WD
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
9TH
DAY OF MAY, 2024
SUIT
NO. NICN/CA/38/2022
BETWEEN:
SOLOMON AYANGKONG
IKONGSHUL, ESQ; ………………… CLAIMANT
AND
1.
GOVERNMENT OF CROSS RIVER STATE DEFENDANTS
2.
THE ATTORNEY GENERAL AND COMMISSIONER FOR
JUSTICE CROSS RIVER STATE
3.
CROSS RIVER STATE JUDICIAL SERVICE COMMISSION
JUDGMENT.
1.
Vide a general form of complaint dated
19/9/2022 and filed on the same date accompanied by a statement of facts,
witness statement on oath, list of witnesses, list of documents and photocopies
of documents to be relied on at the trial. The claimant claims against the
Defendants jointly and severally the following reliefs:
1.
A DECLARATION that the employment of the
Claimant as Senior Magistrate Grade II on Grade Level 13 in the Cross River
State Judiciary with effect from 3rd February 2019 is valid and
subsisting employment regulated by Statutes.
2.
A DECLARATION that by the conditions of
service applicable to the Claimant’s employment, his appointment as Senior
Magistrate II in the Cross River State Judiciary with effect from 3rd
February 2019 was deemed as confirmed and pensionable with effect from 2nd
February 2021.
3.
A DECLARATION that the 3rd
Defendant’s purported cancelation of the Claimant’s appointment of 3rd
February 2019 as Senior Magistrate Grade II on Grade Level 13 in the Cross
River State Judiciary and the purported re-appointment of the Claimant by the 3rd
Defendant as Magistrate Grade II on Grade Level 10 in the Cross River State
Judiciary with effect from 17th May, 2021 is unlawful, null and void
and of no effect whatsoever.
4.
A DECLARATION that the Claimant is entitled to
the salaries and emoluments due to other Magistrates in the Cross River State
Judiciary on the same rank and salary grade level, which the Claimant was
appointed with effect from 3rd February, 2019.
5.
AN ORDER directing the Defendants to pay the
sum of Nine Million, One Hundred and Fifty-Nine Thousand, Seven Hundred and
Fifty-two Naira, Ninety-four Kobo (N9,159,752.94)
as special damages to the Claimant as his salary arrears from February, 2019 to
April 2021 and the shortfall on his salaries from May, 2021 to June, 2022.
6.
AN ORDER directing the Defendants to pay the
Claimant from July, 2022 until the judgment is delivered in this case his
proper monthly salary as Senior Magistrate Grade II on salary level 13.
7.
AN ORDER directing the Defendants to
re-designate the Claimant forthwith to his rightful status and grade as Senior
Magistrate Grade II on Salary Grade Level 13, the magisterial rank and salary
grade level in which he was placed at the time of his appointment as a
Magistrate in the Judiciary on 3rd February 2019.
8.
AN ORDER directing the Defendants to pay to
the Claimant the sum of Ten Million Naira (N10,000,000.00)
only as general damages for the hardship, embarrassment, pain and suffering
caused to the Claimant by the Defendants.
9.
AN ORDER directing the Defendants to pay to
the Claimant a post judgment interest of ten percent (10%) per annum on the
total judgment sum due to Claimant from the date of the judgment and until the
judgment debt is paid in full.
2.
Upon being served with the originating process
commencing this suit, the Defendants filed their statement of defence on the 26th
day of September, 2022. Hearing in the matter commenced on the 30/3/2023 with
the Claimant testifying as CW1. CW1 after identifying his witness statement on
oath adopted same as his evidence in this suit. A total of ten (10) documents
were tendered and admitted in evidence and marked Exhibits C1 to C10.
3.
The Defendants called one Egbara Edet Bassey, a
director with the 3rd defendant who testifies on their behalf as
DW1. DW1 adopted his witness statement on oath as his evidence in this case.
Thereafter, he was cross examined by the counsel for the claimant.
4.
At the close of hearing, parties were ordered
to file their final written addresses in line with the rules of court. The
defendants who are to first file their final written address within 21 days
after closure of the case failed and neglected to file their final written
address. The claimant on his part filed his final written address on 27/2/2024.
THE CASE OF THE
CLAIMANT.
5.
Sequel to a rigorous and transparent
employment process, which included an oral interview of the Claimant by the
Cross River State Chief Judge in his capacity as the Chairman of the 3rd
Defendant, the Claimant was employed by the 3rd Defendant as a
Senior Magistrate II, grade level 13 in the Cross River State Judiciary. The
claimant was sworn in as Senior Magistrate grade ii, by the then Chief Judge of
Cross River State. Thereafter, the claimant was posted for internship/court
attachment which lasted for about three months. After the court attachment, the
claimant was sent to National Judicial Institute, Abuja for a 5-days
orientation training for newly appointed magistrate. After the attachment and
orientation programes, the claimant was posted to Multi-Door Court House, Moore
Road, Calabar Magisterial District to serve as Senior Magistrate ii, upon
assumption of duty claimant diligently discharged his duties. On 13/11/2019,
the claimant was posted to Magistrate Court Ikom Local Government Area, where
he also discharged his duties diligently as Senior Magistrate ii,. Even though
the claimant was working diligently as Senior Magistrate ii, in the Cross River
State judiciary, he was not paid salary for his services for a period of 27
months from February, 2019 when the claimant was employed to April, 2021. It
was only in May, 2021 that the defendants began to pay the claimant monthly,
even then the claimant was only paid a fraction of the salary due to him on
monthly basis as Senior Magistrate ii, grade level 13, which he was appointed
in February, 2019.
6.
The claimant together with other 28 magistrate
affected by the non-payment of salaries wrote several letters of save our souls
but to no avail. When the situation became unbearable the claimant together
with other 28 other magistrates having same problem in January, 2021 embark on a
peaceful demonstration. They staged second peaceful demonstration on 21 and 22
March, 2021. On 14/1/2021 after the first demonstration the then acting chief
judge called for a meeting with the magistrates and he directed them to stop sitting
in their respective courts until their salaries are paid. After the second
demonstration in March, 2021, the 3rd defendant invited the claimant
together with other 28 magistrates affected to sign for a fresh appointment,
which they were constraint to accept under duress.
7.
From May, 2021, the defendants began to pay
the claimant the sum N152,845.34, regardless of his original rank. The second
letter of appointment purportedly canceled claimant’s appointment as Senior
Magistrate ii. The claimant stated his employment being that public service, it
cannot be cancelled or demoted when he has not been found liable for any
misconduct or subjected to any disciplinary procedures outlined in the rules
and statutes governing his employment.
THE CASE OF THE
DEFENDANT.
8.
The defendants in their statement of defence admitted
paragraphs 1 – 14 of the statement of facts. They also admitted that the
claimant together with other 28 magistrates demonstrated against non-payment of
their salaries and they were instructed to stop sitting by the acting chief
judge of Cross River state.
9.
It is the case of the defendants that the
employment exercise conducted in January, 2019 was cancelled by the 1st
defendant. However, the new judicial service commission upon assumption of
office reviewed the claimant employment made special appeal to the then
governor through the 2nd defendant which he obliged. The claimant voluntarily
accepted the new offer of employment as the new appointment was not under any
coercion nor was the claimant under any compulsion to accept the offer. Rather the
claimant had unfettered option to either accept or reject same. The fresh
appointment canceled earlier letter of appointment. The claimant not only
accepted the new appointment but went ahead to serve and collect salary based
on the second appointment. By accepting the fresh appointment claimant has
waived his right and entitlement under the previous appointment.
THE SUBMISSION OF
THE CLAIMANT.
10. On 28/2/2024 when
this matter came up for adoption final written addresses, counsel informed the
court that the defendants despite being aware of this suit are not in court for
adoption and have not filed their final written address. Counsel adopted the
claimant’s final written address which was filed on 27/2/202, as his argument in
this case. In the address three issues were formulated for determination. They
are:-
1.
Whether having regards to the evidence before
the Court, the employment of the Claimant by the 3rd Defendant as
Senior Magistrate Grade II on Salary Grade Level 13 in the Cross River State
Judiciary with effect from 3rd February, 2019, is valid and
subsisting?
2.
Whether having regards to the circumstances of
this case, the 3rd Defendant’s employment of the Claimant with
effect from 17th May, 2021 vide the 3rd Defendant’s
letter dated 26th May, 2021, is not null and void and of no effect
whatsoever?
3.
Whether having regards to the evidence before
the Court, the Claimant is entitled to the reliefs claimed?
ARGUMENT:
11. Counsel began his
submission by seeking leave to argue all the three issues formulated on behalf
of the Claimant together, as they dovetail to each other.
12. In arguing the
three issues together counsel drew the attention of the court to the fact that
the Defendants had in paragraphs 1 and 4 of their statement of defence and
paragraphs 4 and 7 of the written statement of Egbara, Edet Bassey, Principal
Admin Officer of the 3rd Defendant (at the time of filing the
defence) but Director of Administration of the 3rd Defendant (at the
time of giving oral evidence in court), admitted the truth and veracity of
paragraphs 1 to 14 and 17 to 24 of the Claimant’s statement of facts.
13. Counsel posited
that, while paragraphs 2 to 14 of the Claimant’s statement of facts attest to
the validity of the Claimant’s appointment to the position of Senior Magistrate
II on Salary Grade Level 13, paragraphs 15 to 23 of the said statement of facts
show the exertions of the Claimant in his appointment as Senior Magistrate
Grade II on Salary Grade Level 13, as well as the efforts he made to demand
payment of his salaries for services he rendered to the Defendants from 3rd
February, 2019 to April, 2021.
14. Counsel continued
his submission that also worthy of note is that the Claimant pleaded and
testified that his employment was by the 3rd Defendant, the body
which is by statute, “responsible for the employment, promotion and discipline
of all Magistrates serving in the Cross River State Judiciary”. He also pleaded
and testified that the employment process of January, 2019 through which the 3rd
Defendant appointed his as Senior Magistrate Grade II in the Cross River State
Judiciary, was, “a rigorous and transparent process, which included an oral
interview of the Claimant by the Cross River State Chief Judge in his capacity
as the Chairman of the 3rd Defendant.
15. The Claimant
pleaded and testified that following his appointment as Senior Magistrate Grade
II on Salary Grade Level 13, he was sworn-in and posted by the 3rd
Defendant to a Magistrate’s Court for a court attachment which lasted for about
three months, and that at the end of the court attachment, the 3rd
Defendant further sent him to the National Judicial Institute, Abuja for a
5-day orientation course for newly appointed magistrates. After the orientation
and training, the 3rd Defendant posted the Claimant to Multi-Door
Court, Moore Road, where he acted and performed his duties as Senior Magistrate
II. The claimant was in September, 2019 posted to Magistrate Court in Ikom
local Government Area where he also serve as Senior Magistrate ii and continued
to serve diligently. However, despite his
diligent service in performance of his duties as Senior Magistrate, the
defendants did not pay him salaries for his service from February, 2019 when he
was employed to April, 2021 for a period of 27 months. See Exhibits C3, C8, C9
and C10 respectively. It was in May,
2021, the Defendants started paying the claimant the sum of N152,845.34 per month after deductions,
thereby suffering an underpayment of N122,754.36)
per month till date. This is despite the
Defendants admission of all the facts as the truth of what happened in relation
to the 3rd February, 2019 employment of the Claimant by the 3rd
Defendant. Not a single fact did the Defendants denied. In other words, the
Defendants admitted that the Claimant’s appointment of 3rd February,
2019 is valid.
16. Counsel asked the
question, Whether the Claimant is entitled to be paid salary for services
rendered by him to the Cross River State Government? Counsel answered the
question in the affirmative.
17. Counsel submitted
that the Claimant, as Senior Magistrate II, on Salary Grade Level 13 step 5, he
is entitled to a monthly salary of Two Hundred and Seventy-Five Thousand, Five
Hundred and Ninety-nine Naira, Seventy kobo (N275,599.70).
For the 27 months he was not paid his salaries, the Claimant’s salaries
amounted to Seven Million, Four Hundred and Forty-one Thousand, One Hundred and
Ninety-one Naira, Nine Kobo (N7,441,191.9).
18. It is further
submitted that, the Claimant has proved that he is entitled to be paid for
services he rendered to the Cross River State Government. However, it was
contended that the Defendants’ purported cancellation of the Claimant’s
appointment of January, 2019 cannot invalidate the services he rendered and for
which he was not paid. And during the period of these 27 months, the
Claimant was not found guilty of any offence or in breach of any of the terms and
conditions of the contract and was not indicted of any misconduct.
19. Counsel submitted
that the law is stated by the apex court in the case of Olatunbosun v. NISER
Council (1988) LPELR-2574(SC), that: “the law is that a servant who has been
unlawfully dismissed cannot claim his wages for services he never rendered”.
Conversely, the law is that a servant who is still in service or whose
employment is extant and is still rendering services to his employer, just as
the Claimant herein, is entitled to his wages for services he renders and has
rendered. Thus, in the case of Mr. C.C. Nwafor v. Anambra State Education
Commission & Ors. (2017) LPELR-42026(CA), the Court of Appeal, per Joseph
Tine Tur, JCA cited with approval the case of Olatunboson vs. NISER Council
(supra), and held thus:
“An employee is entitled to wages and
salaries/allowances during the period of his or her lawful engagement in
service. No employer is under any obligation to pay salaries/wages/allowances
to an employee who has not worked for the period of his employment. For
example, a dismissed employee can only claim emoluments he had worked for in
the course of his employment.”
20. It is the
submission of counsel that the cardinal effect of a contract of service is that
from the date of the commencement of the contract which is usually expressly
stated in the letter of appointment given to the employee, the employee and the
employer are bound by the terms and condition of service consented to by both
parties. This in effect creates rights and obligations between parties in line
with both express and implied terms of the contract. On the part of the
Claimant, he has been obedient and performs his duties faithfully till date. Counsel
argued that an employer under the Nigerian Law is saddled with very
comprehensive obligations, whenever employer/employee relationship exists, the
employer owes the employee the duty to pay wages. The obligation to pay an
employee is usually the primary basis upon which the employee is engaged and
upon which his/her services are rendered. The Labour Act, LFN, 2004 in Section
1(a) provides that:
“The wages of a worker shall in all contracts
be made payable in legal tender and not otherwise, section 7(1) of the Act also
provides that an employer shall give his employee (not later than 3 months
after the commencement of employment) a written statement, specifying, among
other things, the rate of wages, the method of calculation, the manner of
payment and the periodicity of payment. Section 7(6) of the Act dispenses with
or discountenance of the need for a written statement where the particulars have
already been specified in a written contract. Similarly, Section 15 of the Act
provides that: wages shall become due and payable at the end of each period for
which the contract is expressed to subsist, that is to say, daily, weekly, or
such other period as may be agreed upon; provided that where the period is more
than one month, the wages shall become due and payable at interval, not
exceeding one month.”
21. Counsel also
refers to Article 15 of the African Charter on Human and People’s Right
(Ratification and Enforcement) Act, Volume 1 Cap A1, Laws of the Federation of
Nigeria, 2004, which provides that; “Every individual shall have the right to
work under equitable and satisfactory conditions and shall receive equal pay
for equal work”. Counsel also refers to the Holy Book – Bible, where it is
recorded in 1st Timothy 5:18 thus: “The labourer is worthy of his
wages”.
22. Counsel submitted
that the manifest effect of a conflate reading of the above provision of the
Labour Act and Article 15 of the African Charter on Human and People’s Right
(Ratification and Enforcement) Act, demonstrates that the provisions makes
payment of wages/salaries mandatory under the Nigerian Law. Counsel urged the
court to find and hold that the Claimant is entitled to payment of his salaries
for the period of 27 months he discharged his duties diligently for
the Defendants and the short fall of his salaries.
23. On the Defendants’
admission of paragraphs 1 to 14 and 15 to 22 of the statement of facts, counsel
submitted that, it is trite and settled law that what is admitted needs no
further proof. Mba v. Mba (2018) LPELR-44295(SC). This is so, in relation to
this case, and notwithstanding the Defendants’ later attempt in paragraph 5 of
their statement of defence and paragraph 8 of the written statement on oath of
the Defendants’ witness, to discredit and besmirch the 3rd
Defendant’s employment process of January, 2019, by referring to it as, “the
purported employment exercise”, and claiming, though without any valid reason
whatsoever, that the employment of the Claimant was cancelled.
24. It is submission
of counsel that from the facts pleaded and evidence led by the Claimant, it is
established that the Claimant’s appointment by the 3rd Defendant as
Senior Magistrate Grade II, Grade Level 13 in the Cross River State Judiciary
with effect from 3rd February, 2019, is a civil service employment
with statutory flavour, governed by the Cross River State Public Service Rules,
Cross River State Magistrate Court Law, Cross River State Judicial Service
Commission Law and other relevant statutes. To support his view counsel relied
on the provisions of Section 6(d) of the Cross River State Judicial Service
Commission Law by virtue of which the 3rd Defendant appointed the
Claimant, it provides thus:
“6 – The Commission shall have power subject
to such conditions as may be prescribed –
(d) to appoint, dismiss and exercise
disciplinary control over the Chief Registrar and Deputy Chief Registrar of the
High Court, the Chief Registrar, if any, of the Customary Court of Appeal,
Magistrates, Judges and members of Customary Courts.”
25. Counsel submitted
that there are two vital elements that must co-exist before a contract of
employment can be said to have statutory flavour, namely:
26. The employer must
be a body set up by the Constitution or statute, and;
27. The statute or
regulations made pursuant to the Constitution or principal State or law must
make provision regulating the employment of the staff of the category of the
employee concerned especially in matter of discipline.
28. According to
counsel in the instant case, the two ingredients were present in the Claimant’s
employment. First, the 3rd Defendant is a creation of statute and is
vested with the power to appoint, dismiss and exercise disciplinary control
over its staff including Magistrate. Second, the office or position of a
Magistrate which is a public office is also a creation of statute and also enjoys
permanence with its duties, powers and functions specified in the enabling
statutes. From the above facts, it has been established that the Claimant’s
employment is clothed with statutory flavor. In support of the submission
reliance was placed on the case of K.S.J.S.C. v. Tolani (Supra) pp. 399 – 400,
paras. E – B.
29. Counsel insisted
that the employment of the Claimant being one with statutory flavour, neither
the 3rd Defendant nor any of the other Defendants has the power to
cancel or terminate same without recourse to the statute which established the
3rd Defendant as well as to the Cross River State Public Service
Rules, which regulates the employment of civil/public servants in Cross River
State. The employment can only be tampered with in strict compliance to the
Civil Service Rules. See Governor, Ekiti State & Anor v. Ogunleye &
Ors. (2013) LPELR-21844(CA) where it was held thus:
“It has been held in numerous decided cases
that when an office or employment has a statutory flavour, its conditions of
service are provided for and protected by statute or regulations made in
respect thereof. Thus, anybody holding such an office or in that employment
enjoys a special status over and above the ordinary master and servant
relationship.”
30. Also in the case
of CBN v. Dinneh (2010) 17 NWLR (Pt. 1221) 125 at 167, paras. B – D where the
Court of Appeal per Lokulo-Sodipe, JCA held thus:
“An employment has statutory flavour
when the appointment is protected by statute or laid down regulations made
pursuant to the provisions of a statute to govern the procedure for employment and
discipline of an employee.”
31. The learned
Justice of the Court of Appeal went on at page 177, paras D-G to state thus:
“Given all that has been said before
now, appellant’s issue 5 and 6 argued together as well as his issue 7 must all
be resolved against it, in view of the findings that the employment of the
respondent prior to his dismissal was one with statutory flavor and that the
employment was wrongfully terminated by way of dismissal and which made the
same to be null and void.
In effect the respondent remained an
employee of the appellant despite his purported dismissed. This being the
situation, he is by virtue of the finding that his dismissal was unlawful, null
and void entitled to be reinstated into his position and also to his salary for
the period of his purported dismissal.”
32. This position of
the law was also affirmed by the Supreme Court in C.B.N v. Dinneh (2021) 15
NWLR (Pt. 1798) 91 SC.
33. Counsel posited
that there is no provision in either the Judicial Service Commission Law or the
Public Service Rules of Cross River State for a cancellation of a contract of
employment such as the one enjoyed by the Claimant. The Defendants acted ultra
vires their powers.
34. It is submitted
by counsel that the law is well settled that there is an employment with
statutory flavour when the appointment and termination of the employment is
governed by statutory provisions. Also, where the contract of service is
governed by the provisions of statute or where, as in the instant case, the
conditions of service are contained and the regulations derived from statutory
provisions, they invest the employee with a legal status higher than the ordinary
one of master and servant. They accordingly enjoy statutory flavour. See the
case of K.S.J.S.C. v. Tolani (2019) 7 NWLR (pt. 1671)382 at pp. 400-401, paras.
H-D; E-F; 402, para. G; IDONIBOYE OBU V. N.N.P.C. (2003) 2 NWLR (PT. 805) 589;
IMOLOAME V. W.A.E.C. (1992) 9 NWLR (PT. 265) 303 and P.H.C.N. V. OFFEOLO (2013)
4 NWLR (PT. 1344) 380 AT 417, PARAS. B-F.
35. Counsel submitted
that the purported cancellation of the Claimant’s appointment as a Senior
Magistrate II on grade level 13 is null, void and of no effect. Because, the
Claimant’s employment, being one that enjoys statutory flavour, there are
procedures to be followed as laid down in the Cross River State Civil Service
Rules, before the Claimant’s employment can be cancelled or terminated by the
Defendants. The Defendants flaunted those provisions of the law. Counsel urged
the court to hold that the Defendants having flaunted those provisions of the
law, the purported cancellation should not be allowed to stand.
36. In regard to the
evidence provided in paragraphs 5 and 6 of the written statement on oath of
Egbara, Edet Bassey, counsel submitted that the same cannot suffice to terminate
or cancel the Claimant’s employment of 3rd February, 2019. The
Defendants’ appointment letters of 26th May, 2021 and 1st
June, 2021, did not state any reason for the said cancellation of the
Claimant’s appointment of January, 2019. This position is buttressed by the
fact that, first, it is rather preposterous, scandalous and deceitful for the
Defendants to refer to an employment exercise which they conducted as, “the
purported employment exercise”. when in another breath the Defendants’ sole
witness admitted during cross examination that the employment of the Claimant
done by them (3rd Defendant) was proper and followed due process. Counsel
contended that the Defendants are approbating and reprobating. This is against
the law. As a party who wants the court to believe him or her and ascribed
probative value to his testimony must in all material time be consistent in
stating his case. See the case of Ajide v. Kelani (1985) 3 NWLR (Pt. 12) pg.
248 at 269, paras. C-D.
37. Counsel pointed
out that the Defendants’ witness also admitted during cross examination that it
is the function of the 3rd Defendant to appoint or employ the
Claimant which they did, but it is the 1st Defendant via His
Excellency, Senator Professor Ben Ayade, that cancelled the Claimant’s employment.
Counsel posited that the 1st Defendant had no power to cancel the
Claimant’s employment because the Judiciary is an arm of Government on his own.
The Claimant was appointed in line with Section 6(1) of the Magistrate Court
Law, Cap M1 Volume 5 of the Laws of Cross River State, 2004.
38. Secondly, it
amounts to approbating and reprobating at the same time, for the Defendants who
had in paragraphs 1 and 4 of their statement of defence and paragraphs 4 and 7
of the written statement on oath of their sole witness admitted that the 3rd
Defendant’s employment exercise of January, 2019 was “a rigorous and
transparent process”, to turn round and label the same employment process as
“purported” and “cancelled”. Worse still, the Defendants made these claims without
as much as giving any reason whatsoever. For instance, the Defendants did not,
in their pleadings and evidence, state the time and the means or manner of the
cancellation of the Claimant’s appointment of 3rd February, 2019.
This is important because, the position of the law still remains that whoever
asserts the affirmative must prove. The Defendants tried to make light of the
proof of the relevant time and manner of the cancellation of the Claimant’s
appointment by their averments in paragraphs 5 and 6 of the statement of
defence.
39. For counsel for
the claimant the Defendants needed, necessarily, to explain the relevant time
when “the immediate past Judicial Service Commission” which they referred to in
paragraph 5 of the statement of defence left office, and the relevant time the
current Judicial Service Commission assumed duties. And, although they claimed
in paragraph 5 of the statement of defence and in their evidence that, “the
purported employment exercise was cancelled by the 1st Defendant
vide the Cross River State Governor, Sen. Prof. Ben Ayade”, they did not
provide as much as a single document, letter, internal memorandum, press
release, etc. to substantiate their claim of the cancellation of the employment
exercise and the Claimant’s appointment.
40. It is submitted that
a party, counsel, witness or court is not allowed to approbate and reprobate
simultaneously. A party cannot approve and disprove or blow hot and cold at the
same time and on the same issue. He cannot affirm at one time and another time
deny what he affirmed previously. See UDE V. NWARA (1993) 2 NWLR (PT. 278) 638.
Also no party can accept and reject the
same transaction. In VERSCHURES CREAMERIES LTD. V. HULL AND NETHERLANDS
STEAMSHIP CO. LTD. (1921) 2 KB 608 AT 612, it was held thus:
“A person cannot
say at one time that a transaction is valid and thereby obtain some advantage,
to which he could only be entitled on the footing that it is valid, and then
turn round and say it is void for the purpose of securing other advantages.”
41. Counsel refers to
Defendants paragraphs 5 and 6 of their statement of defence and paragraphs 7
& 8 of their written statement on oath that employment exercise conducted
in January, 2019 was cancelled, after which they pleaded with Governor for a
fresh appointment of the Claimant, on the basis of the Governor’s acceptance,
they issued a fresh appointment letter to the Claimant. Counsel submitted that
the word “Cancel” as held in the case of Iyeke v. P.T.I. (2019) 2 NWLR (Pt.
1656) 217 at page 237-238, para. H – A, means:
“To cancel
something, is to delete, and obliterate that thing. It indicates that it “is to
longer to be contested usable or in force – Dictionary.com. In other words, the
first recruitment exercise was put aside as if it never happened”.
42. Counsel asked if the
first recruitment exercise was put aside, on what basis was the second
appointment letter issued? The law is trite that you cannot put something on
nothing and expect it to stand. See Macfoy v. United Africa Company Ltd.
(1962)) 5 SCNLR 152.
43. The third reason
why the Defendants’ claim of the cancellation of the Claimant’s employment of 3rd
February, 2019 cannot be allowed to stand is because, the Claimant’s
appointment is not at the pleasure of the 3rd Defendant or of the
Governor. Also, the relationship between the Claimant and the Defendants is not
a master-servant relationship. The Claimant’s appointment cannot be terminated
or cancelled at the whims and caprices of the Governor or with a wave of the
hand. See C.B.N v. Dinneh (Supra).
44. Fourth, the
Defendants did not, before their purported cancellation of the Claimant’s
appointment afford the Claimant an opportunity to be heard. This is important
because statutory employments enjoy the dictates of fair hearing as enshrined
in section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended) when it comes to the employer carrying out disciplinary proceedings
against an employee. In this case, it was wrong for the Defendants to have
decided to cancel the appointment of the Claimant and to replace it with
another appointment which is to the detriment of the Claimant, without giving
him an opportunity of a fair hearing. After all, it is his interests that would
be adversely affected and therefore deserved to be heard.
45. It is important
to further note that throughout the entirety of their pleadings and oral
evidence before this Honourable Court through DW1, the Defendants did not
allege that the Claimant breached the contract of employment and or committed
any act of misconduct for which he could justifiably be disciplined by way of a
termination or cancellation of him contract of employment as Senior Magistrate
Grade II.
46. It is submitted that
the Defendants’ claim of cancellation of the 3rd Defendant’s
employment process of January 2019 does not and cannot mean that the Defendants
also cancelled all the services rendered to them by the Claimant, as to justify
their refusal to pay her salaries for the period of twenty-seven (27) months,
from February 2019 to April, 2021. As equity and interest of justice require
that the Claimant deserves to be paid for all the services rendered by him for
twenty-seven months on the basis of his appointment as Senior Magistrate Grade
II on Salary Grade Level 13. The Defendants must also be held accountable for
their actions, and that having taken the benefit of the Claimant’s professional
exertions and efforts on the basis of his appointment, they must pay. After
all, the Defendants have not produced any evidence to prove that the Claimant
knowingly and voluntarily waived his right to his salaries already earned
before the Defendants’ purported second appointment of the Claimant.
47. Counsel submitted
that no man can take advantage of his own wrong and that a party may not derive
an advantage from his unlawful acts. Counsel submitted that not paying the
Claimant his salaries for twenty-seven (27) months is not only wrongful but
also unlawful.
48. Counsel also
refers to the copious documentary evidence made up of letters of Save Our Souls
(SOS), respectively addressed to the Governor, the 2nd Defendant,
the 3rd Defendant, and the Speaker of the Cross River House of
Assembly produced by the Claimant in which he and twenty-eight other
Magistrates employed by the 3rd Defendant, demanded payment of their
salaries. See Exhibits C4 and C5. In those letters, the Claimant and his
colleagues notified the Defendants of the untold hardship they had been put to
by the Defendants and pleaded with the Defendants to as a matter of urgency
passionately look into their plight.
49. Also worthy of
consideration by this Honourable Court is the 3rd Defendant’s letter
of 4th January, 2021 with reference JUD/G.36/VOL.XVIII/019 titled
“Withdrawal From Sitting In Court”. In the letter, the 3rd Defendant
admitted the non-payment of the salaries of the Magistrates since their
appointment in February, 2019. He stated that there is no conscientious reason
to have allowed the Magistrates to work without pay for all this while. He
therefore advised them to stay at home until the issue of their salaries is
settled.
50. It is noteworthy
that up to the time of the 3rd Defendant’s letter referred in the
immediate preceding paragraph of this written address, there was no indication
that the 3rd Defendant’s employment process of January, 2019 and the
appointments of the 29 magistrates had been cancelled. It was while the
Claimant and his colleagues were waiting for the issue of their salaries to be
settled, that the 3rd Defendant came up with letters of fresh
employment into a non-existent grade level in the Cross River State Magistracy.
51. The Claimant
pleaded and testified that there is indeed no extant grade level in the Cross
River State Magistracy as Magistrate Grade II Grade Level 10. Vide a letter
with reference MOJ/AG/COM/01/VOL.9/100 dated 28th May, 2015 written
by the 2nd Defendant, addressed to the Governor and approved by him,
the lowest rank and grade level in the scheme of service for Magistrates in the
Cross River State Judiciary (MANSS) is Grade Level 12.
52. Counsel submitted
the Defendants have in their pleadings, evidence and final written address
taken the position and strenuously argued in response to the Claimant’s charge
of duress against the Defendants in respect of the “Letter of Appointment”
dated 26th May, 2021 and “Notification of Appointment” dated 1st
June, 2021 by which the Claimant was again, appointed as Magistrate Grade II on
Grade Level 10 notionally with effect from 17th May, 2021 that, they
did not at any time, compel, coerce or force the Claimant to accept the
appointment. In response to this, counsel submitted on behalf of the Claimant
that, normally, when a person places his signature on a contract, he thereby
agrees to be bound by the terms of the contract. However, the law is that a
person cannot be bound by a contract he was induced to sign under duress. It is
submitted that compelling a person to commit to a contract he would not
otherwise commit to renders that contract null and void.
53. Counsel posited
that a common indication of duress is when a person understands the decision he
is making but is nonetheless acting against his own interests. It is submitted that
the Claimant’s acceptance of the letter of appointment of 26th May,
2021 in the circumstances described in paragraph 22 of her written statement on
oath, is sufficient proof of duress and shifts the evidential burden to the
Defendants to disprove the Claimant’s evidence. As no reasonable person will abandon an
employment on a higher position and grade level and for which he is owed
salaries for more than two years to accept employment on a lower position and
grade level, and to provide the same services, unless he is coerced.
54. For counsel any
type of threat or other cause of stress that one party to a contract puts on
another party may be considered duress. The Claimant had defendants and a
family to cater for during that period that the Defendants refused to pay him
for the 27 months he had worked for the Defendants. A physical
weapon or application of physical force is not required.
55. It is submitted
that contracts can only be legally signed under a party’s free will and, any
type of coercion is considered duress if it allows one person to take advantage
of another. In the instant case, although the Claimant rendered his services to
the Defendants for more than two years, and although he repeatedly demanded the
payment of his salaries, all that the Defendants could come up with in
response, was to invite the Claimant and twenty-eight of his colleagues in
April 2021 to request them to sign fresh Acceptance Forms for an Offer of
Appointment as Magistrate Grade II on Grade Level 10 in the Cross River State
Judiciary.
56. It is submitted
by counsel that in the instant case, the Claimant has proved that since the 3rd
February, 2019, a continuous contract of employment exists between him and the
Defendants; that the Defendants threatened or purported to have terminated (by
cancellation) the pre-existing contract of employment; and that the Claimant,
under this duress, accepted the Defendants’ terms and entered into the contract
of employment contained in the 3rd Defendant’s letter of 26th
May, 2021. Moreover, the Claimant pleaded and testified that in April, 2021,
after the second street demonstration in March, 2021, the 3rd
Defendant invited her and other 28 Magistrates to sign fresh Acceptance Forms
for Offer of Appointment as Magistrate Grade II on Grade Level 10 in the Cross
River State Judiciary. The Claimant also pleaded and testified of the
circumstances that compelled her and the other 28 Magistrates to sign the
Acceptance Forms. These circumstances are contained in paragraph 25(i) – (v) of
the statement of facts and the written statement on oath of the Claimant. These
circumstances sufficiently establish the fact of duress which should entitle
the Court to declare not only that the purported cancellation of the Claimant’s
appointment of 3rd February 2019 as Senior Magistrate Grade II,
Grade level 13 in the Cross River State Judiciary is unlawful, null and void,
but also that the purported re-appointment of the Claimant by the 3rd
Defendant as Magistrate Grade II on Grade Level 10 in the Cross River State
Judiciary with effect from 17th May, 2021, is also unlawful, null
and void and of no effect whatsoever.
57. Counsel submitted
that the Claimant has in her pleadings and oral evidence before this Honourable
Court shown that he agreed to the employment contained in the 3rd
Defendant’s letter of 26th May, 2021, because of a threat of
illegitimate pressure and would not have accepted the employment or signed the
Acceptance Form if the threat did not exist.
58. Counsel argued
that if the Court determines that the Acceptance Form in respect of the
contract of employment contained in the 3rd Defendant’s letter of 26th
May, 2021 was signed under duress, then, that contract of employment is
rendered null and void as if it was never signed.
59. It is also
submitted that the law in civil cases is that, the proof of a case is on the
party who asserts a fact and that the standard of proof is on the preponderance
of evidence or on the balance of probabilities. In support of this contention
reliance was placed on the cases of Mrs. Rosemary Onwusor vs. Yahi Maina &
Ors. (2021) Legalpedia (CA) 11919; Longe vs. CBN (2006)3 NWLR (Pt. 967) 228;
Itauma vs. Akpa-Ime (2000) 7 SC (Pt. II)
24. It is submitted that in the instant case, the Claimant has discharged this
burden.
60. In concluding his
submission counsel contended that the employment of the Claimant by the 3rd
Defendant as Senior Magistrate Grade II on Salary Grade Level 13 in the Cross
River State Judiciary with effect from 3rd February, 2019, is valid
and subsisting, the same being employment with statutory flavour and not
terminated in accordance with the Cross River State Civil/Public Service Rules
and other relevant statutes relating to the employment.
61. It is also submitted
that the Claimant has established by cogent, credible and sufficient evidence
that his purported re-appointment contained in the 3rd Defendant’s
letter of 26th May, 2021 is null and void and of no effect
whatsoever because it was made on the basis of duress.
62. It is further
submitted that the Claimant is, on the basis of the evidence tendered before
this Honourable Court, entitled to all the reliefs claimed in this action. Counsel
urged the court to resolve the three (3) issues formulated for consideration in
the determination of this suit, in favour of the Claimant and against the
Defendants.
63. Counsel urged the
court to in the circumstances enter judgment in favour of the Claimant in terms
of the reliefs claimed.
COUT’S DECISION:
64. I have considered
the processes filed by the parties, evidence led at the trial as well as
written and oral submissions of counsel for the claimant.
65. Hearing in this
case commenced on 30/3/2023 with the claimant testifying as CW1. At the end of CW1
evidence in chief, the case was adjourned to 31/5/2023 for cross examination of
CW1. However, on 22/11/2023, leave was granted for CW1 to continue with his
evidence in chief. CW1 continued his evidence in chief at the end, he was cross
examined by counsel for the defendant, thereafter he was discharged.
66. The defendant’s
sole witness Egbara Edet Bassey, also testified on 22/11/2023 as DW1. At the
end of his testimony, he was cross examined by counsel for the claimant,
thereafter he was discharged. The defendants closed their case after the
testimony of DW1. Consequently, the case was adjourned to 25/1/2024 for
adoption of final written addresses.
67. On 25/1/2024,
when this matter came up for adoption of final written addresses counsel for
the defendants sent in a letter requesting for an adjournment. The case was
then adjourned to 28/2/2024 for adoption of final written addresses.
68. On 28/2/2024,
when this matter came up again for adoption of final written addresses counsel
for the defendants was not in court and has also not filed defendants’ final
written address. The counsel for the claimant adopted the claimant’s final
written address filed on 27/2/2024 as his argument in this case.
69. In the written
address of the claimant there were references made to several paragraphs of a non-existent
defendants’ final written address by the counsel for the claimant. I do not
know where counsel was able to get the defendants’ final written address which
he made reference to when no such final written address was before the court,
as counsel for the defendants failed and neglected to file any address.
70. What counsel for
the claimant has done clearly shows that the final written address of the
claimant is a product of copying from his previous final written address in
another matter similar to the present case. For whatever it is I shall consider
the relevant aspect of the address to the case at hand and discountenanced the
aspects dealing with a phantom non-existent address of the defendants.
71. The law is trite
a claim before the court is circumscribed by the reliefs sought and the duty of
the claimant is to adduce relevant cogent and credible evidence in proof of the
claim before the court. As the claim may be granted in toto, or partially
granted but no relief which has not been claimed can be granted or more than
what was claimed. See Gabriel Ativie V Kabel Metal Co. Ltd (2008) LPELR
72. I shall now
consider the case of the claimant to see whether the evidence adduced can
justify grant of any of reliefs sought.
73. As can be seen
from the pleadings and evidence adduced at the trial, the facts of this case
are straight forward and not much in dispute. Vide paragraph 1 of the statement
of defence, the defendants have admitted employment of the claimant as per
exhibit C1, they have also admitted not paying claimant salaries for 27 months.
The excuse the defendants gave for non-payment of arrears of 27 months salaries
is that the claimant’s appointment of 2019 had been cancelled and that made the
claimant to forfeit his arrears of salaries more particularly when the claimant
by accepting new employment, had waived whatever entitlement that he might have
earned under the 2019 appointment.
74. The defendants
have in paragraph 1 of their statement of defence admitted the averments
contained in paragraphs 1 – 14 of the claimant’s statement of facts. With this
admission the claimant is relieved of the burden of proving what the defendant
has unequivocally admitted. This also means that parties are at ad idem
regarding the averments contained in paragraph 1 – 14 of the claimant’s
statement of facts. The law is well settled that facts admitted need not be proved or need no further proof. See
the case of C.B.N. V. DINNEH (2021)
15 NWLR (Pt. 1798) 91, where it was held that: ‘’An admitted fact requires no
further proof. It is deemed established. Thus, when an allegation of a material
nature is taken as admitted, there would be no need to adduce further evidence
to prove the allegation: see the case of JUKOK INTL LTD V. DIAMOND BANK PLC (2016) 6 NWLR (PT. 1507) 55.
Hence, there is no need to call for evidence in support of employment of
claimant by the defendants since that has been admitted.
75. This position is
strengthened by the fact that parties are bound by their pleadings the defendants
having admitted paragraphs 1 – 14, they are bound by the averments contained
therein. See Cardoso v. Doherty (1938) 4 WACA p, 78, Adeoye. v. Adeoye (1961)
ANLR p. 792. No party will be allowed to depart from his pleadings. The admission of
paragraphs 1 – 14 of the statement of facts by the defendants in their
paragraph 1 of the statement of defence means that they have accepted the
averments therein as the true facts. They have also authenticated the claim of
the claimant that he was employed by the 3rd defendant as Senior
Magistrate grade 2, on salary grade level 13 and has undergoes training.
Thereafter, he was posted to his place of primary assignment, where he served
diligently and was not found wanting as he was never queried or tried for
misconduct nor was he warned for any wrongdoing.
76. Now, there is a
sudden volt-face by the defendants on the employment of claimant so as to
whittled down the admission of the appointment of the claimant. The defendants
are now trying to set up another case different from their admission in that,
they are now claiming that the appointment of the claimant made by the 3rd
defendant with effect from 3/2/2019 was cancelled by the Executive Governor of
Cross River State. According to the defendants the newly established members of
the 3rd defendant on assumption of office reviewed the cancelled
appointment and made special appeal to the Cross Ricer State Governor through
the 2nd defendant and the Governor obliged. Consequently, fresh
letters of appointment were issued to the claimant and 28 other magistrates.
According to the defendants the claimant voluntarily accepted the new offer.
The defendants are of the view that the claimant having accepted the subsequent
lower grade level employment cannot be heard to object to that appointment as his
acceptance and assuming office to be rendering service the defendants based on
the subsequent appointment and taking salary on the subsequent appointment he is
estopped from complaining as he has acquiesced and waived his right to complain
or even get paid for the services which he had rendered to the defendants.
77. However, there is
nothing before the court to establish cancellation of claimant’s appointment by
the defendants as the letter that purportedly cancelled the employment of the
claimant has not been tendered in evidence by any of the parties.
78. Now, section
197(1) (c) of the Constitution of the Federal Republic of Nigeria, 1999, as
amended, established the 3rd defendant. And vide paragraph 6(c) of Part II of
the Third Schedule to the Constitution, the 3rd defendant is
empowered to appoint, dismiss and exercise disciplinary control over
magistrates in Cross River State and other staff of the 3rd
defendant. The claimant was vide exhibit C1 letter of appointment, appointed
as Senior Magistrate grade ii, grade level 13. The appointment took effect from
3/2/2019. The fact of appointment of the claimant as per exhibit C1 was not
disputed by the defendants in fact they admitted it in their pleading see
paragraph 1 of the statement of defence. There is also evidence that the
claimant assumed duty in furtherance of exhibit C1, after undergoing training
and orientation for newly appointed Magistrates at the National Judicial
Institute Abuja, the claimant was posted to Multi-Door Court House in Calabar
where he served as Senior Magistrate ii, till September, 2019 when he was
posted to Ikom Local Government Area Magistrate Court where he served as Senior
Magistrate ii. See exhibits C3 and C9. However, the claimant was not paid any
salary after assumption of duty and performing his functions for 27 months
spanning from 3/2/2019 to April, 2021. The defendants did not dispute the claim
of the claimant on non-payment of 27 months salaries. When the claimant and his
other colleagues could not bear the excruciating effect of non-payment of their
salaries by the defendants, they embarked on peaceful demonstration to protest
non-payment of their salaries by the defendants. See exhibit C6. In an attempt
to forestall embarrassment being caused by the protest, the then acting Chief
Judge of Cross River State instructed the claimant and his colleagues to
suspend sitting until the issue of non-payment of their salaries are
resolved. Instead of claimant being paid
his unpaid 27 months salaries a new letter of engagement was presented to the
claimant appointing him as Magistrate Grade ii, on salary grade 10. Following
his acceptance of this new appointment, the claimant began to receive his
salary based on his new letter of appointment.
79. According to the
claimant he accepted the new offer, under duress and based on the understanding
that his arrears of unpaid 27 months salaries would be paid to him upon the
acceptance. However, the defendants refused and failed to pay him earned 27
months salaries. The evidence before the court goes to show that the defendants
have admitted not paying the claimant his 27 months salaries. The non-payment
of the 27 months arrears of salaries of the claimant was attributed to the
cancellation of the recruitment exercise that culminated in the appointment of
claimant.
80. The defendants
have also through their pleadings and witness statement on oath stated that the
newly constituted judicial service Commission reviewed the cancelled employment
of the claimant and made a special appeal to the Governor through the 2nd
defendant for fresh appointment of the claimant and 28 others, which appeal the
Governor obliged. In consequences thereof fresh offer of appointment letters
were issued to the claimant and 28 other magistrates and the claimant
voluntarily accepted the new offer of appointment by signing the acceptance
based on which letter of appointment dated 26/5/2021, was issued cancelling the
earlier letter of appointment exhibit C1. If, it is true that the claimant’s
appointment was cancelled, the claimant was not informed of such cancellation
when it was done, the defendants waited until the purported cancellation as per
letter of 26/5/2021, which has not been tendered in evidence before the court
for court to verify.
81. Now, taking into
consideration the provisions of the constitution establishing the 3rd
defendant and those conferring power on the 3rd defendant to appoint
Magistrates, will it be correct to say that the Executive Governor of Cross
River State has the requisite power to or direct cancellation of any appointment
made by the 3rd defendant in the exercise of its constitutional
powers. The answer is simple; the Executive Governor of Cross River State does
not have power to interfere with the constitutional exercise of the function of
the 3rd defendant. This is the thrust and essence of the
constitutional provision as provided in section 202 of the Constitution which
provides thus:
Section 202. In exercising its power to make
appointments or to exercise disciplinary control over persons, the state civil
service commission, the state judicial service commission and the state
independent electoral commission shall not be subject to the direction and
control of any other authority or person.
82. The above quoted
provisions of section 202 of the Constitution of the Federal Republic of
Nigeria, 1999, as amended, is very clear and unambiguous in that no authority
or person is allowed interfere with the exercise of the powers of the 3rd
defendant or direct its affairs. The 3rd defendant in this case is
one of the independent executive bodies established by the Constitution of the
Federal Republic of Nigeria, 1999, as amended. The Constitution has established
the 3rd defendant and made it to be free from any control or
interference in carrying out its constitutional function. Therefore, the
purported cancellation of the appointment of the claimant cannot stand having
been made on the instruction or direction of the Executive governor of Cross
River State. The 3rd defendant in acceding to the request or
direction of the Executive Governor of Cross River State cancel the claimant’s
appointment made as per exhibit C1, acted in abdication of its duties. The
constitution having prohibited such interference the said cancellation is null
and void and of no effect whatsoever as it was done in contravention of the
constitutional provisions.
83. It is interesting
to note that no reason was given for the purported cancellation of the
claimant’s appointment. The appointment of the claimant as per exhibit C1 not
being master and servant must be cancelled for good reason or acts of misconduct
on part of the claimant and for any action to be taken on misconduct, the
claimant deserves to be notified or informed of the acts of misconduct against
him which will lead to cancellation of the appointment. It is not only
information; the claimant must be tried for misconduct and found guilty or
wanting before such drastic action can be meted on him. There is no evidence
adduced by the defendant to show that the claimant was ever accused of any
misconduct or even tried and found guilty to warrant cancellation of his appointment.
The appointment of the claimant being one that has support from the
constitution cannot be wished away at the whims and caprices of a third party
or even by the 3rd defendant that appointed the claimant. The said
appointment cannot be tempered with without following due process. The
appointment of the claimant having not been made at the pleasure of the 1st
or 3rd defendant, for any action to be taken it must be sanctioned
by law otherwise it will be in futility.
84. The absence of
any reason for cancellation of claimant’s appointment goes to support the
assumption that the cancellation was not made for any act of misconduct. Rather
it was done in carrying out the directive of the Executive Governor. The new
appointment as well was also made as a result of the approval or direction of
the Executive Governor. All these goes to show that the Executive Governor’s
action is clear usurpation of the powers of the 3rd defendant, which
the provisions of section 202 of the Constitution set out to protect.
85. The facts of this
case clearly show interposing in a function that is clearly not the business of
the Executive Governor. This is clearly executive meddlesomeness in the affairs
of the judiciary, which should be deprecated and totally condemned. In the case
of Hart V Military Governor of River State (1976) LPELR-1355 (SC) 24-29, E-B, (1979) 11 SC 211
AT P. 240, the highest Court of the land did not only frown at such kind of
interference by executive in the affairs of independent bodies but viewed it
with such frightening stance, the apex court set aside the order of the
Military Governor in Hart v. Military Governor of Rivers State (1976)
LPELR-1355 (SC) 24-29, E-B, (1979) 11 SC 211 AT P. 240, even when it was clear that the Military Governor
did not deliberately intrude but was invited into the fray by the Public
Service Commission of Rivers State itself without any promptings from the
Governor.
86. It is without any
equivocation that section 202 of the 1999 Constitution grants absolute
independence to the 3rd defendant in the matter of employment and
discipline of its employees. In this wise, the very proceedings of the 3rd
defendant the Judicial Service Commission regarding the claimant are jaundiced
by virtue of the cankerworm of external interference of the Executive Governor
as the 3rd defendant carried out the instruction or directives of
the Governor. Therefore, the cancellation is liable to be set aside for
perverting the course of justice, being a product of outside dictation.
87.
The situation in the instant case is somewhat similar in the essential
aspects to that of Nawa v. AG Cross River State (2007) LPELR-8294 (CA), wherein
the Governor of Cross-River State unilaterally retired the plaintiff/appellant
without resort at all, to the Cross-River State’s Civil Service Commission. The
legal effect of interference of the Governor of Cross River State in Nawa’s
case is same with the instruction or directive of the Governor of Cross River
State for cancelation of claimant’s appointment. The legal effect is one and
the same. In Nawa’s case, the Governor acted directly by fiat and directed the
Permanent Secretary of Establishment to issue the letter of retirement; and in
this one, the Governor did it by directing the Judicial Service Commission of
Cross River State to cancels appointment of the claimant and demote him without
commission of any act of misconduct. The act of cancellation of claimant’s
appointment and unilaterally appointing him to a lower grade level without any
hearing is ultra vires powers of 3rd defendant. What happened the
Executive Governor of Cross River State used the 3rd defendant to
perpetuate illegality. In Nawa’s case, the Court of Appeal set aside the order
of the Governor and reinstated the plaintiff/appellant. In the instant case,
since it is the order of the Executive Governor that the 3rd
defendant merely carried out, the new appointment and cancellation of claimant’s
appointment are vitiated and liable to be set aside, as they are null and void
and of no effect whatsoever.
88.
Even if the purported cancellation of claimant’s appointment was done by
the 3rd defendant without interference of the Executive Governor that
cancellation must be nullified as it was done without any reason given for it
or in the exercise of disciplinary power of the 3rd defendant. The
law is that a unilateral termination of contract does not terminate the
contract. See Offoelo vs. N. E. P. Plc. (supra). In the circumstances, I hereby
set aside the cancellation of the claimant’s appointment and his re-appointment
to a lower grade level for having been found to be null and void.
89.
The claimant has also stated that the second
contract of employment was executed under duress. In response the defendants
stated that the claimant’s acceptance of the new appointment offered to him by
the 3rd defendant wherein the earlier appointment of the claimant to
Senior Magistrate Grade 2, grade level 13 was cancelled, shows that the new
appointment as Magistrate grade ii, was not under any coercion nor was claimant
under any compulsion to accept the offer as he had unfettered option to either
accept or reject it. It is also the case
of the defendants that claimant did not only accept the new appointment but
proceeded to collecting salaries and continued to perform his duties under the
new contract. It was also stated that the claimant by willingly entering into
new contract of employment with 3rd defendant in April, 2021, has
waived his right and entitlement under the previous appointment.
90. The claimant in
his pleading and evidence before the court maintained that the acceptance of
the new appointment was under duress. In proving his allegation of duress the claimant
pleaded the particulars of duress in paragraphs 25 of the statement of facts.
From these paragraphs of the statement of facts, it is clear to me that the
claimant was pressurized to accept the new contact of service which placed him
on a lower rank that is not commensurate with him qualification and experience
due to financial constraint. With the non-payment of claimant’s 27 months
salaries, the claimant was forced to accept whatever offer that comes to his
way in order to be able to survive. I find that the claimant was coerced into
accepting the new appointment. The acceptance was not free from pressure nor
was it voluntary; it was done due no other option to survive as a result of
financial pressure. I am in agreement with the counsel for the claimant that
duress need not be physical it may be otherwise or financial as in this case.
See CALABAR CENTRAL CO-OPERATIVE THRIFT
& CREDIT SOCIETY & ORS V. EKPO (2001) LPELR-6984(CA), FCMB PLC V.
BENBOK LTD (2014) LPELR-23505(CA).
91. The defendants have insisted in their pleading and witness statement on
oath that the claimant by acceptance of the new appointment has destroyed or
lost his claim of 27 months’ salary. The argument of counsel for the defendants
seems to be oblivious of the fact that the claim of the claimant on payment of
arrears of unpaid 27 months’ salary was a claim for earned entitlement which
cannot be unilaterally cancelled by the defendants. The claim of arrears of
unpaid salary being on earned entitlement cannot be affected by any purported
cancellation of contract of employment based on which the entitlement was
earned. The Supreme Court has made it very clear that an employee whose
contract of employment has been terminated or dismiss retain the right to claim
for his earned entitlement. See Udegbunam V FCDA (2003) 10 NWLR (Pt.829) 487
SC, Underwater Eng. Co. Ltd v Dubefon (1995) 6 NWLR (Pt.400) 156 SC.
92. Therefore, the claimant in this case is entitled to claim his earned salaries for
services rendered to the defendants. the defendants have admitted not paying
the claimant his 27 months salaries the excuse adduced to deprive the claimant
of his hard earned salaries is the purported cancellation of his contract of
employment. The claimant is entitled to his salaries notwithstanding purported cancellation
of the contract based on which the salaries were earned. The purported
cancellation of claimant’s appointment has nothing to do with his earned
entitlements.
93. It is clear from
the foregoing that the claimant has succeeded
in proving his case on balance of probability i.e. on preponderance of evidence
as the evidence adduced by the parties when put on the scale of justice, the
evidence adduced by the claimant tilted the scale of justice in favour of the
claimant. In the circumstances it is hereby ordered as follows:-
a.
A declaration is
hereby granted that the employment of the claimant as Senior Magistrate grade ii,
salary grade level 13 as shown by exhibit C1 in the Cross River State judiciary
with effect
from 3/2/2019 is valid and subsisting.
b.
A declaration is hereby granted that the 3rd defendant’s
purported cancellation of the claimant’s appointment of 3rd
February, 2019 as Senior Magistrate ii, grade level 13 in the Cross River State
Judiciary and the purported re-appointment of the clamant by the 3rd
defendant as Magistrate grade ii on grade level 10 in the Cross River State
Judiciary with effect from 17th May, 2021 is unlawful, null and void
and of no effect whatsoever.
c.
A declaration is hereby granted that the clamant is entitled to the
salaries and emoluments due to other Magistrate in the Cross River State
Judiciary on the same rank and salary grade level, which the claimant was
appointed with effect from 3rd February, 2019.
d.
The defendants are hereby ordered to pay the claimant the sum of N8,914,244.22
(Eight Million, Nine Hundred and Fourteen Thousand, Two Hundred and Forty Four
Naira, Twenty Two Kobo), being unpaid arrears of claimant’s salaries from the
month of February, 2019 to April, 2021 and shortfall in the salary paid every
month to the claimant from May, 2021 to March, 2022.
e.
The defendants are hereby ordered to henceforth pay claimant’s salary as
Senior Magistrate ii, grade level 13.
f.
The defendants are hereby order to reinstate the claimants back to him
position of Senior Magistrate ii, Grade level 13, the position he was appointed
in 2019 as per exhibit C1.
g.
The defendants are hereby ordered to pay the claimant the sum of
N300,000.00 (Three Hundred Thousand Naira) as cost.
94.
This judgment is with immediate effect from today, the 9/5/2024.
95.
Judgment is hereby entered accordingly.
Sanusi Kado,
Judge.
REPRESENTATION:
P. O. Arikpo, Esq; for the claimant.