IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
2ND DAY OF MAY 2023
SUIT NO: NICN/CA/28/2016
BETWEEN:
1. Patriot Kate Odi (CRS Commandant)
2. Patriot James Ochiche
(CRS Deputy Commandant) Claimants
For themselves and on behalf of
Peace Corps of Nigeria
AND
1. Dominic Okweche
2. Bissong Odu
For themselves and on behalf of
Dominic Okweche led
Peace Corps of Nigeria
3. The incorporated trustees of the
Peace Corps of Nigeria Defendants
JUDGMENT
1. The claimants commenced this action on 18/6/2016 via Originating Summons. However, on 9/3/2017, the court ordered for the conversion of the Originating Summons to a general form of complaint. The claimants on 30/3/2017 filed a general form of complaint, accompanied by statement of facts, witnesses’ statement on oath, list of witnesses, list of documents to be relied on at the trial and photocopies of documents to be tendered as exhibits. On 24/5/2022, after the closure of the case for the defendants, the matter was adjourned to 18/10/2022 for adoption of final written addresses.
2. On 20/7/2022, the counsel for the claimants filed final written address of the claimants. While the counsel for the defendants filed the defendants final written address dated 5/10/2022 on the same date.
3. The claimants on 26/10/2022, filed motion on notice dated 25/10/2022, seeking leave to amend the general form of complaint commencing this action. On 15/12/2022, this court granted the application for amendment and deemed the general form of complaint and statement of facts with its accompanying processes already filed on 26/10/2022, as properly filed and served.
4. Vide the amended general form of complaint and the statement of facts, with its accompanying processes the claimants sought for reliefs against the defendants as follows:-
1. A DECLARATION THAT Dominic Okweche and Bissong Odu are not the legitimate Commandant and Deputy Commandant respectively of the Peace Corps of Nigeria, Cross River State Command.
2. A DECLARATION that Patriot Kate Odi and Patriot James Ochiche are the State Commandant and Deputy Commandant of Peace Corps of Nigeria and only them have the right and power to act as such in their various capacities in which they are entitled to.
3. AN ORDER prohibiting Dominic Okweche and Bissong Odu from acting, operating or parading themselves as Commandant and Deputy Commandant of the Peace Corps of Nigeria, Cross River State Command or doing anything that will conflict with the rights and duties of the Claimants.
4. AN ORDER directing the 3rd Defendant to refrain from dealing with the 1st and 2nd Defendants whether directly or indirectly instead of Claimants who are the legitimate leaders of the 3rd Defendants.
5. AN ORDER of perpetual injunction restraining the 1st and 2nd Defendants from operating as State Commandant and Deputy Commandant of the Corps in Cross River State or parading themselves as such while the Claimants are still the leaders of the Corps in Cross River State Command.
6. AN ORDER of perpetual injunction restraining the 3rd Defendant from dealing with the 1st and 3rd Defendants as if they are leaders of the Corps in Cross River State while the Claimants are still the leaders of the Corps in Cross River State Command.
7. General damages in the sum of ₦50,000,000 (Fifty Million Naira) only for interfering with the rights and functions that are only meant to be exercised by the Claimants, embarrassment, intimidation, harassment meted to the Claimants by the Defendants.
5. Following the amendment of the originating process granted to the claimants, the 3rd defendant on 22/12/2022 filed amended statement of defence.
6. On 1/11/2021, the 2nd claimant testified as CW1 in proof of the case for the claimants. CW1 in the course of the trial tendered documents which were admitted as exhibits 1-15. In the course of cross examination of CW1 four documents were tendered in evidence. The documents were admitted in evidence and marked as exhibits 15B, 16A, 16B and 16C. On 24/5/2022, CW1 was cross examined by counsel for the defendants.
7. Under cross examination CW1 testified to the effect that he knows the 3rd defendant as an entity registered under part C of companies and Allied Matters Act, with its headquarters in Abuja, with commands in the 36 states of the federation. The 3rd defendant is governed by constitution exhibit 15B. CW1 continued his evidence that he is conversant with the constitution; as it confers powers on the commandant to dismiss or discipline any member of staff. The power is vested in the national commandant. Exhibit 4A is letter of appointment of CW1. The appointment was done by national commandant. He also stated that his appointment is not voluntary service. That he is working on salaries to be paid to him. He has not been paid salaries. There is condition of service governing the appointment of the claimants. The terms and conditions are as contained in the exhibit 4A. CW1 stated that he was not dismissed as deputy commander. CW1 also stated that he charged before the chief magistrate court for impersonation. He was not tried and convicted. He was not imprisoned for two years. The charge was struck out for lack of vigilant prosecution. CW1 stated that he was not detained at Obubura Prison. His lawyer did not file application for bail pending appeal. When application for bail was shown to the witness, he stated that his lawyer filed the application. He also stated that it was because of the application that the chief magistrate court granted him bail and he was released from Obubura correctional service. He did not appeal against conviction.
8. On 24/5/222, one Abdussalami Shuaibu testified in the defence of the 3rd defendant as DW1. Some documents were tendered in evidence through DW1.
9. Under cross examination DW1 testified that he is director administration of the 3rd defendant. He also stated that currently he is Assistant national commandant national headquarters. He stated that he deposed to affidavit in support of objection by the 3rd defendant. On 23/11/2019 court delivered ruling and said he is not competent to give evidence. He is not aware in Cross River State there are two factions of Peace Corps. The 1st defendant was appointed in 2007. He took over from a lady he could not remember her name. He is not aware Peace Corps is taken over and control by Cross River State Government. The deputy commandant is Afoke Peter, he was appointed by commandant.
THE CASE FOR THE CLAIMANTS
10. As can be gathered from the pleadings witness statement on oath, the Claimants were appointed by the 3rd Defendant as the State Commandant and Deputy Commandant of the Peace Corps of Nigeria, Cross River State Command vide exhibits 7A and 4A, letters titled “Notice of Re: Deployment of New State Commandant” dated 28th February, 2006 and dated 1st March, 2007, respectively. Since then the claimants have been carrying on their lawful duties in accordance with the object of the 3rd Defendant, a non-profit, uniformed National Youth Voluntary Organization Committed to the Promotion of Peace and Capacity Building of Youth through its various value driven programmes. The 1st and 2nd defendants were members of the National Unity and Peace Corps which ceased to exist with the expiration of its license to operate issued by the Ministry of interior which was not renewed by virtue of a disclaimer notice exhibit 10A by the Federal Ministry of interior Published in Vanguard News Paper of Thursday 11, September, 2008 page 22. Following the Publication, the 1st and 2nd Defendants found their way into the 3rd Defendant and later devised manipulative and cohesive means of taking over the leadership of the 3rd Defendant in Cross River State Command. To achieve their wicked and acquisitive tendencies the 1st and 2nd defendants have set up an office at Federal Housing Estate, CaIabar, Cross River State and conduct recruitment exercises and in fact operate a completely different government which conflicts with the activities of the legitimate Peace Corps of Nigeria led by the claimants and despite the several correspondences addressed to the 3rd defendant, the 3rd defendant has failed, neglected and or refused to wade into the matter and address it judiciously. The manner in which the 1st and 2nd defendants are parading ”themselves as the state commandant and Deputy Commandant of Cross River State Command of Peace Corps of Nigeria and the wholesome operation with violence seriously prejudices the claimants.
11. The 2nd claimant was appointed the State Deputy Commandant of Peace Corps, Cross River State Command in March, 1st 2007 vide a Notice of Appointment with Ref No PCN/11Q/017/001NOL. 1/07 and since then up till now the claimants have been working and discharging their lawful duties towards the attainment of sustainable growth of the 3rd defendant in Cross River State and Nigeria at large.
12. The 1st and 2nd Defendants were the 1st claimant’s subordinates who were as a matter of fact disciplined by the National Commandant on the recommendation of the 1st claimant in 2007. The 1st defendant was suspended while the 2nd defendant was dismissed from the corps on grounds of financial misappropriation. Being aggrieved by the disciplinary measures meted on them, 1st Defendant defected to the National Unity, and Peace Corps and carried the 2nd Defendant (his friend) with him.
13. Vide exhibit 11A, in 2000, the 1st claimant appealed to His Excellency, Dr. Liyel Imoke, the then Governor of Cross River State for approval to recommence activities in Cross River State following clearance from the State Security Service which had earlier halted the peaceful operation and later cleared the 3rd Defendant in Cross River state. Sequel to exhibit 11A, the Cross River State House of Assembly by a Resolution No. 17 resolved that the state government should engage and deploy the corps members to provide security in primary and post primary schools so as to complement the government’s effort in the fight against cultism, kidnapping and other social vices, and such auxiliary services that the government may consider necessary.
14. Following the Cross River State Head of Service’s Authorization vide exhibit 13A, the letter titled “Re: Notification for the posting of the staff officers and men of the Cross River State Peace Corps of Nigeria to Educational Institutions” dated 7/9/2015 with Ref No: GO/HOS/350/57NOL.1/365, I posted my officers accordingly. Vide exhibit 14A, the 1st claimant in 2010, recommended the Deputy Commandant to the Chairman, INEC in a letter dated 21/12/10 in service of my dear Nation.
15. It was stated despite peaceful disposition of 1st claimant, the 1st and 2nd Defendants have continued to perpetrate evil such as recruitment and issuance of fake certificates, mutiny, threat to life, consequently, instruction were given to lawyer, Prince Atim Egbe, Esq; of Godwinson Church and co to inform the state security Adviser, Governor’s Office, Calabar about the 1st and 2nd Defendants’ atrocities.
16. The 1st claimant stated that officers have been posted in virtually to all the Local Government Areas to build and structure the 3rd Defendant in their various Divisions since 2013 after due public announcement. Exhibit 1A.
17. The 1st clamant stated she never absconded nor been dismissed by the 3rd Defendant since her appointment and redeployment to Cross River State Command. The 1st claimant wonders why 1st Defendant claims he is the State Commandant. As she has never handed over to 1st Defendant neither has the 1st Defendant come to her with a letter introducing himself as the state commandant for official handing over and take over the same way she took over from Patriot Moses Adie. According to the 1st claimant she has been holding series of executive meeting with her Exco members one of which was held on 19th September, 2015 at Supreme Guest House, Ikom with nine Officers in attendance who entered their respective names and signatures in the attendance list. Exhibit 3A. The 1st claimant insisted that the 3rd defendant has not dismissed her nor has anybody including the 1st and 2nd defendants have been deployed to take over from her and 2nd Claimant till now.
THE CASE FOR THE 3RD DEFENDANT.
18. The 3rd Defendant stated that the 1st claimant is neither a member nor the State Commandant of Peace Corps of Nigeria i.e. 3rd defendant’s Cross River State Command. The appointment of the claimants was made pursuant to the provisions of the Constitution of the 3rd defendant which gave the National Commandant (NC) the prerogative of appointment, removal and dismissals of the members and volunteers of the 3rd Defendant. The 3rd Defendant is a non-political, non-governmental charitable and youth organization that is committed to Creativity, Peace and Youth Development, by educating and re-orientating the Nigeria Youth and students on their future leadership roles in the society, the art of nation building, respect for constituted authorities, rule of law and democratic principles as well as impacting high sense of citizenship and good leadership qualities in the youths and students with the aim of instilling discipline and redirecting their energy towards nation building and socio-economic and political advancement of the Nation.
19. The 3rd Defendant denies suspending or dismissing of 1st and 2nd defendants. The responsibility of seeking recognition from Federal, State and Local Governments and or other organizations is that of the Headquarters of the 3rd defendant it is further stated that recognition to operate in Cross River State had been gotten before the appointment and dismissal of the 2nd Claimant as the Deputy Commandant of Peace Corps of Nigeria, Cross River State Command. The National Commandant of the 3rd Defendant appointed the 1st Claimant as the State Commandant of National Cross River State Command, but she absconded and abandoned her duty post in 2007. In the exercise of the powers conferred on him the National Commandant of the 3rd defendant vide a letter with Ref. No. PCN/r1QJ082/017/V.1/06 dated the 12th December, 2007 and addressed to the Executive Governor of Cross River State appointed the 1st defendant as the State Commandant Cross River State Command. It was stated that Kate Odi is currently the Press secretary to the Executive Chairman, Etuna Local Government area.
20. The 2nd Claimant was in 2007 dismissed as a member and officer of the Peace Corps of Nigeria when he usurped the powers of the State Commandant. The 3rd defendant vide a letter with Ref No: PCH/HQ/001/004/V.3/10 dated 3rd December, 2010 and addressed to the Executive Governor of Cross River State, the National Commandant of Peace Corps of Nigeria brought to the attention of the general public that the 2nd claimant has been dismissed from the organization. Following his undertaking to turn a new leaf of life, the 2nd claimant was appointed as the State Programme Officer Cross River State Command. Exhibit DWF. However, not long after that the 2nd Claimant committed another wrong doing by unilaterally writing to the Executive Governor of Cross River State without authorization which warranted his final dismissal from the organization in June, 2012.
21. The 3rd Defendant avers that vide letter PCN/HQ/001/004/V.1/12 the National Commandant of the Peace Corps of Nigeria informed the Executive Governor of Cross River State vide letter dated 21st June, 2012 that the 2nd Claimant has been dismissed from the organization. Vide exhibit DWF the 2nd Claimant acknowledged his dismissal and undertook not to parade himself as a member of the organization or disrupt the operation of Peace Corps of Nigeria. Despite his dismissal. And undertaking not to impersonate Peace Corps of Nigeria the 2nd claimant impersonated the Deputy Commandant of Peace Corps of Nigeria, Cross River State Command which resulted in charge been filed against the 2nd claimant, and was found guilty, sentenced to two years imprisonment.
COURT’S DECISION:
22. After careful perusal of the processes filed in this suit as well as the evidence led by the parties and the written and oral submissions of counsel for the parties, it is clear to me that the claimants hinged their case on their appointment as Cross River State Commandant and Deputy Commandant of the Peace Corps of Nigeria vide letters dated 28/02/2006 and 01/03/2007, exhibits 7A and 4A, respectively. According to the 1st claimant she has been performing her duties and has also been instructing 2nd Claimant to deputize for her. But, the 1st and 2nd Defendants, who have left the 3rd defendant and joined the Unity Peace Corps surreptiously manipulated their way back to the 3rd defendant and started scheming to edge out the claimants from their posts. This was despite the recognition of the claimants by both the Government of Cross River State and the Cross River State House of Assembly. It is the case of the claimants that the 3rd defendant was aware of the crisis but failed and neglected to intervene.
23. Though the 1st and 2nd defendants did not defend this suit, the 3rd defendant in its defence denied all allegations of facts contained in Claimants’ Statement of Facts. It insisted that the 1st and 2nd claimants are neither members nor State Commandant or Deputy State Commandant of the 3rd defendant either in Cross River State or any state.
24. The 3rd defendant is a non-governmental charitable youth organization registered under Part C of CAMA. The power to appoint redeploy and dismiss resides with the National Commandant of the 3rd defendant. See exhibit 15B. In exercise of this power, the National Commandant of the 3rd Defendant appointed 1st Claimant as Cross River State Commandant, but the 1st claimant left to become the Press Secretary to the Chairman of Etung Local Government Council of Cross River State. While the 2nd claimant was dismissed from 3rd defendant in 2007 for usurping the powers of Cross River State Commandant of Peace Corps of Nigeria. The 2nd claimant after begging for forgiveness was reabsorbed and appointed as Cross River State Programme Officer. But, was subsequently after reabsorption dismissed due to writing letters to Governor without authorization. Despite his dismissal 2nd claimant went on to impersonate deputy commandant, this led to filing of charges on impersonation at the end of trial he was found guilty, convicted and sentenced to 2 years imprisonment without option of fine. See exhibit 16A.
25. In considering the merit of this suit, I shall start with the objection of the 3rd defendant to the claimants suing in representative capacity of an artificial person/legal entity. I quite agree with counsel for the defendants that the claimants do not have the vires to sue on behalf of the 3rd defendant who is a legal entity in representative capacity. Therefore, I treat suing in representative capacity as suing in personal capacity.
26. Considering the pleading before the court and the evidence led by the parties, it is apt at this point to consider if there is valid employment relationship between the parties to confer on this court jurisdiction to hear and entertain this suit. This court can at this stage deal with this issue considering the decision of the Supreme Court in the case of Owners of the MT ‘Marigold V Nigerian National Petroleum Corporation (2022) LPELR-56858(SC), which is to the effect that the requirement of giving parties the opportunity to address a court on an issue raised by the court suo motu is a general rule, which like all other rules has exceptions. For the exceptions, see Effiom V C.R.S.I.E.C. (2010) 14 NWLR (Pt.1213) 106; Tukur V Govt. of Gongola state (1989) 4 NWLR (Pt.117) 517; Bola Omoniyi V Jacob Adegboyega Alabi (2015) 6 NWLR (Pt.1456) 572. In these decisions the Supreme Court held that the principle that whenever court raised issue suo motu parties should be given opportunity to address it applies mainly to issue of facts and that in special circumstances, an issue of law or jurisdiction may be raised suo motu and without hearing the parties and decide the issue so raised. In the circumstances of this case I shall deal with issue of whether the claim of the claimants is an employment issue within the contemplation of the provisions of section 254C of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), to confer jurisdiction on this court to adjudicate on it.
27. The case of the claimants is hinged on their appointment and posting as Commandant and Deputy Commandant of Peace Corps in Cross River State, as per exhibits 7A and 4A. The question to be resolved is whether such appointments amount to employment capable of establishing employer/employee or master/servant relationship to clothe this court with requisite jurisdiction to entertain this suit as it is presently constituted.
28. It is well settled law that a contract of employment can be by oral or in writing or even by conduct of the parties. In any of the situation to constitute a binding contract, there must be an agreement in which the parties are ad idem on essential terms and conditions thereof. The promise of each party must be supported by consideration. In other words, for an enforceable contract of service to materialise between parties, there must co-exist a precise offer, an unqualified acceptance and a legal consideration with the intent to create a legal relationship. The hallmark of a valid contract is consensus ad idem, the meeting of minds by the parties concerned. Where there is no consensus on the existence of the contract of service then there cannot be any enforceable contract.
29. From the view point of the 3rd defendant, the appointment of the claimants was for voluntary service without any financial remuneration and lacking in terms and conditions governing contract of service. The implication of the position of the 3rd defendant is that there is no contract of employment between the claimants and the 3rd defendant, as there is no remuneration payable to the claimants. The absence of employment relationship between the parties if established will definitely rendered this court incompetent to entertain the claimants’ suit as it lacks jurisdiction to entertain it.
30. To be able to see if there is a valid contract of employment between the claimants and the 3rd defendant, the claim and pleadings of the claimants will be the focal point of consideration. As well as the defence since trial has been conducted. The claimants relied on exhibits 7A, 4A to show that they are appointees of the 3rd defendant. They also relied on exhibits 1A, 2A, 3A, 4A, 5A, 6A, 7A, 8A, 9A, 11A, 12A, 13A, 14A and 15, to prove that they are employees of the 3rd defendant and they have been performing their lawful duties. A careful perusal of these exhibits will show that they are either letters of solicitation and appeal or response to such.
31. As pointed out earlier, traditionally in labour, employment and industrial law, employment relationship is expressed in the contract of employment. This contract, sometimes referred to as contract of service, is usually between the employer or master and the employee, worker or servant. The employment relationship is the main vehicle through which workers gain access to the rights and benefits associated with employment in the areas of labour law and social security. It is the key point of reference for determining the nature and extent of employers’ rights and obligations towards their workers.
32. The category to which a particular contract intended to be formed or falls may determine the nature of its formation. Basically no particular form is required as a general rule. In the absence of any statutory prescription, formation of a contract of employment could be formal or informal depending on the choice of parties. In other words, a contract of employment is ordinarily created whenever an employee is taken into employment by agreement of the parties, no special formality is required. The contract could be in writing, or it could be orally made, a combination of written and oral agreement, and may even be inferred or implied from conduct of the parties. To determine whether a contract of employment has been formed, that is, come into existence, it is necessary to establish that there has been a genuine agreement between the parties. This has to be agreement, which the law will appreciate and enforce. In essence, whatever forms the contract takes; it must satisfy all the essential elements of a valid contract as regarding formation.
33. What is clear is that contract of employment is consummated like every other contract, as it is subject to the general rules of contract in the first place. Such contract, however, may be subject to statute, common law or both, that is common law reinforced or supplemented by statute. The precise law to which a contract of employment is subject may determine its formation. Thus, subject to statutory prescription, the parties may now agree to any form of contract of employment containing any terms they desire so long as the agreement does not involve an illegal purpose and not contrary to public policy.
34. The freedom as to formation could be circumscribed and affecting the nature of contract that the parties can negotiate and actually enter into. The negotiation, which must necessarily involve the twin concept of offer and acceptance, must relate to terms that conform to accepted norms and the law as well as fit into recognized categories.
35. The nature of contract of employment as between employer and employee has been known to belong to different categories. There is the office held at pleasure. This has lost meaning in present day Nigeria, particularly since the 1963 Constitution re-enforced by the 1979 Constitution. Office at pleasure is now mainly a feature of servants of the Crown in England. There is another category, which is subject to statutory regulations or conditions. There is a third category where the contract is for a definite period and backed by the constitution. Finally there is the ordinary master and servant relationship. See UNTHMB v Nnoli (1992) 6 NWLR (Part 250)752; Faponle v UITHBN (1991)4 NWLR (Part 183) 43; Board of Management, FMC Makurdi & Anor. V Abakume (2016)10 NWLR (Pt.1521) 563 and Olanrewaju v Afribank (2001) 6 MJSC 68.
36. Applying the above principles of law to the facts of this case and exhibits 7A and 4A, it will be correct to state that the claimants have failed in their duties to prove that they have a valid contract of employment with the 3rd defendant which the court should give effect to.
37. The law is trite in employment relationship letter of employment is the bedrock upon which the relationship between the employer and employee is established as the said letter will state the terms and conditions of the relationship which will be the documents to be considered by the court in determining the right and obligations of the parties.
38. Exhibit 15B which is the constitution of the 3rd defendant, which was tendered in evidence through CW1, clearly revealed that the positions of the claimants were not positions that are based on employment. The appointment of the claimants as Commandant and Deputy Commandant are part of those posts or offices that are not filed by employee of the 3rd defendant. In otherwords the positions or offices of the claimants are not offices to which the appointees are employees of 3rd defendant. These positions are filed by volunteers who do not have employment relationship with the 3rd defendant and they are not being paid or entitled to remuneration. See schedule 1 of exhibit 15B. Furthermore the offices or positions to which the holders are employees of the 3rd defendant are as stated in Article 11 and 12 of exhibit 15B.
39. Furthermore considering the decision of the Supreme Court in the case of Shena Security Company Nigeria Limited V Afropak Nigeria Ltd & Ors. (2008) LPELR-3052(SC), where the apex court provided guide as to ascertainment of existence of contract of service, it will be correct to say that exhibits 7A and 4A are not capable of establishing existence of contract of employment between the claimants and the 3rd defendant.
40. Though, CW1 has stated that he is employee of the 3rddefendant on salary to be, he has not adduced any evidence as to his salary. In fact in his letter of appointment exhibit 4A it was clearly stated that the appointment is in view of commencement of activities of the 3rd defendant in Cross River State and the salary of the 2nd claimant and other conditions of service will be made known to the 2nd claimant as soon as clearance is received from the state government. There is no evidence adduced to show that the clearance of state government has been received, the claimants have been aid salary and there are no conditions of the employment that were said to be made known to the 2nd claimant has been tendered before the court. Therefore, exhibit 4A cannot constitute contract of service without more.
41. Having regard to the provisions of section 254c of the Constitution as amend and the finding that there is no employment relationship between the claimants and the defendant, this court is bereft of requisite jurisdiction to entertain this suit more particularly when there is no trade dispute between the parties before the court. In the circumstance and in the absence of jurisdiction, I have no choice than to strike the suit for lack of jurisdiction. This suit is hereby struck out for lack of jurisdiction.
42. However, since this court is court of first instance I shall proceeds to consider the claim, of the claimants as contained in the originating processes commencing this suit. The question to be answered is whether the claimants have proved entitlement to any of the reliefs being sought.
43. By the decision of the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47, is that “a claim is circumscribed by the reliefs claimed”, and “the duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same”. What then are the reliefs claimed by the claimants? The claimants have a total of 8 reliefs; the first two reliefs are declaratory. They are the main reliefs. While the other remaining six reliefs are ancillary defendant on grant of the two declarations being sought by the claimants.
44. The law is well settled that for declaratory reliefs to succeed the claimant must rely on the strength of his case and not on the weakness of the defence or even admission. The burden of proof on the claimant in establishing declaratory reliefs to the satisfaction of the court is heavy in the sense that such declaratory reliefs are not granted even on admission of the defendant where the claimant fails to establish his entitlement to the declaration by his own evidence. In other words, a declaration of right as sought by the claimant against the defendant cannot be made on admission or in default of pleading by the 1st and 2nd defendants or on the reliance on the non-competency of the 3rd defendant’s witness to give evidence before the court. For whatever it is the claimants have onerous duty of satisfying the court of their entitlement to exercise of discretionary power of the court in their favour through cogent and compelling evidence. See Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt.1119) 361; Bello v. Eweka (1981) 1 SC 101; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Kodilinye v. Odu (1935) 2 WACA 336; Adenle v. Oyegbade (1967) NMLR 136. Where a claimant claiming a declaratory relief cannot satisfy the court on his own evidence of his entitlement to the relief sought, the duty of the court is to dismiss his case and not to give him another opportunity to prove his case in the absence of any grounds for granting him such relief.
45. The claimant in attempt to prove the declarations being sought tendered exhibits 1A – 15, these exhibits are not enough to convince the court of their entitlement to the declarations in that there is evidence to the effect that the 1st claimant abandoned her duty post and absconded from duty. This assertion was supported by the averment in the 3rd defendant’s pleading to the effect that the 1st claimant has taken appointment as press secretary to the chairman of Etung local Government council of Cross River State. The 1st claimant has not denied this assertion by filing reply. This assertion is deemed admitted. Furthermore, the 1st claimant has not testified to disproved that assertion.
46. For the 2nd claimant there is evidence before the court establishing that the 3rd defendant has dispensed with his services. See exhibit DWF. Furthermore exhibits 16A, 16B and 16C, are clear proof that 2nd claimant was charged before the Chief Magistrate Court on charges of impersonation and he was convicted and sentenced to two year of imprisonment though he is now released on bail pending appeal. With the damning evidence the claimants have woefully failed to prove entitlement to declarations being sought and by extension the remaining ancillary reliefs which are defendant on grant of the declarations.
47. Counsel for the claimant has in paragraph 5.1 of the final written address of the claimants called on the court to read exhibits 5, 6, 7 and 12 together in order to elicit the issue of controversy between the parties, as it is possible for a contract to emerge from series of correspondences between the parties, especially exhibits 5 and 6, which point to the fact that Cross River State government have come to an agreement with the claimant.
48. I have had a hard look at exhibits 5A, 6A, 7A and 12A, these exhibits cannot in any way assist the case of the claimants. Firstly, the Cross River State is not a part to this suit. Secondly, the purported appointments subject of this suit were not made by the Cross River State government, the appointment was made by the 3rd defendant who is a legal entity different from Cross River State government. The positions being contested in this action are positions of Commandant and Deputy Commandant and not that of any other officers under the 3rd defendant in Cross River Command. Therefore, if any contract emerged from exhibits 5A and 6A, is not contract between the 3rd defendant and the claimants. It is also to be noted that being a member of 3rd defendant is not the same thing with having a contract of service with the 3rd defendant, as it is not every member of 3rd defendant that is employee of the 3rd defendant. See Article 11 and 12 of exhibit 15B.
49. Contrary to submission of the claimants, the cumulative effect of exhibits 16A, 16B and 16C, is that the 2nd defendant was convicted and sentenced to imprisonment. If he had not been imprisoned he wouldn’t have applied for bail. Since the appeal has not been decided in favour of the 2nd defendant he remains a convict until a time when such conviction is overturned on appeal.
50. On the whole the claimants have failed woefully to prove entitlement to any of the reliefs being sought.
51. Since I have earlier found that this court lacked jurisdiction to entertain this suit, the order striking out this suit stands.
52. I make no order as to cost.
53. Judgment is entered accordingly.
Sanusi Kado,
Judge.
REPRESENTATION:
F, N, Nachamada, Esq; for the 1st and 2nd defendants, appearing with B. B. Williams, Esq; P. C. Enama, Esq; and K. O. Tiku, Esq;