NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
BEFORE HIS LORDSHIP:
HON. JUSTICE A. A. ADEWEMIMO
DATED: 18TH APRIL, 2024 SUIT NO: NICN/BEN/30/2020
BETWEEN
1. ROLAND EIGBE …..……CLAIMANTS
2. KADIRI ANIDU E.
AND
1.
COMMISSION
2. AUDU YAHAYA OMOGBAI ….….…. DEFENDANTS
3. HON. RAPHAEL O. OKHANI
(CHAIRMAN TO THE COMMISSION)
REPRESENTATION
I.
Atoe, Esq. with L. N. Esezobor, Esq. and Kelvin Agbonigbale, Esq.
for
the Claimants
R. O.
Isenalumhe, Esq. with A. O. Akintomide, Esq. for the defendants
JUDGMENT
1. The Claimants commenced this suit against the defendants
vide a General Form of Complaint, Joint Statement of Facts, Statements on Oath,
and other accompanying processes dated and filed 12th day of
October, 2020. The Claimants are thereby seeking the following reliefs
severally against the defendants as follows:
1.
A Declaration that the withdrawal of the Claimants promotion
via a letter dated the 4th day of September, and the 29th
day of September, 2020 is unlawful, illegal, unconstitutional, null and void.
2.
A Declaration that the Defendants’ decision to withdraw the
claimants’ promotion on the ground that the claimants sued the clerk of the
house in his personal capacity is unlawful, illegal, unconstitutional, null and
void.
3.
A Declaration that the defendants’ decision to withdraw the
claimants’ promotion on the ground that there were discrepancies in their APER
form is unlawful, illegal, unconstitutional, null and void.
4.
An Order on the defendants to release to the claimant their
respective promotion and to reinstate them to their promoted positions with
immediate effect.
5.
General damages of N10,000,000.00
(Ten Million Naira) only against the defendant.
2. The Defendants entered appearance vide a memorandum of
appearance dated 9th April, 2021, and filed a Joint Statement of
Defence with other accompanying processes dated and filed 23rd June,
2021. All the defendants’ processes were deemed properly filed on 31st
of January, 2022, upon which the claimants filed a Reply to the Statement of
Defence dated 4th February, 2022 and filed 10th February,
2022,
3. The claimants’ case is that, they were employees of the 1st
defendant, and by virtue of the employment, they became members of
Parliamentary Assembly Staff Association of Nigeria (PASAN), Edo State Chapter.
The claimants averred that the 2nd defendant illegally dissolved the
Executive council of Edo State chapter of PASAN headed by the 1st
claimant in his capacity as chairman, and set up a caretaker committee. The 2nd
defendant was also accused of surcharging the claimants’ monthly salaries, as a
result, of which a sum of N50,000.00k
and N60,000.00k was being deducted from
the monthly salary of 1st and 2nd Claimants respectively.
4. Trial in this suit commenced on 4th May, 2023
with Mr. Roland Eigbe, the 1st claimant testifying as CW1. He
adopted his written statement on oath and tendered several documents which were
admitted in evidence and marked Exhibits A1, A2, A3B, A4.CW1 testified that he
was employed by the 1st defendant, and thereby became a member of PASAN,
and was the chairman of the Edo State chapter at the time of the incident in
this case. He testified further that on the 31st of January, 2019,
the 2nd defendant called a meeting of the chapter, and dissolved the
Executive council of the chapter, and set up a caretaker committee to manage
its affairs. CW1 alleged that the action of the 2nd defendant was
illegal, and in line with the provision of Rule 22(5) of the PASAN
Constitution, they sought the intervention of the Speaker and other principal
officers of the House on the issue. CW1 led evidence that all efforts to ensure
a peaceful resolution of the dispute proved abortive, and this led to the Claimants
resolve to institute Suit No. NICN/BEN/37/2019 against 2nd Defendant.
The 1st Claimant testified that the aforementioned suit was
predicated on the unlawful dissolution of the executive council of PASAN, and
recovery of the funds unlawfully deducted from their salaries.
5. CW1 claimed that while the suit was pending, he and the 2nd
Claimant were promoted to the post of Chief Executive Officer GL.14 and
Assistant Chief Executive Officer GL.13, respectively. He alleged that the 2nd
Defendant however refused to endorse the letters of promotion issued to them by
the 1st defendant, and same was later withdrawn vide a separate
letter dated 4th September, 2020.
6. Under cross-examination, CW1 confirmed that he was a staff
of the 1st Defendant, and maintained that the 2nd and 3rd
defendants played a serious role in the withdrawal of his promotion. He stated
that the 2nd defendant refused to endorse his letter of promotion,
and in collaboration with the 3rd defendant, this led to the
withdrawal of his promotion. CW1 however
agreed, that the 2nd and 3rd defendants did not play any
role in his employment because they were not in office when he was employed. He
testified that it is not true that his promotion was withdrawn because of
discrepancies in his APER form, as there was nothing of such. He pointed out
that his promotion letter was already issued before same was withdrawn because
he sued the 2nd Defendant.
7. The claimants called Mr. Kadiri Anidu i.e. the 2nd
claimant as CW2, the witness adopted his written statement on oath, which are
on all fours with the evidence of CW1 and tendered two documents which were
marked Exhibits A3A and A5.
8. Under cross examination, CW2 confirmed that he is a staff of
the 1st defendant, and he agreed that 2nd and 3rd
defendants did not play any role in his employment, and he did not have any
personal issue with them. CW2 maintained that the issue he had with the 2nd
defendant was because of deductions from his monthly salary, while the 2nd
defendant also had an issue with him based on his refusal to withdraw the suit he
instituted against him. CW2denied the suggestion that his promotion was
withdrawn because of discrepancies in his APER form, and maintained that there
was nothing of such.
9. The defence opened on the 23rd day of October,
2023, with one Ahunwan Osahan Newton, Secretary to the 1st defendant
testifying as DW1. He adopted his written statement on oath, and tendered a document
marked Exhibit BB1. DW1 was duly cross examined by the claimants’ counsel, and
under cross examination, he testified that, he is aware that before Exhibit BB1
were issued to the claimants, they were earlier served Exhibit A3 (A & B). DW1 admitted that it was stated in Exhibit A3
that the claimants will lose their job if they refuse to withdraw Suit No:
NICN/BEN/37/2019. DW1 disagreed that the claimants’ promotion letters were withdrawn
for this reason, and noted that a promotion letter that was erroneously issued,
can be withdrawn.
10.
The defence closed after the evidence of DW1, and
the case was adjourned for adoption of final written addresses. Counsel for the
parties subsequently filed their final addresses, and same were adopted on 22nd
January, 2024.
11.
The Defendants’ Final Written Address dated 19th
day of January, 2024 and filed 22nd January, 2024, was argued by A.
O, Akintomide Esq. of counsel for the defendants. Learned counsel for the
defendants formulated two issues for determination in the address, to wit:
i.
Whether or not the withdrawal of the claimants’ letter of
promotion was lawful?
ii.
Whether the 2nd and 3rd defendants who
are public officers can be held personally liable for anything done by them in
the course of performing their official duties.
12.
On issue one, counsel submitted that the
withdrawal of the letters of promotion issued to the claimants by the 1st
defendant was done lawfully and in accordance with the Edo State Civil Service
Rules on appointment, promotions, discipline and general purposes. Counsel
referred the court to paragraphs 6-8 of the Joint Statement of Defence, 7-9 of
the Defendants’ witness statement on oath, and Exhibit BB1.He maintained that
in a situation where there are discrepancies in the Annual Performance
Evaluation Report of a Staff, the 1st defendant has the power to
withdraw such promotion. Counsel noted that in the instant case, the 1st
defendant observed discrepancies in the claimants’ APER forms, and their
failure to meet the minimum requirements for promotion, hence the decision to
withdraw their promotion letters. DW1maintained
that the alleged promotion letters were issued in error, and this has been established
by the facts pleaded in their defence. He therefore urged the court to resolve
issue 1 in favour of the defendants.
13.
On issue two, Counsel submitted that in
instances where a public officer has acted in an official capacity, he cannot
be held personally liable for anything done on behalf of the principal. He further
argued that any wrong committed by such an officer is a wrong committed in law
by his employer, citing ALH. WADA NAS
VS. SEN. (CHIEF) ABRAHAM ADESANYA (2003) ALL FWLR (PT. 145) 693, Parags B-C.
14.
Learned counsel noted that the 2nd
and 3rd defendants are public officers, and they played no role in
their personal capacity in the withdrawal of the claimants’ promotion letters.
He pointed out that the names of the 2nd and 3rd
defendants having been joined to this suit in their personal capacity, are
liable to be struck out, as same were wrongly joined. He urged the court to strike out the names of
the 2nd and 3rd defendants and to dismiss the claimants’
case in its entirety.
15.
The Claimants’ Final Written Address is dated
12th day of January, 2024 and filed 15th January, 2024,
was argued by I. Atoe, Esq. of counsel for the claimants. Counsel went on to
adopt a lone issue for determination in the address, to wit:
“Whether in the light of the evidence before this Honourable
Court, the withdrawal of the claimants’ promotion letters was lawful and valid/”
16.
Learned counsel submitted that from the
evidence adduced by both sides, the claimants’ employment is governed by
statute, and is therefore statutorily flavoured. Counsel noted that the status
of the claimants is not in dispute, and he relied on CENTRAL BANK OF NIGERIA VS. MRS. M. IGWILLO (2007)14 NWLR (PT. 1054)
393.
17.
Counsel submitted that the discrepancies
observed in the APER forms of the claimants were never disclosed to them in
writing by the Permanent Secretary/Head of Extra Ministerial Office as stipulated
in Chapter 5 of the Public (sic) Service Rule. He further argued that
discrepancies in an APER form is not a ground for withdrawal of promotion
already issued, he therefore urged the court to so hold.
18.
Counsel submitted that the alleged
discrepancies (if any) found in the claimants’ APER forms were not disclosed in
this case, even though the defendants retain the sole responsibility to
establish same. He submitted that the action of the Defendants is the height of
abuse of office and power, premised on the suit instituted against the 2nd
defendant. Counsel further cited Exhibits A2 and A3A, and maintained that the
defendants’ action is a clear case of victimization aimed to punish, humiliate
and frustrate the claimants out of service. He continued that the defendants
eventually achieved their aim, when the claimants were dismissed from service.
19.
In conclusion, learned counsel noted that
there is no provision in the Civil Service Rules that allows an officer’s
promotion letter to be withdrawn because he instituted a suit against another
officer in his personal capacity. He continued that promotion cannot also be
withdrawn on the ground of discrepancies in the APER form, and no such
discrepancies was communicated in writing to the claimants before the
defendants withdrew same. Counsel finally
urged the court to grant all the reliefs sought by the claimants and other
consequential orders in this suit, as the action of the defendants is unlawful,
illegal, wrongful, null and void and of no effect.
20.
I have carefully read all the processes filed
in this suit, listened to the evidence adduced by the witnesses called, and I
have considered the final submissions of counsel on both sides. Thereafter, I
have settled on two issues for the effectual and effective determination of
this suit, to wit:
(a)
Whether
or not the withdrawal of the claimants’ letters of promotion was lawful.
(b)
Whether
or not the claimants are entitled to the reliefs sought.
21.
The three categories of
employment recognised in employment law are (a) Private, (b) statutory
employment and (c) employment held at the pleasure of the employer. It is
settled law that a statutory employment is one in which there are laid down
rules/regulations made to govern the procedure for appointment and discipline
of the employee. On this, see Comp.-Gen.,
Customs v Gusau [2017]18NWLR 353 at Pp. 388, paras. F-H and (P. 390,
paras. C-E).
Therefore, in instances of an employment dispute, it is the claimant(s) that
bears the burden to adduce evidence on the employment, terms of the employment,
and how same was breached by the employer, see Sections 132 and 133 of the
Evidence Act, 2011.
22.
It is uncontroverted that the
employment relationship between the parties in this suit is guided by the Civil
Service Rules, as pleaded in paragraph 16 of the Reply to the Joint Statement
of Defence. These Rules without doubt has the status of subsidiary legislation,
and the
defendants being members of an arm of the State Government is guided
by the Rules (Edo State Civil Service Rules, 2006). This court must therefore evaluate
the validity of the action of the defendants in the instant suit using the
standard provided in these Rules in reaching a well-considered decision.
23.
In proof of
their case, the 1stclaimant testified as CW1 and tendered
Exhibits A1 – A4, while the 2nd claimant testified as CW2, and
tendered Exhibits A3A – A5. The record of this court reveals that facts
are undisputed that the claimants are employees of the 1st
defendant, and the breach alleged against the defendants is the withdrawal of
their letters of promotion. The claimants led evidence that the defendant’
action is unlawful, illegal, vindictive and in breach of their conditions of
employment. They further led evidence that the defendants complained about a
suit instituted against the 2nd defendant, and threatened them with
the loss of their jobs. The defendants on the other hand relied on the evidence
of DW1, and Exhibit BB1, they also contended that the claimants were
undeserving of the promotion, hence the withdrawal of same.
24.
The evidence
of DW1 under cross-examination before this court is of relevance in this
regard, as it reveals that Exhibit A3Awas issued by the defendants before
Exhibit BB1. A scrutiny of the content of Exhibits A2 and A3A issued to 1st
and 2nd claimants respectively reveals they are on all fours, while the
reason for the withdrawal of the promotion letters was stated as follows:
“At the meeting of the commission held
on Thursday 31st September, 2020, your issue and Two (2) others who
sued the Clerk of the House – Alhaji Audu Omoghai in his personal capacity at
the National Industrial Court, Benin City (Suit No. NICN/BEN/37/2019) was
discussed. The action was viewed seriously against you and two others.
2. Consequently, the commission has
directed that your promotion to the post….should be withdrawn
3. The letter therefore supersedes our
earlier one Ref. No. PC. 1311/128 DATED 12TH August, 2020.
4. Thank you
Sgd.
Mr Efosa O. I gbinomwanhia
For: Chairman
25.
It is on
record that DW1 led evidence that promotion letters issued to the claimants can
be withdrawn if same were erroneously issued, but, the content of the exhibits
reproduced above reveals the intent and motive behind the withdrawal. The
reason adduced in the letters reproduced above is clear, and emphatic, which
is, same was withdrawn because of the case the claimants instituted against the
2nd defendant. The defendants’ action thereafter, i.e. withdrawal of
the letters vide Exhibit A4 and A5, and the evidence adduced by DW1 that this
was as a result of discrepancies in the claimants’ APER forms, therefore constitutes
an afterthought.
26.
This fact can
be deduced from the evidence placed before this court, and the defence which lacks
probative value. The defendants in this case were unable to debunk the
allegation that Exhibits A2 and A3A were issued, as a result of the case filed against
the 2nd defendant. Exhibits A2 and A3A therefore constitute cogent
and concise evidence of the motive, and reason behind the withdrawal of
claimants’ promotion letters.
27.
The defendants’
contention that the letters were withdrawn because of discrepancies in the
claimants’ APER forms, notwithstanding, the evidence disclosed at trail reveals
that the defendants acted based on the ongoing dispute between the parties.
28.
Consequently,
the claimants’ allegation in this case that the withdrawal of the claimants’ promotion
letters is unlawful, and also in breach of Chapter 5 of Edo State Civil Service
Rules, is worthy of scrutiny. I have read the provisions under Chapter 5 of the
Edo State Civil Service Rules, 2006, on Annual Performance Evaluation Reports,
I find that Sections 1 and 2 under this chapter are relevant to this case, and
are hereby reproduced as follows:
Rule 050103 – The substance of any
adverse comment on an officer’s work or conduct included in a report shall be
conveyed to him in writing by the reporting Permanent Secretary/ Head of Extra
Ministerial office in sympathetic terms and with the object of enabling and encouraging
him to overcome his shortcomings. The fact that this action has been taken
shall be stated in the report itself. A copy of the letter addressed to the
officer as well as a copy of the acknowledgment should be attached to the
Report. Attention is however drawn to Chapter 3 of these rules……..
Rule 050201 – Progress Reports are
meant to provide in respect of officers on probation or initial contract, a
full record of each officer’s work, conduct and capabilities on which to judge
his suitability for confirmation or re-engagement (whichever is appropriate)
and to ensure that in cases where an officer’s suitability for continued
employment is in doubt, he is given timely warning of his faults and reasonable
opportunity to correct them….”
29.
The above
provisions merely discloses the steps to be taken in instances where there is
an adverse comment against an officer in the APER forms, and it is so provided
that the objective of these provisions is to have a record of full details of
the work done by the officer. It is also to measure the suitability of the
officer for continuous employment, but nowhere is it stated that discrepancies
in an APER form can lead to withdrawal of promotion, most especially without
due process. In other words, there is no provision in the entire chapter
relating to withdrawal of promotion, and taking into account the position of
the law which states that the terms of a statutory employment are sacrosanct, no
external meaning can be imported into same.
30.
Furthermore,
where there is a breach of the terms in a statutory employment, such action can
only amount to a nullity. In the instant case, it is baffling that the
claimants’ letters of promotion were withdrawn based on some unidentified
discrepancies in their APER forms. In this regard, the claimants were neither
invited nor their attention drawn to any discrepancies in the APER forms,
contrary to the principle of fair hearing. It is pertinent to note that before
taking a decision that will clearly affect the career progression of an officer
in a statutory employment, the courts have held time and time again that such
an officer must be given a fair hearing, see Rule 050201 of the Edo State Civil
Service Rules, 2006.
31.
The failure
of the defendants to invite the claimants on the discrepancies cited in their
APER forms, and to provide details of the discrepancies, renders the defence in
this suit ineffectual. The decision of the defendants to withdraw the promotion
letters of the claimants in this instance is therefore in breach of Rules
050103 and 050201, of Edo State Civil Service Rules, 2006, and the principles
of fair hearing under S. 36 of the CFRN 1999.
32.
In line with
the above, the claimants have established a breach of their contract of
employment i.e. Edo State Civil Service Rules, 2006, as well as their
constitutional right to fair hearing in the withdrawal of their letters of
promotion against the defendants in this suit. As a result, issue1 is hereby
resolved in favour of the claimants. I so hold.
33.
On the contention of the defendants that the 2nd
and 3rd defendants were improperly joined as parties in the present
suit, the principle of law is that proper parties are persons who though not
interested in the claim, are joined in a suit for some reasons. Whereas a
necessary party is not only interested in the subject matter, but one in whose
absence the suit cannot be effectively and finally determined, see T. DELAK DISTRIBUTION SERVICE LTD &
ANOR V. UGBOWANKO [2018] LPELR-46480 (CA), ADEFARASIN V. DAYEKH [2007] 11 NWLR
(Pt.1044) 89.
34.
In PANALPINA
WORLD TRANSPORT LTD V. J. B. OLANDEEN INTERNATIONAL & ORS [2010] LPELR-2902
SC, a necessary party to a proceeding was defined as a party whose presence
and participation in the proceeding is necessary or essential for the effective
and complete determination of the claim before the Court. The claimants have
pleaded and led evidence of the role played by the 2nd and 3rd
defendants, and levied serious allegations against both of them in their
pleadings, see paragraphs 18, 19, 20 and 21 of the statement of facts.
Furthermore, the essence of joining the 2nd and 3rd
defendants is for them to be bound by the decision of this court, giving the
roles played by them in the cause brought before this court.
35.
In line with the above, the presence of the 2nd
and 3rd defendants is pivotal to the resolution of the issues at
stake in this suit. Therefore, the contention of the defendants that the names
of the 2nd and 3rd claimants be struck out from this suit
is untenable.
36.
On issue 2, the claimants vide their
reliefs 1, 2, and 3 are seeking declarations that the denial of their
promotion is unlawful, null and void, as it runs contrary to the rules of
Natural justice, Rules and Regulations governing their employment. The law is
trite that the Court do not grant declaratory reliefs in default of defence, or
indeed on admissions without hearing evidence and being satisfied that the
claimant is entitled to same, see Kwande & Anor v Mohammed & Ors.
(2014) LPELR-22575(CA). I have earlier held that the withdrawal of the
claimants’ promotion is unlawful, invalid and in breach of the terms of the
employment, hence it follows that
reliefs 1, 2, and 3 are meritorious, and hereby succeed.
37.
Relief 4 is
for an order for the defendants to release the claimants’ respective promotion
letters, and is therefore consequential to the resolution of the 1st
issue for determination.
The 1st and 2nd Claimants led uncontroverted
evidence on their promotions to the post of Chief Executive Officer GL 14
and Asst. Chief Executive Officer GL 13 respectively and that same was
unlawfully withdrawn. This issue was resolved in favour of the claimants in
this judgment, and the withdrawal of the Claimants’ promotion letters was
declared unlawful. In line with the above reasoning, this relief is meritorious,
and therefore succeeds. I so hold.
38.
On the claim
for N10,000,000.00 (Ten Million Naira) General
Damages against the defendants in relief 5, I find that an award for general
damages is at the discretion of the court, which must be exercised judicially
and judiciously. This court earlier ordered the defendants to release and
reinstate the claimants’ respective promotion, nonetheless, I find that the
action of the defendants in the instant case is unnecessarily oppressive, and a
blatant disregard for the Rules guiding a statutory employment. In this wise, I
find the claim for damages is meritorious, and hereby consequently award a sum
of N200,000.00k each to the claimants
as general damages to be paid by the defendants in this suit.
39.
In conclusion, I hereby declare and order as
follows:
I.
The
withdrawal of the 1st and 2nd Claimants promotion via a
letter dated 4th September, and 29th September, 2020,
respectively is unlawful, illegal, unconstitutional, null and void.
II.
The withdrawal
the Claimants’ promotion by the Defendants for suing the 2nd Defendant
in his personal capacity is unlawful, unconstitutional, null and void.
III.
The
withdrawal of the Claimants’ promotion based on the discrepancies in their APER
form is unlawful, illegal, unconstitutional, null and void.
IV.
The Defendants
are ordered to release to the 1st and 2nd Claimant their
respective promotions, and to reinstate them to their promoted positions i.e.
Chief Executive Officer GL 14 and Asst. Chief Executive Officer
GL. 13 respectively with attendant
benefits with immediate effect.
V.
A sum of
N200,000.00k (Two Hundred Thousand
Naira) is hereby awarded as to each of the Claimants as general damages.
VI.
All
sums awarded in this Judgment shall be paid within 30 days, failing which it
shall attract an interest of 10% per annum.
A cost
of N50,000.00k is awarded against the
defendants.
Judgment
is entered.
Hon.
Justice A. A. Adewemimo
Presiding Judge