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.