LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

AMODU OSENI ALBERT VS KOGI STATE GOVERNMENT & ORS

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

 

 

Dated this 24th day of September, 2018        SUIT N0: NICN/LKJ/06/2018

 

BETWEEN:

AMODU OSENI ALBERT

CLAIMANT

AND

KOGI STATE GOVERNMENT

KOGI STATE UNIVERSAL BASIC EDUCATION BOARD

DEFENDANTS

Representation:

M.B. Bayeri for the Claimant.

Nyenke I.C.J.  with S.Y. Ibrahim and R.O. Muhammed for the Defendants

Judgment.

This suit was commenced via a General form of Complaint filed on 15th February, 2018 with same accompanied by a statement of fact titled as ‘complaint’, witness statement on oath, list of documents and copies of documents to be relied upon.

Arising from the Complaint and statement of fact, the Claimant claims against the Defendants the following:

  1. a) A DECLARATION that the clandestine investigation of the claimant certificate issued by the College of Education, Okene without allowing the applicant, a fair hearing of the result of the outcome of such investigation and to defend himself is unconstitutional, null and void.
  2. b) A DECLARATION as valid and authentic, the certificate issued by the Academic Board of the Federal College of Education, Okene based on the letter of confirmation and authentication issued by the said Federal College of Education, Okene.
  3. c) A DECLARATION as null and void the publication of the dismissal of the claimant from the service of Kogi State Government after a voluntary and mandatory retirement of the claimant upon the attainment of the thirty-five years of meritorious service is unconstitutional, unlawful, null and void.
  4. d) A DECLARATION that the purported dismissal of the claimant without fair hearing of the allegation of certificate forgery against him is unlawful, unconstitutional, null and void.
  5. e) A DECLARATION that the claimant is entitled to all his unpaid salaries, allowances bonuses from February, 2016 till 1stSeptember, 2017 and payment of leave allowance from 2011 to date amounting to N1, 087, 564.90k (One Million, Eighty-seven Thousand, Five Hundred and Sixty- four Naira, Ninety Kobo).
  6. f) AN ORDER directing the 1stDefendant to pay forthwith the withheld gratuity of 300% of his annual salary to the tune of N8, 286, 000.50k (Eight Million, Two Hundred and Eighty-six Thousand Naira Fifty Kobo).
  7. g) AN ORDER on the Defendant to pay the withheld sum of N3, 698, 220.60k (Three Million, Six Hundred and Ninety-eight Thousand Two Hundred and Twenty Naira, Sixty-six Kobo) being unpaid salaries, allowances bonuses from February, 2016 till 1stSeptember, 2017 and payment of leave allowance from 2011 till date.
  8. h) An order on the Defendants to place the name of the Claimant on the Kogi State list of Pensioners forthwith and to direct payment of outstanding pensions to him.
  9. i) Punitive Damages in the sum of N60, 000, 000.00 (Sixty million Naira) as aggravated injuries caused by the reckless conducts of the Defendants.

I reckon that the reliefs in the Complaint are 7 in number while those in the statement of fact are 9. In this wise, the court in AKEREDOLU & ORS. V. AMINU & ORS. (2003) LPELR-12410(CA) noted that: “it is now well settled that a Statement of Claim supersedes the Writ of Summons. Where, however, in a Statement of Claim a consequential relief or reliefs are added to it in excess of those in the Writ of Summons, such additional reliefs shall be deemed as claims before the Court”. See: ENIGBOKAN V. AMERICAN INTERNATIONAL INSURANCE CO. (NIG.) LTD. (1994) 6 NWLR (PART 348) 1 at pages 15 and 16. EZEWUSIM V. OKORO & ANOR. (1993) 5 NWLR (PART 294) 478 AT 501 and AJAGUNGBADE III & ORS. V LANIYI & ORS. (1999) 13 NWLR (PART 633) 92.   

It is upon the above position of the law that I have captured the claims made in the statement of fact as the claims made before this court rather than those made in the Complaint.

In reaction to the claims, the Defendants on the 20th April, 2018 filed a joint statement of defence accompanied by a list of witnesses, witness statement on oath, list of document and copies of document to be relied upon.

In opening his case, Claimant himself, Amodu Oseni Albert,  as the sole witness, adopted his witness statement on oath filed on 15th of February, 2018 and same was adopted as the oral evidence of the Claimant and marked as C1. CW1 tendered 14 documents which was marked as Exhibit C2 – C15. Exhibits C12 was admitted under protest and to be addressed in the final written addresses of parties.

Arising from the statement of fact and witness statement on oath, the case of the Claimant is that he was all-time material to this case was an employee  of the Defendants and served with the Kogi State Universal Basic education Board as education secretary with the Ogori/Magongo Local Government Education Authority. He was originally employed into the services of the Ageva Local School Management Board Kwara State, which is the predecessor of the 1st Defendant, as a teacher on grade level 04 step 1 on the 1st day of September, 1982. His appointment was confirmed by a letter referenced as OK/ZEB/PER/6009/vol.1/27 dated 23rd  of April, 1986  with effective date of confirmation being 2nd  September, 1984. The Claimant rose from Senior Teacher, GL 05 – 06 in 1987 to Director Master on GL 15 – 16 in 2017. He was also elevated to the Position of Education Secretary of the Ogori/Magongo Local Government Education Authority in 2013. Upon his attainment of 35 years of service, the Claimant tendered his letter of voluntary retirement to the defendant dated 15th August, 2017 and the letter was accepted by the Defendant by her letter dated the 18th of August, 2017 with effect from 1st September, 2017.

The Claimant further alleged that the Defendants without giving the claimant any fair hearing published on the pages of the Graphic Newspaper of November, 22 /28, 2017 the dismissal of the Claimant from her service, in total flagrant (sic) of the extant law and policies and the right of the Claimant under the constitution. The Defendant also in that publication defamed the Claimant with the offence of forgery without giving him an opportunity to defend himself of the forgery which is a criminal offence or by conducting a proper investigation to ascertain the veracity of the Claimant’s certificate issued by the Federal College of Education, Okene.

Although the Claimant submitted the photocopy of his certificate, he presented the original to the Staff Clearance Committee of the Defendant for  sighting. He also upon the allegation asked his lawyer to write to the Federal College of Education, Okene to demand for confirmation of the certificate and the College wrote to the lawyer and the Head of service confirming the authenticity of the certificate.

During cross examination, the Claimant as CW1 confirmed that all his letters of employment and promotions were served on him personally and that he wrote to the Defendant informing them of his retirement. He agreed that no letter was written to him terminating his employment but the publication indicted him. He also agreed that the said report is the staff screening validation report. He stated that he has nothing to show that the said report of the Committee was given effect by the Defendants.

The claimants closed his case, while the Defendants opened theirs calling one witness in person of Ochai Christian who adopted his witness statement on oath filed on 20th April, 2018 as his oral evidence in this suit and marked as D1. Through DW1, one document was tendered and admitted in evidence and marked as Exhibit D2. Also, Counsel to the Claimant tendered during cross examination a document admitted under protest as Exhibit D3 which is to be addressed in the Final Written Address.

Arising from the said Joint statement of defence and witness statement on oath, the case of the Defendants is that they admitted as true all facts relating to the employment and promotion of the Claimant. The Defendants also admitted being aware of the letter of retirement of the Claimant but not aware of him being cleared by several Committees. The Defendant denied that the Claimant ever tendered photocopy of his certificate and also denied ever terminating the appointment of the Claimant as same cannot be terminated via a newspaper publication as the the publication referred to by the claimant was a report of a committee (Staff Screening, Validation & Appeal Committee Report-MDAs Schedule of Staff Involved in Forged Certificate) that was never enforced by the 1st defendant. The Defendants also denied the claims on terminal salary as stated by the Claimant on ground that same is determined after the deduction of tax which is less than the amount quoted. The Defendant also denied the amount put up as gratuity. They admitted he is entitled to his pension just like every other retiree but not on the calculations stated by the Claimant.

The Defendants also stated that upon the approval of the retirement of the claimant on the 18th of August , 2017 with effect from 1st September, 2017, he is expected to liaise with his former place of work to compile his record and transmit same to the relevant body for payment of his terminal benefits however, the Claimant’s file is receiving necessary attention at the pension office and considering that, this suit is premature.

Upon cross examination of the sole witness of the Defendants, DW1 stated that the Graphic Newspaper is an Agency of Government but he does not know if they publish fake information. He confirmed that the publication date of the newspaper in contention is for the 22nd -28th of November, 2017. He read paragraph 3 of page 19 and stated that same is the decision of the Screening Committee. He also stated that Exhibit D2 was written after the suit was filed and that the suit has to be filed before they can enter defence. He also agreed that page G102 was signed by SUBEB.

Upon the close of case of the Defendants, the Defendant filed a final written address on the 25th of June, 2018 while the Claimant filed theirs on the 6th of July, 2018 and the Defendants filed a Reply on 16th July, 2018.

Arising from the written address of the Defendants, learned counsel to the Defendants, Nyenke I.C.J, formulated  two issues for determination to wit:

  1. Whether or not the claimant haven (sic) retired from active service of the defendants, possesses an employee status capable of been dismissed
  2. Whether or not the claimant is entitled to the reliefs sought as per his complaint.

In arguing issue one, learned counsel contended that the entire reliefs of the claimant are declaratory in nature and the law is settled that declaratory reliefs are only granted at the discretion of the court. He added that a party who seeks declaratory reliefs from the court must establish his entitlement to such reliefs from his evidence. He must do so by producing sufficient evidence to warrant the making of such an order in his favor. He cited the case of DUMEZ NIG.LTD V NWAKHOBA (2008) 18 NWLR (PT.1119) P.361 @ 386 PARAGRAPHS C-D and P.D.P v ABUBAKAR (2007) 3 NWLR Pt. 1022 p.515 @546 PARAGRAPHS EF.

Learned Counsel further contended that the claimant at paragraph 8 of the statement of fact states that he voluntarily retired from service upon attaining the 35 years in service on the 15th of August 2017 via a letter, which was accepted on the 18th August 2017 by the defendants. This means legally that as at 18th August 2017, the claimant was no longer a staff of the defendants but rather a retiree.

Counsel also referred the court to the statement of the Claimant during cross examination particularly the facts that the defendant had not written him any letter terminating his appointment.

Counsel submitted that going by the evidence before the court, the claimant had retired from service of the defendants precisely on the 15th day of August, 2017 and Having so retired, there exists no employment capable of been dismissed.

With regards to Exhibit C12 admitted in protest, counsel contended that the law is well settled that a newspaper publication can only be tendered if produced from proper custody which will be the publishers of the newspaper or registrar of newspapers. He cited the case of RODERICK ONEH V. VERONIVA OBI (1999) 7 NWLR Pt. 611, 487 @ 499.

He added that same must be certified being a public document and a computer generated document, also a certificate in compliance with sec. 84 of the Evidence Act issued to that effect. He cited the case of KUBOR V. DICKSON (2013) 4 NWLR PT 1345 P.534 @549.

Counsel urges the court to reject the Graphic Newspaper admitted under protest as Exhibit C12 as relevancy is not the only yardstick for admissibility. Counsel concluded on this issue that the Claimant does not have any cause of action thus this suit is frivolous and vexatious.

 With regards to issue two, counsel adopted his submissions in respect of issue one on the basis that the claimant’s main claim summarizing his grouse given rise to this suit is as contained in prayer C & D, which is the issue bordering on alleged dismissal.

With regards to relief E, counsel contended that claimants claim as contained in relief E, being a claim for unpaid salary from February 2016, was an issue which the claimant failed to prove before this honorable court. He added that the claimant never tendered statement of his salary account to show the last payment received before his retirement thus remain unproved. What is more is that the issue of nonpayment of Salary from February 2016 assuming but not conceding it is true, is an issue that occur long before the alleged dismissal given rise to this suit.

Counsel also posited that the claimant’s claim as embedded in claim F and G, cannot stand the test of time on the basis that the defendants by exhibit D2 had established the fact that the Claimant’s retirement benefits are being processed via a correspondent dated 19th March 2018 written by the office the claimant retired from. Counsel maintained that this court is bound to accept the evidence in proof of the issue in contest. He cited the case of FOLORINSHO & ANOR V.SALOUB (1994) 3 NWLR PT333 P.413 @433 PARAS B-H and U.B.N LTD V. OGBOH (1995) 2 NWLR PT 380 P.647 @ 654 & 669.

Counsel concluded that the claimant had failed to establish his claim by leading credible evidence in prove of his claim thus not entitled to the reliefs as contained in his claim.

By way of reaction, learned counsel to the Claimant, M.B. Bayeri formulated three issues for determination to wit:

  1. Whether the action of the Defendants making a publication of Claimant’s dismissal from the service of Kogi State Government in the Graphic Newspaper Exhibit C12 after an investigation conducted when the Defendants have already accepted Claimant letter of retirement without giving him a Hearing on the alleged investigation does not breach his Constitutional Right as guaranteed under Section 36 (4) (b) of the 1999 Constitution as amended.
  2. Whether the Defendants are not bound and liable by their publication in the Graphic Newspaper (Exhibit) C12 purporting to have dismiss the Claimant for forgery a Criminal Offence
  3. Whether the Claimant has established his claim so as to entitle him to the relief sought.

In arguing issue one, counsel placed reliance on paragraph 9 of statement of facts deposed to by the Claimant who has alleged that he was not given fair hearing to contradict facts contained in the alleged investigation as continued in Paragraph 1 and 2, page G19 of Exhibit C12.

Counsel added that the publication dismissing the Claimant from the service of the Kogi State Government was done inspite of the earlier clearance given to the claimant before notice of his retirement and its acceptance. Such investigations as contained in Exhibit C12 require a hearing from the Claimant in answer to such discovery alleged against him. Counsel cited the cases of BODE THOMAS v FEDERAL JUDICIAL SERVICE COMMISSION (unreported) SUPREME COURT APPEAL NO 228/2013, delivered on 16/2/2018; SAVANNAH BANK (NIG) PLC VS FAKOKUN (2001) 1 NWLR (PRT 749) P 549 and ARINZE VS FIRST BANK (NIG) LTD (2000) 1 NWLR (PT 639) P 76.

With regards to issue two, counsel contended that the Defendants admitted the publication; they also pleaded the publication in the Paragraph 6 of their Statement of Defense. He referred the court to Paragraph 7 of Exhibit C12 (the Graphic Newspaper) and submitted that it is clear from the wording of the publication that the determination of the status of the Claimant was based on Exhibit C12 which publication was made after the said 2nd  Defendant agreed to Claimant’s voluntary retirement.

Counsel added that the Defendants admitted on Oath as to the content of Exhibit C12 and that it was signed by the Defendant’s Chairman, leaving no doubt as to whether or not there is any apprehension of fact or misinformation to the Defendants. Counsel also posited that Exhibit D2 which Defendants relied upon was made after the suit had been filed and according to DW1 it was made to prepare for their defense of this case. He cited section 83 (3) of the Evidence Act and the case of  CYPR1AN EZEWUDO VS JAMES EZENWAKA & 2 ORS (2016) LPELR-41019 (CA) in this regard.

With regards to Exhibit C12, counsel contended that inspite of the Notice to Produce, the Defendants who had pleaded same document failed to produce it and by the operation of law the Defendants can be said to have withheld evidence by their refusal to produce the said publication pleaded by them. Counsel cited section 167 (d) and 89 (1) of the Evidence Act 2011 and the cases of YUSUF VS OBASANJO (2006) AFWLR (PT. 294) PG 387@476, PARAGRAPH B-F; UBN VS IDIRU (1997) 7 NWLR (PT. 609) 105 at 118-119 paragraph H-A, and BUHARI VS OBASANJO (2005) 2 NWLR (PT. 910) 241 at paragraph H-A.

Counsel further argued that that the position of the law as regards Newspaper tendering, for the purpose of Judicial Proceedings has changed as Newspaper bought across the road is not a public document. At best the apprehension about its status may be connected to the question of proper custody, which affects the weight and not the admissibility of the document The Library Act merely enjoin publishers of newspapers and journals to deposit one copy of such production, the Act does not say that for the purpose of court litigation, it is only the certified copy of such publication that must be used. The idea of getting a certified true copy from the librarian is to ensure genuineness but where a publication is relevant and the genuineness is not challenged and parties plead the same document in their respective pleadings a court would of necessity admit it See OGBUNYINYIA v OKUDO (1979) 12 NSSC 77.

Counsel concluded by urging this court to hold that the Defendants have by their publication declared their intention to dismiss the Claimant from their services and they are bound by the effect of such publication.

With regards to issue three, counsel adopted his argument on issue 2 as part of his argument in respect of issue 3 and submitted further that upon the preponderance of evidence and admission of the Defendants, the Claimant is entitled to his claim. He urged the court to grant all the relief sought in this case and resolve all issues in favour of the claimant.

By way of reply, with regards to issue one formulated by the Claimant’ counsel, learned counsel to the Defendants submitted that Employment law in Nigeria can be classified into Master Servant Relationship, servants who hold their office at the pleasure of the employer and employment with statutory flavor. Consequent upon which the employment and termination/dismissal are govern depending on the form of employment. He posited that the Claimant did not state which category he belonged and whether his employment can be dismissed by newspaper publication. Counsel cited OFORISHE V N.G.C .Ltd (2018)2 NWLR Pt1602 p.35 @41 and Comp.-Gen., Customs V. Gusau (2017) 18 NWLR PT1598 P.394 @368

Counsel also argued that the issue of fair hearing will not arise in this case as the claimant employment have not been dismissed.

With regards to issue two, Counsel reiterated his argument on Exhibit C12 and urged the court to reject the document.

With regards to exhibit D2, Counsel  submitted that it was not made by a person interested at a time when proceedings was pending or anticipated to necessitate the applicability of Sec.83(3) of the Evidence Act 2011. He added that the said exhibit D2 was made in the course of discharging official duty by Anuwe Monday, the Education Secretary Ogori/Magongo L.G.E.A, being a person who had no interest whatsoever in the suit filed by the claimant.

With regards to issue three, counsel submitted that a party seeking declaratory relief is required to plead and prove his declaratory relief on the evidence he calls without relying on the evidence called by the defendant. He cited the case of  ZACCALA V. EDOSA (2018) 6 NWLR Pt. 1616 p. 528 @532-533.

Counsel concluded urging the court to dismiss the claims of the Claimant.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for determination by this court are to wit:

  1. Whether or not the Claimant was dismissed from the employment of the Defendants in view of a newspaper publication vis-à-vis his application and approval of retirement from service.
  2. Whether or not the Claimant has proved his case to entitle him to the reliefs sought.

Before addressing the issues, it is pertinent to determine the status of Exhibit C12 and D3 which were admitted under protest.

I would start  with Exhibit D3 which was tendered by Counsel to the Claimant through DW1. The said Exhibit D3 is a certified true copy of a notice to produce which was filed in this court on the 3rd of May, 2018 and served on the Defendants through their counsel on the same date of filing. The document to be produced was the Graphic Newspaper of the 22nd – 28th November, publication.

The tendering and admissibility of Exhibit D3 in the light of being a court process ought not to be particularly contentious. What is agreeably contentious is whether the document which is demanded to be produced is capable of being produced and the effect of failure to produce. I reckon that the essence of tendering Exhibit D3 is for the Court to be aware that indeed a notice to produce was served on the Defendants but that is needless as the record of the court is sufficient to provide such evidence of service. Consequently, Exhibit D3 is considered irrelevant and same is accordingly rejected. With regards to exhibit C12 which is Graphic newspaper, learned counsel to the Defendant objected to the admissibility of same on the ground that being a public document,  same ought to be produced from proper custody, and certified and should bear a certificate in compliance with section 84 Evidence Act being a computer generated evidence.

The Counsel to the Claimant on his part contended that the Defendants pleaded Exhibit C12 in the statement of defence and that notice to produce was served on the Defendant to produce.

In resolution of this contention, I have taken a look at the said exhibit C12 and I find that it is an original copy of a newspaper and not the photocopy. That in essence means the document is a primary evidence. Section 86 (4) of the Evidence Act provided a description which suited Exhibit C12 as a primary document by providing thus:

Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest; but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.

Arising from the above provision, there is no gainsaying that a newspaper falls in category of documents made by one uniform process. The next question that arises therefore is whether the said primary copy requires certification i.e. whether it is the certified true copy that need be tendered. While I am not unmindful of the case of Roderick Oneh v Veronica Obi (supra) cited by the Counsel to the Defendant on tendering of a newspaper from proper custody. I must state that the issue in question is not one about proper custody in relation to the genuineness of the said document. Also, in Kubor v Dickson (supra) cited with respect to computer generated evidence, the document in question in that case was an online newspaper printed from a personal computer which is not  the situation in the instant case.

Having noted that the newspaper is a primary evidence which in other words means the original, the court in the case of KASSIM v. STATE (2017) LPELR-42586 (SC) had laid the issue to rest that original copies of public documents are admissible as against the notion that only certified true copies of public documents are admissible. The court held that:

“Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with ADEKEYE JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWRL, 500; (2011) LPELR-1333 (SC), the essence of demanding for a certified copy of a public document is the assurance of the authenticity of the document vis-à-vis the original. And so why go for that assurance in the certified true copy vis-à-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the court below that where the original copy of a document is available, it is admissible without the requirement of certification”.  per KEKERE-EKUN, JSC

In view of the forgoing, Exhibit C12 is admissible and same is hereby admitted

In addressing issue one, which is “whether or not the Claimant was dismissed from the employment of the Defendants in view of a newspaper publication vis-à-vis his application for and approval of retirement form service”, I start by reckoning that the employment, confirmation of employment and promotions of the Claimant is not in contention as same is duly admitted by the Defendant. The law is trite that facts admitted need no proof. In Ali v. Albishir (2008) 3 NWLR (Pt. 1073) 94 at P. 150, paras. D – E , the court held that “Facts admitted require no further evidential proof. [Bajoden v. Iromwanimu (1995) 7 NWLR (Pt.41O) 655; Olagunyi v. Oyeniran (1996) 6 NWLR (Pt. 453) 127; Ewo v. Ani (2004) 3 NWLR (Pt.861) 610; Nig. Advert. Serv. Ltd. v. UBA Plc (1999) 8 NWLR (Pt.616) 546; Adedeji v. Oloso (2007) 5 NWLR (Pt.1026) 133]” Per Ariwoola, JCA.  In view of the admission of the facts in paragraphs 1,2,3,5 and 6 of the Claimant’s statement of fact, I find that the Claimant’s employment is one with statutory flavor.

The court in COSMOS C. NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) expoused on the meaning of an employment with statutory flavor by holding that:

“In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of Kwara State Polytechnic Ilorin v. Shittu (2012) 41 WRN 26”.

See Ogunke v. National Steel Development Authority (1974) NMLR 128; Fakuade v. O.A.U.T.H. (1993) 5 NWLR (Pt.291) 47; ldeh v. University of Ilorin (1994) 3 NWLR (Pt.330) 81; Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame.v. WAEC (1992) 9 NWLR (Pt.265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 116.

Having said that, it is clear that the employment of the Claimant is not in contention. What is in contention is the retirement or dismissal of the Claimant. In this regard, the Claimant in relation to his retirement stated that he tendered Exhibit C8 which is his letter of voluntary retirement on the 2nd Defendant. The said Exhibit C8 is dated the 27th May, 2017 and is an application for retirement having served for 35 years. In the said letter, the Claimant hoped that his retirement starts from 1st September, 2017. On the 18th of August, 2017, the Defendants replied the Claimant and approved his application for retirement with effect from 1st September, 2017.

The letter also stated that the Claimant is released on retirement while he commences the process of documentation towards the accomplishment of terminal benefits accruable to him.

In view of the above fact, what then is the effect of a retirement? Black’s Law Dictionary, 8th Edition in page 1342, in the context of this suit, defined ‘retirement’ as:

“Voluntary termination of one’s own employment  or career, especially upon reaching a certain age”. See the case of Nawa v Att-Gen Cross Rivers State (2008) ALL FWLR (Pt. 401) 807 at 833 – 834, paras. B – C (CA).

The above is exactly what the Claimant in the instant case did. He voluntarily terminated his employment upon completion of 35 years in service.

The narrative did not however end there. The Claimant alleged that the Defendants published his dismissal in Exhibit C12 which is a newspaper. He alleged that the Defendants without giving the Claimants fair hearing to that effect published on pages of the Graphic Newspaper of November, 22/28, 2017 the dismissal of the Claimant from her service, in total flagrant (sic) of the extant law and policies and the right of the Claimant under the Constitution. He added that the Defendants also defamed the Claimant with the offence of forgery without giving him an opportunity to defend himself of the forgery, a criminal offence or by conducting a proper investigation to ascertain the veracity of the certificate issued to the Claimant by Federal College of Education, Okene.

The Defendants on their part have admitted that they have not dismissed the Claimant. That the report of the Screening Committee was not acted upon. The Defendant tendered Exhibit D2, a letter written and signed by one Anuwe Monday, Education Secretary, Ogori/Magongo LGEA, Akpafa. The letter was to forward a file on the Claimant to the Executive Chairman of the 2nd Defendant.

The document was to establish perhaps that the Defendants are working on the retirement packages of the Claimant. Though the counsel to the Claimant raised no objection to the admission of the document while same was tendered and admitted in evidence, he subsequently contended through his final written address that the document was prepared during pendency of the suit and he urged the court to expunge it.  In this regard, the court  in the case of Sadhwani v Sadhwani (Nig) Ltd (1989) 2 NWLR (Pt. 101) Pg 72 at 83 – 84 Paras. F – A held that:

“The question therefore is, what is the legal position where a Judge has admitted in evidence in a civil case ‘a second-class inadmissible evidence’ which was not objected to by the opposing party at the time it was tendered for admission in evidence, and the opposing party subsequently objects to it? The answer can be found in the case I have stumbled across. It is Chief Bruno Etim & ors. v. Chief Okan Uda Ekpe & Anar. (1983) 3 S.C. 12 at pages 36 – 37. There Aniagolu, J.S.c. had this to say:”it is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases, that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document (or other evidence – see: Chukwura Akunne v. Matthias Ekwuna (1952) 14 W.A.C.A. 59), the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission.” It is therefore clear to me that learned counsel for the respondent was not competent to subsequently object to Exhibit A – Q, all being ‘secondclass inadmissible evidence”, And since he was not competent to object the learned trial Judge was in error to have ruled in his favour”. Per Akpata, JCA.

In view of the above authority, the contention of counsel to the Claimant is therefore discountenanced with regards to Exhibit D2. However, the said Exhibit D2 bear no much of probative value in view of the content which merely contains the detail of the Claimants employment and that the Claimant’s file is undergoing further scrutiny. It says nothing about the computation of the Claimant’s retirement package.

Back to the contention of whether the Claimant was dismissed or retired, in this regard, having found that the Claimant validly tendered his notice of voluntary retirement and same was approved by the Defendant, the question that rightly follows is whether he can at all be dismissed from employment  afterwards?

The answer to this lies in the holding of the court in Wilson v A.-G., Bendel State (1985) NWLR (Pt.4)572 where the court held that:

“In its ordinary and popular meaning, retirement from the public service would imply a withdrawal from that service which itself will further mean that the appellant is no longer a member of that Service. Again ordinarily, dismissal imports a release from, a discharge from service or office. It follows then, and ordinarily also, that when a person has left an office or has retired from a certain service, he cannot again be dismissed from that same office or service.” Per OPUTA, J.S.C (P. 63, paras. E-G)

In view of the contention on dismissal, I find it imperative to reproduce a caption of the publication in page G19 of Exhibit C12 which states that:

“KOGI STATE GOVERNMENT OF NIGERIA

STAFF SCREENING, VALIDATION & APPEAL COMMITTEE REPORT – MDAs

(SCHEDULE OF STAFF INVOLVED IN FORGED CERTIFICATES)

Following the outcome of the recently concluded staff audit and verification exercise in Kogi State, the officers (Public Servants) whose names appear below have been indicted for breaching Public Service Rules as a result of Falsification of Academic records.

The offense mentioned above carries the punishment of Dismissal in Section 4; Rule 030401 under the PSR No.030402 (Serious Misconduct).

In view of the above, the under listed are hereby dismissed and relieved of their various positions in the Public Service.

Accordingly, all the officers concerned are to handover all Government properties in their care to the next senior officer in their offices within Three (3) days from the Publication, as they face Prosecution in the court of law for Gross violation of the Public Service Rule and the Criminal Code”.

I also find that the name of the Claimant is number 22 on page G100 of the said Exhibit.

 Assuming the above publication is anything to go by in terms of terminating the employment of the Claimant, there is no gainsaying that the above authority suffices to maintain that the Claimant cannot be dismissed having validly retired from service with effect from 1st September, 2017 and I so hold.

Consequent upon this holding, issue one is resolved in favour of the Claimant to the effect that the Claimant was not dismissed but validly and voluntarily retired from the from the employment of the Defendants in view of his application for and approval of retirement form service.

Issue two which is “Whether or not the Claimant has proved his case to entitle him to the reliefs sought”, touches of the claims of the Claimant against the Defendants. The claims as reproduced above clearly shows that five of the claims are declaratory while three are claims for certain orders to be made by this court.

With respect to this issue, counsel to the Defendant had contended against the grant of each relief and in the course of reply, he contended that the claims being declaratory, the Claimant is required to plead and prove his declaratory reliefs on the evidence he calls without relying on the evidence called by the Defendant. Counsel to the Claimant on the other hand argued that the Claimant is entitled to his claim upon a preponderance of evidence and the admissions of the Defendants.

In addressing the issue, I should state that the nature of a declaratory relief is simply to state the legal status of a situation or state of affairs. The court in NZURIKE v. OBIOHA & ANOR. (2011) LPELR-4661(CA ) held that:

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

 I must also state that rightly so, a party seeking declaratory relief earns same on the strength of his case and not the weakness of the defence. The court in the case of Ndu v. Unudike Properties Ltd (2008) 10 NWLR (Pt.1094) 24 at 29, para.G (SC) held that:

“A plaintiff who seeks a declaratory relief must adduce credible evidence to establish his entitlement to the declaration, and should not rely on the admissions in the pleadings of the defendant. [Olisa v. Asojo (2002) 1 NWLR (Pt.747) 13.” Per Mikailu JCA.

In view of this holding, I shall consider the declaratory reliefs sought by the Claimant in relation to the evidence adduced before this court by the Claimant. The said declaratory reliefs are:

  1. a) A DECLARATION that the clandestine investigation of the claimant certificate issued by the College of Education, Okene without allowing the applicant, a fair hearing of the result of the outcome of such investigation and to defend himself is unconstitutional, null and void.
  2. b) A DECLARATION as valid and authentic, the certificate issued by the Academic Board of the Federal College of Education, Okene based on the letter of confirmation and authentication issued by the said Federal College of Education, Okene.
  3. c) A DECLARATION as null and void the publication of the dismissal of the claimant from the service of Kogi State Government after a voluntary and mandatory retirement of the claimant upon the attainment of the thirty-five years of meritorious service is unconstitutional, unlawful, null and void.
  4. d) A DECLARATION that the purported dismissal of the claimant without fair hearing of the allegation of certificate forgery against him is unlawful, unconstitutional, null and void.
  5. e) A DECLARATION that the claimant is entitled to all his unpaid salaries, allowances bonuses from February, 2016 till 1stSeptember, 2017 and payment of leave allowance from 2011 to date amounting to N1, 087, 564.90k (One Million, Eighty-seven Thousand, Five Hundred and Sixty- four Naira, Ninety Kobo).

Upon a careful consideration of reliefs (a), (b), (c) and (d), I find that these reliefs are anchored on the publication in Graphic newspaper admitted in evidence as Exhibit C12. The said Exhibit C12 was published sometime in November, 2017 and its content in relation to this suit is as captured in the resolution of issue one above.

In the context of issue two however, the name of the Claimant is on page G100 of Exhibit C12 and on row No.22 and a column against the Claimant’s name is a finding that reads thus “ NCE certificate obtained in 2001 from Federal College of Education, Okene was confirmed to be forged as revealed in the background verification  check” and the last column reads “to be sanctioned for serious misconduct (falsification of records) in line with Public Service Rule 030402 and DISMISSED from public service”.

That said, what is in contention with regards to relief (a), (b), (c) and (d) is that the Claimant was not given fair hearing before the finding that his certificate was forged leading to his purported dismissal. The contention of the Defendants is that the report have not been acted upon.

While the issue of retirement has been resolved in issue one, with regards to fair hearing, the court held in the case of GYANG & ANOR v. COP, LAGOS STATE & ORS (2013) LPELR-21893(SC) that:

“The principle of fair hearing as enshrined in Section 36 (1) of the 1999 Constitution does not necessarily mean an oral hearing. What is required is that every party to the dispute is given an opportunity to state his case. Each party must know the case being made against him and given an opportunity to react thereto. See: Duke V. Government of Cross River State (2013) LPELR-SC.292/2008: Hart V. Military Governor of Rivers State (supra).” Per KEKERE-EKUN, J.S.C (Pp.25-26,paras.E-A)

The question that would arise in view of this is whether the Claimant was informed at any time about the forgery prior to the publication and whether he was given any opportunity to defend the status of his certificate? In this regard, the Claimant stated that he was not given any fair hearing before the publication while the Defendants did not state otherwise.

In addition, with regards to the authenticity of his certificate, the Claimant tendered Exhibit C14 which is a letter written by the Law Firm of his solicitors, which was signed by M.B. Baiyeri, Esq. to the Registrar, Federal College of Education, Okene to request for the confirmation of the Claimant’s certificate which was alleged to be forged in the publication. The said letter is dated 10th January, 2018 which was after the publication was made in November, 2017. The Institution responded by writing Exhibit C15, dated the 15th of January, 2018 to the Head of Service, confirming that the certificate is genuine.

Having found the above and in view of the assertion made by the Claimant that he was not heard before the publication in Exhibit C12, the burden then shifts unto the Defendants to disprove the assertion by proving that the Claimant was given fair hearing or that the certificate of the Claimant was indeed forged which therefore warranted the publication made in Exhibit C12. The court in the case of JAJI & ORS v. OLOWORA & ANOR (2015) LPELR-25575(CA) held that:

“In Civil cases, the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. But where a party fails to discharge this burden, then the opponent needs not prove any fact and the party alleging cannot rely on the opponent’s case.” Per NDUKWE-ANYANWU, J.C.A. (P. 17, paras. D-F)

Although I reckon that averments in pleadings is not and does not amount to evidence, see Ajuwon v. Akanni (1993) NWLR (Pt. 316)182. However, the assertion having been supported by the Exhibit C12, C14 and C15 is sufficient to prove that the Claimant was not heard before the publication was made. Also, Exhibit C14 and C15 are sufficient to prove that the certificate of the Claimant having been confirmed by the Federal College of Education, Okene is found to be valid in the absence of evidence to the contrary by the Defendants as documents pleaded and established but not denied is deemed admitted. See Ogbe v Asabe (2010) 40 NSCQR 386 at 424.  Consequently, I find that the Claimant is entitled to the declarations sought in reliefs (a), (b) (c) and (d) and same is accordingly granted.

With regards to reliefs (e) which is also a declaratory relief and relief (g) which is an order to be made consequent upon the declaration are both in respect of unpaid salaries, allowances, bonuses from February, 2016 till 1st September, 2017 and leave allowances from 2011 to date. I have earlier noted that mere averments does not amount to evidence. While the Claimant averred facts relating to his terminal salary and the percentage for computing his gratuity, the Claimant has not led any evidence whatsoever to exhibit the fact that he is owed salaries. Neither has he proved that he is owed allowances from 2011 to date. He also did not present any evidence in proof of what his salaries are and what the leave allowances are.

In this wise, there is no gainsaying that the burden of proof rests on the Claimant to prove that he is indeed owed salaries and allowances which he has failed to do. The principle is settled that he who asserts must prove. See INTERCONTINENTAL BANK PLC v. DAYEKH BROTHERS LTD (2014) LPELR-23485(CA).

In addition, the Court in Borishade v. N.B.N Ltd (2007) 1 NWLR (Pt. 1015) 217 at 255 paras. D – E; Pp. 256 paras. D – F (CA)  held that:

“At law, at the commencement of hearing of a claim the onus of proof is on the plaintiff not on the defendant. That onus does not shift on appeal. In other words, the onus of proof in a civil claim is on the plaintiff who must prove his claim or fail. At no stage in the proceedings or on appeal does the defendant owe a duty to the plaintiff to prove any issue. The burden is on the plaintiff to establish his claim. If the plaintiff cannot succeed on the strength of his claim he should fail. (Mba-Ede v. Okufo (1990) 2 NWLR (Pt. 135) 787; Inyang v. Eshiet (1990) 5 NWLR (Pt. 149) 178 referred to.)

In view of the above authority, relief (e) and (g) are accordingly refused.

With regards to reliefs (f) and (h) which are related to the retirement of the Claimant, there is sufficient evidence to the effect that the Claimant voluntarily retired from the employment of the Defendants particularly considering Exhibit C8 which is the letter of application for voluntary retirement and Exhibit C9 which is the letter of approval of voluntary retirement dated the 18th of August, 2017.

In view of the proof of the voluntary retirement and the resolution of issue one, the Claimant will automatically become a pensioner having retired as a public servant and he shall be entitled to gratuity as protected by section 173 of the Constitution of Federal Republic of Nigeria 1999 (as amended)  and as the court in  WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258 held that:

“Tendering of a letter of resignation carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. While giving notice of retirement carries with it the right to be paid a pension or gratuity; but it does not confer the right to withdraw from the service immediately and automatically. See (1) Benson v. Onitiri (1960) 5 ES.C. 69, (2) Osu v. PA.N. Ltd. (2001) 13 NWLR (Pt.731) 627 and (3) Yesufu v. Gov. of Edo State & Ors. (2001) 13 NWLR (Pt.731) 517.” Per ADEREMI, J.C.A. (Pp.17-18, Paras.F-A).

The above notwithstanding, it is not established that the computation of gratuity is indeed 300% of the Claimant’s annual salary. Consequently, while relief (h) is granted as prayed, relied (f) is granted to the effect that this court makes an order directing the 1st Defendant to pay to the Claimant his gratuity as computed with the appropriate percentage applicable.

Relief (i) as couched is apparently an example of punitive damages, the nature of which was described by the court in KABO AIR LTD v. MOHAMMED (2014) LPELR-23614(CA) that:

“Punitive damages which are also referred to as exemplary damages are intended to punish and deter blame worthy conduct and thereby prevent the occurrence of the same act in the future. They are awarded whenever the conduct of the defendant is sufficiently outrageous to merit punishment as where, for instance, it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law – University of Calabar v. Orji (2012) 3 NWLR (Pt. 1288) 418 and Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207.” Per ABIRU, J.C.A. (P. 55, paras. B-E)

The circumstances upon the said damages are awarded was stated in JULIUS BERGER NIGERIA PLC & ANOR v. UGO (2015) LPELR-24408(CA) when the court held that:

“It is now established that exemplary damages may be awarded only in the following three circumstances, namely:

  1. Where the plaintiff has suffered from oppressive, arbitrary or unconstitutional action by a servant of the Government. See ROOKES vs. BARNARD (1964) A.C. 1129 AT 1226; GARBA vs. LAGOS CITY COUNCIL (1974) 3 CCHCH 297, AT P.309; OGUCHE vs. ILIYASU (1971) N.N.L.R. 157, AT P.167;
  2. Where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; and
  3. Where Statute so provides. See DRANE vs. EVANGELOU (1978) 1 W.L.R. 455; CASSELL & CO. LTD. vs. BROOME (1972) A.C. 1027.” Per OHO, J.C.A. (Pp. 134-135, paras. G-C)

Although counsel to the Defendant said nothing specifically in regards to the grant of this relief, I have nonetheless taken a look at the circumstances under which punitive damages may be awarded and I find in view of the declaration that the publication made in respect of the certificate of the Claimant being forged without giving the Claimant fair hearing is unconstitutional, the action of the Defendant falls under the circumstance ‘A’ above i.e. the Claimant has suffered from the unconstitutional action of the servant of the Government. Consequently therefore, I find that the Claimant is entitled to damages which is to serve as an example to the Defendants and same is awarded in the sum of N1,000,000,00. (one million naira only payable within 60 days of delivery of this judgment.

In the final analysis and for the sake of clarity, reliefs (a), (b), (c), (d) and (h) which are granted as prayed read thus:

  1. a) A DECLARATION that the clandestine investigation of the claimant certificate issued by the College of Education, Okene without allowing the applicant, a fair hearing of the result of the outcome of such investigation and to defend himself is unconstitutional, null and void.
  2. b) A DECLARATION as valid and authentic, the certificate issued by the Academic Board of the Federal College of Education, Okene based on the letter of confirmation and authentication issued by the said Federal College of Education, Okene.
  3. c) A DECLARATION as null and void the publication of the dismissal of the claimant from the service of Kogi State Government after a voluntary and mandatory retirement of the claimant upon the attainment of the thirty-five years of meritorious service is unconstitutional, unlawful, null and void.
  4. d) A DECLARATION that the purported dismissal of the claimant without fair hearing of the allegation of certificate forgery against him is unlawful, unconstitutional, null and void.
  5. h) An order on the Defendants to place the name of the Claimant on the Kogi State list of Pensioners forthwith and to direct payment of outstanding pensions to him.

Relief (f) is granted to the effect that this court makes:

  1. f) AN ORDER directing the1stDefendant to pay to the Claimant his gratuity as computed with the appropriate percentage applicable.

While relief (i) is also granted to the effect that this court makes an order the Defendants to jointly pay:

  1. i) Punitive Damages in the sum of N1, 000, 000.00 (One million Naira) as aggravated injuries caused by the reckless conducts of the Defendants.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.

admin

Website:

Related Story