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National Industrial Court

Comrade Benson Ekasa & ORS -VS- Comrade Kiri Mohammed & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

25THDAY OF OCTOBER 2019      SUIT NO: NICN/ABJ/31/2016

BETWEEN:

  1. Comrade Benson Ekasa  Claimants
  2. Comrade MeneleZiadamNzidee

AND

  1. Comrade KiriMohammed

(The National President of

Nigeria Civil Service Union)                        Defendants

  1. The Nigeria Civil Service Union
  2. The Registrar of Trade Unions

REPRESENTATION

Stephen Apeh, Esq; for the Claimant, appearing withMichael AwoEjeh, Esq; and Victor Nzidee, Esq;

  1. A. Idakwo, Esq; for the 1stDefendant
  2. A. O. Nylander, SAN, for the 2ndDefendant, appearing with Chika Eze, Esq;

JUDGMENT

  1. The judgment in this suit was slated to be delivered on 1st day of July 2019. The judgment could not be delivered as scheduled due petition written by the Defendants against me alleging bias.
  2. After consideration of my response to the petition, the Honourable president of the Court in his own wisdom returned the case file to me to continue with hearing and determination of the suit to conclusion. Thus, why this judgment is being delivered beyond 90 days.
  3. This suit was commenced via Originating Summons dated 27/1/16 and filed on the same day. Following objection of the Defendants to the use of affidavit evidence in determining the dispute between the parties. The Court on 22/6/17 ordered this case to be tried on pleadings. On 10/7/17, the Claimants in compliance with order of this Court filed a general form of complaint, statement of facts, list of documents to be relied on at the trial, list of witnesses to be called at the trial, witness statement on oaths of the witnesses listed and photo copies of documents to be relied on at the trial. The Claimants vide this action are praying for the following reliefs;-
  4. A DECLARATION that the undue expulsion of the 1stClaimant from the 2ndDefendant (Union) via a letter dated 3rd February, 2016 and titled” EXPULSION FROM THE UNION” is unlawful, unconstitutional, null and void.
  5. A DECLARATION that it is unconstitutional and a gross violation of the 2ndDefendant’s constitution for any official of the 2ndDefendant who has duly retired from the Civil Service either at the State or Federal level to still hold any post in the2nd Defendant or be a member of the 2ndDefendant or participate in any electoral process in the 2ndDefendant.
  6. A DECLARATION that the membership of the 1stDefendant in the 2ndDefendant has ceased, the 1stDefendant having been long overdue to retire from Jigawa State Civil Service.
  7. A DECLARATION that the position of the president of the 2ndDefendant is vacant, the 1stDefendant having long overdue to retire from Jigawa State Civil Service.
  8. A DECLARATION thatthe continuous stay of the 1stDefendant as the President of the 2ndDefendant even after his due retirement from Jigawa state Civil Service is unconstitutional, illegal and invalid.
  9. AND ORDER OF INJUNCTION restraining any official of the 2ndDefendant who has duly retired from the Civil Service of Nigeria, either at the State or Federal level from acting or parading himself or herself as official of the 2ndDefendant forthwith.
  10. AND ORDER OF INJUNCTION restraining the 1stDefendant from acting or parading himself as the President of the 2ndDefendant forthwith.
  11. AN ORDER OF THIS HONOURABLE COURT compelling or mandating the most senior National Deputy President, the 2ndClaimant (Comrade MeneleZiadamNzidee) to forthwith, steer the leadership of the 2ndDefendant as the Acting National President of the 2ndDefendant, pending when election would be duly conducted in the 2ndDefendant to fill in the vacant position of the National President of the 2ndDefendant.
  12. AN ORDER OF THIS HONOURABLE COURTdirecting the 3rdDefendant not to recognize and register any amendment of the Constitution of the 2ndDefendant in order to allow any official of the 2ndDefendant to continue to act for the 2ndDefendant after his or her due retirement from the Civil Service of Nigeria whether State or Federal.
  13. AN ORDER OF THIS HONOURABLE COURTreinstating the 1stClaimant back to the 2ndDefendant.
  14. Any other suitable or equitable relief (s) that this Honourable Court may deem fit to make in the circumstances of this case.
  15. The 1st and 2ndDefendants filed their joint statement of defence on 31/07/2017 which was accompanied by a written statement on Oath, Defendants’ list of witnesses, Defendants’ list of documents, photocopies of document to be relied on at the trial. The 1st and 2ndDefendants filed their joint amended statement of defence on 17/11/2017. The Claimant filed a reply to the 1stand 2ndDefendants’ joint statement of defence on 17/08/2017.

CASE OF THE CLAIMANT

  1. The Claimants opened their case on 10/10/2017 wherein the 1stClaimant, Comrade Benson Ekasa, testified as CW1. In the course of giving his evidence in chief, 8 documents were sought to be tendered in evidence, 7 documents were admitted into evidence and marked as exhibits.CL1-10, CL2-1-5, CL3-1-4, CL4-1-10, CL5-1-6, CL6-1-2 and CL7- 1-2. However one document; a circular dated 23/11/15 was marked tendered and rejected. The 1stClaimant also adopted his witness statement on Oath as the Claimants testimony before the Court in proof of their case.
  2. From the statement of facts, witness statement on Oath and the oral testimony, CW1 testified that he was the unit secretary of the 2ndDefendant, Directorate of Technical Cooperation in Africa Unit before his undue suspension and the 2ndClaimant is the most senior National Deputy President in the 2ndDefendant.The 1stDefendant is the National President of the 2ndDefendant. The Claimantsalso averred that by the provision of Rule 4 of the constitution of the 1st Defendant only civil servants are eligible to be members of the 1stDefendant and not retired civil servants. The Claimants averred that based on the evidence before the court, it is clear that the 1stDefendant is long overdue to retire from Jigawa State civil service, however he is just lying to retain his position as president of the 2ndDefendant, a fact which the 2nd Defendant is aware of. The Claimantsalso averred that the 1stDefendant is unlawfully parading himself as the president of the 2ndDefendant in violation of their union’s constitution. The Claimants further testified that by a circular dated 18th January, 2016 both the 1st and 2ndDefendants have concluded plans to call a special delegates conference to ratify their resolutions which is to ensure the 1stDefendant continues to act as president of the 2ndDefendant, even after his due retirement from the civil service of Jigawa State. It is the testimony of the Claimants that the 1st Defendant and other members of the 2nd Defendant have neglected to conduct National Executive Council to prevent aggrieved members from crying out against the illegality of the 1st Defendant’s tenure. The Claimants also testified that they had objected to the illegality of the 1st Defendant’s tenure in an open letter titled SAVE THE UNION tendered in evidence and marked as exhibit CL5-1-6. And rather than act appropriately on the said letter, aquery was issued to the 1st Claimant and other concerned members. Furthermore, upon the institution of the present suit in this Honourable Court on the 27th day of January, 2016 the 1st Claimant was promptly unduly expelled from the union without fair hearing. The said letter of expulsion has been tendered in evidence and marked as exhibit CL71-2. The Claimants further averred that the 2ndClaimant as the most senior National Deputy President ought to be declared the Acting National President pending when election would be duly conducted in the union. The Claimantshave issued a notice on the 1stDefendant to produce (a) Gazette of first employment letter and (b) Gazette of confirmation of first employment to ascertain the actual date of employment of the 1stDefendant.The Claimants are praying the Court to grant their reliefs as contained in the statement of facts.
  3. In thereply by the Claimantsto the 1st and 2nd Defendants joint statement of defence, it was averred that it is misleading for the Defendants to state that the 2ndClaimant is not the most senior National Deputy President of the 2ndDefendant without naming who the most senior person in their opinion really is. Furthermore, the Claimants averred that the main reason of this suit is the interpretation and amendment of the 2005 constitution of the union which was and still is operational constitution of the union, however with the production of an amended constitution which was mischievouslyand hurriedly done during the subsistence of the present suit amounts to contempt of court. The Claimants in further response to the joint statement of defence averred that it is not true that the concerned members have been readopted into the union but rather the 1stDefendant is harassing and intimidating them with the police. The Claimantsalso in reply to the joint statement of defence averred that on the face of the offer of permanent & pensionable appointment exhibited by the 1stDefendant, it is glaring that the 1stDefendant has tempered with the date of the offer of permanent & pensionable appointment, which is why he cannot produce the original. Finally the Claimant issued to the 1stDefendant a notice to produce the original offer of permanent & pensionable appointment letter at the trial of this case.

CROSS EXAMINATION:

  1. Under cross-examination CW1 informed the Court that he was a seasoned unionist prior to filing the present suit. He stated that he was currently the secretary of the union in his unit and he was elected into the position. He further testified that the tenure is for four (4) years and his tenure has not elapsed, he stated that he was elected on May, 6th 2014. And that the tenure has elapsed but there is a provision for 90 days as a member. He testified that he was indeed bound by the provision of the union constitution. He stated that he was aware the constitution of the union allows for amendment and that the constitution is being amended hurriedly while this suit is in court. He further testified that he was aware that the constitution has made provision for discipline of erring members of the Union and it provided for suspension and expulsion in exhibit CL4-1-70. He stated that he was in agreement that persons could be expelled from Union for anti-union activities. He stated that the constitution has laid down rules, conditions under it to be followed for suspension or expulsion. He further testified that he was the author of EXHIBIT CL5-1-6, however he is not the only author, but, 2ndDefendant is not one of the authors of this document. He stated that indeed query was served on him to substantiate his claim against the president and his lawyer has reacted to the query.  CW1 further testified that he was never called to defend himself and that they were already in court and the reason he filed the suit is to challenge his expulsion.

THE CASE OF THE DEFENDANTS

  1. TheDefendants had failed to open their defence inspite of having numerous opportunitiesgiven to them to defend. Upon the application of the Claimant’s counsel; the court on 11/02/2019 foreclosed the Defendants from defending the suit.
  2. From the statement of defencethe case of the 1st and 2ndDefendantsis thatthe tenure of the 1stDefendant tenure as president of the 2ndDefendant will expire in October, 2017. And that the 2ndClaimantis not the most Senior Deputy National President of the 2ndDefendant. The 1st and 2ndDefendants further averred that the 1stDefendant is not due to retire until the year 2018 and therefore the claim by the Claimants that the 2ndDefendant was run by retirees was false. It was also the averment of the 1st and 2ndDefendants that the Public searchlight magazine referred to in the claim cannot determine when the 1stDefendantwas employed and when he is due to retire. The 1st and 2ndDefendants further averred that by virtue of the union’s constitution of 2005, the 2ndDefendant has the right to amend its constitution through the union’s organs, hence there is no mischief in the amendment carried out and the allegation of the Claimants that the amendment is to allow the 1stDefendant continue as president is false. The 1st and 2ndDefendants further averred that the National Executive Council (NEC) and National Administrative Council (NAC) meetings were held as far as practicable and that the 1st and 2ndDefendants have never interfered in the right of any member of the 2ndDefendant to bring any formal complaint. It is also the case of the 1st and 2ndDefendants that the open letter written by the 1stClaimant was intended to impugn the character of the 1st and 2ndDefendants and the letter deliberately painted the union in bad light. They further averred that upon reading the said open letter, the Acting General Secretary of the 2ndDefendant comrade F.C. Ifoh investigated the allegations therein and the 1stDefendant was found to still be in service and his employment was still subsisting. The 1st and 2ndDefendants further averred that the Claimants are under investigation for the forgery of the document dated 26th October, 2016 which was purportedly written by the General Secretary to Jigawa state Civil Service which elicited the purported response that the 1stDefendant has retired from the JigawaState Civil Service in January, 2016. The 1st and 2ndDefendants also averred that the General Secretary has denied authorship of the said letter and the letter denying authorship was pleaded in joint statement of defence. The 1st and 2ndDefendants averred that upon clarification the allegation of the Claimants were based on mischief all the 19 members that appended their signatures on the publication titled SAVE OUR UNION were queried and they all (except the 1stClaimant) attended the panel and apologized for their anti-union activities and were re-adopted into the union. However, the 1stClaimant’s refused to attend the panel’s invitation and waived his right to answer the allegation against him and therefore he was duly expelled. The 1st and 2ndDefendants averred that the claim of the claimants to the effect that the 2ndClaimant is the most senior deputy president is false as the 2ndDefendant’s constitution did not provide for hierarchy and there is no justification for making the 2ndClaimant president since there is no vacancy in the position of the president. The 1stDefendant averred that he is not due to retire until 2018 and that his retirement is an issue that only the Jigawa State Civil Service can determine.The 1st and 2ndDefendants also averred that the Claimants’ case lacks merit and should be dismissed with cost.
  3. On 11/02/2019 this suit came up before the court for the Defendants to open their defence. The Defendants and their counsel were not in court for the defence and no reasons were given for their absence. Consequently, the Defendants were foreclosed and the Claimants were ordered by the court to file their final written address within 21 days, in line with Order 38 Rule 2(4) of the Rules of this Court and serve same on the Defendants.

CLAIMANT’S SUBMISSON

  1. The Claimant’s final written address was dated and filed on 27/02/2019. The Claimant’s counsel Stephen Apeh, Esq, adopted his written address on 03/04/2019 as his argument in the suit. Counsel urged the Court to grant all the reliefs claimed. In the final written address, a sole issue was formulated for determination; to wit:

‘’Whether from the totality of the evidence adduced before this Honourable Court, the Claimants have proved their case to entitle them to the reliefs sought in their complaint.’’

  1. In arguing the sole issue;Counsel contended that the Claimants have indeed proved their case to entitle them to the reliefs sought. Counsel contended that from page 89 of the Kano State Government gazette published in 11th day of September, 1986, the 1stDefendant ought not to be in service and as such cannot act as president to the extent of conducting elections. Counsel argued that by the provisions of the Public Service Rule, 2008, the 1stDefendant ought to have retired from the civil service and that it is not the contemplation of the Rules that a retired public servant should be a member of the union.
  2. Counsel further argued that the Claimants’ evidence in this suit is uncontroverted and unchallenged and are therefore deemed to be true and duly admissible. Counsel relied on the case of MR. JOHN OKON V PASCAL ADIGWE & OTHERS (2011), 12 NWLR (PART 1270) 350 AT 374 and UBA PLC V JASE MOTORS (NIG) LTD & ANOR (1997) 7 NWLR (PT. 513) 387 AT 402-403. Where the court held that “it is trite law that where a party who has opportunity to challenge a piece of evidence fails to do so, a trial court faced with such situation can hold such unchallenged evidence to be established before him.”
  3. It is the contention of counsel that the Defendants were actively involved in the entire suit for almost three years to the extent of buying time, and when they decided there was no more room to buy time abandoned the suit even when they were aware of the hearing date, which led to the foreclosure of their defence.
  4. Counsel while relying on OMOREGBE V LAWANI (1980) 3 & 4 SC 108 submitted that since the Defendants failed to challenge their evidence by adducing their own evidence, they are entitled to judgment in their favour.Counsel urged the Court to rely on the material evidence before the court and all authorities cited and grant the entireClaimants’ reliefs sought.

COURT’S DECISION

  1. I have carefully and painstakingly considered the originating court processes commencing this suit as well as all the other processes filed before the court. I have equally read the final written address of counsel for the Claimants and listened to his oral submission in adumbration.
  2. It is to be noted at the onset that the Defendants were given ample opportunity to defend this suit but failed and neglected to do so. This resulted in foreclosure of the Defendants from defending. This means that the Defendants have not given evidence in proof of their pleadings,
  3. It is necessary to point out that the law has recognised the distinction between evidence and pleading. Pleadings contain averments which have to be provedfor there to be accepted as facts. Evidence consists of facts by meansof which the averments are proved. Until these averments are proved by evidence, they remain mere averments and as such cannot be properly used by the court in its adjudication. Evidence is what the court uses in resolving the issues of facts arising from a case and it is almost invariably in the form of oral testimony of witnesses or their statement on oaths before the court and documents tendered by them also in court. A pleading of averment in proof of which no evidence is offered virtually serves no useful purposes in a case. See FCDA V NOIBI (1990) 3 NWLR 270, INSURANCE BROKERS V ATLANTIC TEXTILES (1996) 9-110 SNJ 171, HOUSING CORPORATION V EMEKWUE (1996) 1 SCNJ 98. Mere averments without proof of the facts pleaded in either the statement of facts or statement of defence is no proof of the facts, unless they are admitted. See ADEGBITE V OGUNTOULA (1990) 4 NWLR 579, IDESOH V ONDIA (1997) 2 SCNJ 175.
  4. Generally, where a party to an action fails to or does not lead evidence in support of the averments in his pleadings, the averments would be taken as having been abandoned. Where a Defendant does not give evidence in support of his pleadings, the averments therein are taken as having been abandoned, for they stand as no more than mere averments which have not been supported by evidence. FCDA V NOIBI (supra), JUKUTU V FELLAH 14 WACA 629, ABUSOMWEN V MERCANTILE BANK NO.2 (1987) 3 NWLR (Pt.60) 196. Thus, why when a fact or facts are pleading and no evidence is led to support them, no onus is cast on the other party to disprove such fact or facts not established. See EDOSOMWEN V OGBEYEFUN (1996) 4 SCNJ 21, KATE ENTERPRISE LTD V DAEWOO NIG. LTD (1985)3 NWLR (Pt.5) 116. Likewise, when a party fails to call evidence in support of his own averment which is denied by the adverse party in the adverse party’s pleading, the averment is deemed to have been abandoned, notwithstanding evidence supporting it produced by the adverse party. See YUSUF V OYETUNDE (1998) 10 SCNJ 1.
  5. In situation where averments in pleadings were not supported or proved by evidence, issues are, however, joined in the pleadings, but not in the evidence. See BAMGBOYE V UNIVERSITY OF ILORIN (1999) 6 SCNJ 295, ADEOSUN V ADISA (1986) 5 NWLR 225.
  6. In any event, it has long been settled by a plethora of decided cases that pleadings cannot constitute evidence and a Defendant who does not give evidence in support of his pleadings or challenged the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff, notwithstanding the general traversed. FCDA V NOIBI (supra), HUTCHFUL V BINEY (1971) 1 ALL NLR 268, UDC V LADIPO (1971) 1 ALL NLR 102, IMEANA V ROBINSON (1979) 3-4 SC 1, EGBUNIKE V ACB (1995) 2 SCNJ 58.
  7. In the case at hand the 1st and 2ndDefendants have filed their statement of defence thereby joining issues with the Claimants, but, along the line in the course of the trial, they failed to adduce evidence in proof of their pleadings. This means that the 1st and 2ndDefendants have abandoned their case as put forward in the amended joint statement of defence. The simple reason for this is that pleadings have no mouth to speak in court, and so speak through witnesses. If witnesses do not narrate them in court, they remain moribund and dead at all times. See OLUYEDE V ACCESS BANK PLC (2015) 17 NWLR (PT.1489) 596, ALAO V AKANO (2005) 11 NWLR (PT.935) 160; AKINFOSILE V IJOSE (1960) SCNLR 447, IMANA V ROBINSON (1979) 3-4 SC 1; AREGBESOLA V OYINLOLA (2011) 9 NWLR (PT.1253) 458; SALISO AMUSAN (2011)  18 WRN 135
  8. With the finding that the Defendants have abandoned their statement of defence due to lack of evidence adduced in proof, the consideration of the claims before the court will be based on the evidence adduced by the Claimants. Never the less, the mere fact that the 1st and 2ndDefendants have not produced evidence in proof of their defence does not translate to judgment in favour of the Claimants. The Claimants must adduce cogent and credible evidence is support of their claim in order to succeed. See OLOYEDE V ACCESS BANK PLC (Supra). This is more so, considering the fact that most of the reliefs are declaratory in nature. The fact that it appears to be admitted does not relieve the party praying for declaration from the requirement of proof with compelling evidence. The Claimants have a duty to prove their reliefs by credible evidence.
  9. It should always be remembered that in civil cases of which the instant case is a specie, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which ought reasonably to satisfy the Judge that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and successively, until all the issues in the pleadings have been dealt with. Hence, the burden of first proving a fact is usually on the party who brought the action, though not invariably so. There are times when the burden is on the defendant, depending on the state of the pleadings. See sections 131-134 of the Evidence Act 2011.
  10. As pointed out earlier, it is trite law that the state of the pleadings materially determines the party who has the burden of proof. This means the burden of proof in civil cases is not static but it shifts from time to time depending on the pleadings of the parties. In civil cases, the standard of proof is on the preponderance of evidence. This means claimant need not call every available piece of evidence or witness to prove its/his case. It is enough if sufficient credible evidence is adduced to discharge the burden of proof. Preponderance of evidence simply means one side’s position outweighing the other side when put on the imaginary scale of justice which must be evenly held by the Judge. See the cases of: (1) DIBIAMAKA V OSAKWE (1989) 3NWLR (Pt.107) p.101 at p.113; (2) JIAZ V BAMGBOSE (1999) 7 NWLR (Pt.610) 10NWLR (Pt.1202) p.412; (4) ONWUKA V OMOGUI (1992) 3SCNJ p.98; (5) AKINKUGBE V E. H. (Nig.) Ltd. (2008) 12NWLR (Pt.1098) p.375; (6) ALIUCHA V ELECHI (2012) LPELR-7823(SC) and (7) AYORINDE V SOGUNRO (2012) LPELR 7808(SC) .
  11. It is the law that unchallenged evidence is deemed admitted and evidence admitted need no further proof. A party in a suit may take advantage of the weakness of the defendant’s case as much as it supports his own case, in proof of same. See ONONGWU V STATE (1995) 6 NWLR (Pt.401) 276, ODUNSI V BAMGBALA (1995) 1 NWLR (Pt. 374) 641.  This position of the law however admits some exceptions. One of the exceptions to the general rule is that Courts do not grant declaratory reliefs as a matter of course in default of defence or admission of the adverse party without considering the evidence and being satisfied with same. The burden of proof on the claimant establishing his entitlement to the declaratory reliefs being sought is not removed by the admission or non-defence of the defendant. In other words, the burden is on the party seeking a declaratory relief to establish his claim by satisfactory evidence. See DUMEZ NIG. LTD V NWAKHOBA (2008) 18 NWLR (Pt.1119) Pg. 361, WALLERSTEINER V MOIR (1974) 3 All ER 217, CHUKWUMAH V SHELL PETROLEUM (1993) 4 NWLR (Pt.289) 512.
  12. Let me now consider whether the Claimants were able to prove their claims on a comfortable balance of probability.
  13. Relief 1 and 10 are for declaration that the undue expulsion of the 1stDefendant from the 2ndDefendant (union) via a letter dated 3rd February 2016 and titled ‘’EXPULSION FROM THE UNION ‘’ is unlawful, unconstitutional, null and void. And an order of this court restating (sic) the 1stClaimant back to the 2ndDefendant. The evidence before the court in proof of reliefs 1 and 10 is that the 1stClaimant is amongst disgruntled members of the 2ndDefendant that were disenchanted with the way and manner the 1stDefendant is piloting the affairs of the 2ndDefendant. Upon submitting exhibit CL5, to the General Secretary of the 2ndDefendant, the 1stClaimant was queried as far exhibit CL61-2, for submitting exhibit CL5, to the General Secretary of the 2ndDefendant complaining of infraction of the Constitution of the 2ndDefendant by the 1stDefendant. The Claimant instituted this action on 27/1/16. While this suit was pending the 1st and 2nd Defendants vide exhibit CL71-2, expelled the 1stClaimantfrom the 2ndDefendant without giving him fair hearing as required by the Constitution of the 2ndDefendant. The Defendants in their pleading stated that the 1stClaimant was expelled based on anti-union activities and refusal to respond to exhibit CL61-2. Curiously exhibit CL71-2, is clear and unambiguous as to why 1stClaimant was expelled. It is because of institution of legal action against the 1stDefendant, thus, why 1st Claimant was expelled from the 2nd Defendant. It is trite best evidence is documentary evidence and exhibit CL71-2, unequivocally stated that the reason for expulsion of the 1st Claimant from 2nd Defendant is institution of this suit. Therefore, it is clear to me from the evidence before the court that the 1stClaimant was expelled simply because he had instituted this action against the 1stDefendant. This is discernable from the content of exhibit CL71-2, which speaks for itself. Exhibit CL71-2 being documentary evidence cannot be varied by oral testimony. The expulsion 1st Claimant was on wrong premise, it is wrong and cannot be allowed to stand. If the 1st and 2ndDefendants felt that the 1stClaimant has done anything inimical to the interest of the party they should have counter claim against the 1stClaimant or allow the court to determine the issue first before taking any action. The action of the 1st and 2nd Defendants amount to putting the cart before the horse. The expulsion of 1stClaimant was wrongly done since it was done because of this suit. The expulsion of the 1stClaimant is hereby declared null and void and of no effect whatsoever. An order for his reinstatement without loss of his entitlement is hereby made.It will be wrong for anybody or person to expel a citizen from an association or union because of instituting court case to ventilate his grievance. In fact the 1st Claimant deserves commendation for not taking law into his hands.
  14. In view of the foregoing, I have no choice than to annul the expulsion of the 1stClaimant from the 2ndDefendant as per exhibit CL71-2. Therefore, exhibit CL71-2, is hereby declared null, void and of no effect whatsoever. An order is hereby made reinstating the 1stClaimant back to the 2ndDefendant with immediate effect.
  15. On reliefs 3, 4, 5, and 7, Claimants are seeking for declaration that the membership of the 1stDefendant in the 2ndDefendant has ceased, the 1stDefendant having been long overdue to retire from Jigawa State Civil Service, the position of the president of the 2ndDefendant is vacant, the continuous stay of the 1stDefendant as the president of the 2ndDefendant even after his retirement from Jigawa State Civil Service is unconstitutional, illegal and invalid and an order of injunction restraining the 1stDefendant from acting or parading himself as the president of the 2ndDefendant forthwith. In attempt to establish these reliefs the Claimants placed heavy reliance on exhibit CL1-10, a Gazette of Kano State Government showing the advancement of the Claimant in the Public Service of Kano State Government. Exhibit CL1-10, is very clear and unambiguous it says what it says. It is a clear evidence of the 1stClaimant’s advancement in the Civil Service of Kano State, which was with effect from 1/8/83. The Claimants have in their pleadings paragraph 9 of the statement of facts, averred that the 1stDefendant, stated his date of employment into the Jigawa State Civil Service during an interview he duly granted in year 2012, which was published at page 3 of the August 2012 Edition of the Public Service Search Light Magazine, the official publication of the 2ndDefendant, and by implication due to retire in 2016. The Claimants stated that they will at the trial relied on the said publication of the 2ndDefendantto establish their averments on issue of 1stDefendant’s ceasing to be a Civil Servant in the Jigawa State Civil Service. The Claimants have not in the course of giving evidence in chief tendered the said Magazine which they claimed was publication of the 2ndDefendant. This means that the Claimants are no longer interested in establishing that the 1stDefendant has ceased to be a Civil Servant in the Jigawa State with effect from January 2016.
  16. The law is well settled that the burden of proof rests on the party, whether Claimant or Defendant, who substantially asserts the affirmative of the issue. On the burden of adducing evidence, the burden may shift depending on how the scale of evidence preponderates. Subject to the scale of evidence preponderating, the burden of proof rests squarely on theparty who would fail if no evidence at all or no more evidence, as the case may be, was given on either side. In otherwords, it again rests before evidence is taken by the court of trial on the party who asserts the affirmative of the issue. See AKANDE V ADISA (2012) 15 NWLR (PT.1324) 538, FAMUROTI V AGBEKE (1991) 5 NWLR (PT.189) 1, AMUDA V AMODE (1990) 4 NWLR (PT.150) 356; ADEGODE V ADIBI (1992) 5 NWLR (Pt.242) 410; OLAIYA V OLAIYA (2002) 12 NWLR (PT.782) 652, OGBUNANYINYA V OKUDO (NO.2) (1990) 4 NWLR (PT.146), 155.
  17. In any event, a Claimant should rely on the strength of his case rather than on the weakness of the Defendants case. All the law requires from the Claimant is to discharge the burden placed on him by the law. The rule changes if the Claimant finds in the evidence of the defence facts which strengthened his own case. See AKANDE V ADISA (Supra), AYORINDE V SOGUNRO (2012) 11 NWLR (PT.1312) 460. A suit brought in a civil matter like the case at hand is determined on preponderance of evidence and balance of probability. He who asserts must prove in order to succeed in his claim. See ISEOGBEKUN V ADELAKUN (2013) 2 NWLR, IMANA V ROBINSON (Supra), ELIAS V OMO BARE (1982) 5 SC 25, WOLUCHEM V GUDI (1981) 5 SC 291. See also sections 131-134 of the Evidence Act 2011.
  18. Having at the back of the mind the evidential burden, can the Claimants in this case be said to have discharged the burden of proving that the 2ndDefendant is currently been governed and managed by persons who are retired from the civil service to the detriment of those of them in service and that the 1stDefendant in this case is long overdue to retire from Jigawa State but lying about his years of retirement to justify his stay as the president of the 2ndDefendant. The Claimants have also averred in their pleading that it is a known fact in the 2ndDefendant that the 1stDefendant is long overdue to retire from Jigawa State Service and that the 1stClaimant has the habit of manipulating the date of his employment in order to justify his undue stay in service longer than period required by law for his own selfish purpose. Regrettably, the Claimants have not adduced by way of evidence the purported facts that are well known in the 2ndDefendant that the 1stDefendant is long overdue to retire. It is as well not in evidence the habit of manipulation of date of retirement by the 1stDefendant to justify his undue stay in service longer than the period required by law for his own selfishness. The much touted publication of interview granted by the 1st Defendant that revealed his year of joining service was never tendered in evidence before the Court, even though the Claimants pleaded that they would rely on the said publication at the trial.
  19. Contrary to the pleading and submission of counsel for the Claimant, exhibit CL1-10, which is official Gazette of Kano State Government, did not established the date of retirement of the 1stDefendant, all that is established by the said Gazette is advancement of the 1stDefendant with effect from 1/8/83. For a date of retirement to be established the Claimants ought to have tendered the 1stDefendant’s letter of first appointment, the condition of service which governed the employment of the 1stDefendant, it is from these documents that the actual date of employment and retirement from service can be determined.
  20. It appears the Claimants seems to be relying on paragraph 12 of their statement of facts that the 1stDefendant can never produce any Gazette confirming his appointment if ordered to be produced by this Honourable court as the real date of his appointment would be exposed. Unfortunately the Claimants have never moved this court to so order the 1stDefendant to produce the purported Gazette of confirmation of appointment. The Claimants have to prove this averment. It is to be noted Gazette is not the only document that confirmation of appointment can be established. Usually confirmation letter is issued before the confirmation is gazetted.
  21. The claimants seems to also be relying on the notice to produce Gazette of first employment letter and Gazetteof confirmation of first employment to ascertain the actual date of employment of the 1stDefendant. From the averment in paragraph 30 of the statement of facts it can be gleaned that the Claimants are not sure of when Defendant joined public service nor were they sure of the actual date on which the 1stDefendant is to retire from service. This means they are basing their averment on conjecture.
  22. The Claimants by putting the 1stDefendant on notice in paragraph 30 of their statement of facts are no more than just giving notice. It is trite law that a notice to produce can only entitle the Claimant to the use of secondary evidence. This presupposes that the party giving notice has a copy of the document in case the document was not produced he can make use of the copy to establish his case. This was not the case here the Claimants never produced any copy of the documents they want the 1stDefendant to produce. The law does not make it compulsory that once notice to produce is given it must be complied with. However, it must be observed that there are other ways of making a party to produce a document for the inspection of the Court. The Claimant in this case did not make use of the window of opportunity provided by the law to compel production of the said documents. The law is well settled that notice to produce will only entitled a party to tender and make use of secondary evidence of the document to which notice was given. See Onwuzuruike v. Edoziem & ors [2016] LPELR-26056(SC). In the circumstance the Claimants have to blame themselves for not bringing required evidence in proof of their claim.
  23. In PETER YINKORE & 73 ORS. V NECONDE ENERGY LIMITED &ANOR unreported Suit No. NICN/LA/611/2012, the judgment of which was delivered on 12th February 2019, His Lordship Hon. Justice B. B. Kanyip, (as he then was, now acting President), has this to say on the issue:-

‘’The law is that the notice to produce a document plus failure to produce the document merely enables secondary evidence of the document to be given, not that the burden of producing the document or proving its contents has been relieved of the litigant who filed the notice to produce. See UBN v. Alhaji Muhammad Idrisu [1999] 9 NWLR (Pt. 609) 105 at 118 – 119, Gbadamosi v. Kabo Travels [2000] 8 NWLR (Pt. 668) 243 at 273 and Simon Kajo v. BCC Plc [2013] LPELR-20788(CA). I am not unmindful of Lawal v. Magaji&ors [2009] LPELR-4427(CA) where Sankey, JCA held that a party who is in possession of a document but fails to produce it after notice to produce has been issued and served on him may be giving room for the invocation of the presumption; however, that the trend of judicial opinion is that there is a need to exercise caution in making presumptions unless such a presumption is irresistible and overwhelming. For section 167(d) of the Evidence Act 2011 to apply, the evidence sought to be presumed must be identifiable, clear and known to the Court; as the courts are cautioned to be careful in applying section 167(d). See Egwu v. Egwu [2007] 1 NWLR (Pt. 1014) 71 at 92 CA, Olufosoye v. Fakorede [1993] 1 NWLR (Pt. 272) 752, Lawal v. Magaji&ors [2009] LPELR-4427(CA), The People of Lagos State v. Umaru [2014] LPELR-22466(SC), Eboh v. Progressive Insurance Co. Ltd [1987] 2 QLRN 167, George v. The State [2009] 1 NWLR (Pt. 1122), Akintola v. Anyiam [1961] All NLR 508; Akinfe v. The State [1988] 7 SCNJ 236, Aremu v. Adetoro [2007] 16 NWLR (Pt. 29) 471, Awosike v. Sotunbo [1989] 3 NWLR (Part 29) 471 and Adederan v. Alao [2001] 18 NWLR [245] 408…

  1. As pointed at the debut of this judgment there is no concrete evidence adduced by the Claimants to establish that the 1stDefendant was long overdue to retire as at the time of filing this case nor was there evidence to show that the 1stDefendant has retired from the civil Service of Jigawa State as alleged by the Claimants in the circumstances reliefs 3, 4, 5 and 7 of the Claimants’ claim fails and are hereby refused. This is because apart from relief 7 the other reliefs are declaratory in nature and the law is well settled that the Defendant has no duty to assist the Claimant in proving his claim. See Mr Thaddeus Obidike&ors v. Minister of Lands, Housing and Urban Development &ors (supra) especially at paragraph 74; and Dmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, which relying on Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1, held that the Claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the Defendant.
  2. On relief 6 for injunction, the Claimants have not by the evidence adduced before the court establish retirement of any officer of the 2ndDefendant as at the date of institution of this action. In the circumstance relief 6 is not proved and is hereby refused.
  3. In relief 8 the Claimants are seeking for an order compelling or mandating the most senior National Deputy President, the 2ndClaimant (Comrade MeneleZiadamNzidee) to forthwith, steer the leadership of the 2ndDefendant as the acting National President of the 2ndDefendant. Apart from mere averment the Claimants have not referred this Court to any instrument that made the 2ndClaimant the most senior National Deputy President of the 2ndDefendant. In Rule 15 (b) of exhibit CL41-70, which is the Constitution of the 2ndDefendant, at a properly constituted National Administrative Council Meeting, it was clearly stated that there shall be two Deputy National President and they shall perform the duties of the president in his absence. After any of the two may have been elected to act in that capacity by a majority. Rule 10 (b)  (ii) also provides that the National President shall preside over the meeting of the National Administrative Council and in his absence, the National Administrative Council shall have power to appoint any of the Deputy Presidents to preside and in their absence any of the seven Vice president. Vide Rule 9 (d) (iv) of the Constitution, the National Executive Council shall have the power to fill vacant elective posts in the union.
  4. It is manifestly clear from the above provisions of the constitution of the 2ndDefendant (exhibit CL41-70) that no ranking of deputy president has been provided, appointment in acting capacity depend on either the National executive Council or the National Administrative Council of the 2ndDefendant.In the absence of evidence to establish that the 2ndClaimant is the Senior National Deputy President of the 2ndDefendant, the Claimants have not proved their averment and they are not entitled to the grant of relief 8.
  5. Relief 9 is for order directing the 3rdDefendant not to recognize and register any amendment of the Constitution of the 2ndDefendant in order to allow any official of the 2ndDefendant to continue to act for the 2ndDefendant after his or her due retirement from the Civil Service of Nigeria whether State or Federal. Vide exhibit CL5, the Claimants alleged that the National Executive Council resolved that all National Administrative Council members, all state /federal Administrative Council members should serve out their tenure whether retired or not. The Claimants vide paragraphs 15, 17, 18, 20, 21, 22, 23 and 24 of the statements of facts are alleging that the 1stDefendant had concluded arrangement to amend the constitution of the 2ndDefendant to give effect to NEC resolution allowing holders of elective offices at state and federal level to serve out their tenure whether retired or not. This means that members of the executive of the 2ndDefendant holding elective positions are to continue to hold offices even after their retirement from service until the end of their tenure.
  6. The membership of the 2ndDefendant is provided for under item 19 of part B of the Third Schedule to the Trade Unions Act to be made up of all workers of the federal and states Governments, but excluding enforcement employees in customs, immigration services, technical, stenographers, medical, nurses and midwives and recognized administrative cadres. By this provision of the law, retired employees are excluded from being members of the 2ndDefendant. This also means that any person that retired from service will ceased to be a valid member of the 2ndDefendant. I am satisfied that with exhibit CL5 and the paragraphs of the Claimants statement of facts, the Claimants have established that the 1stDefendant has through the instrumentality of NEC resolved to allow retirees or people due for retirement to continue to serve the 2ndDefendant till end of their tenure. This is a clear violation of Trade Unions Act and Constitution of the 2ndDefendant. This court will not allow or sanction such infraction. Therefore, the 3rdDefendant is hereby directed not to recognize and register any amendment that will allow any official of the 2ndDefendant that has retired from service to continue to hold any position in the 2ndDefendant.
  7. It should be remembered that in the course of hearing of this suit, I made an order nullifying the National Delegates Conference of the 2nd Defendant that was purportedly held on the 25th and 26th day of January 2018, in defiance of a pending ruling on interlocutory injunction seekingto restrain the Defendants from conducting such conference which was slated to be delivered on 6/2/18. This means that as at today, there are no legally elected executives of the 2nd Defendants in the eyes of the law; since the recognized executive members of the 2nd Defendants have had their tenures expired.
  8. In order not to allowed vacuum to exist in the running of the affairs of the 2nd Defendant due to lack of duly elected executives, it is within the power of this Court and in fact its duty and obligation to make consequential orders in the interest of justice and fairness. In the circumstance of this case, I hereby pursuant to section 19 of the National Industrial Court Act 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, make order forappointment of a Public Trustee to oversee the administration and finances of the 2nd Defendant for a period of three Months. The Public Trustee shall organize and convene National Delegates Conference of the 2nd Defendant to elect new executive members for purposes of running the affairs of the Union in line with its Constitution. At the conclusion of his assignment the Public Trustee to be appointed vide this order shall report back to the Court on the assignment entrusted to him.
  9. From the foregoing, as it is, and for the reasons given the Claimants have succeeded only in part and failed in some part of their claims. For proper appreciation and clarity, the orders of the Court are as follows:-
  10.         An order is hereby granted nullifying the expulsion of the 1st Claimant from the 2nd Defendant.
  11.         An order is hereby granted reinstating the 1st Claimant back to the membership of the 2nd Defendant with all the rights and privileges of a member.

                  III.        Reliefs 3, 4, 5, 7 and 8 are hereby refused and same dismissed for lack of proof.

  1.         An order is hereby made for the 3rd Defendant not to recognize and register any amendment of the Constitution of the 2nd Defendant in order to allow any amendment of the 2nd Defendant’s Constitution in order to allow any official of the 2nd Defendant to continue to act for the 2nd Defendant after his or her due retirement from the Civil Service of Nigeria, whether State or Federal.
  2. The case file is hereby returned to the honourable President of the Court for appointment of Public Trustee in line with Order 59 of the Rules of this Court.
  3. Judgment is entered accordingly. I make no order as to cost.

SanusiKado,

Judge.

In view of the foregoing and in order to restore sanity and put a stop to disrespect to the court I hereby nullify the delegate conference of the 2nd defendant which was held on 25th and 26th January 2018, when there is a valid order of court on 6/12/17 and there is a valid interlocutory motion for injunction pending for ruling which all the actors were fully aware of.

It is within the power of every Court and infact its duty and obligation to make consequential orders in the interest of justice and fairness; it is also irrelevant that, that particular order was not specifically asked for. See the case of Musa Iyaji V. Eyigebe SC 232/1984 reported in (1987) NWLR (Pt. 30) 523. The purpose of a consequential order is to give effect to the judgment. It must therefore flow from the circumstances of the decision of the Court. It must not be at a cross purpose or in anyway contradictory to the decision of the Court. See the case of Chikere v. Okegbe 2000 (7 SC NJ) 128 at 145. and unclaimed or un proven relief. It can only relate to matters adjudicated upon. Where it flowed from nothing decided, as it is in the case at hand, the subsequent orders made must be nullified. This was the view held by this Court in Dr.M.T.A. Liman V. Alhaji Mohammed (1999) 6 SCNJ 142. Also in Henry O. Awoniyi V. ARMOC 2002 6 SCNJ 141, it was further held that where a principal order sought was refused by a Court, an incidental order cannot be made. This is because a consequential order by its very nature is predicated on a principal order, without which it must crumble. In otherwords it ought to be cut off/or severed.

Another related authority is the decision in the case of Obayagbona V. Obazee (1972) (reprint) 5 SC 159 wherein this Court again per Sowemimo, JSC while considering an Order made subsequent to a judgment restated clearly at page 162 and said:-

“With respect it is quite wrong for the learned trial judge having declared the plaintiffs successful “as claimed” to make consequential orders which had the effect as in this case of varying his judgment and which in any case were not specifically asked for. The learned trial judge was functus officio, immediately after he gave his judgment.”

The simple reaction to questions 1 and 2 above is that the Claimant cannot prove the retirement of the Applicant in 2016, as alleged, now the Applicant herein has demonstrated to the Court by means of official document, duly certified and relevant to the instant issue, that he retired while this suit is pending, but after his tenure as president ended. It is submitted that the Current president Comrade Lawrence Amaechiis not retired and eligible to serve and defend his mandate in this suit.

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