IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE I. S.GALADIMA
Dated: 30th May 2019 SUIT NO: NICN/OW/13/2014
BETWEEN:
KINGSLEY IHEANACHO ENYINNAYA CLAIMANT
AND
NIGERIA POLICE COUNCIL
NIGERIA POLICE SERVICE COMMISSION
INSPECTOR-GENERAL OF POLICE DEFENDANTS
ATTORNEY GENERAL OF THE FEDERATION
COMMISSIONER OF POLICE,
ABIA STATE POLICE COMMAND
Representation:
D. C. Ajare for the Claimant.
Njoku C. O. for the 4th Defendant.
JUDGMENT:
On the 14th day of February 2014, the initial claimant filed this suit. After his demise, a further and better amended Complaint duly accompanied by other originating processes were filed on the 30th day of August, 2017, whereof this Claimant now seeks against these Defendants, as follows:
A declaration that the respondents’ withholding of the salaries, gratuity and other rights of Asp. Adolphus Andrew Enyinnaya (now late) despite his discharge from the offense of murder in charge no. MAS/360C/2003 in (sic) wrongful, unlawful and void.
An order directing the respondents to forthwith release and effect the payment of all withheld salaries, gratuities and all rights due and accruing to Asp. Adolphus Andrew Enyinnaya in line with officers of his cadre from 2003 to his demise on 27th February 2014 to the applicant.
And or alternatively pay the late Asp. Adolphus Andrew Enyinnaya through the applicant the sum of N50M (fifty million naira) only as damages for wrong interference with his service in the Nigerian Police Force where he had served for more than thirty years.
The 3rd and 5th Defendants entered appearance and filed a joint defence on 28/11/2014 vide an application for extension of time. On 22/6/2015, the 4th defendant appeared under protest but filed a defence on 24/10/2018 consequent on the further amended statement of facts. The 1st and 2nd defendants did not defend this suit despite being aware of same. With issues joined, the case was fast tracked and proceeded for hearing on 21/3/2019.
SUMMARY OF THE CAUSE OF ACTION:
The Claimant was substituted for his late father (Asp. Adolphus Andrew Enyinnaya) on 28/5/2014. The late ASP Enyinnaya was allegedly a police officer with Force No: 41055. Whilst in the Police force, the late officer was said to have risen through the ranks, from a police constable to corporal in 1980, to sergeant in 1982, Inspector and finally, Assistant Superintendent in 1993 and 1999.
Sometime in 2002, the claimant’s father was detained and charged for the alleged murder of one Ugochukwu Anyanwu, and as a result of his detention his salaries and benefits were stopped by the Defendants. The late Enyinnaya was subsequently discharged from the charge in MAS/360C/2003. Despite this discharge, the defendants still failed to recall late Asp. Enyinnaya to duty in spite of his various entreaties to them before his unfortunate demise on 27/2/2014.
CLAIMANTS’ CASE:
The Claimant testified as CW1 and adopted his written deposition of 8/6/2018. He tendered 14 documents as exhibits in the course of this trial, which were marked thus:
Exhibit C1—Claimant father’s death certificate.
Exhibit C2—letter of authorization.
Exhibit C3—CTC of initial complaint in the present suit.
Exhibit C4- police wireless message.
Exhibit C5—photocopy of judgment in MAS/360C/2003.
Exhibit C6—photocopy of DPP Discharge Order Report from Abia State’s Ministry of Justice in respect of suit number MAS/360C/2003.
Exhibit C7—letter for reinstatement written by Late Enyinnaya.
Exhibit C8—police wireless message number DTO 281830/03/2006.
Exhibit C9—police wireless message number DTO 051215/12/2007.
Exhibit C10—letter from federal ministry of justice.
Exhibit C11—claimant solicitor’s demand letter of 30/5/2009.
Exhibit C12—letter captioned: “RE: APPLICATION FOR REINSTATEMENT”.
Exhibit C13—claimant solicitor’s letters dated 30/5/2009, 15/10/2015
Exhibit C14— GEN 60 Form.
He was thereafter cross examined by the 4th Defendant’s Counsel.
Augustine Iheanacho testified as CW2 and adopted his deposition of 29/4/2016, and was cross-examined on 21/3/2019, and the Claimant closed his case on that same day.
DEFENDANT’S CASE:
The 4th Defendant’s Counsel Mr Njoku C.O. informed the court on 21/3/2019 that he did not have any witness. The 3rd and 5th defendants who though filed a joint defence on 24/11/2014, neither called any witnesses nor appeared further in the course of these proceedings. The 1st and 2nd defendants abandoned this cause entirely and so they were duly foreclosed by order of this Court.
At the close of trial, the available parties’ counsel were ordered to file their final addresses in compliance with the Rules of this Court. The final addresses of counsel having now been duly filed and served were adopted on the 14/5/2019 and adjourned to today, the 30/5/2019 for delivery of judgment.
CLAIMANT’S FINAL SUBMISSIONS:
By virtue of Order 25 rule 17 (1) of this court’s rules which directs the Claimant to first file a final written address where no witness is called upon by the Defendants, the Claimants’ Counsel had on 2/5/2019 filed his final address albeit out of time, in which one issue was formulated for determination as follows: Whether the continuous withholding of the claimant’s salaries, benefits and other privileges by the defendants from the 8th October 2003 when he was discharged of the offense of murder to 27th day of February 2014 when he died is not unconstitutional, wrongful, illegal, null and void.
Counsel submitted that in view of the fact that the 1st, 2nd, 3rd and 5th Defendants did not file any defence, the evidence supplied by the claimant in proof of their claims is unchallenged and ought to be accepted by the court as credible, per Monkom v Odili (citation supplied).
In addition, counsel went on to argue that all the exhibits tendered in this case, suffice as proof that the defendants’ failure to reinstate the claimant’s father and pay his withheld salaries must be construed an unconstitutional act. It was further canvassed that general damages ought to be awarded in the case on the basis of the proof of an actionable wrong/injury, per Adekunle v Rockview Hotel (citation supplied). The facts in the deposition of CW1 were referred to, in an attempt to show that the claimant’s father suffered deterioration of his health as a consequence of the defendants’ inactions.
Learned counsel argued that the employment of Late Enyinnaya was statutorily flavoured as the 1st to 4th defendants are creations of the Constitution. According to the claimant’s counsel, the word “suspension” contained in exhibit C4 connotes a temporary disciplinary procedure as such, when it was found by a law court that the deceased Enyinnaya was not guilty, he ought to have been reinstated and all outstanding salaries owed paid to him in compliance with Rule 030404 of the Federal Services Rules.
Finally, counsel urged the court to grant the reliefs sought in this suit.
4th DEFENDANT’S FINAL SUBMISSIONS:
Amongst the Defendants, only the 4th Defendant’s Counsel filed a final written address. In it, three issues were isolated for determination in his address filed since 29/3/2019, thus:
Whether the 4th defendant is privy to the employment of late ASP Adolpus Enyinnaya by the Nigerian Police Force?
Whether in the absence of the necessary and proper parties in this suit namely, the Police Service Commission and the Inspector General of Police, claimant can found and proceed against the 4th defendant in this suit?
Whether the claimant has in any way established any cause of action against the 4th defendant?
On the first issue, Counsel argued that only parties to a contract can sue or be sued in respect of such contracts. The court was referred to the case of Rector KWARAPOLY v Adetila (citation supplied). Counsel submitted that there was no privity of contract between the Claimant and the 4th defendant.
Regarding the second issue, it was contended that the 4th defendant though a nominal party, took vital steps to call on the police authorities to defend this suit. That having done all necessary and prudent attempts to so do, this Court must exculpate the 4th Defendant from any liabilities to the Claimant.
On the final issue, counsel submitted that while the 4th defendant is constitutionally a legal adviser to the other defendants in this suit, that constitutional provision does not purport to create liability upon the 4th defendant for the actions or inactions of the other defendants, I any. Counsel urged the court to strike out the 4th defendant as a party, and dismiss this suit in its entirety.
DECISION:
This cause was placed on fast track pursuant to Order 25 Rule 1 (4) of the rules of this Court giving its age in the court’s docket and its peculiar circumstances. Consequently, having carefully perused and considered the submissions of both counsel and the pleadings as well as the evidence in this suit, I find that only one issue calls for resolution, which is: whether the claimant established the reliefs by credible evidence, to be entitled to them?
Let me state here as a starter in response to an issue rightly raised by the Claimant’s counsel in his submissions to the effect that the demerit of not adducing evidence to support a defence is that all the averments in them are deemed abandoned. Indeed, the law is settled that where issues are joined on any averments in the pleadings but no evidence is led to support such averment, the result is that such averment in the pleadings is either to be struck out or be dismissed.
In other words, such averment could be treated as having been abandoned. The position of the law is that pleadings must be proved by evidence. See: Okuleye v Adesanya (2014) 12 NWLR (pt 1422) 521 at 535, E.
However, contrary to the submissions of the claimant’s Counsel, the non-challenge of this claimant’s evidence by the defendants does not automatically make his client entitled to the reliefs sought. The evidence on record as adduced by the claimant must be examined in order to determine whether or not such evidence satisfy all applicable laws. The Claimant must discharge the onus of proof imposed on him by the provisions of sections 131 and 132 of the Evidence Act (as amended) in order to substantiate the reliefs he claims.
Now, the question whether the claimant is entitled to his first relief as outlined beforehand, completely boils down to and is dependent on the existence of any contractual obligation allegedly owed by the defendants to the deceased ASP Enyinnaya’s to pay any salaries and other entitlements. Otherwise, how else can a declaration be made by this Court that the defendants’ purported withholding of the claimant’s salaries is wrongful, unconstitutional and or void?
It accords with common sense and logic therefore, that the defendants can only purportedly withhold the salaries of a person who worked for them. To put it mildly, the claimant has to show first that his late father was employed by these defendants. Then, he must go further to prove that his late father earned a certain sum of money which the defendants have failed, refused or neglected to pay, before a declaration can and shall be made to the effect that withholding the late ASP Enyinnaya’s entitlements is unlawful, wrongful and void.
The burden for the claimant in this suit is to prove what gave rise to the withheld salaries, which of course is a contract of service or employment, because salaries are not earned in a vacuum.
The position of the law as it relates to this instant case is that such contract of employment giving rise to payment or otherwise of salaries cannot be presumed. The existence of a contract of employment between a person and another must be proved by empirical evidence. See ANIKE v SPDCN LTD (2011) 7 NWLR (PT 1246) 227 at 243, F-G. It cannot be inferred from evidence, as the Claimant has suggested by the averments in his witness’ deposition that his father, the original claimant, joined the Nigeria Police Force in 1975, but appointment letters were not issued to officers in the constable rank cadre back in 1975. In fact, the testimony provided by CW2 is wholly second hand evidence which is unsupported by any material and collaborative facts or evidence. It is trite that hearsay evidence is inadmissible in law. The testimony therefore made by CW2 is completely unreliable and must be rejected as forming the basis of my findings.
The surrounding exhibits suggesting that the Claimant was exonerated from a charge of murder, police message signals and letters written by the original claimant requesting for his reinstatement (exhibited as C4, C5, C6, C7, C8, C9 and C14 respectively), all unfortunately do not supply or augment the fact that the Claimant’s father was an employee of the Nigeria Police.
Assuming I was minded to even accept that the Police did not issue appointment letters back in 1975, the claimant still did not produce any scintilla of evidence establishing the late Enyinnaya’s promotions from the constable cadre to Corporal, Sergeant, Inspector and finally Assistant Superintendent of Police (ASP) ranks. There are gaps and questions contained in the pieces of evidence making it quite improbable for this Court to accept them as overwhelmingly preponderant in favor of this claimant’s cause. Also, assuming I were to accept the Claimant Counsel’s opinion that the employment is one with statutory coloration, the burden of proving that it is, can not be discharged by simple oral testimony to the effect that the deceased was merely enlisted and posted without any other form of documentation to establish this. Not even an attestation form as its normally done, was ever exhibited. This is so because all statutorily flavored employments in Nigeria are generally backed by at least a letter of appointment, recruitment or employment or any other forms of documents evidencing such appointment, recruitment or employment.
Importantly also, apart from the fact that the contract of service purportedly binding the claimant’s deceased father and the defendants was not proven, the relevant and apposite provisions of the Nigeria Police Act were not specifically pleaded. In paragraph 5(x) of CW1’s witness deposition, he averred thus:
“that his appointment and conditions of service is regulated by the Nigeria Police Act/Federal Service Rules.”
Even if the Federal Civil Service Rules/Police Act were to apply as deposed to by the claimant, the relevant part or parts of these legislations ought to have been specifically pleaded to enable me use them. In this present case, this was not done and so I am left to speculate as to the set of rules applicable, which is totally wrong in law – See NITEL v OSHODIN (1999) 8 NWLR (PT 616) 528 at 541-2, F-A.
The Supreme Court in PHCN V. I.C. OFFOELO (APPEAL NO. SC.7/2006), reiterated that the mere fact that an employer is a creation of statute or that it is a statutory corporation or that the government has shares in it does not elevate its employment into one of statutory flavour. Rather, there must be a nexus between its employee’s appointment with the statute creating the employer or corporation.
It is logical that in order to ground a declaration that the purported withholding of a person’s salaries and benefits is unlawful and void, the claimant must prove the exact amount of monies owed by the defendants before even proving that he is entitled to a declarative relief that the non-payment of that alleged particular sum owed is wrongful and void. Interestingly, in the entire statement of facts, there is no single averment stating how much the claimant’s father earned as salary before his salary was allegedly stopped, what he was entitled to as gratuity or in fact what his “other rights” purportedly withheld by the defendants, comprise of. There is no single evidence of salaries paid to him at any point in time while he was alive. Thus, it is my finding that the failure to plead and prove the necessary material and precise sums alleged to be purportedly withheld by the defendants, leaves same to the imagination and speculation by this court and this thus makes this claimant’s cause irredeemably fatal. This court can not be expected or required to embark on a trip beyond the claimant’s pleadings, in order to discover the substance of what he is allegedly entitled to from any of these defendants. This being my legal premise, relief number one must be denied and same is accordingly dismissed.
On relief two which is for an order directing the respondents to forthwith release and effect the payment of all withheld salaries, gratuities and all rights due and accruing to Asp. Adolphus Andrew Enyinnaya in line with officers of his cadre from 2003 till his demise on 27th February 2014, it is settled law that an action for earned salaries and gratuity is in the nature of special damages which must be pleaded and strictly proved. See ALAO v V.C. UNILORIN (2008) 1 NWLR (Pt. 1069) 421 at 466, paras. F-G.
I have read and given due consideration to the entire 72 paragraph amended statement of facts filed on 30/8/2017, and it appears to me that the particulars of “all withheld salaries, gratuities and all rights due and accruing to Asp. Adolphus Andrew Enyinnaya in line with officers of his cadre” was never pleaded. The evidence of the claimant’s witnesses also, do not set out any particulars whatsoever of the subject matter of this suit to support the reliefs claimed as required.
As a result, the claimant’s claim must be refused again. Accordingly, relief number two is denied and dismissed.
I consequently agree with most of the 4th Defendant Counsel’s submissions and hereby adopt same as the basis for my findings on the above two reliefs.
The alternative claim put forward in this action is a claim for the sum of N50M (fifty million naira) only as general damages for purported wrongful interference with his service in the Nigeria Police Force where he had allegedly served for more than thirty years. It is my considered view that damages of any kind are a function of liability, and the claimant has to establish the liability of the defendants to be entitled to damages. See TSOKWA OIL MARKETING LTD v B.O.N. LTD (2002) 11 NWLR (PT 777) 163. The foundation for the claimant’s entitlement to general damages claimed is absolutely dependent on him proving that particularly the 1st, 2nd, 3rd and 5th defendants were the employers of the late ASP Adolphus Enyinnaya at all times material to this action. It must be shown that this claimant’s father was in the service of the defendants such as to warrant the award of damages for any wrongful interference with his service while he was allegedly in the Police Force.
From the evidence before me, there is neither proof of income of the deceased from any of the defendants before the time of his death nor any evidence that he was ever employed by any of the defendants. Therefore, where the claimant fails to establish any liability allegedly owed by these defendants and arising from an employment relationship, the terms governing the said employment, and the manner in which the contract of service was wrongfully interfered with, such a claimant shall not be entitled to damages.
Frankly, the facts and scenarios set out in the amended statement of facts paint a heart wrenching picture. In circumstances like this, I am quietened by the position of the Court of Appeal in ANIKE v SPDCN LTD (supra) at 244 and 245 E as follows:
“It is trite that in judicial adjudication, sentiments, no matter how eloquently presented, command no place…when determining the justice of the suit between parties. The court relies on solid(ly) established evidence (only).”
Thus said, I find and hold that this claimant has failed to establish his reliefs by credible evidence. This cause is hereby dismissed in limine. This suit which was first filed in 2014, now comes to an eventual but unfortunate end. Parties are ordered to bear their respective costs.
Delivered in Owerri this 30th day of May, 2019.
Hon. Justice Ibrahim Suleiman Galadima.
