The National Industrial Court sitting in Yola has declared that the exclusion of Mr Hosea and 17 other non-indigenous employees of the Taraba Publishing Company from redeployment into the Taraba State Civil Service on the basis of their states of origin was unconstitutional and discriminatory.
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The court consequently ordered the Executive Governor of Taraba State, the Attorney-General of the State, the Commissioner for Information and Taraba Publishing Company Limited to pay the 18 workers the sum of ₦73,257,715.40 as their outstanding entitlements covering the period from September 2014 to January 2021.
The Presiding Judge of the Yola Judicial Division, Justice James Agbadu-Fishim, PhD, also awarded the workers ₦30 million as damages for the mental torture, trauma and hardship they suffered, in addition to ₦5.3 million as costs of the action.
Justice Agbadu-Fishim held that the decision of the Taraba State Government to selectively absorb employees of the Taraba Publishing Company into the State Civil Service using indigene status as a criterion discriminated against Hosea and the 17 other employees who were not indigenes of Taraba State.
The court held that the action violated their constitutional right to freedom from discrimination in the workplace under the Constitution of the Federal Republic of Nigeria.
The claimants had told the court that they were employed at different times by Taraba Publishing Company and that their appointments were subsequently confirmed after they satisfactorily completed their respective probationary periods.
They said they continued to discharge their duties and received their salaries regularly until September 2014, when payment suddenly stopped.
According to the workers, their appointments were never terminated and they were never issued letters disengaging them from the company.
They maintained that although Taraba Publishing Company subsequently ceased operations in some of its offices, the Taraba State Government absorbed employees of the company who were indigenes of the state into the State Civil Service while excluding them because they were non-indigenes.
The Executive Governor of Taraba State and the other respondents, however, disputed the claims.
They maintained that Taraba Publishing Company had been wound up and that the state government subsequently employed eligible and qualified former employees of the company into the Taraba State Civil Service after following due process.
Counsel for the respondents argued that Taraba Publishing Company was an incorporated company possessing a legal personality separate from its promoters, owners, shareholders, incorporators and directors.
They contended that because Hosea and the other claimants were employees of Taraba Publishing Company, they had no contractual relationship with the Taraba State Government or the other respondents and had produced no evidence showing how the government became responsible for payment of their salaries.
The respondents further argued that even if the Taraba State Government held controlling shares in the publishing company, that fact alone could not bring the claimants’ employment under the State Civil Service or automatically make Taraba Publishing Company an agent of the government.
Counsel for the workers, Dr M.M. Mailafiya, countered that the claimants had established their case through credible, cogent and uncontroverted evidence and urged the court to grant their reliefs.
In its judgment, the court rejected the respondents’ claim that Taraba Publishing Company had been wound up.
Justice Agbadu-Fishim held that the assertion was contradicted and discredited by documentary evidence presented by the workers, particularly a status report obtained from the Companies Registry of the Corporate Affairs Commission showing that Taraba Publishing Company remained in existence and had not been dissolved.
The judge found that the Taraba State Government promoted and incorporated Taraba Publishing Company for publishing business purposes, controlled its affairs and appointed its Managing Consultant and Chief Executive Officer.
The court held that the state government could not create a company, employ workers through that company for its publishing or commercial purposes, stop funding or operating the company, fail to formally terminate the employees’ appointments, fail to wind up the company in accordance with law and thereafter rely on the company’s separate corporate personality to defeat the workers’ accrued salary, gratuity, terminal benefits and constitutional rights.
Justice Agbadu-Fishim further explained that employees of a state-owned incorporated company may, for constitutional purposes, be regarded as being in the public service of the state where the government holds controlling shares or interest in the company.
The court, however, clarified that such workers ordinarily remain governed by the company’s regulations, conditions of service and individual contracts of employment unless the applicable Public Service Rules have been expressly or impliedly incorporated into their employment relationship.
The court held that in exceptional circumstances such as those presented in the case, a state government would not be permitted to hide behind the separate corporate personality of a company it controls in order to escape employment obligations or defeat the constitutional rights of employees.
Justice Agbadu-Fishim therefore declared the selective absorption of Taraba Publishing Company workers based on indigene status unconstitutional and discriminatory, and ordered payment of ₦73,257,715.40 in entitlements, ₦30 million in damages and ₦5.3 million in costs to Hosea and the 17 other affected workers.
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Authored by Ben Ijeoma Adigwe Esq., ACIarb (UK), LL.M, Dip. in Artificial Intelligence, Director at the Delta State Ministry of Justice, Asaba, Nigeria.
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