ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA -VS- THE GOVERNMENT OF EDO STATE & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

Date: 17th October 2018 SUIT NO. NICN/LA/121/2014

BETWEEN

ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA … CLAIMANT

AND

THE GOVERNMENT OF EDO STATE … DEFENDANTS
GOVERNOR OF EDO STATE
CIVIL SERVICE COMMISSION, EDO STATE
ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, EDO STATE
INFORMATION AND COMMUNICATION TECHNOLOGY, EDO STATE

REPRESENTATION:

Oluwatosin Olumide Esq. with Joseph Ilo Esq. and Christian Uzor Esq. for the Claimant

Akhimie Emmanuel Esq. with Emeka Onuoha Esq. for the Defendants

JUDGMENT

By a Complaint dated and filed on 18th March 2014, the Claimant claimed against the Defendants jointly and severally as follows:

A declaration that the Defendants have no power and authority under the law to suspend, terminate, dismiss and or remove the name of any of the Claimant’s member or members in the Edo State Civil Service, from the monthly pay-roll of the Defendants on the ground of either non production of their First School Leaving Certificate [Primary School Leaving Certificate] and Kindergarten Certificate or that same was obtained by the member before he or she attained the age of ten [10] at the screening exercise carried out on or about December, 2014.

A declaration that the Defendants cannot unilaterally import a term of contract that was not contemplated by both parties to the contract as at the time the contract of employment was entered into.

A declaration stopping the Defendants from further screening the Claimant’s members in Edo State on the basis of their First School Leaving Certificate [Primary School Leaving Certificate] and Kindergarten Certificate which were not requirement for the contract of employment between the Claimant’s members in Edo State and the Defendants.

An order of perpetual injunction restraining the Defendants jointly and severally by themselves, servants, agents or privies from unilaterally dismissing, terminating, suspending or in any other manner truncating the contract of employment of any of the Claimant’s members in Edo State before his or her official retirement date without complying with the extant Civil Service Rules of Edo State.

The Claimant filed with the Complaint a statement of facts, list of witnesses, the statement on oath of Anthony Masha and verifying affidavit. Upon receipt of the originating processes, the Defendants, through their Counsel, entered an appearance and filed a motion for extension of time to file their joint statement of defence. With the leave of Court granted on 20th June 2014, the Defendants’ defence processes filed on 23rd May 2014 were deemed to have been properly filed and served. With leave of Court granted on 4th May 2018, the Defendants substituted their witness, Mr. Gilbert Gomez with Mrs. Rita Nkeiruka Emokpae. Trial commenced on 26th April 2018 and was concluded on 4th May 2018. The Claimant’s witness, Mr. Anthony Masha, adopted his statement on oath filed on 18th March 2014 as his evidence in proof of the claims and tendered 2 exhibits, the Constitution of the Claimant and copy of invitation letter dated 7th April 2014 with attached list of MDA staff as exhibits A and B respectively. The witness was cross-examined. The Defendants’ witness, Mrs. Rita Nkeiruka Emokpae, also adopted her statement on oath dated 4th May 2018 as her evidence in defence of the suit and was cross-examined. The case was thereafter adjourned for adoption of final written addresses. On 4th October 2018, learned Counsel for the Defendants, Mr. Onuoha, adopted the Defendants’ final written address dated 3rd July 2018 and filed on 4th July 2018 as his arguments in support of the defence. Learned Counsel for the Claimant was absent and pursuant to Order 45 rule 7 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, the Claimant’s final written address dated 17th September 2018 was deemed to have been adopted. The case was thereafter set down for judgment.

COURT’S DECISION

I have considered the processes filed in this suit and submissions of learned Counsel for the parties. The Claimant is a trade union made up of senior members of the Civil Service in Nigeria and brought this action on behalf of its members in Edo State Civil Service. The Claimant’s case is that sometime in December 2013, the Defendants directed its members in Edo State to take part in a screening exercise to show their kindergarten and primary school leaving certificates to determine their eligibility in Edo State Civil Service. The Claimant’s members protested the directive on the ground that it was intended to be used to retire them prematurely. On 14th February 2014, the Defendants released a list containing names of some of the Claimant’s members whom the Claimant feared may be retired hence this action. On their part, the Defendants stated that in December 2013 the 1st Defendant directed all workers in the State to take part in a screening undertaken by the 5th Defendant for the purpose of creating a data base of all civil servants in the State. The workers were required to produce their credentials including primary school leaving certificate, birth certificate and record of service. It is the Defendants’ case that the workers including members of the Claimant willingly participated in the exercise. On 4th February 2014, the Defendants displayed a list of workers with discrepancies in their data to enable them rectify it and not as a means of disengaging them from service. The exercise has been concluded and no staff was disengaged. The Defendants raised one issue for determination to wit: whether the Claimant has been able to prove before this Honourable Court that the Defendants have plans to suspend, terminate, dismiss and remove the names of any of the Claimant’s member or members in the Edo State civil service from the monthly pay roll of the Defendants on the grounds of either non production of their First School Leaving certificate and Kindergarten certificate or that same was obtained before Claimant’s members attained the age of 10? Learned Counsel for the Defendants argued that the Claimant has failed to prove that about 45% of its members in the employment of the Defendants have been penciled down for suspension, termination and or dismissal by removing their names from the pay-roll because of non-production of their Primary Six Leaving Certificate or Kindergarten certificate and referred to sections 131 and 132 of the Evidence Act 2011. It was also argued that there is nowhere in exhibit B and the attachment that the workers listed there are penciled down for retirement, dismissal or suspension. It was submitted that oral evidence cannot vary the content of a document. Learned Counsel contended that the Claimant’s members who have firsthand knowledge of the complaint were not called as witnesses and that the Claimant’s witness is neither a member of the Claimant or employee of the Defendants and accordingly his evidence is hearsay and referred to Omisore & Anor. v. Aregbesola & Anor. [2015] LRCN 246. It was submitted that the reliefs being declaratory in nature, the Claimant must succeed on the strength of its case and not on the weakness of the defence and referred to Wike Nyesom v. Dakuku Peterside & Ors. [2016] E.J.S.C. 255. Learned Counsel submitted that the entire case is based on apprehension and speculation without facts to prove it and that the Court acts on facts not mere speculations and referred to Omisore & Anor. v. Aregbesola & Anor. [supra]. Finally, it was submitted that exhibit B is a public document and having not been certified ought to be expunged from the records. The Claimant raised three issues for determination. Issue one is whether the Claimant has not discharged the burden of proof placed on him [sic] by law to entitle him [sic] to judgment? Issue two is whether the Defendants were right in issuing directive for Claimant’s members to present themselves for a screening exercise? Issue three is whether if it has discharged the burden of proof and is entitled to judgment, the Court will not grant the reliefs sought by the Claimant? Learned Counsel argued the issues together and explained that the standard of proof is on a preponderance of evidence and referred to section 134 of the Evidence Act and contended that in deciding whether the burden has been discharged regard must be had to the presumption that may arise from the pleadings and evidence before the Court and referred to sections 131-134 of the Evidence Act. It was argued that on the principle of law established in Lewis & Peat v. Akhimien [1976] 6 SC 159, facts not admitted or stated not to be admitted are all deemed admitted. He explained that the Defendants in paragraph 2 of the statement of defence admitted paragraphs 1, 2, 3, 4, 5, 6, 7 and 11 of the statement of claim and urged the Court to infer other facts from which to assess the denial of other facts. It was further argued that if the Defendants cannot satisfy the Court by cogent and credible evidence of the facts purportedly denied, then the Claimant’s case stands established and the burden of proof is discharged. It was contended that from the facts the Claimant’s members in Edo State Civil Service are entitled to work, make a career and rise to the top until retirement subject only to good health, good conduct and satisfactory performance. Referring to exhibit A he urged the court to hold that the directive to the Claimant’s members is oppressive and unlawful. In response to the Defendants’ submission in paragraph 4.6 of their written address that exhibit B being a public document must be certified, learned Counsel submitted that the document was tendered without objection and that exhibit B falls within the category of documents that the Court is required to take judicial notice of pursuant to section 74 of the Evidence Act. Finally, he submitted that “the Court is cloaked with the power to make the declarations sought.”

In my view, the issues for determination raised by the Claimant can be subsumed under its issue one which is similar to the Defendants’ lone issue. Consequently, I will adopt the Claimant’s issue one with a slight modification, to wit: whether the Claimant has proved his case on a balance of probabilities to entitle it to judgment? The law is trite that whoever desires the Court to give judgment as to any legal right dependent on the existence of facts which he asserts has the burden to prove that those facts exist. See section 131[1] of the Evidence Act 2011. It has been settled in a long line of cases that a Claimant seeking a declaratory relief must satisfy the Court that it is entitled to the exercise of the Court’s discretion in its favour by adducing concrete, cogent and positive evidence in proof of its claim. It must rely on the strength of its case and not on the absence or weakness of defence or upon admission in the pleadings, except where the defence supports the case of the Claimant. See Vincent I. Bello v. Magnus A. Eweka [1981] 1 SC 64 at 71, Zenith Bank Plc & Anor. v. Chief Dennis Ekereuwem & Anor. [2011] LPELR-5121[CA] at pages 19-20, Oba Adeyeye Oladimeji & Ors. v. Chief Noah A. Ajayi [2012] LPELR-20408[CA] at page 13 and Prince Nnamdi E. Ubani v. Chief Innocent Okafor [2013] LPELR-21261[CA] at pages 20-21. Thus, to succeed the Claimant must put forward concrete, cogent and credible evidence in support of the reliefs sought.

Before I continue, I would like to comment on two issues raised by the Defendants in their written address. First is in paragraph 4.6 of the written address to the effect that exhibit B being a public document only a certified true copy thereof is admissible as secondary evidence. The Claimant’s response shows a misapprehension of the law. Exhibit B does not fall within the category of documents that this Court is required to take judicial notice of under section 122[2] of the Evidence Act 2011. Section 102[a][ii] and [iii] of the Evidence Act 2011 define public documents. It provides, inter alia, that “the following documents are public documents –

[a] documents forming the official acts or records of the official acts of –

[ii] official bodies and tribunals, or

[iii] public officers, legislative, judicial and executive, whether in Nigeria or elsewhere”.

Thus, public documents are documents made by public officers in their official capacities. See Modern Nigerian Law of Evidence by Fidelis Nwadialo, 2nd Edition at page 307. The prevailing judicial stance is that only certified true copies of public documents are admissible as secondary evidence based on the interpretation of Section 90[1][c] of the Evidence Act, 2011, which provides that “The secondary evidence admissible in respect of original document referred to in the several paragraphs of section 89 is as follows: in paragraph [e] or [f] a certified copy of the document, but no other secondary evidence is admissible.” See the cases of Abolade Agboola Alade v. Salawu Jagun Olukade [1976] 1 SC 83 at 86, The Hon. Justice E. O. Araka v. The Hon. Justice Don Egbue [2003] 7 SC 75 at 82, Alhaji Sabiriyu Shittu & 3Ors. v. Otunba Oyewole Fashawe [2005] 14 NWLR [pt.946] 671 at 690-691, Diokpa Francis Onochie & 2Ors. v. Ferguson Odogwu & 7Ors. [2006] 6 NWLR [pt.975] 65 at 96, Mr. Moronfolu Adenowo Ogundehin v. Captain Adeboye Ade Olubowale & Anor. [2016] LPELR-41125[CA] pages 5-6 and Isa Kassim v. The State [2018] 5 WRN 34 at 57-58. In The Hon. Justice E. O. Araka v. The Hon. Justice Don Egbue [supra], Niki Tobi, J.S.C. [of blessed memory] held:

“It is clear from the provision of Section 97[2][c] that the only acceptable secondary evidence of a public document is a certified copy of the document. The subsection has put the position precisely, concisely and beyond speculation or conjecture by the words “but no other kind of secondary evidence is admissible”. This provision is clearly in contradistinction to the provision of section 97[2][a] of the Act which admits any secondary evidence of the contents of the document. In my humble view, section 97[2][a] anticipates private documents within the very vague meaning of section 110 of the Act. In other words, while section 97[2][c] provides for public documents, section 97[2][a] provides for private documents, which section 110 simply defines as all other documents which are not public documents.”

This decision was reinforced in the case of Isa Kassim v. The State [supra] where Ogunbiyi, J.S.C., held:

“By the combined effect of sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011, documents [private or public] may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence, but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible.”

In Abolade Agboola Alade v. Salawu Jagun Olukade [supra] at 86, the Supreme Court drew a distinction between those cases where the evidence is not admissible in law and where the evidence is admissible under certain conditions. In the former case, the evidence cannot be acted upon even if parties admitted it by consent. In the latter class of cases, if the evidence was admitted without objection or by consent of parties, then the Court can act on it. Exhibit B falls within the first class of cases and the Court cannot act on it even though it was tendered without objection. Consequently, exhibit B, although tendered without objection, must be discountenanced.

The second issue relates to the evidence of the Claimant’s witness, Mr. Anthony Masha. It was argued that his evidence is hearsay evidence on the ground that he is not a member of the Claimant and not resident or working in Edo State. The Claimant did not respond to this submission but paragraph 1 of CW1’s statement on oath states:

“That I am a member of the Claimants Association attached to headquarters in the position of Deputy General Secretary assigned to give evidence in this matter on behalf of the Claimants.”

Earlier, he had stated that he is a ‘civil servant’. Curiously, in answer to a question under cross examination he said he is an employee of the Claimant. He was not re-examined on this point. If he is an employee of the Claimant, then he could be a member of the Claimant since to become a member of the Claimant the person must be employed by a state in the Federation or the Federal Government. Be that as it may, he is not an employee of the 1st and 3rd Defendants and the evidence he gave is based on information supplied by Claimant’s members in Edo State. In Senator Iyiola Omisore & Anor. v. Ogbeni Rauf Adesoji Aregbesola & Ors. [2015] LPELR-24803 [SC] at pages 156-157, per Ogbunbiyi, J.S.C., held:

“In other words, and like P.W.1, the witnesses also admitted under cross-examination that they did not visit many of the polling units in respect of which they gave evidence. Therefore, it is not out of place as rightly held by the trial Court and affirmed by the Lower Court that such testimonies were characterized as incompetent, unreliable and not credible…. A witness who has the firsthand knowledge of that which he testifies to will be in the frontline burner and to the contrary, any evidence which is not within a witnesses’ [sic] personal knowledge, will not be accredited as competent.”

Let me say here that it is not in all cases where evidence by persons who have no personal knowledge of the facts is hearsay. The Court of Appeal in Prince Hez Okonkwo v. Peoples Democratic Party & 5Ors. [2013] LPELR-22150[CA] at page 22, per Bada, J.C.A., had this to say:

“…it is my view that evidence given by a witness concerning a statement made to him by a person who is not himself called as a witness may or may not be hearsay. It would be hearsay if the witness reporting it intends thereby to establish that such statement is true. But it will not be hearsay and admissible if the witness proposes not to establish the truth but to show merely that the statement was made.”

See also Brawal Shipping Nigeria Ltd. Ometraco International Ltd. [2011] LPELR-9258[CA] at pages 23-25. A review of CW1’s evidence in paragraphs 8, 9, 10, 11, 12, 13, 14, 15 and 16 of his statement on oath shows that it is hearsay evidence. Those facts are not within his knowledge and as far as those facts are intended to establish that the Defendants planned to disengage the Claimant’s members in Edo State, the paragraphs constitute hearsay evidence and consequently inadmissible. The result of this is that there is no evidence in proof of the Claimant’s case which therefore fails.

If I am wrong, I will proceed to consider the main issue before me, which is whether the Claimant has proved its case on a balance of probabilities to entitle it to judgment. The facts as agreed by the parties is that the 1st Defendant in December 2013 directed all civil servants including the Claimant’s members to take part in a screening exercise conducted by the 5th Defendant and they were required to produce their credentials including their First School Leaving certificates, birth certificates and record of service. At the end of the exercise, on 4th February 2014, the Defendants displayed a list of workers with discrepancies in their data. The Claimant presumed that the publication was intended to disengage the workers hence this suit. There is nothing before me to show that 45% of the workers on the list published by the Defendants are members of the Claimant and that the publication is preparatory to their disengagement from service. It is a settled principle of law that the burden to prove any particular fact lies on the person who wants the Court to believe it exists, see section 136[1] of the Evidence Act 2011. The mere ipsi dixit of CW1 will not suffice and the Court cannot speculate on the intention of the Defendants. See Adankwor Etumionu v. Attorney-General of Delta State [1994] LPELR-14361[CA] at page 19, where the Court of Appeal, per Ige, J.C.A., held:

“It is not part of the duty of a Judge to speculate upon what might have happened and substitute his own supposition for the evidence of witnesses on oath before him.”

In Pastor Samuel Karimu & Anor. v. Lagos State Government & Anor. [2011] LPELR-9059[CA] at pages 31-32 the Court of Appeal cautioned that it is too dangerous for the Court to speculate in the absence of evidence. In the circumstance, I find and hold that the Claimant has not proved that the Defendants’ publication on 4th February 2014 was targeted at its members and was a prelude to their disengagement from the service of the 1st Defendant.

This leads me to the claims of the Claimant. Relief one is for a declaration that the Defendants have no power and authority under the law to suspend, terminate, dismiss and or remove the name of any of the Claimant’s member or members in the Edo State Civil Service, from the monthly pay-roll of the Defendants on the ground of either non production of their First School Leaving Certificate [Primary School Leaving Certificate] and Kindergarten Certificate or that same was obtained by the member before he or she attained the age of ten [10] at the screening exercise carried out on or about December, 2014. I held above that a Claimant seeking a declaratory relief must produce concrete, cogent and credible evidence to justify the grant. A declaratory relief is one which seeks the pronouncement of the Court as to the status of a named matter, thing or situation. It is thus a discretionary relief and for the discretion of the Court to be exercised judicially and judiciously, it must be backed up by concrete evidence. That is to say, the Claimant must plead and lead evidence to establish that the status exists and that it enures in its favour. There is no evidence before me of the terms of the contract of service between the 1st and 3rd Defendants and the Claimant’s members in Edo State. I am not at liberty to speculate. In Senator Iyiola Omisore & Anor. v. Ogbeni Rauf Adesoji Aregbesola & Ors. [supra] at pages 102-103, it was held that a declaratory relief cannot be granted on admission by the Defendant where the Claimant fails to establish its entitlement to the declaration by its own evidence. At page 155 of the report, Ogunbiyi, J.S.C., held:

“In other words, documentary evidence, no matter its relevance, cannot on its own speak for itself without the aid of an explanation relating its existence. The validity and relevance of documents to admitted facts or evidence is when it is done in open Court and not a matter for Counsel’s address. It is not also the duty of a Court to speculate or work out either mathematically or scientifically a method of arriving at an answer on an issue which could only be elicited by credible and tested evidence at the trial.”

Copy of the broadcast evincing an intention to disengage or suspend the Claimant’s members was not presented in evidence. The Civil Service Rules and record of previous exercise affecting teachers were also not tendered in evidence. Exhibit B which allegedly contains names of 45% of the Claimant’s members has been rejected as inadmissible evidence. Notwithstanding this, the Claimant’s witness could not identify any of its members from the list. The documents were dumped on the Court and it is not the business of the Court to work out an answer for the Claimant. This relief is not one that can be granted just for the asking. See Simon Nwagu v. Elder Rufus Fadipe [2012] LPELR-7966[CA] at pages 16-17. In Nigerian Postal Service v. Ibrahim Musa [2013] LPELR-20780[CA] at page 35, Ige, J.C.A., had this to say:

“Now the law is now firmly and well established that in claims for declaratory reliefs the Plaintiff or the Claimant must plead sufficient facts to constitute a platform for the relief being sought and he must lead or proffer cogent and credible evidence to sustain or support the said reliefs. The reason for this is obvious. A Plaintiff or Claimant seeking for a declaratory relief must rely and succeed on the strength of his own case and not on the perceived weakness in the Defendant’s case.”

Accordingly, this relief fails and it is dismissed.

Relief two seeks a declaration that the Defendants cannot unilaterally import a term of contract that was not contemplated by both parties to the contract as at the time the contract of employment was entered into. For the Court to grant this claim, the Claimant must exhibit the respective contracts of its members incorporating their conditions of service for the Court to determine what the contract between the Claimant’s members and the Defendant is. A court does not make an order in vacuo or at large. See Rt. Hon. Prince Terhemen Tarzoor v. Ortom Samuel Ioraer & 2Ors. [2015] LPELR-25975[CA] at page 94. This relief fails and it is dismissed.

Relief three is for a declaration stopping the Defendants from further screening the Claimant’s members in Edo State on the basis of their First School Leaving Certificate [Primary School Leaving Certificate] and Kindergarten Certificate which were not requirement for the contract of employment between the Claimant’s members in Edo State and the Defendants. This claim is in the nature of an injunction. It is in evidence that the screening exercise has been concluded and names of workers with discrepancies in their data published. See paragraphs 12 and 13 of the Defendants’ witness’ statement on oath. It is settled law that an injunction cannot be granted to restrain a completed act. SeeNBM Bank Limited v. Oasis Group Limited [2004] LPELR-5938[CA] at page 11. This relief fails and it is dismissed.

Relief four is for an order of perpetual injunction restraining the Defendants jointly and severally by themselves, servants, agents or privies from unilaterally dismissing, terminating, suspending or in any other manner truncating the contract of employment of any of the Claimant’s members in Edo State before his or her official retirement date without complying with the extant Civil Service Rules of Edo State. It is trite law that a perpetual injunction will only be granted in favour of the Claimant if it satisfies the Court that it has a legal right to be protected by the Court. SeePa Tayo Ojo v. Chief Jerome Akinsanoye [2014] LPELR-22736[CA] 60 and Prince Rasak Yesufu Ogiefo v. HRH Jafaru Isesele 1 & Ors. [2014] LPELR-22333[CA] 59. In the latter case, Saulawa, J.C.A., held:

“A Court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his case. Perpetual injunction, because of its very nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”

There is nothing before me showing that the Claimant has a legal right to be protected by an order of injunction. This Court is not a charitable organization or Father Christmas which distributes largesse to all and sundry. This relief also fails and it is dismissed.