ALHAJI JIMOH BABA -VS- ATTORNEY GENERAL OF KWARA STATE & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO

DATED: 2^ND MARCH, 2020 SUIT NO: NICN/IL/09/ 2018

BETWEEN

ALHAJI JIMOH BABA …… CLAIMANT

(Bashorun of Share Land)

AND

ATTORNEY GENERAL OF KWARA STATE
GOVERNOR OF KWARA STATE ….……. DEFENDANTS

REPRESENTATION:-

T.O.S Gbadeyan for the claimant

H.K. Onimago (Senior State Counsel) for the defendants.

JUDGMENT

The claimant instituted this suit vide a complaint dated and filed 26^th November 2018, wherein he seeks the following reliefs against the defendants:
A declaration that the claimant’s dismissal from the service of Kwara State through a letter to that effect dated 27^th August, 2018 and served on him on 30^th August, 2018 after the claimant’s 35 years in service has expired on 2^nd June, 2017 is null, void, ineffective, invalid and of no effect whatsoever.
A declaration that a retiree from the Public Service of Kwara State Government after putting into service the allowable 35 years of service cannot under any law, be validly and justifiably dismissed as done in the claimants’ case at hand.

III. A declaration that the claimant’s dismissal from the service of Kwara State Public Service based on the implementation of the Supreme Court decision in a civil in Kwara State Muslim Pilgrims Welfare Board VS. Alhaji Jimoh Baba SC/164/2006, a judgment delivered on 2^nd February, 2018 after the retirement of the claimant from the Public Service of Kwara State on 2^nd June, 2017, is null, void, ineffective and of no effect whatsoever.

A declaration that the claimant is entitled to his pension and gratuity pursuant to section 210 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the Pension Law of Kwara State 2006, being a public servant who was in the service of the Kwara State Government from 3^rd June, 1982 until his retirement by operation of law, having put in 35 years allowable period of service that expired on 2^nd June, 2017.
A declaration that it is unconstitutional for the defendant either by themselves or through their agents to continue to withhold the payment of the claimant’s unpaid pension and gratuity.
A declaration that the claimant is entitled to his unpaid salaries and emoluments based on his entitled promotions which he would had earned as at when due from 1994 to 2^nd June, 2017 having been and recognized as a Public Servant within that period when he was put on prolong suspension by Kwara State Muslim Pilgrims Welfare Board, an agency or parastatal of Kwara State Government.
The claimant filed along with the complaint all other accompanying processes, i.e. the statement of facts, deposition on oath, list of witnesses and documents to be relied upon, while the Defendants filed a memorandum of appearance, joint statement of Defence and other accompanying processes.
The case of the Claimant is that he was employed vide a letter dated 3^rd June, 1982 as a public servant by the Kwara State Government, and his appointment was pensionable. He averred that upon his appointment, he served in the Governor’s office under the 2^nd defendant, who is the Chief Administrator of the State, while the 1^st defendant is the chief law officer of the State. He stated that in the course of his service, he was seconded to serve in Kwara State Muslim Pilgrims Board in 1993, and was working in that department until 11^th April, 1994, when a sum of N125,000 went missing in the pilgrim board’s account, and this was discovered at the point of making a deposit at the UBA Plc, Ilorin branch. The claimant claimed he was thereafter arrested on 21^st April, 1994 and arraigned before a Magistrate Court in Ilorin for the missing funds but the prosecution failed to proof the offence against him.
The claimant pleaded that he was suspended from his duty between the year l994 to 2017, when he eventually clocked the mandatory year of retirement of 35 years in service and his employment ceased by effluxion of time. He pleaded further that during his suspension, he was not allowed any benefits including salaries, promotions etc. The claimant averred that upon the termination of the criminal case against him, the 1^st defendant instituted a civil action against him in Suit No: KWS/69/95 between Kwara State Muslim Pilgrims Board v Alhaji Jimoh Baba, before Hon. Justice S.D Kawu of Kwara State High Court, instead of allowing him to resume his duties. He added that judgment was entered against him by the court on 2^nd May, 2000, upon which he appealed against the said judgment to the court of Appeal Ilorin, on 26^th June, 2000.

4 It is the claimant’s averment that the court of Appeal only considered the issue of jurisdiction, whereupon the claimant’s appeal was allowed on 15^th December, 2004. He continued that the defendants were dissatisfied with the decision of the Appeal Court, and thereafter filed an appeal at the Supreme Court in suit number SC/164/2006, of which they predicated the appeal on two grounds bordering on whether or not the trial court had jurisdiction to entertain the suit and it was based on these grounds that issues were formulated at the Supreme Court. He stated further that judgment was delivered by the Supreme Court in the Appeal on 2^nd February, 2018, and the judgment of the trial Court was affirmed, while the issues abandoned by the Court of Appeal were not treated. He pleaded that he was thereby denied his constitutional right to fair hearing since the issues upon which the judgment of the Supreme Court was resolved, were not considered by Court of Appeal.

5 He also pleaded that during the pendency of the appeal at the Supreme Court, he was appointed Bashorun of Share land and the judgment of the Supreme Court has affected his reputation as a high chief in Kwara State.

6 The claimant stated that he received a letter dated 27^th August, 2018 from the defendants, dismissing him from the Civil service of Kwara State in implementation of the judgment of the Supreme Court and he caused his solicitors, Deji Gbadeyan & Co. to write a response dated 22^nd October, 2018 to the defendants. Wherefore he claims against the defendants as aforestated.

7 The defendants filed their statement of defense and other accompanying processes on 8^th January, 2019 and by an order of court of 27^th January, 2019, same was deemed properly filed and served. They averred that the claimant was not in any pensionable employment with the defendants and relied on his letter of employment. They averred that on the 11^th April, 1994 the claimant was involved in a case of misconduct and breach of trust when a sum of N125,000.00k out of a total sum of N1,776,350 which was entrusted to the claimant for deposit in the Kwara State Pilgrims Welfare Board Account at UBA Plc went missing.

8 They maintained that the charge against the claimant at the Magistrate Court was eventually struck out for lack of diligent prosecution by the police prosecutor, and not because of lack of substantial evidence, thus the claimant was neither discharged nor acquitted of the charge.

9 They averred that the claimant was suspended indefinitely as a result of the incident of 11^th April, 1994 and a civil action was initiated against him in suit No: KWS/69/ 95 Kwara State Muslim Pilgrims Welfare Board v Alhaji Jimoh Baba, while further disciplinary actions were stayed pending the determination of the suit. They continued that by the Civil Service Rules, any suspended staff is prohibited from exercising the powers and functions of his office or being paid salaries throughout the period of suspension. They contended that the claimant remained suspended throughout the life span of the above mentioned suit which eventually terminated at the Supreme Court.

10 The defendant pleaded that the procedure for retirement by effluxion of time is for the civil servant to notify his employer in writing of his retirement and failure to do so will allow the employer force him out of service. They added that the claimant in this suit did not notify the defendants of his retirement and was under suspension until his 35 years in service was up.

11 The defendants stated that the High Court of Kwara State found the claimant responsible for the disappearance of the missing funds, and ordered him to pay the sum with 10 % interest per annum till the sum is finally liquidated. On appeal to the Court of Appeal, the claimant succeeded and based on this, the defendants wrote a a letter of proposal dated 24th September, 2012 to the claimant and he replied refusing the offer vide his letter dated 7^th November 2012. The defendants pleaded that they hereafter decided to further appeal to the Supreme Court, where the judgment of the Court of Appeal was set aside and the judgment of the High Court restored. They denied that the appeal at the Supreme Court was argued only on the issue of jurisdiction and averred that it was fought on two grounds.

12 The defendants also stated that the claimant never cross-appealed the decision of the Court of Appeal, thus it is a misconception to say that the Supreme Court denied him fair hearing in reaching its decision. They argued that the claimant raised the issue of limitation law and the judgement of the Supreme Court is explicit and not against the decision of the High Court. They stated further that the Supreme Court held that the case of the claimant goes beyond the three months (3) months limitation period for an action against a public officer, as it is a case of fraud and breach of public trust. He added that the decision of the Supreme Court cannot be reviewed by this Court.

13 It is the defendants’ final contention that pension rights of Kwara State public servants is guided by Pensions and Gratuities Law of Kwara State CAP 116A of 2006, and there is no provision therein entitling the claimant to pension and gratuities. They averred further that since the claimant was not entitled to salaries while he was on suspension, he isn’t entitled to any benefits upon his dismissal from service. They finally urged the court to dismiss the entire suit for being vexatious, gold digging and lacking in merit.

14 The claimant filed a Reply dated 27^th February, 2019, where he contended that anyone in the Civil service is in a pensionable cadre under the Nigerian Constitution. On whether he was discharged or acquitted by the Magistrate Court, he averred that the record of proceedings of the court should have been tendered by the defendants. He also maintained that there is no provision for indefinite suspension under the civil service rules of Kwara State and the defendants did not plead or produce the letter of indefinite suspension before this court. He continued that he was entitled to half salary while on interdiction and that the Civil Service Commission, being a government institution that keeps records, should know the steps to take when the claimant reached 35 years in service, therefore the defendants’ negligence to perform their lawful duty cannot be justified by the action or inaction of the claimant.

15 He averred that he was not found guilty at the High Court of Kwara State as the action instituted there was civil in nature and that the successful appeal at the Supreme Court had the effect of remitting the suit to Court of Appeal for determination of the three unheard issues before the court. He continued that the Apex Court speculated on issues affecting the claimant’s integrity by their judgment, and that having violated the sacred principle of natural justice, equity and good conscience as enshrined in the constitution, the Supreme Court’s judgment can be challenged in a new action and the court may make it a case stated to the Supreme Court to review its earlier judgment. He stated that the letter of dismissal dated 27^th August, 2018 is invalid and of no moment because there was no existing employment between himself and Kwara State Government when it was issued coupled with the fact that it was not issued by the appropriate authority.

16 He continued that the Supreme Court judgment upon which the letter of dismissal is based, was delivered in February 2018 after his retirement on 2^nd June, 2017 thus the appeal was spent, moot and academic at the time of hearing and delivery of the judgment. He averred that the Supreme Court was never informed that the claimant’s employment had expired and that’s why the Court entered its judgment which was academic and hypothetical and therefore void and of no effect. He concluded by stating that at the time of his retirement, the judgment of the Court of Appeal was the prevailing judgment.

17 Trial commenced in this suit on 19^th June, 2019 with the claimant testifying as CW1, he adopted his statements on oath and tendered several documents which were admitted and marked Exhibits JB1-JB9, he was cross-examined and re- examined after which he closed his case. The defence opened on the same day with Malomo Ayantola, a Chief Admin. Officer, office of the Governor, Kwara State testifying as DWI. DW1 tendered three documents which were admitted and marked Exhibits KG1-KG3 and was cross examined and the defense closed their case. Thereafter this suit was adjourned for adoption of final written addresses and parties adopted their final addresses on the 9^th of December, 2019.

18 The defendants’ final written address was dated and filed 8^th July, 2019, while that of the claimant was dated and filed 23^rd September, 2019.

19 In the defendant’s final written address, H.K. Onimago (SSC) Kwara State Ministry of Justice submitted one issue for determination, viz:

“Whether from the totality of evidence before this Honourable Court, the Claimant has been able to discharge the burden of proof on him by law to be entitled to the reliefs sought.”

20 Learned state counsel, by way of preliminaries raised an objection as to the admissibility of Exhibit JB9, and contended that same is inadmissible having not been pleaded or front-loaded. He argued that based on the aforementioned grounds, notice was not given to the defendants on the existence of the document. He argued that Exhibit JB9 is a document that is distinct and different and ought to have been pleaded to enable the defendants verify the authenticity of same, and added that it cannot be an attachment to Exhibit JB1 which is dated 3^rd June, 1982, as argued by the claimant’s counsel, giving that Exhibit JB9 is dated September 1991, Nine (9) years after Exhibit JB1 was issued.

21 He argued further that the usual practice is that Exhibit JB1 by its heading ‘Temporary letter of Appointment’ speaks for itself while on the other hand, Exhibit JB9 is usually issued to employees who must have scaled through the two years’ probation period and passed the mandatory Civil Service Examination. He cited Rules 02301 and 02302 of Section 3 of Exhibit KG1. He submitted that Exhibit JB9 is questionable and the Claimant ought to have pleaded same and given notice to the defendants, that such a document exists and would be relied on at trial, citing REGISTERED TRUSTEES OF DEEPER CHRISTIAN LIFE MINISRTY V. EBHODAGHE (2017) ALL FWLR (Pt. 877) @ pg 383.

22 He argued that evidence led on an un-pleaded fact and document which was inadvertently admitted in evidence goes to no issue and is liable to be expunged, he commended the case of OUR LINE Ltd. V. S.C.C Nig Ltd (2009) LPELR-2833 (SC). (2009) 17 NWLR (Pt. 1170) to the court and submitted that the said document falls short of the basis of front-loading system, as no party is allowed to spring surprises on the other. He submitted finally that the admittance of Exhibit JB9 will occasion great injustice to the Defendants.

23 On the sole issue formulated by learned state counsel, he stated that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. He cited ADIGHIJE V. NWAOGU (2010) 12 NWLR (PT.1209) 428 AT 457-458 Paras G-A.

24 Counsel pointed out that the Claimant in proof of his case, tendered some documents i.e. Exhibits JB8 and JB9 and submitted that the claimant has failed woefully to discharge the burden placed on him as neither the witness called nor the exhibits tendered by him are cogent enough to prove his case nor convince this Court that the facts he presented before the court exist, he urged the Court to so hold. He continued that the Judgement of the Apex Court tendered as Exhibit JB8 is very direct, and the Claimant was adjudged to be accountable for the missing funds. He added that the claimant admitted this fact under cross-examination. He further cited pages 17-18 of Exhibit JB8, and submitted that a clear case of fraud, financial infelicity/embarrassment, dishonesty and breach of Public Trust was established against the Claimant which initially prompted his suspension in line with the provisions of Section 4 Rule 04405 of Exhibit KG1 (Public Service Rules, Kwara State).

25 Learned Counsel argued that any officer on suspension ceases to enjoy any benefit and salaries throughout the period of suspension. On this point, he relied on pages 20-21 of Exhibit JB8. He argued further that the claim for payment of salaries, pension and gratuity, having worked with the defendants for 35years is misconstrued because in actual fact he was suspended on the 20^th June 1994, and this suspension lasted through the period of litigation from 1994 when the civil action was instituted, till the claimant was eventually dismissed after the Supreme Court Judgement of 2^nd February 2018. He submitted that the Claimant cannot be deemed to have worked during that time, thus his claim of non-payment of salaries for 35 years of service and entitlement to pension and gratuity has no basis, considering the above statutory provisions and the Supreme Court decisions earlier cited.

26 Counsel further argued that the Claimant admitted under cross examination that he is aware of the Kwara State Civil Service Rules which guides his conduct and relationship in the Service. He posited further that the claimant made a very weak attempt at showing exactly how and why he is entitled to any of the reliefs sought in this case, he relied on Section 131 of the Evidence Act 2011, in arguing that the claimant retains the burden to show that he indeed worked for the Kwara State Government for the 35 years as claimed. He added that this burden must be discharged, considering the fact that he was on suspension from 20^th June 1994 and all through the period the matter was in court till he was eventually dismissed from service after the Supreme Court judgement.

27 Learned Counsel submitted that the Claimant is not entitled to any of the reliefs sought, after he admitted under cross-examination that he was adjudged liable for breach of Public Trust by the Apex Court. He commended Section 4 Rule 04406 (a) of Exhibit KG1 to the Court and submitted that Exhibit JB9 be expunged from the records of this Court, as the Claimant failed woefully to discharge the burden of proof retained by him in this case. He finally urged the court to dismiss the claimant’s suit in its entirety as they are unfounded and frivolous.

28 In his final written address, T.O.S Gbadeyan mni. of counsel, on behalf of the claimant submitted the following issues for determination:

Whether exhibit JB6, the claimant’s dismissal letter from the service of Kwara State Civil Service on 27^th August 2018 is in compliance with the procedures for dismissal of civil servants as delineated in the Kwara State public service rules otherwise tendered and marked as exhibit KG1.
Whether the claimant, a retiree from the Public Service of the Kwara State Government after putting into service, the allowable 35 years of service can be validly and justifiably dismissed as done in exhibit JB6.

III. Whether the supreme court decision in exhibit JB8 delivered on 2^nd February 2018 is a decision based on mistakes of fact that denied the Supreme court of its much needed jurisdiction to hear and determine the appeal as it did in its said judgement and whether Exhibit JB6 is also based on another mistake of fact that makes the content therein worthless and inefficacious.

Whether the judgement of the Supreme Court in Kwara State Muslim Pilgrims Welfares Board vs. Alhaji Jimoh Baba (supra) as contained in exhibit JB8 was delivered in contravention of fair hearing provisions enshrined in section 36 of the 1999 constitution of the Federal Republic of Nigeria as amended and also section 233 (1) of the said constitution that only confers jurisdiction on the supreme court to hear appeals from courts of appeal alone and not the decision of the high courts; and section 233(3) of the said constitution that denies the supreme court of its jurisdiction to hear an appeal which raises new issues of mixed law and fact or facts simpliciter before the supreme court without its prior leave having been sought for and granted.
Whether the claimant in this action is entitled to all the reliefs claimed in his complaint and statement of facts especially pursuant to section 210 of the 1999 Nigerian Constitution as amended dealing with payment of his pension and gratuity.
Learned counsel responded to the objection raised by the defence counsel in this case on the admissibility ofExhibit JB9 in his address. Wherein he submitted that the defendants’ objection to the admissibility of Exhibit JB9 is misplaced since parties are in tandem on the fact that there was a contract of service between the claimant and the defendants. He contended that Exhibits JB1 and JB2 tendered by the claimant and Exhibits KG1 and KG2 tendered by the defendants leaves no one in doubt as to the issue in dispute before the court. He therefore submitted that the defendants cannot deny that the claimant is a public officer based on the existence or absence of Exhibit JB9. Counsel continued that notwithstanding the submission above, what determines relevancy of a document is the facts before the court and admissibility of a document is governed by Section 1 of the Evidence Act 2011. He submitted that once a document is relevant then it is admissible, and cited Sadau V. State (1968) 1 ALL NLR 124; Ogonze V. State (1997) 8 NWLR (PT 518).

30.Learned counsel argued that the court may presume the existence of a fact which it thinks likely to have happened, regards being had to the common course of natural events, human conduct and public and private business. He placed reliance on Section 167 of the Evidence Act and submitted that Exhibit JB9 authored by the defendants’ officer for and on behalf of the defendants is at all times relevant in assisting the court to determine the issues of whether the claimant was a public officer in the employment of the Kwara State Government.

31.Learned counsel thereafter went on to submit on the first issue for determination formulated by him in this suit by arguing that employment in the public service must be determined, severed or brought to an end through a competent notice of such termination or dismissal of the employment. Where such a notice is incompetent, especially for non-compliance with the public service rules, such dismissal will be ineffective, null, void and of no effect, citing Chapter 4 Rule 04306 of Exhibit KG1.

32.Learned Counsel contended that Exhibit JB6 authored by one TOYIN RAJI for and on behalf of the Secretary to the Government of Kwara State is incompetent as the office is a political office and the occupant is not a member of the Civil Service Commission, Civil servant, Permanent Secretary or Head of Extra-Ministerial department as envisaged by Chapter 4, Rule 04102 and 04103 Exhibit KG1. He submitted that Exhibit JB6 is therefore an incompetent and invalid notice of dismissal, and is worthless, ineffectual, null and void and of no effect, he urged the court to so hold.

33.On the second issue, Learned Counsel noted that a notice of dismissal has the effect of repudiating a contract of employment and the totality of Exhibits JB1, JB2, KG1, KG2 and JB6 clearly reveals that a contract of employment between the claimant and the Government of Kwara State only existed between 3^rd June 1982 to 2^nd June 2017, when he was mandated to retire after the maximum number of years allowed by law under Section 8 Rule 02809 of Exhibit KG1. He submitted further that that the notice of dismissal issued after the claimant had retired from the service by effluxion of time was an exercise in futility and urged the court to grant the reliefs in this case based on the resolution of issues 1 and 2 above in his favour.

34.Learned Counsel for the claimant argued issues three and four together, and submitted that the Supreme Court Judgment i.e. Exhibit JB8, was reached in error, and continued that the claimant raised the issue in this suit upon which issues were joined. He therefore posited that the issue is up for this Court’s decision to make it a case stated to the Court of Appeal, from where it would be referred further to the Supreme Court.

35.Counsel pointed out that Exhibit JB 2 (the records of appeal) tendered in this suit by the claimant was only certified for the purpose of this suit and was not certified before the Supreme Court during the pendency of the appeal, and submitted that the non-certification of the record of appeal made it unreliable. He relied on Section 104 of the Evidence Act 2011 and FAAN V. Wamal Express Services Nig. Ltd (2011) 1-2 SC (Pt 2) 93 at 101.

36.He submitted that the dismissal of an employee is invalid if the employer acted on a mistake of fact that never existed. He relied on ACB Ltd V. Ewarami (1978) 4 SC 99 Sikiru Bakare V. Lagos State Civil Service Commission (1992) 8 NWLR (pt. 262). Learned Counsel continued that both the decision of the Supreme Court in Exhibit JB8 and the letter of dismissal Exhibit JB6, are products of mistake of fact because as at 3^rd June 2017, the appeal before the Supreme Court which led to the judgement in Exhibit JB8 became hypothetical, academic, spent and moot by reason of the claimant’s retirement. He therefore submitted that the Supreme Court as at the hearing and judgment of the appeal lacked jurisdiction. He argued that once a contract of employment is terminated by effluxion of time, the court lacks the jurisdiction to preside over the terms of such an expired contract, which is no more in existence, and a judgment on same is a judgement delivered without jurisdiction, null, void and of no effect whatsoever.

37.He maintained that the principle of waiver of right does not apply to issue of jurisdiction of court and placed reliance on FRN V. Ifegwu (2003) 5SC 252 at 274 -275. He pointed out that the apex court made a consequential order that gave effect directly to the judgement of the trial court, whereas the sole issue before the Supreme Court did not emanate from the judgement of the trial court. He relied on Oloruntoba Oju & 4 Ors V. Abdul Raheem & 3 Ors. (2009) 5-6 SC (PT 2) 57 and Section 233(1) of the 1999 Constitution of the Federal Republic of Nigeria.

38.He added that the Supreme Court lacks the power to hear appeals directly against the judgement of a trial court. He also reiterated that the entire proceeding before the Supreme Court occasioned a miscarriage of justice to the claimant arising from the monumental denial of his right to fair hearing under Section 36 of the 1999 Constitution. Thus the decision reached therein is null, void and of no effect. He cited VICTINO FIXED ODDS LTD V OJO & 2 ORS (2010) 3 SC (pt1), and submitted that even the Supreme Court can set aside its judgment if it is discovered to be a nullity where the need arises, citing Okafor v. AG Anambra (1991) 6 NWLR pt 200, 659 at pages 679-680,

39.Counsel finally urged this Court to make the determination of issues 3 and 4 a case stated to the Court of Appeal and for onward transmission to the Supreme Court for its eventual determination and setting aside of Exhibit JB 8.

40.On issue five, counsel submitted that upon the resolution of any or all of the issues raised, the claimant is entitled to all the reliefs claimed. He posited that every public officer, upon retirement is constitutionally guaranteed the payment of his pensions and gratuity and any other retirement benefit under Section 210 of the CFRN 1999 as amended. In conclusion, counsel urged the court to grant the claimant all the reliefs sought.

41.In his reply to the claimant’s final address, the defence counsel stated that the defendants tendered Exhibits KG1, KG2 and KG3, and other documents listed to be relied upon by the defendants which are already exhibits before the court, except Pension and Gratuities Law of Kwara State, Cap 116A, 1994, of which the court is presumed to take judicial notice. He argued that parties were never in agreement that the claimant enjoys a pensionable status with the defendants because the defendants denied same.

42.Counsel also maintained that the claimant never pleaded Exhibit JB9 in his reply to the statement of defence, he cited Agbaosi Vs. Imevbore (2014) 1 NWLR (pt. 1389) 556 in submitting that Exhibit JB9 cannot place the claimant on pensionable status and having been admitted in evidence, it should be expunged from the records of this court.

43.On the proper person to issue Exhibit JB6, learned counsel argued that the claimant’s argument is misconceived as Exhibit JB1 which is the claimant’s employment letter was also issued by the Secretary to Kwara State Government, not the Civil Service Commission. He continued that the power to appoint junior officers on Grade levels 01-06 (appointment) and to dismiss officers on Grade Level 01-03 (dismissal) is delegated to each Ministry/Extra-Ministerial Department. He argued that the Secretary to the State Government is the head of the Extra-Ministerial Department and the appropriate authority who retains the delegated power to appoint and dismiss the claimant in this case. He cited Rules 02101 (b) and 02103 (a) of Exhibit KG1.

44.He urged the court to discountenance all the arguments canvassed by the claimant and hold that Exhibit JB6 was validly issued in the dismissal of the Claimant. He continued that on the assumption that the court is of the view that the letter of dismissal i.e. Exhibit JB6 was wrongly issued, the defendants shall also contend and urge the Court to hold that the letter of Appointment i.e. Exhibit JB1, was also wrongly issued, null and void and nullify same.

45.In response to the second issue argued by the claimant’s counsel, learned defense counsel reiterated his initial arguments and commended to the Court, the case of UNIVERSITY OF CALABAR TEACHING HOSPITAL & ANOR VS. JULIET KOKO BASSEY (2008) LPELR-8553 (CA). He urged the court to discountenance the argument of the Claimant that he has put in the allowable 35 years of service and has retired before a letter of dismissal was issued to him.

46.On the claimant’s issues 3 and 4, H.K. Onimago (SSC) for the defendants adopted paragraphs 5.3 – 5.7 of the defendants’ address, wherein he stated that this court does not have the powers to review the decisions of the Supreme court, and the decision of the apex court remains final and binding on all parties. He submitted that there should be an end to litigation and urged the court to dismiss the Claimants suit for lacking in merit and substance.

47.I have carefully considered all the processes, pleadings, evidence adduced and arguments canvassed by both parties in this case and have come up with the following issues for the effectual and effective determination of this case, to wit:

Whether or not the claimant is entitled to the grant of a case stated in this suit;
Whether or not the dismissal of the claimant from the Civil Service of Kwara State is valid.

III. Whether or not the claimant is entitled to the reliefs sought in this suit

49.It is important at this point to resolve the application for Case Stated raised by the claimant’s counsel in his final address. It is on record that the claimant made an application for Case Stated for the review of the Court of Appeal, based on some issues that arose in the course of the civil suit initiated by the defendants against the claimant in the High Court of Kwara State. The case eventually went on appeal to the Court of Appeal and the Supreme Court, and the Judgments of those courts are contained in Exhibits JB2 and JB8 respectively. Learned counsel proffered arguments in support of his application under issues 3 and 4 of his final address, while the defence counsel also incorporated his in the defendants’ final address.

Ruling on Claimant’s application for case stated.

50.The claimant’s application for case stated was brought by virtue of Section 295 (2) of the 1999 Constitution of Federal Republic of Nigeria as amended. Learned counsel for the claimant submitted that constitutional issues on question of law he is relying on are as contained and argued under issues 3 and 4 of his final address. He argued that the judgment of the Supreme Court i.e.Exhibit JB8 is incompetent and invalid based on the following grounds:

1) The interpretation of Section 36 of the 1999 Constitution dealing with the claimant’s fair hearing before the Supreme Court.

2) The appellate jurisdiction of the Supreme Court which must arise from an appeal against the decision of the Court of Appeal, and not High Court, pursuant to Section 233(1) of the 1999 Constitution as amended.

3) The decision in Exhibit JB8 having been made on the issue of mixed law and fact and having raised new issues for determination in the appeal without prior leave of the Supreme Court pursuant to Section 233(3) of the 1999 Constitution and Section 22 of the Supreme Court Act 2004.

51.Counsel concluded that this court has no discretion to exercise but is duty bound to make the referral as applied above and cited the case of FRN v Ifeagwu (2003) 252 at 277-278, 280; Rossek v ACB Ltd (1993) 8 NWLR (Pt. 312) 382, Bamaiyi v AGF (2001) 7 SC (Pt. 2) 62 at 76. The defendants on their own part responded that the application is unmeritorious as this court cannot review the judgment of the Supreme Court, and the claimant’s application for case stated is an attempt to re-litigate a case already decided by the Supreme Court.

52.In resolving this issue, I find it pertinent to examine the provisions of Section 295(2) of the 1999 Constitution which reads as follows:

‘’Where any question as to the interpretation or application of this constitution arises in any proceedings in the Federal High Court or a High Court, and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.’’

53.It is evident from the above constitutional provision, that the intent of Section 295(2) is to create a duty on this Court to refer substantive questions of law bordering on the interpretation or application of the Constitution to the Court of Appeal for its opinion, and this usually occurs at the request of a party to the proceedings. However, can it be said that the provisions of Section 295(2) of the Constitution makes it mandatory for the Courts to grant every request by parties to refer a case to the Court of Appeal? I answer this in the negative. This position is fortified by the holding of the Supreme Court as succinctly stated in Abubakar v A.G. of the Federation (2007) LPELR-53(SC) where Aderemi JSC held that;

“To ground a reference properly known to law, the following conditions must co-exist:

The question to be referred must be as to the interpretation or application of the provisions of the Constitution. Indeed, this is the fundamental basis upon which such a reference must be predicated.
The question must be seen to arise in the course of proceedings relating to that issue before the court making the reference.
Of course, the matter for reference, must involve substantial question of law, while the court making that reference must have decided the substantiality of the question which is the subject-matter of the reference.
There must not be, by any stretch of imagination, any pronouncement by the court making the reference to a higher court on the law relating to the question referred.

These conditions as I have said, must co-exist and they must be in place before any reference properly known to law can be made. See also the case of Bamaiyi v. AG of the Federation (2001) 12 NWLR (Pt. 727) 468.

54.The authority cited above clearly discloses that the duty to refer is not automatic upon request by a party as all the conditions outlined above must be met conjunctively, before it can be said that it is mandatory for a Court to refer the questions of Law to the Court of Appeal. The claimant in the instant case must therefore satisfy this court that the conditions outlined above have been met to entitle him to the grant of the application. In other words, for a question to have arisen genuinely during the course of proceeding, it must be one which must necessarily be decided in the cause or matter. I have considered the arguments of both counsel on this issue, and I find that the issues stated to be referred to the Court of Appeal are unnecessary for the determination of this present suit. A question is said to arise ex tempore or ex improviso during the course of proceeding if it arises extemporaneously or without any preparation. The judgment of the Supreme Court that is in issue, was delivered in February, 2018, before this present suit was initiated. This leaves no doubt that the questions did not arise during the course of the proceedings in this suit.

55.In addition, the claims in this suit are independent of the questions raised by the claimant for reference, the claim that was litigated upon up to the Supreme Court is the claim of the defendants’ missing funds, while the claim before this Court is the unlawful dismissal of the claimant’s employment. These questions are by no means necessary for the just determination of the issues before this court. Furthermore, the doctrine of Res Judicata which is pronounced in full as res judicata pro veritae accipitur means and operates to the effect that a thing adjudicated on is accepted as the truth and parties to an action are barred from re-litigating on the same claim, or any claim arising from the same transaction or series of transactions. See the case of Tony-Anthony Holdings Ltd & Anor v Commercial Bank for Africa (2013) LPELR-20286 (CA).

56.It is therefore in the absence of the above stated pre-conditions, and failure to satisfy the requirements in Section 295(2) of the CFRN 1999(as amended) that this application for reference is doomed to fail. On the strength of the foregoing expositions, the claimant’s application for case stated fails and same is hereby refused. I so hold.

Ruling is accordingly entered

57.On the other issues formulated by me, I find it pertinent at this point to resolve the defence counsel’s objection to the admissibility of Exhibit JB9 tendered by the claimant at the hearing of this suit, before digging in to the main substance captured in issues 3 and 4 above. This document was objected to in the course of the trial by the defendants, and arguments on same was deferred to the final address stage. The objection and arguments of both counsel was well captured in their final address, and it is the duty of court to decide one way or the other on the admissibility of Exhibit JB9 in this Judgment.

Ruling on the defendants’ objection to the admissibility of Exhibit JB9

58.The defendant’s objection to the admissibility of Exhibit JB9 i.e claimant’s letter of Confirmation of Appointment, tendered by the claimant was premised on the grounds that it was neither pleaded nor frontloaded by the claimant, and the defendants were not afforded the opportunity to verify the authenticity of the Exhibit. The claimant on his own part argued that Exhibit JB9 is an attachment to Exhibit JB1, is relevant and therefore admissible.

59.It is the settled position of law that where an un-pleaded document is inadvertently admitted in evidence, It ought to be discountenanced or expunged from the record, and this can be done at the judgment stage. See Chukwuma & Anor. v Nworji & Ors. (2011) LPELR-9323(CA). It is also a trite position of law that a document need not be specifically pleaded to be admissible, so long as facts pleaded/averred refers to the existence of the document, see Sterling Bank Plc. v Sola Falola (2014) LPELR-22529(CA).

60.This position was restated by Augie JCA, in the case of Tejumade &Anor v Olanrewaju & Ors. (2015) LPELR-25985(CA), when his lordship held that:

“the law is clear that where contents of a document are material, it is sufficient in any pleadings to aver to the effect thereof as briefly as possible without setting out the document unless the precise words of the document or any part thereof are material to the case.”

61.It is also a well-established principle of law that relevance governs admissibility and relevance is determined by the purpose a document is to serve, see Onoba v Abuja Building Products Ltd. &Ors (2014) LPELR-22704(CA). The claimant in paragraph 1 of his statement of facts, pleaded that he was a public servant of pensionable status in the employment of Kwara State Government and was employed vide Exhibit JB1. It was also argued on behalf of the claimant that any public office is pensionable and so was his employment. The defendants on their own part contended this issue and averred that the claimant is not entitled to pension and gratuity under the Pensions and Gratuities Law of Kwara State, Cap 116A of 2006. They argued further that, whether the claimant was in a pensionable appointment or not is an issue before this court. Indeed, authorities abound on the requirements for the admissibility of a document and the relevant factors that must co-exist before a document is admissible are; the document must be (i) Relevant, (ii) admissible in law, and (iii) must be pleaded. On this, see Asuquo & Ors V. Eyo & Anor. (2013) LPELR-20199(CA).

In order to decide whether or notExhibit JB9 satisfies these basic requirements of admissibility, a careful perusal of said Exhibit is called for, and it is after due consideration of the exhibit, that I find that Exhibit JB9 is relevant although not specifically pleaded. It is a matter of record that the claimant is claiming that he is an employee of the defendant of a pensionable status, and this was alluded to by the claimant in his averments in his statement of facts, thus making proof of his status as a pensionable officer an issue. More so, one of the pre-requisite of a pensionable appointment in the civil service is the confirmation of the appointment of the affected officer, it is therefore in this regard that I find that the document is relevant as facts on same were averred to. Also, a cursory look at Exhibit JB9 reveals that it is a document in its original form which was tendered from the custody of the claimant in proof of his pensionable appointment. However the probative value to be ascribed to the document is another issue, considering the contention of the defendant that they were unable to verify the authenticity of the Exhibit. This contention will however be examined in due course and cannot detract from the admissibility of this Exhibit. In all, I find that there is nothing in law that precludes this court from admitting Exhibit JB9 in this case. Consequent upon the above, I find that the objection of the defendants as to the admissibility of Exhibit JB9 is unmeritorious and is hereby over-ruled and dismissed. I so hold.

63.On the first issue formulated by me, that is, whether or not the dismissal of the claimant by the defendants is valid.

64.It is a well-known position of law that he who asserts must prove, and in a case of wrongful dismissal/termination of employment, it is the duty of an aggrieved employee to plead his contract of employment and how same was breached by the employer, see |Joseph Enugunum & Ors. v Chevron Nigeria Limited (2014) LPELR-24088 (CA).

65.The claimant in proof of his employment tendered Exhibits JB1 (letter of employment) and JB9 (letter of confirmation). The defendants on their own part tendered Exhibit KG1 which is the Civil Service Rules of Kwara State. Also tendered by the claimant is Exhibit JB6, that is, the letter of dismissal. The defendants in their defence contended that the claimant was suspended for misconduct from 1994 till the Supreme Court delivered its judgment in February 2018 on a civil suit pursued against the claimant by the defendants, that was initiated at the high court of Kwara State i.e. Suit No KWS/69/95, which went all the way up to the Supreme Court. It is on record that the suit, KWS/69/95 was based on a claim for recovery of the defendants’ missing funds. Noteworthy also is the fact that the claimant did not tender before this court relevant documents that would have assisted in the effective and just determination of this case, such as, his letter of suspension and on his career progression in the service, rather, the claimant’s counsel in his address was trying to ascribe this duty to the defendants.

66.As an aside, I must say this argument of the claimant is strange, considering the position of the law that he who asserts must proof, see Section 131 Evidence Act, the claimant therefore retains the duty to prove his case and to plead and place all material facts in proof of same before this court. It is thereafter that the burden will shift to the defendants to debunk same, the claimant having pleaded his suspension retains the duty to prove same, although this fact is undisputed by the defendants, it is nonetheless the duty of the claimant to place this document before the court, to assist in the just determination of this case. However, back to the main issue, especially with regards to Exhibit JB9, which was tendered by the claimant in proof of his pensionable appointment. It will be recalled that this court in the course of this Judgment over-ruled the objection of the defendants on the admissibility of Exhibit JB9, and resolved to evaluate the probative value to be attached to it. In this wise, a thorough perusal and consideration of Exhibit JB1 is relevant and it reveals the following:

“I have the honour of offering you temporary employment on a salary of GL 03.”

A temporary employment is defined in Rule 01003 of Exhibit KG1, as an employment which is temporary to an established post on non-pensionable terms. A collegial interpretation of this leads to the conclusion that the claimant was in a temporary appointment with the defendants which was also non-pensionable. It is clear that there is no provision in Exhibit KG1 for confirmation of employment of temporary staff, except as provided in Rule 02603 of Exhibit KG1, wherein it is stated that transfer of appointment from non-pensionable to pensionable posts is allowed. However in the instant case, there is nothing placed before the court apart from Exhibit JB9, which is in contention and uncorroborated to proof that the claimant’s appointment was transferred to a pensionable appointment. The law is trite that parties are bound by their pleadings, and evidence led on facts not pleaded goes to no issue, see Elfa Limited v Citibank Nigeria & Anor. (2013) LPELR-20721(CA).

The claimant failed to plead relevant facts leading up to the issuance of Exhibit JB9 which according to him confirmed his appointment as a pensionable staff of the defendants. In the circumstance, this court will have to determine the probative value to be ascribed to Exhibit JB9. The pleadings in this suit did not explain the link between Exhibit JB1 and Exhibit JB9. In law, the burden is always on a party who tenders a document to relate the document to the part of his case in respect of which the document is tendered, see Baban Lungu & Anor. v Zarewa & Ors (2013) LPELR-20726(CA) where Abiru JCA :

“It is settled law that a party relying on documents in proof of his case must, in the open court specifically relate each of such documents to the part of his case in respect of which the document is being tendered… the court cannot assume the duty of tying each bundle of documentary exhibits to specific aspects of the case of a party when that party has not himself done so.”

The purport of the above holding is, a party is not expected to dump documents on the court without leading any oral evidence to link the Exhibit with the evidence adduced in proof of his case. In other words, there must be evidence before the court connecting the documents to specific facts and explaining the content thereof, especially when the other party is contending the content of the document before the Court. Also worthy of note in Exhibit JB1 is the name of the addressee i.e. “Mal. Jimoh T. Baba” while Exhibit JB9 was addressed to “Mr. Jimoh Olatunji Baba”, which calls for an explanation from the claimant, considering the discrepancies in the initials. All the above stated creates an impression that the claimant in this suit merely dumped Exhibit JB9 on this court, with no attempt to support same with credible evidence. Further to this, the 9 year gap between the claimant’s employment and Exhibit JB9, requires an explanation from the claimant which was not forthcoming. It is the position of the law that the burden to prove the authenticity of Exhibit JB9 rests on the claimant, having tendered same in evidence, see Eze v Okoloagu & Ors. (2009) LPELR-3922(CA) where it was held by Tsamiya JCA as follows:

“It is the law that when the authenticity of a document is challenged in a trial, the onus crystalized on the party propounding the document to establish its authenticity/ genuiness.”

The claimant however failed to discharge this burden from all the evidence adduced in this case, as no explanation was offered on why the letter of confirmation i.e. Exhibit JB9 dated 26^th September 1991, was issued more than nine years after the letter of temporary appointment i.e. Exhibit JB1, dated 3^rd June,1982 was issued. Also to be considered is the fact that the employment offered to the claimant vide Exhibit JB1 is non pensionable and not capable of being confirmed without undergoing some processes, the subsequent confirmation of the claimant’s employment as Personnel Assistant IV as stated in Exhibit JB9 was never explained. In addition, it is on record that the claimant averred and led evidence that he was a clerical officer while in the employment of the defendants, so where did the designation Personnel Assistant IV in Exhibit JB9 come from? The impression created by all these discrepancies and unexplained gaps between Exhibit JB9 and the evidence led in this suit, lead to an inexorable conclusion that this court cannot safely rely on Exhibit JB9 for the just determination of this suit. see Amosun v. INEC & Ors. (2010) LPELR-4943(CA). Consequently, I find that Exhibit JB9 is unreliable and lacks any probative value. I so hold.

Having dispensed with the weight to be attached to Exhibit JB9, I find that the validity or otherwise of the dismissal of the claimant from the defendants’ employment can be divided into two sub-issues;

(i) that the dismissal of the claimant was done after his employment ended by effluxion of time in 2017, and

(ii) that Exhibit JB6 ( claimant’s dismissal letter) was issued by the wrong person,

70.On the first sub issue, it is undisputed that the claimant was suspended in the year 1994, and clocked 35 years in service in June, 2017, when he was mandated by the Civil Service Rules to retire. On the other hand, the claimant’s letter of dismissal was issued after the judgment of the Supreme Court was delivered in February, 2018. The implication of the above is that the claimant was dismissed retrospectively.

71.Also, in evidence is the fact that the defendants in this suit vide Exhibit KG2 offered the claimant an option to voluntarily retire from service on the basis that his services were no longer required for reasons stated therein with arrears of his salaries from 1994-2012 to be paid. The claimant however by Exhibit KG3 refused this offer, insisting that he should be reinstated as ordered by the court of Appeal, in the appeal instituted by him as captured in this suit. I have studied the Court of Appeal Judgment i.e. Exhibit JB2 delivered on 15^th December, 2004 and I find nothing in the said judgment reinstating the claimant to his employment. In this wise, there was no legal handicap foisted on the defendants stopping them from repudiating the contract of employment between both parties, and their offer giving him an option to retire with arrears of his salaries from 1994-2012 paid to him was in order. There is no doubt that from the documents tendered in this suit particularly Exhibits JB2 and JB8, the issues presented at the high court of Kwara State in suit N0 KWS/69/95, and the subsequent appeals to the court of Appeal and Supreme Court reveals that the subject matter of the suit from the trial court as earlier stated, was a claim for recovery of the defendant’s missing funds from the claimant and has nothing to do with the status of the claimant’s employment with the defendants. Thus the defendants could not have been precluded from determining the claimant’s employment as there was no injunction or order of court against them from determining the claimant’ employment, based on the documentary and oral evidence available in this suit.

72.The implication of the above is that the claimant on his own repudiated and abandoned the contract of employment by his letter tendered as Exhibit KG3. The defendants’ decision to terminate the contract of employment and offering the claimant an option to retire, aligns with the position of the law that an employer can mete out a lesser punishment to its employee but is not allowed to give a higher punishment see the Supreme Court judgment in Udegbunam v Federal Capital Development Authority & Ors. (2003) LPELR-3291(CA) 9Pp. 14-15, paras G-A, where Tobi JSC held that:

“An employer has a discretion to give lesser punishment to an employee but it has no discretion to give a higher punishment since termination of appointment is a lesser punishment.”

73.Also the decision of Kutigi JSC in Dr. G.S. Obo v Commissioner for Education, Bendel State & Anor (2001) 2 NWLR (Pt.698) 625, is very illuminating, his lordship held as follows;

“since it was the plaintiff who repudiated his contract of service by his willful failure to carry out his duties under the contract, the termination of his appointment with retrospective effect is quite in order.”

74.It is on the strength of the reasoning above that I find that the claimant is deemed to have abandoned his employment by his letter i.e. Exhibit KG3, and the issuance of Exhibit JB6 which dismissed the claimant retrospectively from the defendants’ employment is in order and valid in the circumstance of this case. I so hold.

75.On the second sub-issue, even though I have held above that the claimant is deemed to have abandoned his employment and his dismissal is valid. It is still pertinent to go ahead and examine the second sub issue as to the propriety of the authorship of Exhibit JB6 issued by the Secretary to the State Government, Kwara State. It is the position of the law that the Courts will always respect the sanctity of contracts and no extraneous term will be introduced in its interpretation. However, it is the Courts’ duty to contrive the surrounding circumstances including written and oral evidence adduced in a case, in order to give effect to the intentions of the parties, see Itomo Emori Emori v Mr. Efoli Esuku (2012) LPELR-9797(CA). An examination of Exhibit JB1 i.e. letter of appointment reveals that it was issued on behalf of the Secretary to the State Government of Kwara State, while Rule 02103 of Exhibit KG1 delegates the power of the Civil Service Commission to recruit junior staff on grade level 01-06 on each Ministry/Extra-Ministerial Department while the power to dismiss is restricted to Grade level 01-03. The implication of this is that the office of the Secretary to the State government is empowered to employ the claimant as a temporary staff on GL 03 under Exhibit KG1 while the termination of his employment is subject to the conditions applicable to staff of his category.

76.It is worthy of note that Exhibit JB1 was signed by the SSG kwara State, and further reiterates the fact that the claimant’s appointment was not done under the Civil Service Rules. Therefore, his dismissal by his appointor cannot be invalid, the claimant cannot approbate and reprobate at the same time, that is, having taken up the employment vide a letter of appointment signed on behalf of the SSG Kwara State, now complain about his dismissal by the same body. This is so considering the fact that the claimant was unable to adduce any evidence or place before the court that his position as a temporary staff has been altered in anyway to a pensionable staff of the defendants.

77.I find further that a look at paragraph 1(a) of Exhibit JB1, reveals the following “you or the Government may terminate your appointment by a month’s notice or by payment of a month’s salary in lieu of notice.

Thus, it is evident from the above that the intention of the parties in this suit is that the claimant’s employment can be terminated by either party by a month’s notice. A study of Exhibit KG1 also reveals no express provisions for the termination of the claimant’s category of employment (i.e. temporary employment) in instances of misconduct. Therefore, in the absence of an express provision for termination of an employment for misconduct, the common law position will be applicable, wherein an employer is entitled to dismiss an employee summarily. In other instances, however, that is, when the termination is unrelated to misconduct, the procedure spelt out in Exhibit JB1, which is the issuance of one-month notice will ordinarily be sufficient to determine the employment. In the instant case, the issue of notice as stipulated in Exhibit JB1is not in contention and the duty of court is to restrict itself to the evidence before it, see Ohakosim v Commissioner of Police, Imo State (2009) 15 NWLR (Pt. 1164) 229 C.A. where Kekere-Ekun J.C.A held that:

“a court of law, duly seized of a matter, has a duty to give a dispassionate and impartial consideration to all materials placed before it. It has no right to go outside the record before it.”

What is in contention is the appropriate person who can terminate the contract of employment of the claimant, which was not expressly provided for by Exhibit KG1. It is settled law that where the contract of employment does not provide specifically for a situation, the common law position will apply, see Shena Security Company Ltd. v Afropak (Nig.) Ltd & Ors. (2008)34 NSCQR (Pt II) 1287. The common law position in this instance is whoever appoints can dismiss, see P.O.U Iyase v University of Benin Teaching Hospital Management Board. (2000) 2 NWLR (Pt.643), pg. 47, where in Ibiyeye JCA held that:

“…it is trite to say that the power to enter into a contract of service or employment encompasses the power to terminate the contract.”

It is settled law that where the contract of employment does not provide specifically for a situation, the common law position will apply, see Shena Security Company Ltd. v Afropak (Nig.) Ltd & Ors. (2008)34 NSCQR (Pt II) 1287. The common law position in this instance is whoever appoints can dismiss, see P.O.U Iyase v University of Benin Teaching Hospital Management Board. (2000) 2 NWLR (Pt.643), pg. 47, where in Ibiyeye JCA held that:

“…it is trite to say that the power to enter into a contract of service or employment encompasses the power to terminate the contract.”

It is premised on the foregoing, that I find that the Secretary to the State Government, being a principal officer of Kwara State Government properly issued Exhibits JB1 (letter of Temporary Appointment) and JB6 (letter of Dismissal), based on the evidence available in this case. Consequent upon the above, Exhibit JB6 is valid. I so hold.

On the 3^rd issue formulated by me, it is trite law that he who asserts must prove and the burden is on the claimant to prove that he is entitled to the reliefs he is seeking in this suit, see MTN Communication Limited v Sidney C. Amadi, Esq. (2012) LPELR-21276(CA) and Section 131 of the Evidence Act, 2011. I find that all the reliefs sought by the clamant in this suit are declaratory reliefs which are predicated on the successful prosecution of the claimant’s case in this suit. The purpose of declaratory reliefs is for the court to pronounce or declare on an existing state of affairs in law. This state of affairs will be discernable from the averments in the statement of facts and evidence adduced, see Abeje v Alade &Anor. (2010) LPELR-3561(CA). The basic underlying principle to the grant or refusal of declaratory reliefs is that the claimant must satisfy the court that he is indeed entitled to the reliefs sought, and this he does by the preponderance of evidence required to succeed in a civil suit of this nature.
It is certain that the Courts do not grant declaratory reliefs in default of defence or indeed on admissions without hearing evidence and being satisfied by such evidence, see Kwande & Anor v Mohammed & Ors. (2014) LPELR-22575(CA), where in Gumel JCA held thus:

The law is settled that courts do not grant declaratory reliefs in default of defence or indeed on admissions without hearing and being satisfied by such evidence. The burden of proof on a claimant in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such reliefs are not granted even on admission by the defendant.”

The claimant in this suit has placed nothing before this court to show his entitlement to the reliefs sought, thereby failing to discharge the burden of proof placed on him by the law. Consequently, I find that the declaratory reliefs sought in this suit fails as it is unmeritorious and unproven. I so hold.

In conclusion, I find as follows;