Re-Instatement: Industrial Court Dismisses Suit Against UBEC For Lack Of Admissible Evidence

• 2429 Tuesday 12th June 2018

 

 

Yenagoa---His Lordship, Hon. Justice BASHAR A. ALKALI of the National Industrial Court of Nigeria, Yenagoa Judicial Division on Tuesday 5th June in a landmark judgment dismissed suit filed against THE EXECUTIVE SECRETARY UNIVERSAL BASIC EDUCATION AUTHORITY-NEMBELOCAL GOVERNMENT COUNCIL by MR. RICHARD MATTHEW challenging his unpaid salary and allowances for lack of admissible and cogent evidence.

 

The Claimant by a Complaint dated 17^thJune 2015 and filed on the same date approached this court and sought among others; A DECLARATION that the Claimant was reinstated as a Primary School Teacher with Salary Grade Level 07/5 and entitled to N53,140.19 per month from 8^thApril 2013 up to date by virtue of the re-absorption letter issued by the 1^stDefendant dated 8^thApril, 2013.A DECLARATIONthat the Claimant is entitled to the arrears of his unpaid salary and allowances amounting to N1, 328, 500 (One Million, Three Hundred and Twenty Eight Thousand and Five Hundred Naira) for two years (i.e. 8^th April, 2013 – 8^th April 2015) illegally withheld and working meticulously without pay. And AN ORDER directing the Defendants to regularize the reinstatement of the Claimant forthwith or alternatively terminate employment of the Claimant properly and pay all arrears and entitlements under the contract of employment.

 

 

The Claimant’s case is to the effect that he is an employee of the Defendants having being so employed in the year 1980 by the 3^rdDefendant; but now currently working under the 1^stDefendant. The Claimant by his pleadings and evidence before this court states that in the year 1998, he applied for leave of absence to contest Councillorship Election of his ward in Nembe Local Government Council. And while approval of the Claimant’s application for leave of absence was pending the Local Government Elections drew closer and the Claimant contested and won the Councillorship position.

 

That at the expiration of the Claimant’s tenure of office, the Claimant applied formally through the 1^stDefendant in 2013 for re-absorption which same was granted. And the Claimant was re-absorbed by the Nembe Local Government Basic Education Authority (1^st Defendant) by a letter of re-absorption dated 04/02/2014 And consequent upon this, the Claimant was posted to St. Mark’s School 1, Okoroba and he was placed on Salary Grade Level 07 Step 5 and that he is entitled to N53, 140.19 (Fifty Three Thousand, One Hundred and Forty Naira, Nineteen Kobo) per month effective from March, 2014. But that the 2^ndDefendant has refused despite several pleas to heed to his plight by the non-payment of his salaries hence this action and the reliefs sought.

 

The defendants maintained that the Claimant only abandoned his job and ventured into politics for several years without any approval, And this amounts to gross misconduct which attracts a dismissal under the Public Service Rules. That the Claimant by the Public Service Rules had already resigned his job when he went and contested for Councillorship position. And also, by the Bayelsa State Universal Basic Education Board (Amendment) Law 2012, the 1^stDefendant does not have the power to recruit, appoint, promote, post, discipline, transfer, deploy, retire or re-absorb staff of THE EXECUTIVE SECRETARY  BAYELSA STATE UNIVERSAL BASIC EDUCATION BOARD OKOLOBIRI (2^ndDefendant’s) Board on Grade Level 7 and above. And that whatever re-absorption done for the Claimant by the 1^st and NEMBE LOCAL GOVERNMENT COUNCIL( 3^rdDefendant) is illegal, null and void in accordance with the Bayelsa State Universal Basic Education Law 2007.

 

Furthermore, It is also part of the submission of the Claimant that there is no evidence to show termination of the re-instatement or re-absorption of the Claimant. The 2^ndDefendant on whose directive and instruction the 1^stDefendant acted in his capacity never took up step to formally terminate the re-absorption of the Claimant even as he detected the 1^stDefendant’s ultra-vires act of re-absorption and posting of the Claimant.

 

After reviewing the argument of the parties, the Court Presided by Hon. Justice BASHAR A. ALKALI expressed thus;

 

“I have read and understood the processes filed by Learned Counsels for the parties in this suit. I heard the testimonies of the witnesses called on oath, watched their demeanor and carefully evaluated all the Exhibits tendered and admitted. I also heard the Oral Submissions of Learned Counsel for either side.

“According to his pleadings and evidence before this court, in the year 1998 he applied for leave of absence to contest Councillorship election which he did and won. But he has not placed any document before this court to show that his application for leave of absence was either approved or rejected. But the Claimant went for a sojourn for 14 good years only to resurface in the year 2013 where in a letter dated 8^thApril, 2013 and addressed to the 1^stDefendant applied for re-absorption into the teaching system.

 

“Let me state at this juncture that by the letter of the Claimant dated 8^th April, 2013 and addressed to the 1^stDefendant applying for re-absorption it signifies that the Claimant had accepted the fact that he was out of employment of the Defendants.

“In fact in the said letter, the Claimant had admitted to the fact that his application for leave of absence was not approved.

“Assuming that the 1^stDefendant is desirous in re-absorbing the Claimant on Salary Grade Level 07 under any guise, Bythe provisions of Section 9 of the Bayelsa State Universal Basic Education Law 2007 he can only make recommendation to the 2^ndDefendant and not to act unilaterally. And there is no any evidence to show that the 1^stDefendant did actually sent any recommendation to the 2^nd Defendant with a view to re-absorb the Claimant. And EXHIBIT CW1 MT001 clearly stated that the Claimant was re-absorbed on Salary Grade Level 07 Step 05 which is not within the purview of the 1^stDefendant. The act of the 1^stDefendant is void ab-initio and I so hold.

“Finally, based on the reasons I adduced ab-initio I felt that the Claimant’s action failed. And the entire case of the Claimant is hereby dismissed for lack of credible, cogent and admissible evidence. Parties are to bear their respective costs.

 

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