IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

 

DATE: FRIDAY 17TH MAY, 2024

SUIT NO: NICN/YEN/54/2020

BETWEEN:

1.     NYENAMI EGBO

2.     ETULAN JANMES

3.     BLESSING OLALI

4.     MAKENI IGONIWARI

5.     EMAROBELBI IGRUBIA

6.     AZIBARANAMI ENIAM

7.     ARIWADUNM IPAGAMO

8.     JAMES EKALAGHA

9.     OJILE OLOFU PAUL

10.IBHESI ADIENAKPAR BENJAMIN

11.MICHAEL HANNAH

12.MOLLEY DANIEL

13.OGBARA SAMSON                                                        CLAIMANTS

14.BANIGO OFFOR

15.SALOME SOLOMON

16.ROSELINE EDOMO JOB

17.BLESSING KINGSLEY OKADU

18.CARSON DORIS

19.AGALA PROMISE

20.JOYCE IGONIWARI

21.ADIMOBECBI CLIFFORD

22.EDITH O. EGBO

23.AZIBALUA EGIRANI

24.AMBROSE OKARA

25.VICTORIA A. IZEIN

26.FRANCIS IGRUBIA

AND

1.     OGBIA LOCAL GOVERNMENT

COUNCIL

2.     OGBIA LOCAL GOVERNMENT

EDUCATION AUTHORITY

3.     BAYELSA STATE UNIVERSAL                           DEFENDANTS

EDUCATION BOARD

4.     BAYELSA STATE PENSION BOARD

5.     BAYELSA STATE GOVERNMENT

 

REPRESENTATION

A.E. Omiloli Esq for the Claimants

A.G.O. Agorodi Esq for the Defendants

JUDGMENT

INTRODUCTION

The Claimants commenced this suit by the Complaint filed on the 27th of November 2020 pursuant to Order 3 Rule 2 of the National Industrial Court of Nigeria (Civil Procedures) Rules 2017. On the 5th of June 2023, the Claimants sought and obtained leave of this Court to amend their Statement of Facts whereas the Claimants claim against the Defendants the following reliefs:

1.      A declaration that the 1st - 21st and 24th Claimants who had conscientiously carried out their duties as academic staff of the 2nd and 3rd Defendants are entitled to their salary arrears for the months of January, February. March, April, May, June, July, August., September. October, November and the outstanding salary for the month of December, all in 2017, as well as salary arrears from January 2018 to December 2018.

 

2.      A declaration that the 22nd, 23rd, 25th and 26th Claimants who had conscientiously carried out their duties as nonacademic staff of the 2nd and 3rd Defendants are entitled to their salary arrears for the months of January, February, March, April, May, June, July. August, September, October, November, and the outstanding salary for the month of December, all in 2017 as well as salary arrears from January, 2018 to December. 2018.

 

3.      A declaration that the forced retirement of the Claimants by the Defendants was wrong, unlawful, null and void and of no effect, and therefore the Claimants are entitled to their monthly salaries till date as staff of the 2nd and 3rd Defendants.

 

4.      An order compelling the 1st, 2nd, 3rd and 5th Defendants to pay to the Claimants their salary arrears for the months of January, February, March, April, May, June, July, August, September, October, November, and the outstanding salary for the month of December, all in 2017, as well as salary arears from January 2018 to December, 2018.

 

5.      An order compelling the 1st, 2nd, 3rd and 5th Defendants to reinstate the Claimants.

 

6.      Award of general damages in favour of the Claimants in the sum of N50,000,000 (Fifty Millon Nara) only.

 

7.      Payment of the sum of N2,000,000 (Two Million Nara) to the Claimants as cost of the prosecution of the Suit.

The Claimants predicated their claims on the Amended Statement of Claim filed on the 10th of March 2023 and Witness’s Statement on Oath filed on the 27th of November 2020 and 14th of June 2023. The Defendants did not file any defence.

The hearing of the matter commenced on the 15th of November 2022, the 1st Claimant who testified for the Claimants hereinafter referred to as CW1 identified his Depositions made on Oath made on the 27th of November 2020 and adopted the same as his evidence in support of their case. CW1 thereafter tendered Exhibits CW001, CW002, CW003, CW004, CW01B, CW002B, CW003B and CW004B. Counsel for the 3rd – 5th Defendants thereafter cross-examined CW1.

On the 18th of July 2023, the 9th Claimant who also testified for the Claimants hereinafter referred to as CW2 identified his Depositions made on Oath made on the 14th of June 2023 and adopted the same as his evidence in support of their case. CW2 tendered Exhibit CW005A – O and Exhibit CW006. Counsel for the 3rd – 5th Defendants thereafter cross-examined CW2. The matter was adjourned for the adoption of the Final Written Addresses.

On the 23rd of November 2023, the matter came up for the adoption of the Final Written Addresses, Counsel for the 1st – 2nd Defendants resurfaced with a notice of preliminary objection.

Counsel for the 1st – 2nd Defendants identified his Notice of Preliminary Objection and Written Address in support of the objection filed on the 17th of November 2023 and a Reply on Point of Law filed on the 23rd of November 2023, counsel adopted these processes and urged the Court to grant the application.

In response to the Notice of Preliminary Objection, Counsel for the Claimants identified a Written Address in opposition to the Preliminary objection filed on the 17th of November 2023 and counsel adopted these processes and urged the Court to dismiss the application.

Regarding the substantive suit, Counsel for the Claimants identified a Final Written Address filed on the 17th of October 2023, adopted the same and urged the Court to grant all the reliefs sought.

The Defendants did not file any address.

CLAIM OF THE CLAIMANTS

The precis of the case of the Claimants is that the Claimants were staff of the 1st, 2nd and 3rd Defendants. The 1st – 21st and 24th Claimants were academic staff of the various Primary Schools in Ogbia Local Government Area of Bayelsa State while the 22nd, 23rd, 25th and 26th Claimants were non-academic staff of State Schools Akoloman, Otuabigi and Emeyal respectively.

The Claimants had been diligently carrying out their duties as academic and non-academic staff of their respective primary school, notwithstanding the failure of the 1st and 3rd Defendants to pay their monthly salaries as at when due for over one year. Due to the inability of the Defendants to pay, as at when due the salaries of the Claimants, the 1st and 3rd Defendants decided to carry out a series of staff verification exercise ostensibly to reduce the staff strength. In all these exercises, the Claimants participated and were not found wanting.

That at present the 1st, 2nd 3rd and 5th Defendants are owing the Claimants salary arrears of well above twenty-four (24) months. When the 1st and 3rd Defendants finally commenced the payment of salaries of the staff of the 2nd and 3rd Defendants in the month of October 2018, the Claimants realized that their names had been arbitrarily and unlawfully removed from the salary voucher of the 1st and 3rd Defendants and they were ordered to proceed on retirement in spite of the fact that the Claimants were not due for retirement.

That their employment as academic and non-academic staff of the 2nd and 3rd Defendants subsists and, therefore, are entitled to their salaries owed them by the 1st, 2nd, 3rd and 5th Defendants from 2017 till date. That the act of removal of their names from the salary voucher by the 2nd and 3rd Defendants and their subsequent forced retirement when they were yet to attain retirement age is arbitrary, unlawful, and contrary to the provisions of the Public Service Rules.

The 1st – 2nd Defendants by the Notice of Preliminary Objection and Written Address in support of the objection filed on the 17th of November 2023 wherein the 1st – 2nd Defendants pray the Court for the following orders:

a.      AN ORDER dismissing or striking out this suit, that is, SUIT NO: NICN/YEN/54/2020 for lack of jurisdiction.

 

b.      AN ORDER of the Honourable Court striking out the name of the 1st Defendant from SUIT NO: NICN/YEN/54/2020.

 

c.      AND FOR SUCH FURTHER ORDER or orders as this Honourable Court may deem fit to make in the circumstances of this application

The grounds upon which this application is brought are that:

a.      No pre-action notice was served on the 2nd Defendant as required by Section 29(2) & (3) of the Bayelsa State Universal Basic Education Board Law,2005 (as Amended) being a body created by sections 7 and 8 of the same law thereby robbing the court of the jurisdiction to entertain the matter.

 

b.      That the Claimant’s Amended Statement of Facts, the Witness deposition on oath do not comply with Rules (2a). 3(a)(b)(i) of the National Industrial Court of Nigeria Practice Direction 2022, as such this court is under a compulsory duty to strike out the entire suit as ordained by Rule 3 (b) (i) the National Industrial Court of Nigeria Practice Direction 2022.

 

c.      That there is no cause of action against the 1st Defendant

 

 

ISSUE FOR DETERMINATION

In respect of the Notice of Preliminary Objection, Counsel for the 1st – 2nd Defendants raised three issues for the determination of this application to wit:

a.      Whether the non-service of a pre-action notice on the 2nd Defendant does not rob this Court of jurisdiction to entertain this suit.

 

b.      Whether the failure of the claimant to comply with Rules 2(a), 3(a)(b)(i) of the National Industrial Court of Nigeria Practice Direction 2022 is not fatal to the Claimant’s case.

 

c.      Whether if there is no cause of action against the 1st Defendant for this court will not strike out the name of the 1st Defendant from this suit.

Counsel for the Claimants raised also three issues for the determination of this application to wit:

1.      Whether the 1st and 2nd defendants' joint preliminary objection is not liable to be dismissed on grounds of incompetence.

 

2.      Whether the Claimants failed to comply with the provision of Rules 2(a) and 3a)(b)(i) of the National Industrial Court of Nigeria Practice direction in instituting this action.

 

3.      Whether this suit discloses a reasonable cause of action against the 1st Defendant.

In respect of the Notice of Preliminary Objection, a perusal of the issues nominated by the Claimants would undoubtedly show that issues 2 and 3 are repletion of the issues nominated by the 1st – 2nd Defendants. Therefore, I adopt issues nominated by the 1st – 2nd Defendants for the determination of this application and adopt the sole issue nominated by the Claimants in respect of the substantive suit. For the avoidance of doubt, issues for the determination of this suit are as follows:

a.      Whether the non-service of a pre-action notice on the 2nd Defendant does not rob this Court of jurisdiction to entertain this suit.

 

b.      Whether the failure of the claimant to comply with Rules 2(a), 3(a)(b)(i) of the National Industrial Court of Nigeria Practice Direction 2022 is not fatal to the Claimant’s case.

 

c.      Whether if there is no cause of action against the 1st Defendant, this court will not strike out the name of the 1st Defendant from this suit.

 

d.      Whether the Claimants have proved their case to be entitled to the reliefs sought.

LEGAL SUBMISSION OF THE CLAIMANTS

On issue one, the Claimants submitted that the Bayelsa State Universal Basic Education Law, 2007, which repeals and re-enacted the Bayelsa State Universal Basic Education Law, 2005, established the 2nd Defendant (Ogbia Local Government Basic Education Authority). The law regulates the actions/activities of the 2nd Defendant, including the institution of action against the 2nd Defendant. The 1st and 2nd Defendants' preliminary objection as constituted is grossly incompetent, as the same offends the provisions of the Bayelsa State Universal Basic Education Law, 2007, as well as Nation Industrial Court of Nigeria (Civil Procedure Rules, 2017) and therefore, the preliminary objection is liable to be dismissed.

On issue two, the Claimants submitted that the Claimants complied with the National Industrial Court of Nigeria (Civil Procedure Rules, 2017) as well as the Courts' practice direction. The claimants' complaint dated and filed on 22nd of November 2020, which was later amended on the 14th of June, 2023, is accompanied by the witness statement to which are attached all the documents the claimants pleaded in their statement of facts as well as the written statement of the witnesses and served same on the defendants in compliance with the provisions of Order 3 Rules 8 and 9 of the National Industrial Court of Nigeria (Civil Procedure Rules, 2017).

On issue three, the claimants in paragraphs 1, 31, 32, 33, 35 and 37(iv) and (v) of their amended statement of claim have pleaded that they are staff of the 1st, 2nd and 3rd Defendants. Secondly, the claimants have particularly pleaded in paragraphs 32, 33 and 34 that the 1st and 3rd defendants carried out verification exercises to reduce their staff strength, and in all the exercises, they participated and were not found wanting; that the 1st, 2nd 3rd and 5th Defendants owe the Claimants salaries areas of well over twenty-four months. That a community reading of paragraphs 3, 31, 32, 33, 34, 35 and 37 clearly discloses a reasonable cause of action against the 1st Defendant. And submit that in determining cause of action the court needs not consider averment in the statement of claim seriatim. It is sufficient that the court looks at or refer to a few averments that form the gravamen of the claim. Refers to SEVEN UP BOTTLING COMPANY vs Abiola & Sons (2001) 13 NWLR (Pt. 730 page 469 @ 495 para 6 - E, per Onu, JSC.

On issue four, Counsel for the Claimants argued that the claim of the Claimants is in two limbs: first, the claimants seek a declaration that they are entitled to their salaries arrears and to direct the 1st, 2nd, 3rd and 5th Defendants to pay their salaries arrears for the months of January, February, March, April, May, June, July, August, September, October, November, and the outstanding salary for the month of December, all in 2017, as well as salary arrears from January 2018 to December, 2018. Secondly, the claimants seek a declaration that their forced retirement was wrong and unlawful, and therefore null and void, and an order for reinstatement.

That, in the first limb the claimants seek the court to declare that as staff of the 2nd and 3rd defendants, who had diligently carried out their duties are entitled to their salaries arrears for the aforesaid months in 2017 and 2018. The claimants did not however specifically seek to be paid a specific amount which could be termed as special damages, and which in law the claimants would have been required to specifically prove to the satisfaction of the court to be entitled to the said amount, as specific damages are damages suffered by a claimant that is quantifiable in money's worth. The claimants merely averred that they are being owed by the said defendants' salaries arrears for specific months which have been clearly stated and presented to the defendants. In addition, the claimants seek an order compelling the 1st, 2nd 3rd and 5th to pay the claimants' salaries for the said months.

These averments are particular and explicit to the 1st, 2nd 3rd and 5th defendants who refused to file defence to the averments and claim of the claimants, The law is trite that where there is no defence to part of a claim, the court is bound to enter judgment for a Claimant for that part of the claim. Cited OCEANIC BANK INTL PLC V. CSS LTD (2012) 9 NWLR (PT1305) 397 P. 411 Paras C- D.

Further submit that beside the failure of the defendants to file a defence, counsel for the Defendants who, though, did not file any defence on behalf of the defendants, failed to cross examine the witnesses of the Claimants on the veracity of the claim of the Claimants with respect to the months and years they are being owed salaries. The law is trite that where an adversary fails to cross examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. Refers to OFORLETE VS STATE (2000) 12 NWLR (PT 681 page 415 @ 436, Para B-C; Gaji V. Paye (2003) 8 NWLR (PT. 823 Page 583@ 605, Para A -C Per Edozie JSC

In the second limb, the Claimants contended that they were staff of the 2nd and 3rd Defendants as teachers and non-academic staff in various Primary schools in Ogbia Local Government Area of Bayelsa State. That in 2018, their names were removed from the payment voucher and asked to proceed on retirement notwithstanding that they were not due for retirement, besides, they were not given any letter to that effect. The claimants pleaded and tendered documents to prove that they were staff of the 2nd and 3rd defendants.

LEGAL SUBMISSION OF THE 1ST – 2ND DEFENDANTS ON THE OBJECTION

Counsel for the 1st – 2nd Defendants submitted that the failure of the Claimants to serve a pre-action notice on the 2nd defendant as required by Section 29(2) & (B) of the Bayelsa State Universal Basic Education Board Law 2005 (as Amended) being a body created by sections section 7 and 8 of same law deprive this court of its jurisdiction to entertain this matter. That Section 32 of the same law defines the bodies" as used under section 29(2) to include "a Local Government Education Authority" that is the 2nd Defendant pertain of the status of a body as envisaged by the law. That in the entirety of the case of the Claimants there is nowhere in the Amended Statement of Facts where it is stated that the 2nd Defendant was served with a pre-action notice as required by law.

Submitted further that the claimants amended their Statement of fact in 2023 when the National Industrial Court of Nigeria Practice Direction 2022 is already in force and failed to comply with the provisions of Rules (2)(a), 3(a)(b)(i) of the National Industrial Court of Nigeria Practice Direction 2022

That attached document(s) must be marked serially in the manner done for originating summons. Submitted that the Claimants pleadings are not mark at all as required by the rules. Thus, the duty of the Court is to give effect to Rule 3(b)(i) of the National Industrial Court of Nigeria Practice Direction 2022.

Finally on issue three, the 1st – 2nd Defendants submitted that the 1st Defendant is a creation by the 1999 Constitution as amended and the 2nd Defendant is a creation of Sections 7 and 8 of the Bayelsa State Universal Basic Education Board Law 2005 (as Amended), the principal reliefs 1 to 3 as contained in the Claimant Statement of Facts have nothing to do with the 1st Defendant. The 1st Defendant is not supposed to be made a party as none of the Claimant was working under the 1st Defendant as shown by the Claimant’s Amended Statement of Facts.

COURT’S DECISION

The objection of the 1st – 2nd Defendants touches on the competence of this suit; it is not out of place to reiterate that issues bothering on jurisdiction are very important and ought to be decided before adjudicating on the substantive suit. The court must first of all be competent, that is, have jurisdiction, before it can proceed on any adjudication as it is a fruitless venture to decide the merits of a case without jurisdiction. If a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the court to embark on the hearing and determination of the substantive matter. Therefore, it is an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of substantive matter: see the case of MANOMI V. DAKAT (2022) 15 NWLR (PT. 1853) 231.

Having established the priority of the application of the 1st – 2nd Defendants, I will consider the application first, thus, the outcome of the decision of the Court on the merit of the application will determine whether the Court will proceed to the substantive suit.

On issue one, the gravamen of the 1st – 2nd Defendants on this issue is that the Claimants did not serve the 2nd Defendant with pre-action notice as required under Section 29(2) & (B) of the Bayelsa State Universal Basic Education Board Law 2005 (as Amended).  Counsel for the 1st – 2nd Defendants submitted that the failure of the Claimants to serve a pre-action notice on the 2nd defendant as required by Section 29(2) & (B) of the Bayelsa State Universal Basic Education Board Law 2005 (as Amended) being a body created by sections 7 and 8 of the same law deprive this court of its jurisdiction to entertain this matter.

Counsel for the Claimants submitted that the Bayelsa State Universal Basic Education Law, 2007, which repeals and re-enacted the Bayelsa State Universal Basic Education Law, 2005, established the 2nd Defendant (Ogbia Local Government Basic Education Authority). The law regulates the actions/activities of the 2nd Defendant, including the institution of action against the 2nd Defendant. The 1st and 2nd Defendants' preliminary objection as constituted is grossly incompetent, as the same offends the provisions of the Bayelsa State Universal Basic Education Law, 2007, as well as the National Industrial Court of Nigeria (Civil Procedure Rules, 2017) and therefore, the preliminary objection is liable to be dismissed.

First thing first, Counsel for the 1st – 2nd Defendants cited a wrong provision of the law, the provision of Section 29 of the Bayelsa State Universal Basic Education Board Law 2005 (as Amended) relates to or deals with another matter outside the context of the premise of the objection of the 1st – 2nd Defendants. Notwithstanding that, Section 32(2) of the repealed and re-enacted Bayelsa State Universal Basic Education Board Law 2007 provides that no suit shall be commenced against the board or any members, officer or employee of the board or other bodies established by the Bayelsa State Universal Basic Education Board Law except at the expiration of a one month notice duly given to the proposed defendant(s) and the notice shall state the cause of action, the particulars of the claim and name and place of abode of the intending claimant.

Under the provision of Section 36 of the Bayelsa State Universal Basic Education Board Law 2007, it defines bodies as used in Section 32(2) of the Bayelsa State Universal Basic Education Board Law 2007 as the State Universal Basic Education, a Local Government Education Authority, District Education Committee and School Committee.

Looking at the Defendants in this instant suit, by a combined reading of Section 32(2) and 36 of the Bayelsa State Universal Basic Education Board Law 2007, the 2nd Defendant is given a right to demand compliance with Section 32(2) of the Bayelsa State Universal Basic Education Board Law 2007.

Without gainsaying, the competence of a court in the exercise of its jurisdiction is determined if: it is properly constituted with respect to the number and qualification of its membership; the subject matter of the action is within its jurisdiction; the action is initiated by due process of law; and any condition to the exercise of the jurisdiction has been fulfilled: see the cases of AMODU V. AJIBOYE (2000) 14 NWLR (PT. 686) 15; MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; A-G., FED. V. GUARDIAN NEWSPAPERS LTD. (1999) 9 NWLR (PT.618) 187. In this instant case, the objection of the 1st – 2nd Defendant is premised on the fulfilment of any condition to the exercise of the jurisdiction. The question to be asked here is whether the Claimant has fulfilled the condition to the exercise of the jurisdiction as required in Section 32(2) of the repealed and re-enacted Bayelsa State Universal Basic Education Board Law 2007.

I have carefully gone through the paragraphs of the Claimant’s Amended Statement of Facts; I cannot see any paragraph that discloses that the Claimants served the 2nd Defendant with the pre-action notice before filing the suit. A pre-action notice connotes some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract which requires compliance by a person who is under a legal duty to put on notice the person to be notified before the commencement of any legal action against such a person. The effect of non-compliance with the service of pre-action notice amounts to an irregularity. Where the objection to jurisdiction is founded on non-compliance with the requirement of a pre-action notice, it does not abrogate the right of a plaintiff to approach the court or defeat his cause of action. Therefore, if the subject matter is within the jurisdiction of the court, the failure of the plaintiff to serve the pre-action notice on the defendant gives the defendant a right to insist on such notice before the plaintiff may approach the court. In other words, non-service of a pre-action notice merely puts the jurisdiction of a court on hold pending compliance with the pre-condition. A failure to serve a pre-action notice amounts to an irregularity that renders a suit incompetent: see the cases of NTIERO V. N.P.A. (2008) 10 NWLR(PT. 1094) 129; NIGERCARE DEVELOPMENT CO. LTD. V.ADAMAWA STATE WATER BOARD (2008) 9 NWLR (PT.1093) 498; CHIJOKE V. CHUKWU (2017) LPELR -42752CA; AYENI V. OBASA (2010) LPELR - 3829; SATUMARI V.EMMANUEL (2018) LPELR - 46054; FAAN V. AUTOPORT(NIG.) LTD. (2018) LPELR - 46798; YAKI V. BAGUDU(2015) 18 NWLR (PT. 1491) 288.

Though, the service of the pre-action notice on the 2nd Defendant can be waived by the 2nd Defendant; however, the 2nd Defendant can insist on the compliance of Section 32(2) of the repealed and re-enacted Bayelsa State Universal Basic Education Board Law 2007. In the case of NIGERCARE DEV. CO. LTD. V. A.S.W.B. (supra) the Supreme Court held that:

While the issuance of the notice by a prospective plaintiff, is mandatory, the particulars to be included in the notice- i.e. the cause of action, particulars of claim, name and place of abode of the intending plaintiff and the relief to be claimed, are directory. The failure to serve a pre-action notice on the defendant gives such defendant, a right to insist on such notice, before the plaintiff may approach the court. In other words, that non-service of a pre-action notice merely puts the jurisdiction of a court on hold pending compliance with the pre-condition. A number of cases were referred to therein. In fact, failure to serve the said notice, amounts to an irregularity that renders the suit incompetent.

Thus, non-service of the pre-action notice on the 2nd Defendant makes the jurisdiction of this Court inchoate against the 2nd Defendant. Another pertinent question that deserves the response of this Court is, what would be the fate of the case of the Claimants in view of the fact that there are other Defendants (1st, 3rd, 4th, and 5th Defendants) who are (to the best of the knowledge of the Court) not protected by any law to be served with a pre-action notice. I do not think that this suit can be defeated even though the suit will be discontinued against the 2nd Defendant while the suit is competent and maintainable against the 1st, 3rd 4th and 5th Defendants: See the case of OJO V. NATIONAL PENSION COMMISSION (2019) 14 NWLR (Pt. 1693) 547 where the Supreme Court held that:

The submission of the appellant that a pre-action notice is mandatory and a condition precedent for instituting a suit is true to the extent that the party entitled to the pre-action notice raises the objection timeously since the right can be waived and it enures only to the party entitled to the pre-action notice which in the instant case is available to the 1st respondent only and not the 2nd respondent/cross-appellant. Having struck out the action against the 1st respondent, the 2nd respondent/cross-appellant does not enjoy the protection offered to the 1st respondent. The action is still valid against the 2nd respondent/cross-appellant. The appellants must give the pre-action notice to the 1strespondent before they can maintain an action against the 1st respondent.

Flowing from the foregoing, this suit is incompetent against the 2nd Defendant and it is hereby struck out against the 2nd Defendant. The name of the 2nd Defendant is struck out as if it was not part of the suit at all. Issue one is resolved in favour of the 1st – 2nd Defendant. I so hold.

One issue two where the 1st – 2nd Defendants challenge the competence of this suit based on the provisions of Rules (2)(a), 3(a)(b)(i) of the National Industrial Court of Nigeria Practice Direction 2022. Counsel submitted that the attached document(s) must be marked serially in the manner done for originating summons. Submitted that the Claimants’ pleadings are not marked at all as required by the rules and urged the Court to give effect to Rule 3(b)(i) of the National Industrial Court of Nigeria Practice Direction 2022.

Counsel for the Claimants submitted that the Claimants complied with the National Industrial Court of Nigeria (Civil Procedure Rules, 2017) as well as the courts' practice direction. The claimants' complaint dated and filed on 22nd of November 2020, which was later amended on the 14th of June, 2023, is accompanied by the witness statement to which are attached all the documents the claimants pleaded in their statement of facts as well as the written statement of the witnesses and served same on the defendants in compliance with the provisions of Order 3 Rules 8 and 9 of the National Industrial Court of Nigeria (Civil Procedure Rules, 2017).

Order 2(a) of the National Industrial Court of Nigeria (Filing of Applications/Motions in Trade Union Matters and marking of Exhibits) Practice Directions (No. 1) 2022 provides that

In the case of a claimant, the statement of facts and the witness(es) statement(s) on oath must clearly indicate all the document(s) to be relied upon at the trial of the case and attach same. The attached document(s) must be marked serially in the manner done for originating summons.

It is pivotal to note that this suit was commenced on the 27th of November 2020 while the Practice Direction of this Court came into effect on the 13th day of June 2022. Thus, I do not think that the Practice Direction of this Court applies to this suit. Though counsel for the 1st – 2nd Defendants made a valid point that the Practice Direction of this Court applies to this case inasmuch the Claimant sought and obtained leave of this Court to amend their Statement of the Fact on the 5th of June 2023; but I am not convinced in the light of the decision of the Court of Appeal in the case of NIG. AIRWAYS V. GBAJUMO (1992) 5 NWLR (Pt. 244) 735 where the Court held that:

The effect of an amendment is that when duly made, it takes effect not from the date when the amendment is made, but from the date of the original document which it amends; this rule applies to every successive amendment of whatever nature and at whatever stage the amendment is made. It is settled law that when an amendment is made to the writ, the amendment dates back to the date of the original issue of the writ and the action continues as though the amendment had been inserted from the beginning.

If an amended pleading, the amended statement of fact in this instant suit will be treated back to when the suit was originally instituted not when the order to amend was granted, I see no logic in saying that the Practice Direction which came into effect on the 13th day of June 2022 will have a retrospective effect on the suit that was commenced on the 27th of November 2020. For this reason, the National Industrial Court of Nigeria (Filing of Applications/Motions in Trade Union Matters and marking of Exhibits) Practice Directions (No. 1) 2022 does apply to the suit. I so hold.

Looking at the National Industrial Court of Nigeria (Filing of Applications/Motions in Trade Union Matters and marking of Exhibits) Practice Directions (No. 1) 2022 from another angle, the Practice Direction was not issued to shut out the door of justice against anybody. The essence of the Practice Direction is issued to guarantee continued access to justice and expeditious disposal of cases. See paragraph 2 of the Practice Direction.

Unfortunately, counsel this day will be urging the Court to feather the wings of technicality and thereafter turn around to accuse the Court of giving technical justice when the thorn of the rule of law pricks them in the foot. Rules of courts, which include Practice Directions, are not intended to be applied slavishly, particularly if such application will do injustice in a case. Accordingly, a court will prefer to do justice rather than injustice on account of slavish adherence to the rules of court: see the case of P.D.P. V. I.N.E.C. (2012) 7 NWLR (Pt. 1300) 538.

Given the foregoing, issue two is resolved in favour of the Claimants. I so hold.

On issue three, the 1st – 2nd Defendants submitted that the principal reliefs 1 to 3 as contained in the Claimant Statement of Facts have nothing to do with the 1st Defendant. The 1st Defendant is not supposed to be made a party as none of the Claimant was working under the 1st Defendant as shown by the Claimant’s Amended Statement of Facts.

The Claimants submitted that the claimants in paragraphs 1, 31, 32, 33, 35 and 37(iv) and (v) of their amended statement of claim have pleaded that they are staff of the 1st, 2nd and 3rd Defendants. Secondly, the claimants have particularly pleaded in paragraphs 32, 33 and 34 that the 1st and 3rd defendants carried out verification exercises to reduce their staff strength, and in all the exercises, they participated and were not found wanting; that the 1st, 2nd 3rd and 5th Defendants owe the Claimants salaries areas of well over twenty-four months. That a community reading of paragraphs 3, 31, 32, 33, 34, 35 and 37 clearly discloses a reasonable action against the 1st defendant.

In resolving this issue, it is important to point out that parties must be consistent in the presentation of their case, counsel's submissions must always be received in the light of the prayers placed before the court Thus, not every word used by counsel in the course of making his submission to court should be subjected to microscopic examination such that the oral submission is allowed to supplant the reliefs properly made on the notice of motion: see the case of A. MANUF. IND. (NIG.) LTD. V. AKIYODE (2000) 13 NWLR (PT. 685) 576. Counsel for the 1st – 2nd Defendant by their application wanted the 1st Defendant to be struck out on the ground that there is no cause of action against the 1st Defendant but counsel turned 360 degree in his address to say that the 1st Defendant ought not to be joined to this suit as none of the Claimants were working under the 1st Defendant as shown by the Claimant’s Amended Statement of Facts. Submission of Counsel does not support the prayer 2 of the application of the 1st and 2nd Defendants.

To determine whether or not a suit discloses a cause of action and the relief sought, the courts are required to examine the averments in the pleadings and see if they disclose a cause of action. Once the statement of claim raises some issues of law or fact calling for determination by the court, the mere fact that the case is weak and not likely to succeed is not grounds for striking it out. Thus, a pleading can only be said to disclose no cause of action where it is such that nobody can understand what claims the defendant is required to meet: see the case of OMANG V. NSA (2021) 10 NWLR (PT. 1783) 55. Having carefully gone through the pleading before this Court, paragraphs 1, 5, 31, 32, 33, 34, 35 of the Amended Statement of Facts and the Reliefs 3, 4 and 5 therein disclose cause of action against the 1st Defendant.

Flowing from the foregoing, this suit discloses a reasonable cause of action against the 1st Defendant. Issue three is hereby resolved in favour of the Claimants. The objection of the 1st and 2nd Defendants partly succeeds; the three orders sought by the 1st – 2nd Defendants are refused but the 2nd Defendant is struck out from this suit for the failure of the Claimants to serve the pre-action notice on the 2nd Defendant. I so hold.

Having dismissed the Notice of Preliminary Objection filed by the 1st – 2nd Defendants, I will now proceed with the substantive suit.

On issue four, the claims of the Claimants before this Court are in two facets: a claim for a declaration that they are entitled to their salaries arrears and to direct the 1st, 2nd, 3rd and 5th Defendants to pay their salaries arrears for January, February, March, April, May, June, July, August, September, October, November, and the outstanding salary for December, all in 2017, as well as salary arrears from January 2018 to December 2018. Secondly, a claim for a declaration that their forced retirement was wrong and unlawful, and therefore null and void, and an order for reinstatement. It is important to note that the Defendants did not file a defence to the claim of the Claimants. A defendant who does not file a statement of defence to the claimant's statement of claim is deemed to have admitted the facts pleaded by the claimant: see the case of ADERONPE V. ELERAN (2019) 4 NWLR (Pt. 1661) 141.

Even at the default of the defence, the Claimants are not relieved from proving their claim; the Court does not grant the claim of the Claimants on the platter but on the pleading and credible evidence presented before the Court. A claim for relief of declaration, whether of title to land or not, is not established by an admission by the defendant, because the plaintiff must satisfy the court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. A court does not grant declaration on admission of parties because the court must be satisfied that the plaintiff on his evidence, is entitled to the relief claimed. It is for the plaintiff to prove his case and not for the defendant to disprove the plaintiff’s claim. Therefore, where the plaintiff on his own evidence failed to prove his claim for declaration, his claim must be dismissed. Indeed, courts do not make it a habit or encourage the trend of making declarations of right either on admission by the adverse party or default of appearances or pleading. In an action for declaratory relief, the court must satisfy itself by evidence properly adduced and not otherwise: see U.B.A. PLC V. EFFIONG (2011) 16 NWLR (PT. 1272) 84.

In proving the employment with the Defendants, the Claimants pleaded that the Claimants were staff of the 1st, 2nd and 3rd Defendants. The 1st – 21st and 24th Claimants were academic staff of the various primaries school Ogbia Local Government Area of Bayelsa State while the 22nd, 23rd, 25th and 26th Claimants were non-academic staff of state schools Akoloman, Otuabigi and Emeyal and tendered Exhibits CW001/CW001B-letters of appointment of the Claimants; CW002/CW002B-Claimants’ confirmation of appointment letters; CW003/CW003B-Claimants’ conversion/promotion letters and CW004/CW004B-Claimants’ staff verification slips. The law accords a measure of primacy to documentary evidence as against oral evidence. This being so because, most documentary evidence being in a permanent form is less susceptible to afterthoughts and thus more reliable than Oral evidence. It is for this reason that in law whenever documentary evidence is available in addition to Oral evidence, it is used as a hanger on which the veracity or credibility of oral evidence is tested or assessed by the courts: see the case of BELLO V. GOV., GOMBE STATE (2016) 8 NWLR (Pt. 1514) 219.

In this instant case, the Claimants, having tendered Exhibits CW001/CW001B-letters of appointment of the Claimants; CW002/CW002B-Claimants’ confirmation of appointment letters; CW003/CW003B-Claimants’ conversion/promotion letters and CW004/CW004B-Claimants’ staff verification slips, establish their employment relationship with the Defendant.

The Claimants pleaded and led evidence to establish that the 1st, 3rd and 5th Defendant are owing the Claimants salary arrears of well above twenty-four months. When the 1st, 2ndand 3rd Defendants finally commenced the payment of salaries of the staff of the 2nd and 3rd Defendants in October 2018, the Claimants realized that their names had been arbitrarily and unlawfully removed from the salary voucher of the 1st and 3rd Defendants. This piece of evidence is never challenged or contracted; the effect of the unchallenged evidence of a witness is that same is deemed admitted and should be acted upon: see the case of FAYEMI V. ONI (2010) 17 NWLR (PT. 1222) 326.

Given the uncontradicted evidence of the Claimants on the issue of outstanding salaries of the Claimants, it is, therefore, the finding of this Court that the Defendants are indebted to the Claimants for the salaries of salaries arrears for January, February, March, April, May, June, July, August, September, October, November, and the outstanding salary for December, all in 2017, as well as salary arrears from January 2018 to December 2018.

On the second leg of the claim of the Claimants, the Claimant pleaded that when the 1st and 3rd Defendants finally commenced the payment of salaries of the staff of the 2nd and 3rd Defendants in October 2018, the Claimants realized that their names had been arbitrarily and unlawfully removed from the salary voucher of the 1st and 3rd Defendants. They were ordered to proceed on retirement even though the Claimants were not due for retirement. The Claimants tendered Exhibit CW005A-O-statutory declaration of age of the Claimants. The snag here is that the Claimants did not provide evidence to link Exhibit CW005A-O-statutory declaration of age of the Claimants to their employment. That is, at what age were they employed, how many years were they supposed to spend in service and how many years have they spent in service? These are pertinent facts that will enable the Court to link Exhibit CW005A-O-statutory declaration of the age of the Claimants to their employment, in the absence of sufficient fact to establish that the Claimants are not due for the retirement, the Court is helpless. Documents admitted in evidence, no matter how useful they could be, would not be of much assistance to the court in the absence of admissible oral evidence by persons who can explain their purport: see the case of ALAO V. AKANO (2005) 11 NWLR (Pt. 935) 160.

In ABI V. C.B.N. (2012) 3 NWLR (PT. 1286) 1, the facts are that according to the appellant, he took ill on 26th February 2001 and was admitted by the 2nd respondent. The appellant stated that the 3rd respondent negligently diagnosed, prescribed and administered to him various drugs including gentamycin which made him permanently deaf. During the trial, he tendered exhibits B and Bl. Exhibit B was a reference form from the 1st respondent's staff clinic issued on 2nd May 2001 by a doctor, whose name was not stated, referring the appellant to Lagoon Hospital Lagos. The exhibit read as follows: "This gentleman sustained a hearing defect following treatment with Gentamycin. Kindly evaluate and manage accordingly thanks." The Appellant lost the case at the trial court and the Court of Appeal because he did not relate the contents of Exhibits B and B1 but he tendered the same as evidence that he was referred to Lagoon Hospital Lagos for further evaluation. The contents of that referral letter cannot be discountenanced as relates to the fact that he was referred to a hospital and the purpose. The Court of Appeal dismissed the appeal and held that:

From the pleading and evidence of PWI, Exhibit B was tendered to establish the fact that the appellant was referred to the Lagoon Hospital for evaluation and management. Where a document is tendered in evidence and it is intended in proof of a specific point, the duty on the party who wants to relate an exhibit to an aspect of his case is to say so explicitly and not leave the court to investigate the contents of the document. This is because the admitted documents as useful as they could be would not be of much assistance to the court in the absence of admissible oral evidence by persons who can explain their import.

Given the failure of the Claimants to relate Exhibits CW005A- O to their employment, the second limb of the claim is bound to fail and I so hold.

In respect of the general damages and cost of litigation, there is no pleading in support of these claims. The assessment of damages should be based on the pleadings and the evidence adduced. And where there is no evidence to support a claim for damages, the claim should be dismissed: see the case of N.I.M.V. LTD. V. F.B.N. PLC (2009) 16 NWLR (PT. 1167) 411

Flowing from the foregoing, the claim of the Claimants succeeds in part, Reliefs iii, v, vi and vii as contained in the Amended Statement of Fact are refused but grant Reliefs i, ii, and iv in the following terms:

i.        A declaration that the 1st - 21st and 24th Claimants who had conscientiously carried out their duties as academic staff of the 3rd Defendant are entitled to their salary arrears for January, February, March, April, May, June, July, August., September. October, November and the outstanding salary for December, all in 2017, as well as salary arrears from January 2018 to December 2018.

 

ii.                 A declaration that the 22nd, 23rd, 25th and 26th Claimants who had conscientiously carried out their duties as non-academic staff of the 3rd Defendant are entitled to their salary arrears for January, February, March, April, May, June, July, August, September, October, November, and the outstanding salary for December, all in 2017 as well as salary arrears from January 2018 to December. 2018.

iii.               An order compelling the 1st, 3rd and 5th Defendants to pay to the Claimants their salary arrears for January, February, March, April, May, June, July, August, September, October, November, and the outstanding salary for December, all in 2017, as well as salary arrears from January 2018 to December 2018.

 

iv.               Reliefs (iii), (v) (vi) and (vii) as contained in the Amended Statement of Facts are hereby refused for lack of proof.

 

v.                  All terms in this Judgment are to be complied with within 30 days from today without prejudice to the right of Appeal by both parties.

 

vi.               I decline to award any cost.

 

vii.             Judgment is hereby entered accordingly.

 

 

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

NATIONAL INDUSTRIAL COURT OF NIGERIA

YENEGOA DIVISION