IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: FRIDAY 27TH JANUARY, 2023.
SUIT NO: NICN/YEN/22/2018
BETWEEN
MR. DITON DEIZIGHA CLAIMANT
(Suing for himself and as representing
the other 84 staff /employees employed by
the Bayelsa State Universal Basic Education Board)
AND
1. GOVERNMENT OF BAYELSA STATE
2. THE ATTORNEY GENERAL OF
BAYELSA STATE
3. SOUTHERN IJAW LOCAL DEFENDANTS
GOVERNMENT COUNCIL
4. BAYELSA STATE UNIVERSAL
BASIC EDUCATION BOARD
REPRESENTATION
Mr. E.G. Aderigha Esq. with V.I. Lokor Esq. for all the Claimants.
I.Teibowei Esq for the 1st, 2nd and 4th Defendants.
Mr. P. Kemegbre Esq. with K.H. Odoni Esq. for the 3rd Defendant.
JUDGMENT
INTRODUCTION
By the Complaint filed pursuant to Order 3 Rule 2 of the National Industrial Court of Nigeria (Civil Procedures) Rules 2017 on the 11th June, 2018 whereat the Claimant claims against the Defendants the following reliefs:
1. A DECLARATION that the claimants were duly employed as civil servants and are still civil servants and as such are entitled to their salaries and other allowances.
2. A DECLARATION that the purported termination of the employment of the claimants by the 3rd and 4th defendants is unlawful, null and void.
3. AN ORDER directing the 3rd and 4th defendants to reinstate the claimants as civil servants.
4. AN ORDER directing the 1st, 3rd and 4th defendants to pay all salaries and allowances accruing to the claimants from January 2016 to the date judgment will be issued in this case.
5. AN ORDER that the 1st, 3rd and 4th Defendants pay each of the claimants the sum of N4, 000,000.00 each as general damages for the stress and hardship caused them for the unlawful stoppage of their salaries for this long period.
6. AN ORDER directing the defendants through the right authority to reinstate the claimants with immediate effect.
7. AND FOR SUCH FURTHER or other Orders that this court may deem fit to make.
The Claimant predicated his claims on the Statement of Facts and Witness’ Statement on Oath filed on the 11th June, 2018 and the Replies to the 3rd and 4th Defendants separately filed on the 17th October, 2019. The 1st, 2nd and 4th Defendants, upon being served with the Complaint, filed a Further Amended Statement of Defence and a Witness’ Deposition on Oath on the 23rd November, 2021. The 3rd Defendant filed its Statement of Defence and Witness Statement on Oath on the 8thJuly, 2019.
The suit proceeded to hearing on the 22nd November, 2021. The Claimant called a sole witness named Ditton Deizgha hereinafter refers to as CW1. CW1 identified his Statement on Oath made on the 11th June, 2018 and same was adopted as his evidence in-chief. Exhibit CW001, CW002, CW003, CW004, CW005, and CW006 were tendered and admitted in evidence. The Defendants thereafter cross-examined CW1.
The Defendants opened their defence on the 21st January, 2022. The Defendants called their witness one Mr. Festus Ifidi hereinafter refers to as DW1. DW1 identified his Deposition on Oath made on the 14th September, 2021 and same was adopted as the evidence in-chief of DW1. Exhibits DW001 and DW002 were tendered in evidence. DW1 was later cross-examined by the Claimants and the 3rd Defendant. In addition to that, Mr. Clarkson Osoghoyai hereinafter refers to as DW2. DW2 identified his Deposition on Oath made on the 8th July, 2019 and same was adopted as the evidence in-chief of DW2. DW2 was later cross-examined by the Claimants and the 1st, 2nd and 4th Defendants.
CLAIM OF THE CLAIMANT
That the Claimant and other persons being represented are persons employed by the 3rd and 4th Defendants. That they were employed by the Southern Ijaw Local Government Education Authority and the Bayelsa State Universal Basic Education Board at different dates between 2008 to 2010 ranging from salary grade level 01 to 06. That before the employments were done a request was made to the Executive Chairman of Southern Ijaw Local Government Council for the recruitment of academic and non-academic staff and an approval was given via a letter dated 25th November 2008 addressed to the chairman Southern Ijaw Universal Basic Education Authority. That upon receipt of the letter of approval for the recruitment of Academic and non academic staff, the Executive Chairman of the Bayelsa State Universal Basic Education confirmed receipt of the said letter and commenced the recruitment with a request for funds for the salaries of those employed in the said letter dated 12th December 2008. That after the statutory period of probation a letter of confirmation of appointment was given to each of the Claimants confirming their appointment. That at all material times since the date of employment they got their salaries and allowances just like every other civil servant employed in the Bayelsa State Civil service. That they were promoted in accordance with the civil service rules and regulation.
That when the Bayelsa State government carried out its Staff Biometric Verification exercise in 2014 all the Claimants participated and were captured accordingly as civil servants in Bayelsa State. That when the 1st Defendant carries out any verification exercise the claimants presented themselves for verification and were confirmed to be staff of the Bayelsa State Government with verification slips issued to them. That from January 2016 when there was a Global economic meltdown/recession which resulted in delay in payment of staff salaries across the state and the Claimants did not get their salaries as well. That in April 2016 the 1st Defendant alleged via the media that ghost names had infiltrated the government's payroll voucher and consequently ordered a state wide staff verification exercise to rid the state of pay roll fraud.
That the Claimant and other persons being represented subjected themselves to the verification exercise and presented themselves for the verification. That upon presenting themselves for verification the 3rd Defendant's verification team deliberately refused to verify the Claimants and other persons being represented and by words of mouth said that all persons employed in the state from 2008 till date are ghost workers.
That due to the economic recession salaries were not paid so the Claimant and other persons being represented were patiently waiting for their salaries as well. That it was in July 2016 that the Bayelsa State Government commenced payment of salaries and the Claimant and other persons being represented did not get their salaries. That since January 2016 till date they have not been paid salaries for no just cause whatsoever and no reason was given for the stoppage of their salaries. That the Claimant and other persons being represented there after approached the then Chairman of Southern Ijaw Local Government Area who told them by words of mouth that the salaries of every person employed between 2008 and 2010 has been paused.
That after waiting for months without salaries they became aggrieved and had discussions with government functionaries for their immediate reinstatement, the claimants also approached their umbrella body the Non Academic Staff Union of Educational and Associate institute who wrote a letter on behalf of the Claimant and other persons being represented requesting for the reinstatement of the Claimant and other persons being represented the said letter was addressed to the Executive Secretary Universal Basic Education Board, Bayelsa State.
That when there was no positive response from the State government the Claimant and other persons being represented got aggrieved and briefed their solicitor who wrote a letter addressed to the Hon. Commissioner Ministry of Local Government, Bayelsa State. That to further escalate and make their grievance known to the authorities they came together and wrote a protest letter dated August 2007 addressed to the Special Adviser to the Governor on Chieftaincy and culture in a bid to be reinstated after being properly and duly employed. That in a relentless effort the Claimant and other persons being represented again wrote a letter addressed to the State Director, Directorate of State Service. That the stoppage of their salary is wrong and unlawful as persons duly employed under the civil service of Bayelsa State.
CASE OF 1ST, 2ND AND 4TH DEFENDANTS
That the letters of Offer of Appointment and Confirmation of Appointments were fraudulently issued by the former Chairman of the 4th Defendant in connivance with the Claimant and other persons being represented without following due process which was faulty and mischievous. That formal applications were not made by the Claimant and other persons being represented; the Claimant and other persons being represented were never subjected to the required pre-employment interview; the required post-interview shortlisting of candidates was not done; employment files were not opened for the Claimants in the 4th Defendant's office contrary to due process. That there was no preceding Board resolution, authorizing the employment of the Claimants in 2011. The employment documents exhibited by the Claimant and other persons being represented shows that the Claimant and other persons being represented were employed by the Local Government Education Authority but confirmed by the Universal Basic Education Board, thus fraudulent.
That the 1st Defendant sought to order the termination of the Claimant and other persons being represented appointment and stop the payment of their salaries upon discovering the Claimant and other persons being represented purported employment is fraught with anomalies, irregularities and breaches. That it was the said verification exercise conducted at the level and instance of the 1st Defendant that revealed anomalies with the purported employment of the Claimants as averred by the Claimants.
CASE OF THE 3RD DEFENDANT
The gist of the defence of the 3rd Defendant is that the employments of the Claimant and other persons being represented are illegal and unlawful as due process and guidelines in respect of employment of staff by the 3rd Defendant was not followed. That the employment of the Claimant and other persons being represented by the 3rd Defendant or Southern Ijaw Local Government Education Authority specifically violated the Bayelsa State Local Government Law, 2000, Bayelsa State Universal Basic Education Board Law, Handbook on Local Government Administration in Nigeria, 1992 and extant Civil Service rules and regulations guiding employment as no advertisement for employment was made, no interviews and shortlisting of successful applicants and also the Junior Staff Management Committee of the 3rd Defendant did not meet and request for the employment of the Claimants.
That the 3rd Defendant did not have such power to unilaterally issue letter to the chairman Southern Ijaw Universal Basic Education Authority without first getting the approval of the Junior Staff Management Committee of the 3rd Defendant in a meeting and since this was not done any employment therefrom, the purported letters and subsequent employment of the claimants are all a nullity ab-initio, the 3rd Defendant never issued such letters to the 4th Defendant or any other person. That the letters of Offer of Appointment and Confirmation of Appointment issued to the Claimant and other persons being represented were fraudulently issued by the former chairman of the Universal Basic Education Authority Southern Ijaw Local Government without the authority and approval of the 3rd Defendant, the Claimants did not follow due process in securing employment as the whole employment process of the claimants were fraudulent.
That there was no advertisement of employment by the 3rd Defendant, formal applications for employment were not made by the Claimant and other persons being represented. That the Claimant and other persons being represented were never subjected to the required pre-employment interview. The required post-interview shortlisting of successful candidates was not done. That the employment files were not opened for the Claimant and other persons being represented in the 3rd Defendant's office or in the office of the Universal Basic Authority, Oporoma under the control of the 3rd Defendant contrary to due process. That there was no preceding Board resolution, authorizing the employment of the Claimant and other persons being represented in 2008 by the 3rd Defendant's Universal Basic Authority Oporoma or the Junior Staff Management Committee of the 3rd Defendant in line with the operation guideline of Local Government Administration in Nigeria as clearly stated in the Handbook on Local Government Administration in Nigeria published by the office of the Vice President of the Federal Republic Of Nigeria 1992.
That the 1st Defendant sought to order the termination of the Claimants' appointment and stop the payment of their salaries upon discovering the Claimant and other persons being represented purported employment is fraught with anomalies, irregularities and breaches. That it was the said verification exercise conducted at the level and instance of the 1st Defendant that revealed anomalies with the purported employment of the Claimant and other persons being represented as averred by the Claimant. The stoppage of the claimant's salaries and termination of the appointment were neither wrongful nor unlawful as the Claimant and other persons being represented employment is fraught with anomalies, irregularities and breaches statutes and rules.
That their employments were duly terminated by a verification Committee set up by the 1st Defendant and the report and termination letter duly pasted on the notice board despite they were not duly employed.
After the close of the hearing of the case, the matter came on the 31st October, 2022 for the adoption of the Final Written Addresses. Counsel for the 1st, 2nd and 4th Defendants were absent, the Court pursuant to Order 45 Rule 7 of the Rules of this Court adopted the Final Written Address and the reply on Point of Law respectively filed on the 22nd February, 2022 and the 1st June, 2022.
Counsel for the 3rd Defendant, Benjamin S. Ogbara, Esq. identified the Final Written Address and the Reply on Point of Law respectively filed on the 21st March, 2022 and the 31st May, 2022 and adopted same as his argument in support of the case of the 3rd Defendant.
Finally, Counsel for the Claimant, George E. Aderigha, Esq. identified his Final Written Address filed on the 11th May, 2022 and adopted same as his argument in support of the case and the claim of the Claimants.
ISSUES FOR DETERMINATION
Counsel for the 1st, 2nd and 4th Defendants nominated three issues for determination to wit:
1. Whether the claimants are legitimate employees of the 3rd and 4th Defendants.
2. Whether there was any fraud in the purported employment of the Claimants.
3. Whether the Claimants are entitled to any Reliefs sought.
Counsel for the 3rd Defendant submitted three issues for determination of this suit to wit:
1. Whether from the facts of this case, due process was followed in the employment of the Claimants to make the employment lawful and legal?
2. Whether there was no fraud in the employment of the Claimants?
3. Whether the Claimants are ab-initio entitled to their claims?
The Claimant raised three issues for the determination of this suit to wit:
1. Whether DW2 signed any witness deposition before this Honourable Court for the court to so rely on it.
2. Whether upon the preponderance of evidence adduced, the Claimants have proved their claim to be entitled to the reliefs sought.
3. Whether the Defendants have discharged the burden of proving the allegation of fraud beyond reasonable doubt.
Having carefully ruminating the issues submitted by the parties in their respective addresses, I am of the view that issues one and two submitted by Counsel for the 1st, 2nd and 4th Defendants are the same with the issues one and two submitted by Counsel for the 3rd Defendant and issue three submitted by Counsel for the Claimant. In the same vein, issue three submitted by the 1st 2nd and 4th Defendants is the same as issue three formulated by the 4th Defendant and issue two formulated by the Claimant.
Following this brief analysis, the Court will adopt issue one formulated by the Claimant and take a bite from other issues submitted by the parties and reformulate it in order to take care of the concern of each parties. The issue for determination here are:
1. Whether DW2 signed any witness deposition before this Honourable Court for the court to so rely on it.
2. Whether the Claimant and other persons being represented are legitimate employees of the 3rd and 4th Defendants and whether the Defendants have discharged the burden of proving the allegation of fraud beyond reasonable doubt.
SUBMISSION OF COUNSEL FOR THE 1ST, 2ND AND 4TH DEFENDANTS
Counsel for the 1st, 2nd and 4th Defendants contended that Claimants are not legitimate employees of the 3rd and 4th Defendants based on the fact that the Claimants' purported employment was fraught with anomalies and irregularities as they did not go through any recruitment process as is customary when joining the civil service in the state. There was no advertisement of the recruitment process, examination or interviews conducted and, or list of successful candidates published before the purported employment letters were given to the Claimants. There was also no board resolution before the purported employment was done, neither were employment files opened for the Claimants in the 4th Defendant's office. Further argued that the Cw1 under cross examination stated that he did not remember hearing any advertisement in the media concerning the purported employment. That he could not also show the court anything to prove that there was indeed any advertisement and, or interviews conducted to demonstrate that the employment was indeed legal.
That a pre-condition for employment of junior staff, which is level 01-06 where the Claimants fell under in the Local Government is that the Junior Staff Management Committee(JSMC) has to write to the Local Government Council before such employments can be made. No such letter was written. This highlights the illegality of the purported employment. The handbook on local Government Administration which this Court is aware of is instructive. That the Chairman of the Southern Ijaw Local Government Education Authority as soon as he assumed office, in connivance with others in the Local Government and in the Universal Basic Education Board, fraudulently employed his children, relatives and cronies into the civil service without following due process. The purported employment was therefore illegal and is null and void ab-initio. The Claimant under cross examination admitted that the Chairman of the Southern Ijaw Education Authority who signed the purported letters of employment is indeed his father who was just appointed into that office a few months prior. That it is trite law that one cannot put something on nothing and expect it to stand. It surely must collapse. Cited the case of Mustapha & Ors v. Adenopo & Ors (2020) LPELR-51409 (CA). That in the case of Macfoy v. UAC (1961) 3 WLR 405 at 1409, Lord Denning said: if an act is void, then it is in law a nullity, it is not only bad but incurably bad.
Counsel further argued that there were no formal applications made by the Claimants for employment; the Claimants were never subjected to the required pre-employment interview; employment files were not opened for claimants in the 4th Defendant's office, contrary to due process; there was no preceding Board Resolution authorizing the employment of the claimants from 2008 - 2010; employment letters were signed by the Claimant's father instead of the Local Government Personnel Manager. That the required post-interview shortlisting of candidates was not done.
That the Claimants in paragraph 7 of their statement of claim and witness statement on oath of Mr. Diton Deizigha stated that a letter dated 12th December, 2008, titled "RE: APPROVAL FOR RECRUITMENT OF ACADEMIC AND NON ACADEMIC STAFF" purportedly written by the Executive Chairman of the 4th Defendant, Barr. Rhodesia M. Whyte, commenced the purported recruitment of the Claimants. A notice was even given for the 4th Defendant to produce the original copy of said letter. The witness statement of Barr. Rhodesia M. Whyte and the purported letter were also frontloaded by the Claimants by a motion on notice seeking leave to call the said Executive Chairman as additional witness, filed on the 9th of March, 2020 which this Court granted. The witness statement and the said letter were certified and tendered in evidence by the Defendants. The 4th Defendant in preparation for this matter searched their records and did not find any such letter. Upon further perusal of the purported letter, it was discovered that the date on the letter preceded the appointment of the Executive Chairman who signed the said letter. In paragraph 3 of his witness deposition, Barr. Rhodesia M. Whyte stated that he was appointed into office as Executive Chairman of the 4th Defendant on 9th April, 2009. It is therefore not possible by any stretch of imagination that he could have signed the purported letter on the 12th of December, 2008, approving the employment of the Claimants.
That this letter was forged in an attempt to strengthen the weak case of the Claimants, to the detriment of the Defendants. Forgery connotes making a false document or altering a genuine one for usage. It occurs when a document tells a lie about itself. Cited the case of Babalola v. The State (1989) 4 NWLR (Pt.115) 246 at 277.
SUBMISSION OF COUNSEL FOR THE 3RD DEFENDANT
Counsel for the 3rd Defendant submitted that due process was not followed in the employment of the Claimants from exhibit (CW002) sixty in number (letter of offer of appointment of all the Claimants (sixty of them and not 84 of them) as in the claim. The Claimants entirely based their claim on paragraphs 6 and 7 of their statement of facts that the Claimants through the 3rd Defendant wrote to the 4th Defendant to get approval and the 4th Defendant via exhibit DW001 purportedly issued the approval letter to the 3rd Defendant and the 3rd Defendant based on it purportedly issued exhibit CW002 (letter of employment sixty in number). The Claimants witness testified that it was former chairman of the 4th Defendant who gave approval and the former chairman deposed to an affidavit (witness statement on oath) and later the Claimant refused to call him as a witness but a Certified True Copy of the witness statement on oath was tendered through DW1 (witness to 1st, 2nd and 4th Defendants) as exhibits DW001 and DW002.
That there is no scintilla of evidence adduced before this Honourable court that due process was followed to make the employment lawful and legal. The 1st Claimant representing the other Claimants throughout the case could not furnish any document to show how the employment was advertised, their names shortlisted for interview and that files were opened for successful appointments. The Claimant did not also prove that the 3rd Defendant or the other Defendants approved the employment and that the Defendants were given notice to produce the approval letters. Submitted that pleadings no matter how well couched do not constitute evidence, parties still need to adduce cogent and credible evidence in prove of their case. cited the case or Afilec Ltd v. Lec (2013) All FWLR (Pt.699) pg 1178 at 1198 para. D. That pleadings not supported with evidence goes to no issue and is deemed abandoned cited the case of Military Governor of Lagos 9 Ors v. Adeyiga & Ors (2012) 2M JSC (Pt. 1) pg 76 at 80 ratio 3.
That exhibits DW001 and DW002 have successfully demolished exhibits CW002 (letter of offer of appointment, Exhibits CW003 (letter of confirmation of Appointment, exhibits CW004 (letter of promotions) exhibits CW005 (biometric exercise) and exhibit CW006 as all the exhibits tendered by the Claimants are all a nullity ab-initio. The Claimants were all illegally employed and were illegally receiving salary. Exhibit DW002 which is a witness deposition of Barr. Rhodesia M. Whyte clearly stated that he was appointed by the then Governor of Bayelsa State as executive chairman of the 4th Defendant on the 9th April, 2009 and he left office on the 14th February, 2012 meanwhile exhibit DW001 which is the letter of Approval of the employment of the Claimant is dated 12th December, 2008 signed by Barr. Rhodesia M. Whyte he was in existence for four months even before he was appointed by the Bayelsa State Government as executive chairman of the 4th Defendant. This clearly shows that everything done by the Claimants is a nullity. The Claimants were all employed without any approval or authority from any person. Urged the Court to rely on exhibit DW001 and DW002 as it is very relevant and vital in this case.
Further argued that there was fraud perpetrated by the Claimants in their employment (exhibit CW002 which is the 60 letters of Appointment of the Claimants). The Claimants through their lone witness, Mr. Diton Deizigha in paragraphs 4, 5, 6, 7 and 8 in his witness statement on oath stated that they were employed by the 3rd Defendant and the executive chairman of the 3rd Defendant wrote a letter requesting for employment of junior staff of level 01 - 06 to the 4th Defendant and the 4th Defendant through its executive chairman, Barr. Rhodesia M. Whyte in a letter dated 12th December 2008 gave approval to the employment and it was based on the letter dated 12th December 2008 that the Claimants were employed and issued employment letters (exhibit DW002). The Claimants filed a motion on notice to call Barr. Rhodesia M. Whyte as an additional witness and the court granted the application and the Claimants thereafter filed a witness statement on oath duly deposed to by Barr. R. M. Whyte in court. That later the Claimant refused to call Barr. Rhodesia M. Whyte and decide to closed their case. That the 1st, 2nd and 3rd Defendants opened their case by calling one Mr. Festus Ifidi who is the Director of Personnel of the 4th Defendant who duly certified the witness statement of oath of Bar. Rhodesia M. Whyte and the letter of his appointment by the 1st Defendant and tendered same as exhibits DW001 and DW002 respectively.
Submitted that clearly exhibit DW001 which is the letter of approval for employment was forged. The letter is dated 12th December 2008 while in exhibit DW002 (witness deposition) of the Bar. Rhodesia M. Whyte in paragraph 3 he clearly deposed that he was appointed by the then executive Governor of Bayelsa State, Chief Timipre Sylva on the 9th of April 2009 and left office on the 14th February 2012. This clearly shows that the exhibit DW002 the purported letter of approval of the employment of the Claimants issued by the Barr. Rhodesia M. Whyte was written and has been in existence four months even before the then Governor of Bayelsa State appointed him as the Executive chairman of the 4th Defendant. It is naturally impossible for him to have written the letter of approval even before he was appointed and assumed office as the executive chairman of the 4th Defendant. Urged the court to hold that fraud has been proved that all the letters of appointment purportedly issued by the 3rd Defendants to the Claimants (84 staff) were all forged by the Claimants and therefore the Claimants are not entitled to benefit from their own fraud and urge this court to dismiss all their claims. Cited Bimba Agro Livestock Co Ltd v. Landmark University (2019) LPELR- 47724 CA where the Court of Appeal per Saulawa JCA at page 24 paragraph A, Kwajaffa v. Bank of the North (Pt. 2004) All FWLR (Pt.215) 22.
That DW2, Mr. Clarkson Osoghoyai who was the Head of Local Government Administration of the 3rd Defendant clearly stated in his testimony that in the 3rd Defendant's office, there was no evidence of advertisement of employment of the Claimants, there was not formal application by the Claimants, no pre-employment and post-employment interview. There were also no files of the Claimants in the 3rd Defendant's office or at the 3rd Defendant's Education Authority. DW2 further testified that when Bayelsa State. Government (1st Defendant) carried out verification exercise for all the staff in the 8 Local Government in the State it discovered that the Claimants were all illegally presenting themselves as staff of the 3rd Defendant and collecting salaries and upon such discovery by the verification panel their employment were terminated and their salaries stopped and pasted their termination names and letters at the Notice Board of the 3rd Defendant.
SUBMISSION OF THE CLAIMANT
The claimants submitted that Section 10 Subsection 1 of the Oaths Act 2004 spells out the officers authorised to administer oaths. Section 10 Subsection 1 of the Oaths Act provides that it shall be lawful for the Chief Justice of Nigeria, a justice of the Supreme Court, the President and justices of the Court of Appeal and any judge of the Federal High Court, a notary public, and any commissioner for oaths, to administer any lawful oath or take any lawful affirmation or affidavit which may be required to be taken or made for the purpose of complying with the requirements of any law for the time being in force throughout Nigeria or elsewhere, except where such procedure is expressly or by necessary implication manifestly excluded by the terms of such law as aforesaid and the presumption shall be against any such exclusion
That though the witness statement on oath is signed by a commissioner for oaths of the National Industrial Court Yenagoa Division. DW2 under cross-examination stated the he signed his witness deposition before his client while pointing at his counsel, obviously the said witness statement on Oath was signed by DW2 before his counsel and not before a commissioner for oaths as required by law. That Counsel to the 3rd Defendant is not one of the persons mentioned in Section 10 subsection 1 of the Oaths Act. The word used in the said section is “shall” which is mandatory. It is their submission that the evidence in chief of DW 2 is incompetent and not proper before this court.
Further submitted that the Defendants argued that the purported employment of the Claimants was done fraudulently and they went further to give reasons for believing so. The defendants went further to argue that in Paragraph 7 of the Claimants Statement of Claim and witness statement on Oath of Mr. Diton Deizigha stated that a letter dated 12th December, 2008 titled "RE: APPROVAL FOR RECRUITMENT OF ACADEMIC AND NON-ACADEMIC STAFF " purportedly written by the Executive Chairman of the 4th Defendant, Barr. Rhodesia M. Whyte, commenced the purported recruitment of the Claimants. A notice to produce was given for the 4th Defendant to produce the original copy of the said letter. That the witness statement of Barr. Rhodesia M. Whyte and the purported letter were also frontloaded by the claimants as additional witness. That the Defendants went further to submit that the said letter was forged. That Forgery is an allegation of crime that must be proved beyond reasonable doubt even when alleged in civil matters such as this. The law is that he who asserts or alleges must prove. Cited case of WEMA BANK V. OYEKANMI (2017) LPELR-50503 (CA).
That on the issue of burden and standard of proof of allegation of crime in a civil matter, the court held that the standard of proof of an allegation of crime is the same standard in criminal trials that is beyond reasonable doubt, however, proof beyond reasonable doubt is not proof beyond all shadow of doubt. Refers to the case of BELLO SHRUMO V. THE STATE (2010) LPELR-3069 (SC) where the court held that Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It means the prosecution establishing the guilt of the accused person with the compelling and conclusive evidence. It also means a degree of compulsion which is consistent with a high degree of probability. In the case of MILLER V. MINISTER OF PENSIONS (1947) 2 ER 372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence of course, it is possible but not in the least probable. That in proving a crime, the claimant must establish the ingredients of the offence alleged as in the case of fraud or fraudulent conduct.
That in the instant case the Defendant who alleged fraud did not establish the essential ingredients of fraud. The defendants did not prove either in evidence in chief or under cross examination that the said document was forged. In an allegation of forgery, the essential ingredients to be proved is that the accused person forged the document in question, that there is a document and that the document written is forged. Also, that the forgery was done by the accused person. The said document (Exhibit DW001) which the defendants alleged was forged was tendered through DW1 who is not the maker of the document and has no knowledge of the document and how it was made. The Defendants did not call or subpoena the said Barr Rhodesia M. White to state that Exhibit DW001 was forged when they have all the opportunity to do so.
COURT’S DECISION
I have critically analyzed the evidence adduced by both parties including the exhibits tendered, I have earlier nominated two issues to be determined by this court.
On issue one, Counsel for the Claimant challenged the admissibility of witness deposition on oath of DW2 on the ground that it was signed by DW2 in the law firm of Counsel for the 3rd Defendant and submitted that DW2 ought to have signed his witness deposition on oath in line with Section 10(1) of the Oaths Act 2004. That though the witness statement on oath is signed by a commissioner for oaths of the National Industrial Court Yenagoa Division. DW2 under cross-examination stated that he signed his witness deposition before his counsel while pointing at his counsel, obviously the said witness statement on Oath was signed by DW2 before his counsel and not before a Commissioner for Oaths as required by law. That Counsel to the 3rd Defendant is not one of the persons mentioned in Section 10 subsection 1 of the Oaths Act.
Counsel for the 3rd Defendant submitted that the court is enjoined by Section 122(2) (m) of the Evidence Act 2011 to take judicial notice of all proceedings and all rules of practice in force of its own court. It is the practice of this court that all affidavits are signed before the commissioner of oath of this court and urged the Court to discountenance the submission of Claimant's counsel that the witness statement of oath was signed before 3rd Defendant's counsel in his office. That this argument is intended to mislead the court so as to occasion miscarriage of justice. More so, the witness in his evidence in chief of 31st January, 2022 when adopting his statement on oath said categorically that he remembered making statement on oath before this Honourable court on the 8th of July, 2019 which he signed before this court and he adopted same as his evidence in chief and urged the Court to discountenance the submission that the witness contravened Section 10(1) of the Oaths Act 2004.
May I start by stating that it is indeed in evidence before this Court that DW2 at the opening of his cross-examination stated that he signed his deposition on oath at the office of their counsel (the law firm of Counsel for the 3rd Defendant). The contention of the Claimant is that deposition on oath of DW2 having not been signed by DW2 in presence of the Commissioner for Oath cannot be adopted as evidence of DW2 in this case, relied on Section 10(1) of the Oaths Act. While arguing in opposition Counsel for the 3rd Defendant submitted that the court is enjoined by Section 122(2) (m) of the Evidence Act 2011 to take judicial notice of all proceedings and all rules of practice in force of its own court. It is the practice of this court that all affidavits are signed before the commissioner of oath of this court. Section 122(2) (m) of the Evidence Act 2011 cited by the 3rd Defendant does not obviate a deponent of a deposition on oath from appearing before a commissioner of oath to sign his deposition on oath; hence, the provision of Section 122(2) (m) of the Evidence Act 2011 is not apposite to this argument.
The contention of the Claimant here is that the deposition on oath of DW2 though was attested/commissioned before the commissioner for oath of this court but DW2 signed the said deposition on oath at the firm of the 3rd Defendant’s counsel not before the commissioner for oath. It is also necessary to point out here that on the 31st January, 2022 DW2 before adopting his deposition on oath made on the 8th July 2019 also took an oath/affirmation before this Court. I think, ordinarily deposition on oath of DW2 ought to have been curable under the provision of Section 113 of the Evidence Act which states that the court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the Court is satisfied that it has been sworn before a person duly authorised. This position is further concretized by the decision of the Court of Appeal in ONYECHI EROKWU & ANOR V. JACKSON NWABUFO EROKWU (2016) LPELR-41515 (CA) Page 17-22, paragraph A per OGUNWUMIJU, JCA (as he then was, now JSC) stated that:
I had hitherto been of the view that even where the witness statement of the Respondent at the trial Court was not sworn to before a person duly authorized to take oaths in contravention of Section 112 of the Evidence Act 2011, the subsequent adopting of the written deposition after he had been sworn in open Court to give oral evidence regularizes the deposition. I was of the view that the witnesses' statements which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which are not subjected to cross-examination. That it is such affidavit evidence which do not meet the requirements of Sections 112 Evidence Act 2011 that are intrinsically inadmissible. That where a witness is in Court to say he/she is adopting an irregular written deposition, the implication is that the witness is re-asserting on oath what is contained in the otherwise defective deposition and such adoption on oath makes all the evidence in the written deposition admissible. However, that previous way of thinking must perforce give way to the opinion of the Supreme Court in Buhari v. INEC (2008) 12 SCNJ 1 at 91. In that case, the Supreme Court unequivocally agreed with the Court of Appeal's decision to strike out the depositions of the Appellant's witnesses sworn before a Notary Public who was also counsel in the chambers of the senior counsel to the Appellant which was in violation of Section 19 of the Notary Publics Act and 83 of the Evidence Act (now Section 112). The term 'affidavit' is medieval Latin for 'he has declared on oath'. It is a formal sworn statement of fact, signed by the deponent and witnessed as to the veracity of the deponent's signature by the taker of oaths, such as the Commissioner for Oaths, Notary Public. It has been accepted that a Judge or Magistrate could also take such oaths. An Affidavit must comply with the requirements as set out in Sections 107-120 of the Evidence Act 2011. Let me state that the argument of learned counsel to the Respondent that it is not necessary for a deponent to sign before the oath taker is totally misguided. Counsel is of the erroneous opinion that what is important is that it was sworn before an authorized oath taker. He made a strenuous attempt at distinguishing between signing and swearing. The concept of oath taking involves: i. The deponent making a statement in writing, ii. The document is taken to a Commissioner for Oaths or any person duly authorized to take the oath, iii. The Commissioner for Oaths requires the deponent to swear on a holy book particular to the deponent's faith or a mere declaration for a deponent whose faith forbids him to swear, iv. The Commissioner for Oaths then asks the deponent to verify what has been stated v. The deponent afterwards signs in the presence of the Commissioner for Oaths who witness that the Affidavit was sworn to in his presence. This explains the phrase ''Before me'' usually signed by the Commissioner for Oaths. Any arrangement other than the above amounts to a nullity. The learned trial judge in his wisdom held at page 348 of the Record that the provisions of Sections 112 & 113 of the Evidence Act make the written deposition valid in law because it was sworn before an authorized person. The learned trial judge failed to avail himself of the provisions of Section 117 (4) of the Evidence Act 2011. Section 117 (4) of the Evidence Act is clear on this, it provides as follows: ''An affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark, in the presence of the person before whom it is taken'' When a deponent swears to an oath, he signs in the presence of the Commissioner for Oaths who endorses the document authenticating the signature of the deponent. Signatures signed outside the presence of the Commissioner for Oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner for Oaths is not legally acceptable in Court. In Chidubem v. Ekenna & 12 Ors (2008) LPELR-3913, (2009) All FWLR (Pt. 455) 1692, this Court held as follows: ''The attempt by learned counsel for the Appellants to draw a distinction between signing a deposition and swearing an oath is in my humble view, merely splitting hairs. The two acts are of the same transaction. The law is that the deposition on oath must be signed in the presence of the person authorized to administer oaths.'' In this case, the Respondent upon cross-examination stated when asked where he signed his statement on oath that 'I guess in my counsel's chambers'. This to my mind presupposes that the document was not signed before a commissioner for oaths. Respondent's counsel's reference to the word 'guess' as being a supposition and not definite or certain cannot obviate the implication of the response. Respondent would easily have said 'I signed before the Commissioner for Oaths' if he did. 'I guess in Court' or 'I guess before the Commissioner for Oaths' would confer another impression on the Honourable Court. The impression conferred is that he signed in chambers of his counsel but a Commissioner for Oath later attested to it. He simply did not sign it in the presence of a Commissioner for Oaths as required by law. This is not a defect in form as envisaged by Section 113 of the Evidence Act 2011. It is a fundamental and statutory error that cannot be waived. Therefore, the witness statement of the Respondent dated 9/10/2008 is incompetent and inadmissible, it is hereby expunged having failed the statutory test of authenticity and admissibility.''
In the instant case the deposition on oath of DW2 was signed in chambers of his lawyer is in contravention of Section 117(4) of the Evidence Act and who is not also athorized to administer oath as required under Section 113. Written deposition on oath of DW2 made on the 8th July, 2019 is invalid and it is hereby set aside; thus, issue one is resolved in favour of the Claimant.
On issue two, the precis of the fact leading to this suit is that the Claimant and other persons being represented claimed to be employed by the 3rd and 4th Defendants. That they were employed by the Southern Ijaw Local Government Education Authority and the Bayelsa State Universal Basic Education Board at different dates between 2008 to 2010 ranging from salary grade level 01 to 06. That the Claimant and other persons being represented subjected themselves to the verification exercise and presented themselves for the verification. That upon presenting themselves for verification the 3rd Defendant's verification team deliberately refused to verify the Claimant and other persons being represented and by words of mouth said that all persons employed in the state from 2008 till date are ghost workers. That it was in July 2016 that the Bayelsa State Government commenced payment of salaries and the Claimant and other persons being represented did not get their salaries. That since January 2016 till date they have not been paid salaries for no just cause whatsoever and no reason was given for the stoppage of their salaries.
The defence of the Defendants is that the letters of Offer of Appointment and Confirmation of Appointments were fraudulently issued by the former Chairman of the 4th Defendant in connivance with the Claimant and other persons being represented without following due process which was faulty and mischievous. That formal applications were not made by the Claimant and other persons being represented; the Claimant and other persons being represented were never subjected to the required pre-employment interview; the required post-interview shortlisting of candidates was not done; employment files were not opened for the Claimants in the 4th Defendant's office contrary to due process. That there was no preceding Board resolution, authorizing the employment of the Claimants in 2011. The employment documents exhibited by the Claimant and other persons being represented shows that the Claimant and other persons being represented were employed by the Local Government Education Authority but confirmed by the Universal Basic Education Board, thus fraudulent. That the 1st Defendant sought to order the termination of the Claimant and other persons being represented appointment and stop the payment of their salaries upon discovering the Claimant and other persons being represented purported employment is fraught with anomalies, irregularities and breaches. That it was the said verification exercise conducted at the level and instance of the 1st Defendant that revealed anomalies with the purported employment of the Claimants as averred by the Defendants.
The parties addressed the Court vide their respective Final Addresses on the strength of their case. However, before going into the argument of the parties, it is very pivotal to point out here that during the trial of this case particularly on the 31st January, 2022, the 1st, 2nd and 4th Defendants through DW1 tendered Exhibits DW001 and DW002. Though there was an objection from the side of the Claimant that DW1 is not the maker of Exhibits DW001 and DW002 and ought not to tender the said Exhibits because DW1 could not be cross-examined on the mentioned Exhibits. This Court rejected the argument of the Claimant and admitted Exhibit DW001 and DW002 in evidence. Upon reviewing the pleadings and evidence before this Court, it crystal clear to this Court that Exhibit DW001 was pleaded by the Claimant but same was not tendered. While, Exhibit DW002 is a deposition on oath of a proposed witness of the Claimant which the Claimant did not later call.
Having painstakingly read through the Statement of Defence of the 1st, 2nd and 4th Defendants, Exhibit DW001 and DW002 were not pleaded; hence, inadmissible. The rule of pleading is that facts or documents sought to be used by a party in a proceeding must be pleaded. Document not pleaded is inadmissible in evidence and the facts extracted therefrom go to no issue since parties are bound by their pleadings: ITA V. EKPENYONG (2001) 1 NWLR (PT. 695) 587; NATIONAL INVESTMENT & PROPERTIES LTD. V. THOMPSON ORGANISATION LTD. (1969) NMLR 99; GEORGE V. DOMINION FLOUR MILLS LTD. (1963) 1 SCNLR 117; and OJO-OSAGIE V. ADONRI (1994) 6 NWLR (PT. 349) 131. More so, to spring documents on a party which documents were unpleaded if admitted is a breach of the rule of fair hearing and when the wrongful admission has been discovered this Court is enjoined to expunge unpleaded document as by consent inadmissible evidence cannot be foisted on the court as the court is only bound to rely on legal evidence in the administration of justice: see the case CHIGBU V. TONIMAS (NIG.) LTD. (1999) 3 NWLR (PT. 593) 115.
Threading with caution, it may be argued that the 1st, 2nd and 4th Defendants pleaded Exhibit DW001 in paragraph 3 of their Statement of Defence where it was averred that:
3. In response to paragraph 6 and 7 of the Claimants' Statement of Facts, the 1st, 2nd and 4th Defendants aver that such letters were never written in respect of the recruitment of academic and non-academic staff as the 4th Defendant has never issued any letter to that effect.
As earlier stated, Claimant pleaded Exhibit DW001 in paragraph 7 of the Statement of Facts where it was averred that:
7. The claimants state that upon receipt of the letter of approval for the recruitment of Academic and non-academic staff the Executive Chairman of the Bayelsa State Universal basic Education confirmed receipt of the said letter and commenced the recruitment with a request for funds for the salaries of those employed the said letter dated 12th December 2008, and titled "RE: APPROVAL FOR RECRUITMENT OF ACADEMIC AND NON-ACADEMIC STAFF" the said letter is hereby pleaded NOTICE TO PRODUCE is hereby given to the defendants to produce the original copy of the letter.
The question to ask here now is that can paragraph 3 of the 1st, 2nd and 4th Defendants which denied the existence of Exhibit DW001 amount to pleading of Exhibit DW001. May I by analysis point as it seems to me, the Claimant pleaded Exhibit DW001 to prove that Exhibit DW001 was issued for the approval of the commencement of Academic and Non-academic staff and the Executive Chairman of the Bayelsa State Universal Basic Education confirmed receipt of the said letter and commenced the recruitment with a request for funds for the salaries of those employed. While the Defendants through their written address made an effort to build a case of fraud and forgery it was argued that the 4th Defendant in preparation for this matter searched their records and did not find any such letter (Exhibit DW001). Upon further perusal of the purported letter, it was discovered that the date on the letter preceded the appointment of the Executive Chairman who signed the said letter. In paragraph 3 of his witness deposition (Exhibit DW002), Barr. Rhodesia M. Whyte stated that he was appointed into office as Executive Chairman of the 4th Defendant on 9th April, 2009. It is therefore not possible by any stretch of imagination that he could have signed the purported letter on the 12th of December, 2008, approving the employment of the Claimants.
The snag in the case of Defendants here is that the Defendants did not plead these facts as argued in their pleading to link Exhibit DW001 to their argument in the Final Written Address. The fact which prudent counsel ought to have pleaded is that the Chairman who signed Exhibit DW001 was appointed to the office on the 9th April, 2009, the letter purported to have been signed by the chairman was dated 12th December, 2008. That the letter dated 12th December, 2008 preceded the appointment. Pleading these facts will give the opponent the opportunity to know the strength of his case and whether to supply the Court with more information that is not yet before the Court. Counsel cannot remedy what he failed to do in preparing their defence through his address as this Court is guided by pleading and evidence placed before the Court not by the eloquence of counsel. The address of counsel, no matter how brilliant and erudite, cannot take the place of the evidence on record. An issue merely raised by counsel in his address cannot be part of the evidence before the court and ought to be discountenanced: see the case of ANDREW V. I.N.E.C (2018) 9 NWLR (PT. 1625) 507, DODO V. SALANKE (2006) 9 NWLR (PT. 986) 447; OMISORE V. AREGBESOLA (2015) 15 NWLR (PT. 1482) 205. In this instant case, there is no particulars giving rise to Exhibits DW001 and DW002, even though Exhibits DW001 and DW002 were not pleaded as required by law. Flowing this finding, Exhibits DW001 and DW002 are hereby expunged from the record of this Court. I so hold.
Back to the substance of the claim of the Claimant, the Claimant through CW1 tendered Exhibits CW002: letter of appointment, CW003: confirmation of appointment, CW004: letter of promotion and CW005: the verification slips. By these exhibits tendered before this Court, the Claimant has successfully proved to this Court that the Claimant and other persons being represented are the employees of the 3rd and 4th Defendants. However, the defence of the Defendants is that the letters of Offer of Appointment and Confirmation of Appointments were fraudulently issued by the former Chairman of the 4th Defendant in connivance with the Claimant and other persons being represented without following due process which was faulty and mischievous. That formal applications were not made by the Claimant and other persons being represented; the Claimant and other persons being represented were never subjected to the required pre-employment interview; the required post-interview shortlisting of candidates was not done; employment files were not opened for the Claimants in the 4th Defendant's office contrary to due process. That there was no preceding Board resolution, authorizing the employment of the Claimants.
Given the defence of the Defendants, the Defendants concerted effort to argue that the Claimant purported employment was fraught with anomalies and irregularities as they did not go through any recruitment process as is customary when joining the civil service in the state. It is deserving to mention that the Defendants did not mention any law that was breached in the recruitment of the Claimant and other persons being represented. In the case of SODIPO V. LEMMINKAINEN (1986) 1 NWLR (PT. 15) 220 P. 233 the Supreme Court held that:
If the true intention of the respondent was to show that the appellant's contract of employment contravened specific provisions of the law, which makes the contract unenforceable then the law makes it incumbent upon the respondent to specifically plead these provisions so that the appellant may have the opportunity of reaching to them and challenging evidence that may be adduced in support of these facts.
Though the defence argued that the recruitment of the Claimant and other persons being represented did not follow due process customary in the state, but the defence failed to realize that the Claimant and other persons being represented were employed between the 2008 to 2010, the Defendants did not deem it necessary to nullify the employment of the Claimant and other persons being represented; the appointments were confirmed vide Exhibit CW003. To further crown the employment of the Claimant and other persons being represented, they were further promoted without grumble from the Defendants. Besides the promotion of the Claimant and other persons being represented, Exhibit CW005 confirmed the Claimant and other persons being represented to be legitimate staff of the 3rd and 4th Defendants. Arguing that the employment of the Claimant and other persons being represented is illegal on the basis of the failure to comply with the purported due process customary to recruitment process in Bayelsa state cannot be validated with any statutory provision.
The Court of Appeal in the case of BATALHA V. WEST CONST CO. LTD. (2001) 18 NWLR (PT. 744) 95 P. 113 cited the Supreme Court case of OILFIED SUPPLY CENTRE LTD. V. JOHNSON where the appellant contended that at the time the respondent got involved with the appellant and was working, he had not obtained an expatriate quota thus making all contracts entered into by him illegal, the Supreme Court upheld the decision of the Court of Appeal and held that:
The purport of section 8(1) Immigration Act is to protect certain businessmen from exploitation by non-Nigerians and make sure that Nigerians are not at any disadvantage. Section 8 imposes no penalty for failure to apply, apart from deportation. The petitioner has not been deported. It is only when a penalty is imposed that the whole transaction will be void.
Eso, JSC thereafter said at page 638 of the judgment:
The real question is, could the company meet this case by saying that their own foundation was illegally procured and the benefit that has accrued to the company that is the over eight million naira, procured from illegal basis.
In this instant case, the Claimant and other persons being represented have been rendering service for the Defendants and collecting receiving salaries from the Defendants without any complaint until 2016 when the Defendants stopped paying the monthly salary of the Claimant and other persons being represented. Assuming the appointment of the Claimant and other persons being represented did not follow due process of the recruitment of staff in the State as imagined by the Defendants, payment of the salaries of the Claimant and other persons being represented, confirmation of their appointments and subsequent promotion deem to have regularized the improper appointment of the Claimant and other persons being represented. By the very positive acts of the Defendants, any irregularity purported to have been occasioned in the appointment of the Claimant and other persons being represented deemed to have been regularized and waived by paving the confirmation of the appointment of the Claimant and other persons being represented. The concept of waiver is that a person who is under no legal disability and having full knowledge of his rights or interests conferred on him by law and who intentionally decides to give them or some of them up cannot be heard to complain that he has not permitted the exercise of those rights or that he has been denied the enjoyment of those interests: see the case of CONOIL PLC V. SOLOMON (2017) 3 NWLR (PT. 1551) 50.
It is therefore the finding of this Court that the reason for the stoppage of the payment of salaries of the Claimant and other persons being represented is baseless and cannot be justified. I resolve the second issue for determination in favour of the claimants.
The claim of the Claimant succeeds.
For the avoidance of doubt and for all the reasons stated in this judgment, I hold as follows:
1. I declare that the Claimants were duly employed as Civil Servants and are still Civil Servants and as such are entitled to their salaries and other allowances.
2. I declare that the purported termination of the employment of the Claimants by the 3rd and 4th Defendants is unlawful, null and void.
3. I order the 3rd and 4th Defendants to reinstate the Claimants as civil servants.
4. I order the 1st, 3rd and 4th Defendants to pay all salaries and allowances accruing to the claimants from January 2016 to date.
5. I order the 1st, 3rd and 4th Defendants to pay the sum of N100, 000 for each of the Claimants as general damages.
6. All terms of this judgment are to be complied within 30 days from today without prejudice to the right of Appeal by any party who is dissatisfied with the judgment of this Court.
7. I make no order as to cost.
Judgment is hereby entered accordingly.
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HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
YENAGOA DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
