IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LOKOJA JUDICIAL DIVISION
HOLDEN AT LOKOJA
BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.
Dated this 18th day of July, 2018 SUIT N0: NICN/LKJ/09/2018
ONUCHE MUSA MOHAMMED ………………………………………………………………………CLAIMANT
AND
- KOGI STATE GOVERNMENT
- KOGI STATE LOCAL GOVERNMENT SERVICE COMMISSION.
- OGORI MAGONGO LOCAL GOVERNMENT AREA
- KOGI STATE ATTRONEY GENERAL & COMM. FOR JUSTICE…………..DEFENDANTS
Representations:
Oboni Peters Austine for the Claimant
Abdulwahab Muhammed for the Defendants
Judgment
This suit was commenced by a complaint filed on the 2nd of March, 2018. The said Complaint is accompanied by a statement of fact, list of documents, list of witnesses, witness statement on oath and copies of documents to be relied upon at trial.
Arising from the Complaint and statement of fact, the claimant’s claims against the Defendants jointly and severally as follows:
- A DECLARATION that the purported dismissal of the claimant by the defendant or his agent is null and void, and of no effect the dismissal haven (sic) not complied with the laid down requirement of the Kogi state civil/public service rules on appointments and dismissal of civil/public servants.
- AN ORDER of this Honourable court reinstating the claimant for his appointment being wrongly terminated.
- AN ORDER of this Honourable court directing the defendants to pay to claimant all his entitlements owed him before, during and after the state screening until date of judgment.
- The cost of this suit, including solicitor’s fee. At N800,000.00 (EIGHT HUNDRED THOUSAND NAIRA) only
5 The sum of (N10,000 000.00) ten million naira as general damage
In reaction to the complaint, the Defendants entered a conditional appearance on the 11th of April, 2018 and filed a joint statement of defence accompanied by a witness statement on oath and list of witnesses.
The Claimant on the 7th of May, 2018 filed a reply to the joint statement of defence and accompanied the reply with an additional witness statement on oath.
In opening his case, Claimant himself as the sole witness, adopted his witness statement on oath filed on 2nd March, 2018 and same was adopted as the oral evidence of the Claimant and marked as C1. CW1 tendered 10 documents which was marked as Exhibit C2 – C11. Exhibits C7 and C11 were admitted under protest to be addressed in the final written addresses of parties.
The case of the claimant as gathered from the statement of fact and witness statement on oath is that the Claimant is a civil servant employed in 1985 and a Director special grade on G/L 17 with the 2nd defendant. He was appointed as a head of local government administration (also known as Director of Local Government (DLG) Idah Local Government Area, Quota on the 30/10/2014. He has been in that position, and did serve as the Director of local government administration Igalamela/odolulu local government area before being posted to Ogori magongo local government area. Upon resumption of duty in ogori magongo local government area, the claimant met that the council was in debt, as the claimant’s predecessor had obtained loans from banks. At the screening exercise conducted by the state Government, he made this explanation to the screening committee that as at the time or period the loan was obtained, he was not the DLG of the local government area hence, he could not have in any way misappropriated monies he did not see. The loan he was alleged to have misappropriated was obtained in 2013 and 2014 from Skye Bank and Access Bank respectively. The screening committee also alleged that the claimant was part of a cartel that suppressed the remittance of PAYE.
Despite the explanations made by the Claimant, the name of the claimant was published by the screening appeal committee terminating the claimant’s appointment. Consequently, claimant states that the termination of his appointment did not follow the laid down procedure of the public service rule as he was not served any query or notice in lieu by the Defendants. Also, the last time the Claimant was paid any salary at all by the defendants was in December2015.
Upon cross examination, CW1 maintained that he has never been confronted by allegation of under-remitting PAYE, that not even by the screening committee. He stated that he was not given a copy of the report. He maintained also that he has not been given any letter that he is no longer an employee and he further stated that it is correct to say he has been dismissed since there is no salary.
Upon close of Claimant’s case, the Defendants opened their case by also calling a sole witness in person of Akinsola Kazeem who adopted his witness statement on oath filed on 11th April, 2018 as his oral evidence in this suit and marked as D1.
Arising from the said Joint statement of defence and witness statement on oath, the case of the Defendants is that the Defendants admitted all facts relating to the employment, promotion and posting of the Claimant and further stated that Defendants set up a staff screening and validation Committee to ascertain the actual work force of the state. The Claimant was invited by the Committee to explain how the loans obtained by the 3rd Defendant were expended under the Claimant’s watch but he could not give satisfactory explanation.
Consequent upon the Claimant’s indictment by the Kogi State Final Staff Screening Validation & Appeal Committee, he was recommended for dismissal from the services of the 2nd and 3rd defendants. However, the Claimant was to undergo further interrogation by the 2nd defendant after which he may be recommended for prosecution and only after these steps are concluded would it be determined whether claimant will be dismissed from the services of the defendants or not.
The Defendants added that the Claimant remains a bonafide employee of Kogi State Civil Service as he has not been disengaged although staff of the 1st defendant that were indicted by the screening exercise will have their salaries suspended until the screening result is fully processed by the relevant security agencies and the Civil Service Commission.
Upon cross examination, DW1 stated that he not seen the Claimant before as he only deals with facts and records. He also maintained that to the best of his knowledge, contrary to what the Claimant is saying, the Claimant has not been dismissed. He also maintained that he served as a consultant to the Staff Screening Committee. He asserted that it is the documents available to them that they used at arriving at their recommendations. He added that in case of the Claimant, there was a local government report wherein the Claimant was indicted to be part of a cartel who suppressed PAYE up to the tune of N10.8 million and he was alleged of not being able to explain how several loans amounting to N290,000,000.00 was expended. The DW1 further stated that he knows the Claimant was only in office from June to December, 2015 but does not know if the Claimant never applied for loan. He also did not know all the persons that were appointed before the Claimant and that they are on the cleared list.
Upon the close of the defendant’s case, the Defendants filed a written address on the 21st of May, 2018 and counsel to the Defendants adopted same as the oral argument in support of the Defendants case. Arising from the said final written address, learned counsel to the Defendants, Abdulwahab Muhammed formulated a lone issue for determination to wit:
“Whether the Claimant’s suit has disclosed any reasonable cause of action worthy of this Honourable Court’s Consideration.”
In arguing this sole issue, counsel cited the case of Dantata V. Mohammed [2000] 5 S.C. at 29 for the meaning of cause of action and proceeded to referred to some of the statements of the Claimant during cross examination where he admitted that the screening report is with the Local Government Service Commission and that he has not been issued a letter of termination. Counsel also captured the statement of DW1 during cross examination when he stated that the Claimant has not been dismissed.
Upon the above, Counsel maintained that it is evidently clear that the Claimant’s appointment was never terminated by the 2nd defendant, as the Claimant remains a bonafide staff of the 3rd defendant. He added that all the Claimant has as evidence before this Honourable Court of his purported dismissal from the services of the Defendant is a document that has neither evidential value nor can it serve as termination letter.
Counsel argued that the screening report (Exhibit 7) is a public document and as such only a certified true copy of same is admissible by this Honourable Court. He added that the document is inadmissible and cannot be relied upon in the determination of the propriety or otherwise of the dismissal of the Claimant.
Counsel submitted that the argument of learned Counsel for the Claimant that notice was given to the Defendants to produce the original and the defendant failed to produced same hence the tendering of a photocopy is untenable in law. Counsel cited section 85, 102, 104 and 105 of the Evidence Act 2011 the case of Tabik Invest. Ltd V. G.T.B Plc. [2011] 17 NWLR (Pt. 1276) 240 S.C and submitted that Exhibit C7 which is a public document having not been certified renders it inadmissible by this Honourable Court.
Learned Counsel added that assuming but not conceding that Exhibit 7 is admissible, it cannot be substituted for a letter of termination as evidence of termination of the Claimant’s employment from the services of the defendants. Only a letter of termination issued to the Claimant by the defendants in the instant suit can validly terminate the employment of the Claimant as it is the only document that can validly convey the intention of the defendants as it relates to the termination of employment of the Claimant or otherwise. Counsel cited the case of Chuckwuma V Shell Petroleum Limited [1993] 4 NWLR (Pt. 287) P. 152.
Counsel further posited that there is nothing before this honourable Court in proof of the Claimant’s termination of employment upon which all his claims are hinged and it is a cardinal principle of law that he who asserts must prove. Counsel cited the case of Okoye & Ors V. Nwankwo [2014] LPELR-23 172 (SC).
Counsel added that the reliefs sought by the Claimant as per his complaint in the statement of Claim are declaratory in nature hence Claimant cannot rely on the weakness of the defendants’ case, but must succeed solely on the strength of his case. He cited the case of Nigerian Gas Co. Ltd. V. Mr. G.0. Dudusola [2005] 18 NWLR (Pt.957) Pg. 292.
Counsel reiterated that the Claimant is clearly under investigation and as such cannot be paid any salaries until all investigations are concluded as there is the probability that the Claimant might even have to refund about 290, 000,000.00 (Two Hundred and Ninety Million Naira) loan alleged to have been misappropriated under the supervision of the Claimant and additional 10, 821,939.94 (Ten Million, Eight Hundred and Twenty One Thousand, Nine Hundred and Thirty Nine Naira Ninety Four Kobo) monies he and his cartel allegedly suppressed and failed to remit as PAYE (deducted from staff of LGA) to the board of internal revenue of the defendants.
Counsel concluded by urging the court to uphold his submissions and refuse the Claimant’s reliefs.
In reaction, through the written address of the Claimant, learned Counsel to the Claimant, P.A. Oboni, also formulated a sole issue for determination to wit:
Whether the claimant has proven his case to be entitled to the relief sought before this court.
In arguing this sole issue, counsel submitted that the claimant has made out his case as required by law to entitle him to the reliefs sought before this court. He added that the Claimant in his testimony did inform this honourable court that his employment with the defendant is one with statutory flavour and so for such employment to be determined, certain condition precedent has to be met and that the defendant did not comply with the said condition precedent. Counsel cited the case of BOARD OF MANAGEMENT, FMC. MAKURDI V ABAKUME (2016) 10 NWLR (PT. 1521) P 536 and OLANIYAN V. UNIVERSITY OF LA GOS (1 985)2NWLR (Pt.9) 599
Counsel also referred to rules 030102 and 030103 in section 1 of chapter 3 of the public service Rules, 2008, which vest the power of dismissal and exercise of disciplinary control over officers on the respective civil service commission to contend that in this case, no resort to the civil service commission whatsoever was made before effect was given to the recommendation of the screening panel.
Counsel also posited that from the evidence before this honourable court, the purported dismissal of the claimant did not comply with rules 030370 of the public service rules, 2008 which provides for the procedure for relieving an officer of his job which enjoys statutory flavour. He cited the case of BOARD OF MANAGEMENT, FMC. MAKURDI V. ABAKUME (2016) 10 NWLR (PT. 1521) P 536.
Counsel also contended that the claimant tendered Exhibit C7 which is the basis or grounds on which his salary and entitlements had been stopped since 2016, and also stated during cross-examination that since Exhibit C7 was made public in December 2016, there had been no correspondence or communication from the defendants to the claimant whatsoever neither has his salaries or entitlements been paid.
With regards to the admissibility of Exhibit C7, counsel contended that the argument of counsel to the Defendants should be discountenanced on the ground that effort to get the document certified was frustrated and that the Defendants were duly served with notice to produce.
Counsel also added that the effect of a notice to produce is such that in the event of a failure of the party with the original to produce same, the party relying on the document be permitted to tender the copy in his custody. He cited SECTION 91 OF THE EVIDENCE ACT and the cases of DIM V. AFRICAN NEWSPAPER LIMITED (1990) 3 NWLR (PT.139) 392 SC.; EDOKPOLO V. SAM-EDO (1989) 4 NWLR (PT.116) 473 CA and NIGERIA MARCHANT BANK PLC V. ONABOLU (1999) 12NWLR (PT 630) 302 CA.
Learned counsel argued that the defendant never denied that exhibit C7 emanated from them and urged the court to admit same.
Counsel also pointed out that the defendants in their defence through their witness aver that the claimant had not at any point or reason been dismissed, however did not deny the fact that the claimant had not been paid since December 2016.
Counsel in conclusion urged this Honourable court to enter judgment in favour of the claimant by granting the claims of the claimant, and ordering the unconditional reinstatement of the claimant and that all his entitlement be paid forthwith.
In view of all the above, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the lone issue for determination by this court is to wit:
“Whether having regards to the circumstances of this suit, the Claimant has proved his case and entitled to the reliefs sought”.
It is imperative that I resolve the admissibility or otherwise of exhibit C7 that was admitted under protest before I proceed to address this sole issue.
Learned counsel to the Defendants had contended that the said Exhibit C7 is a public document of which only the certified true copy is admissible. He also contended that the document is photocopy and same is untenable. Counsel to the Claimant simply responded relying on section 91 of the Evidence Act that a notice to produce was served on the Defendants and having failed to do so, the Claimant can tender the copy available to him.
The said Exhibit C7 is tagged “Kogi State Government of Nigeria, Final Staff Screening, Validation & Appeal Committee Report”. The said document is a photocopy and same does not bear any mark or being a certified true copy. The foremost question that arises from these observations is whether the said document is a public document? What document qualifies as a public document has been defined under section 102 of the Evidence Act 2011 thus:
The following documents are public documents-
| a. documents forming the official acts or records of the official acts of-
(i) the sovereign authority; (ii) official bodies and tribunals; or (iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and |
- public records kept in Nigeria of private document.
Section 103 also provides that “All documents other than public documents are private documents”. See Anagbado v Faruk (2016) LPELR-41634 (CA)
Going by section 102 above, there is no gainsaying that Exhibit C7 (Kogi State Government of Nigeria, Staff Screening , Validation and Appeal Committee Report) emanated from the Committee set up by the Government of Kogi state as an official body and is therefore a public document going by section 102 (a) (iii) of the Evidence Act.
In addition, the court in HOUSE OF REPRESENTATIVES & ORS v. SPDC NIGERIA & ANOR (2010) LPELR-5016 (CA) described a public document when it held that:
“A public document is a document made for the purpose of the public making use of it especially in a judicial or quasi-judicial duty. The features of a public document is that it is created over a public matter, preserved for good of the public and always accessible for public inspection and use especially by all those having something to do with it. See Cross River Property Development & Investment Company Limited v. Eno I. Obongha (2000) Pt. 670 page 751 at 768.” Per Aboki, J.C.A. see also Salami v. Ajadi. (2007) LPELR-8622(CA)
Consequently, I find that Exhibit C7 is a public document and I so hold. How then can such document be tendered in evidence?
The Supreme Court in TABIK INVESTMENT LTD. & ANOR v. GTB PLC (2011) LPELR-3131(SC) held authoritatively that:
“Before a public document can be tendered and accepted by the court, it must be certified. A Public document is certified if:
- it was paid for
- there is an endorsement/certificate that it is a true copy of the document in question.
- the endorsement/certificate must be dated and signed by the officer responsible for certification, with his name and Official Title.” Per Rhodes-Vivour, J.S.C. (P.24, Paras. B-C). See alsoAina v. Jinadu (1992) 4 NWLR (pt 233) 91 at 107.
Furthermore, section 104 Evidence Act, 2011 provides for the certification of public document. This is done by a certificate written at the foot of a copy of such document or part thereof as the case maybe. Such certificate must be dated and subscribed by a public officer in the custody of the document with his name and official title with a seal if the officer is entitled in law to make use of a seal. By section 105 of the Act, only such certified copy or copies would be produced in proof of the contents of the public documents.
I have carefully looked at Exhibit C7 and I cannot find any such certification as provided in section 104 of the Evidence Act. This amounts to non-compliance with the provisions of the Evidence Act. By the combined effect of sections 102, 89 (e) and 90 (1) (c) of the Evidence Act, it is only the CTC of the document that is admissible in this circumstance.
The above notwithstanding, I am adverted to the contention of the Counsel to the Claimant in respect of the provision of section 91 of the Evidence Act, 2011 while contending that notice to produce the original of Exhibit C7 was duly given to the Defendants having made effort to certify the pleaded copy without success. The said section 91 provides thus:
“Secondary evidence of the contents of the documents referred to in section 89 (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice to produce is prescribed by law then such notice as the court considers reasonable in the circumstances of the case…”
Going by the above provision of the Evidence Act, 2011, I have perused the processes in the file before this court and I find that the Defendants were indeed served with a copy of notice to produce dated and filed on the 16th of April, 2018. In this wise, Per OBASEKI-ADEJUMO, J.C.A (P. 26, paras. C-G) in UBA PLC v. OGOCHUKWU (2014) LPELR-24267(CA) noted that:
“the courts in CHUKWU VS NDUKA (2008) LPELR 3985 CA and AYOKU V YINUSA (2008) LPELR (3663) CA, held that: “service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document but does not relieve the person serving the notice of the burden of producing the document if he can or of proving its contents.”
Consequently, upon the failure of the Defendants to produce the original of Exhibit C7, I find that the Claimant can adopt a secondary copy in prove of the content of the said Exhibit C7 having been unsuccessful at certifying same and having given notice to produce.
In addition to the above, I am adverted to the provision of the National Industrial Court Act, 2006 which provides under section 12 (2) (b), that this court is generally bound by the Evidence Act but may depart from it in the interest of justice. Similar provision is made in Order 1 Rule 9 (2) of the Rules of this court, 2017.
In view of this provision, my Learned Brother, Hon. Justice Kanyip in the case of Dorothy Adaeze Awogu v TFG Real Estate Limited. (unreported) Suit No. NICN/LA/262/2013 delivered on 4th June, 2018 held that:
“The very first thing a labour court understands is the difficulty of the employee accessing documents to prove his/her case. It is as a result of all of this that the NIC, as a special Court, is permitted under section 12 of the NIC Act 2006 to be flexible, informal and depart from the Evidence Act if the interest of justice so demands”.
Bearing in mind the above holding, I therefore reckon that the justice of the case presently demands the departure from the provision of the Evidence Act particularly in view of the notice to produce that was duly served on the Defendants.
I also take into account the fact that the document was pleaded and frontloaded and same is relevant for the just determination of this suit. the court in Ilesanmi v Ogunleye & Anor (2016) LPELR- 41348 (CA) held that:
“the law is that evidence that are relevant in the sense that they tend to prove or disprove a fact in issue or fact relevant to a fact in issue is relevant. Every relevant fact is admissible” see Section. 6,8 and 10 Evidence Act. Per Danjuma JCA.
Consequently, relying on the aforementioned provisions of the National Industrial Court Act and Rules, and the authorities referred to, the said Exhibits C7 is held admissible and accordingly admitted in evidence.
I then turn to the sole issue which is “Whether having regards to the circumstances of this suit, the Claimant has proved his case and entitled to the reliefs sought”. In resolving the said issue, I take into account the claims of the Claimant as captured in his statement of fact, top of which is a declaration that the purported dismissal of the Claimant by the 1st defendant is null and void and of no effect as it is not in compliance with the Kogi state civil service rules.
I have also taken into account the fact that the Claimant stated that he is a civil servant and every other fact relating to the appointment, promotion and postings of the Claimant which the Defendants have also admitted as stated in paragraphs 1-15 of the statement of Fact. Considering the forgoing, I am convinced that the employment of the Claimant is one clothed with statutory flavor.
The court in COSMOS C. NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) expoused on the meaning of an employment with statutory flavor by holding that:
“In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of Kwara State Polytechnic Ilorin v. Shittu (2012) 41 WRN 26”.
See Ogunke v. National Steel Development Authority (1974) NMLR 128; Fakuade v. O.A. U.T.H. (1993) 5 NWLR (Pt.291) 47; ldeh v. University of Ilorin (1994) 3 NWLR (Pt.330) 81; Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame.v. WAEC (1992) 9 NWLR (Pt.265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 116.
The court also stated in N.E.P.A. v. Edegbero (2000) 14 NWLR (Pt.688)615 that:
“What in effect is an employment with statutory flavour. The Supreme Court had in the case of Imoloame v. WA.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303 defined it as: “Where the contract of service is governed by the provisions of a statute or where the Conditions of Service are contained in regulations derived from statutory provisions they invest the employee with a legal status higher than the ordinary one of Master and Servant. They accordingly enjoy statutory flavour”. The Supreme Court had similarly held that: “In an employment with statutory flavour the parties are bound to the Conditions contained in the statute and anything done which is inconsistent with that shall be null and void and of no effect”. See Union Bank v. Ogboh (1995) 2 SCNJ; (1995) 2 NWLR (Pt. 380) 647.” Per BULKACHUWA, J.C.A. (P. 18, paras. A-F)
Having said that, the employment of the Claimant is not in question, what is in question arising from the Claims made by the Claimant and the arguments of the counsel to both parties is whether the claimant’s employment has been terminated and if so, whether the termination was in accordance with the procedure laid down in the civil/public service rules. The latter would only be necessary to be addressed upon the existence of the former.
The Claimant has presented his case before this court that a screening exercise was conducted by the 1st Defendant and the Committee set up for the screening exercise had taken into account a certain loan that was obtained by his predecessors in office. He explained to the Committee that he was not in office when the loan was obtained and could not have misappropriated the monies. Consequent upon the screening exercise and despite his explanation, Exhibit C7 was published by the Screening Appeal Committee terminating his employment and that the termination did not follow the laid down procedure of the Public Service Rules.
The Defendants on their part maintained that the Claimant has not been dismissed as he would still undergo further interrogation after which he may be recommended for prosecution.
Going by the above, I must state that the burden is on the Claimant to prove that his employment has been terminated or that he has been dismissed from employment and that the procedure for the termination was wrongful.
The court held in the case of WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258 that:
“…an employee who complains that he was wrongly terminated has the onus to place before the court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. It is not the duty of the employer who is a defendant to an action brought by the employee to prove any such breach – this principle finds support in a long line of judicial authorities the likes of (1) AMODU VS. AMODE (1990) 5 NWLR (PT.150) 356, (2) IWUCHUKWU VS. NWIZU (1994) 7 NWLR (PT.357) 379 (3) KATTO VS. C.B.N. (1999) 6 NWLR (PT.607) 390 and (4) IBAMA VS. S.P.D.C. (2005) VOL 132 LRCN 2585; (2005) 17 NWLR (Pt.954) 364.” Per ADEREMI, J.C.A.
The above is without doubt predicated on the provisions of section 131 of the Evidence Act, 2011 which provides that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
Furthermore, the court in this regard held in the case of Ajuwon v. Akanni (1993) NWLR (Pt. 316) 182 that:
“Where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such a fact to establish the same by evidence. An averment in pleadings is not and does not amount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted”. PER IGUH, JSC.
In attempt to establish that the employment of the Claimant was terminated, the Claimant tendered Exhibit C7 which is the Kogi State Government of Nigeria, Staff Screening , Validation and Appeal Committee Report. I have taken a look at the said Exhibit C7 and I find that the name of the Claimant appears on the said document on row number 42. The hint at what gave the Claimant the impression of his dismissal is found in column 15 which reads that the Claimant “should be dismissed from service for using his/her position or office for personal enrichment at the detriment of government in breach of Rules 030402 (k, l and m) of the Public Service Rules (PSR)”.
The said Exhibit C7, aside from the fact that same was not directly addressed to the Claimant, does not establish the fact that the employment of the Claimant has been terminated since the statement captioned in the said column 15 is a “revised action plan” which in no way amounts to the dismissal.
I must also add that the Defendants have admitted that the Claimant has not been dismissed. And that the Claimant remains a bonafide employee of the Kogi State Civil Service as he has not been disengaged. Considering this admission, it is trite law that facts admitted need no further proof. They are taken as established by virtue of section 123 of the Evidence Act 2011 or by which rules of pleadings in force they are deemed to have been admitted by their pleadings. The law is settled that what is admitted or not disputed need not be proved. See also Ehinlawo v Oke, Per Onnoghen JSC (2008) LPELR 1054 (SC); Ajonye v Nwachukwu (2011) LPELR 3677 (CA).
Consequent upon the above, the Claimant has failed to place before this court any cogent, convincing and reliable evidence to substantiate his claim of wrongful dismissal and has therefore failed to discharge the burden of proving that the Defendants have terminated his employment and I so hold.
The above notwithstanding, the Claimant contended that since the said report, he has not been paid any salary. The Defendant also admitted that the Claimant’s salary has been suspended until the screening result is fully processed.
In view of the above holding that the Claimant has failed to prove dismissal and the admission by the Defendant of non-payment of salary to the Claimant, I shall consider the claims sought by the Claimant against the Defendants. For sake of clarity, the reliefs are hereunder reproduced:
- A DECLARATION that the purported dismissal of the claimant by the defendant or his agent is null and void, and of no effect the dismissal haven not complied with the laid down requirement of the Kogi state civil/public service rules on appointments and dismissal of civil/public servants.
- AN ORDER of this Honourable court reinstating the claimant for his appointment being wrongly terminated.
- AN ORDER of this Honourable court directing the defendants to pay to claimant all his entitlements owed him before, during and after the state screening until date of judgment.
- The cost of this suit, including solicitor’s fee. At N800,000.00 (EIGHT HUNDRED THOUSAND NAIRA) only
5 The sum of (N10,000 000.00) ten million naira as general damage.
While relief 1 is a declaratory relief, relief 2 is an order predicated on the declaration made on relief 1. In view of the nature of relief one being declaratory, the court in NABORE PROPERTIES LTD v. PEACE-COVER NIGERIA LTD & ORS (2014) LPELR-22586(CA) has maintained that “A claim for a declaratory relief is an invitation to the Court to make a pronouncement as to the legal position of a state of affairs. Per IYIZOBA, J.C.A. (Pp. 30-31, paras. E-D). The position of the law is settled to the effect that to be entitled to a declaratory relief, a claimant must earn same on the strength of his own case and not on the weakness of the Defendant. The court in Ndu v. Unudike Properties Ltd (2008) 10 NWLR (Pt.1094) 24 at 29, para.G (SC) held that:
“A plaintiff who seeks a declaratory relief must adduce credible evidence to establish his entitlement to the declaration, and should not rely on the admissions in the pleadings of the defendant. See Olisa v. Asojo (2002) 1 NWLR (Pt.747) 13.” Per Mikailu JCA.
I have found above that the Claimant has not on the strength of his case presented credible, cogent and convincing evidence to support the fact that his employment has been terminated and therefore this court cannot make the pronouncement or declaration that his employment with the Defendant is terminated or that the Claimant has been dismissed. In essence, the employment of the Claimant with the Defendants is still subsisting. Consequently, relief 1 and 2 are refused.
With regards to relief 3, which is “AN ORDER of this Honourable court directing the defendants to pay to claimant all his entitlements owed him before, during and after the state screening until date of judgment”, the claimant stated in paragraph 24 of his statement of fact that he has not been paid since December, 2015. The Defendants in reacting to this assertion stated on one hand that the state owes several workers in Kogi state due to paucity of funds and on another hand that staff of the 1st Defendant that were indicted by the screening exercise will have their salaries suspended until the screening result is fully processed.
I must in this regard once again state that facts admitted need no proof. See Ehinlawo v Oke (supra). The Defendants are deemed to have admitted that the Claimant has not been paid. It was not also denied that the non-payment was not since December, 2015. The court in 7UP BOTTLING COMPANY PLC V. EMMANUEL (2013) LPELR-21104(CA) held that “It is a basic principle of law that facts not denied or controverted are deemed admitted and correct. See the authorities of Akanbi vs. Alao (1989) NWLR (PT. 108) 118; Tandoh vs. C.F.A.O. of Accra & Anor. (1944) 10 WACA 186; and Atugbue vs. Chime (1963) 1 All NLR 208.” Per JOMBO-OFO, J.C.A (P. 34, paras. C-E). There is no piece of evidence presented by the Defendants to prove the fact that the salary of the Claimant have been lawfully withheld. He was not communicated with the reason why his salary has not been paid. The statement in relation to on-going investigation can best be regarded as afterthought. Moreso, there is no provision of the Public Service Rules that allows withholding or suspension of payment of salary for two years.
I take cognizance of the fact that the Claimant has not stated the exact sum owed. In this regard however, the Supreme Court in the case of Eze v Gov, Abia State (2014) 14 NWLR (Pt.1426) 192, observed that no evidence was led to establish the sums due to the Appellants as salaries and allowances. Nevertheless, the Supreme court went ahead to hold that since all courts are courts of law and equity and since unpaid salaries are necessary… it was appropriate to order that the appellants be paid their salaries and allowances for the period that they were out of office.
Consequently, this court is convinced that the Claimant has not been paid his salaries and therefore entitled to relief 3 and same is accordingly granted to the effect that this Court makes an order that all salaries and entitlements of the Claimant be calculated and paid within 60 days.
Relief 4 is a claim for “the cost of this suit, including Solicitor’s fee at N800, 000.00 (Eight Hundred Thousand Naira) only”. In considering the grant or otherwise of this relief, I must state that the award of cost of action is at the discretion of the court though same must be exercised judicially and judiciously.
The court in AKINRELE & ORS. v. YAGBOYAJU (2011) LPELR-3686(CA) held that:
“Costs are meant to meet the actual and legitimate expenses of the successful party incidental to or necessarily connected with the case. The successful party, except in cases the costs are statutorily fixed like in this Court and the Supreme Court, for example, must itemize his realistic or necessary expenses arising from the suit in the request for costs and the awarding authority shall assess the appropriate quantum to award as costs against the unsuccessful party based on the itemized request. – see Akinbobola v. plisson Fisco Nigeria Ltd. (1991) 1 NWLR (Pt. 167) 270 followed in Layinka and Another v. Makinde and Others (2002) 5-6 SCNJ 77 at 92; and Order 53 rule 7 of the Rules of the court below (supra).”Per IKYEGH, J.C.A. (P. 27, paras. C-G)
In the instant case, the Claimant put his cost at N800,000.00 including solicitor’s fee however failed to present any proof in that regard. No invoice or receipt for the billing or payment or bearing of the said sum is established. The solicitor’s fee is in the class of special damages which requires specific pleading and prove of same. In U.T.B. (Nig.) v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448 at 492 Paras.C – D (SC) the court held that:
“Production of a receipt as evidence of payment is sufficient to meet the requirement of strict proof of special damages, notwithstanding that the maker of the receipt was not called to adduce oral evidence. See Eluwewe v. Elder Dempster Agencies Ltd. (1976) 5 U.I.L.R. (Pt. 11) 225.” Per Ogbuagu JSC see also
Alhaji Otaru & Sons Ltd. v. Idris (1999) 6 NWLR (Pt.606) 330
In view of the above, I find that the Claimant has failed to establish that he is entitled to the exercise of discretion in his favour in regards to award of cost and same is accordingly refused. In essence, relief 4 is refused.
Relief 5 is general damages of (N10,000 000.00) ten million naira. The court in UBN PLC v. AJABULE & ANOR (2011) LPELR-8239(SC) described general damages thus:
“General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.” Per FABIYI, J.S.C (P. 32, paras. C-E) see also Nwachukwu V Egbuchu (1990) 3 NWLR (Pt 139) 433 at 445
In view of the above authority, I find that the Claimant need not prove the general damages sought and the court can grant same upon consideration of the wrong done to the Claimant which in this case is non-payment of the Claimant’s salary since December 2015. Consequently, I find that the Claimant deserves a remedy and therefore grant general damages of N500,000.00, awarded in favour of the Claimant and against the Defendant to be paid within 60 days from today.
Judgment is accordingly entered.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE.
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LOKOJA JUDICIAL DIVISION
HOLDEN AT LOKOJA
BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.
Dated this 18th day of July, 2018 SUIT N0: NICN/LKJ/09/2018
ONUCHE MUSA MOHAMMED ………………………………………………………………………CLAIMANT
AND
- KOGI STATE GOVERNMENT
- KOGI STATE LOCAL GOVERNMENT SERVICE COMMISSION.
- OGORI MAGONGO LOCAL GOVERNMENT AREA
- KOGI STATE ATTRONEY GENERAL & COMM. FOR JUSTICE…………..DEFENDANTS
Representations:
Oboni Peters Austine for the Claimant
Abdulwahab Muhammed for the Defendants
Judgment
This suit was commenced by a complaint filed on the 2nd of March, 2018. The said Complaint is accompanied by a statement of fact, list of documents, list of witnesses, witness statement on oath and copies of documents to be relied upon at trial.
Arising from the Complaint and statement of fact, the claimant’s claims against the Defendants jointly and severally as follows:
- A DECLARATION that the purported dismissal of the claimant by the defendant or his agent is null and void, and of no effect the dismissal haven (sic) not complied with the laid down requirement of the Kogi state civil/public service rules on appointments and dismissal of civil/public servants.
- AN ORDER of this Honourable court reinstating the claimant for his appointment being wrongly terminated.
- AN ORDER of this Honourable court directing the defendants to pay to claimant all his entitlements owed him before, during and after the state screening until date of judgment.
- The cost of this suit, including solicitor’s fee. At N800,000.00 (EIGHT HUNDRED THOUSAND NAIRA) only
5 The sum of (N10,000 000.00) ten million naira as general damage
In reaction to the complaint, the Defendants entered a conditional appearance on the 11th of April, 2018 and filed a joint statement of defence accompanied by a witness statement on oath and list of witnesses.
The Claimant on the 7th of May, 2018 filed a reply to the joint statement of defence and accompanied the reply with an additional witness statement on oath.
In opening his case, Claimant himself as the sole witness, adopted his witness statement on oath filed on 2nd March, 2018 and same was adopted as the oral evidence of the Claimant and marked as C1. CW1 tendered 10 documents which was marked as Exhibit C2 – C11. Exhibits C7 and C11 were admitted under protest to be addressed in the final written addresses of parties.
The case of the claimant as gathered from the statement of fact and witness statement on oath is that the Claimant is a civil servant employed in 1985 and a Director special grade on G/L 17 with the 2nd defendant. He was appointed as a head of local government administration (also known as Director of Local Government (DLG) Idah Local Government Area, Quota on the 30/10/2014. He has been in that position, and did serve as the Director of local government administration Igalamela/odolulu local government area before being posted to Ogori magongo local government area. Upon resumption of duty in ogori magongo local government area, the claimant met that the council was in debt, as the claimant’s predecessor had obtained loans from banks. At the screening exercise conducted by the state Government, he made this explanation to the screening committee that as at the time or period the loan was obtained, he was not the DLG of the local government area hence, he could not have in any way misappropriated monies he did not see. The loan he was alleged to have misappropriated was obtained in 2013 and 2014 from Skye Bank and Access Bank respectively. The screening committee also alleged that the claimant was part of a cartel that suppressed the remittance of PAYE.
Despite the explanations made by the Claimant, the name of the claimant was published by the screening appeal committee terminating the claimant’s appointment. Consequently, claimant states that the termination of his appointment did not follow the laid down procedure of the public service rule as he was not served any query or notice in lieu by the Defendants. Also, the last time the Claimant was paid any salary at all by the defendants was in December2015.
Upon cross examination, CW1 maintained that he has never been confronted by allegation of under-remitting PAYE, that not even by the screening committee. He stated that he was not given a copy of the report. He maintained also that he has not been given any letter that he is no longer an employee and he further stated that it is correct to say he has been dismissed since there is no salary.
Upon close of Claimant’s case, the Defendants opened their case by also calling a sole witness in person of Akinsola Kazeem who adopted his witness statement on oath filed on 11th April, 2018 as his oral evidence in this suit and marked as D1.
Arising from the said Joint statement of defence and witness statement on oath, the case of the Defendants is that the Defendants admitted all facts relating to the employment, promotion and posting of the Claimant and further stated that Defendants set up a staff screening and validation Committee to ascertain the actual work force of the state. The Claimant was invited by the Committee to explain how the loans obtained by the 3rd Defendant were expended under the Claimant’s watch but he could not give satisfactory explanation.
Consequent upon the Claimant’s indictment by the Kogi State Final Staff Screening Validation & Appeal Committee, he was recommended for dismissal from the services of the 2nd and 3rd defendants. However, the Claimant was to undergo further interrogation by the 2nd defendant after which he may be recommended for prosecution and only after these steps are concluded would it be determined whether claimant will be dismissed from the services of the defendants or not.
The Defendants added that the Claimant remains a bonafide employee of Kogi State Civil Service as he has not been disengaged although staff of the 1st defendant that were indicted by the screening exercise will have their salaries suspended until the screening result is fully processed by the relevant security agencies and the Civil Service Commission.
Upon cross examination, DW1 stated that he not seen the Claimant before as he only deals with facts and records. He also maintained that to the best of his knowledge, contrary to what the Claimant is saying, the Claimant has not been dismissed. He also maintained that he served as a consultant to the Staff Screening Committee. He asserted that it is the documents available to them that they used at arriving at their recommendations. He added that in case of the Claimant, there was a local government report wherein the Claimant was indicted to be part of a cartel who suppressed PAYE up to the tune of N10.8 million and he was alleged of not being able to explain how several loans amounting to N290,000,000.00 was expended. The DW1 further stated that he knows the Claimant was only in office from June to December, 2015 but does not know if the Claimant never applied for loan. He also did not know all the persons that were appointed before the Claimant and that they are on the cleared list.
Upon the close of the defendant’s case, the Defendants filed a written address on the 21st of May, 2018 and counsel to the Defendants adopted same as the oral argument in support of the Defendants case. Arising from the said final written address, learned counsel to the Defendants, Abdulwahab Muhammed formulated a lone issue for determination to wit:
“Whether the Claimant’s suit has disclosed any reasonable cause of action worthy of this Honourable Court’s Consideration.”
In arguing this sole issue, counsel cited the case of Dantata V. Mohammed [2000] 5 S.C. at 29 for the meaning of cause of action and proceeded to referred to some of the statements of the Claimant during cross examination where he admitted that the screening report is with the Local Government Service Commission and that he has not been issued a letter of termination. Counsel also captured the statement of DW1 during cross examination when he stated that the Claimant has not been dismissed.
Upon the above, Counsel maintained that it is evidently clear that the Claimant’s appointment was never terminated by the 2nd defendant, as the Claimant remains a bonafide staff of the 3rd defendant. He added that all the Claimant has as evidence before this Honourable Court of his purported dismissal from the services of the Defendant is a document that has neither evidential value nor can it serve as termination letter.
Counsel argued that the screening report (Exhibit 7) is a public document and as such only a certified true copy of same is admissible by this Honourable Court. He added that the document is inadmissible and cannot be relied upon in the determination of the propriety or otherwise of the dismissal of the Claimant.
Counsel submitted that the argument of learned Counsel for the Claimant that notice was given to the Defendants to produce the original and the defendant failed to produced same hence the tendering of a photocopy is untenable in law. Counsel cited section 85, 102, 104 and 105 of the Evidence Act 2011 the case of Tabik Invest. Ltd V. G.T.B Plc. [2011] 17 NWLR (Pt. 1276) 240 S.C and submitted that Exhibit C7 which is a public document having not been certified renders it inadmissible by this Honourable Court.
Learned Counsel added that assuming but not conceding that Exhibit 7 is admissible, it cannot be substituted for a letter of termination as evidence of termination of the Claimant’s employment from the services of the defendants. Only a letter of termination issued to the Claimant by the defendants in the instant suit can validly terminate the employment of the Claimant as it is the only document that can validly convey the intention of the defendants as it relates to the termination of employment of the Claimant or otherwise. Counsel cited the case of Chuckwuma V Shell Petroleum Limited [1993] 4 NWLR (Pt. 287) P. 152.
Counsel further posited that there is nothing before this honourable Court in proof of the Claimant’s termination of employment upon which all his claims are hinged and it is a cardinal principle of law that he who asserts must prove. Counsel cited the case of Okoye & Ors V. Nwankwo [2014] LPELR-23 172 (SC).
Counsel added that the reliefs sought by the Claimant as per his complaint in the statement of Claim are declaratory in nature hence Claimant cannot rely on the weakness of the defendants’ case, but must succeed solely on the strength of his case. He cited the case of Nigerian Gas Co. Ltd. V. Mr. G.0. Dudusola [2005] 18 NWLR (Pt.957) Pg. 292.
Counsel reiterated that the Claimant is clearly under investigation and as such cannot be paid any salaries until all investigations are concluded as there is the probability that the Claimant might even have to refund about 290, 000,000.00 (Two Hundred and Ninety Million Naira) loan alleged to have been misappropriated under the supervision of the Claimant and additional 10, 821,939.94 (Ten Million, Eight Hundred and Twenty One Thousand, Nine Hundred and Thirty Nine Naira Ninety Four Kobo) monies he and his cartel allegedly suppressed and failed to remit as PAYE (deducted from staff of LGA) to the board of internal revenue of the defendants.
Counsel concluded by urging the court to uphold his submissions and refuse the Claimant’s reliefs.
In reaction, through the written address of the Claimant, learned Counsel to the Claimant, P.A. Oboni, also formulated a sole issue for determination to wit:
Whether the claimant has proven his case to be entitled to the relief sought before this court.
In arguing this sole issue, counsel submitted that the claimant has made out his case as required by law to entitle him to the reliefs sought before this court. He added that the Claimant in his testimony did inform this honourable court that his employment with the defendant is one with statutory flavour and so for such employment to be determined, certain condition precedent has to be met and that the defendant did not comply with the said condition precedent. Counsel cited the case of BOARD OF MANAGEMENT, FMC. MAKURDI V ABAKUME (2016) 10 NWLR (PT. 1521) P 536 and OLANIYAN V. UNIVERSITY OF LA GOS (1 985)2NWLR (Pt.9) 599
Counsel also referred to rules 030102 and 030103 in section 1 of chapter 3 of the public service Rules, 2008, which vest the power of dismissal and exercise of disciplinary control over officers on the respective civil service commission to contend that in this case, no resort to the civil service commission whatsoever was made before effect was given to the recommendation of the screening panel.
Counsel also posited that from the evidence before this honourable court, the purported dismissal of the claimant did not comply with rules 030370 of the public service rules, 2008 which provides for the procedure for relieving an officer of his job which enjoys statutory flavour. He cited the case of BOARD OF MANAGEMENT, FMC. MAKURDI V. ABAKUME (2016) 10 NWLR (PT. 1521) P 536.
Counsel also contended that the claimant tendered Exhibit C7 which is the basis or grounds on which his salary and entitlements had been stopped since 2016, and also stated during cross-examination that since Exhibit C7 was made public in December 2016, there had been no correspondence or communication from the defendants to the claimant whatsoever neither has his salaries or entitlements been paid.
With regards to the admissibility of Exhibit C7, counsel contended that the argument of counsel to the Defendants should be discountenanced on the ground that effort to get the document certified was frustrated and that the Defendants were duly served with notice to produce.
Counsel also added that the effect of a notice to produce is such that in the event of a failure of the party with the original to produce same, the party relying on the document be permitted to tender the copy in his custody. He cited SECTION 91 OF THE EVIDENCE ACT and the cases of DIM V. AFRICAN NEWSPAPER LIMITED (1990) 3 NWLR (PT.139) 392 SC.; EDOKPOLO V. SAM-EDO (1989) 4 NWLR (PT.116) 473 CA and NIGERIA MARCHANT BANK PLC V. ONABOLU (1999) 12NWLR (PT 630) 302 CA.
Learned counsel argued that the defendant never denied that exhibit C7 emanated from them and urged the court to admit same.
Counsel also pointed out that the defendants in their defence through their witness aver that the claimant had not at any point or reason been dismissed, however did not deny the fact that the claimant had not been paid since December 2016.
Counsel in conclusion urged this Honourable court to enter judgment in favour of the claimant by granting the claims of the claimant, and ordering the unconditional reinstatement of the claimant and that all his entitlement be paid forthwith.
In view of all the above, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.
Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the lone issue for determination by this court is to wit:
“Whether having regards to the circumstances of this suit, the Claimant has proved his case and entitled to the reliefs sought”.
It is imperative that I resolve the admissibility or otherwise of exhibit C7 that was admitted under protest before I proceed to address this sole issue.
Learned counsel to the Defendants had contended that the said Exhibit C7 is a public document of which only the certified true copy is admissible. He also contended that the document is photocopy and same is untenable. Counsel to the Claimant simply responded relying on section 91 of the Evidence Act that a notice to produce was served on the Defendants and having failed to do so, the Claimant can tender the copy available to him.
The said Exhibit C7 is tagged “Kogi State Government of Nigeria, Final Staff Screening, Validation & Appeal Committee Report”. The said document is a photocopy and same does not bear any mark or being a certified true copy. The foremost question that arises from these observations is whether the said document is a public document? What document qualifies as a public document has been defined under section 102 of the Evidence Act 2011 thus:
The following documents are public documents-
| a. documents forming the official acts or records of the official acts of-
(i) the sovereign authority; (ii) official bodies and tribunals; or (iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and |
- public records kept in Nigeria of private document.
Section 103 also provides that “All documents other than public documents are private documents”. See Anagbado v Faruk (2016) LPELR-41634 (CA)
Going by section 102 above, there is no gainsaying that Exhibit C7 (Kogi State Government of Nigeria, Staff Screening , Validation and Appeal Committee Report) emanated from the Committee set up by the Government of Kogi state as an official body and is therefore a public document going by section 102 (a) (iii) of the Evidence Act.
In addition, the court in HOUSE OF REPRESENTATIVES & ORS v. SPDC NIGERIA & ANOR (2010) LPELR-5016 (CA) described a public document when it held that:
“A public document is a document made for the purpose of the public making use of it especially in a judicial or quasi-judicial duty. The features of a public document is that it is created over a public matter, preserved for good of the public and always accessible for public inspection and use especially by all those having something to do with it. See Cross River Property Development & Investment Company Limited v. Eno I. Obongha (2000) Pt. 670 page 751 at 768.” Per Aboki, J.C.A. see also Salami v. Ajadi. (2007) LPELR-8622(CA)
Consequently, I find that Exhibit C7 is a public document and I so hold. How then can such document be tendered in evidence?
The Supreme Court in TABIK INVESTMENT LTD. & ANOR v. GTB PLC (2011) LPELR-3131(SC) held authoritatively that:
“Before a public document can be tendered and accepted by the court, it must be certified. A Public document is certified if:
- it was paid for
- there is an endorsement/certificate that it is a true copy of the document in question.
- the endorsement/certificate must be dated and signed by the officer responsible for certification, with his name and Official Title.” Per Rhodes-Vivour, J.S.C. (P.24, Paras. B-C). See alsoAina v. Jinadu (1992) 4 NWLR (pt 233) 91 at 107.
Furthermore, section 104 Evidence Act, 2011 provides for the certification of public document. This is done by a certificate written at the foot of a copy of such document or part thereof as the case maybe. Such certificate must be dated and subscribed by a public officer in the custody of the document with his name and official title with a seal if the officer is entitled in law to make use of a seal. By section 105 of the Act, only such certified copy or copies would be produced in proof of the contents of the public documents.
I have carefully looked at Exhibit C7 and I cannot find any such certification as provided in section 104 of the Evidence Act. This amounts to non-compliance with the provisions of the Evidence Act. By the combined effect of sections 102, 89 (e) and 90 (1) (c) of the Evidence Act, it is only the CTC of the document that is admissible in this circumstance.
The above notwithstanding, I am adverted to the contention of the Counsel to the Claimant in respect of the provision of section 91 of the Evidence Act, 2011 while contending that notice to produce the original of Exhibit C7 was duly given to the Defendants having made effort to certify the pleaded copy without success. The said section 91 provides thus:
“Secondary evidence of the contents of the documents referred to in section 89 (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice to produce is prescribed by law then such notice as the court considers reasonable in the circumstances of the case…”
Going by the above provision of the Evidence Act, 2011, I have perused the processes in the file before this court and I find that the Defendants were indeed served with a copy of notice to produce dated and filed on the 16th of April, 2018. In this wise, Per OBASEKI-ADEJUMO, J.C.A (P. 26, paras. C-G) in UBA PLC v. OGOCHUKWU (2014) LPELR-24267(CA) noted that:
“the courts in CHUKWU VS NDUKA (2008) LPELR 3985 CA and AYOKU V YINUSA (2008) LPELR (3663) CA, held that: “service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document but does not relieve the person serving the notice of the burden of producing the document if he can or of proving its contents.”
Consequently, upon the failure of the Defendants to produce the original of Exhibit C7, I find that the Claimant can adopt a secondary copy in prove of the content of the said Exhibit C7 having been unsuccessful at certifying same and having given notice to produce.
In addition to the above, I am adverted to the provision of the National Industrial Court Act, 2006 which provides under section 12 (2) (b), that this court is generally bound by the Evidence Act but may depart from it in the interest of justice. Similar provision is made in Order 1 Rule 9 (2) of the Rules of this court, 2017.
In view of this provision, my Learned Brother, Hon. Justice Kanyip in the case of Dorothy Adaeze Awogu v TFG Real Estate Limited. (unreported) Suit No. NICN/LA/262/2013 delivered on 4th June, 2018 held that:
“The very first thing a labour court understands is the difficulty of the employee accessing documents to prove his/her case. It is as a result of all of this that the NIC, as a special Court, is permitted under section 12 of the NIC Act 2006 to be flexible, informal and depart from the Evidence Act if the interest of justice so demands”.
Bearing in mind the above holding, I therefore reckon that the justice of the case presently demands the departure from the provision of the Evidence Act particularly in view of the notice to produce that was duly served on the Defendants.
I also take into account the fact that the document was pleaded and frontloaded and same is relevant for the just determination of this suit. the court in Ilesanmi v Ogunleye & Anor (2016) LPELR- 41348 (CA) held that:
“the law is that evidence that are relevant in the sense that they tend to prove or disprove a fact in issue or fact relevant to a fact in issue is relevant. Every relevant fact is admissible” see Section. 6,8 and 10 Evidence Act. Per Danjuma JCA.
Consequently, relying on the aforementioned provisions of the National Industrial Court Act and Rules, and the authorities referred to, the said Exhibits C7 is held admissible and accordingly admitted in evidence.
I then turn to the sole issue which is “Whether having regards to the circumstances of this suit, the Claimant has proved his case and entitled to the reliefs sought”. In resolving the said issue, I take into account the claims of the Claimant as captured in his statement of fact, top of which is a declaration that the purported dismissal of the Claimant by the 1st defendant is null and void and of no effect as it is not in compliance with the Kogi state civil service rules.
I have also taken into account the fact that the Claimant stated that he is a civil servant and every other fact relating to the appointment, promotion and postings of the Claimant which the Defendants have also admitted as stated in paragraphs 1-15 of the statement of Fact. Considering the forgoing, I am convinced that the employment of the Claimant is one clothed with statutory flavor.
The court in COSMOS C. NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) expoused on the meaning of an employment with statutory flavor by holding that:
“In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of Kwara State Polytechnic Ilorin v. Shittu (2012) 41 WRN 26”.
See Ogunke v. National Steel Development Authority (1974) NMLR 128; Fakuade v. O.A. U.T.H. (1993) 5 NWLR (Pt.291) 47; ldeh v. University of Ilorin (1994) 3 NWLR (Pt.330) 81; Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame.v. WAEC (1992) 9 NWLR (Pt.265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 116.
The court also stated in N.E.P.A. v. Edegbero (2000) 14 NWLR (Pt.688)615 that:
“What in effect is an employment with statutory flavour. The Supreme Court had in the case of Imoloame v. WA.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303 defined it as: “Where the contract of service is governed by the provisions of a statute or where the Conditions of Service are contained in regulations derived from statutory provisions they invest the employee with a legal status higher than the ordinary one of Master and Servant. They accordingly enjoy statutory flavour”. The Supreme Court had similarly held that: “In an employment with statutory flavour the parties are bound to the Conditions contained in the statute and anything done which is inconsistent with that shall be null and void and of no effect”. See Union Bank v. Ogboh (1995) 2 SCNJ; (1995) 2 NWLR (Pt. 380) 647.” Per BULKACHUWA, J.C.A. (P. 18, paras. A-F)
Having said that, the employment of the Claimant is not in question, what is in question arising from the Claims made by the Claimant and the arguments of the counsel to both parties is whether the claimant’s employment has been terminated and if so, whether the termination was in accordance with the procedure laid down in the civil/public service rules. The latter would only be necessary to be addressed upon the existence of the former.
The Claimant has presented his case before this court that a screening exercise was conducted by the 1st Defendant and the Committee set up for the screening exercise had taken into account a certain loan that was obtained by his predecessors in office. He explained to the Committee that he was not in office when the loan was obtained and could not have misappropriated the monies. Consequent upon the screening exercise and despite his explanation, Exhibit C7 was published by the Screening Appeal Committee terminating his employment and that the termination did not follow the laid down procedure of the Public Service Rules.
The Defendants on their part maintained that the Claimant has not been dismissed as he would still undergo further interrogation after which he may be recommended for prosecution.
Going by the above, I must state that the burden is on the Claimant to prove that his employment has been terminated or that he has been dismissed from employment and that the procedure for the termination was wrongful.
The court held in the case of WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258 that:
“…an employee who complains that he was wrongly terminated has the onus to place before the court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer. It is not the duty of the employer who is a defendant to an action brought by the employee to prove any such breach – this principle finds support in a long line of judicial authorities the likes of (1) AMODU VS. AMODE (1990) 5 NWLR (PT.150) 356, (2) IWUCHUKWU VS. NWIZU (1994) 7 NWLR (PT.357) 379 (3) KATTO VS. C.B.N. (1999) 6 NWLR (PT.607) 390 and (4) IBAMA VS. S.P.D.C. (2005) VOL 132 LRCN 2585; (2005) 17 NWLR (Pt.954) 364.” Per ADEREMI, J.C.A.
The above is without doubt predicated on the provisions of section 131 of the Evidence Act, 2011 which provides that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
Furthermore, the court in this regard held in the case of Ajuwon v. Akanni (1993) NWLR (Pt. 316) 182 that:
“Where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such a fact to establish the same by evidence. An averment in pleadings is not and does not amount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted”. PER IGUH, JSC.
In attempt to establish that the employment of the Claimant was terminated, the Claimant tendered Exhibit C7 which is the Kogi State Government of Nigeria, Staff Screening , Validation and Appeal Committee Report. I have taken a look at the said Exhibit C7 and I find that the name of the Claimant appears on the said document on row number 42. The hint at what gave the Claimant the impression of his dismissal is found in column 15 which reads that the Claimant “should be dismissed from service for using his/her position or office for personal enrichment at the detriment of government in breach of Rules 030402 (k, l and m) of the Public Service Rules (PSR)”.
The said Exhibit C7, aside from the fact that same was not directly addressed to the Claimant, does not establish the fact that the employment of the Claimant has been terminated since the statement captioned in the said column 15 is a “revised action plan” which in no way amounts to the dismissal.
I must also add that the Defendants have admitted that the Claimant has not been dismissed. And that the Claimant remains a bonafide employee of the Kogi State Civil Service as he has not been disengaged. Considering this admission, it is trite law that facts admitted need no further proof. They are taken as established by virtue of section 123 of the Evidence Act 2011 or by which rules of pleadings in force they are deemed to have been admitted by their pleadings. The law is settled that what is admitted or not disputed need not be proved. See also Ehinlawo v Oke, Per Onnoghen JSC (2008) LPELR 1054 (SC); Ajonye v Nwachukwu (2011) LPELR 3677 (CA).
Consequent upon the above, the Claimant has failed to place before this court any cogent, convincing and reliable evidence to substantiate his claim of wrongful dismissal and has therefore failed to discharge the burden of proving that the Defendants have terminated his employment and I so hold.
The above notwithstanding, the Claimant contended that since the said report, he has not been paid any salary. The Defendant also admitted that the Claimant’s salary has been suspended until the screening result is fully processed.
In view of the above holding that the Claimant has failed to prove dismissal and the admission by the Defendant of non-payment of salary to the Claimant, I shall consider the claims sought by the Claimant against the Defendants. For sake of clarity, the reliefs are hereunder reproduced:
- A DECLARATION that the purported dismissal of the claimant by the defendant or his agent is null and void, and of no effect the dismissal haven not complied with the laid down requirement of the Kogi state civil/public service rules on appointments and dismissal of civil/public servants.
- AN ORDER of this Honourable court reinstating the claimant for his appointment being wrongly terminated.
- AN ORDER of this Honourable court directing the defendants to pay to claimant all his entitlements owed him before, during and after the state screening until date of judgment.
- The cost of this suit, including solicitor’s fee. At N800,000.00 (EIGHT HUNDRED THOUSAND NAIRA) only
5 The sum of (N10,000 000.00) ten million naira as general damage.
While relief 1 is a declaratory relief, relief 2 is an order predicated on the declaration made on relief 1. In view of the nature of relief one being declaratory, the court in NABORE PROPERTIES LTD v. PEACE-COVER NIGERIA LTD & ORS (2014) LPELR-22586(CA) has maintained that “A claim for a declaratory relief is an invitation to the Court to make a pronouncement as to the legal position of a state of affairs. Per IYIZOBA, J.C.A. (Pp. 30-31, paras. E-D). The position of the law is settled to the effect that to be entitled to a declaratory relief, a claimant must earn same on the strength of his own case and not on the weakness of the Defendant. The court in Ndu v. Unudike Properties Ltd (2008) 10 NWLR (Pt.1094) 24 at 29, para.G (SC) held that:
“A plaintiff who seeks a declaratory relief must adduce credible evidence to establish his entitlement to the declaration, and should not rely on the admissions in the pleadings of the defendant. See Olisa v. Asojo (2002) 1 NWLR (Pt.747) 13.” Per Mikailu JCA.
I have found above that the Claimant has not on the strength of his case presented credible, cogent and convincing evidence to support the fact that his employment has been terminated and therefore this court cannot make the pronouncement or declaration that his employment with the Defendant is terminated or that the Claimant has been dismissed. In essence, the employment of the Claimant with the Defendants is still subsisting. Consequently, relief 1 and 2 are refused.
With regards to relief 3, which is “AN ORDER of this Honourable court directing the defendants to pay to claimant all his entitlements owed him before, during and after the state screening until date of judgment”, the claimant stated in paragraph 24 of his statement of fact that he has not been paid since December, 2015. The Defendants in reacting to this assertion stated on one hand that the state owes several workers in Kogi state due to paucity of funds and on another hand that staff of the 1st Defendant that were indicted by the screening exercise will have their salaries suspended until the screening result is fully processed.
I must in this regard once again state that facts admitted need no proof. See Ehinlawo v Oke (supra). The Defendants are deemed to have admitted that the Claimant has not been paid. It was not also denied that the non-payment was not since December, 2015. The court in 7UP BOTTLING COMPANY PLC V. EMMANUEL (2013) LPELR-21104(CA) held that “It is a basic principle of law that facts not denied or controverted are deemed admitted and correct. See the authorities of Akanbi vs. Alao (1989) NWLR (PT. 108) 118; Tandoh vs. C.F.A.O. of Accra & Anor. (1944) 10 WACA 186; and Atugbue vs. Chime (1963) 1 All NLR 208.” Per JOMBO-OFO, J.C.A (P. 34, paras. C-E). There is no piece of evidence presented by the Defendants to prove the fact that the salary of the Claimant have been lawfully withheld. He was not communicated with the reason why his salary has not been paid. The statement in relation to on-going investigation can best be regarded as afterthought. Moreso, there is no provision of the Public Service Rules that allows withholding or suspension of payment of salary for two years.
I take cognizance of the fact that the Claimant has not stated the exact sum owed. In this regard however, the Supreme Court in the case of Eze v Gov, Abia State (2014) 14 NWLR (Pt.1426) 192, observed that no evidence was led to establish the sums due to the Appellants as salaries and allowances. Nevertheless, the Supreme court went ahead to hold that since all courts are courts of law and equity and since unpaid salaries are necessary… it was appropriate to order that the appellants be paid their salaries and allowances for the period that they were out of office.
Consequently, this court is convinced that the Claimant has not been paid his salaries and therefore entitled to relief 3 and same is accordingly granted to the effect that this Court makes an order that all salaries and entitlements of the Claimant be calculated and paid within 60 days.
Relief 4 is a claim for “the cost of this suit, including Solicitor’s fee at N800, 000.00 (Eight Hundred Thousand Naira) only”. In considering the grant or otherwise of this relief, I must state that the award of cost of action is at the discretion of the court though same must be exercised judicially and judiciously.
The court in AKINRELE & ORS. v. YAGBOYAJU (2011) LPELR-3686(CA) held that:
“Costs are meant to meet the actual and legitimate expenses of the successful party incidental to or necessarily connected with the case. The successful party, except in cases the costs are statutorily fixed like in this Court and the Supreme Court, for example, must itemize his realistic or necessary expenses arising from the suit in the request for costs and the awarding authority shall assess the appropriate quantum to award as costs against the unsuccessful party based on the itemized request. – see Akinbobola v. plisson Fisco Nigeria Ltd. (1991) 1 NWLR (Pt. 167) 270 followed in Layinka and Another v. Makinde and Others (2002) 5-6 SCNJ 77 at 92; and Order 53 rule 7 of the Rules of the court below (supra).”Per IKYEGH, J.C.A. (P. 27, paras. C-G)
In the instant case, the Claimant put his cost at N800,000.00 including solicitor’s fee however failed to present any proof in that regard. No invoice or receipt for the billing or payment or bearing of the said sum is established. The solicitor’s fee is in the class of special damages which requires specific pleading and prove of same. In U.T.B. (Nig.) v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448 at 492 Paras.C – D (SC) the court held that:
“Production of a receipt as evidence of payment is sufficient to meet the requirement of strict proof of special damages, notwithstanding that the maker of the receipt was not called to adduce oral evidence. See Eluwewe v. Elder Dempster Agencies Ltd. (1976) 5 U.I.L.R. (Pt. 11) 225.” Per Ogbuagu JSC see also
Alhaji Otaru & Sons Ltd. v. Idris (1999) 6 NWLR (Pt.606) 330
In view of the above, I find that the Claimant has failed to establish that he is entitled to the exercise of discretion in his favour in regards to award of cost and same is accordingly refused. In essence, relief 4 is refused.
Relief 5 is general damages of (N10,000 000.00) ten million naira. The court in UBN PLC v. AJABULE & ANOR (2011) LPELR-8239(SC) described general damages thus:
“General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.” Per FABIYI, J.S.C (P. 32, paras. C-E) see also Nwachukwu V Egbuchu (1990) 3 NWLR (Pt 139) 433 at 445
In view of the above authority, I find that the Claimant need not prove the general damages sought and the court can grant same upon consideration of the wrong done to the Claimant which in this case is non-payment of the Claimant’s salary since December 2015. Consequently, I find that the Claimant deserves a remedy and therefore grant general damages of N500,000.00, awarded in favour of the Claimant and against the Defendant to be paid within 60 days from today.
Judgment is accordingly entered.
…………………………………………………………
HON. JUSTICE Z. M. BASHIR
JUDGE.
