Hon. Justice Bashar Alkali sitting in Yenagoa Judicial Division of the National Industrial Court has granted an order compelling Ogbia Local Government Council, Bayelsa State Universal Education Board and Bayelsa State Government to pay Nyenami Egbo and 25 others their salary arrears for January to November, and the outstanding salary for December, all in 2017, as well as salary arrears from January 2018 to December 2018 within 30 days.
The Court declaration that Nyenami Egbo and 25 others who had conscientiously carried out their duties as academic and non-academic staff of the Bayelsa State Universal Education Board are entitled to their salary arrears from January to November and the outstanding salary for December, all in 2017, as well as salary arrears from January 2018 to December 2018.
From facts, the claimant- Nyenami Egbo and 25 others had submitted that the Ogbia Local Government Council, Ogbia Local Government Education Authority, Bayelsa State Universal Education Board and Bayelsa State Government are owing the Claimants salary arrears of well above twenty-four (24) months, and when Ogbia Local Government Council and Bayelsa State Universal Education Board (1st and 3rd Defendants) finally commenced the payment of salaries in October 2018, they realized that their names had been arbitrarily and unlawfully removed from the salary voucher of the Ogbia Local Government Council and Bayelsa State Universal Education Board and they were ordered to proceed on retirement in spite of the fact that they were not due for retirement.
They averred that the act of removal of their names from the salary voucher by the Ogbia Local Government Education Authority and Bayelsa State Universal Education Board and their subsequent forced retirement when they were yet to attain retirement age is arbitrary, unlawful, and contrary to the provisions of the Public Service Rules.
In defense, the 1st – 2nd Defendants- Ogbia Local Government Council and Ogbia Local Government Education Authority by the Notice of Preliminary Objection prayed the Court to dismiss or strike out the suit for lack of jurisdiction on the grounds that no pre-action notice was served on Ogbia Local Government Education Authority as required by Section 29(2) & (3) of the Bayelsa State Universal Basic Education Board Law and the case discloses no action against the Ogbia Local Government Council.
Ogbia Local Government Council further stated that Nyenami Egbo and 25 others Amended Statement of Facts, the witness deposition on oath do not comply with the Court Practice Direction 2022 and urged the court to dismiss the case in its entirety.
In opposition, the counsel to Nyenami Egbo and 25 others maintained that the 1st and 2nd Defendants’ preliminary objection as constituted is grossly incompetent that the Claimants complied with the National Industrial Court of Nigeria (Civil Procedure Rules, 2017) as well as the Courts’ practice direction and urged the court to grant the reliefs sought.
In a well-considered judgment, the presiding Judge, Justice Bashar Alkali ruled that where the objection to jurisdiction is founded on non-compliance with the requirement of a pre-action notice, it does not abrogate the right of a plaintiff to approach the court or defeat his cause of action.
Justice Alkali held that non-service of the pre-action notice on the Ogbia Local Government Education Authority makes the jurisdiction of the Court inchoate against Ogbia Local Government Education Authority and maintainable against the Ogbia Local Government Education Authority, Bayelsa State Universal Basic Education Board, Bayelsa State Pension Board And Bayelsa State Government (1st, 3rd, 4th and 5th Defendants).
The Court struck out the suit against Ogbia Local Government Education Authority as if it was not part of the suit at all for being incompetent and maintained that the Rules of courts, which include Practice Directions, are not intended to be applied slavishly, particularly if such application will do injustice in a case.
On the Nyenami Egbo and 25 others claim for their illegal retirement, the Court held that Nyenami Egbo and 25 others did not provide evidence to link Exhibit CW005- statutory declaration of ages to their employment to identify as at what age were they employed, how many years were they supposed to spend in service and how many years have they spent in service?
“These are pertinent facts that will enable the Court to link Exhibit CW005A-O-statutory declaration of the age of the Claimants to their employment, in the absence of sufficient fact to establish that the Claimants are not due for the retirement, the Court is helpless. Documents admitted in evidence, no matter how useful they could be, would not be of much assistance to the court in the absence of admissible oral evidence by persons who can explain their purport.” Justice Alkali ruled.
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