NWACHI V ABIA STATE TEACHING HOSPITAL BOARD & ANOR

NWACHI V ABIA STATE TEACHING HOSPITAL BOARD & ANOR

Editorial Note: This case forms part of a tripartite suit( MICHAEL V ABIA STATE TEACHING HOSPITAL BOARD & Anr; SUNDAY v ABIA STATE TEACHING HOSPITAL BOARD & Anr; NWACHI V ABIA STATE TEACHING HOSPITAL BOARD & Anr) bothering on the same claims, facts, circumstances and the same law, before the same judge and represented by the same counsel for all parties. The cases were not consolidated, hence judgement was given separately on each of them. However, the judgements, including analysis, authorities and conclusions, are substantially the same, and appeared to have only been edited with regards to the name of the parties. Therefore, for an analysis of this case see MICHAEL V ABIA STATE TEACHING HOSPITAL BOARD & Anr


IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

ON THE 4TH DAY OF DECEMBER, 2015


SUIT NO: NICN/EN/217/2013

CITATION: NIC (2015) 12 LLER 3

CORAM:
HON. JUSTICE O. Y. ANUWE


BETWEEN

DR. (ELDER) CHRIS IHEANYI NWACHI

(CLAIMANTS)

AND

1. ABIA STATE TEACHING HOSPITAL BOARD

  1. ABIA STATE UNIVERSITY TEACHING HOSPITAL

RESPONDENTS


REPRESENTATION
Bertram Faotu, with him, I. A. Agwa & Nnamdi Okorie for the Claimant

Nnamdi Ahunanya, with him, C. Ogwo (Asst Chief State Counsel, Ministry of Justice, Abia State) for the Defendants

JUDGEMENT

The Claimant filed this action on the 19th day of September 2013, seeking the following reliefs against the defendants:

  1. A declaration that the Claimant is still in the employment of the Defendants.
  2. A declaration that the Claimant is entitled to all his salaries, allowances and entitlements at the rate of N90,506.95 per month, totaling the sum of N5,430,000.00 from the month of September 2008 to August 2013.
  3. An order compelling the Defendants to pay to the Claimant the said sum of N5,430,000.00 being his salaries, allowances and entitlements from September 2008 to August 2013.
  4. An order compelling the Defendants to pay to the Claimant his salaries, allowances and entitlements at the rate of N90,506.95 from August 2013 until judgment.
  5. 10% interest on the judgment sum until final liquidation of the entire judgment sum.
  6. An order compelling the Defendants to recall the Claimant to work immediately.

Along with the Complaint, the Claimant filed a Statement of Facts, Written Statement on oath, List of witnesses, List of documents and copies of documents to be relied upon at the trial. The defendants entered appearance on the 25th day of October 2013 and on the 28th day of October, filed a joint Statement of Defence, Witness statement on oath and List of witnesses, while indicating that there were no documents to be relied upon at the trial.

On the 2nd day of April 2014, the Claimant filed a reply to the defendant’s Statement of Defence and a further Statement on oath.

The case proceeded to hearing on the 2nd day of April 2014. The parties fielded a witness each. The Claimant testified for himself as CW1, while Emmanuel Asomugha, the Chief Administrative Officer of the Defendant testified as DW1.

Hearing was concluded and the defendant closed its case on the 3rd day of April 2014. At the close of the case for each of the parties, final written addresses were ordered to be filed in accordance with the rules of this court, starting with the

defendant. The defendants filed their written address on the 23rd day of May 2014 and the Claimant’s written address was filed on the 10th day of July 2014. Thereafter, the Defendants filed a Reply on points of Law on the 5th day of August 2014. Parties adopted their respective written addresses on the 3rd day of October 2014.

The defendants in their written address filed on the 23rd day of May 2014, gave a brief summary of the relevant facts of the case, and proceeded to raise the following three (3) issues for the determination of the court:

(a) Whether having regards to the Public Officers Protection Law Cap 140 Laws of Abia State of Nigeria 2005 Vol. 6 this suit as instituted against the defendants is statute barred having been instituted 3 months after the cause of action arose.

(b) Whether this suit discloses a cause of action against the 2nd defendant regards being had to section 3 and 6 of the Abia State University Teaching Hospital Management Board Cap 39 Laws of Abia State of Nigeria.

(c) Whether the claimant is entitled to the reliefs sought by him regards being had to the fact that his appointment was still on probation at the time he was directed to stop work.

In arguing the first issue, it was submitted by counsel to the defendants that the law is trite that the words “any person in public office” as stipulated in Section 2(a) of the Public Officers Protection Law does not only refer to natural persons or persons sued in their personal names but extend to public bodies artificial persons. Institutions or persons sued by their official names or titles. Counsel cited the case of IBRAHIM vs. J.S.C. (1998) 14 NWLR (Pt. 584) 1; CENTRAL BANK OF NIGERIA vs. ADEDEJI (2004) 13 NWLR (Pt. 890) 226; N.I.I.A. vs. ANYANFALU (2007) 2 NWLR (Pt. 1018) 246; NWAOGWUGWU vs. PRESIDENT F.R.N. (2007) 6 NWLR (Pt. 1030) 237.

Based on the above legal position and with reference to paragraph 2. 3. 4 of the Statement of Facts establishing the cause of action wherein the claimant did lead that the 1st defendant is the body responsible for the administration of the 2nd defendant, Counsel submitted that the defendants are public Officers and bodies within the contemplation of the law hence are entitled to the protection afforded by the said law. The claimant as the sole witness pleaded and led evidence to the effect that the directive given sometime in September 2009 precipitated the action. The claimant did not plead or lead evidence that the 1st defendant acted outside the bonds of its public authority or acted outside the colour of its statutory constitutional duty as to deny it of the protection under the said law.

Being that the law is trite to the effect that for the purposes of limitation of action time begins to run from the moment the cause of action arose or accrued and a cause of action accrues from the date on which the incident which gave rise to the cause of action occurred. See: FADARE vs. ATT. GEN. OYO STATE (1982) 4 SC 1, (1982) NSCC 52 @ 60; N. I. I. A. vs. ANYANFALU (Supra). Counsel to the defendants urged the Court to hold that going by the facts as averred in paragraph 8 and 9 of the Statement of Facts, paragraph 16(ii) and (iii) of the Relief Sought and the evidence of CW1, the claimants cause of action arose “sometime in September 2009 (when) the defendants issued a notice/directive asking the claimant and some other members of staff to stop work until further directives are received” and further that this action having been filed in September 2013 (over 36 months after the cause of action accrued), is statute barred. As stated in EKEOGU vs. ALIRI (1991) 3 NWLR (Pt. 179) 258, the public officers protection law in so far as it imposes a limitation time which an action may be brought against a public officer is statute of limitation. Counsel therefore urged the Court to resolve the 1st issue (issue no (a)) in favour of the defendant and ipso facto discharge the defendants by dismissing the suit. See: BALA HASSAN vs. BABANGIDA ALIYU (2010) 43 NSCQR 139 @ 176.

In arguing the second issue, it was the submission of counsel to the defendants that in the event that the Court discharges the 1st defendant based on his being a public officer, then the next issue is as regards whether taking into cognizance the reliefs sought by the claimant, a cause of action is disclosed against the said 2nd defendant in view of the statute creating it. The said 2nd defendant is established under section 3(i) of Abia State University Teaching Hospital Management Board Law Cap 39 Vol. 2 Laws of Abia State of Nigeria 2005. The said section equally established the 1st defendant. The said section reads thus:-

“There is hereby established a teaching hospital to be known as the Abia State University Hospital for the purpose of providing such facilities for the training of medical and other students as are usually provided by teaching hospitals of international High repute. There shall be established for the management of the Hospital Board which shall be a body corporate with perpetual succession and a common seal.

It is therefore evidence that while the 2nd defendant was established for the purpose of training students, the 1st

defendant was established to manage the said 2nd defendant. This position as further buttressed by the combined reading of section 6 and 7(5) of the above mentioned Law. Section 7(5) is most explicit and specially stated the duty of the Board thus:-

“Subject to the provisions of this law, the Board shall have power to appoint (including power to appoint on promotion and transfer and of confirmation of appointment). Advance, terminate or discipline employees (including consultants) holding or acting in any office in the hospital; and any such appointment shall be made having sue regard to any personnel establishment approved for the Hospital.

Counsel therefore submitted that inasmuch as the 2nd defendant is not the body saddled with appointment, advancement termination or discipline of its employees, of which the claimant claims to be one, it is not a proper party to this suit and no cause of action is established against it.

The law is trite that for an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent plaintiff and a competent defendant. See: ATAGUBA & CO. vs. GURA NIG. LTD (2005) 8 NWLR (Pt. 927) 429 @ 445CE (Ratio 1); (2005) ALL FWLR (PT. 265) 1219; (2005) 2 SCNJ 139. Counsel urged the Court to hold that the 2nd defendant is not a competent defendant as such the court’s jurisdiction to adjudicate on it is ousted. Furthermore the law is equally trite that competency or legal capacity to defend an action is an essential desideratum in deciding the competency to institute an action being in itself a vital factor in determining the competency of the action. When challenged in the case of the defendant as to his legal capacity to defend, the onus is on the plaintiff to establish the legal competency. See: THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA (DECEASED) vs. EKE SPIFF (2009) ALL FWLR (467) SC 1 @ 21-22HA.

To the defendants, the claimant might contend that his suit is not statute-barred being that there is a continuance of injury hence the cause of action subsists until the suit was filed. To this, Counsel submitted that that contention will not hold water as continuance of injury or damages has been held in a plethora of cases to mean the continuance of the act which caused the injury or damage and not merely continuance of the injurious effect of a legal injury. It means the continuance or repeat of the act which caused the injury. It doesn’t mean the concomitant effect of the damage or injury. See: OLAOSEBIKAN vs. WILLIAMS (1996) 5 NWLR (Pt. 449) 437 @ 456; OBIEFUNA vs. OKOYE (1961) ALL NLR

  1. He referred further to the unreported judgment of this Court in suit No: NICN/OW/38/2013 – UGOALA CHIDINMA JOY (MRS,) vs. ABIA STATE UNIVERSITY BASIC EDUCATION BOARD & 4 ORS delivered on the 28th day of April 2014 (unreported).

Concluding the second issue, Counsel urged the Court to resolve this issue in favour of the defendant and if so resolved, it is his submission that this suit therefore fails and ought to be dismissed as the law is trite that a defendant who is taken to court must be competent to defend the action, otherwise the action is fundamentally defective and should be struck out. See: HI-FLOW FARM LTD. vs. UNIBADAN (1993) 4 NWLR (PT. 290) 719.

In arguing the third issue, Counsel pointed out that the declaration sought by the claimant is that he is still in the employment of the defendant therefore entitled to all his salaries, allowances and entitlements. (Even though he surprisingly sought for an order compelling the defendants to recall him to work immediately). See paragraph 16(i)(ii) and (vi) of his pleadings. He further sought for orders compelling both defendants to pay him the said salaries together with interest thereon. The claimant never sought for a declaration of wrongful dismissal or determination of appointment against the defendants and never made out such a case by his pleadings and evidence led. The law is trite that the onus is on the plaintiff to prove that the termination of his appointment is unlawful and to discharge this onus, he must prove that:

a. He is an employee of the defendant

b. Placing before the court the terms of the contract, the terms and conditions of this employment.

c. In what circumstances the appointment can be determined by the employer and breach of the terms. See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) ALL FWLR (Pt.497) SC @ 42; ANTE vs. UNICAL (2000) 17 WRN 73; NITEL vs. OSHODIN (1999) 8 NWLR (Pt. 616) 528 @ 541; FALOMO vs. L.S.P.S.C. (1977) NSCC 230.

Counsel to the defendants recalled that the claimant had pleaded and relied upon Exhibit CC1 (the Letter of Offer of Appointment) as the basis of the claimants employment by the defendants. He recalled further that while the claimant pleaded and led evidence that based on Exhibit CC1 and CC2, he “immediately” commenced work and continued to

work until September 2009, the defendants pleaded and led evidence to show that the employment of the claimant was invalid having not followed due process and more so, that at the time the cause of action arose, he was still on probation, hence he cannot be said to be a confirmed staff of the defendants. He cited the case of BABA vs. N.C.A.T.C.

ZARIA (1991) 5 NWLR (PT. 192) 380 per Nnaemeka-Agu (JSC) where it was held thus: “In the termination of the appointment of an officer on probation no procedure is provided for and none need be followed once the board or principal is satisfied that there is good cause for termination”.

To the defendants, having put in contention the fact that the claimant did not follow due process hence the appointment became invalid; the onus was on the claimant to prove otherwise. It was further recalled that in the attempt to prove that due process was followed, the claimant filed a Reply to the Statement of Defence on the 2nd of April 2014 and deposed to a further Statement on Oath. Counsel went on that under cross-examination the Claimant admitted not knowing the procedure employed in the course of employment of staff and while he deposed in his further statement on oath as follows:-

 That he was interviewed by a panel.

 That the Board ratified his appointment.

 That he was examined by the defendant and certified medically fit to work.

 That no staff audit was carried out etc.

According to the defendants, the Claimant did not adopt the said further statement on oath, thereby effectively leading no evidence in support of the facts pleaded in his reply. It is trite law that pleadings however strong and convincing the averments may be, without evidence of proof thereof go to no issue. Through pleadings people know exactly the points which are in dispute with the other. Evidence must be led to prove the facts relied on by the party or to sustain allegations raised in pleadings. A mere averment in pleading proves nothing unless admitted. See: UBA vs. ASTRA BULDINGS (W.A.) LTD. (2010) 41 (Pt. 2) NSCQR 1016 @ Pg. 1038; SANI ABACHA FOUNDATION vs. UBA (2010) 41 (Pt. 1) NSCQR 360 @ 376-377 (Ratio 3). Counsel urged the Court to hold that the evidence led by the defence regarding the process of employment of officers of the senior cadre to work in the 2nd defendant’s establishment, and which was not complied with, stands uncontradicted and should be upheld.

Counsel to the defendants pointed out that from the pleadings and evidence led, it might be in contention whether the claimant was told to stop work without a hearing. He stated further that the claimant led evidence that he was issued a directive by the defendants asking him to stop work in 2009. In rebuttal the defence asserted and led uncontradicted evidence that there was a staff audit which screened all staff of the 2nd defendant and which then directed the claimant and those affected by invalid appointments to stop work and regularize their position. Counsel recalled that the defence had earlier argued that the claimant filed a Reply denying the position of the defence but led no evidence to support the averment in the said Reply. The law is trite that where a party to a case fails or refuses to submit the issues he raised in his pleadings for trial by giving evidence in their support, the trial court must resolve the case against the defaulting party except there are other legal reasons to the contrary. See: AJAO vs. ADEMOLA (2005) NWLR (Pt. 913) 636CE (Ratio 7). Counsel urged the Court to hold that the Claimant did not discharge the onus on him to prove the ingredients necessary to support his case. Again under cross-examination the claimant admitted that there was an Audit Panel on the 25th of September 2009. It was after he had appeared before the said panel that the directive to stop work was given. The position of the law is that a party to a suit is entitled to lead evidence through his own witnesses or by extracting evidence in line with his pleadings from the adverse party’s witness during cross-examination. See: DAGGASH vs. BULAMA (2004) 14 NWLR (PT. 892) 144 Ratio 40. The Claimant’s admission that he was present and appeared before the Panel is clear evidence that he was given a hearing. Indeed it was the same day after the hearing that the directive to stop work to the affected probationary workers/staff was given to them. What is admitted need no further proof and the position is that where the evidence of a witness who is called by a party supports the case of his opponent, that evidence serves as a solemn admission in favour of the opponent. See: IKENI vs. EFAMO (1996) 5 NWLR (PT. 446) 64 Ratio 12.

The defendants submitted that in the event that the Court resolves this issue in favour of the Claimant, there is no evidence that the claimant did not lead evidence to prove that his employment enjoyed statutory flavour and the court cannot speculate based on the evidence before him. In such a situation the law is trite that the measure of damages in cases of wrongful dismissal is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment and not salaries up to retirement age. If no period of Notice was

prescribed then the common law rule will apply, namely that a reasonable period would be given, usually one month or three months depending on the category of staff being dismissed. See: NIGERIA PRODUCE MARKET BOARD vs. ADEWUNMI (1972) 11 SC 111; (1972) ANLR (Pt. 2) 433; ONALAJA vs. AP LTD. (1991) 7 NWLR (Pt. 206) 691 Ratio 1.

As regards relief 16(i) and 16(vi), Exhibit CC1 placed the claimant on probation for a period of 24 months and the directive to stop work was given within that period. The claimant led evidence that he did stop work pursuant to that directive and upon the period of probation having lapsed with the claimant having not been directed to start work and the employment having not been confirmed or ratified by the 1st defendant it goes to reason that the appointment had elapsed hence the said relief cannot be granted in law as it would amount to foisting the claimant on the defendants.

On the reliefs 16(ii) 16(iii) and 16(iv) it is the defendants’ submission that the claimant did not prove that he actually was entitled to the sum he pleaded as being his salary regards being had to paragraph 8(d) of the Statement of Defence. The above head of claims/reliefs sought by the claimant are in the specie of special damages which must be specifically pleaded and particularly proved. No payment voucher, payment slip, bank statement etc. was placed before the Court to justify the said claim and as the Court cannot speculate or make for the claimant a case he did not make for himself, the said heads of claim ought to fail. The law is trite that where the evidence is unsatisfactory, the judgment should be in favour of the defendant on the ground that it is the plaintiff who seeks relief, but has failed to prove that he is entitled to what he claims. See: UKAEGBU vs. NWOLOLO (2009) 37 (Pt. 2) NSCQR 1019 @ 1056. Counsel then urged the Court to hold that the claimant did not discharge the onus of proof in respect of the reliefs sought by him hence the claim ought to be dismissed as lacking in merit.

It was Counsel’s further submission that the law is trite that a probationary appointment can either expressly or impliedly be lawfully terminated within the probationary period on condition of a reasonable notice being given and also that an unconfirmed employee does not enjoy the permanence of employment which a confirmed employee enjoys. See: NITEL PLC vs. AKWA (2006) 2 NWLR (Pt. 964) 391; IHEZUKWU vs. UNIJOS (1990) 4 NWLR (Pt. 146) 598. As held in the foreign case of DALGLEISH vs. KEW HOUSE FARM LTD. (1982) IRLR 251 as reflected at page 526 Compendum of Law Under the Nigeria Legal System 2nd Edition Vol. 1 by Abubakar Sadiq Ogwuche Esq 2008. “if an employee is told that his appointment is subject to a probationary period of a certain length of time, and this does not give him a legal right to be employed for that length for that length of time, and the employer may lawfully dismiss him before that period expires”. Being that the claimant’s employment was effectively determined before the expiration of the probation period he is not entitled to the reliefs sought by him as a grant of the said reliefs implies that the appointment is not probationary. Counsel urged the Court to dismiss the suit in its entirety, based on the points that

a. Being that the defendants are public officers within the meaning of the Public Officers Protection Law of Abia State, they are protected by the said law and as the suit was filed outside the 3 months period provided by the said Law, it is statute Barred hence the action is incompetent and the jurisdiction of the court to entertain same ousted.

b. The suit does not disclose any cause of action against the 2nd defendant being that it is not the body saddled with employment of claimant or his dismissal by virtue of the Law creating it.

c. The claimant’s employment was for a probationary period and the said employment was determined within the said period without confirmation and/or ratification by the 1st defendant hence his termination cannot be reversed regards being had to the reliefs sought in the suit.

d. The claimant did not adduce sufficient evidence to warrant the Hon. Court granting the reliefs sought by him.

The Claimant’s final written address filed on the 10th day of July 2014 recalled the brief facts of the case which counsel said are very simply, direct, clear and without any ambiguity. Counsel stressed that the basis of the Claimant’s claim is that his employment is not yet terminated and not for wrongful termination as the defence counsel seemed to imply. To the Claimant, it is pertinent to make clear that the claimant’s case is NOT for wrongful termination of his employment. It is trite that parties are bound by their pleadings. According to the Claimant, he did not state anywhere in his Complaint, his Statement of Facts or his Reply to the Statement of Defence that his employment has been terminated. He also pointed out that the defendants filed a Statement of Defence, and NOWHERE therein did they allege that the claimant’s employment has been terminated.

According to Counsel for the Claimant, the major issue for determination (as arising from the pleadings) is whether where a person is on probation and/or suspension, whether or not he is entitled to his salaries and entitlements until his employment is terminated.

In this case it would be whether the claimant is entitled to his salaries from:

(i) January 2009 to September 2009

(ii) September 2009 to August 2013 and

(iii) From August 2013 thereafter his appointment/employment having not been terminated.

In arguing the sole issue, it was the submission of Counsel to the Claimant that it is not in dispute that the Claimant was employed by the defendants on 25/7/08.

It is also not in dispute that he commenced work with the defendants on 25/7/08 and worked for the Defendants until September 2009.

According to the Claimant, from the state of the pleadings the following questions also arise:-

(i) Did the defendants offer any employment to the claimant?

(ii) Is there evidence before the Hon. Court that they did so?

(iii) Did the claimant prove/show that he was offered any employment?

(iv) Did he accept the employment?

(v) Is the entitled to be paid?

(vi) If yes, have they paid him fully for the period he worked?

(vii) Have they terminated the employment whether probationary or not?

The claimant tendered in evidence his letter of employment from the defendants, titled LETTER OF OFFER OF APPOINTMENT, which was admitted in evidence as Exhibit CC1. Exhibit CC1 was duly signed by one Dr. E. Ogwo, the Director of Administration of the defendants on behalf of the Chief Medical Director.

The said letter was front-loaded and was seen by the defendants before they filed their statement of defence. Nowhere in their statement of defence did they allege that the said letter was forged. The defendants witness under cross-examination also agreed that the letter was not forged. It therefore means that the letter and its contents are true. The defendants’ flimsy attempt to deny the letter and its contents should therefore be disregarded by the Court.

According to the Claimant, the defendants had attempted to argue that the said employment was on probation (paragraph 8 of their Statement of Defence). In reply to this he submitted that it is trite law that oral evidence is not admissible or acceptable to vary the terms of a contract. The letter of appointment embodies the terms of the contract between the parties. From the said letter it is stated that it would lapse if not accepted within two weeks. There is ample and undisputed evidence before the Court that it was accepted by the claimant within two weeks. The contract of employment is therefore binding on the parties.

Counsel added that the defendants attempted to excise some portions of the letter of offer. By the said portion of the letter (which deals with probation) which the defendants are relying on, it is stated that the “appointment shall be on probation for a period of twenty four (24) months..” The defendants chose to forget this aspect of the letter of employment. As can be seen from the said letter, the claimant having accepted the employment within two weeks, the probation is valid for twenty-four months. Review and/or ratification can only take place after the twenty four (24) months. In other words the claimant would be entitled to his salaries and entitlements for the period of twenty-four months from 25th July, 2008. Twenty-Four months from July 2008 would end in June 2010. To the Claimant therefore, he is entitled to his salaries and entitlements from July 2008 to June 2010 (twenty-four) months.

A further submission by the Claimant is to the effect that the defendants had also attempted to deny Exhibit CC1 (the employment of the claimant) by stating that it was not valid and or that the defendants had no authority to employ the claimant and or that a certain process was not followed. They also denied that the 1st defendant is responsible for the management of the 2nd defendant. Counsel referred the court to the defendants’ clear admission in paragraph 4(b) of their statement of defence where they admitted that the process of employment is regulated by the appropriate board created by law to oversee the management of the 2nd defendant. Counsel referred the court to the case of ADEYE VS. ADESANYA (2001) 6 NWLR PT. 708, and submitted that a defendant cannot retract admission of a specific fact that is pleaded by a plaintiff in a statement of claim.

It was the Claimant’s further submission that it is not in dispute that the defendants are created by Statute, referring the

Court to Section 3 of the Abia State University Board Law which provides as follows:-

(i) There is hereby established a teaching hospital to be known as the Abia State Teaching Hospital.

(ii) There shall be established for the management of the hospital a body to be known as the Abia State Teaching Hospital Board which shall be a body corporate with perpetual succession and common seal.

To the Claimant, it is clear that the 1st defendant is responsible for the administration of the 2nd Defendant. The said letter of employment Exhibit CC1 was signed by one Dr. E. Ogwo the Director of Administration, for the Chief Medical Director of the 2nd defendant. Counsel stressed further that the defendants did not dispute the authenticity of the said letter.

Section 4 of the said Abia State University Teaching Hospital Board Law provides thus:-

4(1) The Board shall consist of a chairman appointed by the Governor and the following members, that is to say-

(a) The Chief Medical Director of the Hospital

(b) ………………….

Section 7(1) of the said law provides that

“There shall be for the Hospital a Chief Medical Director who shall be appointed by the Governor…….”

Section 7(2) (b) provides that the Chief Medical Director shall be charged with the responsibility for the execution of the policies and matters affecting the day to day management of the affairs of the Hospital.

The office of the Director of Administration is also provided for by Section 7(3) of the said law. It says that he shall be appointed by the Board and shall be responsible to the Chief Medical Director for effective functioning of all the administrative divisions of the hospital.

From the above provisions of the law it is apparent that both the Director of Administration who signed the said letter and the Chief Medical Director for whom he signed are established by law and they act for the hospital and the board. They are to act for the hospital and the board in respect of its day to day management and effective functioning of all the administrative divisions of the hospital. The Director of Administration is even the Secretary of the Board by virtue of Section 7(3) (a) of the said law.

Section 7(5) of the said law also gives the Board (the 1st defendant) the power to appoint, including the power to appoint on promotion and transfer and of confirmation of appointment of employees.

A look at the first paragraph of Exhibit CC1, the letter of employment shows clearly that the persons who made it did so, not in their personal capacity, but with “the approval of management”.

To the Claimant, it is obvious by the law establishing the defendants and the signatory(ies) to the letter that the signatories acted within their powers stated/given by law and on behalf of the Board (management) 1st defendant and the 2nd defendant, when the employment was offered to the claimant.

Contrary to the averments of defendants in paragraphs 4(a) to (f) and 8 of the statement of defence, the Claimant submits that his employment was valid in law.

Referring the Court to the cross-examination of the claimant and his pleadings, Counsel submitted that it is clear from the evidence before the Court that the claimant was duly interviewed. Contrary to the averments and submission of the defendants, there is NOTHING in the whole of the law establishing the defendants that say anything about advertisement before employment. They also tendered NOTHING to support their said contention on advertisement.

According to the Claimant, the defendants failed to bring before the Court their acclaimed “Staff Audit Panel” report and or directive to show that the appointment/employment of the claimant was invalid. The Claimant believes that he has shown by law and fact that his appointment is valid prima-facie. The burden to disprove this fell on the defendants but they failed to prove that the appointment was invalid except by their viva-voce testimony. It is settled that oral evidence is not acceptable to vary the terms of a written contract. See Section 128 of the Evidence Act. Their oral evidence can therefore not be admissible to contradict the Claimant’s letter of employment (which embodies the terms of the contract between the parties).

Counsel urged the Court to grant the claimant’s claims.

In reaction to the issue of the Public Officers (Protection Act) raised by the defendants, Counsel for the Claimant submitted that it is trite that it is the statement of claim that determines the jurisdiction of a Court. A look at the claimants claim in this suit shows that it is founded on a contract (Exhibit CC1) and alleged breach of the contract and nothing more.

He went further that it is trite that where there is a breach of contract, a party can either sue for specific performance of the terms or regard it as having ended, and sue for damages for its breach. In this case, the claimant is simply suing for performance of the terms as it relates to his salaries.

To the Claimant, the suit having been predicated on contract, the Public Officers (Protection) Law cannot apply as it is settled that the law is not applicable to cases emanating from or predicated on contract. See the case of Mbonu vs. Nig. Mining Corporation (2006) 13 NWLR Pt. 998 659 at 663.

It is the further submission of the Claimant that the Public Officers’ Protection Law does not apply to shield an officer who acted in abuse of office. See the case of Muhammed vs. A.B.U. Zaria (2014) 7 NWLR Pt. 1407 500, at 534 – 535. In the same case the Court of Appeal held that abuse of office/power may take the form of non-compliance with the rule or rules of procedure prescribed for that body. In this case, Section 18 of the law which established the defendant provides that any direction, notice report, representation ………required to be given or made by the defendants shall be

in writing. It is obvious that from the pleadings and admission by the defendants’ witness under cross-examination, that the notice to stop work and their decision to stop paying the claimant was not in writing. Counsel submitted that this irregularity/abuse of power/procedure also deprives the defendants of the shield provided by the public officers’ protection law.

Reacting to the Defendants’ contention that there is no cause of action against the 2nd defendant and or that it is not a competent defendant; the Claimant submitted that this is a misconception of the facts and the law. He went on that it is the plaintiff’s claim that determines the jurisdiction of a court and it is the averments therein that the court would look at in determining whether a suit is competent or not. In paragraphs 3 to 5 of the Statement of Facts and indeed the entire gamut of the statement of facts, the claimant stated his claims against BOTH defendants and specifically stated in paragraphs 2 and 3 that the 1st defendant is responsible for the management of the 2nd defendant and that he was employed into the service of the 2nd defendant. A court does not look into the averments in a statement of defence in determining whether a suit is competent against a defendant. Therefore the defendants’ argument that the 2nd defendant was established to provide facilities for training of medical and other students cannot be a ground for the suit not to be competent against it.

It is Claimant’s further submission that it is trite that there are different kinds of parties viz Necessary, Nominal and Desirable parties. The 2nd defendant is not even only desirable in this case but it is a necessary and very proper to a just determination of this suit. He submitted that non-joinder/misjoinder of a party cannot vitiate a suit that is otherwise competent.

Reacting to the issue or argument raised by the defendants that the claimant never sought for a declaration of wrongful dismissal or termination of appointment, the Claimant submitted that the defendants are correct, and affirmed that the claimant did not seek for wrongful dismissal as that is not his case/contention. It is also not the case of the defendants that the claimant’s employment was terminated whether wrongfully, rightly or in any manner. Pointing out that the defendants’ solicitor spent a lot of time on this issue, Counsel restated the fact that parties are bound by their pleadings and where the pleadings are at variance with the evidence and or arguments, none supports the other. Citing the case of Harka Air Services Ltd. vs. Keazor (2006) 1 NWLR Pt. 960, 160, Counsel urged the Court to disregard all the arguments on wrongful termination as neither party pleaded nor relied on it.

The Claimant again recalled that defendants’ witness and counsel had argued that they told the claimant to stop work.

The defence witness later admitted that the directive was not in writing.

To the Claimant, both of them apparently forgot that the defendants are created by law and the said law stated the process to be followed by the defendants in such circumstance. Section 18 of the Abia State University Teaching Hospital Board Law which established and governs the defendants’ activities provides that any direction, notice, report, representation or request authorized or required to be given or made by the defendants shall be in writing. This settles

this issue and shows that the defendants gave no effective (if any) valid notice to the claimant to stop working.

Reference was made to paragraph 6.05 of the defendants’ address wherein they argued on the issue of wrongful termination and employment with statutory flavor. Counsel to the Claimant stated that this issue does not arise, as the Claimant is not contending wrongful dismissal. He went further to state that the claimant clearly pleaded and led evidence to show that his employment was governed by statue, even though that is not the main issue in this case.

Reacting to the defendants’ argument that the claimant did not tender payment voucher or bank statement to prove the sum he is entitled to, the Claimant submitted that the defendants cannot be allowed to make this contention.

He went on that the Claimant duly filed pleadings and in paragraphs 14 and 17 (iv), he clearly stated the amount the claimant received/receives or is entitled to.

The defendants did not deny these averments. He submitted that it is the law that where there is an essential and material allegation of fact, a general form of denial cannot be adopted. A defendant who fails to adduce evidence in challenge of the plaintiff’s evidence is deemed to have admitted the fact notwithstanding the general traverse. See the case of Aliyu vs. Aturu (1997) 7 NWLR pt. 612, 536.

He urged the Court to enter judgment in favour of the claimant.

The defendants’ Reply on Points of Law filed on the 5th day of August 2014 reacted seriatim to issues of law raised in the Claimant’s address.

Reacting to the claimant’s counsel’s submission in paragraph 7.02 and 7.03 of his Written Address that the suit having been predicated on contract, the Public Officers (Protection) Law cannot apply as it is settled that the law is not applicable to cases emanating from or predicated on contract; wherein Counsel relied on the authority of MBONU vs. N.M.C. (2006) 12 NWLR (Pt. 998) C.A. 659 @ 663, it was the submission of the defence counsel that the said ratio does not represent the correct position of the law. In reply, Counsel referred the Court to the case of TAJUDEEN VS. C.I.P.S.B. (2010) 4 NWLR (PT. 1184) 325 @ 339 to the effect that the Public Officers (Protection) Act applies to contracts of employment. See also FORESTRY RESEARCH INST. OF NIG. vs. GOLD (2007) 11 NWLR (Pt. 1044) 1; BAKARE vs. N.R.C. (2007) 17 NWLR (Pt. 1064) 606; NBC vs. BANKOLE (1972) NSCC 220.

The above position is further buttressed in the case of IBEKWE vs. N.N.P.C (2011) 6 NWLR (PT. 1243) 245 @ 264-265 to the effect that:-

“The period of limitation of action prescribed in the NNPC Act, and the Public Officers Protection Act apply to all types of cases including contract. In the instant case, therefore both the NNPC and the Public Officers Protection Act applied to the claim of the appellant, notwithstanding that it involved contract of employment.(NPA v. LOTUS PLASTICE LTD, (2005) 19 NWWLR (PT. 859) 158; AMADI VS. NNPC (2000) 10 NWLR (PT. 674) 76; NBC vs. BANKOLE (1972) NSCC (VOL. 1) 220 ref to.

Counsel therefore urged the Court to discountenance the argument of learned claimant’s counsel and the authority relied upon by him.

On the learned claimant counsel’s submission that the defendant’s acted in abuse of office hence the Public Officers (Protection) Law does not avail them being that the directive to stop work and the decision not to pay the claimant were not in writing, Counsel for the defendants submitted that the claimant did not plead or lead any iota of evidence to the effect that the defendants acted in abuse of their office. The law is trite that what is not pleaded goes to no issue. The law is trite that a trial court will not depart from the case pleaded by the parties to found judgment on matters which are neither pleaded nor constitute issues as settled in the pleadings. See: N.D.I.C vs. ORANU (2001) FWLR (PT. 82) 1974 Ratio 6. Furthermore learned counsel cannot in the cause of his address make out a case not pleaded by a litigant in his address before the court. See: AGBOOLA vs. U.B.A (2011) 45 NSCQR (Pt.1) 335 @ 381. Finally on this issue, counsel stated that the defendants pleaded and led evidence that the directive was to enable the claimant and all those affected by the audit panel interview to regularize their invalid employment hence it cannot be stated that the defendants acted in abuse of their office or with malice. He therefore urged the Court to discountenance the learned claimant counsel’s submission on this issue.

In reaction to the defendants’ contention that the claimant did not prove his entitlement to the sum he pleaded as being his salary, the claimant’s counsel had submitted that the defendant having failed to adduce evidence in challenge of the

plaintiffs’ evidence, is deemed to have admitted the fact notwithstanding the general traverse. To this, counsel to the defendant reacted by submitting that while the defendants made a general traverse in paragraph 1 of the Joint Statement of Defence, they specifically denied paragraphs 13 of the claimant’s Statement of Facts in paragraph 8 (d) of the Joint Statement of Defence, and further adduced evidence that the claimant was not entitled to any salary at all. The law is trite that claims for salaries, emoluments, allowances and other benefits accruing to an office are in the nature of special damages for which strict proof is required. See: ALAO vs. V.C UNILORIN (2008) 1 NWLR (1069) 421 @ 466 (Ratio 5). The claimant having not proved the existence of the said salaries and the evidence being deficient or unsatisfactory Counsel urged the Court to discountenance learned claimant counsel’s submission. See: BADMUS vs. ABEGUNDE (1999) 71 LRCN 2912 @ 2925 (Ratio1); OSUJI vs. ISIOCHA (1989) 3 NWLR (Pt. 111) 623 @ 633.

He therefore urged the Court to resolve this case in favour of the defendants.

From the totality of the evidence adduced by the parties, the pleadings of the parties and the submissions of their respective counsels in the written addresses, I have identified 3 issues for determination in this suit-

  1. Whether the claimant has established a cause of action against the defendants.
  2. Whether the suit of the claimant is statute barred
  3. Whether the claimant is entitled to the reliefs sought by him.

ISSUE ONE

It is the claimant’s case that he was employed by the defendants into the service of the 2nd defendant as a medical officer on salary MSS II with effect from 25/7/2008 by a letter of employment dated 25th July 2008 which was admitted in evidence as Exhibit CC1. The claimant accepted the offer of employment which acceptance form is in evidence as Exhibit CC2. According to the claimant, he fulfilled all the terms and conditions stated in the employment letter and he commenced work immediately and was posted to the Accident and Emergency Department of the 2nd defendant. He has since then worked for the defendants until September 2009 when by a notice, the defendants directed him and some others to stop work. Evidence that he worked for the defendant after his employment was substantiated by Exhibit CC3 which is the roster of workers in the Accident and Emergency Unit of the 2nd defendant for the month of September 2008. It contains the name of the claimant and it indicated times and days he worked in that month.

But to the defendants, the claimant was not employed by any of the defendants. It is the contention of the defendants that the 1st defendant is not the body responsible for the administration of the 2nd defendant and the 2nd defendant has no legal authority to employ the claimant. It is also contended that the process of employment into the 2nd defendant is regulated by the managing board of the 2nd defendant and the said process was not followed in the employment of the claimant. The defendants, although admitted in paragraphs 4 (d) of the statement of defence that the claimant was offered an employment and given a letter of employment, it is their case that the employment was invalid by reason of non-compliance with the conditions of employment. It is on the basis of these facts the defendants contend that the claimant was not an employee of the defendants. The claimant has however controverted the averments of the defendants in his reply and further evidence. In his further evidence, the claimant stated that the 1st defendant is responsible for the management of the 2nd defendant and the defendants have the power to employ him. The claimant has also shown that he was duly interviewed before he was employed and that due process was followed during his employment.

I must mention at this point that the issue with regards to the claimant’s employment is not the validity of the employment but whether the claimant was at all employed by the defendants. Though, the validity of his employment shall equally be examined in this issue. Exhibit CC1 is the claimant’s employment letter issued to him by the 2nd defendant. It contains in its first paragraph as follows-

“I am directed to refer to your application for employment into the service of Abia State University Teaching Hospital, Aba dated 11th December 2007 and convey the approval of management to offer you appointment as medical officer on salary MSSII with effect from 25th July 2008”.

By the above and other content of Exhibit CC1, it is obvious that the claimant was offered employment, on probation for 24 months, into the service of the 2nd defendant and it was done with approval of “management”. The defendants have

now contended that none of the defendants employed the claimant. The defendants counsel has also submitted in his written address that the 2nd defendant is not a proper party to this suit as no cause of action is disclosed against it.

Although the defendants aver that the 1st defendant does not manage the 2nd defendant, they however failed to name the board which manages the 2nd defendant anywhere in their pleading and evidence. In paragraph 4 (b) of their statement of defence, the defendants aver that employment into the 2nd defendant is “regulated by the appropriate board created by law to oversee the management of the 2nd defendant”. If the 1st defendant is not that board created by law, then which is the board? The answer is however not farfetched. Both defendants in this case are established in section 3 of the Abia State University Management Board Law, Laws of Abia State 2005. Under the section, the 1st defendant is saddled with the responsibility of management of the 2nd defendant. In section 7 (5) of the law, the 1st defendant also has the responsibility for the employment, advancement, termination and discipline of staff of the 2nd defendant. It is clear from this provision that the 1st defendant has the power to appoint the claimant. Exhibit CC1 contain that the claimant’s employment was with approval of “management”. As has been used in the Law, the said “management” can only be the 1st defendant. By Exhibit CC1, the claimant was employed into the service of “the Teaching Hospital” which is the 2nd defendant. In my view, the defendants did offer employment to the claimant and both of them are proper and necessary parties to this suit. The defendants counsel’s argument in the contrary is not tenable.

An employee is a person who has entered into, or works under a contract of employment. A contract of employment on the other hand, means any agreement whether oral or in writing, express or implied whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. See SCC LTD vs. AFROPAK NIG LTD (2008) All FWLR (Pt. 426) 1827 at 1838; IYERE vs. BENDEL FEEDS AND FLOUR MILLS LTD (2009) All FWLR (Pt. 453) 1217 at 1233. In this case, the claimant has shown his employment letter (Exhibit CC1) and his acceptance of the employment (Exhibit CC2). The claimant has also shown he has worked for the defendants from July 2008 to September 2009 and was paid salary, even though his evidence shows he was paid for only one month before he was directed to stop work. The evidence of payment of salary to him by the defendant is a clear indication that he was employed, else, why was he paid for the said month. Besides, the fact that the claimant was paid salary was neither disputed nor controverted by the defendants. These are facts before me showing there was a service agreement between the claimants and the defendants. The attempt by the defendant to deny that relationship in this matter is inconceivable and ridiculous. The defendants’ own evidence showed that the claimant participated in the staff audit exercise after which those with irregular employment were advised to regularize their employment. If the claimant was not an employee of the defendants, could he have participated in the staff audit? I think not. I find that the claimant was employed by the defendants.

As to the defendants’ contention that the claimant’s employment is invalid, which contention has been controverted by the claimant, the defendants have not adduced any concrete evidence to convince me in that regard. The law, regulation, rule, direction or condition of service setting out the procedure for employment and which provisions were allegedly not complied with in the employment of the claimant has not been proved. Merely pleading the process without more, or even stating the source, is not sufficient to conclude that the claimant’s employment is invalid. In any case, the claimant, in his further evidence has shown that he was duly interviewed before he was employed.

Is the claimant’s employment still subsisting? This question resulted from the claimant’s request for a declaration that he is still in the employment of the defendants. It is the evidence of the claimant that sometime in September 2009, the defendants issued a notice or directive to the claimant and some other staff to stop work until further directive. The claimant stated further that up till the date of this suit, no such further directive has been received and the defendants also did not pay him any other salaries till date. The claimant also stated that the defendants have at no time terminated his employment or suspended him.

In answering the question whether the employment subsist or whether the claimant can be recalled depends on the nature of the employment. In this case, the claimant did not plead or show that his employment enjoys statutory flavour. The condition of service was also not pleaded. In fact, from the case of both parties, it is obvious the relationship between them is that of master and servant. Although the defendants are established by law, the fact that an employer is a creation of statute does not mean that employment of its servants enjoy statutory flavour. See OPUO vs. NNPC

(2002) FWLR (Pt. 84) 11 at 26. In construing the relationship between the parties in this case, I have taken recourse to the letter of employment (Exhibit CC1). The exhibit set out some conditions of the employment but it did not subject the employment to any law or document outside it to support the condition of service. Therefore, Exhibit CC1 has the effect of an employment relationship of master and servant.

The claimant, as shown on Exhibit CC1, was employed effective 25/7/08 on probation which status shall extend to a period 24 months from the date of employment. The claimant has testified that he was directed to stop work in September 2009 and his salaries (from August 2008) were not paid since then. The claimant’s evidence also shows that since that date, he has been out of the defendants’ service. This shows that the claimant was still on probation when the stop work directive was handed down. In my view, the stop work order and the fact that the order has not been lifted till date, suggests that the claimant’s employment has been terminated. In master and servant employment, termination of the employment can be done orally or in writing or by conduct. See IFETA vs. SHELL (2006) All FWLR (Pt. 314) 305 at 334. Also, in OPUO vs. NNPC (SUPRA) at 25, it was held thus-

“As regards the issue that the employer no longer requires the services of the employee, it need not be expressly stated. The fact of termination conveys that message. An employer has a choice of either dispensing with the service of his or its employee expressly or by implication’

Above all, an employment of a servant under probation can be terminated without following any specific procedure. See WAYO vs. J.S.C BENUE STATE 2006 All FWLR (Pt. 302) 66 at 78; BABA vs. N.C.A.T.C ZARIA (1991) 5 NWLR (Pt.

192) 380. Therefore, it does not matter whether the defendants expressly gave notice to the claimant to dispense with his service or not. What is important is whether the defendants have demonstrated clearly by their action that the services of the claimant were no longer required by the defendants. This fact is very clear from the evidence of the claimant himself. By the claimant’s own evidence, he has shown that he was directed to stop work and since then, there has been no counter directive to him to resume work, and he has since not resumed work. Also, the defendants have not dealt with him in any other way to suggest that the relationship still subsists. But to the defendants, the claimant’s employment was irregular and invalid as due process was not followed in his employment. The claimant’s invalid or irregular employment was discovered at a staff audit conducted by the state government and all those who had invalid employment, including the claimant, were given directives to regularize their position which the claimant failed to do till date. This is also an indication that whatever relationship there was between the parties has been severed by the defendants.

From the evidence, there is no doubt that the claimant knew that his services were no longer required. The absence of any written notice of termination given or none payment of salary in lieu, only makes the termination of his employment wrongful but the relationship of master and servant existing between them has been brought to an end. The claimant case is however not a claim in wrongful termination of employment. He seeks no such claim because, to him, his employment is still subsisting. His Counsel, in his written address, has also maintained the same position. But when the claimant averred that since September 2009 till date he has not been directed to resume work, it should have been clear to him that he defendants no longer have need for his services. Therefore, from September 2009 when the defendants directed the claimant to stop work and exhibited other conducts suggestive of termination of the claimant’s employment, the claimant’s employment was deemed terminated from that month. In his submissions in his written address, the claimant’s counsel attempted to treat the stop work directive as a suspension or probation such that the claimant will be deemed still in employment. This argument, in my view, is speculative. The conducts of the defendants toward the claimant point clearly to the fact that they have dispensed with his services. In the result, I find and hold that the claimant’s employment is no longer subsisting effective from September 2009.

ISSUE TWO-

In paragraph 10 of the defendants’ joint statement of defence, the defendants pleaded the fact that the claimant’s suit is statute barred. The defendants’ counsel followed up on this contention in his final written address when he submitted that the claimant’s suit has become statute barred in view of the Public Officers Protection Law of Abia State, 2005. Counsel Submitted that by Section 2 (a) of the Law, the claimant ought to have filed this suit against the defendants, who are public officers, within 3 months from the accrual of the cause of action in September 2009. By filing the suit in September 2013, 36 months after the cause of action arose, the suit is statute barred.

As rightly submitted by counsel to the defendant, the defendants are public officers and this suit was not commenced against them within the 3 months prescribed by the law. On that ground, the claimant’s suit may have become incompetent. However, it has been decided that there are certain instances where Section 2 of the Public Officers Protection Act, which is in pari materia with Section 2 of the POPL, Abia State, will not apply. In the case of OSUN STATE GOVERNMENT vs. DALAMI (NIG) LTD. (2007) NWLR (Pt.1038) 66, the Supreme Court, per Katsina-Alu JSC (as he then was) held that the Public Officers’ Protection Act does not apply to cases of contract, recovery of land, breaches of contract, money or debt owed or claims for work and labour done. See also F.G.N vs. ZEBRA ENERGY LTD. (2002) 18 NWLR (Pt. 891) 162 at 197; WURO BOGGA NIGERIA LTD & ANOR vs. HON. MINISTER OF FCT & ORS (2009) LPELR-20032.

A look at the claimant’s relief shows that his claim is more for his outstanding salaries. From the facts of his case, he was employed by the defendants in July 2008 and a notice was given in September 2009 directing him and some other staff to stop work until further notice. The claimant further contends that his employment has not been terminated hence he seeks the court to declare the continuance of his employment. His case has also shown that from the time of his employment until the stop work notice, he was paid only for 1 month (that is August 2008), hence he claims for salary for the remaining period he has worked (that is from September 2008 to September 2009). The claim for salary is a debt owed and it is recoverable by action. Therefore, the claimant’s case is for claim for money owed or for work done. These claims fall within the exceptions allowed by the Supreme Court in the above cases. I hold the view that the claim of the Claimants is a claim for money owed and for work done and can therefore be entertained by this court. Therefore, I find that the action of the Claimant is not affected by Section 2 (a) of the Public Officers Protection Law of Abia State.

ISSUE THREE

In order to properly determine this issue, it is necessary to repeat the claims sought by the claimant in this suit. The claimant has sought the following reliefs-

i. A declaration that the claimant is still in the employment of the defendants.

ii. A declaration that the claimant is entitled to all his salaries, allowances and entitlements at the rate of N90,506.95 per month totaling the sum of N5,430,000.00 being his salaries, allowances and entitlements from September 2008 to August 2013.

iii. An order compelling the defendants to pay the claimant the said sum of N5,430,000.00 being his salaries, allowances and entitlements from September 2008 to August 2013

iv. An order compelling the defendants to pay the claimant his salaries, allowances and entitlements at the rate of N90,506.95 per month from August 2013 until judgment

v. 10% interest on the judgment sum until final liquidation of the entire judgment sum.

vi an order compelling the defendants to recall the claimant to work immediately.

To determine whether or not the claimant is entitled to the above reliefs sought by him, it has to first be determined whether he was even an employee of defendants in the first place. This issue became necessary in view of defendants averment and contention, particularly in paragraph 4 (a) of the joint Statement of Defence that the claimant was at no time offered employment by either of the defendants. If the claimant was never an employee of the defendants, then he cannot be entitled to payment of the salaries claimed or any declaration relating to the purported employment. I have held earlier in this judgment that the claimant was an employee of the defendants. I have also held that the employment no longer subsists.

It is settled law that in master and servant relationship, once there is a purported termination of the employment, the court will rarely make an order that it still subsists. This is on the principle that the court cannot force a servant on an unwilling master. See TEXACO NIG PLC vs. KEHINDE (2002) FWLR (Pt. 94) 143 at 164. Reliefs 1 and 6 sought by the claimant has the effect of specific performance or the continuance of the contract of service between the parties. This court cannot grant those reliefs in the circumstance. Reliefs 1 and 6 of the complaint fail and they are hereby dismissed.

The only aspect of the claimant’s claim left to be considered is his claim for salaries and entitlements. This also appears to be the only case he has against the defendants in the first place. Having been determined in this judgment that he was an employee of the defendants, which employment has been terminated, the question to ask here is has the claimant been paid for the period he worked for the defendants? In paragraphs 13 and 15 of his statement of facts, the claimant averred that since his employment, he has only received one month salary in the sum of N90,506.95 from the

defendants. The claimant has also written through his solicitor to demand payment and has also complained both orally and in writing to the defendants but all to no avail. The defendants’ refusal to pay the claimant his salaries resulted to claims of the claimant in reliefs iii and iv of the complaint for an order for the payment of his salaries and entitlements from September 2008 to the date of judgment in this suit. The defendants, besides denying the claimant’s claim for salary, they also contend in paragraph 8(d) of their defence that the claimant is not entitled to be paid any salary or entitlement as he was not validly employed by the defendants. I have earlier resolved the issue of the validity of the employment of the claimant in this judgment. Accordingly, the defendants’ reliance on the authenticity or otherwise of the claimant’s employment to deny the claimant’s salaries will not avail them here. Significantly, the defendants have inadvertently admitted in their averment in this paragraph that the claimant has not been paid his salaries.

The fact that the claimant was employed by the defendants has been established and the fact that the claimant worked for the defendants from the date of his employment in July 2008 to September 2009 when his employment was terminated has not been denied. The claimant is therefore entitled to his wages for these periods. The services offered by the claimant to the defendants resulted from the representation made by the defendants to the claimant vide Exhibit CC1 that he had been employed. The defendants cannot be allowed to enjoy the service of the claimant without paying him for his service and work done.

What the claimant claims in this suit is his salary from September 2008 up to date of this judgment. As I understand the claimant, his basis for this claim is his averment that his employment has not been terminated. He treats his employment as still subsisting beyond September 2009. I have held the view that his employment has been terminated in September 2009. The termination of an employment, whether by conduct or expressly and whether lawfully or unlawfully, effectively brings the employment to an end. The servant cannot treat the employment as still subsisting and claim for salary for period he was no longer in the employment. The claimant’s claim for salaries and entitlement from September 2009 is a claim for remuneration for period he was no longer in the employment. In master and servant relationship as in this case, such claims cannot be granted as it is a claim for services not rendered. I am swayed in this opinion by the decision in SPRING BANK vs. BABATUNDE (2012) All FWLR (Pt. 609) 1191 at 1205 where it was held that a servant whose employment has been terminated cannot claim for salary for periods no longer in employment. Further in the case of OBOT vs. CBN (1993) 1 NWLR (Pt. 310) 140, the Supreme Court clearly stated the law thus-

“An employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and claim for salaries and entitlements he would have earned up to the end of the contractual period”.

Therefore, in this case, the claimant’s appropriate claim would have been to sue for damages for wrongful dismissal or termination and not to claim for salary for period he has already been terminated. His claim for salary from the date of the termination of his employment in September 2009 cannot be granted. The claimant is only entitled to be paid only for periods he served the defendants before the termination of his employment. The claimant has shown that his salary per month was the sum of N90,506.95. He was only paid this sum once in December 2008. In his relief (iii), the claimant treated the 1 month payment to be the salary for August 2008, hence he claims from September 2008. It therefore means that the claimant has not been paid for the months of September 2008 to September 2009. The total sum payable to the claimant for these 13 months at N90,506.95 salary per month is N1,176,590.35.

It is noted that both parties are in agreement that the Claimant was employed in July 2008 and asked to stop work in September 2009. To this end, it is clearly not disputed that the Claimant worked for that period. The question then is; is the Claimant entitled to his wages for work he has already done? I think yes.

Section 14 of the NIC Act empowers this court to grant remedies that the court thinks just any of the parties may be entitled to in respect of any legal or equitable claim, so that as far as possible, all matters in dispute between the parties may be completely and finally determined. Section 13 of the NIC Act further empowers this Court to administer law and equity concurrently. By Section 15 of the same Act, where there is conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail in this court.

By Section 19(d) of the NIC Act 2007, this court may where necessary, make any appropriate order including award of compensation or damages in any circumstance contemplated by this Act dealing with any matter that the court has jurisdiction to hear.

By the combined and cumulative effect of the above provisions of the NIC Act 2007, coupled with the clarity of the fact that the Claimant has worked for the period in question, I am of the view that this is a proper scenario for the application of Section 19 (d), and I so hold.

The above statutory provisions are further strengthened by the recent decision of the apex court in the case of HON CHIGOZIE EZE & 147 OTHERS vs. GOVERNOR OF ABIA STATE & 2 OTHERS (2014) 14 NWLR (Pt. 1426) Pg. 192 at 215-216 where his lordship Bode Rhodes-Vivour JSC held that “Judges are expected at all times to decide according to the justice of the case and what is right, and always lean towards equity instead of strict law”. His lordship Onnoghen JSC, held while concurring with the above reasoning in allowing the appeal that a mere declaratory order would confer no material benefit, and that that would not amount to justice.

The Claimant has admitted having been paid one month’s salary of August 2008 at the rate of N90,506.95, a fact which has not been disputed by the defendants. The court will therefore award to the Claimant, compensation in the sum of N1,176,590.35 being his salary from September 2008 to September 2009 at the rate of N90,506.95 per month. I so find and hold.

In the sum of this judgment, I hold as follows-

  1. The claimant’s reliefs i, ii, iv and vi are hereby dismissed.
  2. The Claimant’s relief iii succeeds only in part, and that is to the extent that he is entitled to his salary for the months of September 2008 to September 2009.
  3. In line with the provision of section 19(d) of the NIC Act 2006, compensation of N1,176,590.35 (One Million, One Hundred and Seventy Six Thousand, Five Hundred and Ninety Naira, Thirty Five Kobo) only is hereby awarded to the Claimant, being his salary for the months of January 2009 to September 2009.
  4. The defendants are to pay the above sum to the claimant within 30 days from today, failure of which the sum will begin to attract interest at 10% per annum from the time of default until the final liquidation of the judgment sum

Parties are to bear their costs.

Judgment is entered accordingly.

Hon. Justice O. Y. Anuwe

Judge