the 1st defendant represents that pays the salaries and emoluments of the claimants. It is also the Rivers State Government that suspended the employment of the claimants in the instant case. Consequently, I find and hold that the 1st and 2nd defendants are joint employers of the remaining claimants in this case because they both participated in employing the said claimants, paying their salaries and emoluments and in suspending the claimants.
27. Are the Claimants’ Employments Laced with Statutory Flavour and Regulated by Rivers State Civil Service Rules?
In paragraphs 3, 4 and 7 of the Statement of Facts and their Written Statement on Oath, it is the case of the claimants that they are staff of the Rivers State Sustainable Development Agency, an Agency created by Law of the Rivers State and that the Agency is under direct control of the Rivers State Government. They argued further that by virtue of relevant Constitutional and statutory provisions, their employments are governed by the State’s Civil Service Rules. To them, their employments are with statutory flavour. Counsel to the claimants referred the Court to some of the provisions of the Enabling Law Establishing the 2nd Defendant, titled: Rivers State Sustainable Development Agency Law (No. 3, 2007) (Exhibit C3), which is at page 12 to 37 of the record; particularly, to sections 1& 2, to Part III 3 and to sections 22 & 26 of Exhibit C3.
28. At paragraph 6.6 of their Final Written Address, counsel to the claimants argued that the Defendants’ sole witness, (a staff of the 2nd Defendant) states in her Witness Statement on Oath deposed to on February 4, 2020 that she is a Public Servant. He maintained that, fact admitted need no further proof, see page 1460 of the record.
29. It is trite that the mere fact that an employer is a creation of statute, a statutory corporation or that government has shares in it does not elevate the employment of its employee to one with statutory flavour. The contractual relationship of master and servant otherwise known as Private Employment is said to have statutory flavour if such employment relationship was created and governed by statute or regulations derived from a statute, so that valid determination of the appointment is predicated on satisfying such statutory provisions, see Iyase v. UBTH Management Board [1999] LPELR-6026(CA) and NEPA v. Adesaaji [2015] 58 NLLR (Pt. 202)498 CA 545-546, paragraphs B-C; Adekeye JCA.
30. After carefully scrutinizing the content of the Rivers State Development Agency Law, Exhibit C.3 I find no provision in it that states that the employment of the claimants are with statutory flavour and the case of Inuwa v. Bayero University [2018] 13 NWLR (Pt.1637) 545 on the construction of section 318 relied on by the claimants is not instructive on the fact in issue here and I so find. For instance, section 20 of Exhibit 3 allows the Executive Board of the 2nd defendant to employ other staff of the Agency directly or on secondment from any Civil or Public Sector or any other body in the State. There is no evidence from the claimants stating which of the claimants was seconded from the Civil or Public Sector of Rivers State or any other body in the State. What’s more, this section does not even state that the employment of such staff of the Agency is with statutory flavour neither is it stated in it that such employment will be governed by the Civil or Public Service Rules.
31. Moreover, Exhibit C.2 before the Court is a group of the claimants’ offer of employment and confirmations letters jointly so marked. They are at pages 35 to 763 of the record. For instance, the letter of offer of employment of Atiegoba Alakeidiema Sunday with the 2nd defendant at pages 35 to 37 of the record contains the terms and conditions of the offer. Furthermore, at pages 38 to 41 of the record is the letter of confirmation of employment of Tamunoemi Nnaji Nwachuckwu with the 2nd defendant. This letter states further terms and conditions governing the employment relationship between the parties. Paragraph 4 of this letter of confirmation at page 40 of the record states that the conditions of service and work rules of the Agency will prevail over other terms of offer of the employment.
32. Apart from Exhibit C.2, the claimants have not shown the Court where or how parties agreed that the employments relationship between them will be with statutory flavour or will be govern by the Rules of the Public or Civil Service of Rivers State. In the circumstance, I find that there is no where it is stated in Exhibits C.2 from pages 35 to 763 of the record that the employments of the claimants with the defendants are with statutory flavour. I further hold that the mere fact that the 2nd defendant is a creation of Rivers State Law (Exhibit C.3) does not automatically elevate the employments of the claimants with the Agency to one with statutory flavour. Consequently, I hold that the employments of the claimants with the defendants are not with statutory flavour. I again hold that the employment relationships between the parties are private ones otherwise known as Master and Servant Relationship.
33. On the Documents which Regulate the Employment Relationships of the parties
It is trite that in cases of Private Employment or in Master and Servant Relationship like the one in the instant case, the first hurdle to cross by the court is to examine the terms and conditions of service of the employment so as to determine the contractual relationship between the parties. In doing this, the court is bound to look at the letter (s) of appointment, any service regulations connected with the establishment of the employer (s) and the provisions of any Statute which relates to or regulates the service conditions of the establishment; see Odiase v. Auchi Polytechnic, Auchi [2015] 60 NLLR (Pt. 208)1 CA at 23-24 paragraphs F-A.
34. In the 3rd paragraph of Exhibit C2, a copy of the claimants’ Confirmation letter at page 38, the appointment of the claimants are to be subjected to specific terms and conditions including other terms contained in the 2nd defendant/Agency’s Staff Handbook. In proof of their case against the defendants, the claimants relied on the following documents; Exhibit C1, containing the names and signatures of staff who met on April 20, 2018 see pages 7 to 9 of the record; Exhibit C.2, copies of the Claimants’ Letters of Employment and Confirmation at page 38 to 763 of the record; Exhibits C3, the Enabling Law of the 2nd defendant at pages 11 to 37 of the record and the Constitution of the FRN, 1999 (As Amended) as Exhibit C4. The claimants did not tender in evidence as exhibit any other document particularly the Agency’s Staff Handbook referred to in Exhibit C2. The defendants on the other hand only tendered Exhibit D1 – the letters of suspension of the claimants, see pages 1331 to 1418 of the record.
From the above findings, I hold that the respective right duties and obligations of the parties in this case are as contained in Exhibit C2, the Claimants’ Letters of Offer of Employment and Confirmation at page 38-763, Exhibit C3, the Enabling Law of the 2nd defendant at pages 11 to 37, Exhibit D.1 at pages 1331 to 1418 of the record and Exhibit C4, the Constitution of the FRN, 1999 (As Amended). I further hold that the framed issues in this suit will be decided by the contents of these stated Exhibits and the testimonies of the parties.
35. Do the Terms and Conditions of Employment of the Claimants Allow the Defendants to Suspend their Employments Indefinitely and Without Pay?
Exhibit D1 before the Court is titled: “Temporary Suspension of Employment Due to Prolonged Lack of Funds to the Agency from the Rivers State Government”. The letters are to the effect that the suspensions of the claimants’ employments were with effect from January 17, 2017 and that payment of their salaries will be frozen until funds are released to the agency.
The word "suspension" means to defer, interfere, interrupt, lay aside, temporize or hold in abeyance. It does not mean terminate, extinguish, or bring to an end. See Mobil Producing Nigeria Unlimited v. Effiong [2011] LPELR-CA/C/204/2009 and Esiaga v. University of Calabar [2004] ALL FWLR (Pt. 206) 391. In S.P.D.C. (Nig.) Ltd. v. Emehuru [2007] 5 NWLR (Pt. 1027) 347 at 376 paragraphs C- E (CA) the Court held that "where an employee is placed on suspension, his employment is placed on hold; he lives day by day in anticipation of either being recalled or being laid off. He is not at liberty to utilize his time elsewhere or as he desires until after closing hours”.
36. It is worthy of note that the defendants agreed with the claimants that the appointments of the claimants in this case have not been determined by the defendants but that they were only placed on suspension. In other words, the parties agreed that the employments of the claimants are still subsisting. See paragraphs 6, 7, 8 and 9 of the Statement of Defence at page 1324 of the record and the content of Exhibit D1 relied on by the defendants, which are the Claimants’ letters of suspension.
37. By the terms and conditions governing the employment relationships between the parties as contained in Exhibit C2, the Claimants’ Letters of Offer of Employment and Confirmation and in Exhibit C.3, the Law Establishing the 2nd defendant; there is no provision for suspension at all, not to talk of indefinite suspension of the claimants’ employments without pay, agreed to by the parties in this case and I so find. Consequently, I hold that the defendants do not have power under the parties’ agreement on their employment relationships in the instant case to suspend the employments of the claimants indefinitely and without pay.
38. Are the Claimants entitled to their Salaries from when they were suspended till their employments are determined?
With the content of Exhibit D1, the defendants suspended the Claimants’ employments indefinitely and without pay via the said letters of suspension at pages 1331 to 1418 of the record. See in particular a copy of this letter issued to one of the claimants by name Mrs. Agatha Anuonyeh at page 1331 of the record. The effect of suspension of an employee is well stated in the case of S.P.D.C. (Nig.) Ltd. v. Emehuru (Supra) that "where an employee is placed on suspension, his employment is placed on hold; he lives day by day in anticipation of either being recalled or being laid off. He is not at liberty to utilize his time elsewhere or as he desires until after closing hours ---“. I have held above that there is no provision for either temporary or indefinite suspension of the claimants’ employments without pay in their terms and conditions of employments.
39. In the circumstance, I find and hold that the employments of the claimants are still subsisting and so they are entitled to their salaries with effect from January 17, 2017 when they were suspended because in law, they are still in the employment of the Defendants until these employments are finally put to an end by the defendants. Even though it is stated in part in paragraph 1 of Exhibit D.1 that “--- Management is hereby constrained to freeze payment and suspend your continued employment with the Agency until the long awaited funds are released to the Agency” see for instance page 1331 of the record; I further hold that the defendants do not have any power under their Employment Agreement with the claimants to so freeze payment of the claimants’ salaries and to suspend their employment in such manner.
40. Are the Claimants entitled to Gratuities and Pensions as Claimed?
In their relief five as endorsed on their complaint, the claimants are seeking for an Order of this Court, mandatorily compelling the Defendants to remit their accrued pensions and gratuities to their respective PFAs. For clarity, Courts do not compel employers to pay gratuity of its deserving retired employee to PFA. It is only deducted pensions of such employee that are so ordered in appropriate circumstances. It is glaring from the terms and conditions of the claimants’ employment that Exhibit C.2 provides for payments of gratuity and pension to the claimants. For instance, at pages 50 to 52 of the record is the letter of confirmation of employment of one of the claimants by name Mr. Oyeawe Reuben. Paragraph 10 of this letter at page 51 of the record is on Staff Gratuity/Pension and it provides that the claimant will be entitled to participate in the contributory staff gratuity/Pension Scheme. In a Pamphlet released in May 2020 by the National Pension Commission 3rd Edition, titled: “Frequently Asked Question and Answers on Contributory Pension in Nigeria” Part 1 paragraph 1 of the Pamphlet states that “Contributory Pension Scheme (CPS) is an arrangement where both Employer and the Employmee contribute a portion of an employee’s monthly emolument towards the payment of the employee’s pension at retirement.” See page 1 of the Pamphlet. It means that the claimants cannot be paid pension unless their employments have come to an end. This same principle applies to payment of gratuity, which an employee is only entitled to at the end of his/her service with his/her employer. In fact gratuity is otherwise called severance or terminal benefits.
41. From the holdings of the Court above on this matter, the claimants’ employments with the defendants are still subsisting, they have not being determined as the said employments were merely suspended; see the content of Exhibit D.1 in this case at pages 1329 to 1418 of the record. Besides, the claimants did not lead any evidence before the Court to the effect that they actually participated in the ‘contributory Pension’ so as to warrant the precipitation of Court making this order. The Law is that he who asserts the existence of a fact must prove it, see the case of Idehen v. Registered Trustees Ikoyi Club 1938 [2014] 45 NLLR (Pt. 145) 558 and Oyebode v. Gabriel [2013] All FWLR (Pt. 669)1043 at 1083. See also the provision of section 137(1) of the Evidence Act, 2011. Consequently, I hold that because the employments of the claimants with the defendants have not ended, they are not entitled to payment of any Gratuity/Severance benefit and Pension under the terms and conditions of their employments. Relief 5 is accordingly dismissed.
42. Does the Action of the Defendants in Suspending the Claimants Indefinitely and Without Pay Amount to Unfair Labour Practice?
Unfair Labour Practices have been defined to mean practices that do not conform with best practice in labour circles as may be stipulated by domestic and International legislations and practices; see the case of Mix & Blake v. NUFBTE [2004] 1 NLLR (Pt. 2) 247. In other words, unfair labour practices are practices, which are contrary to laid down labour standards. Under Nigerian Law, there is no statutory definition of the term “Unfair Labour Practice” and there is no detailed legislation codifying the subject like the practices in other jurisdictions. However, it suffices to say that issue of unfair Labour Practice is a statement of fact, which should be adequately pleaded and proved to the satisfaction of the Court with concrete evidence. It suffices to say in the instant case that the claimants have not satisfied this requirement at all in this case. Therefore, I decline from declaring that the suspension and non-payment of the claimants’ salaries by the defendants is unfair labour practice. I accordingly refuse to order payment of the sum of N500,000,000.00 as compensation for the alleged unfair labour practice against the Rivers State Government in this case.
43. On the whole, I declare and hold as follows:
i. I hold and declare that the 1st and 2nd defendants in this case are joint employers of the claimants.
ii. I hold and declare that the Employments of the claimants are not laced with statutory flavour; I hold that the Claimants are not Civil Servants even though in the employment of the Rivers State Government and so, their said employments are not regulated by the Rivers State Civil Service Rules.
iii. I declare and hold that the indefinite suspension of the claimants without pay by the defendants was not in line with the terms and conditions of their employments.
iv. I declare that the claimants’ employments can only be determined in line with the terms and conditions of their employments.
v. I declare that the employments of the claimants with the defendants are still subsisting and not yet finally determined.
vi. I declare and hold that the Claimants are entitled to their salaries and other entitlements from the defendants with effect from February 2017 until the final determination of their employments in line with the terms and conditions of their employments.
vii. I decline from holding that the suspension of the claimants without pay amount to unfair labour practice against the defendants.
viii. Accordingly, I dismiss the claimants’ prayer for payment of N500,000,000.00 only as compensation under this score against the Rivers State Government.
44. Judgment is entered accordingly.
45. The defendants are to jointly pay the sum of N300,000.00 as cost to the claimants within 30 days from today.
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Hon. Justice F. I. Kola-Olalere (FCIArb)
Presiding Judge