IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HONOURABLE JUSTICE E. N. AGBAKOBA
DATED 17TH DECEMBER, 2020
SUIT NO. NICN/ABJ/64/2017
BETWEEN
OKO PATRICK IDOKO ………………………………………………. CLAIMANT
AND
1. NIGERIAN POLICE FORCE
2. INSPECTOR GENERAL OF POLICE …………........ DEFENDANTS
3. POLICE SERVICE COMMISSION
4. KATSINA STATE COMMISSIONER OF POLICE
REPRESENTATION
DUNCAN DAVID OLOHU Esq. for the Claimant
SIMON LOUGH Esq, for the Defendants
JUDGEMENT
1. The claimant filed this Complaint on 27th February, 2017 with the accompanying frontloaded documents, claiming against the defendants as follows:
a. A DECLARATION that the dismissal of the Claimant Oko Patrick Idoko from the Nigerian Police Force is unconstitutional, illegal and ultra vires.
b. AN ORDER of court directing the Defendants to reinstate the Plaintiff with immediate effect.
c. AN ORDER of this court directing the Defendants to pay all outstanding salaries and remunerations and bestow all other entitlements entitled to the Plaintiff from the date of purported dismissal till the judgment of the court is fully complied with.
d. AND FOR SUCH further ORDER(s) as the court may deem fit to make in the circumstance.
e. And any other Order this court may deem fit to Order in this suit.
The Claimant case
2. The Claimant averred that he was enlisted as a police Officer into the 1st Defendant on 1st April, 2002, and that after attending Police training school in Sokoto, he was posted to Katsina State where he served until 2007 when his name was listed as No. 588 of the FORCE RE-ORGANISATION PERSONEL TO BE RATIONALISED - KATSINA STATE COMMAND, amongst those policemen dismissed with a reason that he joined the Nigerian Police Force with no certificate and/or a fake certificate.
3. Claimant stated that the 4th Defendant mistakenly wrote his Surname as Okon, instead of Oko in the list of the FORCE RE-ORGANISATION PERSONEL TO BE RATIONALISED -KATSINA STATE COMMAND.
4. Claimant averred that prior to the publishing of the Claimant’s name and his purported dismissal, he was never notified, invited or brought before any panel or trial whatsoever asking him about the authenticity of his WAEC result. And that the Criminal Investigation Department, an arm of the 4th Defendant commenced an investigation on the alleged position of the Claimant s dismissal, wrote a letter to WAEC Calabar Office, Cross River state.
5. Claimant stated that the Investigating Police officer Assistant Commissioner of Police, ACP HALIRU A. GWANDU of the ‘D’ Department (CID) Katsina after concluding investigations, wrote an investigation report to Katsina state Police headquarters asserting that the result the Complainant submitted to the 1st Defendant was genuine.
6. Claimant wrote several other letters by himself, two Senators representing his constituency and his lawyer also wrote letters to the 1st, 2nd and 3rd Defendants and yet the Defendants failed and refused to do anything till date, hence this suit.
7. The Defendants did not file a defence to this suit despite being duly served originating processes and hearing notice. The defendant instead preferred to file objections which the court duly treated accordingly.
8. At the trial the Claimant testified as CW, adopted his written statement on oath of 27th February 2017 and proceeded to tender 10 other Exhibits that were marked as Exhibits C2- C11. The defendant had been un-represented throughout the trial, several adjournments for cross examination, defence and to file their final written addresses together with the perfunctory hearing notices duly issued and served each time the Defendants were foreclosed from taking any further step and the Claimants filed their final written address.
9. The Defendants who had appeared at this time filed their Notice of Preliminary Objection
PLAINTIFF’S WRITTEN ARGUMENT ADDRESSING THE COURT ON THE PUBLIC OFFICER PROTECTION ACT IN RELATION TO THE PLAINTIFF’S CASE PENDING IN THE COURT filed on 15th March, 2018.
10. Learned Counsel submitted that the law is clear under section 2 of the Public officers’ protection act, there is only three months period to seek redress and that the law is also clear as to the exception available to the section. That the exceptions are as laid down in the case of Attorney- General of Rivers State vs. Attorney-General of Bayelsa State & Anor. (2013) 3 NWLR (Pt.1340) 123 at 148, para. G, as follows:
i. Continuous damage or injury
ii. A situation where the person relying on it acted outside the colour of his office or outside his Statutory or Constitutional duty.
iii. When he acted in bad faith.
iv. Breach of contract
v. Claims for work done
vi. Cases of recovery of land.
11. Counsel contended that it’s further clear that there is no distinction between officers and officer any longer under the section of the act. And that the Supreme Court has made it clear that there is no distinction between “public offices” and “public officers” under the Public Officer (Protection) Law. Ibrahim vs. Judicial Service Committee Kaduna State & Anor. (1997 -1998) All NLR 302, lguh, JSC.
12. Counsel argued that after the 4th Defendant had conducted their due diligent investigation and found out that the complainant’s results are genuine, in that knowledge the Defendants still refused to reinstate the Complainant despite several letters written to them on behalf of the Complainant. Therefore, that there is no legal justification as to why the Defendants continually refused to reinstate the Claimant. LAGOS CITY COUNCIL vs. OGUNBIYI (1969) ALL NLR 297 CBN vs. OKOJIE (2004)10 NWLR PT 882, 448 @ 523; OFOBOCHE vs. OGOJA LOCAL GOVERNMENT (2001) 7 SC PT lV 1O7; (2007) 10 NWLR PT 739, 458.
13. It is Counsel’s submission that the Defendants knowingly and intentionally refused to reinstate the claimant and we submit that such behavior is enough bad faith as required to remove that immunity from the officers or office of the Defendants. And that Black’s Law dictionary (Sixth Edition) defines BAD FAITH to mean:
“Dishonesty of belief or purpose” and also went further to state thus:
“A complete catalogue of types of bad faith is impossible but the following types are wrong those which have been recognized in judicial decision, evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify term, and interference with or failure to cooperate in the other party’s performance”.
14. Counsel submitted that from the above, it is clear that the Defendants having not done what they knew was the right thing to do, which was to invite the complainant, investigate by inviting the claimant and hearing from him as to the authenticity of his certificate, went on to dismiss him, and even when they found out that his certificate was okay, they still maliciously refused to reinstate him. He urged the court to hold that these are clear cases of exception where section 2, and thus cannot protect the Defendants. INSP. GENERAL PF POLICE VS. OLATUNJI 21 NLR 52.
FINAL WRITTEN ADDRESS OF THE CLAIMANT’S COUNSEL filed on 4th November, 2019.
ISSUE
Whether from the totality of the evidence adduced before this Honourable court, the Claimant has proved his case to be entitled to the judgements of the Honourable court.
15. Counsel answering the above question in the affirmative, submitted that the law is settled that in civil case, proof of cases are based on preponderance of evidence. Osukpong V. Eduoka (2016) 1 NWLR (PT). 1493) 329 C.A 331 Ration; Bello V Aruwa (1999) 8 NWLR (Pt.615) 454: Agada V. Emanuotor (1999) 10 NWLR (Pt.624), Per Otisi J.C.A. @ 338, paras AC; Section 131(1), 133(1), 134 Evidence Acts 2011.
16. It is Counsel’s contention that the evidence of the Claimant (CW), both oral and documentary stands unassailable, uncontroverted and unchallenged in the circumstance where the Defendants failed, neglected and ignored to enter any defence. Thus, that the claimant’s evidence and claim is deemed to have been admitted by the Defendants and since facts admitted needs no proof, such should be valid and relied upon. Section 123 of the evidence Act, 2011; Ogiri V. NA. O. Ltd (2010) 14 NWL.R (Pt.13) 208 at 224 para D-E; Nwankwo V. Abajie (2003) 12 NWLR (Pt. 834) 381 at 403-404.
17. Furthermore, that it is trite law that unchallenged or uncontroverted pleadings and evidence are deemed to have been admitted. Okasthetu V state (2016) 15 (NWLR) (Pt.534); Tangale Traditional council V. Fawu (2001) 17 NWLR (Pt.742) Pg. 293 at 330.
Defendants filed a NOTICE OF PRELIMINARY OBJECTION on 29th November, 2019.
ISSUES
a) Whether this suit is incompetent in view of the non-compliance with the mandatory provisions of Section 20 (2) (3) and (4) of the Police Service Commission (Establishment) Act 2001. And order 3 rules 13 of the Rules of this court 2017.
b) Whether the applicant suit disclosed any course of action against the Defendants and whether the suit is not speculative and thus academic in nature.
ON ISSUE 1
Whether this suit is incompetent in view of the non-compliance with the mandatory provisions of Section 20 (2) (3) and (4) of the Police Service Commission (Establishment) Act 2001. And order 3 rules 13 of the Rules of this court 2017.
18. Learned Counsel submitted that compliance with Section 20 (2) (3) & (4) of the Police Service Commission (Establishment) Act 2001 is mandatory before an applicant can commence an action against the Police Service Commission. And that the suit of the applicant commenced without complying with the above requirements is therefore incompetent and thus bound to fail. MDC LTD VS ASWB & ORS (2008) 34 NSCQR Part 1 page 226 at 243. He submitted that where a statute laid down the step to take in the doing of an act, that step or method and not any other must be followed. Amaechi Vs. INEC (2008) 158 LRCN Page 1 at page 232. It is Counsel’s submission that the claimant exhibited a document tagged; Force Re-Organisation accompanied by a signal or Police wireless message dated 30/1/2007 wherein Police officers who were either retired or dismissed on various grounds was stated. That on page 12 of the said document, serial number 588 carries force number 237875 Okon Patrick who from the document was dismissed on account of fake/No certificate. And that that the name Okon Patrick is different from Oko Patrick Idoko as clearly shown in the documents exhibited by the claimant. That in the case of AG Bendel state Vs. UBA LTD (1986)4 NWLR part 37 page 547 the Supreme Court held: “a document tendered in court is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof except in cases where fraud is pleaded.”
19. Counsel posited that where a party gives oral testimony which contradicts his documentary evidence both cannot be relied upon for the determination of his case. NRW IND LTD VS. AKINGBULUGBE (2011) 11 NWLR PART 1257. It is also Counsel’s submission that, the claimant must succeed on the strength of his case and not on the weakness of the defence, that where a party’s case is self-defeating as in the claimant’s case, he cannot succeed simply because the defendant did not enter defence. He must establish his claim by producing material evidence before the court which the court must rely upon to give him judgment. Thus where the Defendant did not appear in court to challenge the case of the Plaintiff, the court being an impartial arbiter must decide the case of the Plaintiff on its merit. NRW IND LTD VS. AKINGBULUGBE (2011) 11 NWLR PART 1257; IBADAN L.G.P.C LTD VS. OKUNADE (2005) 3 NWLR PART 911, PAGE 45 @49. RATIO 4.
20. Counsel posited that documentary evidence is the best form of evidence, due to the fact that documents do not lie but oral testimony of witnesses to court is bound to be manipulated. Where therefore, documentary evidence contradict oral evidence, the Court can choose documentary evidence to rely on. PURIFICATION TECHNIQUE VS. JUBRIL (2012) 50 NSCQR PAGE 180 @189, ratio 7. Counsel argued that averments in the statement of claim do not constitute evidence in proof of such averments. Hence, that evidence must be led in proof of averments in the statement of claim. Union Bank PLC Vs. ASTRA Builders (WA) Ltd (2010) 41 NSCQR Page 1016 at 1020. Sani Abacha Foundation Vs. UBA Plc. (2010) 41 NSCQR page 360 at376-377, per A.M Mukhtar, JSC. He submitted that where a party leads contradictory evidence in proof of the averments in the statement of claim, his case will naturally fail and stand to be dismissed. Alhaji AB Abubakar Vs. Alhaji Abubakar Daniya Waziri (2008)35 NSCQR page 333 at 341; Momodu Olubodun Vs. Oba Adeyemi Lawal (2008) 35 NSCQR Page 570 at 604; Kayode Ventures Ltd Vs. Hon. Minister of FCT& Ors (2010) 41 NSCQR page 830 888.
21. It is Counsel’s position that although in proper cases unchallenged oral evidence of a party establishing his claim has been held to be sufficient proof; and where however, the evidence is self-defeating and unacceptable, the court is not obliged to act on it. Atra Industries (Nig) Ltd Vs. NBCI (1998) 4 NWLR (Pt. 546) page 357. Counsel submitted that it is not always that judgment is entered in favour of the plaintiff when the evidence he adduced is unchallenged. That in such a case, the evidence in support of the plaintiff’s claim must not only be unchallenged, it must be credible, incontrovertible and must support the claim of the plaintiff. Green fingers Agro Industries Ltd. Vs. Yusuf (2003) 12 NWLR Part 835 page 488.
ON ISSUE 2
Whether the applicant suit disclosed any course of action against the Defendants and whether the suit is not speculative and thus academic in nature.
22. Learned Counsel submitted that in the determination of the cause of action, the court has to examine the writ of summons and the statement of claim, in the instant case, the facts in the statement of claimant and witness statement on oath of the claimant. NECO VS TOKODE (2011)5 NWLR part 1239 page 45 at page 71 para. A-B. He contended that in the absence of the claimant establishing any relationship between the claimant and the defendants which same has been breach rendered the suit of the claimant speculative and thus academic and bound to fail. Plateau State Vs. AG Federation (2006)25 NSCQR page 179 at page 236. Counsel urged this court to dismiss the suit of the claimant as same is speculative, in the sense that the claimant alluded to letters in which claim his name was in but failed to prove that he is the same person. He argued that the claimant also relied on a document titled ‘’certificate of membership’’ which did not emanate from any of the defendants and it is not even signed by the author, and that such an unsigned document has no evidential value. Omega Bank Plc. vs. OBC Ltd (2005) 8 NWLR part 928 page 547 at 556 ratio 11.
23. On the 12th November 2020 parties adopted and adumbrated their respective processes and this matter was adjourned for judgement.
Court’s Decision
24. I have carefully summarized the evidence of the claimant, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the Claimant is entitled to the reliefs sought in this suit.
The defendants raised two jurisdictional issues;
a) Whether this suit is incompetent in view of the non-compliance with the mandatory provisions of Section 20 (2) (3) and (4) of the Police Service Commission (Establishment) Act 2001. And order 3 rules 13 of the Rules of this court 2017.
b) Whether the applicant suit disclosed any course of action against the Defendants and whether the suit is not speculative and thus academic in nature.
To the Defendants
25. The Defendants argued that these provisions are mandatory and failure to comply with the provision renders the Claimants process incompetent. Section 20 (2) (3) and (4) of the Police Service Commission (Establishment) Act 2001. Are provision I find create pre action notification inter alia.
26. It is necessary at this stage to look at the case law in respect of this objection.
The position of the law is, and the "The question that should perhaps, be addressed here is what is a pre-action Notice? The pre-action notice is usually a procedural defense open to Government Corporations or Agencies whenever they are sued. The Act usually under which the Corporation is created or established requires prospective Plaintiffs in a potential action against the Corporation to serve the Corporation with a pre-action notice. A pre-action notice is therefore a notice usually in writing given by the prospective Plaintiff to the Government or Statutory Corporation to be sued, informing the latter of the prospective Plaintiff's intention to commence legal action against the Corporation. See the case of NTIERO v. NPA (Supra) where the Supreme Court per MUHAMMAD, JSC was of the view that a pre-action notice refers to some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract which requires compliance by the person who is under a legal duty to put on notice the person to be notified before the commencement of the legal action against that person. What this means in essence is that where there is no such requirement one is not obligated to issue a pre-action Notice."
Per FREDERICK OZIAKPONO OHO, J.C.A (Pp. 22-23, para. D)
27. Rationale behind the requirement of pre-action notice, "Under legal theory two reasons have been advanced for the necessity to serve pre-trial or action notices on Statutory Corporations in Nigeria. The one, is that pre-action notices gives the defendant the opportunity to seek amicable resolution of the festering dispute and the other, is that it allows the defendant to afford itself sufficient time to prepare its defense. See the learned Author, E. S. NWAUCHE, in his book; "The Constitutionality of Pre-Action Notices in Nigeria", (2002) 2 Recht in Africa 185. See also the cases of MAKUDAWA v. KATSINA LOCAL GOVERNMENT (Supra); NGELEGLA v. NONGOWA TRIBAL AUTHORITY 14 WACA 325 AT 327 on the issue."Per FREDERICK OZIAKPONO OHO, J.C.A (Pp. 23-24, paras. E-B)
28. Effect of failure of a defendant to raise the issue of non-service of pre-action notice "The pre-trial notice in Nigeria is therefore a condition precedent to the proper institution of legal actions where they are required to be given between parties shortly before actions are commenced. Failure to therefore comply where it is required to be complied with robs the Court of its jurisdiction to entertain the matter in question and the matter will be liable to be struck out. See the case of MADUKOLU v. NKEMDILIM (1962) 2 ALL NLR 581 on the issue. But in the case of MOBIL PRODUCING v. LASEPA (Supra) it was held that; 1. Where a suit is commenced in default of service of the requisite pre-action notice, the suit is incompetent against the party who ought to have been served therewith, provided such party challenges the competence of the suit on that basis, and 2. It is a point that can be waived and thus does not necessarily go to jurisdiction." Per FREDERICK OZIAKPONO OHO, J.C.A (P. 24, paras. B-F)
29. "Although the service of pre-action notice is mandatory where a statute provides for it, the decision of the Supreme Court in AMADI vs. NNPC (2000) 10 NWLR (PT. 674) 76 has since made it rather doubtful whether such a notice should be in a particular format or should contain specific information beyond apprising the potential defendant of the imminent Court action and for which he has to get prepared. In the AMADI v. N.N.P.C. case, (Supra) the Plaintiff sued the NNPC after it had served it with a pre-action notice. The NNPC challenged the competence of the action on the ground that the said notice did not contain the requisite information envisaged by Section 11(2) of the then NNPC Act. The Supreme Court rejected the NNPC's contention and held that although the service of a pre-action notice on the NNPC under Section 11(2) of the NNPC Act was mandatory, the nature of the information to be supplied in the notice was directory. In the words of the noble Lord, UWAIS CJN (as he then was); "It appears to me that the first 'shall' in Sub-section (2) imports an obligation. No suit could be commenced against the Corporation until a period of one month expires after giving a prescribed notice. The second 'shall' seem to me to import an obligation also. Before suing the Corporation a notice of intention to commence the suit must be given to the Corporation. However, I am of the opinion that the third 'shall' connotes a directive in the sense in which it is used. It describes the particulars to be contained in the notice of intention to sue." What this translates in essence is that where a pre-action notice is deficient in terms of the details of the alleged wrong done by the NNPC, the date of the alleged wrong or remedy that the potential Plaintiff seeks against the NNPC, the Court will not invalidate the notice on the ground that it does not comply strictly with the provisions of Section 11(2) of the NNPC Act which is in pari materia with Section 12 of the NNPC Act, Cap 320 LFN 1990. In other words failure to include any or some of the particulars required to be included in the pre-action notice is not fatal to the pre-action notice. What really seem to be of particular importance in the Supreme Court's pronouncements in the AMADI v. NNPC case (Supra) is the Court's findings at page 77 line 10 of the Report where the Court said; "For non-compliance of S. 11 (2) to be sufficient to deprive the Court of its jurisdiction the condition should be such as to make it difficult for the Corporation to make its choice whether to settle with the Plaintiff. Any other non-compliance is in-substantial and should not deprive the Court the exercise of this Constitutional jurisdiction or deny the Plaintiff access to the Court on the facts before the Court. There is no basis for a denial of access to the Courts. The mere omission to provide the address of the residence of the Plaintiff should not be fatal to the claim."
Per FREDERICK OZIAKPONO OHO, J.C.A (Pp. 25-27, paras. A-E)
30. In ZAMFARA STATE GOVERNMENT & ANOR v. UNITY BANK PLC & ANOR - (2016) LPELR-41813(CA) It was held that "Under legal theory two reasons have been advanced for the necessity to serve pre-trial or action notices on Statutory Corporations in Nigeria. The one, is that pre-action notices gives the defendant the opportunity to seek amicable resolution of the festering dispute and the other, is that it allows the defendant to afford itself sufficient time to prepare its defense. See the learned Author, E. S. NWAUCHE, in his book; "The Constitutionality of Pre-Action Notices in Nigeria", (2002) 2 Recht in Africa 185. See also the cases of MAKUDAWA v. KATSINA LOCAL GOVERNMENT (Supra); NGELEGLA v. NONGOWA TRIBAL AUTHORITY 14 WACA 325 AT 327 on the issue." Per OHO, J.C.A. (Pp. 23-24, Paras. E-B.
31. Looking at the Claimants documents I find especially considering the Supreme Court
position as to the format directory and I am satisfied that the Claimants Exhibit C8 fulfilled the requirement of a pre action notice. I resolve this issue for the Claimant against the defendant
ON ISSUE 2
Whether the applicant suit disclosed any course of action against the Defendants and whether the suit is not speculative and thus academic in nature.
32. The defendants contend that the claimant’ has not established a cause of action against them
33. The position of the law with regard to cause of action is as was stated in the case of OBUN v. OBANLIKU LOCAL GOVT COUNCIL & ORS. (2017) LPELR-43804(CA)"A cause of action means a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a plaintiff to a remedy against a defendant. It consists of every fact, which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. That is, the fact or combination of facts which gave rise to a right to sue. It is a cause for action in the Courts to determine disputed matters. See EGBE VS ADEFARASIN (1985) 1 NWLR (PT 3) 549, THOMAS vs. OLUFOSOYE (1986) 1 NWLR (PT 18) 689 and DANTATA VS MOHAMMED (2000) 7 NWLR (PT 664) 176."Per Joseph Olubunmi Kayode Oyewole, J.C.A (Pp. 7-8, paras. D-A). In determining the cause of action in a suit, the Court only needs to look at the plaintiff's claim. This is so because it is the claim of the plaintiff that determines the jurisdiction of the Court entertaining the suit. See ADEYEMI VS OPEYORI (1976) 9-10 SC 31, TUKUR VS GOVT OF TARABA STATE (1997) 6 NWLR (PT 510) 549, OKOROMA vs. UBA (1999) 1 NWLR (PT 587) 359 and MIN. FOR WORKS vs. TOMAS NIG. LTD (supra) at772 and 789."
Per Joseph Olubunmi Kayode Oyewole, J.C.A (P. 8, paras. B-D)
The case before this court is that the claimant pleads that he was employed by the defendantsThe claimant in his statement of fact have stated that the defendants were his employer and their acts are the cause of his injury and loss of employment. I am satisfied that the claimant have established a cause of action against the defendant
The claimant in this suit are seeking the following
a. A DECLARATION that the dismissal of the Claimant Oko Patrick Idoko from the Nigerian Police Force is unconstitutional, illegal and ultra vires.
b. An ORDER of court directing the Defendants to reinstate the Plaintiff with immediate effect.
c. An ORDER of this court directing the Defendants to pay all outstanding salaries and remunerations and bestow all other entitlements entitled to the Plaintiff from the date of purported dismissal till the judgment of the court is fully complied with.
d. AND FOR SUCH further ORDER(s) as the court may deem fit to make in the circumstance.
e. And any other Order this court may deem fit to Order in this suit.
To the merits of this case
34. Before I address the merits of this case it is necessary to clarify some salient points, considering, as stated earlier that the defendants did not defend this action or call any evidence. Technically, therefore, this case approximates to one that is undefended but it must be pointed out that the defendant had ample the opportunity to defend this action but chose not to, in this regard I agree with the submission of the claimants that the averments in the statement of fact, the proof of evidence in the nature of his oral testimony and documents frontloaded and admitted in this case must be taken as uncontroverted. See MR. THOMAS OLUKAYOKE & ORS Vs. TIMBUKTU MEDIA LTD. (unreported) NICN/LA/25/201 1 delivered 6th March 2013. As the effect of the failure of a party to call evidence in defence of a claim is that he is presumed to have admitted the case made against him by the other party and the trial court has no choice than to accept the unchallenged and uncontroverted case place before it by the claimant. See IFETA Vs. SHELL PETROLLEUM DEVELOPMET CORPORATION OF NIGERIA [2006] Vol. 6 MJSC, CONSOLIDATED RES LTD. Vs. ABOFAR VENTURES NIG. [2007] 6NWLR (Pt. 1030) 221 and OKOLIE Vs. MARINHO [2006] 15 NWLR (Pt. 1002) 316.
35. But this, however, does not mean an automatic victory for the Claimant because he must succeed on the strength of his own case and not rely on the weakness of the defendant’s case or the fact that there is no defence placed before the court. BENJAMIN BILLE Vs. MULTILINKS LTD. NICN/LA/175/2011 (unreported) delivered 6th July 2012. The absence of evidence by the defence does not exonerate the claimant the burden of proof placed on him. See SECTION 131(1) and (2) Evidence act 2011, OGUNYADE Vs. OSHUNKEYE [2007] 15 NWLR (Pt. 1057). The claimant must adduce evidence worthy of belief as evidence does not become credible merely because it is unchallenged. AKALONU Vs. OMOKARO [2003]8NWLR (Pt.821) 190. Uncontroverted evidence does not in any way take way the duty imposed on the claimant to prove his case in accordance with the minimum evidence rule. In A.G. OSUN STATE Vs. NLC (OSUN STATE COUNCIL) & 2 ORS (unreported) NICN/LA/275/2012 delivered 19th December 2012 this court held as follows;-
“Order 9 of the National Industrial Court Rules 2017 enjoins a party served with a complaint and accompanying originating processes and who intends to file a defence process as provided therein. Order 9(4) therefore recognizes the right of a defendant not to defend an action filed against him or her. And by order 19 rule 2 where the defendant is absent at the trial and no good reason is shown for the absence, the claimant may prove his/ her case as far as the burden of proof lies on him upon her. This Rule, of course accords with the minima evidential requirement, which is t the effect that a plaintiff cannot assume that he is entitled to automatic judgement just because the other party did not adduce evidence before the trial court as held in LAWRENCE AZENABOR Vs. BAYEREO UNOVERSITY KANO [2011] 25 NLLR (PT. 70) CA at 69 and OGUNYADE Vs. OSUNKEYE supra at 247”
36. Mindful of this position of law I shall now proceed to deal with merits of this case in order to determine whether the minimum evidentiary value/burden of proof has been met I shall need to look at the evidence before the court against the reliefs sought by the Claimant
37. The rule of thumb in evaluating the claimants evidence is as follows;- “The law is that the facts elicited from the evidence of the plaintiff should so preponderate in favour of the claims that the court should on balance decide in his favour'' Per PATS-ACHOLONU, J.S.C in OBASI BROTHERS MERCHANT COMPANY LTD. Vs. MERCHANT BANK OF AFRICA SECURITIES LTD.(2005) LPELR-2153(SC) (P. 9, paras. A-B).
38. Now I am well aware of the stand of Legal positon as to Effect of failure to file a reply to a preliminary objection See ZAMFARA STATE GOVT & ANOR v. UNITY BANK & ANOR. (2016) LPELR-41813(CA)"The legal consequence of a failure to so do is that the law will presume that the Appellant has conceded or accepted the points or issues raised by the Respondent in its Notice of Preliminary Objection. See the cases of KHALIL v. YAR'ADUA (2003) 16 NWLR (Pt. 847) 446 AT 484; NNAMANI v. NNAJI (1999) 7 NWLR (Pt. 610) 313; AKANBI v. ALATEDE (2000) FWLR (Pt. 1) 928."Per Frederick Oziakpono Oho, J.C.A (P. 8, paras. C-E)
39. The position of the law is that the proper procedure must be strictly followed in any and every attempt to discipline or dismiss an employee of the Claimant’s ilk the Claimant find and hold that the Claimant has established his employment and his dismissal. He traced his removal to the action of the defendants. The nature of his employment is such that he can only be removed in strict compliance with the laid down provisions of the Police Act, this I find was not done. The claimant’s removal without affording the Claimant an opportunity to respond to the allegation of fake certificate. This I find was not done and as such the Claimant’s dismissal is hereby declared illegal, unlawful and null and void and by law the court having found his dismissal did not following procedure the Court is compelled to reinstate the Claimant without loss of privileges.
40. All in all I find that the claimant case had merit and therefore succeeds; -
a. It is hereby declared that the dismissal of the Claimant Oko Patrick Idoko from the Nigerian Police Force is unconstitutional, illegal, ultra vires. And is hereby set ad
b. By order of this court the Claimant is hereby reinstated with immediate effect
c. The defendants are hereby ordered to pay to the Claimant all outstanding salaries and remunerations and bestow all other entitlements due to the claimant from the date of purported dismissal;
d. Cost of this suit is put at N200, 000.00 (Two Hundred Thousand Naira Only) payable within 60 days thereafter 10% will attach.
41. This is the Court’s judgement and it is hereby entered accordingly.
………………………………………
HON. JUSTICE E. N. AGBAKOBA
Presiding Judge
Abuja Division