IN THE NATIONAL
INDUSTRIAL COURT OF NIGERIA
IN THE JOS JUDICIAL
DIVISION
HOLDEN AT JOS
BEFORE HIS LORDSHIP
HON. JUSTICE I.S. GALADIMA
DATE: Wednesday 10TH
DECEMBER 2025 SUIT NO: NICN/JOS/47/2024
BETWEEN:
1. AJIJI
AZI NYAKO
2. BOT
SAMSON CHOJI
3. JOHN
AGOM GIDEON APPLICANTS
4. DANIEL
AZI MAJE
5. ESTHER
SYLVANUS
6. JORO
KACHOLLOM FOM
AND
1. GOVERNOR
OF PLATEAU STATE
2. ATTORNEY
GENERAL OF PLATEAU STATE RESPONDENTS
3. COLLEGE
OF ARTS SCIENCE AND REMIDIAL
STUDIES
REPRESENTATION:
·
NANTOK
DASHUWAR; R.I PANTUVO; E.S. BUF FOR THE APPLICANTS.
·
P.K.
AUDU; K.E. POWAR; FOR THE 1ST RESPONDENT.
·
P.A.
DAFFI (HAG PLATEAU STATE); SABO LONGJI; N.J. MINER; T.P. CHIGERO; K.D. WUYEP
FOR THE 2ND AND 3RD RESPONDENTS.
JUDGMENT:
1.
The 6 applicants (referred to by the parties
as the claimants), commenced this suit via an originating summons filed on 30
September 2024 pursuant to section
5(n), 10(1)(b), 33, 34 and 38(1) and (2)
of the College of Arts, Science and Remedial Studies, Kurgwi, Law 2000
and Section iii (c) (1) & (2), (y) (1) (a) of the College of Arts, Science
and Technology, Kurgwi, reviewed terms and conditions of service for staff and
order 3 rule 3 of the National Industrial Court of Nigeria Civil Procedure Rules,
2017 and the inherent jurisdiction of this honourable court wherein they
raised the following questions for determination by this court:
1. Whether the 1st defendant
(respondent) is possessed of or clothed with the powers or authority to
unilaterally suspend, terminate, nullify or in any way interfere with the
employments and appointments of the applicants through Exhibits D and E, the applicants
having been in the service and employment of the 3rd defendant
(respondent).
2. By virtue of the various letters of
appointments issued to the applicants attached as Exhibits A1 – A6, whether the
applicants are not entitled to maintain and retain their employment with the 3rd
respondent in line with the extant laws regulating their employment with the 3rd
respondent.
3. Whether the failure and refusal of the 3rd
respondent to pay the applicants their salaries and allowances thereby
retaining same from the month of January 2023 to date or any period of time at
all is not unlawful, unjust, illegal and a violation of the 3rd respondent’s
duties and obligations.
2.
Thus, the applicants, seek the following
reliefs:
b.
A declaration
that the purported termination, nullification and cancellation of the
employments and appointments of the applicants by the 1st respondent
through Exhibits D and E, is unlawful, illegal, null and void with no legal
effect whatsoever.
c.
A declaration
that the applicants are entitled to maintain and retain their respective
employments with the 3rd respondent in line with the extant laws
regulating their employment with the 3rd respondent.
d.
A declaration
that the failure and refusal of the 3rd respondent to pay the applicants
their respective salaries and allowances thereby retaining same from the month
of January 2023 to date is unlawful, unjust, illegal and in violation of the 3rd
respondent’s duties and obligations.
e.
An order
setting aside the purported suspension and subsequent termination,
nullification and cancellation of the applicant’s various appointments and
employments made by the 1st respondent through the publications made
at his instance attached as Exhibits D and E, same having been done ultra
vires and therefore unlawful, null and void.
f.
An order
reinstating the applicants back to their respective positions as staff and
employees of the 3rd respondent in line with their respective
letters of appointments attached as Exhibits A1 – A6 respectively.
g. An order directing the respondents to pay the applicants
their respective monthly salaries and allowances as specified by the terms of
their employments from the month of January 2023 till date, as follows:
i. 1st, 2nd, 3rd , and
6th
applicants; each the sum of N1,407,470.00 annually, paid in monthly instalments
of N117,289.00 per month.
ii. 4th and 5th
applicants; each the sum of N873,551.00 annually paid in monthly instalments of
N72,795.91 per month each.
h. An order of perpetual injunction, restraining
the respondents, whether by themselves, their agents, privies, assigns or
representatives howsoever described, from victimizing, terminating or
interfering with the applicants’ respective appointments and employments with
the 3rd respondent, without any wrongdoing or violations of the
terms of service on the part of the applicants.
j.
Costs of this
suit as may be assessed by this Honourable Court.
4.
The 1st respondent (also referred
to as the 1st defendant by the parties’ counsel), submitted a
memorandum of conditional appearance, a counter affidavit opposing the
originating summons backed by written submissions of counsel. These documents
were filed on May 21, 2025, beyond the deadline but were properly regularized
through the 1st respondent’s motion dated June 5, 2025, and filed on
the same date.
5.
Although out of time, the 2nd and 3rd
respondents jointly lodged a memorandum of appearance, a counter-affidavit to
the originating summons, and a notice of preliminary objection, together with
their counsel’s written submissions and arguments. They later regularized these
filings by an application filed on 22 January 2025, which this Court granted on
19 June 2025.
6.
On January 29, 2025, the Applicants filed an 8-paragraph
counter-affidavit and written address in response to the preliminary objection.
On that same date, they also lodged a further and better affidavit, and a reply
on points of law.
7.
After exchanges of the parties’ processes,
respective counsel adopted their pleadings on October 22, 2025, and the court
reserved its judgment for pronouncement today, i.e. December 10, 2025.
8. The applicants
were each appointed by the 3rd respondent under letters of
appointment (Exhibits A1–A6 to the supporting affidavit). After completing all
the required documentation, they reported for duty in accordance with those
letters and the College’s terms and conditions of service. The 3rd
respondent paid their salaries through December 2022 but stopped payments in
January 2023. When the 1st respondent’s office changed hands as the
incumbent Governor of Plateau State, the new officeholder announced their
suspension, and since that time no further salaries have been paid. The 1st
respondent then published two notices (Exhibits D and E) purportedly
terminating the applicants’ employment. As a result, the applicants have
brought this action against the respondents—in particular the 1st
and 3rd respondents—on the basis that their appointment instruments
do not authorize the 1st respondent to suspend or terminate their
employment, rendering those actions illegal, null and void, and that
withholding their salaries is likewise unlawful.
1ST RESPONDENT’S
FACTS:
9. In
its 4 paragraphed counter-affidavit of June 5, 2025, sworn by Azumi John, a
litigation clerk at A.D. Ringsum & Co., the 1st respondent
flatly rejects the applicants’ case. She points out that the applicants never
applied for posts with the 1st respondent, those posts were never
advertised, no letters of employment were issued to—or accepted by—them, and
they were never entered on the respondent’s staff records. The affidavit
explains that the current Governor uncovered pervasive irregularities in
recruitment across state ministries and agencies, set up an investigative
panel, and published its recommendations in a White Paper. As a result, the
applicants’ purported appointments—made at the very end of the previous
governor’s term and beyond his authority—were invalid, so they have no claim to
back pay. The respondent did recall and reinstate other suspended employees
whose appointments were regular, but these applicants were excluded because
their engagements were procedurally defective. At suspension they were only
probationary, temporary staff, and their willingness to work cannot cure the
flawed recruitment process. For all these reasons, the 1st respondent
contends that the applicants are not entitled to any of the reliefs they seek.
THE 2ND
AND 3RD RESPONDENTS’ FACTS:
10. In his affidavit the deponent, Binjin
Yildep, identifies himself as Litigation Secretary in the Plateau State
Ministry of Justice and states that he has full authority from the 2nd and 3rd
respondents to swear to the matters set out. He explains that, contrary to the
applicants’ assertions, they failed to resume duty immediately after their
letters of appointment and never secured confirmation of their employment.
Their performance fell short of the diligence required by the College’s
establishing law.
11. He goes on to relate that, following
the change of administration, the Governor, acting as Visitor to the College,
convened a duly constituted investigative panel to examine the legality of the applicants’
temporary appointments. That panel, the deponent avers, uncovered serious
procedural irregularities—no public advertisement was placed, no interviews
were conducted—and recommended suspension. The Governor adopted its report, and
the applicants were suspended and ultimately had their appointments terminated.
12. Although on suspension, the deponent
insists the applicants were not prevented from accessing the College’s premises
and, indeed, received salaries for services rendered between January and April
2023, as evidenced by the accompanying payroll spreadsheet. He contends,
however, that they are no longer entitled to any further payment, since their
appointments have lawfully ended and any additional claims would amount to
remuneration for work not performed.
13. Addressing the claim that the
committee failed to afford the applicants a hearing, the deponent affirms that
invitations were issued but the applicants neglected to attend. He further
notes that at all relevant times they remained on probation under the terms of
their letters, which prescribe a two-year period before confirmation and
pensionability. Public notice of their suspension was effected by press
release, satisfying any notice requirements.
14. Finally, the deponent stresses that
each applicants’ appointments were made individually, on different dates and to
different positions, all subject to probation and confirmation. He warns that
granting the reliefs sought would prejudice the respondents, that the
underlying facts are sharply contested, and that they cannot properly be
resolved by originating summons. He concludes by affirming his belief in the
truth of these statements under the Oaths Act.
THE APPLICANTS’ COUNSEL’S
SUBMISSIONS:
15. In
order to resolve this suit, the applicants have framed three questions for
determination by this Honourable Court. Those questions underlie ten reliefs
sought against the respondents, all of which appear on the face of the
Originating Summons. The Summons is supported by an affidavit sworn by the 1st
applicant, with the consent and authority of the other applicants, and is
accompanied by Exhibits A through E.
16. Counsel
for the applicants began by posing three interrelated questions: first, whether
the Governor possessed any power to suspend, terminate, nullify or otherwise
interfere with the appointments of staff engaged by the College’s Governing
Council; second, whether the appointment letters issued by the College
conferred on the applicants a right to retain their posts under the statutory
framework governing the College; and third, whether the withholding of their
salaries and allowances from January 2023 onward was lawful. They submitted
that these questions collectively turn on the legal character of the
applicants’ employment, which they described as “covered with statutory
flavour” rather than an ordinary master?servant relationship. Each letter of
appointment (Exhibits A1–A6) expressly subjects the applicants to the College’s
establishing Law, its Scheme of Service and any regulations made by the
Governing Council. Chapter III of the College’s Terms and Conditions of Service
provides that pre?expiry termination may be effected only by the Council and
only in accordance with the Law and the Statutes.
17. Counsel
then analyzed the statutory architecture, drawing attention to Sections 5(n),
10(1)(b), 33 and 38(1) of the College Law, which collectively empower the
Council to superintend the affairs of the College, appoint and remove senior
staff for misconduct or inefficiency, and generally regulate employment. They
argued that no provision confers on the Governor any unilateral power over
those appointments, and invoked Section 11 of the Interpretation Act and the
decision in Longe v. First Bank of Nigeria to underscore that only the
appointing authority may terminate a statutory appointment. Labeling the
Governor’s Exhibits D and E as ultra vires, counsel likened his actions to
“brigandage and usurpation,” relying on the Supreme Court’s ruling in Mobil
Producing Nigeria Unlimited v. Okon Johnson to stress that any exercise of
power must conform strictly to statutory prescription.
18. Turning
to the remedies flowing from unlawful termination of a statutory appointment,
counsel argued that once a Court declares a dismissal unlawful, reinstatement
follows automatically without the need to prove special circumstances. They
cited Omidiora v. Federal Civil Service Commission and the apex authorities in
Shitta-Bey v. Federal Public Service Commission, Olaniyan v. University of
Lagos, and Udo v. Cross River State Newspaper Corporation. They further relied
on more recent decisions—Mogaji v. Benue State University, Visitor IMSU v. Okonkwo,
UAM & Ors v. Anongo, Central Bank of Nigeria v. Igwillo, Olufeagba &
Ors v. Abdur-Raheem & Ors and Nnoli v. UNTHMB—to show that the consequence
of unlawful statutory dismissal is reinstatement with all salaries and
allowances as if the dismissal had never occurred. In light of these
authorities, counsel contended that the applicants are entitled not only to
declarations that Exhibits D and E are null and void and that the Governor had
no power to interfere, but also to reinstatement by the College’s Governing
Council, payment of all arrears of salary and allowances from the date of
suspension to judgment, injunctive relief against further interference, and
damages for the hardships they have endured.
THE 1ST
RESPONDENT’S COUNSEL’S SUBMISSIONS:
19. The 1st
respondent’s counsel insists that the applicants have utterly failed to
discharge the burden of proof resting upon them and therefore are not entitled
to any of the reliefs they seek. Counsel reminded the Court of the
well-established principle that “he who alleges must prove,” invoking Akanmode
v. Dino (2009) All FWLR Part 471 929 at 958–959, in which the Supreme Court
emphasized that a claimant must produce credible evidence to establish a prima
facie case before a defendant is compelled to call witnesses in answer. In the
present matter, counsel submits, the applicants did not place before the Court
any documentary or testimonial material demonstrating compliance with the
mandatory procedures prescribed in Section III of the Conditions of Service
(Exhibit B). That provision expressly requires, inter alia, that vacancies be
advertised, candidates selected in accordance with the statutory scheme and
that every appointment “shall not be valid until it has been accepted in
writing by the Registrar or his authorized officer.” Although the applicants
allege they accepted their letters of appointment, no endorsement or written
acceptance was produced to substantiate that assertion.
20. Counsel
further relies on Borishade v. N.B.N. Ltd. (2007) 1 NWLR (Pt.1015) 217 at 234,
which, drawing on B.A. Morohunfola v. Kwara State College of Technology (1990)
4 NWLR (Pt.145) 506 at 525–526, held that in an action for wrongful termination
the plaintiff must prove the mode of appointment, the terms and conditions
governing tenure, and the circumstances in which termination may occur. Here,
it is argued, the applicants’ engagements were effected at the tail end of the
outgoing administration without due process. Photocopies of appointment letters
dated in close proximity (Exhibits A1–A6) prompted the Governor to convene an
investigative panel, whose White Paper exposed irregularities and led to
suspension of the purported appointments. The missing gubernatorial approval
thus renders the appointments void from inception.
21. Counsel
also points out that each letter of offer expressly describes a two-year
probationary period, indicating that confirmation in the permanent
establishment had not occurred and that the employer retained the right to
terminate during probation. Civil Service Rule 020303 is cited to show that an
officer on probation may lawfully have his appointment terminated or extended
in the absence of satisfactory performance or completion of prescribed
examinations.
22. Finally,
the 1st respondent’s counsel underscores that the willingness of the
applicants to serve cannot override the absence of lawful appointment
procedures and that the Court cannot compel an employer to retain an employee
where no valid contract has been demonstrated. In light of these deficiencies
in proof and the admitted irregularities, the 1st respondent urges
the Court to dismiss the suit for want of substance.
2ND AND 3RD
RESPONDENTS’ COUNSEL’S SUBMISSIONS:
23. From
the facts and circumstances of this suit, the 2nd and 3rd
respondents formulated the following issues for determination:
1. Given
the apparent facts deposed in the affidavit evidence of the parties, whether
this suit can be properly determined via Originating Summons?
2. Whether
the applicants have deduced sufficient facts to warrant this Honourable Court
grant their claims?
3. Whether
this Honourable Court can force the applicants on the respondents as employees?
24. Counsel
for the 2nd and 3rd respondents opened their attack on
the Originating Summons by insisting that the dispute cannot be resolved by
that procedure because the affidavits on both sides disclose sharply contested
facts rather than a pure question of law. They relied on Macfoy v. Chola (2023)
17 NWLR (Pt. 1912) 155 for the proposition that originating summons is reserved
for cases raising short questions of construction without substantial
controversy; Oguebego v. PDP (2016) 4 NWLR (Pt. 1503) 446 and Ezeigwe v.
Nwalulu (2010) 4 NWLR (Pt. 1183) 159 to show that where parties’ depositions
conflict—here over the legality of the appointments, the Governor’s role, and
the applicants’ alleged refusal to accept engagement letters—the matter must
proceed by writ to allow oral evidence and cross?examination.
25. On
the merits, counsel argued that the applicants have not established that their
recruitment complied with the statutory scheme of service. They pointed out
that under Borishade v. N.B.N. Ltd. (2007) 1 NWLR (Pt. 1015) 217 and B.A.
Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506 a
claimant in wrongful?termination proceedings must prove how and under what authority
he was appointed, including advertisement, sale of forms, tests and interviews,
and that no such evidence appears here. They further submitted that any
contracts entered into without the Governor’s approval, especially those
concluded at the end of the previous administration’s tenure, are void ab
initio under Nwosu v. A.P.P. (2020) 16 NWLR (Pt. 1749) 28 and Fasel Services
Ltd. v. N.P.A. (2003) 8 NWLR (Pt. 821) 73, a position endorsed by Heritage Bank
Ltd. v. Bentworth Fin. (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420. Reliance was
also placed on Civil Service Rule 020303 to emphasize that the applicants
remained on probation and could be lawfully dismissed or have their probation
extended.
26. Finally,
counsel submitted that an aggrieved probationer cannot force himself back into
employment against his employer’s wishes. They cited Nwoye v. FAAN (2019) 5
NWLR (Pt. 1665) 193 for the principle that a court will not impose a worker on
an unwilling employer; Chukwuma v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512,
Webb v. England (1860) 29 Beav. 44 and Lumsley v. Wagner (1852) 1 E & G 604
to show that specific performance of a mere contract of service is “an
aberration”; and Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 309 together with
Uzondu v. UBN Plc (2008) All FWLR (Pt. 443) for the well?established onus on
the employee to prove breach of the contract’s terms before any reinstatement
can be ordered. On this basis they urged the court to dismiss the Originating
Summons.
THE 2ND
AND 3RD RESPONDENTS’ PRELIMINARY OBJECTION:
27. The
preliminary objection filed on behalf of the 2nd and 3rd
respondents challenges the competence of this joint originating summons on
three principal grounds. First, it is contended that the court lacks
jurisdiction because the applicants remain on probation and their appointments
have not been confirmed. Counsel points out that, under the applicable Civil
Service Rules (020303), probationary appointments are subject to confirmation
only upon satisfactory completion of a prescribed examination and a
probationary period, which inure to the employer’s unfettered right to
terminate or extend probation. It is further alleged that the recruitments were
irregularly conducted—never advertised, never subjected to the statutory Appointment
and Promotion Committee interview—and were purely political, lacking the
Governor’s approval.
28. Second,
the objection maintains that no valid cause exists for a single suit by all applicants,
since each was employed at different times, in different positions and on
separate terms. Reliance is placed principally on Ebo-Ade & Ors v.
Ojo-Oniro & Ors (2018) LPELR-51498 (CA), where the Court of Appeal held
that joinder of plaintiffs is only proper when they share a common right to
relief arising from the same transaction; and on Padawa & Ors v. Jatau
(2002) LPELR-5380 (CA), which underscores that severable claims should proceed
in separate actions to avoid protraction of judicial process.
29. Third,
respondents argue that the facts are contentious and will require oral
testimony, cross-examination and proof of separate evidential bases, so the
matter ought properly to have been initiated by writ of summons rather than by
originating motion. In the supporting affidavit deposed to by the Litigation
Clerk, Binjing M. Yildep, it is averred on instructions from counsel that the applicants’
employment was unconfirmed, political in nature, procedurally flawed and
intended to frustrate the lawful recruitment of replacement staff.
30. In
written submissions, counsel further invokes leading authorities on the
master-servant relationship—Chukwuma v. Shell Petroleum (1993) 4 NWLR (Pt. 289)
512, Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 309 and Ibrahim & Anor v.
National Commissioner for Colleges of Education & Anor (2017) LPELR-45407
(CA)—to emphasize that during probation an employer may terminate without
cause; that an employee cannot compel specific performance of a contract of
employment; and that the cause of action is not yet ripe. It is accordingly
prayed that the suit be struck out in limine.
APPLICANTS’
FURTHER AND BETTER AFFIDAVIT:
31. On
January 28, 2025, the applicants filed a further and better affidavit of
seventeen paragraphs, again sworn by the 1st applicant. Ajiji
Aji Nyako. He explains that he speaks for himself and his co-applicants and
that, upon reviewing the respondents’ counter-affidavit delivered by their
counsel, he found it merely reiterates the earlier preliminary objection. He
insists their appointments were properly advertised and subject to interviews
conducted by the College, that none of them are political appointees, and that
each holds a permanent, pensionable post under the enabling laws. A
fact-finding panel found no irregularity in their hiring, yet they have been
denied access to their workplace without any formal invitation or notice. Apart
from the press releases attached as Exhibits D and E, no termination or
cancellation of employment has been issued by the College; instead, it was the
Governor who purported to terminate their appointments, even though their
letters of appointment expressly place governance of their service with the
College’s Scheme of Service and do not empower the Governor to interfere. He
concludes by affirming this affidavit is made in good faith, believing its
contents to be true.
COUNSEL’S ARGUMENTS IN
SUPPORT OF THE FURTHER AND BETTER AFFIDAVIT:
32. In
their reply, learned counsel for the applicants first points out that the respondents’
counter?affidavit and written submissions entirely evade the specific questions
posed in the originating summons—most notably whether the Governor had any
statutory authority to suspend or terminate the applicants’ appointments by
Exhibits D and E. Their silence on these core issues, counsel submit, must be
treated as an implied admission: they invoke the rule in Golden Construction
Company Ltd. v. Stateco Nigeria Ltd. (2013) LPELR-22832 (CA) and Nwankwo v. Yar’adua
(2010) 112 NWLR (Pt. 1209) 518, which establish that where a party fails to
meet an opponent’s arguments in brief or oral submissions, those points stand
conceded.
33. Turning
to the procedural objection, counsel contend that the respondents’ insistence
on a writ of summons reflects a misunderstanding of when an originating summons
is appropriate. They emphasize that the dispute is purely one of law—whether
statutory instruments and the College’s Terms and Conditions of Service empower
the Governor to terminate employment—and that all material facts and documents
(letters of appointment, salary records, Exhibits A1–A6, D and E) are before
the court on affidavit. In support they rely on Modebe & Ors v. Olatunji
& Ors (2019) LPELR-47914 (CA) and LSDPC v. Adold Stamm International (2005)
603 at 617 A-F, which hold that where documentary evidence removes any real
factual conflict on material issues, oral evidence and cross-examination are
unnecessary.
34. Counsel
also challenges the respondents’ allegation of any procedural irregularity in
the applicants’ appointment. He submits that the respondents have not
identified any specific statutory “due process” requirement that was breached,
and that to speculate about such requirements contravenes the settled principle
that courts act only on the empirical facts before them (Awolola v. Governor of
Ekiti State & Ors (2018) LPELR-46346 (SC)). Even if some irregularity
existed, counsel argue, equitable estoppel under section 169 of the Evidence
Act 2011 and the maxim ex turpi causa non oritur actio bar the respondents from
denying the validity of the appointments they themselves facilitated. They cite
Benue State University v. Mogaji (2022) LPELR-56729 (CA) for the application of
estoppel where one party’s prior conduct induced a belief subsequently relied
upon, and Nkechi & Anor v. Anyalewchi (2021) LPELR-55611 (CA) for the
proposition that no one may profit from his own wrong.
35. Finally,
on the contention that the applicants were on probation and thus terminable at
will, counsel points out that the Civil Service Rules do not govern their
contract, which is instead clothed with “statutory flavour” by the College Law
2000, its reviewed Terms and Conditions of Service and the Scheme of Service.
They rely on Babatunde v. Federal Polytechnic, Ede & Anor (2014)
LPELR-24236 (CA), which held that where a statutory enactment prescribes the
terms of engagement and termination, the resulting contract cannot be
terminated save in accordance with that statute. Even were probationary staff
terminable without procedure, only an employer in privity of contract may
effect such termination; the Governor, as a stranger to the applicants’
employment contracts, had no such power. Counsel urges the court to overrule
the preliminary objection and grant the declaratory, injunctive and monetary
reliefs sought.
APPLICANTS’ COUNTER-AFFIDAVIT
AND REPLY TO THE 2ND AND 3RD RESPONDENTS’ PRELIMINARY
OBJECVTION:
36.
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APPLICANTS’ COUNSEL’S
ARGUMENTS IN RESPECT OF THE PRELIMINARY OBJECTION:
37. The
applicants’ counsel began by rejecting the submission that six individuals who
each hold different positions on slightly different terms could not sue
together. They pointed out that Order 13 Rule 1 of the National Industrial
Court Rules expressly allows joint claims where the right to relief arises out
of the same transaction or series of transactions and where common questions of
law or fact will arise. All six applicants challenge the very same acts—two
press releases by the Governor purporting to suspend and then terminate their
appointments—and seek identical reliefs: declarations that those acts were
ultra vires, setting them aside, reinstatement, back pay and damages. To
require six separate suits would multiply proceedings needlessly and defeat the
policy “to avoid multiplicity of suits,” as the Court of Appeal emphasized in
United Geophysical (Nig.) Ltd & Ors v. Osiobe & Ors (2014) LPELR-24528,
citing Bossa & Ors v. Julius Berger Plc (2005) All FWLR (Pt. 290) 1503. The
decision in Ebo-Ade & Ors v. Ojo-Oniro & Ors (2018) LPELR-51498 (CA)
was, they said, misread by the respondents: it actually illustrates when
separate interests demand separate suits, not when a common interest binds applicants
together.
38. Turning
to the challenge that unconfirmed, probationary staff have no standing and thus
the Court lacks jurisdiction, the applicants’ counsel stressed that
jurisdiction in labour and employment matters lies exclusively in the National
Industrial Court by virtue of section 254C of the Constitution and section 7 of
the National Industrial Court Act. It is settled that jurisdiction is
determined solely by the originating processes—in this case, the originating
summons, its supporting affidavit, and exhibits—and not by any defence
affidavit, per Waziri v. PDP & Anor (2022) LPELR-59174 (SC). The mere fact
of probation does not remove these disputes from the Court’s purview. None of
the three “pillars” of jurisdiction identified in Madukolu v. Nkemdili (supra)—subject?matter
within jurisdiction, proper constitution of the Court, commencement by due
process—has been impugned.
39. On
the objection that core disputes of fact make originating summons
inappropriate, the applicants’ counsel submitted that the only real issue is
legal: whether the Governor, a stranger to their contracts, had statutory power
to terminate their appointments. All material facts—the fact of employment, its
termination, and the contents of the establishing law and Scheme of Service—are
before the Court on affidavit and exhibits. Modebe & Ors v. Olatunji &
Anor (2019) LPELR-47914 (CA) holds that where documentary evidence and
admissions resolve the points in issue, oral evidence is unnecessary and an
originating summons is proper.
40. Finally,
they dealt with the respondents’ invocation of Civil Service Rule 020303 and
the decision in Ibrahim & Anor v. National Commission for Colleges of
Education & Anor (2017) LPELR-45407 (CA). First, they say, the Rule does
not govern the statutory appointments in question, which are instead regulated
by the College’s Scheme of Service and the edicts creating the institution.
Even if it did, termination for probationary unsuitability could only be
effected by the employer—the College’s Governing Council—and not by the
Governor who never was a party to the contracts. They relied on Babatunde v.
The Governing Council, Federal Polytechnic, Ede & Anor (2014) LPELR-24236
(CA) for the principle that an employment “clothed with statutory flavour”
admits only the procedure set out by the statute for its termination.
Accordingly, the preliminary objections on misjoinder, lack of jurisdiction and
suitability of originating summons must be dismissed.
COURT’S DECISION:
41. Having
reviewed the pleadings, examined the exhibits, and considered the arguments of
counsel—together with the materials before the court and the issues framed for
decision—I am satisfied that two main questions, which subsume all other
matters, must be addressed:
i. Does
this court have the requisite jurisdiction to entertain and determine this
case?
ii. Whether,
in view of the facts and evidence presented before this honourable court, the applicants
have successfully established their claims in this suit?
ISSUE 1
30. The
first issue relates to jurisdiction and arises from the 2nd and 3rd
respondents’ notice of preliminary objection. It is both appropriate and
well-settled that this objection be addressed at this stage, since it questions
the court’s power to hear and decide the matter.
31. Accordingly,
issue No. 1 must be taken first since it involves a fundamental question of
law—as established in Bronik Motors Ltd & Anor v. Wema Bank Ltd (1983) 1
SCNLR 296 and Okoya v. Santilli (1990) 2 NWLR (Pt. 131) 172. The respondents
have challenged this court’s jurisdiction to hear and determine the suit on the
grounds set out in their notice of preliminary objection. Those grounds are:
i. That
the honourable court has no jurisdiction to hear this suit, given that the applicants’
employments were still within their probationary period.
Particulars
1.
That the applicants were employed by the 3rd
respondent, but their appointment was yet to be confirmed.
ii. That
this suit cannot be maintained as a joint action by the applicants.
Particulars
1.
That the applicants were employed separately
and not jointly.
2.
That the applicants were employed at different
times.
3.
That the applicants were employed for
different positions.
iii. This
action is contested and should therefore be commenced by the ordinary writ of
summons.
Particulars
1.
That the facts of this suit are in opposite
direction in terms of that of the Applicants and the Respondents.
2.
That the procedure in Originating Summons is
only applicable in suits that are not contentious and basically bothers on
interpretation.
63. Please note that this Court has previously addressed
identical objections in these unreported matters:
– Dake Emmanuel Chendu & Ors v. Governor
of Plateau State & Ors, NICN/JOS/08/2024 (delivered 18 November 2024)
– Wulkwap Hoomen Danjuma & Ors v. Governor
of Plateau State & Ors, NICN/JOS/09/2024 (delivered 26 September 2024)
– Bulus George Lambert & 55 Ors v.
Governor of Plateau State & 2 Ors, NICN/JOS/07/2024 (delivered 5 June 2025)
- Gobel Joseph Gogwim & 46 Ors v Governor
of Plateau State and 2 Ors, NICN/JOS/19/2024 (delivered 10 December 2025).
Those rulings may be cited in this judgment,
as appropriate, either to bolster or to distinguish the issues before the
Court.
63. I
carefully reviewed the first ground of the 2nd and 3rd respondents’
preliminary objection. The preliminary objection raised by the respondents,
asserting that this Honourable Court lacks jurisdiction to hear the suit
because the applicants’ employment were still within their probationary period
and their appointment was yet to be confirmed, is misconceived and ought to be
dismissed outrightly. Now, this court possesses exclusive jurisdiction over
labour and employment matters, irrespective of the probationary status of an
employee.
64. Firstly,
it is fundamental to understand the expansive jurisdiction of the National
Industrial Court of Nigeria. By virtue of Section 254C (1) of the Constitution
of the Federal Republic of Nigeria, 1999 (as amended), the NICN is vested with
exclusive jurisdiction in civil causes and matters relating to or connected
with any labour, employment, trade unions, industrial relations, and matters
arising from the workplace, conditions of service, including health, safety,
welfare of labour, employee, worker and matters incidental thereto or connected
therewith. This constitutional provision establishes the NICN as the primary
forum for resolving all disputes arising from an employment relationship. The
mere fact that an employee is on probation does not remove the employment
relationship from the ambit of the NICN's jurisdiction.
65. Secondly,
an employment relationship, whether probationary or confirmed, is still a
contractual relationship. Section 81(1) of the Labour Act, Cap L1 LFN 2004,
explicitly grants jurisdiction to this court to hear complaints where "any
question, difference or dispute arises as to the rights or liabilities of a
party to a contract or touching any misconduct, neglect, ill-treatment or
injury to the person or property of a party to a contract." This provision
clearly indicates that disputes arising from an employment contract, even
during a probationary period, are justiciable. The existence of a contract of
employment, regardless of its stage (probationary or confirmed), is sufficient
to invoke the jurisdiction of the court, particularly the NICN, which
specializes in such matters.
66. Furthermore,
the argument that an unconfirmed appointment divests the court of jurisdiction
conflates the merits of the case with the court's power to hear it. While the
terms of a probationary employment may allow for termination with less
formality or notice, as seen in cases like NITEL PLC & ANOR v. AKWA ((2005)
LPELR-5971(CA) Pp. 24-26, Paras. B-A), where the Court of Appeal acknowledged
an employer's right to terminate during probation, this does not mean the court
cannot inquire into whether such termination was done in accordance with the
terms of the probation or the law. The court's jurisdiction is to determine
whether the rights and obligations under the probationary contract were
breached or properly exercised. The question of whether the termination was
lawful or wrongful is a matter for the substantive hearing, not a
jurisdictional bar.
67. In
ASCA BITUMEN CO. LTD v. ISAH (2016) LPELR-40778(CA), the Court of Appeal
emphasized what a party needs to plead when their cause of action is founded on
a contract of employment. This underscores that the existence of a contract,
even if probationary, forms the basis of the action, and the court has the
jurisdiction to interpret and enforce its terms. The conditions of service,
even for probationary employees, constitute the terms of their engagement. The
failure to confirm an appointment or the termination during probation are
actions taken within the framework of an existing employment contract, which
the NICN is empowered to adjudicate.
68. Hence,
this ground of preliminary objection fails. The court’s jurisdiction depends
not on formal confirmation of an appointment but on the presence of an
employment relationship and a dispute arising from it. Even as probationary
staff, the applicants qualify as employees entitled to invoke the National
Industrial Court’s jurisdiction for any alleged breach of their contract or
infringement of their labour rights. The court is fully empowered to hear the
case and decide whether the respondents acted consistently with the terms of
probationary service and the applicable labour laws.
69. On
the second ground of the respondents' preliminary objection, it is noteworthy
that it is not in dispute that the applicants were offered employment by the 3rd
respondent on different dates. The applicants expressly stated in paragraph 3
of the affidavit supporting the originating summons that, "We were granted
employment by the 3rd defendant (respondent) at various times within
the year 2022 via our respective letters of appointments issued to us upon our
respective applications….”
70. Their
letters of employment tendered as (Exhibits A1 to A6) leave no doubt as to the
factuality of that position. These documents speak for themselves, as it is
well established principle that documentary evidence is the best evidence, for
the reason that it speaks for itself - A.G
Bendel State v. U.B.A Ltd (1986) 4 NWLR (PART 37) 547; Akinbisade V. The State
(2006) 17 NWLR (PART 1007)184 SC.
71. The 2nd
and 3rd respondents contend that these applicants cannot sue jointly
since they were employed separately and not jointly. They also based their
argument on the ground that the applicants were employed in different positions
in the 3rd respondent institution.
72. The
sustainability of this ground of objection raised by the 2nd and 3rd
respondents, contending that the applicants cannot sue jointly due to separate
employment and different positions, hinges on the principles governing joinder
of parties in civil litigation. While the respondents' argument highlights
individual contractual relationships, the overarching consideration for joinder
of claimants is whether their claims arise from the same act or transaction or
series of acts or transactions, and whether there would be common questions of
law or fact if separate actions were brought.
73. It
should be noted at this point that the stipulations of Order 13 Rule 1 of the
court's Rules clearly address the matter of joining parties as claimants/applicants.
These Rules state the following: “All persons may be joined in one action as claimants
in whom any right to relief is alleged to exist whether jointly or severally
and judgment may be given for such claimant(s) as may be found to be entitled
to relief and for such relief as the claimant may be entitled to without any
amendment.” See also: Ibigbami & Anor V. Military Governor, Ekiti State
& Ors. (2003) LPELR- 5619 (CA); Registered Trustee, N.A.C.H.P.N V.
M.H.W.U.N (2008) ALL FWLR (PT. 412) P.1013. This court, like all courts, is
obligated to use its authority to prevent multiple lawsuits by employing the
joinder of parties to resolve such issues in a single case. See: Akpamgbo
Okadigbo & Ors. V. Chidi & Ors. (2015) LPELR- 24564 (SC).
74. The respondents'
objection focuses on the individual nature of the employment contracts and the
differences in positions. However, this does not automatically preclude joint
action. The critical factor is the nexus between the claims. If the applicants’
grievances, despite their separate engagements and differing roles, stem from a
common policy, a series of related actions by the respondents, or a single
event that affected them all in a similar legal manner, then joinder would be
permissible. For instance, if all applicants were victims of a mass layoff, a
discriminatory policy, or a breach of a general condition of service applicable
to a class of employees, their claims, though individually proven, would share
common questions of fact and law.
75. The
Court of Appeal in ENUGUNUM & ORS v. CHEVRON (NIG) LTD ((2014)
LPELR-24088(CA) Pp. 23-24, Paras. B-C), addressed the question of whether
employees with the same conditions of service have a collective right to sue or
to be represented in a suit. While the present query mentions 'different
positions', the underlying principle from Enugunum’s case is that a commonality
in the cause of action or the nature of the grievance can justify collective
action. If the applicants, despite their different positions, are challenging a
common act or omission by the respondents (e.g., a wrongful termination policy,
a breach of a general employment agreement, or a failure to pay certain
entitlements that apply across various roles), then the objection based solely
on separate employment and different positions may not be sustainable. The
court will look beyond the superficial differences in employment terms to the
substance of the claims.
76. Furthermore,
the case of UNION BANK v. UGBE & ORS ((2019) LPELR-47893(CA) P. 24, Paras.
B-C), highlights that while plaintiffs can join in an action, they cannot set
up conflicting claims between themselves. This implies that if the separate
employment and different positions lead to claims that are inherently
contradictory or mutually exclusive, then the joinder might be problematic.
However, if the claims, though distinct in their individual details, are
consistent in their overall objective and do not conflict, this case would not
support the respondents' objection.
77. Therefore,
the respondents’ objection is unlikely to succeed if the applicants’ separate
disputes, though based on different appointments and positions, actually arise
from the same act or series of acts by the respondents and turn on common
questions of law or fact. The court will look to the substance of the claims
and the efficient administration of justice rather than technical distinctions
between individual contracts. If the applicants can show a shared link or nexus
in their causes of action, the joinder objection will definitely fail. It is
for the respondents to prove that trying the claims together would cause
embarrassment or delay, or that the claims are so unrelated they cannot be
conveniently heard in one proceeding. In the absence of such a showing—and
given the court’s preference to avoid multiple suits—the objection is unlikely
to stand.
78. The 2nd
and 3rd respondents have both misunderstood and misapplied the
decision in Ebo-Ade & Ors v. Ojo-Oniro & Ors (supra), on which they
relied so heavily. In truth, that ruling upholds the propriety of joint
proceedings, even if its facts are not identical to those before this court.
For these reasons, the second ground of objection is dismissed. It is
furthermore ironic that the respondents challenge joinder when they themselves
employed a single instrument to terminate all the applicants, each of whom held
a separate appointment. To sustain their objection on that basis alone would be
unjust.
79. Regarding the third
issue, Counsel to the 2nd and 3rd Respondents argued that
the applicants initiated this case using an originating summons, which they
believe is an incorrect procedure. Counsel contends that, given the contentious
issues between the parties in this case, a formal writ of complaint should have
been used instead.
80. Meanwhile,
ORDER 3 (1)(b) NATIONAL INDUSTRIAL COURT (CIVIL PROCEDURE) RULES 2017 and
specifically, Order 3(3) of the said Rules states and I quote: “Civil
proceedings that may be commenced by way of originating summons include matters
relating principally to the interpretation of any constitution, enactment,
agreements or any other instrument relating to employment, labour, industrial
relations in respect of which the court has jurisdiction by virtue of the
provisions of section 254C of the Constitution of the Federal Republic of
Nigeria 1999 (as amended) or by any Act or Law in force in Nigeria.”
81. The
position set out in the court’s rules has repeatedly been endorsed by the
judiciary. For example, in Pam & Anor v. Nasiru Mohammed & Anor (2008)
16 NWLR (Pt. 1112) 1, Justice Oguntade held that when the sole issue is the
straightforward interpretation of a document—making pleadings unnecessary—the
proper procedure is by originating summons.
82. Even if the respondents
contend there are factual disputes, the real issue is legal: who is empowered
to appoint or remove staff at the third defendant institution. The applicants
rely on uncontested documents—their letters of appointment, the Conditions of
Service, and the Plateau State College of Arts, Science, and Remedial Studies
Law 2000—and the sole question is how those instruments should be interpreted
in light of the 1st respondent’s statutory powers.
83. I
find that this dispute turns on questions of law, not on contested facts, and
was therefore properly commenced by Originating Summons since the applicants
seek an interpretation of the 1st respondent’s statutory and
administrative powers rather than a resolution of factual conflicts.
Consequently, the use of Originating Summons was appropriate, and the
jurisdictional objections raised by the 2nd and 3rd
respondents are rejected and accordingly dismissed.
ON ISSSUE TWO:
84. On
this point, the court must determine whether the applicants have established
their case and are entitled to the remedies they request. In examining this
second issue, the court will focus on the specific questions the applicants
have raised and address each in turn. The three questions set out in the
originating summons are:
1.
Whether the 1st defendant
(respondent) is possessed of or clothed with the powers or authority to
unilaterally suspend, terminate, nullify or in any way interfere with the
employments and appointments of the claimants through Exhibits D and E, the claimants
having been in the service and employment of the 3rd defendant
(respondent).
2.
By
virtue of the letters of appointment issued to the claimants attached as
Exhibits A1 – A6, whether the claimants are not entitled to maintain and retain
their employment with the 3rd defendant in line with the extant laws
regulating their employment with the 3rd defendant.
3.
Whether the failure and refusal of the 3rd
defendant to pay the claimants their salaries and allowances thereby retaining
same from the month of January, 2023 till date or any period of time at all is
not unlawful, unjust, illegal and a violation of the 3rd defendant’s
duties and obligations.
85. Since
questions 1 and 2 overlap, the court will deal with them together. The central
issue is whether the 1st respondent had the power to terminate the
applicants’ employment. If he lacked that authority, the court must then decide
whether the applicants remain entitled to their positions at the third
respondent’s institution and can claim any unpaid salaries.
86. It is
a well-settled rule that in civil proceedings the claimant carries the burden
of proof; until that burden is discharged, the defendant need not call any
evidence. A party asserting infringement of rights or seeking a remedy must
succeed on the strength of its own case, proving facts on a balance of
probabilities as prescribed by sections 131 and 135 of the Evidence Act 2011.
In wrongful-dismissal suits specifically, the claimant must first establish the
contractual terms and conditions governing the employment relationship and then
show how the employer breached them – refer to Katto v. Central Bank of Nigeria
(1999) 6 NWLR (Pt. 607) 390–394.
87. The applicants
based their case on the affidavit filed in support of the originating summons
and on their counsel’s submissions. In paragraph 5 of that affidavit, they
averred that they duly discharged their duties under the 3rd respondent
institution in line with their respective letters of appointment, the 3rd
respondent’s Conditions of Service for Staff, and the College of Arts, Science,
and Remedial Studies Law, 2000, all of which were annexed as Exhibits B and C.
88. By
contrast, the respondents maintained that the applicants’ appointments were
vitiated by procedural irregularities and thus never validly constituted. They
further asserted that the Governor lawfully terminated the applicants’
employment after following the proper process, which included establishing a
preliminary committee both before and after their suspension and dismissal.
89. It is
important to highlight that there are three categories of employments
relationships;
a. a
simple master-servant relationship governed by common law;
b. employment
in which the office is held at the pleasure of the employer
c. employment
protected by statute.
See:
Iderima v. R.S.C.S.C. (2005) 7 SC (PART 111) 135; Olaniyan v. UNILAG (1985) 2
NWLR (PART 9) 599.
90. Where
an employment is held at the pleasure of the employer, it is regarded as one at
will. In such a case, the employer retains the discretion to terminate the
employment at any time, irrespective of the of the tenure stated in the
contract. This principle was clearly restated in the case of Olaniyan & Ors
V. University of Lagos (Supra) at 599/612.
91. On
the other hand, it is settled law that where an employment enjoys statutory
flavor, the relationship between the employer and employee relationship is
regulated by the provisions of a statute or regulation derived from a statute.
The Supreme court elaborated on this principle in the case of Imoloame V. West
African Examinations Council (1999) 9 NWLR (265) 303 stated as follows:
“there
is an employment with statutory flavor when the appointment and termination is
governed by statutory provision. It is accepted that where the contract of
service is governed by provision of statute or where the conditions of service
are contained in regulation derived statutory provisions, they invest the
employee with a legal status higher than the ordinary one of master and
servant. They accordingly enjoy statutory flavour.”
92. It
suffices to ask at this juncture the following questions:
(a). Is the 3rd respondent a
body created by statute?
(b).
Does the enabling statute or a regulation derived from it make express
provisions regulating the employment of the category of these applicants in
question?
93. There
is no gainsaying that the 3rd respondent institution, the applicants’
employer, is a creation of statute. The applicants aver that their employments
are subject to the 3rd respondent’s
Condition of Service for Staff and the Plateau State College of Arts, Science,
and Remedial Studies Law, 2000. [See – Paragraph 5 of the Affidavit in
Support of the Originating Summons]. This fact is unchallenged. The said
averment is in consonance with paragraph 2 (i) of the letters of offer of
employment of the applicants (Exhibits A1 – A6), which state clearly as
follows:
“That
you will be subject, in all respects, to the provisions of the law establishing
the college and to the conditions of service stipulated in the scheme of
service and other regulations governing the appointment of senior staff, as may
be reviewed by the Governing Council from time to time.”
94. Regarding
the applicants’ positions as senior staff at the 3rd respondent’s
institution, I am satisfied that their appointments are statutorily protected.
That protection is not undermined by the respondents’ assertion that the applicants
were still on probation when they were purportedly terminated. The appellate
court’s decision in Babatunde v. Governing Council, Federal Polytechnic, Ede
& Anor is directly on point, and I will set out the relevant passage from
that judgment below:
“the
question that determines whether an employment has statutory flavour is not
whether the status of the employee is on the higher echelon or low ladder of
the service. It is also not determined by whether an employee is on probation
or a permanent or a confirmed employee. It is rather whether the terms of
engagement are controlled and determined by statute as relating to engagement
and termination.”
95. Having
determined that the applicants are statutory employees of the 3rd respondent
whose employment can only be terminated in accordance with its enabling statute
or any regulations or subsidiary instruments, it is therefore necessary to
examine how the respondents actually brought their employment to an end.
96. The affidavits
indicate that the 1st respondent is said to have suspended the
applicants and, by means of public notices, purported to terminate their
employment. This suspension is central to the dispute and gives rise to the
question whether he had the lawful and proper authority to bring the
applicants’ service to an end.
97. Thus, the applicants
categorically deny that the 1st respondent had any authority to
terminate their employment. Under the settled rule in section 11 of the
Interpretation Act (Cap.192, 1990), the power to appoint necessarily includes
the power to dismiss. Moreover, this Court acknowledges from the applicants’
instruments of employment that the College (the 3rd respondent) had
been the applicants’ sole employer. By contrast, the respondents maintain that
the Governor, in his capacity as Visitor of the College, validly invoked his
visitorial prerogative to end their appointments.
98. Having considered the applicants’
evidence, the burden of proof has plainly shifted to the respondents. They must
now demonstrate that the 1st respondent validly exercised the
authority under which the applicants’ employments were terminated.
99. In explaining a
litigant’s duty to establish his case, the Court of Appeal in Aliyu & Ors
v. Yola & Ors (2022) LCN/16188 (CA) stated, inter alia, as follows:
“the burden is on the plaintiff to
establish his claim. This is the evidential burden of proof. It is only after
the plaintiff has adduced sufficient credible evidence that the burden of proof
would shift to the defendant. The shifting burden of proof is enacted
in Section 136 of the Evidence Act 2011, and it provides that the
burden of proof as to any particular fact lies on the person who wishes the
Court to believe in its existence unless it is provided by any law that the
proof of that fact shall lie on any particular person. But the burden may in
the course of a case be shifted from one side to the other. As explained
in ADIGHIJE v. NWAOGU (2010) 12 NWLR (PT.1209) 419 @ 463: “Section
137 of the Evidence Act, 2004 (now Section 133 (1) Evidence Act,
2011)”.
100. I have reviewed the
entire record to identify any authority showing that the 1st respondent
lawfully possessed power to suspend and terminate the applicants—who were
employees of the 3rd respondent—but I find no provision in the
statute establishing the institution that vests such authority in the Governor.
101. In response to the respondents’
contention that the applicants remained on probation with the 3rd respondent
at the time their employments were terminated, Exhibits A1 to A6 shed light on
probationary terms and related provisions. Paragraph 2 (ii) of each letter of
appointment reads in material part:
“That
you serve a period of two years’ probation initially after which you may be
considered for confirmation based on your satisfactory performance.”
102. The applicants did not
specify the precise dates of their suspension or termination. However, their
appointment letters (Exhibits A1–A6) are dated from October to December 2022,
and this suit was filed on September 30, 2024—approximately one year and ten
months later, i.e. under two years. It follows that their employment was
terminated during their probationary period.
103. It is important to
state that the fact that the applicants were still on probation does not negate
the statutory nature of their employments. Their employments can only be
determined in accordance with the statutes and relevant instruments of the 3rd
respondent institution. See Babatunde V. The Governing Council Federal
Polytechnic, Ede & Anor (supra).
104. For the avoidance of
any doubts, the contents of exhibits A1 – A6 are clear on issues of discipline
or termination during probationary periods. The excerpt below from exhibits A1
– A6 is relevant to resolving the issue at hand:
2.
(iii).
That you or the college may terminate your appointment by three months’ notice
or by payment of three months’ salary in lieu of notice.
(iv).
That the college may terminate your appointment without compensation in line
with the provisions of the conditions of service And/or the law establishing
the college.
105. The
language of those instruments is clear and unequivocal. They permit termination
without compensation only insofar as it complies with the conditions of service
binding the applicants and the 3rd respondent. The respondents have
not shown that the applicants’ employment was ended in accordance with those
provisions. There is no termination letter, let alone proof of payment of three
months’ salary in lieu of notice. Nor is there any evidence that the College’s
Governing Council or management approved the applicants’ summary suspensions or
termination. It is therefore unfounded for the respondents to argue that,
because the applicants held different posts, each must bring a separate action.
106. I am
satisfied that the respondents have not established that the Governor has any legal
power to suspend or dismiss the applicants in the manner done, since that
authority under their employment terms rests solely with the Governing
Council/College Management of the 3rd respondent.
107. The
respondents contend that a committee was established both before and after the
applicants’ suspension. The 2nd and 3rd respondents claim they invited the
applicants to appear before that committee, but the applicants did not comply.
The 1st respondent, by contrast, argues that no invitation or interview was
required because the 3rd respondent had already provided all relevant
information (see paragraph 3(g) of the 1st respondent’s counter?affidavit dated
5/6/2025). The applicants reject these allegations. Importantly, there is no
record before the court showing that the applicants—or anyone on their
behalf—were ever formally summoned to that committee, nor is there any
documented outcome of its proceedings. As a result, the court is not satisfied
that any invitation to attend was ever issued to the applicants, either before
or after their alleged terminations.
108. I further note that
the respondents contended in their defence that the applicants’ appointments
were neither advertised nor properly conducted and were tainted by
irregularities. However, they have failed to show that any alleged breach of
the recruitment procedures was the applicants’ doing rather than their own.
109. If the respondents
claim that the appointments were neither advertised nor properly conducted and
were tainted by irregularities, they bear the burden of proving those
allegations. Sections 131 and 133 of the Evidence Act 2011 establish that
anyone seeking a court’s decision on a right or liability tied to specific
facts must prove that those facts exist. By failing to adduce any evidence of
the alleged irregularities, the respondents leave their own defence critically
weakened.
110. The claim that the
appointments were “tainted by irregularities” goes to their very validity.
Whenever a statute, rules or regulations set out the manner in which
appointments must be made, strict compliance is not optional but mandatory. Any
material departure from those procedures – depending on its nature and
seriousness – can render an appointment irregular, voidable or even void from
the outset. In MAMONU & ANOR v. DIKAT & ORS (2019), the Supreme Court
held that failure to obey statutory provisions in a selection process vitiates
the entire exercise. That principle is especially strong for “statutory”
appointments, where both the terms of employment and the method of appointment
are prescribed by law. Likewise, in NASARAWA STATE UNIVERSITY & ANOR v.
NEKERE (2018), the Court of Appeal affirmed that strict adherence to statutory
procedures is essential not only for termination but equally for appointment.
Thus, if it is proved there was no advertisement or the process was improperly
conducted, the appointments could be rendered invalid – see also the decision
per Kanyip, PhD., OFR, bpa, President of the NICN in Sunday Nyam Bot and 4
others v Nigeria Christian Pilgrims Commission (NCPC) in suit number
NICN/ABJ/173/2024 decided on 19/2/2025.
111. The key point raised
is that the respondents have not demonstrated that any purported breach of the
recruitment procedures was attributable to the applicants rather than to
themselves. That omission brings into focus both culpability and the
applicants’ constitutional right to a fair hearing. If the applicants simply
benefited from a defective process devised or overseen by the respondents or
their agents, it would be fundamentally unjust to punish them without showing
they were directly involved in, or aware of, any impropriety. Section 36 of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended), guarantees
the right to a fair hearing, which must be respected before any adverse action
is taken. Thus, if the respondents wish to nullify the appointments or impose
sanctions on the applicants for these irregularities, the applicants must first
be given proper notice of the allegations against them and a real opportunity
to answer them. In UNIVERSITY OF AGRICULTURE, MAKURDI v. JACK (2000) LPELR-10620(CA),
the Court of Appeal explained when the right to fair hearing is triggered in
dismissal or termination cases, underscoring the necessity of allowing an
individual to respond to accusations. Similarly, in MANAGEMENT BOARD, UMTH v.
SAMBO (2021) LPELR-52992(CA) at pages 14–16, the court clarified that a
fair-hearing breach typically occurs when a person is denied notice or an
opportunity to present their case.
112. Since the respondents
have failed to show any connection between the applicants and the alleged
procedural lapses, they have not put forward a valid basis for holding the
applicants personally responsible. It is true that defects in appointment
procedures may invalidate an appointment, but the party challenging must not
only prove those defects, but—if it wishes to take adverse measures against the
appointees—also demonstrate that the appointees were aware of or complicit in
them. Even if the irregularities were so serious as to render the appointments
void ab initio, principles of natural justice require that the affected
individuals be given an opportunity to be heard before any final decision is
taken. In NEPA v. Arobieke ((2005) LPELR-11521(CA) Pp.21–40, Paras. B–E), the
Court described circumstances in which a party cannot complain of denial of hearing
but implicitly confirmed that where an individual has not been allowed to
respond to specific allegations, their right to a fair hearing is breached.
Accordingly, the respondents’ failure to prove the applicants’ involvement in
the alleged irregularities substantially weakens their defense and exposes them
to a likely successful challenge on grounds of unfairness and violation of the
applicants’ right to a fair hearing.
113. Regarding the
lawfulness of the applicants’ termination, the foundational rule is that the
party who makes an allegation bears the burden of proof. This principle,
integral to our adversarial system and enshrined in the Evidence Act, requires
a claimant who alleges wrongful termination to first establish three things:
the existence of an employment contract, the contract’s terms and conditions,
and that the defendant is indeed the employer. The Supreme Court affirmed this
approach in AJI v. Chad Basin Development Authority & Anor (2015)
LPELR-24562(SC), and the Court of Appeal did so in INEC v. Omotosho & Ors
(2021) LPELR-56626(CA). Once those elements are proved, the evidential burden
shifts to the employer to justify the termination or, where relevant, to
demonstrate any breach of contract by the employee or to substantiate alleged
irregularities in the hiring process.
114. It must be stated
unequivocally that the reasons for terminating the applicants—or, put
differently, the justification for their suspension and termination—are
irrelevant to this suit. The real issue is whether the proper procedure was
followed and whether the authority to suspend or terminate their employment
properly lies with the 1st respondent, the State Governor and
Visitor of the 3rd respondent.
115. After reviewing all
the evidence, this Court finds that the respondents did not observe the
applicable statutory and regulatory requirements when purporting to suspend and
terminate the applicants’ employment. Those suspensions and terminations are
therefore unlawful, illegal, null and void. The 1st respondent, as
Governor or Visitor of Plateau State College of Arts, Science, and Remedial
Studies, Kurgwi, had no power to suspend or terminate the applicants’
appointments in that manner. I so hold, and answer question one in the applicants’
favor.
116. Respecting the applicants’
claim for unpaid salaries, they assert that before the announcement of their
suspension, the 3rd respondent had paid their respective salaries
all through to the month leading to January 2023 and ceased to pay their
salaries from January 2023 till the date of filing this suit. It is important
to note that the 1st respondent denies this assertion made and
stated that there is no proof that the applicants received any salary from the
3rd respondent based on the applicants assertion.
117. Apart from the applicants’
averments in their affidavit, which the respondents denied in their counter
affidavit, there is no other evidence whether in the form of an account
statement or salary/payment slip to establish the claim that the applicants
were not paid their salaries or to show the last month when the applicants
received their salaries. It is trite that evidence is the medium of proof, and
proof is the essence of evidence - Anekwe V. State (2014) ALL FWLR (PART 744)
92 AT 109 (SC). The dearth of evidence to support the claims of salary arrears
by the applicants is fatal to them. Consequently, this court is not convinced
that the applicants have provided satisfactory evidence of arrears of owed
salaries from January 2023 – to date. I so hold.
118. Essentially, question
three for determination is resolved partly in favour of the applicants.
119. Consequently, question
1 of the originating summons which is “whether the 1st respondent is
possessed of or clothed with the powers or authority to unilaterally suspend,
terminate, nullify or in any way interfere with the employments and
appointments of the applicants through Exhibits D and E, the applicants having
been in the service and employment of the 3rd defendant”, is
answered in the negative.
120. Question 2 of the
originating summons which is, “by virtue of the various letters of appointment
issued to the applicants attached as Exhibits A1 – A6, whether the applicants
are not entitled to maintain and retain their employment with the 3rd
respondent in line with extant laws regulating their employment with the 3rd
respondent”, is answered in the affirmative.
121. Question 3 of the
originating summons which is “whether the failure and refusal of the 3rd
respondent to pay the applicants their salaries and allowances thereby
retaining same from the month of January 2023 till date or any period of time
at all is not unlawful, unjust, illegal and a violation of the 3rd respondent’s
duties and obligations,” is resolved in the negative in the absence of specific
prove.
122. Therefore, for the
sake of clarity and the avoidance of any doubt whatsoever, this court hereby
grants only the following reliefs sought:
a.
A declaration that the 1st respondent
has no power or authority to suspend, terminate, nullify or in any way
interfere with the employments/appointments of the applicants duly engaged in
the services and employment of the 3rd respondent.
b.
A declaration that the purported termination,
nullification and cancellation of the employments and appointments of the applicants
by the 1st respondent through exhibits D and E, is unlawful,
illegal, null and void with no legal effect whatsoever.
c.
A declaration that the applicants are entitled
to maintain and retain their respective employments with the 3rd respondent
in line with the extant laws regulating their employments.
d.
An order setting aside the purported
suspensions and subsequent terminations, nullifications and cancellations of
the applicants’ appointments and employments made by the 1st respondent
through the publications made at his instance attached as exhibits D and E,
same having been done ultra vires and therefore unlawful, null and void.
e.
An order reinstating the applicants back to
their respective positions as staff and employees of the 3rd respondent
in line with their respective letters of appointments attached as exhibits A1 –
A6) respectively.
f.
N5,000,000.00 (Five Million Naira) general
damages against the respondents jointly and severally for the collective pain
and suffering imposed on the applicants by the respondents. The judgment,
including the monetary awards, must be satisfied within 30 days of this
decision. Should the respondents fail to comply, interest will accrue on the
unpaid money at 2% per MONTH until full payment is made.
g.
In view of the findings and decisions of this
court as reflected above, reliefs numbers 1, 2, 3, 5 and 6 of the originating
summons are granted, while reliefs 4, 7, 8 and 9 are hereby denied. Cost of
this suit is awarded in favour of the applicants in the sum of N250,000.00
only.
123. Based
therefore on the above findings, this court is satisfied that the applicants’
case succeeds in part. I hereby enter judgment for the applicants as stated
hereinbefore.
Delivered in Jos this 10th of
December 2025.
Hon
Justice Ibrahim Suleiman Galadima
Judge.
Public
access to NICN decisions:
Judgments and reasons for the judgments are
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NICN decisions are available to the general public shortly after a copy each
has been sent to the applicant(s) and respondent(s) in a case.