ALOGWUJA NATHANIEL JOEL -VS- KOGI STATE GOVERNMENT & 3 ORS

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 27^th day of June, 2018 SUIT N0: NICN/LKJ/07/2018

BETWEEN:

ALOGWUJA NATHANIEL JOEL

CLAIMANT

AND

KOGI STATE GOVERNMENT
KOGI STATE LOCAL GOVERNMENT SERVICE

COMMISSION

IBAJI LOCAL GOVERNMENT AREA
KOGI STATE ATTORNEY GENERAL &

COMM. FOR JUSTICE

DEFENDANTS

Representation.

Oboni Peters Austine for the Claimant

G.O. Salihu for the Defendants

Judgment.

The Claimant commenced this suit via a General Form of Complaint dated and filed the 23^rd of February, 2018 claiming against the Defendants jointly and severally the following reliefs:

A DECLARATION that the purported dismissal of the claimant by the 1^st defendant or his agent is null and void, and of no effect the dismissal haven (sic) not complied with the laid down requirement of Kogi State civil/public service rules on appointments and dismissal of civil/public servant.
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 the 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 N500, 000.00 (Five Hundred Thousand Naira) only.
The sum of N1,000,000.00 (One Million Naira) as general damages.

The Claimant filed along with his Complaint, a statement of complaint (fact), witness statements on oath, list of witnesses as well as a list and copies of documents to be relied on at trial.

In reaction to the complaint, the Defendants filed only their joint statement of defence on 04^th of May, 2018 without any accompanying process.

Upon matter being set for trial on the 7^th of May 2018, the Claimant opened his case by calling one witness being himself, Alogwuja Nathaniel Joel. The said claimant adopted his witness statement on oath dated 23^rd February, 2018 which was marked as C1. Also, through the Claimant, seven documents were tendered, two of which were admitted under protest. All the documents were marked as Exhibit C2 – C8.

Arising from the statement of complaint (fact) pleaded by the Claimant and the adopted witness statement on oath, the case of the Claimant is that he is a civil servant in the department of finance, Ibaji Local Government Area/Council, Kogi State under the employment of the defendants and the 1^st defendant is the claimants Employer on whose instruction the appointment of the Claimant was terminated while the 3^rd defendant is the primary employer of the Claimant and the claimant’s place of primary posting or assignment. The Claimant was employed on 20/4/2006. But before he was employed, he applied for a postgraduate programme in March 2006 at the University of Nigeria Nsukka on Part-Time basis which was to be concluded in 2 years between 2006 – 2008. The claimant further aver that he has his ATM card with his wife who lives in Lokoja with his children and the wife makes withdrawal from his account. On his own part, he withdrew money from his account in Nsukka on 8 occasions due to the proximity between Nsukka and his place of primary assignment and because there is no bank in the entire Ibaji Local Govt. The Claimant further averred that he made this explanation to the Screening Committee at the screening exercise conducted by the State Government, yet his appointment was terminated and same did not follow the laid down procedure of the Public Service Rules as he was not served with any query nor notice in lieu.

During cross examination, the Claimant said he does not know if the Panel Report he pleaded was No.6 but that it was pasted on the board of the LGA and he saw his name on the list as terminated upon which he has not received salary since then. He said he has no letter of termination, no letter of dismissal and no salary since 2016. He added that even though Kogi state civil servants are owed salaries, his colleagues are getting salaries. He also stated that when he saw his name on the list, he orally complained to the Local Government Service Commission and was asked to put it in writing which he did but he was told that he remained uncleared. He stated further that he is not aware that the Local Government Service Commission constituted a Committee to review the report. When asked if he was still a staff, Claimant said he has not received salaries since 2016.

There was no re-examination and the Claimant closed his case.

The Defendants called no witness and tendered no document in evidence but simply rested their case on that of the Claimant.

Upon close of case, the Defendants filed their final written address, and arising from same, learned counsel to the Defendants, G.O. Salihu, raised two issues for determination to wit:

Whether or not. The Exhibits C6 and C7 i.e. photocopies of the Kogi State Appeal Committee Report and the Claimant statement of Accounts which the claimant stated in his evidence in chief were submitted to the Appeal Committee.
Whether or not the claimant is entitled to any of the reliefs herein in all the circumstances of this case.

In arguing issue one, learned Counsel submitted that exfacie, Exhibit C6 and C7 are public documents within the contemplation of section 102 of Evidence Act 2011. Upon stating the provision of section 102 of the Evidence Act, Counsel humbly submitted that Exhibit C6 is a document forming the Acts or record of official body setup by the Kogi State Government while Exhibit C7 is a public record of private documents and urged the court to so hold. Counsel also cited the case of House of Representative Vs. S.P.D.C.N (2010) 11. NWLR part (205) 213 at 219, to argue that the feature of a public document is that it is created over a public matter preserved for good of public and always accessible for public inspection and use especially by those having something to do with it.

Counsel further posited that the best evidence of a public document is by producing the original or by tendering a certified copy of the documents provided for under section 104 of the evidence Act 2011 while Exhibit C6 and C7 are neither the original nor certified copies. Counsel referred the court to the case of Tabik Investment Ltd & Anor Vs. GTB Plc. (2006-2011) 7 SCJE 620 at 630 and Alexander Payne’s Annotated Evidence Act 2011 at page 94 paragraph 3.

Counsel concluded on this issue by submitting that Exhibits C6 and C7 being photocopies are inadmissible in evidence and urged this court to expunge them from the record.

On issue two, learned Counsel submitted that the claimant has woefully failed to prove his claims on the balance of probability to entitle him to the declaration sought and the damages thereof.

Counsel added that the claimant who categorically stated in his statement of complaint via paragraphs 4, 30 and relief 1 and 2 that his appointment was terminated or that he was dismissed from Service, failed to tender any letter of termination or dismissal at the trial. Thus, his compliant and evidence adduced thereon are empty and devoid of any live issue.

Counsel maintained that there is no cause of action against the Defendants and cited the case of Adesina Vs. Ojo (2012)10 NWLR (Pt. 1309) 552 at 562 on when cause of action arises.

Counsel concluded that claimant’s case is moot, hypothetical and academic and submitted that same lack merit and should be dismissed with cost.

The Claimant in reaction filed his Final Written Address on the 5^th of June 2018 and arising therefrom, Learned counsel to the Claimant, Oboni Peter Austine formulated one issue to wit:

“Whether the claimant has proven his case to be entitled to the relief sought before this court”.

In arguing the lone issue, learned 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 further posited that upon his testimony, Claimant 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, OLANIYAN V. UNIVERSITY OF LAGOS (1985)2NWLR (PC9)599

Counsel argued that the Report of a Committee set up by the 1^st Defendant alleged that the Claimant was a diaspora staff as most of his withdrawals was made outside his primary place of assignment, and that the Claimant’s appointment be terminated. Counsel contended that without further ado, the entitlements of the claimant was suspended without recourse to due process of the law. Counsel referred the court to rules 030102 and 030103, chapter 3 of the public service Rules, 2008.

Counsel posited that no resort to the Civil Service Commission whatsoever was made before effect was given to the recommendation of the screening panel.

Learned Counsel also referred to Rule 030307 on the procedure for relieving an officer of his job which enjoys statutory flavour and concluded 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. Counsel cited the case of BOARD OF MANAGEMENT, FMC. MAKURDI V. ABAKUME (2016) 10 NWLR (PT. 1521) P536.

Counsel further 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 and neither has his salaries or entitlements been paid.

With regards to the objection raised by Counsel to the Defendant on the admissibility of Exhibit C7, Counsel urged the court to discountenance the objection on the basis that the said document is admissible in evidence having been pleaded.

With regards to the document being a public document requiring certification, Counsel submitted that the argument cannot hold water as attempt to get the document certified was frustrated and the Defendant was duly put on notice to produce the original which was duly served on the defendants. He added that going by the statement of defence and the Claimant’s statement on oath, the Defendants had been made aware of what to expect at trial. Counsel cited the case of ADEYEFA V. BAMGBOYE (2013) IONWLR (PT.1363) P532.

Counsel argued further on the effect of a notice to produce and submitted that in the event of 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. Counsel cited Section 91 of the Evidence Act and the case of DIM V. AFRICAN NEWSPAPER LIMITED (1990) 3NWLR (PT139) 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 contended that the defendants filed a statement of defence without evidence to back it up where it averred that the claimant had not at any point or reason been dismissed, Counsel submitted that the averment goes to no issue because the statements were not backed by evidence.

Counsel concluded by urging the court to order the defendant to pay to the claimant all his entitlement which had been illegally suspended as the Defendants did not deny the fact that the Claimant had not been paid since December 2016.

Counsel urged the court to enter judgment in favour of the Claimant by granting the claims of the Claimant and ordering his unconditional reinstatement.

That being the case before this court, I have painstakingly evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the sole witness called on oath, watched his 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 is entitled to the reliefs sought”.

Before I proceed on addressing this sole issue, it is incumbent on this court to foremost, address the status of the Exhibits C7 and C8 being documents admitted under protest. I must also at this stage point out that Counsel to the Defendants had inadvertently referred to the documents in the Defendant’s final written address as Exhibits C6 and C7.

With regards to Exhibit C7, which is a copy of Kogi State Government Staff Screening, Validation and Appeal Committee Report, learned Counsel to the Defendants, G.O. Salihu objected to the admissibility of same on the ground that the document is a public document by the combined effect of sections 102 and 104 of the Evidence Act. He argued that Exhibit C8, which is UBA Statement of Account of the Claimant, on its own part is a public record of a private document. Consequently, the best evidence of these documents is the original or the certified true copy of same and the copies tendered being photocopies should be rejected.

Counsel to the Claimant contended on his part that the documents have been pleaded, are relevant and that notice to produce the original have been served on the Defendants who failed to do same, consequently, the court should admit the documents.

I have taken a look at the said documents, they are indeed not original nor certified true copies. The question that comes to mind is whether these documents are indeed public documents? 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 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.

Exhibit C8 on its own part being a bank statement cannot ordinarily be said to be a public document having emanated from a commercial bank. However, the Claimant, perhaps upon obtaining the statement of account from his bank, submitted same to the Screening Committee during the screening exercise and therefore has only the photocopy. Rightly so, the moment the document was submitted to the Screening Committee, it became a public record kept in Nigeria of a private document and therefore, a public document. The court in Alamieyeseigha v. F.R.N. (2006) 16 NWLR (Pt.1004) pg.1 in this regard held that:

“As rightly submitted by the learned respondents’ counsel, as soon as the Attorney General received the document, same had formed part of his official record. The document therefrom qualified as public record of private document under section 109(b) of the Evidence Act. The said section provides:- “109. The following documents are public documents (a) documents forming the acts or record of the acts … (b) public records kept in Nigeria of private documents”.

Consequent upon the above, Exhibits C7 and C8 are public documents the feature of which the court in HOUSE OF REPRESENTATIVES & ORS v. SPDC NIGERIA & ANOR (2010) LPELR-5016 (CA) described 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)

Having resolved that both documents are public documents, how can they then 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 C8 and I do not see any such certificate 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 language of the law is clear, explicit and categorical that the only admissible evidence to prove the existence, condition and content of a public document is a certified true copy (CTC) of the original and no other.

Put differently, the only categories of public document that are admissible are either the original document itself or in the absence of such original, certified copies and no other. See also PDP v INEC (2014) LPELR-23808 (SC); Udo vState (2016) LPELR 40721 (SC).

Going by these positions of the law, I am adverted to two other legal positions before I make a conclusion on the admissibility or otherwise of the said documents. The first is the contention of learned Counsel to the Claimant who referred this court to section 91 of the Evidence Act 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…”

With this section of the Evidence Act in mind, 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 16^th of April, 2018. In this wise, 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.” Per OBASEKI-ADEJUMO, J.C.A (P. 26, paras. C-G) see also UBA PLC v. OGOCHUKWU (2014) LPELR-24267(CA)

I am convinced that the Claimant has in this case rightly fulfilled the duty of providing a secondary copy of the original having been unsuccessful at certifying same and having given notice to produce.

That said, the second position of the law which would encapsulate both Exhibit C7 and C8 is provided in the Act establishing this court i.e. the National Industrial Court Act, 2006. By section 12 (2) (b), this court is generally bound by the Evidence Act but may depart from it in the interest of justice. Similar admonition is made in Order 1 Rule 9 (2) of the Rules of this court, 2017.

The requirement of justice in this case is that considering the difficulty that may be involved in getting the said Exhibits C7 and C8 to be certified by the Employer of the Claimant makes the notice to produce sufficient and considerable in the admissibility of document in question.

The documents are also pleaded and relevant to the just determination of this suit and considering the decision of the court in Ilesanmi v Uginleye & Anor (2016) LPELR- 41348 (CA) where it was stated 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, the said Exhibits C7 and C8 are admissible and accordingly admitted in evidence.

I now turn to the sole issue which is “Whether having regards to the circumstances of this suit, the Claimant is entitled to the reliefs sought”. I must state that the formation of this issue as the sole issue takes into cognizance the fact that the Defendants have not called in any witness in support of their case nor tendered any evidence but merely rested their case on that of the Claimant. All that the Defendants filed is a joint statement of defence.

Upon that, this court will consider whether or not the Claimant has made out its case in order to earn the reliefs sought.

For ease of reference, the reliefs sought by the Claimant are once again reproduced thus:

A DECLARATION that the purported dismissal of the claimant by the 1^st defendant or his agent is null and void, and of no effect the dismissal haven (sic) not complied with the laid down requirement of Kogi State civil/public service rules on appointments and dismissal of civil/public servant.
AN ORDER of his Honourable Court reinstating the claimant for his appointment being wrongly terminated (sic).
AN ORDER of this Honourable Court directing the defendants to pay to the 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 N500, 000.00 (FIVE HUNDRED THOUSAND NAIRA) only.
The sum of N1,000,000.00 (ONE MILLION NAIRA) as general damages.

I shall treat reliefs one and two together considering the fact that relief two is dependent on relief one.

Relief one as captured herein is a declaratory relief of which the position of the law is that the Claimant must earn it on the strength of his own case and not on the weakness of the defence. The court in MATANMI & ORS V. DADA & ANOR (2013) LPELR-19929(SC) have held in respect of a declaratory relief thus:

“I agree with the learned counsel that the plaintiffs must establish their claim on the strength of their case. They cannot place any reliance on the weakness of the defence; if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fail to establish their entitlement to the declaration sought by their own evidence. See: Nwokidu v. Okaru (2010) 3 NWLR (Pt. 1181) 362, Dantata v. Mohammed (2002) 7 NWLR (Pt. 664) 176; Ekundayo v. Beruwa (1965) 2 NWLR 211 and Dumiez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt.1119) 361 at 373″PER FABIYI, J.S.C

In the same vein, the court in NZURIKE v. OBIOHA & ANOR. (2011) LPELR-4661(CA ) held that:

“When a declaratory relief is sought, it is to make the court declare as established a legal and factual state of affairs in respect of the cause of action. Thus the courts will not readily without good and sufficient evidence exercise its discretion to grant a declaratory order. That is why declaratory reliefs cannot be granted without oral evidence even where the Defendant expressly admits liability in the pleadings. See A.G. CROSS RIVER v. A.G. FEDERATION (2005) 6 SCNJ 152; OGOLO v. OGOLO (2006) 2 SCNJ 235.” Per OGUNWUMIJU, J.C.A. (P. 35, paras. E-G)

Having said that, the said declaratory relief is in respect of an employment which is clearly one with statutory flavor.

The Supreme Court in C.B.N. v. Igwillo (2007) 14 NWLR (Pt.1054) 393 described an employment with statutory flavor thus:

“An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. Unversity of Lagos, supra; 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.” Per Akintan, J.S.C. (Pp. 20-21, paras. D-A)

In attempt to prove the facts relating to the Claimant’s employment, the Claimant tendered Exhibit C2 (letter of appointment dated 20/04/2006), Exhibit C3 (letter of confirmation of appointment dated 22/12/2009) and Exhibit C5 (letter of posting as Development Officer, Analo Ward).

The Defendants by paragraph 2 of the joint statement of defence did admit the facts relating to the Claimant’s employment, hence, facts admitted need no proof. See CHUKWU & ORS v. AKPELU (2013) LPELR-21864(SC); Narinder Trust Ltd. v. N.I.C.M.B. Ltd. (2001) FWLR 1546 at 1558 and Nwankwo v. Nkwankwo (1995) 5 NWLR (Pt. 894) 158

With regards to dismissal from employment, which the Claimant by relief one wants this court to declare as null and void, and of no effect, the piece of evidence before this court is Exhibit C7 which is the Kogi State Government Staff Screening, Validation and Appeal Committee Report. Claimant alleged that since the report has been published his salary had been stopped and therefore concluded that he has been dismissed wrongfully.

In the course of cross examination, Claimant stated that the said Exhibit C7 was pasted on the board of the LGA and he saw his name on the list as terminated upon which he has not received salary since then. He said he has no letter of termination, no letter of dismissal and no salary since 2016.

Considering the above narrative, there is no gainsaying that the burden is on the Claimant to prove that he has been dismissed, and then how the dismissal is wrongful in order for the court to declare same.

The Defendants by their joint statement of defence denied the averments relating to dismissal and stated particularly in paragraph 4(e) that Exhibit C7 is still under review by the 2^nd Defendant.

Considering this assertion and denial by the Defendants, the burden is on the Claimant to prove the dismissal as section 131 of the Evidence Act, 2011 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.

I have therefore considered exhibit C7 tendered by the Claimant in order to determine if the Claimant has proved his dismissal. I find that aside from the fact that the document is merely a report, same is not addressed to the Claimant as his notice of dismissal or termination. The Claimant’s name appears on column No.11. where the Committee Report stated under the row headed “Revised Action Plan” that “…the staff should be DISMISSED from public service. All salaries and allowances illegally earned be recovered…”. Perhaps this is the trigger point upon which the Claimant approached this court and wants this court to make a declaration that his dismissal is null and void and of no effect. I cannot but disagree with the Claimant that he has been dismissed by the above publication. The above is a recommendation, and action plan which is yet to be carried out as the Defendant averred that the Report is under review by the 2^nd Defendant. The Claimant has not placed any evidence before this court to show that the said action has been carried out.

In the light of the fact that the Claimant failed to prove how his employment was terminated or how the terms of his employment was breached, could it be said that he discharged the burden of proof? It is settled law that he who alleges must prove i.e. by proving the wrongful termination of his employment by the Defendants. The burden of proof is clearly on the Claimant to prove the conditions regulating the contract of employment and that the termination of his employment is wrongful which burden he failed to discharge. Consequently, reliefs one and two are accordingly refused.

With regards to reliefs three which is “AN ORDER of this Honourable Court directing the defendants to pay to the Claimant all his entitlements owed him before, during and after the state screening until date of judgment”. The Claimant stated during cross examination that he has not been paid his salary since 2016. From the evidence before this court, the Claimant is not under suspension without pay nor dismissed from employment. He also maintained that his colleagues have been paid salaries despite the general cases of non-payment of salaries in Kogi state.

Having found that the Claimant has not been dismissed from employment, there is no difficulty in holding that the Claimant is entitled to his salaries and allowances. However, the Claimant failed to state the particular amount owed and he also did not tender a pay-slip to evidence his current salary. Considering this instance, can this court then order the payment of the Claimant’s salary?

In the case of Eze v Gov, Abia State (2014) 14 NWLR (Pt.1426) 192, the Supreme Court, upon observing that no evidence was led to establish the sums due to the Appellants as salaries and allowances, 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.

Consequent upon the above authority, I hold that the Claimant in this case is entitled to an order for the payment of his salaries and allowances from the date of his last salary to date.

Considering the nature of reliefs four and five, I am inclined to treat them in reverse order. Relief five seeks for general damages at 1,000,000.00. 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

The effect of the above authority is 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, I find that the Claimant deserves a remedy. Consequently, the general damages of N500,000.00 is awarded in favour of the Claimant and against the Defendant to be paid within 60 days from today.

Lastly is relief four which is a claim for “the cost of this suit, including Solicitor’s fee at N500, 000.00 (Five Hundred Thousand Naira) only”. It is imperative to note that the award of cost of action is at the discretion of the court which must be exercised judicially and judiciously. In this wise, 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 granting the award of cost, the court cautioned in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) that:

“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he/it incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F)

Considering the above, the Claimant stated that the solicitor’s fee is N500,000.00 but failed to prove same either by way invoice or receipt to indicate the fee as billed or paid. The said solicitor’s fee without doubt is in the class of special damages which requires proof. 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 therefore, I find it difficult to exercise discretion in favour of the Claimant in awarding cost in respect of this suit, each party should bear their respective cost.

In the final analysis, the sole issue is accordingly resolved in favour of the Claimant to the effect that the employment of the Claimant is still subsisting with the Defendants and is entitled to the Payment of all arrears of his salaries and allowances including the general damages awarded.

The Defendants are ordered to calculate and pay to the Claimant salaries and allowances due to him.

The sum due to him must be paid within 30 days from the date of this judgment and if not paid within the period, the sum shall attract 10% interest per annum until paid.

Judgment is entered accordingly.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.