IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE: 27TH APRIL, 2023                           SUIT NO: NICN/IB/86/2016

 

BETWEEN

Mr. Muhammed Abubakar Garba                                                            Claimant

 

AND

1. The Nigerian Army

2. O. J. Adama (Commander, 2 Division Hospital

    Odogbo Barrack, Ibadan

3. G.O.C (PROF) Hq. 2 Division, Odogbo Barrack, Ibadan       Defendants

REPRESENTATION

Akeem Abdulsalam with Adesunmisola Abiona for the Claimant

O. S. Adigo with C. F. Ikechukwu for the Defendants

 

 

JUDGMENT

1.         Introduction & Claims

1.         The Claimant by his General Form of Complaint filed on 14/9/16 commenced this case and sought the following reliefs –

 

a.         A declaration that the purported dismissal of the Claimant by the Defendants with the effect from 16th day of June, 2016 while in the service of the 1st Defendant is irregular, illegal, unconstitutional in bad faith and breach of natural justice and therefore null and void.

b.         An Order directing the Defendants to re-instate the Claimant to his post and duties forthwith.

c.         An Order directing the Defendants to pay the Claimant all his salary, entitlement, emoluments from month of July, 2016 till his re-instatement.

d.         An Order directing the Defendants to pay the Claimant the sum of Two Million Naira (=N=2,000,000.00) as aggravated damages for unlawful dismissal.

e.         An Order directing the Defendants to pay the Claimant the sum of Two Hundred Thousand Naira (=N=200,000.00) only as cost of instituting this.

 

2.         Claimant’s General Form of Complaint was accompanied by a statement of facts, list of witness, witness statement on oath as well as list and copies of documents to be relied on at trial.

 

3.         The Defendants entered a joint appearance to the suit on 15/11/16 and filed a statement of defence on 22/12/16. The statement of defence was filed along with all the requisite frontloaded processes.

 

2.         Case of the Claimant

4.         The Claimant testified in chief in this case on 21/3/19. He adopted his witness deposition of 14/9/16 as his evidence in chief and tendered a lone exhibit admitted and marked as Exh. AG1. While under cross examination a document was tendered through the Claimant. It was admitted in evidence and marked as Exh. AG2.

 

 5.        In cross examination the witness testified that he was posted to the Medical Unit of the Nigerian Army in 2009; that Ali Wakili was his immediate senior in the Army; that he is not aware Ali Wakili was dismissed from the Army; that his posting was in Lagos; that Wakili came from Lagos to Ibadan and stayed with him for four days; that Wakili was involved in a robbery incident; that no machine was found in his house; that Wakili was in his house after the robbery incident; that he was tried for conducting himself in a manner prejudicial to service discipline; that he was tried by Lt. Col. Adama on 3/6/16 and told him he was ordered from to dismiss him and that he made a statement to the Military Police on what happened.

 

6.         Witness added that his Commanding Officer tried him; that he has power to try him; that he also has power to dismiss him if he finds him guilty; that the Commander did not give him any Charge Sheet before trying him; that before the incident he had no problem with the Army; that he was not given any document after his dismissal and that after his dismissal he was handed over to the Police. 

3.         Case of the Defendants

7.         On 2/12/2020 the Defendants opened their case. One Ishaku Lawyer testified as DW1. Witness adopted his witness deposition made on 25/10/19 as his evidence in chief and tendered one document. The document was admitted in evidence and marked as Exh. D1. After series of adjournment to enable the Claimant cross examine DW1, the Claimant was foreclosed from doing so on 9/11/21 and the matter adjourned for the adoption of final written addresses of counsel.

4.         Final Written Addresses

8.         At the close of trial the Court directed parties to file their final written addresses in accordance with the Rules of Court. The final written address of the Defendants dated 24/1/22 was filed on 2/2/22. In the address, learned Counsel set down a lone issue for determination thus –

 

Whether the Claimant has proved his case to enable him to the reliefs which he seeks by his action.

 

9.         In arguing this issue, learned Counsel submitted that from the pleadings alone the Defendants justified the dismissal of the Claimant; that the Claimant has not succeeded in establishing that his dismissal is irregular, unconstitutional and in bad faith; that Claimant did not deny or refute the serious allegations contained in the pleadings of the Defendants and also did not cross examine the DW1 on those allegations; that failure to do so amounts to an admission of those facts citing Phillips v. EOC & Industry Co. Limited (2013)1 NWLR 618; that the Defendants considered the Claimant to be a bad leg in its midst and followed the due process to discipline the Claimant as laid down in the Armed Forces Act which the Claimant is subject citing Nnoli v. UNTH (1994)23/24 LRCN 36; that being a person subject to Service Law, the Claimant was properly tried and dismissed and handed over to the Police for possible prosecution. Counsel submitted that the first relief sought being a declaratory relief is not granted as a matter of course, being a discretionary relief the Court must be satisfied before granting same citing Inyang v. CCECC (2020)39 WRN 40; that it is also not granted on admission citing  Akpoti & Anor. v. INEC & Ors. (2020)37 WRN 100. According to the learned Counsel not having proved entitlement to the declaratory relief the other reliefs sought could also not stand and must be dismissed citing Eligwe v. Okpokiri (2015)240 LRCN 28. Counsel urged the Court to refuse all the reliefs sought for lack of proof and dismiss the case of the Claimant in its entirety.

 

10.       Claimant did not file any final written address. This notwithstanding that he was afforded ample opportunities to do so.

 

5. Decision

11.       I have read all the processes filed by the learned Counsel on either side. I listened patiently to the testimonies of the witnesses called at trial and watched their demeanor. I carefully reviewed and evaluated all the exhibits tendered and admitted. I also heard the oral submission. Having done all, I adopt the lone issue set down by the Defendants for determination thus -

 

Whether the Claimant has proved his case to be entitled to the reliefs which he seeks by his action.

 

12.       The state of the Law remains trite that the burden is always on he who approaches the Court for intervention to adduce cogent, credible and admissible evidence in support of his case in order to be entitled to a grant of the reliefs sought. It is only when that burden is discharged that the Defendant may be called upon to enter its defence. Where however there is an express admission of certain facts the need to adduce evidence in support is dispensed with. The evidence required may be documentary or oral or both. More often than not, documentary evidence is accorded more evidential weight.

 

13.       The Claimant in the instant case sought five main reliefs comprising of one declaratory relief and four orders. The first relief sought is declaratory in nature. It is for a declaration that the purported dismissal of the Claimant by the Defendants with the effect from 16th day of June, 2016 while in the service of the 1st Defendant is irregular, illegal, unconstitutional in bad faith and breach of natural justice and therefore null and void. A declaratory relief is one grated at the discretion of the Court. Being a discretionary one therefore, an applicant is expected to adduce cogent evidence to justify his entitlement to same otherwise the Court will refuse a grant. A declaratory relief is not granted as a matter of course. It will also not be granted solely on an admission by the adversary party.

In a declaratory relief of this nature in which an employee seeks a declaration that his dismissal is irregular, unconstitutional, null and void, the Claimant has a duty to prove to Court how he could lawfully, legally, regularly and constitutional be dismissed. In order therefore to do this, the burden remains on him to lay out to the Court the procedure under his terms and condition of employment by which he could be dismissed. It is then for the Claimant to draw the attention of the Court to how the Defendants breached the established and accepted procedure for his dismissal.

 

14.       In the instant case, Claimant did not inform the Court about the established procedure to be followed by the Defendants before dismissing him. Claimant did not inform the Court how the Defendants breached the said procedure. The only exhibit tendered by the Claimant, Exh. AG1 did not show a link between the dismissal of the Claimant and the procedure followed for same. Rather it was part of the evidence of the Claimant that his Commanding Officer who tried him had the power to try him and to dismiss him if the Commanding Officer found him guilty. Claimant did not challenge the procedure for his dismissal. He did not challenge the competency of his Commanding Officer both to try and dismiss him. Neither did the Claimant allege that he was denied a hearing in the events leading to his dismissal. It is my finding that the Claimant failed to adduce cogent and credible evidence in support of the declaration sought. Accordingly, I refuse and dismiss the first relief sought for lack of proof.

 

15.       Reliefs (b) to (e) for reinstatement, payment of accrued salaries, emoluments, payment of aggravated damages and cost of this action are dependent on the success of the declaratory relief sought. Now, the declaratory relief having been refused and dismissed, there is nothing upon which these other ancillary reliefs could stand. It is trite that a person cannot put something on nothing and expect it to stay there. It is bound to collapse just as this case is bound to collapse. Accordingly they are refused and dismissed.

 

6.         Conclusion 

16.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant is dismissed in its entirety.

 

17.       I make no order as to cost.

 

18.       Judgment is entered accordingly

 

 

 

__________________________

Hon. Justice J. D. Peters

Presiding