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National Industrial Court

Etim Samuel -VS- Nigeria Army & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED: 12TH APRIL, 2019                                                            SUIT NO: NICN/ABJ/215/2015

 

BETWEEN

ETIM SAMUEL                   CLAIMANT

 

AND

  1. THE NIGERIAN ARMY
  2. CHIEF OF ARMY STAFF                                                 DEFENDANTS
  3. ATTORNEY GENERAL OF THE FEDERATION

 

REPRESENTATION

  1. E. ITA for the Claimant
  2. O. IYAJI for the 1stand 2ndDefendants (holding the brief of S. D. MOHAMMED)

No appearance for the 3rd Defendant.

 

JUDGEMENT

  1. The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 15th February, 2016, against the defendants for the following reliefs:

  1. A DECLARATION that the dismissal of the Claimant from the Nigerian Army was        illegal, null and void.

 

  1. A DECLARATION that the Claimant was not given fair hearing in the    determination of his employment considering the decision of the Magistrate Court in Charge No.CR/57107 between C.O.P . Vs. Etim Samuel delivered on the            15th day of June, 2007.

  1. AN ORDER of this Honourable Court re-instating him to his previous rank of a    Lance Corporal.

  1. AN ORDER of this Honourable Court re-instating him to the present rank as        enjoyed by his counterparts who joined the Nigerian Army the same year with             him.

  1. AN ORDER of this Honourable Court directing the Defendants, particularly 1st &          2nd Defendants to pay the Claimant alt his outstanding arrears of salaries from       18th day of February, 2007, up to date, as well as all his accrued allowances from        18th day of February, 2007, to date.

Claimant’s Case

  1. The Claimant was a Lance Corporal with the 1st Defendant, discharging his duty as standby duty at 4 Guards Battalion of the 1st defendant in Abuja, when he was called by one Captain B.C. Eze, who accused him of conniving with a civilian to steal things from the barracks. And that Captain Eze who was the accuser, also took part in the Orderly Room trial of the Claimant.

  1. The claimant averred that he was also dismissed from the Service of the Nigerian Army on the 27th March, 2007 and handed over to the civil police for investigation and prosecution. And that upon a proper investigation by the Civil Police, the Claimant was found not to be culpable upon which the Police communicated this to the Nigerian army who insisted the Claimant must be prosecuted.

  1. Claimant stated that he was arraigned at the Magistrate Court, Karu in case No: CR157107 upon which the Claimant was found not guilty and was discharged and acquitted on 15th June, 2007. And that by a letter dated 10th march, 2008 and addressed to the Chief of Army staff, the Magistrate Court wrote communicating the outcome of the case to the 1st Defendant and asked that all entitlements be offered the Claimant.

  1. The claimant averred that he made appeals for his re-instatement to no avail hence, he took out this action.

 

  1. 1ST AND 2ND DEFENDANTS’ JOINT STATEMENT OF DEFENCE filed on 16th October, 2017.

  1. The 1st and 2nd defendants in response to paragraphs 11-26 of the statement of claim stated as follows;

(i)                 That the claimant was alleged to be an informant that gave information to civilians outside the barracks to come and carry out house breaking and theft in the barrack.

(ii)               That upon receiving the above complaint against the claimant, the claimant was arrested and tried according to the force regulation and found guilty and was accordingly dismissed by the commanding officer.

(iii)             That claimant appeared before a disciplinary panel that was headed by the commanding officer whom the civilian and the claimant appeared before and the plaintiff could not defend the allegation.

  1. The 1st and 2nd defendants denying paragraphs 27, 28, and 29 of the statement of claim averred that the claimant appeared before a duly constituted orderly room panel and not a Kangaroo court as alleged and that the claimant was never taken to the commander’s house.

 

  1. WHEREOF the 1st and 2nd defendants shall contend at the trial that the suit should be struck out for being statute barred and also, that the 2nd defendant is not a juristic person or in the alternative dismiss the claim for lacking merit.

  1. The CLAIMANT’S REPLY TO 1st AND 2nd DEFENDANT’S STATEMENT OF DEFENCE was filed on 2nd Mach, 2017.

  1. The Claimant in response to paragraph 5 of the 1st and 2nd Defendants’ statement of Defence averred that the said allegation was verbal and all the proceedings were verbally done and there was no record of the proceedings as he was marched to the commanding officers house without either him or the commanding officer knowing the reason for which he was being brought before the commanding officer.

  1. Furthermore, that there was no trial presided over by the commanding officer as the commanding officer only ordered one Capt. B. C. Eze to hand the Claimant to the Military police hence his being detained for 16 days in a civil cell by the military police.

  1. The Claimant in proof of paragraphs 27, 28 and 29 of the Statement of facts averred that there was no duly constituted orderly room panel and that the charge sheet and other documents relied upon by the 1st and 2nd Defendants were documents brought in as an afterthought as the 1st and 2nd Defendants’ Defence at the Federal High Court did not contain such charge sheet or documents.

  1. Claimant admitting paragraph 7 of the 1st and 2nd Defendants’ Statement of Defence stated that the Civilian who was charged with him had confessed to the police at Asokoro that the Claimant was not involved in anyway in the theft.
  2. Whereof the Claimant claims that his suit is not statute barred and shall at the trial prove his case.
  3. At the trial, the claimant testified on his own behalf as CW; adopted his written statement on oath of 15th February 2016 and proceeded to tender 4 other documents which were marked C2 -C5. Exhibits C2 and C3 were admitted under protest. With the directive that the defendants raise their objection in the final address. The Defendants in turn called one Captain J. J. Suleman, of the defendant’s Legal Service, testified as DW, adopted his witness statement on oath of 16th October 2017 which was marked D1, and went on to tender 3 other exhibits which were marked Exhibits D2-D4. Thereafter, parties filed their respective written addresses. The defendant’s final written address is dated and filed on 8th May 2018, while the claimant’s is dated and filed on 24th October 2018. The Defendant’s reply on points of law was filed on 28th November 2018.

1ST and 2ND DEFENDANTS’ FINAL WRITTEN ADDRESS filed on 8th May, 2018.

ISSUES

 

  1. Whether the 2nd defendant is a juristic person.
  2. Whether the action was not statute barred in view of the provision of section 2 of the public officers protection act.
  3. Whether the claimant has proved his case on balance of probability.
  4. Whether exhibits C3 and C4 being uncertified public documents are admissible in evidence.

ON ISSUE 1

 

Whether the 2nd defendant is a juristic person.

 

  1. It is Counsel’s contention that the 2nd defendant — Chief of Army Staff is not a juristic person that can sue and be sued in that name as Section 8(1) (b) of the Armed Forces, Act that created it does not cloth it with legal personality. That it is a mere office created for administrative convenience, as the body clothed with legal personality by the Armed Forces Act, 2004 is the Nigerian Army Council. He urged the Court to strike out the suit or the name of the 2nd Defendant for being a non-juristic person.

 

ON ISSUE 2

 

Whether the action was not statute barred in view of the provision of section 2 of the public officers protection act.

 

  1. Learned Counsel tot eh Defendant submitted that the claimant’s claim is statute barred having regard to the provision of Section 2 of the Public Officer’s Protection Act Cap 379 Laws of the Federation 2004. And that in order to determine the period of limitation of an action in a suit, one has to look at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with when the writ of summons was filed. OMOTAYO VS NRC (1992)7 NWLR (PT. 254) PAGE 483 PARA A-B. Furthermore, that the cause of action having arisen in March, 2007 and the suit commenced in June 2008, it is therefore statute barred. JOHN EKEOGU VS ELIZABETH ALIRI (1991)3 SCNJ 45 © 51 PARA 20. Per Honourable Justice KAWU, JSC.

 

ON ISSUE 3

 

Whether the claimant has proved his case on balance of probability.

 

  1. The Defence Counsel posited that by Section 131 (1) and (2) of the Evidence Act 2011 CAP .E. 14 Laws of the Federation, the onus is on the claimant to prove that he was wrongfully dismissed from the service of the 1st and 2nd defendants. That to establish this, the claimant has to tender the terms of the contract of service. As a general rule, that the employer can hire and fire an employee at any time and need not give reason for termination. OSISANYA VS AFRIBANK NIG. PLC (2007)6 NWLR (PT. 1031).
  2. Defence Counsel submitted that there are three categories of contract of employment;

(i)                 Purely master and servant relationship.

(ii)               Servants who hold their office at the pleasure of the employer and

(iii)             Employment with statutory flavor.

  1. However, that the employment of the claimant does not fall in any of the above categories, as the claimant was a military officer subject to military rules. That Section 115 of the Armed Forces, Act permits summary dismissal like that which the claimant went through before the claimant was summarily dismissed.

ON ISSUE 4

 

Whether exhibits 03 and C4 being uncertified public documents are admissible in evidence.

 

  1. It is counsel’s contention that Exhibit C3, ruling of the court and Exhibit C4, the Letter from the Magistrate Court to the Chief of Army Staff, Garki, Abuja are both public documents as defined under Section 102 of the Evidence Act Cap E 14 Laws of the Federation of Nigeria. And that as public documents, they need to be certified as provided for in Section 90 (1) (c) of the Evidence Act Cap E 14 Laws of the Federation of Nigeria. That the said documents not having been certified are inadmissible in evidence and if admitted wrongly should be expunged, because as inadmissible evidence, the court cannot act on it. A.G. LEVENTIS PLC VS AKPU (2007) VOL 9 MJSC 134 @ 148 PARAS C; OLIKADE VS ALADE (1976)2 SC 183 @ 188- 189. The Defense Counsel submitted that a document is said to be certified only after it has been dated and subscribed by the public officer who has the custody of the document. That in subscribing to it, the public officer must state his name and official title and stamp same. STIRLING GEOTECHNICAL (NIG) LTD VS GALAMAS INTERNATIONAL LTD (2010) 4 NWLR (PT. 1184) 361 © 379 PARAS F-G.

 

THE CLAIMANT’S FINAL WRITTEN ADDRESS filed on 24th October, 2018.

ISSUES

  1. Whether by circumstances of this case and upon the principles of Natural Justice,   the claimant was granted fair hearing in the determination of his Employment      with the 1st Defendant.

  1. Whether from the circumstances of this case the trial of the Claimant by the 1st     Defendant’s officers followed the laid down procedure prescribed in Part XIV         section 122 of the Armed Forces Act.

  1. Whether from the facts and circumstance of this case the Claimant is entitled to     reliefs sought.

 

ON ISSUE 1

 

Whether by circumstances of this case and upon the principles of Natural Justice, the claimant was granted fair hearing in the determination of his Employment with the 1st Defendant.

 

  1. It is Claimant’s counsel’s submission that by the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the right to fair hearing is guaranteed. And that a breach of it in trial vitiates such proceedings, rendering same null and void. Also, that a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses. Obafemi v. Ayo (2009) All FWLR (Pt. 452) pg. 1111 @ 1157 paras F – H; Mohammed v. Kano Native Authority (1968),1 All NLR pg. 424; Kenon v. Tekan (2007) 14 NWLR (Pt. 732) pg. 12. He submitted that it is also a trite principle of law that Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has entrenched the common law concept of natural justice with it is twin pillars namely:

(1)               that a man shall not be condemned unheard or what is comely known as “audi alteram partem; and

(2)               that a man shall not be a judge in his own cause or Nemo Judex in causa sua’. Bill Construction Co. Ltd v. Imani & Sons Ltd (2006) ;11 – 12 SC pg. 90 @ 93 – 94; Garba v. University of Maiduguri (1986) 2 SC Pg. 90 @ 138 lines 10-20.

 

  1. Counsel argued that the facts stated in paragraphs 6 to 19 of the statement of facts were not challenged or controverted by the Defendants, therefore, that the Defendants having not controverted or challenged the facts therein, the facts are to be deemed correct as facts not controverted are deemed to be true and correct and admitted. Inegbedion v. Selo- Ojeme (2013) S3 (Pt2) NSCQR 59 at Pg. 86 – 89. Furthermore, that the Claimant in his evidence in-chief adopted his witness statement of oath wherein he led evidence to these facts, of which the Defendants had the opportunity to challenge this evidence but failed. He urged the Court to accept this evidence of the Claimant and act on them. G.S. Pascutto (Trading as coun- Est.) v. Adecentro Nig. Ltd (1997) 11 NWLR (Pt. 529) pg. 467 @ ratio 11 where the Supreme Court followed its decision in Oduleja v. Haddad (1973) 11 SC 35. It is counsel’s submission that the purport of Section 115 of the Armed Forces, Act was to confer powers on the Commanding Officer to punish every Officers and men in the Armed Forces and not to dismiss as the power of dismissal is the reserve of the Court Martial as prescribed in Section 118 of the Armed Forces, Act.

 

ON ISSUE 2

 

Whether from the circumstances of this case the trial of the Claimant by the 1st Defendant’s officers followed the laid down procedure prescribed in Part XIV section 122 of the Armed Forces Act.

 

  1. Claimant Counsel, citing the provisions of Part (xiv) Section 122 of the Armed Forces Act which provides that where a person subject to service law under the Act has been taken into custody, he shall not be kept for more than (8) eight days without the court martial for his trial, submitted that in the instant case, the Claimant in adopting his witness statement on Oath, testified to the fact that he was detained for 16 days in a Civil cell by the Military Police in their Guardroom at Mambila Barrack Asokoro, Abuja. And that this statement has not been specifically denied by the 1st and 2nd Defendants, rather, that they only made a general denial which is no denial. That it is the law that any matter not specifically denied or stated not to be admitted should be regarded as established. Lewis & Peat (N.R.I) Ltd. V. Akhimien (1976) 6 SC 159 at page 163 paras 10 -40; Debs v. Canico Ltd. (1986) 2 NWLR (Pt. 32) Pg. 844.

ON ISSUE 3

 

Whether from the facts and circumstance of this case the Claimant is entitled to reliefs sought.

 

  1. Learned Counsel to the Claimant, submitted that when there is a declaration that the dismissal of the Claimant is null and void there is nothing standing in the way of the Claimant from having his job back. Omidiora v. F. R.S.C (2008) ALL F.W.L.R (415) Pg. 1807 @ 182O, paras. F-B. Counsel posited that there is a distinction between wrongful and unlawful termination of employment. Whereas in the case of wrongful terminated or dismissal, it presupposes that there was a breach in the contract of employment which confers on the employee who is successful to damages for the breach. On the other hand, when the dismissal or termination of the employment is unlawful, it presupposes non-compliance with a statutory requirement in the determination of the employment with statutory flavor. In that case as in the instant case, that the Claimant is entitled to reinstatement to which he is entitled to all his benefits and entitlements including all promotions as the case may be. Maliki v. Michael Imodu Institute for Labour Studies (2009) ALL FWLR (Pt. 491) Pg. 979 @ 1016 – 1017 paras F – A.

 

  1. On the issue of Section 2 of the Public Offices Protection Act raised by 1st & 2nd Defendants in their final written address as their issue 2 for the determination of this court:

Counsel posited that it is a known principle of law that there must be an end to litigation, thus issues that have been litigated upon cannot be re-litigated in the same matter. Adewoyin v. The Executive Governor, Osun State & Ors. (2011) LPELR – 8814 (CA). That this theory of law is expressed in the well-known legal maxim, interest republicoe ut sit finis lititum, meaning “it is in the interest of the state that there must be limit to litigation”.

  1. That to allow a litigant under one guise or the other to reopen his case if he finds himself on the losing side, will be to permit the rules of practice to be stretched to a ridiculous extent that will lead to a muddle or vicious circle. OLADITI V. SUNGASS CO. LTD. (1994) 1 NWLR (PT 321) 433.

 

  1. 1ST AND 2ND DEFENDANTS’ REPLY TO CLAIMA\NT FINAL WRITTEN ADDRESS filed on 28th November, 2018.

RESPONSES TO THE THREE ISSUES FORMULATED BY THE CLAIMANT.

Whether by circumstance of this case and upon the princile of natural justice, the claimant was granted fair hearing in the determination of his employment with the 1st defendant.

 

  1. Counsel for the joint defendants, submitted that the claimant did not tender the terms of his employment to enable the court know whether the claimant was given fair hearing or not, as Section 115(1) of the Act permit summary trial which was obliged the claimant who appeared before the commanding officer. Furthermore, that the claimant has not shown in any when that Capt. B.C. Ezeh who is recorded as the person who reported the offence was a member of the panel. That there is no such evidence and that the panel that tried the claimant was headed by Lt. Col. M.D Onoyiveta. Exhibits Dl-D4).

 

Whether from the circumstance 0f this case the trial of the claimant by the 1st defendant officers followed the laid down procedure prescribed in part xiv (section 122) of the armed forces act.

 

  1. Learned Defence Counsel argued that the claimant has not established any procedure that was not complied with, as the law is that he who assert must prove. That the onus is on the claimant to prove that he was detained in a civil cell for 16 days instead of 8 days as alleged. Section 131 (1) (2) if the Evidence Act; MR. C.I.D. MADUABUM VS HON. BEN CHUKS NWOSU (2010) 13 NWLR (PT. 1212) 623 @ 630. Counsel also posited that a claimant should prove his case through credible, evidence and not rely on the weakness of the defendant’s case even where the defendant did not lead any evidence. That the refusal of a defendant to testify or prove his case does not alleviate the primary burden on the claimant to prove his case. ATUNWA VS LADENIKA (1998)7 NWLR (PT. 557) PAGE 221 @ 228 — 229.

 

Whether from the facts and circumstance of this case the claimant is entitled to the relief sought.

 

  1. Counsel for the defendants, contended that from the facts and circumstance of this case the claimant has failed to prove his case. That Exhibits C3 and C4 are public documents and by virtue of Section 102 and 104 of the Evidence Act, only Certified True Copies of Public Documents that are admissible in evidence. That Section 104 of the Evidence Act defined what is meant by Certified True Copy. He submitted that Exhibits C3 and C4 did not meet the said requirement of Section 87 of   the Evidence Act does not apply to public documents but to private document. And that the claimant’s counsel cannot use the provision of Section 89(a) of the Evidence Act to cure the defect on Exhibits C3 and C4 which are public documents.

  1. On 30th November 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

Court’s Decision

 

  1. I have carefully summarized the evidence of both sides, the arguments of opposing Counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. I am inclined to adopt the issues for determination formulated by the defendants. This way all the arears raised by the defendant shall be resolved in answer to all the issues raised in this Compliant.

  1. Before addressing these issues, I wish to address certain contentions raised during trial and final address. The Defendants have throughout this trial persistently raised the question as to the propriety of this suit with regards to the provisions of Section 2 A of the Public Officer Protection Act and the juristic personality of the 2nd Defendant. This court had in it Ruling of 20th June 2017 dealt with these very contentions referring parties to the fact that these issues had been resolved by the Federal High Court before the matter was transferred to this Court. The question as to whther or not the Federal High Court had the requisite jurisdiction to make its finding on these issues is not within the competence of this court, being a court of concurrent jurisdiction. For the Defendants to raise these issues after this court’s ruling, I find is bad advocacy and this court will not further address these issues to compound the said bad advocacy.

  1. The Claimants had asked the court to discountenance the Defendants reply on point of law as not satisfying the requirements of a reply on Point of Law. Now the law is well settled on the requirements or contents of a reply on point of law process BASINCO MOTORS LTD. V. WOERMANN-LINE & ANOR. [2009] LPELR – 756 [SC] PP. 41 – 42, PARAS. A – D:

“Authorities abound on the purport and function of an appellant’s reply brief of argument, and where it does not fall within the requirement of the rule, then the reply brief becomes otiose. The purpose and purport of a reply brief is to address fresh points raised in a respondent’s brief of argument, and not to introduce fresh points. …”

  1. The 1st – 3rd Defendants is merely required to pin-point the exact point of law been replied to. To reply on points of law, the points of law being replied to must be clearly identified by way of rephrasing and then the reply follows. The reply is to show that that point of law newly raised in the address of the other counsel is misconceived or not applicable to the case at hand or distinguishable or has been overridden by new or later authoritative statement of the law. Counsel instead just started readdressing the Court without showing to the Court what point of law it is that he was replying to. Right of reply on points of law, I must state emphatically, is not another avenue to join issues with the claimant or re-argue the Defendants’ case I have therefore most carefully combed through the so-called reply on points of law in juxtaposition with the Defendants’ Final Written Address and the Claimant’s Final Written Address and cannot find anything that resembles a reply on points of law. What I can see in the so-called reply on points of law is an attempt to supply new arguments in support of the earlier arguments canvassed in, and an attempt to re-beautify the defendants’ final written address and not a reply on any point of law newly raised in the claimant’s written address. I accordingly discountenance the so-called reply on points of law for being otiose.

 

Now to the merits of this case.

  1. With regard to the Defendants first issue ‘Whether the claimant has proved his case on balance of probability’. To the Defence the onus is on the Claimant to prove that he was wrongfully dismissed from the service of the 1st and 2nd defendants by tendering the terms of the contract of service. Arguing that as Defendant’s they can hire and fire an employee at any time and need not give reason for termination. OSISANYA VS AFRIBANK NIG. PLC (Supra)

  1. Submitting that there are three categories of contract of employment;

(i)                 Purely master and servant relationship.

(ii)               Servants who hold their office at the pleasure of the employer and

(iii)             Employment with statutory flavor.

  1. And that the Claimant’s employment does not fall into any of the above categories, as a military officer subject to military rules. To the defendants’ Section 115 of the Armed Forces, Act permits summary dismissal and the claimant was summarily dismissed.

  1. The Claimant on the other hand contended that by Part (xiv) Section 122 of the Armed Forces Act a person subject to service law who is \taken into custody, he shall not be kept for more than (8) eight days without the court martial but that in the instant case, the Claimant was detained for 16 days in a Civil cell by the Military Police in their Guardroom at Mambila Barrack Asokoro, Abuja. And that this statement was not effectively traversed by the 1st and 2nd Defendants, as their general denial no denial but an admission relying on Lewis & Peat (N.R.I) Ltd. V. Akhimien (supra).

  1. Now whereas, it is the position of the law that “when an employee complains that his employment has been wrongfully terminated, the employee has the onus to place before the Court the terms and conditions of the contract and also to prove the manner the said terms were breached by the employer. CHUKWUDINMA v. ACCESS BANK PLC (2015) 52 NLLR (PT. 176) 513 @ 519 NIC AFRIBANK (NIG.) PLC v. OSINSANYA (2000) 1 NWLR (PT. 642) 592.

  1. And the rules of this court in Order 3 rule 13 states that; –

  1. Where the Claimant is challenging the suspension, termination or dismissal of his or her appointment, the Complaint shall be accompanied by his or her letter of appointment, if any, of the Claimant together with a letter of confirmation of appointment, letter(s) of promotion where applicable, notice or letter of suspension, termination or dismissal of appointment and all other documents he or she wishes to rely upon at the trial of the suit. The aforesaid documents shall be exhibited along with the statement on oath as bundle of exhibits in support of his or her claim before the Court.” Which I find ties in with the legal requirements of CHUKWUDINMA v. ACCESS BANK PLC (Supra).

  1. But that is only one part of the situation, while I agree with the Defendants and find that the Claimant has not put before this court the requisite evidence on this score and as such relief 1 cannot be granted.

  1. In this case the Claimant testified that until his termination he was a Private Soldier (PTE) with the 1st Defendants with Army Identification Number of 2003 NA53/2638  paragraph 2 C1, (Averment 1 of the Statement Of Fact ) employed on 29th January 2993 paragraph 6 C1 and (Averment 5 of the Claimant’s statement of Fact). The Defendants in their statement of defence admitted paragraphs 1, 2, 4 ad 5 of the Claimants statement of facts. In law things admitted require no proof. See ODJEGBA & ORS v. ODJEGBA & ORS (2003) LPELR-7211(CA). Where it was held that “it is an elementary rule of pleading that what has been admitted needs no further proof. If a particular averment is admitted, there will no longer be an onus on him to prove what has been admitted by the opposite party. See section 75 of the Evidence Act, Cap 112 of the Laws of the Federation of Nigeria, 1990.”

  1. The Defendant argued that the claimant’s employment type does not fit into any of the categories established by the Supreme Court in LONGE V. FBN. PLC (2010) 6 NWLR (PT. 1189) 1 S.C. and that his employment is a military one governed by military law.

  1. This contention I find cannot stand in the light of legal pronouncements of the Supreme Court in UTOMUDO v. MILITARY GOVERNOR OF BENDEL STATE & ORS (2014) LPELR-22880(SC) that “In law words have their ordinary meaning if and only if no legal meaning has been attached to them. If any word or expression has been either statutorily or judicially defined, then, the legal meaning supersedes the ordinary meaning. When words have been legally or judicially defined, their ordinary meaning will surely give way to their meaning as legally or judicially defined. Thus, the expression “Public Officer” has been defined in Section 7(1) of the Public Officers (Special Provision) Decree NO. 10 of 1976 to include any person who holds or has held any office in the Public Service of a State etc and is wide enough to comprehend and include both serving or retired officers, as well as officers who resigned or who were dismissed. Wilson v Attorney-General Bendel State & Ors (1985) 1 NSCC 191 at 221 per Oputa JSC.” Per PETER-ODILI, J.S.C. (Pp. 53-54, paras. F-C). Also the Court of Appeal in  UZUEGBUNAM Vs, COP [12018] LPELR upheld  Section 1 of the Criminal Code Law which states that a person employed in the public service includes all persons belonging to the Military or Police Force in Nigeria.

  1. And considering that the position of the law is “that an employment is said to have statutory flavour if the employment is directly governed or regulated by statute See SUIT NO. FHC/ABJ/L/CS/492/98 EX CAPTAIN CHARLES EKEAGWU V. THE NIGERIAN ARMY & ANOR delivered on the 28th day of September, 1999 (or a section(s) of a statute delegates power to an authority or body to make regulations or conditions of service as the case may be”, UJAM V. IMT [2007] 2 NWLR (Pt. 1019) 470 at 492 B – C. Or where a set of prescribed “Rules govern the service” see Uwa JCA in FEDERAL MEDICAL CENTRE IDO EKITI & ANOR Vs. ISAAC OLUKAYIDE OLAJIDE [2011] LPELR 4150 CA para C

  1. I have no hesitation in holding that military employment is a statutory employment.

  1. The parties made heavy weather of the disciplinary procedure the claimants contention is that his dismissal was not in accordance with the provisions of Section 115 of the Armed Forces, Act in that the provisions enables supervising officer punish erring officers but not dismiss them which he contended requires a court martial under Section 118 of the Armed Forces, Act and that the conduct of the defendants in the manner in which he was dismissed contravened the provisions of Part (xiv) Section 122 of the Armed Forces Act as he was detained for 16 days contrary to the permitted 8 days allowed under the law. it is also the claimants contention that he was not afforded adequate opportunity to prepare his defence and hence he was denied fair hearing.

  1. The Defendants on their part argued that Military law permitted summary dismissal and that the Claimant was dismissed summarily.

  1. The Claimant maintains that he was dismissed from the Service of the Nigerian Army on the 27th March, 2007 and handed over to the civil police for investigation and prosecution, this fact is admitted by the defendant. He continued that after that investigation by the Civil Police, the Claimant was found not to be culpable upon which the Police communicated this to the Nigerian army. The Nigerian Army insisted that the Claimant must be prosecuted.

  1. The Claimant was then arraigned at the Magistrate Court, Karu in case No: CR157107 for trial, relying on the first information report, and was subsequently found not guilty and was discharged on 15th June, 2007. It is at this point that the defendant deny the Claimants averment and put him to the strictest proof. I shall come back to this point.

  1. The Claimant maintains also that that by a letter dated 10th march, 2008 and addressed to the Chief of Army staff, the Magistrate Court wrote communicating the outcome of the case to the 1st Defendant and asked that all entitlements be offered the Claimant. The Defendants also deny this averments and state that these facts are not within their strictest knowledge and require the strictest proof.
  2. The Defendants are asking the court to expunge exhibit C3 and C4 in that these documents were not certified and go on to detail the requirement of certification. Exhibit C3 is s the ruling of the His Worship Hon. Abdulahi Ahmed Ilelah of Magistrate Court, Karu of 15th June 2007 while Exhibit C4 is a letter (petition) from Good Shepard Chambers addressed to the DPO Asokoro to which the 2nd Defendants acknowledged and replied in Exhibit C5 .Now, the objection of the Defendants is that these exhibits were not appropriately certified in accordance with section 104(2) of the Evidence Act 2011. The very essence of this Court was explained in Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018; where this court held that “The National Industrial Court (NIC) is a special Court, in, and a result of, which it is not a court of technicality as the defendant seems to think. The defendant spent its time in addressing its issues (1), (2) and (3) discussing matters that can at best be regarded as recourse to technicality, some validly raised though. Section 12 of the NIC Act 2006 in its totality enjoins flexibility and informality on this Court before going the extra mile of enjoining this Court to apply the Evidence Act with the leverage to depart from it as the interest of justice may demand. In short, the paramount consideration in the NIC is the interest of justice. The High Courts in Nigeria do not have an equivalent provision in the nature of section 12 of the NIC Act 2006. So cases deciding issues that pertain to the High Courts are not necessarily applicable to the NIC and so must appropriately be distinguished”

  1. And the need to side-step even the requirement of certification of public documents in virtue of section 12 of the National Industrial Court (NIC) Act 2006 was equally explained in Honourable Justice Bassey Tambu Ebuta v. National Judicial Council & 3 ors unreported Suit No. NICN/ABJ/301/2016, the judgment of which was delivered on 13th July 2017. Where this court held that it would be unjust in an adjudication where the court is considering a decision reached by the Defendant concerning the employment rights of a Claimant. While noting that in reaching that decision the Defendants did not rely on certified evidence as most domestic tribunals do not insist on certification of document and in certain cases had regulations actually ousting strict reliance on evidence law, for the same defendant to come to this court and demand certification especially considering the provisions of Section 12 NICA 2006, See also Mr Dawodu Azeez v. 3 Peat Investment Limited unreported Suit No. NICN/LA/628/2014, the judgment of which was delivered on 16th July 2018.
  2. As was stated above the defendants are not complaining about the authenticity of these exhibits; only that they are not properly certified – even here, not that they are not certified, but that they are not properly certified. In the case of   SUIT NO. NICN/LA/14/2016 ADERONKE KEHINDE OKE VS. LAGOS STATE GOVERNMENT & 3 ORS  delivered October 9th, 2018 such an objection was held not to be not good enough to do away with the objected to, exhibits. The objection was discountenanced and the said exhibits were held admissible and were to be used in that judgement.
  3. In the instant case I find that whereas Exhibit C3 was duly certified by the Registrar of that Magistrate Court in Karu on the day it was delivered and Exhibit C4 was tendered with a Notice to produce and as such the Claimant is entitled to tender the copy in his possession. I find that the Defendants objection lacks merit and is hereby discountenanced.

  1. With regards to the Defendants denial of the Claimants averments, referred to above, applying the law on traverse, I find that the “1st – 3rd Defendant denial of the Claimants paragraphs 31 – 39 of the statement of fact but shall at the trial require the plaintiff to strictly prove the averments contained therein…..” does not amount to a denial for the purpose of raising an issue for trial. See Lewis & Peat (NRI) Ltd v. Akhimien [1976] 1 All NLR (Pt. 1) 460, UBA Ltd v. Edet [1993] 4 NWLR (Pt. 287) 188, Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1 and LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620. Furthermore, a general traverse to the effect that the defendant denies certain paragraphs of the statement of claim without making specific response to those paragraphs does not constitute sufficient denial and have been held to amount to admission. See Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170 and Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214. Further still, an averment in a statement of defence that the Defendant puts the plaintiff to proof or does not admit the correctness of a particular allegation in the statement of claim without more has been held to be insufficient denial. See Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v Tigidam [1995] 7 NWLR (Pt. 377) 359. Given these authorities, I find and hold that there is no specific denial on the part of the 1st – 3rd defendant as to the Claimant’s arraignment and discharge from the Magistrate court, or the Claimant’s monthly salary is not N40,000. This being the case, I also find and hold that the Claimant has proved his arraignment, discharge and Petition for reinstatement accordingly.

  1. Now looking at the claimant’s reliefs; –
  2. A DECLARATION that the dismissal of the Claimant from the Nigerian Army was        illegal, null and void.

 

  1. A DECLARATION that the Claimant was not given fair hearing in the determination     of his employment considering the decision of the Magistrate Court in Charge           No.CR/57107 between C.O.P . Vs. Etim Samuel delivered on the 15th day of June,      2007.

  1. AN ORDER of this Honourable Court re-instating him to his previous rank of a Lance     Corporal.

  1. AN ORDER of this Honourable Court re-instating him to the present rank as enjoyed      by his counterparts who joined the Nigerian Army the same year with him.

  1. AN ORDER of this Honourable Court directing the Defendants, particularly 1st & 2nd   Defendants to pay the Claimant alt his outstanding arrears of salaries from 18th day            of disciplinary hearing of the defendants. , 2007, up to date, as well as all his accrued       allowances from 18th day of February, 2007, to date.

  1. I find that the Claimant case resonates on his quest for re instatement, which I find is the main claim of the claimant.

  1. Relief 1 and 2 are for declaratory reliefs as to the status of the Claimant’s dismissal by the 1st and 2nd Defendant and a pronouncement as to the propriety of the Defendants’ disciplinary procedure employed in dismissing the Claimant.

  1. The position of the law as regards declaratory reliefs is as was stated in DAVID OGUNLADE Vs. EZIEKIEL ADELEYE (2006) LPELR-7722(CA) where it was held following the decision in OKOYA V. SANTILLI (1990) 2 NWR (PT. 131) 172 which “deals with the nature of declaratory and executory judgments, and the differences between them. Whilst the latter declare the respective rights of the parties and then proceed to order the defendant to act in a particular way, and is therefore immediately enforceable; the former merely proclaims or declares the existence of a legal relationship and do not contain any order which may be enforced against the defendant vide GOVERNMENT OF GONGOLA STATE V. TUKUR (1989) 4 NWLR (PT.117) 592.  (per Agbaje, J.S.C. at p. 199 of OKOYA V. SANTILLI (SUPRA).” PER OMO, J.S.C (PP. 9-10, PARAS. F-B). Also. in S.P.D.C.N. LTD. v. AJUWA (2015) 14 NWLR (PT. 1480) C.A. 403 @ 431
  2. It was held that ‘a party seeking a declaratory relief must place before the court credible and sufficient evidence to entitle him to the declaratory relief. A court cannot grant a declaratory relief without credible sufficient evidence. Such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleading, the relief being equitable in nature. In the instant case, the trial court should not have granted the respondents’ relief 2 in the absence of credible evidence. KWAJAFFA v. B.O.N. LTD (2004) 13 NWLR (PT. 889) 146.

 

  1. As I had held, due to lack of direct evidence relief 1 cannot be granted and accordingly fails, Relief 2 is asking the court to evaluate the Defendants dismissal procedure on the basis of the Magistrate Court ruling, not only are the two procedure separate and un related the Exhibit C3 makes no mention of the Defendants procedure so as to give a basis for evaluation. I find that relief 2 cannot be granted as couched and therefore fails.

  1. Reliefs. 3, 4 and 5 all relate to the main claim of this case which is for reinstatement. Case law has defined Re instatement in the case of OLANIYAN & ORS. V. UNILAG & ANOR (1985) LPELR-2565(SC) where the Supreme Court held that Re instatement in ‘its ordinary and primary meaning is to replace the person to the exact position in which he was before his removal. That is to restore him to his status quo ante. It is therefore retroactive in effect, and involves a revocation of the act of dismissal and restoration of payment of wages for the intervening period. – See MORRIS V. GESTETNER (1973) 1 WLR. 1373, 1382.” Per Karibi-Whyte, J.S.C. (P.165, Paras. B-D)
  2. The position of the law with regard to reinstatement after a court discharge is as was stated in the case of SUIT NO. NIC/LA/117/2011   MR. BABATUNDE OGUNSOWO VS. DANA MOTORS LIMITED delivered on July 10th, 2013 where this court held that a discharge from a Magistrate Court was a favourable termination upon which a Claimant ought to be recalled/ see also NIGERIA PORTS AUTHORITY V. ABU AIRADION AJOBI [2006] 9 MJSC 182.

                                                              

  1. What this means is that having been discharged by the Magistrate Court the claimant is entitled to be re- instated. In fact, law is quite specific, that where a court of law discharges an accused person who was found guilty or dismissed by a disciplinary committee/procedure, the judgement of the court supersedes and vitiates any domestic finding.  See BASSEY v. AG AKWA IBOM STATE & ORS (2016) LPELR-41244(CA) where it was held that “Instructively, it’s a trite principle, that once a dismissal or termination of the appointment of an employee is declared by a Court of competent jurisdictional competence to be null and void, the parties are back to the status quo. Thus, the said dismissed employee or whose employment is terminated must automatically be reinstated. See also KWARA STATE CIVIL SERVICE COMMISSION V. ABIODUN (2009) (Pt. 493) 1315 @ 1346 paragraphs F – G; FMC IDO-EKITI v. OLAJIDE (2011) ALL FWLR (Pt. 593) 1944 @ paragraphs C-G.” Per Saulawa, J.C.A. (P. 16, Paras. D-F) particularly as in this case the Defendants were the criminal complainants against the claimant, called witnesses in furtherance of their prosecution of him and were found not to have established a prima facie case against him. I find and hold that the Claimant having been discharged by the Magistrate Court is entitled to being reinstated. Relief 3 and 5 therefore succeed.

 

  1. Relief 4 seeking an order reinstating the Claimant to the rank by his counterparts who joined the Nigerian Army the same year, considering that the Claimant was dismissed from the Nigerian Army in 2007, just over 12 years ago, present as a request for the court to promote the Claimant to the position of his contemporaries in the Nigerian Army, this relief cannot be granted in that generally, promotion is neither automatic nor a right; it is a privilege. See ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION [2006] 14 NWLR (PT. 1000) 610. Accordingly, it will be invidious for the Court to foist on an employer a person who should occupy a particular position. See SHELL PET. DEV. CO. V. NWAKA [2001] 10 NWLR (PT. 720) 64. The only exception is where the denial of promotion is vindictive, mala fide, and so qualifies as unfair labour practice. See MRS. ABDULRAHAMAN YETUNDE MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR [2013] 35 NLLR (PT. 103) 40 NIC. See also SUIT NO. NICN/LA/345/2013MR GODWIN E. A. OKHAVHE V. NIGERIAN POSTAL SERVICE delivered 10th February 2017. Furthermore, in a labour court the claimant must establish his entitlement to his reliefs on his own evidence and circumstances and cannot rely on the circumstances of a co worker. In that the circumstances of the coworker is irrelevant except where the case of unfair labour practice is being contended.  Which is not the situation in this case. See SUIT NO. NICN/LA/308/2013SAMSON KEHINDE AKINDOYIN   VS. UNION BANK OF NIGERIA PLC   delivered 15th April 2015 where it was held that “a claimant must build his case on his own right/entitlement, not on the right/entitlement of another.” Relief 4 cannot be granted as couched.

  1. All in all the Claimants case succeeds but only this far; –
  2. The Defendants are hereby ordered to reinstate the Claimant to his previous rank and post of a Lance Corporal without loss of seniority of benefits.

  1. The Defendants, particularly 1st & 2nd Defendants are hereby ordered to pay the Claimant all his outstanding arrears of salaries as well as all his accrued allowances from 18th day of February, 2007, to date.

  1. Cost of this suits is put at N400, 000.00 (Four Hundred Thousands Naira Only) to be paid within 60 days thereafter the interest of 10% shall attach.

  1. This is the Court’s judgement and it is hereby entered accordingly.

…………………………………………..

HON. JUSTICE E. N. AGBAKOBA

JUDGE.

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