REV. EBUTE JOHN ONOGWU & ORS. V. BENUE STATE CIVIL SERVICE COMMISSION & ORS. (2012)

REV. EBUTE JOHN ONOGWU & ORS. V. BENUE STATE CIVIL SERVICE COMMISSION & ORS.

(2012)LCN/5404(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of May, 2012

CA/J/170/06

RATIO

WORDS AND PHRASES: MEANING OF A PUBLIC DOCUMENT

The definition of a public document is provided under S.109 the Evidence Act to include such documents forming the acts records of the acts-

– of sovereign authority,

– of official bodies and tribunals and

of public officers, legislative, judicial and Executive, whether of Nigeria or elsewhere.

Therefore a document purporting to be a public document under S.109(a) of the Evidence Act must strictly form or constitute the acts , or records of government and/or its agencies, parastatals, and/or its officers in relation to their functions. See AYENI V. DADA (1978) 3 SC 35 AND ANATOGU V. IWEKA II (1995) 8 NWLR (Pt. 415) 547. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

EVIDENCE: PROOF OF CONTENTS OF A DOCUMENT

Section 93 of the Evidence Act provides that the contents of a document may be proved either by primary or secondary evidence. S.94(1) defines “primary evidence of a document as the document itself produced for the inspection or examination of the Court. It is settled law that all documents must be proved by primary evidence. (Original document) the exceptions to this rule are provided under S.97. It is deducible from the well defined and settled position of the law that the only type of secondary evidence of a public document that is admissible is the certified true copy. See AJAO V. AMBROSE FAMILY and ORS (1969) 1 NWLR 25 as per Coker, JSC at 30. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

EVIDENCE: THE ONUS OF PROOF IN CIVIL CASES

In civil cases the onus of proving a particular fact is fixed by the pleadings. This onus does not remain static but shifts from side to side like a pendulum. It stops at a point when the need for further evidence rests on the party who will fail if such evidence is not adduced. See NIGERIA MARITIME SERVICES LTD V. AFOLABI (1978) 2 SC 79 of 84. It is settled that in suits of this nature a plaintiff succeeds or fails on the strength of his case and not on the weakness of the defence against it. The reliefs being sought by the Appellants herein include declarations and injunctions. It is settled that they have a duty to adduce credible evidence to prove their entitlement to those reliefs. See ANI V. NNA (1981) 1 SC. 101. Where credible evidence is lacking the Court will have no jurisdiction to grant those reliefs. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

EVIDENCE: REQUIREMENT FOR A PARTY TO BE ENTITLED TO JUDGMENT

It is my view that a party will only be entitled to judgment upon evidence that has remained credible or unchallenged, unrebutted and cogent. In N.B.N. LTD V. U.C. HOLDINGS LTD (2004) 13 NWLR (Pt. 891) 436 it was held that where evidence led by a plaintiff failed or is so potently unsatisfactory it would not be entitled to the judgment of the Court. See also INIAMA V. AKPABIO (2008) 17 NWLR (Pt. 1116) 225 at 303. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

JUSTICES

MUHAMAAED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

1. REV. EBUTE JOHN ONOGWU
2. EDWARD W. NGAJI
3. JOSEPH O. IGOCHE
4. ALEXIS BER
5. MOSES ORBUNDE
(Suing for themselves and on behalf
of the Re-Instated Staff in the Benue
State Civil Service) Appellant(s)

AND

1. BENUE STATE CIVIL SERVICE COMMISSION
2. HEAD OF SERVICE, BENUE STATE
3. THE GOVERNOR OF BENUE STATE
4. THE ATTORNEY-GENERAL OF BENUE STATE Respondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A., (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court, Makurdi Division delivered on 14/2/2006 in Suit No: MHC/415M/2005. In an originating motion brought pursuant to a leave granted on 30/9/2005, the Plaintiffs/Appellants in a representative capacity for themselves and on behalf of re-instated Staff into the Benue State Civil Service seek for the following main reliefs. They are:-
1.(a) An order of MANDAMUS directing the Respondents to re-instate the applicants into the Benue State Civil Service with all their rights, entitlements, and privileges attaching thereto in accordance with relevant stipulations conveyed and described in the Benue State of Nigeria “Government Views and Decisions on the Report of the Review Committee to consider Complaints Arising from the 1995/96 Staff Rationalization Exercise in the Benue State Public Service” dated January 2003 (hereinafter called the January 2003 White Paper’) which was approved by the Benue State Executive Council since February 2003:
(b) An order of CERTIORARI directing the 1st and 2nd Respondents to bring up before this Honourable Court for the purpose of being quashed:-
i) The letter reference No: SC.234/S/11/324 of 31/7/2001 emanating from 1st Respondent directing stay of further implementation of the January 2003 White Paper and further ordering already re-instated members of applicants to stay away from work;
ii) The letter reference No: H/HCS/3/321/1.46 of 21/8/2003 directing the applicants to apply for reinstatement into the Service to 2nd Respondent through applicants’ Ministries/Departments and signed by 2nd Respondent;
in that the said letters are inconsistent with, and contrary to, the contents of the said January, 2003 White Paper approved by the Benue State Executive Council as well as contravening SS.36 and 42 of the 1999 Constitution. Articles 13, 15 and 22 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. 10 LFN 1990 in addition to Rules 1979 and indeed the general provisions and intendment of Chapters 2, 4 and 5 of the said Civil Service Rules and are consequently unconstitutional illegal, irregular, invalid, null and void;
(c) A declaration that the applicants’ position as civil/public servants in the Benue State Civil Service invests them with a legal status embodied in the Benue State Civil Services Rules 1979 which is beyond that of mere master and servant but which possesses statutory flavor having regards to SS.197(1)(a), 204(1) and Part II of Schedule 3 to the 1999 Constitution;
(d) An order directing the Respondents as functionaries/organs of the Benue State Government to pay all salaries and other entitlements of the Applicants and accord the applicants all the privileges enjoyed by those in the Public Service of Benue State Proper to their status and position following applicants’ reinstatement in accordance with stipulations in the said January 2003 white paper aforesaid:
(e) An injunction perpetually restraining the Respondents howsoever (purporting to act on behalf of the Benue State government or any organ thereof) from refusing to implement the reinstatement of the applicants into the Benue State Public Service and/or from refusing, failing or neglecting in any manner or form to accord the applicants all the rights, entitlements and privileges pertaining to applicants as Civil Servants sequel to applicants’ reinstatement into the said service.
2. An order directing the Respondents to STAY all adverse actions and proceedings relating to, or connected with, the applicants’ complains (including applicants’ reinstatement) pending the final determination of applicants’ complains before this Honourable Court or until this Honourable Court otherwise orders.
This motion is supported by an affidavit of 7 paragraphs deposed to by one Gabriel Avule, a litigation Secretary, in the law firm of S. A. Orkumah & Co. Counsel to the Plaintiffs/Appellants. This affidavit also incorporates about 300 pages of documentary exhibits designated as Exhibits 1 to 17. Also in support of the motion is a statement setting out the reliefs and the grounds therefore.
To oppose the application, the Respondents replied with a 13 paragraph counter affidavit with 2 documents as Exhibits A and B attached thereto. It was deposed to by one Mathias Ekele, a Principal Registrar in the Civil Litigation Department of the Benue State Ministry of Justice, Counsel to the Respondents.
To properly join issues with the Respondents, learned counsel to the Plaintiffs/Appellants filed a further affidavit in support. It is of 6 paragraphs and was deposed to by the above said Gabriel Avule. It has Exhibits 18 – 20 attached to it. Issues now having fully joined on the application, the matter proceeded to hearing.
At the hearing of the application, learned Counsel to the Appellants made a brief oral submission and went further to adopt and rely on the written address he filed in support of the application. Learned Counsel to the Respondents, who offered his excuse to the Court and Counsel to the Appellants for inability to file a written address in response, sought for and obtained leave of the Court to respond by way of an oral submission.
Before going into the arguments and submissions of respective learned Counsel on this application, let me recall and capture its factual foundation. From the undisputed facts, if I may by way of a straight forward narration, the Benue State Government embarked on and executed a Staff rationalization exercise between 1995 and 1996. In the course of this exercise a number of Staff of various Ministries, Departments and Agencies of the Government including the Plaintiffs/Appellants were randomly affected. Workers of various grades and of varying years of service were either dismissed, retired or had their employment terminated etc.
With the return of the country to Civilian rule in May, 1999, the incoming Civilian Administration, considered all the hue and cry that trailed the staff rationalization exercise that was conducted during military rule. In order to redress some of the perceived imperfections of the exercise, upon the complaints of some of the affected persons, the Government, sometime in February, 2000, set up a committee to review the whole exercise. This Committee interacted with most of the affected staff and issued a report to the Government.
The Government considered this report and issued a White Paper in the form of Exhibit 2 attached to this application. As part of the said White Paper, the Government directed the reinstatement of some of the affected persons. The Plaintiffs/Appellants claim that they were among such persons that were to be re-instated in terms of Exhibit 2. While this re-instatement exercise was purportedly being carried out, the 1st Respondent, Benue State Civil Service Commission (CSC), in a letter (Exh.3) addressed to all who matter in the State Civil Service ordered a stay in the implementation because of certain unspecified irregularities.
According to the Appellants in spite of their appeals and entreaties to so many agencies and well meaning persons, including the wife of a onetime governor of the State, the government refused to resume the reinstatement directed in Exhibit 2. Though a few of their co-travelers had been re-instated and had since been in their respective offices, the Appellants had remained out in the cold. After all their various efforts to secure their reinstatement had failed, the Appellants had now brought this action.
In their defence to this action, the Respondents sought to refer and rely on 2 Government circulars. The first circular is a purported restoration of the gratuity and pension rights of all those of the affected and entitled staff of the rationalization exercise. The other circular purported to have recalled and emphasized o decision of the Benue State Executive Council withdrawing its earlier approval that some 295 rationalized that staff of the Benue State Civil Service be reinstated. The Respondents claim that the Appellants were among the persons affected by these 2 circulars. These 2 letters were attached to the counter affidavit of the Respondents and marked respectively as Exhibit A and B.
It is against the backdrop of these facts and circumstances and the various arguments and submissions of respective learned Counsel that the learned trial judge considered and delivered his ruling. In the course of the ruling, the learned Judge initially considered the status and admissibility of the various documents attached by the respective parties for and against this application and of the end observed and decided thus:-
“….after the State Executive Council met and rescinded their earlier decision relied upon by the Applicants, the carpet was pulled off the feet of the applicants to my mind. With that fact in mind, I do not see how the Court con overlook the current Exco decision and will be working with o decision that has been withdrawn – it is my view that reliefs C, D and E cannot be granted either and the entire case crumbles and it is dismissed. “(See lines 10-18 Pages 370 record of appeal)
The Appellants were dissatisfied with the basis and rationale for the dismissal of their action by the trial Court. They appealed to this Court in a notice of appeal dated 6/3/06 but filed on 7/3/06, incorporating 5, grounds of appeal with copious particulars.
To argue the appeal, learned Counsel to the Appellants filed a brief of argument dated 13/10/06 but filed on 10/11/06. From the 5 grounds of appeal, learned Counsel formulated and argued 4 issues for the determination of this appeal. The 4 issues are:-
1. Whether Exhibit A and B are admissible in law in view of relevant provisions of the Evidence Act and relevant case law and whether the defects inherent therein make them reliable and credible pieces of evidence (Grounds 1 and 2):
2. Whether the lower Court was correct in dismissing Appellants’ case before it in the face of unchallenged evidence discernible in paragraph 4 of the supporting affidavit, paragraph 3, 4 and 5 of the further affidavit and Exhibit 13 and 14 to the supporting affidavit coupled with the express admissions in paragraphs 6, 7 8 and 9 of the counter affidavit: (Ground 3):
3. Whether in view of the unchallenged evidence shown by Exhibits 18, 19, 20 and 20A (Paragraphs 3, 4,
5 of further affidavit), the provisions of SS. 75, 113(a)(iv) and 122 of the Evidence Act, Cap. 112 LFN 1990 and relevant case law and principles the learned Judge was justified in his verdict that documents submitted in Appellants’ case are affected by the same vice of non-certification as those of Respondents: (Ground 4):
4. Whether on the facts and the law the Appellants had sufficiently made out of(sic) case for the grant of each of the reliefs sought in the lower Court: (ground 5)
In responding to the brief of argument filed on behalf of the Appellants the Respondents filed a joint brief of argument dated 15/10/2007. It was filed on 25/03/2011 but deemed properly filed and served on 5/5/2011. In this joint brief, the Respondents formulated and argued 2 issues for the determination of this appeal. The issues are:-
1. “Whether there was admissible evidence upon which the trial Court could hold that the 2003 EXCO decision was cancelled by that of January, 2005.”
2. Whether mandamus can be issued to compel the doing of a duty which is not in existence.
I have considered the 4 issues formulated by learned Counsel to the Appellants and it seems clear to me that issues 1 and 3 are not too dissimilar and appear to me to be related in their material respects. Also, issues 2 and 4 are fully linked to one another in the circumstances of this appeal. I would therefore proceed to take each of the issues 1 and 3 and issues 2 and 4 together.
In arguing his issue 1 learned Counsel to the Appellants began by identifying Exhibits A and B attached to the counter affidavit of the Respondents. As part of this identification, learned Counsel pointed out that Exhibit A emanated from the office of the Head of Service of Benue State and Exhibit B. emanated from the cabinet office of the Government of Benue State. Upon this, learned Counsel added that these 2 documents are public documents within the meaning of S.109(a)(iii) of the Evidence Act and their admissibility as such is governed by the provisions of S. 97(1)(e) and S.97(2)(c). While still arguing on the admissibility of Exhibits A and B, learned Counsel referred to the cases of OBADINA FAMILY & ANOR. V. AMBROSE FAMILY (1969) 1 All NLR 49, JADESINMI V. OKOTIE-EBOH, GUARANTEE TRUST BANK V. TABIK INVESTMENT LTD. (2005) 2 FR 1 at 9 – 13 and NWABUOKU V. ONWORDI (2006) All FWLR (Pt.331) 1236 at 1251 and submitted it is only certified true copies of public documents that are admissible as secondary evidence and this is also applicable to public documents attached to affidavits.
Apart from these documents not being admissible in evidence for being uncertified public documents learned Counsel introduced another dimension of them that he believes renders them worthless. He characterized them as incomplete and unreliable as according to him they tell lies about themselves. He added further that the documents are riddled with telling defects and also wondered how a Court can place reliance on such documents to arrive at a decision. Learned Counsel did not relent. He continued his attack and onslaught against Exhibit A and B to the extent of his perceived incompleteness of these documents, learned Counsel maintained that the circumstances of this matter justifies and warrants the invocation of s.149(d) of the Evidence Act to enable the Court to decide and hold that the withheld parts of the documents were adverse to the interest of the Respondents. He referred to the decision in AJAO V. ADEMOLA (2005) All FWLR (Pt. 256) 1239. He then pointed out that the lower Court overlooked and glossed over his submissions that Exhibits A and B are in conflict with other documents on record in Exhibits 13, 14, 15, 16, 16A and 17 attached to his affidavit in support of the application. He submitted that this conflict is fatal as it erodes the quality of evidence in Exhibit A and B.
Before urging this Court to discountenance Exhibits A and B, learned Counsel submitted that there were present in them fatal defects in addition to the fact of being inherently inadmissible and it was wholly unjustifiable to have placed reliance and credit on them in arriving at a proper verdict in this matter. He urged this Court to so hold and resolve the question in this issue in favour of the Appellants.
Having dealt his killer blows on Exhs. A and B and also having thought that he had killed and buried them for dead, learned Counsel took the stage to prop up and place all the documents attached to the affidavit in support of a vantage point. He typified all such documents as admissible pursuant to s.122 of the Evidence Act because of the refusal of the relevant bodies to certify them according to law. He referred to and relied on the decisions in BUHARI V. OBASANJO (2005) All FWLR (Pt. 273) 1 at 210E, OMOREGBE V. LAWANI (1980) 3.4 5C 108, AJOMALE V. YADUAT (N0. 2) (1991) 5 NWLR (Pt. 191) 257 at 282-283 H-A and ALAGBE V. ABIMBOLA (1978) 2 SC 39 at 40 to justify why the documents attached to the affidavit in support should be admitted in evidence even as uncertified copies of public documents.
With this background seemingly at the back of his mind learned Counsel faulted the view of the learned trial judge that the documents of the Appellants are affected by any vice that may have been with the Respondents’ documents, i.e, Exhibits A and B. Learned Counsel believes that this crucial finding did not emanate from the submission of learned Counsel to the Respondents
Going to some of the specific instances in this action, learned Counsel detailed and pointed out that he had done all that was necessary to have his documents certified as true copies but he was met with adamant refusals by the concerned government officials. He pointed out that the Respondents had conceded to the admissibility of his uncertified public documents in the circumstance of this matter. He supported this understanding of his while referring to the case of OGUMA ASSOCIATED CO. NIG. LTD. V. IBWA LTD. (1988) SCNJ 13 at 33-34. Upon all the foregoing learned Counsel urged on this Court to hold that the learned trial judge was wrong when he decided that the Appellants’ documents were not admissible for being uncertified public documents and go further to resolve this issue in favour of the Appellants.
It is rather disappointing that learned Counsel to the Respondents failed to relate any of the 2 issues she formulated for the determination of this appeal to any of the grounds of appeal. It is all the more disappointing and indeed so sad, that learned Counsel failed to make any submission of significance or in any way profound enough to assist this Court in the determination of this appeal. To this extent, I hereby discountenance the arguments and submission in the Respondents’ brief.
Let me begin with Exhibits A and B. there are no pretences that these 2 documents are very sensitive government papers. They emanated and were signed and issued by very senior officers of the government. Exhibits B, for example, is marked “SECRET’. There is therefore very little doubt that these documents have the seeming appearance of restrictive circulation. Learned Counsel on both sides and indeed the Court itself appear to be ad idem that they were indeed public documents. Learned Counsel to the appellants consistently maintained that they were public documents. He also maintained that they were incomplete and told a lie of their contents.
The definition of a public document is provided under S.109 the Evidence Act to include such documents forming the acts records of the acts-
– of sovereign authority,
– of official bodies and tribunals and
of public officers, legislative, judicial and Executive, whether of Nigeria or elsewhere.
Therefore a document purporting to be a public document under S.109(a) of the Evidence Act must strictly form or constitute the acts , or records of government and/or its agencies, parastatals, and/or its officers in relation to their functions. See AYENI V. DADA (1978) 3 SC 35 AND ANATOGU V. IWEKA II (1995) 8 NWLR (Pt. 415) 547.

By this definition, it is clear and beyond peradventure that Exhibits A and B fall within the definition of public documents.
Public documents ere inherently sensitive; some remain “Secret” for a long time while many of them are for very restricted circulation. It is perhaps for this reason and others that S.97 of the Evidence Act provides that where for any reason the original entry or document of a of public document cannot be produced, the law entitles secondary evidence in the nature of a certified true copy to be received and admitted in evidence. The procedure for certification is outlined under S.111 of the Evidence Act. It must be emphasized that for a public document to be duly certified as a true copy, it is expected that, the person certifying such document has proper custody of the original document that is the custody of any official who in the ordinary course of his official duties is empowered to deliver such certified copies to any interested or concerned member of the public. The production of a certified true copy of a public document is always admissible without any request or demand for the original. See EGBUE v. ARAKA (1996) 2 NWLR (Pt. 433) 688 at 710.

Against this background and my physical examination and also the observation of the learned trial judge, Exhibits A and B are public documents. They were not certified as true copies before they were annexed to the counter affidavit of the Respondents. They ought to have been properly certified as true copies under S.111 of the Evidence Act for them to have any evidential and probative value. The failure to tender in evidence a certified true copy of a public document is fatal to its admissibility.
Section 93 of the Evidence Act provides that the contents of a document may be proved either by primary or secondary evidence. S.94(1) defines “primary evidence of a document as the document itself produced for the inspection or examination of the Court. It is settled law that all documents must be proved by primary evidence. (Original document) the exceptions to this rule are provided under S.97. It is deducible from the well defined and settled position of the law that the only type of secondary evidence of a public document that is admissible is the certified true copy. See AJAO V. AMBROSE FAMILY and ORS (1969) 1 NWLR 25 as per Coker, JSC at 30.

Therefore, from the foregoing, Exhibits A and B were inadmissible in the circumstance of this matter. They ought not to have been given any weight for the purpose of determining the rights of the parties in the instant appeal. The lower Court fell into a grave error when it passed them as admissible in its, with due respect misplaced desire to do substantial justice in this matter. Issue one must be resolved against the Respondents and it is hereby so resolved.

With respect to issue 3, I have carefully focused on Exhibits 2, 3, 5, 14, 15 and 16A attached to the affidavit in support of the application of the Appellants for judicial review by way of certiorari and Mandamus. Upon my findings on Exhibits A and B above under issue one, there is no doubt that they are all public documents. Learned Counsel to the Appellants appears to have conceded that much when he wrote Exhibits 18, 19, 20 and 20A addressed to certain government officials seeking for their certification. Despite all these letters, these documents remained uncertified. Learned Counsel believed that he had done all that was necessary for him to prove such documents by giving secondary evidence of them. They were attached to the affidavit in support without any certification. They generally would not ordinarily have been admissible. The learned trial judge thought and believed so. But maybe, because the learned trial judge had set the task upon himself to do what he considered amounted to substantial justice in this matter he saw that all the public documents of the Appellants were afflicted with a fundamental vice. Nonetheless and inspite of this crucial finding, he decided to turn a bind eye to the fundamental vice affecting these documents and took them on their face value. I think, with the greatest respect, the learned trial judge ought not to have considered those documents against the odds of settled principles of law of evidence. The provisions and the principles of the law of evidence as I outlined above hardly leave anything to the discretion of a Court to admit in evidence uncertified copies of public documents.
Learned Counsel, to the Appellants believe that those documents were admissible because he had done all that was necessary for them to be certified as true copies but did not succeed. I think this is totally erroneous. His reliance on the case of BUHARI V. OBASANJO (Supra) is totally misleading and cannot be of help to him in the circumstance of this matter. The facts and circumstances in BUHARI V. OBASANJO are very clearly distinguishable from those in this matter. In that case, a notice to produce was served on INEC, as a Respondent which was later followed by a subpoena. No such notice to produce or subpoena was given or ordered and issued against any of the Respondents herein. Added to this Exh 18A attached to the further affidavit in support, i.e the response of the 4th Respondent, shows that learned Counsel to the Appellants really needed to put more efforts to obtain certified true copies of all the concerned public documents.
In view of the foregoing, I am of the considered opinion that, all public documents attached in support of this action are inadmissible in the circumstance. A lot more, also needed to have been done to allow for uncertified copies to be admissible as set out in BUHARI V. OBASANJO (supra). This issue is hereby resolved against the Appellants.
In arguing his issue 2, learned Counsel anchored it on his allegation that the trial Court overlooked what he termed as the copious and comprehensive evidence in paragraph 4 of the supporting affidavit and the express admissions contained in paragraphs 6, 7, 8 and 9 of the counter affidavit of the Respondents. He added that it is trite law that unchallenged evidence should be accepted and acted upon by the Courts in the settlement of disputes between parties. He cited a number of Supreme Court decisions in support of this submission. He urged the Court to re-assess and re-evaluate all the evidence on record and to proceed to resolve this issue in favour of allowing this appeal. So much of the arguments in issue 4 relate to the contents of documents and for the time being I would not want to go into them in any profound manner.
I have carefully read paragraph 4 of the affidavit in support. It is very copious. I hereby reproduce some of its most relevant subparagraphs, in the circumstance. They are:
“4(a) …………………
(b) …………………
(c) …………………
(d) …………………
(e) …………………
(f) that the review committee heard various complaints from the affected staff and the Government published o report (white paper) containing sufficient recommendations and views of government. The White Paper is hereto attached as Exhibit- ‘2’:
(g) that sequel to the publication of the white paper the Government of Benue State in its executive meeting held in February 2003 unanimously and wholesomely approved the White Paper:
(h) that consequent upon the approval of the White Paper the Respondents in conjunction with the Ministries and Parastatals concerned effectively commenced the implementation of the Government decision by reinstating the staff affected by the White Paper sometime in March 2003:
(i) that by a correspondence with reference No: SC/234/S/11/324 dated 31st July, 2003 the 1st Respondent stopped or caused to be stopped the Processes of the implementation of the Government White Paper alleging unspecified irregularities. A copy of the said correspondence is hereto attached and marked as Exhibit. ‘3’;
(j) that no time was stipulated by Exhibit 3 when the alleged irregularities could be cleared and the Applicants recalled to work;
(k) that on the 20th May, 2004 the 1st Respondent made a pronouncement that the screening of reinstated workers had been completed and a total of 295 staff have been cleared. See of Press briefing by 2nd Respondent dated 20/5/2004 a copy of which is hereto attached and marked as Exhibit. ‘4’:
(l) that by correspondence dated 21/8/2003 the 2nd Respondent had directed those affected by Exhibit 3 to apply for their reinstatement into the Service to the Head of Service. A copy of that document is hereto attached and marked as Exhibit. ‘5’;
(m) …………………
(n) …………………
(o) …………………
(p) that by letter reference No: S/COM/3852/1/11 of 15/3/2005 addressed to Vincent Bossuaa and others, the Public Complaints Commission attached thereto a letter from the 2nd Respondent bearing reference No: S/HCS/BN/S/52/T/1/28 of 21/2/2005 in which it was positively stated that the Benue State Government had approved and directed the restoration of the status quo in line with the Report of the Review Committee to consider complaints arising from the 1995/96 Staff Rationalization Exercise in the Benue State Public Service January, 2003 and that the 1st Respondent had been directed to implement the Benue State Executive Council decision . A copy of the said letter to which the letter from 2nd Respondent is attached is hereto annexed as Exhibit. ’14’:
(q) that by letter dated 26/11/2003 addressed to the Hon. Commissioner, Ministry of Youths and Sports, Makurdi, the Permanent Secretary, Government House Administration it was stated that the 3rd Respondent had directed that all those reinstated should be engaged and placed at appropriate level but this has not been done. A copy of the said directive is hereto attached marked as Exhibit. ’15’;
(r) that by letters dated 6/3/2003 and 13/3/2003 the 1st Applicant and one Igbo Joseph had been reinstated into service with effect from the date of their wrongful termination which has now been rectified by Exhibit 2 hereof. Copies of their said letters are hereto attached and marked as Exhibit ’16’ and ”16A’ respectively- The same applied to all the Applicants herein:
(s) …………………
(t) that only 26 staff who have been reinstated are currently serving in the Benue State Public Service in line with stipulations in the white Paper (Exhibit 2 hereto). A list of the said staff is hereto attached and marked as Exhibit ’17’.
Learned counsel had also pointed out that paragraphs 6, 7, 8 and 9 of the counter affidavit of the Respondents had admitted the claim of the Appellants. I hereby reproduce paragraphs 8 and 9 being the most relevant:
8. “that in the process of implementing the said Exhibit. 2 (White Paper) several irregularities were identified:
9. that as a result of the above , Government stopped further implementation of the White Paper and directed already reinstated members of the Applicants to stay away from work rending rectification of the irregular rites . See Exh. 3 to the affidavit in support of the application;
Among the reliefs being sought by the Appellants are declarations and injunctions. It is beyond argument that some of the key averments in paragraph 4 of the affidavit as reproduced above and paragraphs 8 and 9 have incorporated some documents. All those documents were meant to be the pillars of those averments. The consequences of any of those documents, being inadmissible necessarily affects all such averments.
In civil cases the onus of proving a particular fact is fixed by the pleadings. This onus does not remain static but shifts from side to side like a pendulum. It stops at a point when the need for further evidence rests on the party who will fail if such evidence is not adduced. See NIGERIA MARITIME SERVICES LTD V. AFOLABI (1978) 2 SC 79 of 84. It is settled that in suits of this nature a plaintiff succeeds or fails on the strength of his case and not on the weakness of the defence against it. The reliefs being sought by the Appellants herein include declarations and injunctions. It is settled that they have a duty to adduce credible evidence to prove their entitlement to those reliefs. See ANI V. NNA (1981) 1 SC. 101. Where credible evidence is lacking the Court will have no jurisdiction to grant those reliefs.

The documents incorporated into the pleadings of the Appellants are totally inadmissible and the Court cannot look at them at all for the determination of the competing rights and obligations of the parties herein. I do not see paragraphs 6, 7, 8 and 9 or any other paragraph of the counter affidavit as being any admission of the claims and reliefs of the appellants. Even so, admissions do not warrant the grant of declaratory and injunctions reliefs. There is therefore no basis for the claim of the Appellants in the circumstances of this case. A matter that lacks basis or foundation is not capable of giving parties a reasonable cause of action. A claim that is not supported by a reasonable cause is bound to fail. Against this background, I am of the view, and I accordingly so hold that issues 2 and 4 must be resolved against the Appellants. This appeal is therefore hereby dismissed for totally being devoid of any merit. The judgment of the lower Court delivered on 14/02/06 dismissing the action of the Appellants is hereby affirmed. I make no order f or costs.

MOHAMMED LADAN TSAMIYA, J.C.A.: I agree.

UCHECHUKWU ONYEMENAM, J.C.A.: I agree with the Judgment delivered by my learned brother, Ali Abubakar Babandi Gumel , JCA. I also dismiss the appeal for lacking in merit and I make no order as to cost.

Appearances

Mr. J.A. AgbatarFor Appellant

AND

Mrs. C. M. Chaha, Asst. Director Civil Litigation Benue State Ministry of JusticeFor Respondent