OSHADARE SUNDAY JOHN VS THE GOVERNOR OF KOGI STATE & 2 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

Dated this 21^st day of March, 2018

SUIT N0: NICN/LKJ/04/2017

BETWEEN:

OSHADARE SUNDAY JOHN

CLAIMANT

AND

THE GOVERNOR OF KOGI STATE
KOGI STATE CIVIL SERVICE COMMISSION
ATTORNEY GENERAL AND COMMISSIONER

FOR JUSTICE, KOGI STATE

DEFENDANTS

Representations:

Chief J.O. Ajewole with I.O. Olukotun and A.O. Akande for the Claimant

Abdulwahab Muhammed for the Defendants.

JUDGMENT

This suit was initially commenced by way of an originating summons dated 25^th July, 2017 and filed on the 26^th day of July, 2017 by the Claimant. The Originating Summons was accompanied by a fifty-three (53) paragraphs affidavit and a written address; wherein the following reliefs were sought against the Defendants:

a) A DECLARATION that the purported disengagement or approval of disengagement of the Claimant by the 1^st Defendant on 27^th April, 2017 from the Civil Service of Kogi State upon unproven allegations made against the Claimant in the Report of the Kogi State Staff Screening/verification Appeal Committee is unlawful, illegal. Null, void and of no consequence whatsoever.

b)A DECLARATION that the purported disengagement or approval of disengagement of the Claimant by the 1^st Defendant upon the Report of the Kogi State Staff Screening/Verification Appeal Committee without affording the Claimant the opportunity of being heard in response to all the allegations is a violation of the right of fair hearing guaranteed for the Claimant by the 1999 Constitution of the Federal Republic of Nigeria.

c) AN ORDER re-instating the Claimant to his office in the Kogi State Civil Service with all due promotions as well as payment of all arrears of his salaries and benefits.

The 1^st – 3^rd Defendants on 8^th September, 2017 filed a nine (9) paragraphs counter affidavit in opposition to Claimant’s originating summons, wherein they urged this Honourable Court to discountenance and dismiss the reliefs sought by the Claimant.

On the 24^th of October, 2017 when the matter came up for hearing, this Honourable Court upon a conviction that the Claimant’s affidavit raises substantial issues and dispute of facts, ordered the conversion of the Originating summons to Complaint and directed the parties to file and exchange pleadings in accordance with Order 3 Rule 17 of the rules of this Court.

Following the directive of this Honourable Court, the Claimant on the 1st day of November, 2017 filed a complaint accompanied by statement of claim and a witness statement on oath, list of documents to be relied upon at trial and copies of the documents.

The reliefs sought were the same as was in the earlier originating summons and as captured above.

The 1^st-3^rd Defendants in response to the above Claims, filed a joint statement of defence on the 3^rd of November, 2017 and accompanied same with a witness statement on oath and list of witnesses urging this honourable Court to dismiss the Claimant’s suit as he is not entitled to any of the reliefs as contained in his statement of Claim.

Case for the Claimant

The Claimant opened his case on 4^th of December, 2017 and called one witness who was the Claimant himself, CW1. The said CW1 adopted his 2 witness statements on oath. The first dated the 1^st of November, 2017 and the other dated 13^th November, 2017 as his evidence in chief and it was marked as C1 (a) and (b). Through the same witness, 19 documents were tendered as exhibits. The documents were admitted and marked as exhibits C2 – C20.

Arising from the statement of Fact, statement of claim and C1 (a) and (b), it is the case of the Claimant that the Claimant was employed by the Kogi State Ministry of Health as a messenger on Grade Level (GL) 02 in July 1992. The Claimant, while in the employment obtained study leave to improve his educational qualification. He obtained Certificate in Public Accounting and Audit in 1996 and Diploma in Public Accounting and Audit in 1998 upon which he rose through the ranks to become Principal Executive Officer Accounting 2, with Salary Grade Level 10 in January, 2010.

The Claimant served in the Ministry of Health, Kogi State Board of Internal Revenue, Kogi State Teaching Service Commission and Kogi State Primary Education Board (SUBEB) where he was until the Kogi State Staff Screening and Verification exercise in 2016.

The Claimant was invited on 22^nd March 2016 by the Kogi State Staff Screening and Verification Committee which carried out its screening exercise at the Government House, Lokoja and upon the Claimant’s appearance before the Screening Committee he was immediately handed over to the police on the allegation by the Committee that he had thirty (30) ghost workers on the pay roll of Kogi State Civil Service.

The police conducted investigation and found that there was no proof that the Claimant had thirty (30) ghost workers on the pay roll of Kogi State Civil Service and released him on bail.

Shortly after that, he was invited back by the police and handed over to the Directorate of State Services for further investigation on the issue of the alleged thirty (30) ghost workers on the pay roll of Kogi State Civil Service.

On 31^stMarch, 2016 the D.S.S released the Claimant on the ground that there was no proof that he had thirty (30) ghost workers on the pay roll of Kogi State Civil Service.

The Claimant thereafter appeared again before the Kogi State Staff Screening/Verification Committee and he was screened, cleared and his salaries paid until July, 2016.

Meanwhile, the Claimant had earlier obtained a co-operative loan from Kogi State Ministry of Finance Multipurpose Co-operative Society and he was paying the loan through monthly deduction from his salary. At a certain point, there was issue arising from the deduction which did not reflect in the payment for three months.

The Claimant then complained in writing of underpayment of his salary for the months of February, March and April 2016 to the Head of his office i.e., the Executive Chairman of SUBEB who in turn forwarded the complaint to the Secretary of Kogi State Staff Screening/Verification Review Committee as the Committee was responsible for payment of salaries.

Thereafter, the Claimant was invited by the Kogi State Staff Screening/Verification Review Committee, however, the Review Committee rather than addressing the short falls in the salaries of the Claimant for the months of February, March and April 2016 which is the basis of the complaint before the Review Committee the Claimant was asked if he knew one Mr. Solomon Olabode who the Claimant earlier assisted to process his retirement documents at the Kogi State Teaching Service Commission and the Claimant answered in the affirmative.

The Claimant was there and then handed over to the State Investigation Bureau (SIB) of the Kogi State Police Command on a new allegation that he pay-rolled Mr. Solomon Olabode. The SIB, Kogi State Police Command investigated the allegation and concluded that the allegation was unfounded and the Claimant was subsequently released.

Despite that, the Kogi State Screening/Verification Review Committee released its Report but refused to clear the Claimant, raising a fresh allegation which the Claimant was never confronted with, i.e. a huge and unexplained cash flow was found in the salary account of the Claimant.

An Appeal Committee was set up to consider the cases of those who were not cleared by Staff Screening/Verification Committee and the Claimant took his case to the Appeal on the new allegation that a huge and unexplained cash flow was found in the salary account of the Claimant.

The Appeal Committee considered the appeal of the Claimant and found inter alia in its Report:

All relevant documents sighted and copies attached Review of staff statement of account does not reveal huge lodgment of cash based on his level

However, the Appeal Committee did not stop there, rather, it raised fresh allegations against the Claimant which the Claimant was not confronted with or given opportunity to respond to. The new allegations are:

i) The staff has been mentioned in a confessional statement by one of the suspects who were receiving multiple salaries. Staff involved in fraudulent activities.

ii) The officer was implicated in employment racketeering while in the Police investigation confirmed staff involvement. Staff involved in the act of misdemeanor and enriched self at the detriment of the State.

iii) Abuse of office resulting in undeserved financial benefit at the detriment of government.

On the basis of these new allegations which the Claimant was never confronted with, the Appeal Committee did not clear the Claimant as a civil servant in the pay roll of Kogi State Government and the 1^st defendant while receiving the Report of the Appeal Committee on 27^th April 2017 said any civil servant in Kogi State whose name was not cleared by the Appeal Committee should consider himself as disengaged from the Kogi State Civil Service with liberty to challenge the Government of Kogi State in a court of law if so desire.

The Claimant believes that the allegations raised against the Claimant for not clearing his name as a bonafide civil servant in the Kogi State Civil Service constitute serious misconduct under the Civil Service Rules applicable in Kogi State. And the non-clearance of the name of the Claimant as a bonafide civil servant and the consequent determination of his appointment by the 1^st Defendant is a violation of the time honoured Civil Service Rules applicable in Kogi State.

Also, the determination of the appointment of the Claimant by the 1^st Defendant based on allegations the Claimant was never confronted with or afforded opportunity to defend or react to it is a violation of the right of fair hearing guaranteed for the Claimant by the 1999 Constitution of the Federal Republic of Nigeria (as amended).

During cross examination, CW1 answered in the negative that he has not been charged nor arraigned before any court in Kogi state. He also stated in the negative that his appointment letter was not signed by the Governor that it is the ministry that acts based on the approval of the Governor. When asked if he has been issued any termination letter he answered in the negative and added that the Governor made an announcement that when the report is out, whoever is not pleased should go to court.

There was no re-examination of the CW1 and with that the Claimant closed his case.

Case for the Defendants

The Defendants open their case same day. Calling one witness, DW1, Kazeem Akinsola who adopted his witness statement on oath dated and filed on 3^rd November, 2017 as evidence in chief and marked as D1. No document was tendered through the witness.

Arising from the statement of defence and witness statement on Oath of DW1, the case for the Defendants is that the claimant is still a staff of Kogi State Primary Education Board. He has only not been cleared by the screening committee which exercise is still on-going.

The Defendants stated that they set up a State Staff Screening and Verification Committee to ascertain the actual work force in Kogi State in order to weed out ghost workers and those with forged documents, e.t.c. and that the claimant was invited by the Kogi State Screening and Verification Committee who upon screening him, discovered the Claimant to be involved in serious misconduct and investigation is still ongoing and prosecution may follow if necessary.

The Defendant further stated that the claimant was implicated in pay roll racketeering and investigation is still ongoing as he was implicated by the testimony of one Dr. Solomon Adebayo Olabode who stated in his statement to the screening panel and police that the Claimant inserted his name in the payroll of the Kogi State Teaching Service Commission, even though he had left the services of the Kogi State Teaching Service Commission.

The Defendants deny disengaging the Claimant as no such decision has yet been taken by the Kogi State Government and the Claimant remains a staff of the Kogi State Government as he is only in a hurry to prejudice an ongoing investigation.

The Defendants stated that, the defendants have not contravened any provisions of the Civil Service Rules as investigation is still ongoing.

The defendants states that because of the paucity of funds the 1^st and 2^nd defendants have not been able to pay the claimant as well as other staff in the Kogi State Civil Service and concluded that the claimant is not entitled to any of the claims as contained in the claimant’s statement of claim.

Upon cross examination, DW1 was asked whether he has any proof of the allegation that the Claimant was involved in pay roll racketeering. He stated that while reviewing the files of one Dr. Solomon Adebayo of Kogi state University, who has been collecting salary from Kogi state University and Teaching Service Commission, he mentioned the Claimant as being the person that left his name on the payroll of the Teaching Service Commission despite the fact that he has already resigned. He said that the confession is on tape. DW1 was asked if the file of Dr. Adebayo or tape recording is in court but He answered in the negative. Dw1 also maintained that investigation is still on-going at the State Bureau of Investigation. When asked if DW1 was shown Exh.C20 and asked to read page 50 which reads that he (CW1) is not liable. Dw1 was also challenged as to not speaking the truth that the Claimant has not been dismissed. He answered that he is surprised because there was no recommendation that anyone be dismissed and further asserted that Claimant is still a bonafide employee of Kogi state Civil Service.

FINAL ADDRESSES AND ISSUES RAISED WITHIN

The 1^st to 3^rd Defendants filed their final written address on the 18^th of December, 2017 and adopted same on the 24^th of January, 2018.

Arising from the final written address, the Counsel to the Defendants, Abdulwahab Muhammed formulated a lone issue for the determination of this court to wit:

“Whether the Claimant’s suit has disclosed any reasonable cause of action worthy of this Honourable Court‘s Consideration.”

In arguing the lone issue, Counsel submitted that it would be apt to attempt to define what a reasonable cause of action entails vis a vis this suit, to ascertain if the Claimant’s suit merits any consideration of this Honourable Court. Counsel quoted the meaning of cause of action in Dantata V. Mohammed (2000) 5 S.C 1 @29.

Learned Counsel then referred to the admission by the Claimant during cross examination that he has not been issued letter of termination of employment and contended that it is crystal clear from the foregoing testimonies that the Claimant’s appointment was never terminated by the 2nd defendant, as the Claimant remains a bonafide staff of the 2^nd defendant. All the Claimant has as evidence before this Honourable Court of his purported disengagement from the services of the 2^nd Defendant is a statement purportedly made by the Governor of Kogi State contained in paragraph 43 of the Claimant’s witness statement on oath marked and admitted as Exhibit C1.

Counsel reiterated that the above statement, which was not tendered in Court, was what the Claimant anchored his claim on, in approaching this Court. There was no letter of termination of employment issued to the Claimant by any of the Defendants and argued that it is a cardinal principle of law that he who asserts must prove. That the Claimant has not placed anything before this Honourable Court in proof of the fact of the purported termination of his employment by the defendants. Counsel cited the case of OKOYE & ORS V. NWANKWO (2014) LPELR-231 72(SC).

Learned counsel then posed the question that if the Claimant has not been disengaged from the services of the defendants, what then is the basis of this action filed by the Claimant before this Honorable Court? The Claimant having not been disengaged from the services of the 2^nd defendant, has no cause of action against the defendants in this suit.

Learned counsel also added that the Claim of the Claimant has nothing to stand upon and must ultimately collapse. This principle has been stated in the locus classicus of UAC V. McFoy (1962) A.C.152.

Learned Counsel further submitted that the Claimant filed a reply to the Defendants’ Joint Statement of Defense wherein in the affidavit accompanying same, the Claimant in paragraph 2 of the further statement stated as follows:

“That I know as a fact that in an earlier affidavit in this case one Esther Ekanem deposed on behalf of the Defendants that I have been dismissed from the Kogi State civil Service”

Counsel argued that the deposition above which the Claimant sought to rely on as an admission of his disengagement by the defendants was made in an earlier counter affidavit to the Claimant’s originating summons which is no longer cognizable by this Honourable Court as it has been overtaken by events. And that the Court can no longer make recourse to them. What is more, the said counter affidavit referred to by the Claimant was never adopted or relied upon by the defendants as the originating summons was never heard. In a nutshell, the Court cannot act on or rely on a document not properly before the Court. Counsel cited OWOPE V. OSANIBI & ORS (2009) LPELR-3954 (CA)

Counsel submitted that the desperate attempt by the Claimant to establish a cause of action against the defendants by making reference to a process that is no longer before this Honourable Court in the determination of this suit must fail, and urged this court to so hold.

Learned Counsel also contended that the reliefs sought by the Claimant as per his complaint in the statement of Claim are declaratory in nature hence Claimant cannot rely on any admission made by the defendants, but must succeed solely on the strength of his case. He cited the case of NIGERIAN GAS Co. LTD. V. Mr. G.O. DUDUSOLA (2005) 18 NWLR (P1.957) Pg. 292.

With respect to the reply filed by the Claimant, Learned Counsel Submitted that the Claimant’s reply to the defendant’s joint statement of defence on which the Claimant filed a further statement is in itself defective. A reply is filed if and only if there are new issues raised by the defendant in its statement of defense, which the reply will address. Counsel cited the case of APC v. PDP (2015) NWLR (Pt. 1481) 1 SC.

With regards to “Police Final Report on the Screening Exercise on Culprits to be prosecuted” admitted and marked “Exhibit C20”, Counsel argued that on the face of the document, one does not need any aid to ascertain that the document is public document which requires certification to prove its authenticity and having not been certified renders it inadmissible by this Honourable Court. Counsel cited the case of Tabik Invest. Ltd V. G. T.B Plc (2011) 1 7NWLR (Pt.1276,) 240 S.C; YAKUBU V. IDA & ANOR (2008) LPELR-5109(CA)

Counsel respectfully urged the Court to uphold their arguments and dismiss the Claimant’s suit against the 1^st – 3^rd Defendants with substantial costs in favour of the defendants.

In response, the Claimant filed a final written address on the 8^th of January, 2018 and adopted on the 24^th of January, 2018. Learned Counsel to the Claimant, through the said written address submitted a preliminary and two substantive issues for determination.

The preliminary issue is to wit:

Whether the defendants have adduced any iota of valid evidence in this case.

While the substantive issues are to wit:

i) Whether the Claimant has established his declaratory claims before this honourable court.
ii) Whether the Claimant is entitled to an order of reinstatement to his office in the Kogi State Civil Service with all due promotion as well as payment of all arrears of his salaries and benefits.

With regards to the preliminary issue, Learned counsel argued that it is settled law that the onus rests squarely on the party who seeks declaratory reliefs to succeed on the strength of his own case and not on the weakness of his adversary. Nevertheless, it is equally the law, that in civil cases facts are proved on a preponderance of evidence and when there is nothing on the other side of the balance, the onus of proof is discharged on a minimal proof.

Counsel further submitted that it is a fact before the honourable court that the Defendants filed a 21 paragraph joint statement of defence dated 3^rd November, 2017, nonetheless, a statement of defence per se does not translate to evidence. He cited the case of Federal Capital Development Authority Vs. Alhaji Musa Naibi (1990) ALL NLR 475 at 485 and Omisore V. Aregbesola (2015) 15 NWLR (Pt.1482) 205 at 280.

Learned Counsel also asserted that the statement on oath of Dw1 which was purportedly filed on 3^rd November, 2017, was not deposed to before a Commissioner for oath. He cited section 10 (1) Oaths Acts, Cap. 01 Laws of the Federal Nigeria 2004 Vol. 12 and submitted that it is trite law that without the oath the deposition or written declaration on a piece of paper is a mere piece of paper and nothing more.

He also placed reliance on the case of GE Int’l Operations Ltd V. Q-Oil & Gas Services (2015) 1 NWLR (Pt. 1440) 244 at 270 Paras B-E to contend that it is the oath that gives validity to deposition as testimony.

With respect to issue 1, the claimant conceded that it is trite law that the onus lies on the Claimant for declaratory reliefs to succeed on the strength of his case and not the weakness of his adversary and presented an indices by which such prove is to be made as:

i) His employment by the 2^nd
ii) The terms and conditions of the employment.

iii) Show that his termination or disengagement by the 1st defendant is in breach of the terms and conditions of his employment; and

iv) Show that the termination or disengagement is in violation of the right of fair hearing guaranteed for him in the 1999 Constitution of the Federal Republic of Nigeria 1999 as amended.

Counsel cited the case of Babatunde V. Oshogbo Steel Rolling Co. Ltd (2000) FWLR (Pt. 10) 1659 at 1671.

Learned Counsel then referred to all the exhibits that establishes the Claimants employment and also quoted Paragraph 04107 of the Kwara State Government Civil Service Rules which is applicable in Kogi State by the operation of section 4 of the States (Creation and Transitional Provision) No. 2 decree No. 41 of 1991 to establish how an employment under the civil service is to be determined.

Learned counsel also restated that in establishing the disengagement of the Claimant paragraph 41 and 42 of the statement on oath suffices to the extent that once a piece of evidence on oath is adopted it becomes an evidence-in-chief of such a witness for the facts in the deposition. He referred to the case of Aregbesola V. Oyinlola (2011) 9 NWLR (Pt.1253) 458 at 606 .

With respect to the procedure for disengagement, Counsel argued that it is trite law that where a statute or rules prescribes certain procedure to be followed before a person can be deprived of his right (as Exhibit 16 provides in this case) such procedure must be strictly followed. He cited the case of Teaching Hospital V. Nnoli (1994) 10 SCNJ 71 at 85.

Counsel humbly urged the court to hold that the disengagement or the approval of disengagement of the Claimant by the 1^stdefendant on 27^thApril, 2017 from the Kogi State Civil Service is unlawful, illegal, null and void and of no consequence whatsoever owing to the weighty allegations in Exh.15 which the Claimant was denied fair hearing.

Counsel cited the case of Ashiru V. Ayoade (2006) 6 NWLR (Pt.976) 405 at 431 Paras. E-G and Obienu V. Okeke (2006) 14 NWLR (Pt. 1005) 225 at PP. 241-242 Para G-A.

The Defendant then filed a reply on point of law on 12^th January, 2018 wherein Learned Counsel to the Defendants, Abdulwahab Muhammed, responded to arguments made by Counsel to the Claimant. With regards to Counsel to the Claimant’s contention of having adduced evidence with minimal proof through the witness statement on oath, Counsel submitted that no foundation was laid nor document tendered thereby making it hearsay and of no evidential value. He cited the case of Ladoja v Ajimobi (2016) LPELR – 40658 (SC).

With regards to the witness statement on oath of DW1 which Claimant Counsel argued was not deposed before a commissioner of oath, Learned Counsel submitted that it was sworn before a Commissioner for Oath named Oruma Ayuba Musa and that parties are bound by the record of the Court. Counsel cited the case of Oglioko Memorial Farms Ltd & Anor v NACB Ltd. & Anor. (2008) 12 NWLR (Pt.1098) P.412.

Counsel also re-echoed that the Claimant has not proved disengagement and that the Claimant Counsel’s contention that the defendant had chosen oral method to disengage him is erroneous. Counsel cited the case of Board of Management, Federal Medical Centre & Anor v Abakume (2015) LPELR 24786.

With respect to Exh. C20, learned Counsel argued that the Claimant is not the maker of the document and cannot therefore tender the original. Counsel cited the case of Emeka v Chuba Ikpeazu & ORS (2017) LPELR- 41920 (SC). He concluded by urging the court to uphold their reply and dismiss the arguments of the Claimant.

I have painstakingly evaluated and understood all the processes filed by learned Counsel for the parties in this suit. I have reviewed the testimonies of the witnesses called on oath, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I also heard the oral submissions of learned Counsel for either side while adopting the final written addresses.

Arising from the totality of the issues raised and addressed by the Learned Counsel in the final written addresses for both parties and the reply on point of law filed by the Defendant, the issues for determination by this court are to wit:

Whether the Claimant’s suit has disclosed any reasonable cause of action worthy of Consideration by this Honourable Court.
Whether having regards to the circumstances of this suit, the Claimant is entitled to the reliefs sought.

With respect to issue one, learned Counsel to the Defendant Abdulwahab Muhammed contended that since the Claimant has not been issued letter of termination of employment which the claimant rightly admitted on cross examination, it is crystal clear from the foregoing testimonies that the Claimant’s appointment was never terminated. The Counsel to the Claimant, A.O. Ajewole, on the other hand contended in response that in establishing the disengagement of the Claimant, paragraph 41 and 42 of the statement on oath suffices to the extent that once a piece of evidence on oath is adopted it becomes an evidence-in-chief of such a witness for the facts in the deposition. What is core from these contentions is that the Defendant believes there is no cause of action giving the Claimant the benefit of the reliefs sought.

So what then is a cause of action? The court in OANDO PLC v. MRS. COMFORT AJAIGBE & ORS (2015) LPELR-24816(CA) held that:

“From the authorities on the subject, “cause of action” means – (a) A cause of complaint; (b) A civil right or obligation for determination by a Court of law; (c) A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine; (d) Consequent damages; (e) Every fact which would be necessary for the Plaintiff to prove, if traversed in order to support his right to the Judgment of the Court. It does not comprise every piece of evidence that is necessary to be proved; (f) All those things necessary to give a right of action whether they are to be done by the Plaintiff or a third person; and (g) It is a factual situation, which enables one person to obtain a remedy from another in Court in respect of Injury. See A-G Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 SC, A-G Fed. v. ANPP (2003) 12 SCNJ 67, Nwokedi v. Egbe (2005) 9 NWLR (Pt. 930) 293, Mobil Oil Plc. v. D.E.N.R. Ltd. (2004) 1 NWLR (Pt. 853) 142, and Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182 SC, wherein Edozie, JSC, observed – “A cause of action is the bundle or aggregate of fact, which the law will recognize as giving the Plaintiff a substantive right to make the claim for the relief or remedy being sought. Thus, the factual situation on which the Plaintiff relied to support his claim must be recognized by law as giving rise to a substantive right capable of enforcement or being claim against the Defendant”. In essence, a cause of action is the totality of facts that the law will accept as giving a claimant the basic right to make a claim for the relief being sought. We must also bear in mind that each case is considered on its own merit, and there is no one-case-fits-all in our legal system. In other words, no two cases are exactly similar – see Dokubo Asari v. FRN (2007) 6 SCNJ 192.” Per AUGIE, J.C.A. (Pp. 37-39, paras. F-A)

The question that must then be asked are: 1, are there facts in this suit giving rise to a cause of complaint?; 2, is there a civil right or obligation for determination by this court? and 3, is there a factual situation, which enables the Claimant to obtain a remedy or remedies from this court in respect of an injury?.

While the Claimant had truly admitted that he was not issued a letter of termination of employment, which for the Defendant is a piece of evidence to prove the termination, the Claimant presented facts which related to his alleged disengagement from the employment of the Defendants. In paragraph 41 and 42 of the witness statement on Oath deposed to by the Claimant himself and adopted before this court as C1(a) the following facts were deposed:

That since the report of the Appeal Committee was submitted, my name has not been cleared as a bonafide employee of Kogi State Civil Service and my salary has not been paid ever since.

That I know as a fact that while the governor of Kogi State His Excellency, Alhaji Yahaya Adoza Bello was receiving the report of the Appeal Committee on 27^thApr11 2017, he said that any Civil Servant in Kogi State whose name was not cleared by the Appeal Committee should consider himself as disengaged from the Kogi State Civil Service with liberty to challenge the government of Kogi State in a court of law if so desired.

Firstly, these two paragraphs are sufficient to deduce a cause of complaint which are that since the report of the Appeal Committee, the name of the Claimant has not been cleared as a bonafide employee of Kogi State Civil Service and that his salaries have not been paid. Secondly, the employment of the Claimant and payment of his salaries are without doubt civil rights existing under employment laws of Nigeria which this court has been empowered under section 254C of the Constitution of Federal Republic of Nigeria 1999 as amended to entertain and determine and I so hold. Thirdly, the factual situations in the C1 (a) and (b) and D1 have shown clearly that the Claimant is aggrieved by the statement alleged to be made by the 1^st Defendant which is considered to have disengaged him. The defendant on the other hand is asserting that the Claimant has not been disengaged. Such joined issue has to be decided by the court in order to determine whether the Claimant is entitled to obtain a remedy or remedies from this court and I so hold.

It must be clearly stated that Cause of action is not the remedy in itself. Rather, it is the set of facts that gives a party the right to approach the court. Consequent upon that, this court believes that the Claimants suit discloses a cause of action deserving the attention of this Honourable court and therefore resolves issue one in favour of the Claimant.

With regards to issue two. Let me start by addressing the status of Exh.D1, which is the Witness statement on oath of the only witness for the Defendants in this suit. Learned Counsel contended that the witness statement on oath was not deposed to before a Commissioner for Oath while the Counsel to the Defendant contended that it is and stated that parties are bound by the record of the Court. I have taken a second look at the said document and it is rightly sworn before the Commissioner for Oath of this Honourable Court, Oruma Ayuba Musa as evidenced by his stamp on the face of the document in the record of this court and I thereby hold that the said D1 is proper.

Also, the status of Exh.C20 tendered through CW1 which is the second document in contention arising from the written addresses of the parties requires a clarification of its status in this suit.

A copy of the said document was filed along with the Claimants Reply to the Defendant’s Joint statement of Defence. The court admitted same in the course of proceedings. Learned Counsel to the Defendant raised the contention in the Final Written Address that the document is a public document emanating from the Police and therefore requires certification. The Counsel to the Claimant on the other hand argued that the Defence Counsel did not raise the issue during trial but merely referred to the reply filed by the Claimant out of time. The record of proceedings agrees with the Counsel to the Claimant’s assertion. However, a careful examination of Exh.C20 reveals truly that it is “Police Final Report on the Screening Exercise on Culprits to be prosecuted” and on the face of it suggests that it emanates from the Police, which is a public body as held in the case of TABIK INVESTMENT LTD. & ANOR v. GTB PLC (2011) LPELR-3131(SC).

Can this document therefore be classified as public document? What qualifies as a public document has been defined under section 102 of the Evidence Act 2011 thus:

The following documents are public documents-

a. documents forming the official acts or records of the official acts of-

(i) the sovereign authority;

(ii) official bodies and tribunals; or

(iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and

public records kept in Nigeria of private document.

section 103 also provides that “All documents other than public documents are private documents”. See Anagbado v Faruk (2016) LPELR-41634 (CA)

Exhibit C20,the subject of this issue was the Police final report on the screening exercise. The said report apparently emanated from the Nigerian Police and is therefore a public document. The language is clear, explicit and categorical that the only admissible evidence to prove the existence, condition and content of a public document is a certified true copy (CTC) of the original and no other.

Put differently, the only categories of public document that are admissible are either the original document itself or in the absence of such original, certified copies and no other. See also PDP v INEC (2014) LPELR-23808 (SC); Udo vState (2016) LPELR 40721 (SC).

The court in HOUSE OF REPRESENTATIVES & ORS v. SPDC NIGERIA & ANOR (2010) LPELR-5016 (CA) described the feature of a public document when it held that:

“A public document is a document made for the purpose of the public making use of it especially in a judicial or quasi-judicial duty. The features of a public document is that it is created over a public matter, preserved for good of the public and always accessible for public inspection and use especially by all those having something to do with it. See Cross River Property Development & Investment Company Limited v. Eno I. Obongha (2000) Pt. 670 page 751 at 768.” Per Aboki, J.C.A. see also Salami v. Ajadi. (2007) LPELR-8622(CA)

What then is the requirement for the admissibility of a public document? The Supreme Court in TABIK INVESTMENT LTD. & ANOR v. GTB PLC (2011) LPELR-3131(SC) held authoritatively that:

“Before a public document can be tendered and accepted by the court it must be certified. A Public document is certified if:

it was paid for
there is an endorsement/certificate that it is a true copy of the document in question.
the endorsement/certificate must be dated and signed by the officer responsible for certification, with his name and Official Title.” Per Rhodes-Vivour, J.S.C. (P.24, Paras. B-C). See alsoAina v. Jinadu (1992) 4 NWLR (pt 233) 91 at 107.

Further, section 104 Evidence Act, 2011 provides for the certification of public document. This is done by a certificate written at the foot of a copy of such document or part thereof as the case maybe. Such certificate must be dated and subscribed by a public officer in the custody of the document with his name and official title with a seal if the officer is entitled in law to make use of a seal. By section 105 of the Act, only such certified copy or copies would be produced in proof of the contents of the public documents.

I have carefully looked at Exh C20 and I do not see any certificate as provided in section 104 of the Evidence Act. This amounts to non-compliance with the provisions of the Evidence Act. By the combined effect of sections 102, 89 (e) and 90 (1) (c) of the Evidence Act, it is only the CTC of the document that is admissible in this circumstance. ExhC20 is obviously not in the form in which it can be admissible not having been certified.

In the final analysis, I find this document inadmissible in evidence.

This court has the power to expunge a document that is wrongly admitted as the Supreme Court in the case of N.S.I.T.F.M.B. v. Klifco Nig . Ltd. (2010) 13 NWLR (Pt.1211) 307 S.C held that:

“…the time to take objection for admitting a document is at the tendering of the same; that is not to say that the Court cannot expunge an inadmissible evidence wrongly admitted in evidence even at the time of judgment.” PER CHUKWUMAH-ENEH, J.S.C (P. 25, paras. C-D)

Consequently, Exh.C20 is hereby expunged for failing to meet the requirements of the above stated provisions of the Evidence Act, 2011.

I now turn to the crux of the issue properly. The Counsel to the Claimant and Defendants have made an argument out of the fact that the reliefs sought by the Claimant are declaratory reliefs. The court in MATANMI & ORS V. DADA & ANOR (2013) LPELR-19929(SC) have held in respect of a declaratory relief thus:

“I agree with the learned counsel that the plaintiffs must establish their claim on the strength of their case. They cannot place any reliance on the weakness of the defence; if any. The burden of proof on the plaintiffs in establishing their declaratory relief to the satisfaction of the court is quite heavy in the sense that such a declaratory relief is not granted even on admission by the defendant where the plaintiffs fail to establish their entitlement to the declaration sought by their own evidence. See: Nwokidu v. Okaru (2010) 3 NWLR (Pt. 1181) 362, Dantata v. Mohammed (2002) 7 NWLR (Pt. 664) 176; Ekundayo v. Beruwa (1965) 2 NWLR 211 and Dumiez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt.1119) 361 at 373″PER FABIYI, J.S.C

Having said that, the said declaratory relief is in respect of an employment which is not in doubt to be one with statutory flavor.

The Supreme Court in C.B.N. v. Igwillo (2007) 14 NWLR (Pt.1054) 393 described an employment with statutory flavor thus:

“An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. Unversity of Lagos, supra; Ogunke v. National Steel Development Authority (1974) NMLR 128; Fakuade v. O.A. U.T.H. (1993) 5 NWLR (Pt.291) 47; ldeh v. University of Ilorin (1994) 3 NWLR (Pt.330) 81; Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame.v. WAEC (1992) 9 NWLR (Pt.265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 116.” Per Akintan, J.S.C. (Pp. 20-21, paras. D-A)

Exh. C2 is the offer of temporary appointment of the Claimant into the Ministry of Health, Social Development, Youth and Sport, Kogi state. While Exhs. C3, C4, C6, C7, C8, C9, C11,C12 and C13 all evidence how the Claimant rose through the ranks in various position up to the latest as Principal Executive Officer II.

The employment of the Claimant is not per se in contention. What is in contention is whether the Claimant’s employment has been terminated which would determine whether he is entitled to the reliefs sought if the termination is not proper in law.

The claimant tendered Exh. C14 and C15 respectively to evidence the report of the Staff Screening and Validation Committee and a List of unclear Staff from the Appeal Committee of which the Claimant’s name is 41 on the list. He stated in his witness statement on oath and under cross examination that the Governor made an announcement that when the report is out, whoever is not satisfied should go to court.

He also tendered Exh. C16 which is the Kwara State Government Civil Service Rules which his Counsel argues is applicable to Kogi state to evidence the procedure that his disengagement ought to follow even if it were to be based on the report of the finding of the Appeal Committee which to him is categorized as serious misconduct.

For the purpose of this suit, part of the provision of the rule tendered to establish the procedure for termination of employment where it is based on serious misconduct state to the effect that:

i) The Officer shall be notified of the grounds on which it is being proposed to dismiss him and he shall be called upon to state in writing before a day to be specified (which day must allow reasonable interval for the purpose) any ground which he relies to exculpate himself;

ii) The matters shall be investigated by the Appropriate Authority with the aid of the Head of the Officer’s Department and such other officer or officers as the appropriate authority may appoint;

iii) If witnesses are called to give evidence, the officer (i e. the Claimant) shall be entitled to be present and to put questions to the witnesses;

iv) No documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access there to;

v) If the officer does not furnish any representations within the time fixed, the State Public Service Commission may take such action as it deems appropriate against him;

vi) If the officer submits his representations and the Commission is not satisfied that he has exculpate himself and considers that the officer should be dismissed, it shall take action accordingly;

viii) If upon considering the representations of the officer, the commission is of the opinion that the officer does not deserve to be dismissed from the service but deserve some other punishment, it shall impose on the officer such punishment as it considers appropriate;

viii) if upon considering the representations of the officer the commission is of the opinion that the officer does not deserve to be dismissed from service but that the facts of the case disclose grounds for requiring him to retire in accordance with the rule, it shall direct accordingly.

With respect to the allegation made against the Claimant in respect of cash lodgment in his account, ExH.C15 reveals that the Appeal Committee commented that:

All relevant documents sighted and copies attached Review of staff statement of account does not reveal huge lodgment of cash based on his level

However, the Technical Committee in a separate column commented that:

The staff has been mentioned in a confessional statement by one of the suspects who were receiving multiple salaries. Staff involved in fraudulent activities.

The Claimant then stated that he had not been given fair hearing with regards to the other allegations when the Governor made the statement captured in paragraph 42 of Exh.C1 when the Claimant under oath stated that:

That I know as a fact that while the governor of Kogi State His Excellency, Alhaji Yahaya Adoza Bello was receiving the report of the Appeal Committee on 27^thApr11 2017, he said that any Civil Servant in Kogi State whose name was not cleared by the Appeal Committee should consider himself as disengaged from the Kogi State Civil Service with liberty to challenge the government of Kogi State in a court of law if so desired.

The Defendants through DW1 in his witness statement on oath and under cross examination however maintained the position that the Claimant has not been disengaged and that investigation is still on-going. By way of argument, learned counsel submitted that the Claimant has not tendered document to prove termination and that the witness statement as regards the Governor’s statement is hearsay.

Arising from the above, the burden is on the employee who alleges a breach of the terms of the contract of his employment to prove same. See Union Bank v Salaudeen (2017) LPELR-43415 (CA). This is in line with the general principle of law that he who asserts must prove. The Claimant who asserts the breach of the terms of his employment with the Defendant therefore has the burden of proving that assertion by adducing cogent, convincing and credible evidence. To do that, the Claimant had the onus to (a) place before the court the document containing the terms and conditions of employment and (b) to adduce the said terms and/or condition of service that was breached by the employer. See Union Bank v Salaudeen (supra); Kato v Central Bank of Nigeria (1999) LPELR – 1677 (SC). Undoubtedly, the condition or terms of the contract of employment is the bedrock of the case.

It is not enough that the claimant stated that he knew as a fact that the 1^st Defendant said “any civil servant in Kogi State whose name was not cleared by the Appeal Committee should consider himself as disengaged from the Kogi State Civil Service” without more. This does not in itself prove disengagement neither does it prove the approval of disengagement.

In the light of the fact that the Claimant failed to prove how his employment was terminated or how the terms of his employment was breached, could it be said that he discharged the burden of proof? It is settled law that he who alleges must prove i.e. by proving the wrongful termination of his employment by the Defendants. The burden of proof is clearly on the Claimant to prove the conditions regulating the contract of employment and that the termination of his employment is wrongful which burden he failed to discharge.

This is against the position of the Defendant that the Claimant’s employment has not been terminated. It is trite law that facts admitted need no further proof. They are taken as established by virtue of section 123 of the Evidence Act 2011 or by which rules of pleadings in force they are deemed to have been admitted by their pleadings. The law is settled that what is admitted or not disputed need not be proved. See also Ehinlawo v Oke, Per Onnoghen JSC (2008) LPELR 1054 (SC); Ajonye v Nwachukwu (2011) LPELR 3677 (CA).

This court hereby declares that the contract of employment is still subsisting as maintained by the Defendants.

The next question that follows naturally is what remedies is the Claimant entitled to for failure of the Defendant to pay his salaries considering the fact that his appointment has not been terminated. The law is settled that since the contract of employment is still subsisting, the Claimant is entitled to all salaries and benefits accruable to him. I need to add that the Claimant would be partly entitled to relief no.3 as I cannot find any scintilla of contradicting evidence not to grant same.

Coming back to reliefs 1 and 2, which are both clearly declaratory orders, in Western Steel Works Ltd. & Anor. v Iron & Steel Workers Union of Nigeria & Anor. (1987) LPELR 3480 (SC). It was held that a declaratory judgment is merely a judicial statement confirming or denying a legal right of the applicant.

A declaratory order or judgment merely declares and goes no further in proving a consequential relief to the Applicant. Per Oputa JSC. A declaratory order/judgment merely declares a right or an entitlement or the position of law. See Obi v INEC & ORS (2007) LPELR- 2166 (SC).

At the risk of repetition, the said reliefs sought by the Claimants are hereby reproduced as follows:

a) A DECLARATION that the purported disengagement or approval of disengagement of the Claimant by the 1^st Defendant on 27^th April, 2017 from the Civil Service of Kogi State upon unproven allegations made against the Claimant in the Report of the Kogi State Staff Screening/verification Appeal Committee is unlawful, illegal. Null, void and of no consequence whatsoever.

b)A DECLARATION that the purported disengagement or approval of disengagement of the Claimant by the 1^st Defendant upon the Report of the Kogi State Staff Screening/Verification Appeal Committee without affording the Claimant the opportunity of being heard in response to all the allegations is a violation of the right of fair hearing guaranteed for the Claimant by the 1999 Constitution of the Federal Republic of Nigeria.

c) AN ORDER re-instating the Claimant to his office in the Kogi State Civil Service with all due promotions as well as payment of all arrears of his salaries and benefits.

A critical examination of the Reliefs 1 and 2 convinces me beyond doubt that they are declaratory in nature. Relief 1 is an invitation to the court to declare illegal, unlawful, null and void the purported disengagement of the Claimant by the 1^st Defendant. I must quickly remind myself that a declaratory relief is discretionary. It is granted only when the court is of the opinion that the party seeking it is, when all facts are taken into consideration is fully entitled to the exercise of the court’s discretion in his favour. See Odofin v Ayoola (1982) 11 SC 72.

Furthermore, the reliefs claimed must be something which would not be unlawful or unconstitutional or inequitable for the court to grant. See Chukwumah v Shell Petroleum Nig. Ltd. (1993) LPELR 869 (SC).

No useful material has been placed before this court to establish the purported disengagement or approval of disengagement of the Claimant by the 1^st Defendant on the 27^th April, 2017. The Claimant did not establish before this court how he knew of the purported disengagement or termination. Did he hear on the radio or TV? How was his employment terminated? The court had earlier maintained that it was not enough for the court to predicate the termination of employment on the fact that the Claimant said he knows as a fact that the 1^st Defendant said any civil servant in Kogi State whose name was not cleared by the Appeal Committee should consider himself as disengaged from the Kogi State Civil Service.

It is trite law that in cases of this nature before a court can exercise its discretion in favour of a party, such a party must have placed all facts and necessary materials before the court. See also Alao v Akano (2005) LPELR -409 (SC); Governor, Ekiti State & Anor. V Oni & Ors ( 2013) LPELR- 20472 (CA).

The position of the law has been concretized that in an action for a declaratory relief, the Claimant must first establish his claim to the satisfaction of the court by cogent and credible evidence to prove that as a claimant, he is entitled to the declaratory reliefs.

The unassailability of the above manifests in the statement of Musdapher JSC (of blessed memory)that:

“it is elementary law that in a claim for a declaration, such as the instant one, the onus is on who alleges to establish his case and not to rely on the weakness of the defence. A plaintiff in such a situation must satisfy the court with cogent and compellable evidence… even admissions by the Defendant may not do so…” See CPC v INEC (2011) at 554; Dongari & Ors v Sa’ahun (2013) LPELR-22084(CA). In the instant case, I therefore find and hold that the Claimant have not justified the grant of the relief by establishing his claim to the satisfaction of this court with cogent and credible evidence.

On relief 2, According to the Black’s Law Dictionary, (10^th Edition) p.837, fair hearing is defined as a judicial or administrative hearing conducted in accordance with due process.

In Ariori & Ors. v Elemo & Ors (1983) LPELR – 552 (SC), it was held that “fair hearing therefore must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties” per Obaseki.

Furthermore, in Ovunwo & Anor v Woko & Ors (2011) LPELR – 2841 (SC), it was held that “the right to fair hearing is a very essential right for a person to secure justice. Where a person alleging breach of fair hearing has established it, it follows that a breach of fair hearing in trials vitiates such proceedings rendering same null and void” Per Adekeye JSC.

Whether or not a party has been denied fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties every opportunity to put their case to the court.

Relief 2 is clearly an invitation to this court to consider whether or not the purported disengagement or approval of same by the 1^st Defendant without affording the Claimant the opportunity of being heard in response to all the allegations is a violation to fair hearing.

It is trite that the rules of fair hearing is not a technical doctrine but one of substance. The question is not whether justice had been done but whether a party entitled to be heard before a decision is taken had in fact been given an opportunity of hearing. See Alh. Muhammad Bala Audu v Petroleum Equalisation Fund (Mgt) Board & Anor (2010) LPELR – 3824 (CA).

It is crystal clear that in the instant case, the Claimant cannot pre-empt the decision of the said Committee and allege a breach of fair hearing when no decision had been taken on his case. The purported disengagement or approval of disengagement of the Claimant has not been established to the satisfaction of this court to justify the award of the declaratory order by this court.

Exh C15 which is tendered by the Claimant is a list of un-cleared staff from the Appeal Committee – State Universal Basic Education Board (SUBEB) which contains details of 54 civil servants one of which is the Claimant. The said exhibit does not in any way indicate that the Claimant had been found guilty for a crime for which he was denied fair hearing. The Claimant himself in paragraph 24 of the statement of fact referred to the content of the ExhC15 as allegations. And since there is yet to be an action on the allegation, the court cannot find a breach of fair hearing at this stage.

The burden lies on the Claimant to adduce evidence to establish the conclusion reached by the panel/committee reported which led to the purported disengagement since no letter of termination or disengagement has been tendered before this court to prove that the report had been acted upon. The fact that the Claimant is an un-cleared staff does not establish the fact that he has been disengaged.

In the final analysis, Relief 1 and 2 cannot be granted while relief 3 has been granted to the extent that the Claimant be accorded with the payment of all arrears of his salaries and benefits.

But how much is to be paid to the Claimant? Relief 3 merely reads:

AN ORDER re-instating the Claimant to his office in the Kogi State Civil Service with all due promotions as well as payment of all arrears of his salaries and benefits.

Without stating the particular amount claimed or outstanding nor tendered a pay-slip to evidence his salary. In the case of Eze v Gov, Abia State (2014) 14 NWLR (Pt.1426) 192, the Supreme Court observed that no evidence was led to establish the sums due to the Appellants as salaries and allowances. The Supreme court went ahead to hold that since all courts are courts of law and equity and since unpaid salaries are necessary… it was appropriate to order that the appellants be paid their salaries and allowances for the period that they were out of office. The Supreme Court accordingly ordered the that the Applicants be paid immediately all their salaries and allowance for 23 months.

I hold on this authority that the Claimant in this case is entitled to an order for the payment of his salaries and allowances from the date of his last salary to date.

Issue 2 is accordingly resolved in favour of the Claimant to the effect that the employment of the Claimant is still subsisting with the Civil Service of Kogi State and is entitled to the Payment of all arrears of his salaries and benefits.

The Defendants are ordered to calculate and pay to the Claimant salaries and allowances due to him.

The sum due to him must be paid within 30 days from the date of this judgment and if not paid within the period, the sum shall attract 10% interest per annum until paid.

Judgment is entered accordingly.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.