IN THE NATIONAL INDUSTRIAL COURT OF NIGERA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: OCTOBER 15, 2018
SUIT NO: NICN/YEN/73/2017
BETWEEN
MRS. BEAUTY UMBU ……………… CLAIMANT
AND
1. LOCAL GOVERNMENT SERVICE COMMISION
2. ATTORNEY-GENERAL AND COMMISSIONER DEFENDANTS
FOR JUSTICE
3. SOUTHERN IJAW LOCAL GOVERNMENT COUNCIL
REPRESENTATION
Ayebatekena B. Ebiki Esq. appearing with P.E Tamuno Esq. for the Claimant.
Eseimokumoh Ebiye Esq. for the Defendants.
JUDGMENT
INTRODUCTION AND CLAIMS
The Claimant by a Complaint dated 14th December, 2017 and filed on the same date approached this Court and sought for the following reliefs.
A DECLARATION that the Claimant is an employee of the 3rd Defendant.
A DECLARATION that the Claimant is yet to attain the compulsory retirement age of sixty (60) as claimed by the 1st Defendant.
AN ORDER DIRECTING the Defendants to reinstate the Claimant to her right position as a staff of the 3rd Defendant.
AN ORDER DIRECTING the 3rd Defendant to pay the Claimant her monthly salaries from the month of September, 2017 till the date judgment is delivered wherein the sum of Thirty Three Thousand, Five Hundred Naira (N33, 500.00) only represents a month’s salary.
AN ORDER DIRECTING THE DEFENDANTS particularly the 1st and 3rd Defendants not to further withhold the Claimant’s salary and other benefits due the Claimant until the Claimant’s retirement date.
AN ORDER DIRECTING the Defendants to pay the Claimant the sum of One Hundred and Sixty Thousand Three Hundred and Fifty Naira (N160, 350.00) only as special damages.
AN ORDER DIRECTING the Defendant to pay the Claimant the sum of Two Million, Five Hundred Naira (N2,000,500.00) only as general and exemplary damages.
The Claimant alongside also filed Statement of Facts, Witness Deposition on Oath and a List of Documents to be relied upon in the cause of trial. The Claimant also filed a Reply to the Joint Statement of Defence by the Defendants dated 14th February, 2018 and filed on the same date. The Claimant alongside also filed a Further Written Statement on Oath and list of additional documents all dated and filed 14th February, 2018.
The Defendants enter appearance properly on the 31st January, 2018 after this court granted an application for leave to file their processes out of time. The Defendants filed Joint Statement of Defence, List of Witnesses, List of Documents to be relied on in the cause of trial and witness Deposition on Oath all dated and filed on the 31st January, 2018. The Defendants also filed an Amended Joint Statement of Defence, Further Written Statements on Oath, List of Additional Documents all filed 6th June, 2018.
The Defendants Counter Claimed the Claimant thus:
A DECLARATION that by virtue of the Approved Scheme of Service for Local Government Employees in Nigeria, the Claimant could not have been promoted to Grade level 06 without any of the following requirements:
Testimonial of Completion of a full Government Approved Secondary School or Junior Secondary School.
General Certificated of Education (Ordinary Level) in 3 papers obtained in one sitting.
R. S. A. School Commercial Certificate.
By lateral transfers of Head Messenger subject to vacancy and satisfactory record of service.
A DECLARATION that the Claimant has attained the retirement age of 60 years as Claimant failed and/or neglected to furnish the Local Government Service Commission with her Birth Certificate or Age Declaration as at the time of her employment.
A DECLARATION that the Claimant’s rise to Grade level 06 is fraudulent and questionable.
A DECLARATION that the Claimant be dismissed for obtaining her promotion to Grade level 06 by fraudulent means contrary to the Approved Scheme for Local Government Employees in Nigeria.
AN ORDER directing the Claimant to pay to the Local Government Commission all monies she received as payment of salaries on Grade Level 03 to Grade Level 06, that is, from September 2006 to September 2017.
In the cause of trial the Claimant testified on the 20th March, 2018 as CW1 and she was equally cross examined on the same date. The Claimant also tendered 8 EXHIBITS (EXIBITS CW1 001 – EXHIBITS CW1 008). DW1 (one Comrade Igbe Godswill) testified on the 18th day of April, 2018 on behalf of the Defendants and he was equally cross examined on the same date. DW1 also tendered 3 EXHIBITS (EXHIBITS DW1 S1 001 – EXHIBITS DW1 S1 003). DW2 (one Mr. Berry Negerese) testified on the 8th day of May, 2018 and was cross examined on the same date. DW2 also testified on the 7th day of June, 2018 on his Additional Statement on Oath and was cross examined the same date. DW2 tendered EXHIBITS DW2 S1 001. At the close of the trial, this court ordered parties to file their Final Written Addresses which were filed and adopted on the 19th day of July, 2018.
THE CASE OF THE CLAIMANT
The Claimant’s case is that she was employed as a cleaner by the 3rd Defendant vide an employment letter dated 23rd November, 1994 with effect on the same date. That some years after her appointment by the 3rd Defendant, she was asked to bring a Statutory Declaration of Age. Thus, she met her uncle, Mr. Mark Kporoi of Ikeinghenbiri Community in Southern Ijaw Local Government Area of Bayelsa State who deposed to a Statutory Declaration of Age and same was given to the senior officials of the 3rd Defendant for documentation.
The Claimant further stated that she was unlawfully compulsorily retired by a letter dated 15th September, 2017 from the 1st Defendant which letter stated that she has attained the mandatory retirement age of sixty (60) years.
The Claimant stated that on the basis of the purported retirement letter from the 1st Defendant, she has not been paid her monthly entitlements from the month of September till date and has written a letter for the payment of the salaries of September and October 2017 as well as for her reinstatement to her rightful position in Southern Ijaw Local Government Council as she is yet to attain the mandatory retirement age of sixty (60) years to no avail.
THE CASE OF THE DEFENDANTS
The Defendants state that the Claimant attained the mandatory retirement age of sixty (60) years as Claimant failed and or neglected to furnish a copy of the Statutory Declaration of Age on her appointment to the Local Government Service Commission. The Defendants further stated that the Claimant presented a sworn affidavit of age deposed in 2005, eleven (11) years after her appointment, leaving the Local Government Service Commission with no option than to conclude that her date of birth had been altered. This was all part of the Local Government Service Commission’s effort to uncover fraud in the Local Government System.
THE SUBMISSIONS OF THE DEFENDANTS
The Defendants in their written address dated and filed on the 29th day of June, 2018 formulated four issues for determination as follows:
Whether the Claimant’s elevation to Grade Level 06 in her employment is proper in the absence of the requisite qualification.
Whether the failure of the Claimant to provide her affidavit of declaration of age eleven (11) years after her appointment supports the fact that her age has been altered.
Whether from the totality of the evidence before this court, the Claimant is entitled to the reliefs sought.
Whether the Defendants/Counter Claimants have made a prima facie case to be entitled to the reliefs sought.
On the First Issue, that is, whether the Claimant’s elevation to Grade Level 06 in her employment is proper in the absence of the requisite qualification, the Defendants state that the Approved Scheme of Service for Local Government Employees in Nigeria 4th Revised Edition (2006) laid down the procedures for the method of entry and advancement within any cadre for employees under the Local Government Scheme of Service. The Defendants further aver that the Claimant until her retirement alleged to have been on Grade Level 06 without the requisites qualification as laid down by the Approved Scheme of Service for Local Government Employees in Nigeria which are:
Testimonial of completion of a full course in a government approved Secondary School or Junior Secondary School.
General Certificate of Education (Ordinary Level) in 3 papers obtained in one sitting.
R. S. A. School Commercial Certificate.
By lateral transfer of Head Messenger subject to vacancy and satisfactory record of service.
The Defendants contend that under cross examination when the Claimant was asked about the educational documents she presented to the Junior Staff Promotion Board prompting her alleged promotion to Grade Level 06, she confirmed that she did not show them anything but she got promoted. She further confirmed that she has a Primary 6 Certificate. The Defendants then confirmed that facts admitted needs no further proof. Cited the cases of BIOSOLA NIGERIA LIMITED AND ANOR VS. MAINSTREET BANK LTD AND ORS (CA/L/890/07) 2016 NGCA 99; LPELR – 22062 (CA); AKINLAGUN VS. OSHOBOJA (2006) NWLR (PT. 993) @ 84 AND 92; EGBUNIKE VS. A. C. B. LTD (1995) 2 NWLR (PT. 375) 34 @ 53; NDAYAKO VS. DANTORO AND OTHERS (2004) 13 NWLR (PT. 889) 187@ 214. The Defendants also refer to section 123 of the Evidence Act, 2011 which reads:
“No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which before the hearing, they agree to they agree to admit by any writing under their hands, or which by any rule or pleadings in force at the time they are deemed to have admitted by their pleadings
Provided that the court may, in its discretion require the facts admitted to be proved otherwise than by such admissions.”
The Defendants then avers that the burden of proof rest on the Claimant to show how she got elevated to the level of Assistant Chief Hall Supervisor on Salary Grade Level 06 without the requisite educational qualifications laid down by the Approved Scheme of Service for Local Government Employees in Nigeria. That Claimant was given notice to produce her First School Leaving Certificate but she has failed to do so. The Defendants are left with no other option than to conclude that the Claimant does not have the said First School Leaving Certificate.
The Defendants then submit that the Claimant has no educational qualification that warrants her elevation by way of normal promotion to Grade level 06.
On the Second issue, whether the failure of the Claimant to provide her affidavit of declaration of age eleven years after her employment supports the fact that her age has been altered, the Defendants aver that it is a general rule that equity does not aid a party at fault. A court of equity will not assist a person in extricating himself or herself from the circumstances that he or she has created. Equity will not grant relief from a self-inflicted hardship. That the Claimant was employed into the service in 1994 and as a requirement for employment, she provided to the 3rd Defendant a passport photograph attached to her application form and a medical certificate of fitness.
From the foregoing, the Defendant avers that the Claimant failed to submit her birth certificate or age declaration to the 3rd Defendant. The said document which would determine the employment period of the Claimant in the service.
The Claimant further avers in an attempt to reduce her age and enlarge her service years, brought her statutory declaration of age eleven years after her employment.
The Defendants contends that when Claimant was asked under cross examination why she did not provide her employers with her age declaration or birth certificate but provided other documents, Claimant replied: “I applied for work and got it. I don’t know”. The Defendant further contends that under cross examination, Claimant was asked her age as at the time her uncle deposed to the affidavit of age and she replied that she does not know. Further, when Claimant was asked her present age, she again stated that she does not know her age. However, the Claimant alleged in her Reply to the Defendants Statement of Defence that she was not told to produce her birth certificate at the point on entry into the service.
From the foregoing, the Defendants contend that lots of questions are begging to be answered, viz:
Since Claimant was not told to produce her affidavit of declaration of age who then informed her to produce her medical certificate of fitness and passport photograph?
What determines the service period of civil servant and at what point is it necessary to furnish same?
Since Claimant does not know her age under cross examination, are the Defendants right to say that the Claimant is above sixty (60) years of age, looking at the date Claimant furnished the Defendants with her age declaration.
The Defendants then referred this court to the Public Service Rules 2009, Particularly at Rule 020205, which is applicable to all Public/Civil Servants in the entire Federation which states that:
“To be eligible for appointment into the Federal Public Services, every applicant must:
Not be less than 18 years and not more than 50 years of age.
Possess such minimum qualification as may be specified from time to time including computer literacy.
Be certified by an authorized health care provider as medically fit for government service.
Possess a testimonial of good conduct from last employer, if not previously employed, from the last school or college attended.
Possess requisite qualifications as provided for in the scheme of service.
No officer shall be appointed into the civil service without authorization for appointment from the Office of the Head of Service of the Federation and supervising boards in the case of parastatals.”
The Defendants having perused the aforesaid requirements of the Public Service Rules with regards to the eligibility for employment, asks how would the requirement in paragraph (a) above be met if the prospective employee fails or neglects to furnish the appropriate employer with his or her birth certificate.
The Defendants aver that a public officer means any person who exercises or formally exercised, for the purpose of the government, the functions of any office or employment under the state. And Part IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) defined public service of a state as “the service of the state in any capacity in respect of the government of the state and includes services such as:
Clerk or other staff of the House of Assembly.
Member of staff of the High Court, Sharia Court of Appeal, the Customary Court of Appeal or other courts established for a state by this Constitution or by law of a House of Assembly.
Member or staff of any commission or authority established for the state by this Constitution or by a law of a House of Assembly.
Staff of a Local Government Council.
Staff of any statutory corporation established by a law of the House of Assembly.
Staff of any educational institution established or financed principally by a government of a state.
Staff of any company or enterprise in which the government of a state or its agency holds controlling shares or interests.
The Defendants therefore submit that the Claimant being a staff of the Southern Ijaw Local Government Council is an employee in the Public Service of Bayelsa State. Therefore, Rule 020205 of the Public Service Rules 2009 is applicable to the Claimant.
The Defendants further avers that the Claimant has not come to equity with clean hands. Refers to the case of SEAMARINE INTERNATIONAL LTD & ORS VS. AYETORO BAY AGENCY & ORS (2015) LPELR 24785 (CA), CA/L/278/05. The failure of the Claimant to produce her birth certificate at the time of her employment is fraudulent and should be viewed as a serious misconduct on her part. And the Public Service Rules 2009 provides that serious misconduct is a specific act of very serious wrongdoing and improper behaviour which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal.
The Defendants then urged the court to take into consideration the following as laid down by Rules of the Public Service Rules, 2009:
Rule 030305 – on Disciplinary procedures for misconduct and serious misconduct, it is stated that
“If it is represented to the Federal Civil Service Commission that an officer has been guilty of misconduct and the commission does not consider the alleged misconduct serious enough to warrant proceedings under Rule 030306 with a view to dismissal, it may cause an investigation to be made into the matter in such a manner as it considers proper and the officer shall be entitled to know the whole case made against him/her and shall have adequate opportunity of making his/her defence. If, as a result, the Commission decides that the allegation is proved, it may inflict any other punishment upon the officer such as reduction in rank, withholding or deferment of increment or otherwise.”
That the Claimant during the verification exercise carried out by the Commission was asked to produce her age declaration at the time of her employment as well as other educational certificates obtained prompting her promotion. Claimant failed to do so. Refers to paragraph 5 of the Defendants Statement of Defence. The Defendants also refers to Rule 030401 and Rule 030402 of the Public Service Rules, 2009.
The Defendants further refers to Rule 030431 of the Public Service Rules on Statement of Appointment, as well as Rule 030601 of the said Rules. That paragraph 5 of the Defendants’ Statement of Defence and the evidence led in this respect, the offence of the Claimant attracts dismissal as its penalty but the Local Government Service Commission retired the Claimant based on compassion.
On the Third issue, that is, whether from the totality of evidence before this court, the Claimant is entitled to any reliefs sought, the Defendants submits that the Claimant stated under cross examination that she did not partake in any examination qualifying her to be promoted to Grade Level 06 and that she did not furnish the 3rd Defendant with her birth certificate or statutory declaration of any age at the point of her employment which will determine when her service years will elapse. Defendants submit that this piece of evidence is direct and relevant and should be given probative value. Refers to the case of OGBEIDE VS. OSULA (2004) 12 NWLR 87 @ 95 RATIO 7.
The Defendants then submits that the case of the Claimant in its entirety fails and is quite clear from all indication that the Claimant has not proved her case in any way to be entitled to the grant of the reliefs sought. Refers to the case of MADUBUONWU VS NNALUE (1999) 9 SC 20, where the Supreme Court held that “… the plaintiff must rely on the strength of his own case and not on the weakness of the Defendant’s case and if the onus is not discharged, the proper judgment will be for the Defendant”.
The Defendants then urged this court to dismiss the case of the Claimant and resolve this issue in favour of the Defendants.
On the fourth issue, that is, whether the Defendants/Counter Claimants have proved their case to be entitled to the reliefs sought, the Defendants aver that their case have been vigorously summarized and further arguments and authorities cited above. The Defendants then submits that the Claimants claims be dismissed for her obtaining her promotion to Grade Level 06 by fraudulent means and further submits that the Claimant should refund to the Commission all monies she received on Grade Level 03 to Grade Level 06, which is from September 2006 to September 2017. The Defendant refers to the Public Service Rules.
CLAIMANT’S FINAL WRITTEN ADDRESS
The Claimant in her Written Address dated and filed on the 5th July, 2018 formulated three Issues for determination as follows:
Whether or not from the evidence before the Court, the Claimant has attained sixty (60) years to be compulsorily retired by the Defendants.
Whether or not from the evidence before the Court, the Claimant reduced her age to defraud the Government as claimed by the Defendants and or influenced her promotion.
Whether or not Rules of Court are meant to be obeyed by litigants’ counsels in court.
On the First Issue, whether or not from the evidence before the Court, the Claimant has attained sixty (60) years to be compulsorily retired by the Defendants, the Claimant avers that from the totality of evidence before this Court, the Claimant has not attained the compulsory retirement age of Sixty (60) years as such the Claimant was unlawfully retired from the employment of the 3rd Defendant by the Defendants with EXHIBIT CW1 003. The Claimant refers the Court to the date of birth on EXHIBIT CW1 001, CW1 002, DW1 001 and DW1 002. The Claimant then urge this Court hold that the Claimant is yet to attain the compulsory retirement age of sixty (60) years and grant all the reliefs of the Claimant.
The Claimant further avers that it is trite law that documentary evidence is a better evidence compared to oral evidence as the content of a document cannot be proved by oral evidence. The Claimant then submits that EXHIBIT CW1 001, CW1 002, DW1 001 and DW1 002 as well as other EXHIBITS cannot be proved by oral evidence. The Claimant refers to section 152 of the Evidence Act, 2011 and the case OKONKWO VS. CCB (2003) 6 MJSC 122 @ 137 – 139 RATIO 2, where the Supreme Court States that:
“It is trite law that persons of full age and sound mind are bound by any agreement lawfully entered into by them. ‘Clause 7 of Exhibit B above gave the 1st Defendant the right to sell the mortgaged property if the plaintiff failed to repay the loan on the due date without further consent of the Defendant. By clause 8, of Exhibit B the Plaintiff also waived his right to be given any notice under statute or customary law. The Court of Appeal was thus plainly giving effect to an agreement entered into by the Plaintiff himself and nothing else when it said the Plaintiff had waived his right to any notice of sale under section 19 of the Auctioneers Law of Eastern Nigeria. The 1st Defendant/Bank was thus not bound under the lease (Exhibit B) to give the Plaintiff any further notice of the proposed sale after demand notices Exhibits H, H1 and H2.”
The Claimant further avers that section 125 of the Evidence Act, 2011 provides that: all facts, except the content of documents, may be proved by oral evidence.”
The Claimant submits that extrinsic evidence cannot be used to vary the content of any written document or agreement. Cites OKONKWO VS. CCB (SUPRA) PARTUCULARLY RATIO 3, where the Supreme Court while positing that extrinsic evidence cannot be used to vary the content of an agreement by parties to the agreement stated that “extrinsic evidence will generally not be acceptable to vary the terms agreed upon by parties to an agreement. See UBN v. Ozigi (1994) 1 NWLR (PT. 333) 400 [p. 135] para D.”
The Claimant also refers to the case of OGHOYONE VS. OGHOYONE (2010) 3 NWLR (PT. 1182) RATIO 5.
The Claimant further submit that before she was employed by the 3rd Defendant on or about the 23rd day of November 1994, the 3rd Defendant had reached agreement with the Claimant that the information provided for in EXHIBIT DW1 001 and EXHIBIT DW1 002 is true and binding on the parties, which are all documents of the Defendants. And that the Claimant further avers that it is not by appearance that the age of a person is determined as most persons appear younger while others appear older than their ages. The Claimant’s averments in paragraphs 12 and 13 of the Statement of Facts show that those conducting the 1st and 3rd Defendants’ immediate past verification exercise of staff under the employment of the 3rd Defendant looked at the Claimant’s face and said that the Claimant is older than sixty (60) years, hence the purported retirement. Further, the Claimant submits that it is trite law that the Defendant not reacting to the above paragraphs of the Claimant’s Statement of Facts means that the Defendants admitted same.
The Claimant contends that DW1 stated under cross examination that he has not seen a copy of the Age Declaration; that the date of birth in the Age Declaration and that of the Application Letter are the same; that from the records in the documents, the Claimant is not up to sixty (60) years. Also, DW2 under cross examination reads out to the Court the date of birth in the Application Form as 4th May, 1970. DW2 also reads to the Court the date of birth in the Age Declaration and Record of Service as 4th May, 1970.
The Claimant contended that the totality of both documentary and oral evidence shows that the Defendants did not verify their records properly before the 1st Defendant issued EXHIBIT CW1 003 to the Claimant contrary to the laws of the Federal Republic of Nigeria that governs retirement of civil servants in the country. The Claimant then urged this Court to so hold and grant all the reliefs of the Claimant as prayed.
On the Second Issue, whether or not from the evidence before the court, the Claimant reduced her age to defraud the government as claimed by the Defendant and or influenced her promotion, the Claimant avers that where the commission of a crime by a party to any proceeding is directly an issue in any proceeding whether civil or criminal, it must be proved beyond reasonable doubt. Refers to section 135 (1) of the Evidence Act, 2011. The Claimant submits that the Defendants failed to prove how the Claimant reduced her age in this case, whether via oral evidence or documentary evidence. But the documents produced in court by the Defendants rather support the case of the Claimant.
The Claimant avers that it is trite law that failure of DW2 to produce the said document simply means that such evidence if produced will be unfavourable to the Defendants. Refers to section 167 (d) of the Evidence Act, 2011. The Claimant further avers that DW2 stated under cross examination that it is the 3rd Defendant that promotes employees. The Claimant then urges the Court to hold that she did not influence her promotion in any way but same was lawfully done by the 3rd Defendant and further urged this Court to grant all the reliefs sought.
On the Third Issue, that is whether or not Rules of Court are meant to be obeyed by the litigants, Counsels and the Court; the Claimant avers that it is an elementary principle of law that in filing court processes, Government and its departments does not pay filing fees, but only when the Government is out of time in filing such court processes. The Claimant further avers that in the present case, the Complaint was served on the Defendant on the 15th day of December, 2017 and the Defendants filed their Joint Statement of Defence on the 31st day of January, 2018 out of time and failed to file a motion for extension of time as well as pay the penalties as provided for in Order 57 Rule 5 (3) of the Rules of this Court.
The Claimant further avers that Statutes and Rules of Court are not meant for fun but are to be obeyed. Cited the case of DALKO VS. UBN PLC (2004) 4 NWLR (PT. 862 @146, where the Court of Appeal held that “Rules of Court are the sources of procedural law which guide the courts in the orderly and just dispensation of justice. They must be followed and correctly applied in order to meet the purpose for which they are enacted.” Also cited the authorities EZEANAH VS. ATTA (2004) 7 NWLR (PT. 873) 468 @502 PARAS. D – R; OYEGUN VS. NZERIBE (2010) 1 NWLR 432 @ 439 AND 440 PARAS. 20 AND 21.
The Claimant further submit that where the legality of final action depends upon the performance of an action precedent to it or collateral action, the failure to perform that action precedent or collateral action is prejudicial to the final action. Refers to the case of SEAVIEW INVESTMENTS LIMITED VS. MUNIS (1991) 6 NWLR (PT. 195) 67 @88, where Niki Tobi, JCA (as he then was) stated that “I should end this issue by stating the law that if the legality of a final action depends upon the performance of an action precedent to it or a collateral action, the failure to perform that action precedent or the collateral action is prejudicial to the final action. This is because in law it has no legs to stand.”
With respect to jurisdiction, Claimant refers this Court to the decision of OYEGUN VS. NZERIBE (SUPRA), where the Court states that “the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.” The Claimant then submits that the Joint Statement of Defence filed by the Defendants is incompetent as the Defendants failed to pay the penalties as required by Order 57 Rule 5 (3) of the Rules of this Court and the failure has robbed this Honourable Court the requisite jurisdiction to make use of the Joint Statement of Defence.
On the Fourth Issue, that is, whether the Claimant has proved her case on the balance of probabilities as to be entitled to the grant of her reliefs sought, the Claimant adopts the arguments of Issues 1, 2 and 3 above as her argument in this Issue. The Claimant then submits that she has proved her case on the preponderance of evidence and as such is entitled to all the reliefs sought.
1ST, 2ND AND 3RD DEFENDANTS REPLY ON POINTS OF LAW
The Defendants filed a Joint Reply on Points of Law to the Claimant’s Final Written Address. The Reply is filed on the 13th July 2018, where Learned Counsel to the Defendants submit in response to Issue One of the Claimant’s Final Written Address that though it is trite law that documentary evidence is a better evidence as compared to oral evidence, and that extrinsic evidence cannot be used to vary the content of any written document; there are exceptions which can be found in section 128 (1) (a – e) and section 129 (2) and (3) of the Evidence Act, 2011. The vitiating elements are stated in section 128 (1) (a) of the Evidence Act as:
Illegality. Cited MBI VS. NUMAN NATIVE AUTHORITY (1958) NRNLR 11.
Fraud. Cited FOSTER VS. MACKINNON (1869) LR 4 CR 704.
Mistakes. Cited RAFFLES VS. WICHELHAUS (1864) 2 H & C 906.
Capacity. Cited ALLI VS. IKUSEBIALA (1985) (PT. 4) 380.
The Defendants aver that from the exceptions in section 128 (1) (a – e) and section 129 (2) and (3) of the Evidence Act, 2011 as well as the evidence led in this case in relation to fraud, the Defendant have met and fulfilled the elements of fraud whether by way of documentary evidence or oral evidence. The Defendants refer to paragraph 10 of the Defendants’ Statement of Defence.
The Defendants submit that the contents of the Claimant’s record of service, that is, EXHIBIT DW1 S1 002 are fraudulent and questionable as the date of birth on the document is fraudulent and mutilated. The Defendants further submit that oral evidence can vary the contents of a document when fraud is a material fact in issue. Cited FOSTER VS. MAKINNON (SUPRA).
In response to Claimant’s assertion that facts admitted need no further proof, the Defendants submit that it is the duty of counsel to assist the court to achieve justice and not to misrepresent facts. Cited UNIVERSAL TRUST BANK LTD & 2 ORS VS. DOLMETSCH PHARMACY (NIG) LTD SC 80/2002.
On the Claimant’s assertion that the Defendants failed to prove how the Claimant reduced her age whether via oral or documentary evidence, the Defendants submit that by the provisions of Rule 020205 of the Public Service Rules on eligibility for employment, the Defendants have proved their case. Further, the evidence of DW2 particularly when he was asked whether the Claimant reduced her age that was why she brought her age declaration eleven years after her employment, he replied “yes, it is a common practice in the Local Government.” The Defendants then submit that the date of birth in EXHIBIT DW1 S1 002 is mutilated.
On Issue Two of the Claimant’s Final Written Address, the Defendants submit that by the combined provisions of the Public Service Rules 2009 and the Evidence Act 2011, the Defendants have proved their case on fraud beyond reasonable doubt, and the rest on the balance of probability. The Defendants further submit that by the Claimant’s admission under cross examination that she does not know her age and does not possess any of the requirements for promotion to the rank of Assistant Chief Hall Supervisor, as per the Scheme of Scheme for Local Government Employees in Nigeria, the Defendants have met the requirements of burden of proving their case beyond reasonable doubt in terms of the fraudulent aspects of the case.
On Issue Three, the Defendants submit that the cases cited by the Claimant is distinct from the present case and does not therefore apply. The Defendants further submit that they filed an application for extension of time on the 31st day of January, 2018 which was granted by the Court. Cited AITEIDU VS. OBI (2010) ALL FWLR (PT. 533) 1891 @ 1895 RATIO 5, where the Court held Appeal held that a court can suo moto make reference to the case file before it before it and make use of any process if it finds necessary. Further, this Honourable Court is empowered under Order 5 (1) of the Rules of this Court to treat such non-compliance as an irregularity.
Further, the Defendants aver that by Order 5 (2), the Claimant is estopped from making this complaint having waived her right. The Claimant has taken steps after this alleged non-compliance with the Rules of this Court by the Defendants when he participated from the beginning of this case to this stage of final written address. Also, the Defendants submit that by Order 2, Claimant ought to make an application to set aside the perceived irregularity and cannot do so by way of arguments in a final written address. The Defendants therefore urge this Honourable Court to discountenance Claimant’s argument under Issue Three. Refers to FAWEHINMI VS. NIGERIAN BAR ASSOCIATION (2008) ALL FWLR (PT. 447) 1 SC where the court held that “if an objection is not radical and as it were, does not go to the essence, like jurisdiction as opposed to mere formal objections, the such objections should be raised at the earliest opportunity.”
The Defendants finally urged this Court to discountenance the arguments in the Claimant’s Final Written Address and uphold that of the Defendants.
COURT’S DECISION
I have carefully read and understood all the processes filed by the Learned Counsels for the parties in this suit. I heard the testimonies of the witnesses called on oath by parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also heard the Oral Submissions of the Learned Counsel for either side. Having done all these, I narrow the issues for determination of this case down to the following:
Whether taking into consideration the circumstances of the case, the claimant has proved her case to be entitled to all or some of the reliefs sought.
Before I delve into considering whether this case is meritorious, let me first of all set the records straight with regards to the third issue raised by counsel to the Claimant on the fact that the Defendants failed to file a motion for extension of time within which to file their Statement of Defence out of time and also their failure to pay default fees. Its correct to state here that the Defendants did actually filed a motion for extension of time dated 31st January, 2018, and filed on the same date; And same was moved and granted on the 1st day of February, 2018 upon payment of default fees as indicated in revenue receipt number 3102 – 684 – 5523. So the third issue raised by counsel to the claimant in the final written address is hereby discountenanced, same having not reflected the true position of events.
Having said that, let me now dissect the actual issues which are before this court. Its not in doubt that the Claimant was employed as a cleaner by the 3rd Defendant vide an employment letter dated 23rd November, 1994 (Exhibit CW1 001). Some years after (Eleven years) to be precise, the Claimant presented her statutory declaration of age to her employer (Exhibit CW1 002). The said statutory declaration of age was sworn by her uncle on the 8th day of March, 2005 declaring that Claimant was born on the 4th day of May, 1970 at Ikeinghenbiri town in Southern Ijaw Local Government Area of Bayelsa State.
During the sojourn of her career in the employment of the 3rd defendant, the claimant was promoted four times as indicated in Exhibits CW1 005 – CW1 008. The Claimant’s career was abruptly brought to an end by the 1st Defendant through a letter dated 15th September, 2017 on the ground that the Claimant has attained the mandatory retirement age of sixty (60) years. And it was based on this that the Claimant’s monthly entitlement was not paid from September, 2017 till date. Consequent upon that counsel to the Claimant wrote a letter dated 1st November, 2017 to the 1st Defendant (Exhibit CW1 004) demanding for the payment of the Claimant’s salary but all in vain.
On their own part the Defendants tendered Exhibits DW1 SI 001 – DW1 SI 002 which are the records of service of the Claimant. And Exhibit DW1SI 003 which is approved scheme of service for Local Government employees in Nigeria (4th Revised Edition 2006), And argued that the Claimant refused to submit her statutory declaration of age or birth certificate to the 3rd Defendant, and only submit same eleven years after because she altered her date of birth. And that the Claimant was fraudulently elevated to Grade Level 06 in the absence of the requisite qualification as contained in Exhibit DW1 SI 003. The Defendants also filed alongside the Joint Statement of Defence a Counter Claim seeking for some declaratory reliefs and also to order the Claimant to pay to the 1st Defendant all monies the Claimant received as salaries on Grade Level 03 to Grade Level 06, that is from September, 2006 to September, 2017 on the ground that the Claimant was fraudulently promoted on to those grade levels without due qualification.
It is of legal importance to note that under a contract of employment the court is not entitled to look out side the contract of service as to the terms and conditions. The parties to the contract are bound by the four walls of the contract and the only duty of the court is to strictly interprete the document that gives right to the contractual relationship in the interest of justice. See DAUDU VS U.B. A PLC (2004) 9 NWLR (Pt. 878) 276 C.A; AKINFE VS U.B.A PLC (2007) 10 NWLR (pt. 1041) 185.
Having said this, all the parties agreed that the retirement age of the Claimant is sixty years of age (see Exhibit CW1 – 003). And by Exhibit CW1 – 002 (the statutory declaration of age) shows that the Claimant was born on the 4th day of May, 1970. And even Exhibits DW1 SI 001 and DW1 002 which were tendered by the Defendants testified to this fact. Therefore, I am right to say that when the 1st Defendant compulsorily retired the Claimant vide a letter dated 15th September, 2017 (Exhibit CW1 – 003) the Claimant was forty seven years, four months of age and not sixty as the Defendants claimed in Exhibit CW1 – 003. And the Defendant has not led any evidence to show that the Claimant actually did forged or altered her age or that the Claimant fraudulently made her uncle to deposed to Exhibit CW1 – 003. And in the absence of any evidence contrary to the one before this court, the evidence of the Claimant with regards to her age remains unchallenged and uncontroverted which must be accepted by this court. See MOBIL PRODUCING NIG. Vs UDO (2009) ALL FWLR (pt. 485) Pg 1177 at 1202 – 1203, paras H – A.
Furthermore, Exhibit DW1 SI – 001 which is the application for employment and which forms part of the documents tendered by the Defendants shows that the Claimant was born on the 4th May 1970. Also contents of Exhibits DW1 001 and DW1 002 is very explicit that the contents of these documents are binding on all parties. Then why are the Defendants reneging from this earlier agreement. The fact that some members of the verification committee adjudged the Claimant to be over sixty years of age, their decision can not take the place of Exhibits CW1 002, this is because documentary evidence can not be proved by oral evidence. See OKONKWO VS CBB (2003) 6 MJSC 122 AT 137 – 139 RATIO 2. See also section 125 of the Evidence Act, 2011. And the Defendants failed to prove any one of the conditions listed in sections 128 (1) (a – e) and section 129 (2) and (3) of the Evidence Act, 2011.
On the Second Issue raised by the Defendants that the Claimant was fraudulently promoted to Grade Level 06 without proper qualification as contained in Exhibit DW1 SI – 003 which also forms part of the issues formulated by this court. It is worthy to state here that from Exhibit CW1 005 – Exhibit CW1 008, (promotion letters) all emanated from the 3rd Defendant. And in all the said exhibits the 3rd Defendant categorically stated that the Claimant was promoted based on her performance at the promotion interview which was conducted by the Junior Staff Management Committee of the 3rd Defendant. The Claimant has never for once promoted herself to any grade level. And the Defendants fully knowing that the Claimant does not merit the promotion, and still went ahead and promoted the Claimant only to turn around now and cry foul, this is an after thought. They are estopped from denying these facts.
Moreover, the 1st Defendant in Exhibit CW1 003 (Retirement Letter) categorically stated the reasons why the claimant was retired. The Claimant was retired having attained the mandatory age of sixty years and not because of the fact that the Claimant was promoted wrongly. And Exhibit DW1 SI – 003 (Approved Scheme of service for Local Government Employees in Nigeria) came in to effect in 2006. And the promotion letters of the Claimant (Exhibits CW1 005 – Exhibits CW1 008) came into effect from 1998 – 2006; therefore Exhibit DW1 SI 003 can not operate retrospectively. And its trite that where the conditions of service applicable at the time of appointment had in the meantime been amended or replaced, the relevant conditions of service is the one that is applicable at the time of appointment. See E.C.W.A Vs. DELE (2004) 10 FWLR (Pt. 230) 297. On whom the onus of proof lies on termination of appointment, the law fixed that on the Claimant. See KABEL METAL NIG. LTD VS ATIVIE (2002) 10 NWLR (PT. 775) 250. And its my ardent belief that the Claimant has discharged this onus and as such the Claimant is entitled to judgment. I resolved the issues for determination in favour of the Claimant.
In view of the foregoing facts I enumerated ab initio I hold that the Claimant is an employee of the 3rd Defendant having not attain the compulsory retirement age of sixty years and as such I order the Defendants to re-instate the Claimant to her right position as a staff of the 3rd Defendant and also to pay the Claimant her monthly salaries from the Month of September 2017 up to date at Thirty Three Thousand Five Hundred Naira (N33,500.00) per month and also order that the Defendants shall not withhold her salary and entitlements unjustifiably. I refused to grant reliefs (f) and (g) and same are hereby dismissed on the ground that the position of the law is that in breach of contract of employment what the court is enjoined to do is to put the Claimant into the correct position she would have been, if the breach had not occurred. It is not intended to give the employee a windfall on all claims for damages. See IFETA VS SPDC (NIG.) Ltd (2006) 8 NWLR (Pt. 938) 585 SC.
On the issue of the counter claim, though its an independent action of its own and this court having entered judgment in favour of the Claimant as per her claims, I felt the reliefs sought in the counter claim can not succeed. As such the counter claim fails and same is hereby dismissed.
Finally, for the avoidance of doubt and for all the reasons as stated in this judgment:
I declare that the Claimant is an employee of the 3rd defendant.
I declare that the Claimant is yet to attain the compulsory retirement age of sixty years as claimed by the 1st Defendant.
I direct the Defendants to reinstate the Claimant to her right position as a staff of the 3rd Defendant.
I direct the 3rd Defendant to pay the Claimant her monthly salaries from the month of September, 2017 at Thirty Three Thousand, Five Hundred Naira (N33,500.00) per month to date.
I direct the Defendants not to further withhold the Claimant’s salary and other benefits due to the Claimant unjustly.
I dismissed reliefs (f) and (g).
All terms of this judgment are to be complied within 30 days from today.
Parties are to bear their respective cost.
Judgment is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI
Presiding Judge
Signed
