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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CROSS RIVER JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

 

28TH DAY OF APRIL, 2026                                  

SUIT NO. NICN/CAL/56/2024

BETWEEN:

MARIAN E. ODU ESQ.                                                                 CLAIMANT

 

AND

 

1. CROSS RIVER STATE GOVERNMENT

2. ATTORNEY GENERAL AND COMMISSIONER

     FOR JUSTICE CROSS RIVER STATE

3. THE HEAD OF SERVICE CROSS RIVER STATE                       DEFENDANTS

4. CROSS RIVER STATE CIVIL SERVICE COMMISSION

5. THE CHAIRMAN CROSS RIVER STATE

       CIVIL SERVICE COMMISSION

 JUDGMENT.

  1. The case of the Claimant as can be gathered from the general form of complaint and accompanying processes filed at the registry of this court on 19th day of September, 2024, is that she applied for employment into Civil Service of Cross River State Government in year 2022 for the position of State Counsel in the State Ministry of Justice following the advert. The claimant was after interview given offer letter, which the Claimant accepted by going through the process of documentation at the Cross River State Ministry of Establishment and was further given/issued appointment letter which placed the Claimant on grade level 10 step 2 and was asked to come for documentation, which the Claimant complied by taking all the documents required to the Admin and was asked to pay an unreceipted sum of  Four Thousand, Five Hundred Naira only (N4,500). The Claimant stated that during the documentation, Claimant inquired of where and when she was to resume, the Director of Admin informed Claimant that, a message will be sent across for Induction after which, Claimant will be posted. It was not only the Claimant that applied, there were others who also applied and were given appointment letters, who also documented in the Ministry of Justice. 
  2. The Claimant has not received her salary as contained in the appointment letter. The Claimant avers that thirteen persons who were among those interviewed and received appointment letters through the same process with the Claimant are already posted and being paid. 
  3. The Claimant and others who were not posted wrote the 2nd Defendant to ascertain the rationale for the discrimination of the posting, as they were not being posted along with those who were interviewed  and   employed  together  with   them.  
  4. The Claimant employment is running as the same is covered by the Civil Service Rules and the Claimant appointment has not been terminated. The Claimant has been going to the 2nd Defendant’s office and has been rebuffed at each occasion from her home town which is more than fifty kilometers to Calabar at a very exorbitant transport fare.
  5. The 2nd Defendant has refused to address the issues raised by the Claimant since when the letter was served on him. This prompted the Claimant and others to write a letter to the Governor of the 1st Defendant appealing for audience, posting and to pay-rolled. As the 1st Defendant refused to attend to the letter of the Claimant, the Claimant and others did a reminder via courier which was delivered on the same subject of being given audience, posting and to be pay – rolled.
  6. The Claimant cannot practice law as a Barrister and Solicitor called to Nigerian Bar pursuant to the provisions of the Legal Practitioners Act as she is still under the employment of the Defendants as State Counsel. The Claimant has been paying her practicing  fee for the past two (2)years but due to the action of the Defendants, has not been able to apply for Her complementary seal due to the constrain caused by the Defendants and this has greatly inhibited her practice.
  7. Based on the appointment letter of the Claimant issued by the 3rd Defendant, the Claimant was placed on   Grade Level 10 Step II with annual salary of Two Million, Three Hundred and Forty-Three Thousand, Seven Hundred and Eighty-Nine Naira, Ninety-Six Kobo (N2,343,789.96) divide by twelve months One Hundred Ninety Five, Three Hundred and Fifteen Naira  Eighty Three Kobo (N195,315.83) as monthly salary.
  8. Since the year 2022, when the Claimant was offered the appointment in the office of the 2nd Defendant, to this present, the Claimant has not received any pay since her appointment. The Claimant engaged the legal services of Daniel I.G Ahiakwo, Esq; of Ahiakwo & Ahiakwo Goodname Chambers a law firm of Lega/Practitioners, Tax Consultants and Notary Public No: 38 Port Harcourt Int’l Airport Road Omuodukwu Igwuruta Rivers State who charged the sum of Three Million Naira (N3,000,000.00) as the cost of litigation. 
  9. Based on the above stated facts, the claimant vide this suit claims against the Defendants jointly and severally as follows:
  10. A declaration of this Honourabte Court that the Claimant is a staff of Cross River State Government and that her appointment is statutorily provided for.
  11. A declaration of this Honourable Court that the Claimant is entitled to be paid her monthly salary as contained in the appointment letter. 
  12. The sum of Four Million Two Hundred and Ninety-Six Thousand, Nine Hundred and Forty-Eight, Twenty-Six Kobo (N4,96.948.26) being twenty month arrears of salary from the year 2022 – 2024 at annual salary of Two Million, Three Hundred and Forty Three Thousand, Seven Hundred and Eighty Nine Naira, Ninety Six Kobo (N2,33,789.96) as contained in the Letter of appointment.
  13. An order of this Honourabte Court mandating the 1st Defendant to deploy the Claimant to her duty post.
  14. The sum of Twenty Million Naira (N20,000,000.00) Special (cost of litigation) and General Damages for the year the Defendants has made the Claimant redundant.
  15. 21% post judgment interest.
  16. In reaction to the claim of the claimant, the defendants with leave of court filed their statement of defence out of time, wherein they denied the claim of the claimant.
  17. It is the case of the defendants that the 2nd defendant never put up any advertisement or vacancies for State Counsel as it is not the Ministry charged with that responsibility. But admitted that the claimant was issued a letter of offer and a letter of appointment without more. The defendants also admitted that the claimant was not posted. 
  18. In response to paragraphs 11-24 of the statement of facts, and in answer thereto state the following:
  19. The recruitment process conducted by the 3rd and 5th Defendants into the Cross River State Civil Service in the period the claimant was employed was marred with abysmal, egregious and unbelievable irregularities. The said irregularities were so grievous that the employment process could not be followed through even though appointment letters had been issued.
  20. The defendants therefore had to investigate the irregularities. The investigation revealed amongst other things that several persons had been recruited without the prerequisite examination and corresponding interview conducted by the 4th Defendant. In the case of law officers, the examination is usually set and supervised by the management of the Ministry of Justice who also make up the interviewing panel, although said exams and interview is conducted by the 4th Defendant i.e., the Civil Service Commission. The Ministry of Justice did not set or supervise any such examination nor partake in any such interview.
  21. The investigation also revealed that several fake appointment letters were in circulation. A staff of the 4th defendant had been found to be connected to this unbelievable irregularity which she achieved by falsifying the Chairman’s signature and using same to deceive gullible Crossriverians. The 4th defendant therefore circulated a request to retrieve such fake appointment letters. At the time of circulating that letter of retrieval, about 81 fake letters had been issued by the culprit. While the said investigation was ongoing, more appointment letters already issued were found to be fake. The 4th defendant therefore had no choice than to issue a disclaimer and a directive to all Ministries, Departments and Agencies of the 1st defendant to isolate such letters and withdraw them from circulation. 
  22. The interest of the State and to prevent a situation where all kinds of unverified persons were dragged into the Service through that irregular process, the defendants had no choice but to suspend the employment process until every existing civil servant or recruit had been verified. This information was circulated to the public via a Press Release dated June 6, 2023. 
  23. The then Chairman of the 4th Defendant Mr. Uko Inaku; under whose supervision the said irregularities took place, was removed and replaced with the current Chairman. The staff of the 4th defendant who had been found to be connected with the said fake letters of appointment was petitioned to the police and investigated.
  24. Following the conclusion of said investigation by the Police and disciplinary process of the 4th defendant, the appointment of the said staff of the 4th defendant to whom the issuance of said fake letters was connected, was terminated.
  25. The Defendants stated that the Claimant’s appointment was inchoate. Thus, the Claimant was not posted, her services were not engaged for a single day nor did the claimant work for a single day to entitle her to any salaries.
  26. In answer to paragraphs 11, 12 and 13, the defendants state that employment into the state civil service is not complete by the mere issuance of appointment letters without more. There must be employee verification and image capturing, payrolling, induction and posting to a department where the skills of the employee must be put to use before any payment of salaries. Due to the internal investigation and verification of the recruitment process, none of these completion processes took place in the claimant’s case.
  27. Further and specific response to paragraphs 13 and 14, the defendants state that the: claimant is being economical; with the truth. All recruits as State Counsel were invited to the Ministry of Justice for a verification exercise. Because of seriousness of the situation, the warnings by the 4th defendant to all MDA’s about fake appointment letters in circulation, and avoid foul play, the said verification   exercise was personally conducted by the 2nd defendant i.e. the Attorney General and Commissioner for justice on the 11th day of September, 2023. The claimant never presented herself for the said verification  exercise, which information was well circulated and the claimant was aware of it. All recruits who turned up for the verification exercise and whose appointments were verified, were absorbed into the State Civil service and posted. In the case of the Ministry of Justice, 13 recruits referred to in paragraph 13 of the claimant’s claim were verified, posted and are earning their salaries for work done.
  28. It was after the said verification exercise and subsequent posting that the claimant and some persons similar situated wrote to the 2nd defendant further distorting the truth but also stating that because they do not stay in the Calabar metropolis, they asked their colleagues to represent them. 
  29. The Defendants deny paragraphs 12, 15 and 22 of the Claimant’s claims and in answer thereto state that the Claimant is not entitled to payment of any salaries as her employment with the defendant is not running and her inchoate recruitment process was not completed. The Claimant’s failure to participate in the verification exercise resulted in the automatic forfeiture of her appointment.
  30. Paragraphs 16, 17 and 18 are denied; the Defendants have no knowledge of nor received any letters from the claimant after Exhibit C3.
  31. Paragraphs 19 and 20 are denied. The Defendants have in no way prevented or stopped the Claimant who is not their employee, from practicing Law as a Barrister and Solicitor in Nigeria or from applying for her complementary seal.
  32. The Defendants further state that the claimant who didn’t turn up for the verification exercise, resume for a single day or work for a single day is not in the employment of the Defendants and is not entitled to any monthly or other salary nor entitled to any of the reliefs set out in paragraphs 24, i, ii, iii, iv, v, vi of the particulars of Claim.
  33. The Defendants shall urge this court to dismiss the Claimant’s claims with cost as same is gold digging and unmeritorious.
  34. Upon being served with the statement of defence of the defendants, the claimant in reaction filed a reply to the statement of defence wherein the claimant responded to averments of the defendants.
  35. The Claimant insisted that there was advertisement in the official web site of Cross Rivers State and the Chronicle Newspaper. The Claimant restates that she was given appointment letter and was documented by the 4th Defendant. The Claimant specifically pleads estoppel.
  36. The Claimant only admits paragraph 6 of the Statement of Defense only to the extent where the Defendants admitted that the Claimant was employed. The Claimant specifically pleads estoppel. For the rest of the paragraph, the Claimant is not in a position to know what transpired. The Defendants advertised, and the Claimant applied and got the employment.
  37. According to the Claimant, the Defendants, especially the 2nd Defendant he has no role to play in the employment of any civil servant, as it is the 4th Defendant through the 5th Defendant that is constitutionally empowered to recruit civil servant in the State, as in the case the Claimant.
  38. The Claimant state that she did not receive any correspondence that her appointment was fake and the Claimant’s appointment was in line with the Cross River State Civil Service Rules, 2004.
  39. The Claimant is not in a position to know what transpired as she is already a staff of the 1st Defendant as the process of her appointment has already been concluded as admitted by the Defendants that she has already been employed. The letter talks of ongoing process which does not in any way affect the employment of the Claimant.
  40. The Claimant was never invited to be verified. The Defendants are discriminatory in their verification as thirteen persons who were employed with the Claimant are receiving their salary. But the Claimant was shut out.
  41. The Claimant state that only a selected few 13 persons were handpicked by the Defendants and verified and others including the Claimant were sidelined.
  42. The Claimant states that the Defendants are misrepresenting the facts stated in the letter. The claimant only asked for audience with the 2nd Defendant as it concerns their posting and also sent their colleagues who reside within the city in a representative capacity to inquire about their posting and subsequent payment of salaries due to the fact that they had concluded their documentation and other necessary requirement since they were already issued appointment letters.
  43. The Claimant states that she is entitled to salaries as appointment letter was issued to her and other necessary documentation with regards to her employment was concluded except for her posting to the place of primary assignment which is the duty of the defendants and also there is no place in the civil service  rules were inchoate employment is mentioned after appointment letter has been issued.
  44. The Claimant states that the Defendants cannot deny knowledge of the Claimant employment when she was duly issued employment letter. Moreover, it is a known fact that once a person is employed under the civil service as state counsel you cannot practice law as a private legal practitioner.
  45. The Claimant shall urge the court to grant all the reliefs sought by the Claimant.

THE SUBMISSION OF THE DEFENDANTS.

  1. On 19th day of February, 2026, the Learned Attorney General of Cross River State, appearing for the defendants leading Udenyi Omaji, Deputy Director, John Odong, Senior State Counsel 1 and Miracle Abong, State Counsel ii, adopted the final written address of the defendant as his argument. In the final written address, a single issue was submitted for resolution, to wit:

‘Whether the claimant has discharged the evidential burden required to entitled her to the reliefs sought.

  1. In arguing the sole issue, the Learned Attorney General submitted that the law is settled that the burden of proof in civil suits is on the party who asserts. This settled principle of law is as encapsulated in Section 131 of the Evidence Act, 2011. While this burden may shift from side to side as it does in civil cases, it remains principally on the party who would fail if no evidence is led on an issue. Section 133 (1) of the Evidence Act, 2011.
  2. This settled principles of law were reiterated by the supreme court in BENJAMIN NWAKUBA IROAGBARA V. UFOMADU (2009) 11 NWLR (PT. 1153) 587. Where the Supreme Court Per Aderemi JSC. Other cases relied on are SHIDDI V. JIMKUTA (2023) 17 NWLR (PT. 1913) 303, SC.; FOLARIN V. AGUSTO (2023) 11 NWLR (PT. 1896) 559, SC.; NATIONAL BANK OF NIGERIA LTD V. DEBORAH OPEOLA (1994) 1 NWLR (PT. 319) 126 AT P. 139; AKINFOSILE V. AJOSE (1960) SCNLR 447; OKECHUKWU & SONS V. NDAH (1967) NMLR, 368; NSML V. AFOLABI (1978) 2 SC 79; OMISORE V. AREGBESOLA (2015) 15 NWLR (1482) 205, SC and AKINBADE V. BABATUNDE (2018) 7 NWLR (PT. 1618) 366, SC, where the above principles of the law were embraced, stated and restated.
  3. According to the Learned Attorney General, the direct implication of the legal principle stated above is that the burden of proof that the claimant is a Staff of Cross River State Government and entitled to be paid her monthly salary; twenty-five-month arrears of salary from the year 2022-2024, inter alia, is on the claimant. It was submitted that the claimant has failed to discharge the burden of proof required to entitle her to the reliefs claimed and we shall point this out on a relief-by-relief basis. 

A declaration of this Honourable Court that the Claimant is a Staff of Cross River State Government and that her appointment is statutorily provided for.

An order of this honorable court mandating the 1st Defendant to deploy the Claimant to her duty post.

  1. On the claimant’s relief i. and iv., it was submitted that there is a procedure for recruitment of Staff into the Cross River State Civil Service which was not followed in the instant case. Due to these circumstances surrounding the procedure and the issuance of appointment letters, particularly the fake appointment letters in circulation, it was the business of the defendants to verify the letters in circulation, hence the verification exercise which the claimant failed to attend. The purpose of the verification exercise conducted by the defendants, was to authenticate the validity of the letter of appointment paraded by the claimant and to determine the claimant’s competency, amongst other things, as there was nothing in the defendant’s custody that connected the claimant to the letter paraded by her.
  2. The claimant who claimed in paragraphs 9 and 10 of her statement of facts and written statement on oath respectively, that she applied for the job and was interviewed, could not substantiate same during the cross-examination exercise. The Claimant brought nothing before the court or evidence of the letter of application for the job or the list of successful candidates after the interview. When asked where the letter of application was, the claimant said she left it at the 4th defendants office but there was no acknowledgement. It was submitted that it is common knowledge that no staff in any registry in a government office will receive letters without returning a duplicate or acknowledgement copy to the holder. Simply, the claimant did not apply for the job as claimed. 
  3. Interestingly, the defendants did not put up any advertisement for the job as the claimant claims and did not conduct any interviews during the recruitment process yet the claimant lied on oath that she attended a job interview in Ikom but could not specify the specific place in Ikom or the people who conducted the interview. Even the averment in paragraph 14 of the claimant’s claim was also based on a lie. As there is nothing in exhibit D that agrees that it was written to challenge the discrimination in posting as claimed. The unserious attitude, behavior and demeanor of the claimant during the cross-examination exercise spoke volumes and we urge this honourable court to take cognizance of that fact.
  4. Finally, in the defendants attempt to authenticate the claimant’s appointment and verify that the letter paraded by the claimant was not fake, the claimant was invited for a verification exercise but did not show up. But rather wrote exhibit D to state that she did not reside in the Calabar metropolis and asked her colleagues to represent her. 
  5. The reason the questions above were asked was because some of the flaws with the recruitment process that led to the suspension of the entire exercise was that the 4th defendant did not advertise the job, receive any applications or conduct any interviews as is customary and in accordance with international best practices. Building a case on events that did not take place and could not be substantiated and having the temerity to bring same before a court of justice, cast serious shadows on the entire case put forward by the claimant especially the credibility of exhibit C.   the letter of appointment paraded by the claimant, and is probably the reason why the claimant avoided the verification exercise.
  6. According to the Learned attorney General parading an appointment letter like that held by the claimant is not sufficient to establish an employer-employee relationship between the claimant and the defendants in the absence of proof that the letter paraded by the Claimant was not one of the fake appointment letters. As the settled principle of law is that an employer is only bound by the terms of the contract with the employee if it can be shown that the agreement was voluntary and was not obtained by fraud. This position was adopted by the court in SKYE BANK PLC V. ADEDOKUN OLUSEGUN ADEGUN (2024) 15 NWLR (PT.1960) 1 SC AT PP 42-43, PARAS. G-B. The Supreme Court said as follows:

“The terms of an employment relationship are generally contained in the service agreement, letter of employment, employee handbook or any other document that may be introduced from time to time during the subsistence of the employer/employee relationship. Where parties have entered into agreement voluntarily and there is nothing to show that such agreement was obtained by fraud, mistake, deception or misrepresentation, they are bound by the terms of the agreement”. BFI GROUP CORP. V. BPE (2012) 18 NWLR (PT. 1332) 209 referred to].

  1. In the instant case, the verification exercise was targeted at determining that the letter of appointment was not obtained by fraud. The claimant who frustrated the verification of her appointment by failing to turn up for the verification exercise cannot turn around and claim that she is a staff of the Cross River State Government or claim that she was discriminated against, when those who turned up for the exercise and were verified, were absolved, posted and pay-rolled.  The claimant’s exhibit D makes it impossible for the claimant who signed the letter, to deny knowledge of the verification exercise publicized by the defendants exhibit D3. Even though the verification exercise was described by her as a “visit” to the 2nd defendant’s office.
  2. The defendant who took steps to ascertain the validity of the letter of appointment in the claimant’s possession, but was frustrated by the claimant, cannot be held bound by the terms of the letter of appointment. 
  3. The defendants therefore submits that the claimant is not a staff of the Cross River State Government as her recruitment was inchoate. During the cross examination of the defendants’ sole witness, Elder Isang Ofem, the director of administration in the 4th defendant, claimants counsel had asked what the recruitment process was and the witness answered as follows: 

“If the candidate is offered appointment, the candidate goes for verification and obtains a computer number. The candidate must be posted to a ministry or department. Your skills will be put to use. An induction will be organized and eventually, you are added to the payroll for salaries”.

  1. It is thus submitted that by refusing to participate in the verification exercise to be cleared and the recruitment process concluded, the claimant had forfeited the appointment and the appointment letter in her hand had become a worthless piece of paper.
  2. Finally on these set of claims, it is submitted that having failed to establish that the claimant is a staff of the defendants, the claimant’s relief iv cannot stand, the claimant who has built her entire case on lies and half-truths cannot require the court to compel the defendants to deploy her to a duty post that does not exist for her.
  3. A declaration of this Honourable court that the Claimant is entitled to be paid her monthly salary as contained in the appointment letter.
  4. The sum of Four Million, Eight Hundred and Eighty-Two Thousand, Eight Hundred and Ninety-Five Naira, Seventy-Five Kobo (N4,882.895.75) being twenty-five-month arrears of salary from the year 2022-2024 at annual salary of Two Million, Three Hundred and Forty-Three Thousand, Seven hundred and Eighty-Nine Naira, Ninety-Six Kobo.
  5. It was submitted that to address the claimant’s entitlement to reliefs ii and iii, the following question begs for answer and is answered in the negative. Is the claimant who was not posted, services not engaged even once and who did not work for a single day entitled to be paid monthly salary or arrears of salary?
  6. Counsel drew the attention of the court to the main defence in the instant case which is that the claimant’s recruitment with the defendants was inchoate, so the claimant is not an employee of the defendants. As a result of the above, the claimant was not posted, her services were not engaged even once and the claimant did not work for a single day. That stated, it is submitted that a claim for salary or arrears of salary presupposes entitlement to such salary, that is, that the salary was previously earned. The claimant who has not earned any salary is therefore not entitled to be paid monthly salary, arrears of salary or any other benefit at all. The law is that payment of salary is not a matter of course but for work done. The 1st defendant pays salaries only to its employees who have earned their salaries by working for it. In LAGOS STATE UNIVERSITY TEACHING HOSPITAL & MANAGEMENT BOARD V. PRINCE M.B. ADEWOLE (1998) 5 NWLR (PT.550) 406 the court clarified that:

“When a claim is for salary arrears, such claim pre-supposes entitlement to such salary and a denial of payment when and as it fell due [e.g.], where the claim is for wrongful dismissal”.

  1. According to Learned Attorney General, in the instant case, there is no employer/employee relationship whatsoever that can warrant the claim for salary or arrears of salary or that can entitle the claimant to be paid salaries. Even where there was no dispute as to the employee status of the claimant, the law still requires that salary can only be claimed when it is earned.
  2. In the SKYE BANK PLC V. ADEDOKUN OLUSEGUN ADEGUN (2024) case above at PP 48-47 PA-RAS H-A, the Supreme Court held that an employee cannot claim salary not earned. The court specifically said:

“An employee would only be paid for the period he served his employer. Hence, an employee cannot claim for salaries not earned” C.C.B (Nig). Ltd v. NWANKWO (1993) 4 NWLR (PT. 286) 159; BALOGUN v. UNION BANK (2016) LPELR – 41442; OLATUNBOSUN V. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25, referred to].

  1. It is the submission of Learned Attorney General that no staff of any organization can be entitled to the payment of salaries etc., if he stays at home and refuses to go to work and perform his duties. It is the resumption of duty that is conditional, it is what will entitle them to financial benefits and promotions. See FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ORS V. DR. CHARLES NZELU & ANOR (2014) 5 NWLR (PT. 1401) P. 565 AT 586, PARA A-C.
  2. It was also submitted that in any case, the court has held that in a claim for arrears of salary, there is a presupposition that the salary was previously earned and a claim for previously earned salary is in the realm of special damages which must be pleaded and proven strictly. See CHARLES UDEGBUNAM V. FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ORS (1996) 5 NWLR (PT. 449) 474 AT P.485, PARA F; A-G OYO STATE V. FAIRLAKES HOTELS LTD (NO.2) (19890 5 NWLR (PT.121) 255.
  3. While the authorities cited above were decided with reference to employees, the principle enunciated and replicated in them to the effect that payment of salary is for work done, is apt in the instant case. It is contended that the claimant did not earn any salary, it is the duty of the claimant to establish that she worked for the period of twenty months on a month-by-month basis. The claimant who has failed to do this is therefore not entitled to monthly salary or arrears of salary. Counsel urged the court to find and hold that like the rest of the claimant’s reliefs; the claimant has not established entitlement to these reliefs.

The sum of Twenty Million (N20,000,000.00) special (cost of litigation) and General Damages for the year the defendants has made the claimant redundant.

21% post judgement interest. 

  1. On the claimant’s reliefs v. and vi., it was pointed out that there is no issue of redundancy in the instant case. Redundancy refers to an involuntary and permanent loss of employment caused by excess man power or the fact that the position occupied by the employee is no longer necessary or useless to the employer. See OVIVIE V. DELTA STEEL CO. LTD (2023) 14 NWLR (PT.1904) 203. SC; I NIGERIAN SOCIETY OF ENGINEERS V. OZAH (2025) 6 NWLR (PT.1454) 76. It is not in issue in this case and so it does not arise at all. 
  2. In any case, the law is that there must be proof of damages and costs claimed by a party to warrant any award of such. See GUINESS NIG PLC V. EMMANUEL NWOKE (2000) 15 NWLR (PT.689) P.135. The claimants claim for damages is probably predicated on the claimant’s claim that she has been paying her practicing fees but has been unable to practice law since the claimant’s exhibit C and also payment of solicitor’s fees as borne out by exhibit F, Photocopy of solicitor’s receipt, but how did the claimant prove this? 
  3. At the hearing, the claimant was asked if the receipts/evidence of payment of practicing fees are before the court, but she said, the receipts were on her phone and didn’t produce them, thereby failing to adduce evidence that she had been paying her practicing fees. 
  4. Secondly the evidence in exhibit D7, the claimant’s professional profile on the LinkedIn App, is that, the claimant is a “Legal Practitioner/property consultant with Nicholas & Maxwell, in Rivers State, since 2021 till present. According to the Learned attorney general, this points to the fact that the claimant is a practicing lawyer in Rivers State. Also, the claimant who claims that she resides in Katchaun-Irruan, a remote village in Boki Local Government Area of Cross River State, yet left all the lawyers and law firms in Cross River State to engage the services of and is represented by a law firm in Rivers State namely: AHIAKWO & AHIAKWO (GOOD NAME CHAMBERS) at 38 AIRPORT ROAD OMUODUKWIGWURUTU, RIVERS STATE, makes it easy to conclude that the information on exhibit D7, is accurate. The attention of the court was also drawn to the fact that the claimant stated during Cross Examination that LinkedIn is a professional platform and it is vehemently contended that such a platform would not be carrying false information. Counsel submitted that the claimant has failed to convince the court that she has not been practicing law. Whatever is the case, it is the defendant’s contention that the claimants practice of law or failure to practice law is absolutely her decision and has nothing to do with the defendants who are not her employers. 
  5. On the Claimant’s exhibit F, Photocopy of solicitor’s receipt, the recent and prevailing position of the law as reiterated in GUINESS NIG PLC V. EMMANUEL NWOKE (2000) 15 NWLR (PT.689) P.135, is that it is unethical and an affront to public policy for a litigant to pass on the burden of his solicitor’s fees to his opponent in a suit. This position is a significant departure from earlier decisions where the court was inclined to agree with a claim for cost of litigation, but in those instances, it was not sufficient to tender a receipt like exhibit F, the law required strict pleading and proof as special damages and not lumping the claim into general damages like in the instant case. The exact amount and nature of services must be specifically pleaded and proven which are absent in the instant case. The law was that a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendants access to the facts which make such calculation possible. To support this contention reference was made to the case of UNION BANK NIG. PLC V. MR. N.M. OKPARA CHIMAEZE (2014) 9 NWLR (PT.1411) 166.
  6. It was further argued that in the GUINESS NIG PLC V. EMMANUEL NWOKE (2000) case above, the court per IBIYEYE J.C.A reiterated the current position of law on the head of claim for solicitor’s fees or cost of litigation and said at page 150 paras A-E:

“The crucial question is; did this head of claim arise as a result of damage suffered by the cross-appellant in the course of any transaction between him and the cross appellant? This is the question that ought to pre-occupy the mind of any reasonable tribunal dealing with the circumstances of the instant head of claim. A reasonable tribunal, such as this court, will definitely opine that the quality of evidence adduced by the cross appellant on this score fell below the standard of acceptability because the circumstances making up the so called “special damages” occurred after the cause of action in this case had arisen. The seemingly financial inconvenience of the solicitor’s fees of staggering N500,000.00 to the cross appellant did not form part of the basis of the tort of detinue on which the cross appellant pivoted his cause of action. In addition, the character of the act forming the said solicitor’s fees of N500,000.00 made as a head of claim is obviously not cumulative to the tort of detinue committed by the cross respondent. It is outside it. I am of the strong view that this type of claim is outlandish to the operation of the principle of special damages and it should not be allowed. It is absolutely improper to allow the cross appellant to pass his financial responsibility couched as “special damages to the cross-respondent” [Underlined for emphasis]. 

  1. According to counsel the supreme court has made it clear that solicitors fees cannot be recovered whether as general or other damages against a defendant. In CHRISTOPHER NWANJI V. COASTAL SERVICS (NIG.) LTD (2004) LPELR -2106 (SC), in holding that the grant of the claim for solicitor’s fees by the lower court was untenable, the court in refusing same asked at page 14:

“…How can the appellant be made liable for the fees paid by the respondent to defend it? Secondly, it is an unusual claim and difficult to accept in this country as things stand today because as said by UWAIFO JCA in IHEKWOABA V. ACB (1998) 10 NWLR (PT. 571) 590 AT 610-611 “the issue of damages as an aspect of solicitor’s fees is not one that lends itself to support in this country. There is no system of costs taxation to get a realistic figure. Costs are awarded arbitrarily and certainly minimally. I do not therefore see why the appellants will be entitled to general or any damages against the auctioneer or against the mortgagee who engaged him in the present case on the ground of solicitor’s cost paid by them”… I am quite satisfied that the claim for the fees paid by the respondent is unreasonable and the amount cannot be recovered from the appellant. 

  1. It is submission of counsel that the claimant has failed to establish her claim to special (cost of litigation) and general damages as the claim is both outlandish, against public policy and improper. Consequently, this honourable court is urged to refuse this head of claim.
  2. Having failed to establish entitlement to relief v. above, it is submitted that relief vi, the claim for 21% post judgement interest cannot stand and this honourable court is urged to refuse same as well.
  3. It is finally submitted that the law remains that a relief claimed must be proven before the court can grant it, no matter how strongly the court is persuaded to do so. See ODINKEMERE V. IMPRESIT BAKALORI (NIG) LTD. (1995) 8 NWLR (PT.411) 52. The claimant has failed to establish entitlement to any of the reliefs sought, by credible evidence, this honourable court is therefore urged to dismiss the claimant’s suit with cost in favour of the defendants as same is gold digging and unmeritorious.
  4. In concluding his submission, it was argued that reliefs claimed must be proven before the court can grant them, no matter how strongly the court is persuaded to do so. The claimant has failed to establish entitlement to any of the reliefs sought, by credible evidence, this honourable court is urged to dismiss the claimant’s suit with cost, in favour of the defendants as same is gold digging and unmeritorious.

THE SUBMISSION OF THE CLAIMANT

  1. The claimant’s final written address was adopted by Tade Aslu, Esq; counsel for the claimant as his argument in this matter. In the final written address twin issues were formulated for resolution by the court. They are:-
  2. whether the Claimant is entitled to the reliefs sought based on pleadings and evidence adduced in the course of trial. 
  3. Whether the Defendants are not estopped from denying the Claimant her reliefs sought.

ARGUMENT:

  1. Issue 1: Whether the Claimant is entitled to the reliefs sought based on pleadings and evidence adduced in the course of trial.
  2. In arguing issue 1, counsel submitted that the claimant has made out a case to sustain the reliefs sought against the Defendants in this case. Counsel contended that, as it is the norm of the Defendants as contained in the Civil Service Rules of Cross Rivers State: Claimant applied pursuance to advertorial as stated in her deposition. She was interviewed in line with the provisions of the Civil Service Rules. It was upon her success in the interview that she was issued with an appointment letter. Counsel refers to section 1(02101), Chapter 1of the Cross Rivers State Civil Service Rules 2014, which provides thus:

‘’Appointment to the post graded on Grade 07 – Grade Level 14 shall be made by the Commission. Such appointment shall be made into available vacancies after due advertisement as the need arises.

  1. Counsel submitted that the constitution squarely vest the recruitment process in line with the CFRN 1999 (as amended) in the hands of the 4th Defendant. it is the contention of counsel that the Defendants were the ones, especially the 3rd Defendant who is Constitutionally saddled, with the responsibility of recruiting workers in the Civil Service of Cross River State. With particular reference to Section 202 and 204 of the CFRN 1999, it is not the 2nd Defendant that is responsible for the employment and discipline of any worker in Nigeria as stated in paragraph 6 of the Statement of Defence. But it is that of the 3rd Defendant. to support his contention counsel refers to the case of OKOMU OIL PALM CO LTD VS. ISERHIENRHIEN (2001) LPELR -2471(SC), where the apex court stated that it is the Federal Civil Service Commission under Section 145(1) of the 1979 Constitution and Rule 02101 of the Civil Service Rules which may appoint a civil/public servant. Similarly, under the said provisions. It is the Commission which may discipline or remove such servant, unless the power to appoint or remove/discipline is appropriately delegated under Section 156 of the 1979 Constitution and Rule 04102 of the Civil Service Rule. This is in accord with the general principle that the power to appoint implies the power to remove, so that even where the power to appoint is silent as to the power to remove, this will be implied. Section 11(1) (b) of the Interpretation Act, confirms this position, when it states that where an enactment confers a power to appoint a person either to an office or to exercise any function, whether for a specified period or not, the power includes (b) power to remove or suspend….per Samson Uwaifo JSC.
  2. According to counsel as it is, the Claimant remains a staff or put it the other way, the Claimant is a public/civil servant having been issued the appointment letter. The point has to reiterate that, the appointment letter issued by the 4th Defendant was never retracted, as no letter was ever written to the Claimant retracting it. The Defendants has even accepted that the appointment letter was not retrieved. The only issue that they have was that the Claimant refused to come for verification. Assuming without conceding that the Claimant did not go for verification, is that the reason to forfeit an employment with statutory flavor? The law does not say so. The Claimant, had averred that there were others whom were employed with her that have been pay-rolled by the Defendants. This fact was never controverted. The law is trite on this position, that uncontroverted evidence is admitted. This was held in BLUE – CHIP ACQUISITION & INVESTMENT CO. LTD VS. ZENITH BANK PLC & ORS (2008) LPELR 8529(CA).” paragraphs’ 5 – 10 of the Applicants affidavit remains undeniably uncontroverted. Their content must be deemed to be true and it is my legally burden duty to act upon them. The fact that the defendants were discriminatory is not in dispute, as the fact was not disputed.
  3. Counsel submitted that the submission of the Defendant in their Statement of Defence that the employment of the Claimant is inchoate is really inconceivable and unknown to the Civil Service Rules, which when asked under cross – examination admitted that there is nothing like inchoate employment. The attempt to categories the appointment of the Claimant as being inchoate, is tantamount to reading into the Civil Service Rules what is not there. In, ARIBISILA VS. AMCON (NO. 1) (2025) 8 NWLR PART 1991 per Jauro JSC held that “the incontestable position of the law is that neither counsel nor court is permitted to read or import into the provision of a law or enactment what it does not contain, in order to suit his own desires.
  4. According to counsel there is nothing that should prevent the Claimant from been paid her wages as a worker. As there is no denying the facts as the same was never denied that the Claimant is a civil servant. By the fact that the Claimant is a civil servant bars her from practicing as a lawyer called to bar only except to work for the Defendants. By the provisions of section 2 of the Legal Practitioners Act, it forbids a worker in any Civil Service from engaging in private practice.
  5. The hardship that the Claimant is exposed to, is really unbearable, willing to work, but, unable to work. The Claimant has been stationed at a place, not of her making, but, of the deliberate and discriminatory policies of the Defendants.
  6. The Claimant salary was as fixed in the appointment that was given to her upon her success on the interview. The appointment was not generated by the Claimant. It was served on her. The claim for payment of the salary is her right. It is a term in the contract of employment. The Claimant has also accepted the employment; thus, it is binding on the parties. Counsel further argued that there is nothing to show that the Claimant appointment letter was withdrawn or even amongst the ones allegedly withdrawn. It is important to restate that the Civil Services Rules guides the mode of entry into the service. The Defendants did not put to the open what sections of the Rules that was contravened in the employment, if at all the Claimant appointment falls within the category.\
  7. Counsel also argued that the employment of the Claimant into the workforce of the Defendants, is one with statutory flavor. This means that the Claimant cannot be sacked, except as outlined in the Rules. In D.G N.I.A Vs. DAUDA (2024) 7 NWLR part 1936 at page 66, where the Court of appeal held as follows: where an employee’s service is protected by statute and his employment is wrongfully terminated, he would be entitled to reinstatement in his office and in addition, damages representing his salaries during the period of his purported dismissal.
  8. Counsel insisted that it has been established positively that the Claimant is an employee of the Defendants as was even reaffirmed in the course of the trial. Counsel urged the court to resolve this issue in favour of the Claimant.
  9. Issue 2: Whether the Defendants are not estopped from denying the Claimant her reliefs sought.
  10. In arguing issue 2, counsel submitted that the Defendants are caught within the doctrine of estoppel and should not be heard denying the appointment of the Claimant into the Civil Service of Cross River State. It is now apposite to bring to the fore the foundation upon which the doctrine of estoppel is built. Section 169 of the Evidence Act provides thus: When one person has either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he or his representatives in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.
  11. Counsel submitted that  the appointment letter of the Claimant was issued by the 4th Defendant and the Defendant at this point cannot at the point deny the existence and authenticity of such appointment letter which the Claimant has been made to believe the existence of the employment a contained in the letter.
  12. It is submission of counsel that in AMAECHI V INEC (2008) the Supreme Court held that estoppel applies when a party’s words or conduct induces another party to act in a particular way. Also, in OSHODI V EYIFUNMI (2000) The Court of Appeal applied the doctrine of estoppel to prevent a party from resiling from previous agreement to which in the instant case it is akin to the appointment that was issued to the claimant in this suit. Also, in the case of ATTORNEY GENERAL OF RIVERS STATE V ATTORNEY GENERAL OF AKWA IBOM STATE (2011) LCN/3823(SC). The Supreme held that the doctrine of estoppel by conduct, though a common law principle has been enacted into our body of laws as Section 151 of the Evidence Act. It is in these terms: “When one person has, by his declaration, Act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person’s representative in interest to deny the truth of that thing”. Also called stopped in pais, this common law principle, which as shown above has gained statutory acceptance in Nigeria, forbids a person from leading his opponent from believing in and acting upon a state of affairs, only for the former to turn around and disclaim his act and omission. The principle was equally explained better in the case of UDE V OSUJI (1998) 10 SCNJ 75 @ 22, BUHARI V INEC (2009) ALL FWLR (pt. 459) 419 at 517 per KATSINA-ALU C.J.N.
  13. Counsel submitted that the Defendants in this case particularly the 2nd Defendant has consistently stated and heavily rely on the claim that the Claimant refused to appear for further documentation and other employment procedure, to which the Claimant has giving several explanations of the reasons for not appearing and even took steps to write to the Defendants for audience and why she should be giving full rights to her employment as stated in the employment letter. Assuming but not conceding that the Claimant refused to honour the invitation to adhere to some other employment procedure why then did the claimant further took steps to rectify her employment with the 4th Defendant after she was left out of the 13 others that were pay rolled. Which employees in their right senses who refuse an invitation from an employer to complete an employment procedure as claimed by the Defendants in the case? counsel submitted that the Defendants deliberately refuse to grant the claimant her full rights in line with her appointment letter as a selected few were considered. This is a clear discrimination against the Claimant by the defendants as oppose to the right to freedom from discrimination as enshrined in the constitution of the Federal Republic of Nigeria (as amended). In an attempt to discredit the appointment letter of the Claimant, the Defendants came up with an investigation activity positing that the Claimant’s appointment was fraudulent to which no one was ever prosecuted. It was further alleged that the said state was disciplined and sacked and was never brought to court to testify to the effect that the appointment letter that was issued was forged.
  14. It is submission of counsel that the defendants went as far as bringing extraneous matters like the linkdin page of the Claimant which she has not visited since 2021 when it was last updated during cross examination which didn’t form part of the pleadings of the Defendants so as to give the Claimant the opportunity to put up a proper defense in a bid to contradict her place of residence. It is trite law and a rule of practice and pleadings that a party should not spring up surprises. In the case of OKAFOR V ATTORNEY GENERAL OF ANAMBRA STATE (1991) 7 NWLR (pt. 206) 619, the court held that a party cannot raise a new issue without amending their pleadings. Also, in ADEWUNMI V OSIBANJO (2018) 14 NWLR (Pt. 1638) 419 the Supreme Court emphasized the importance of pleadings and the need for parties to front-load their evidence. With respect Milord this is also tantamount to breaching the provisions of fair hearing as enshrined in the Nigerian Constitution.
  15. Counsel submitted that once there is an appointment letter is issued a contractual relationship is established and the obligation thereto must be adhered to. This position is affirmed in the case of OLANIYAN V UNIVERSTY OF LAGOS (1985) 2 NWLR (pt. 9) 599, IWUAGWU V CHIEF OF AIR STAFF (2010) 11 NWLR (pt. 1206) 367. These cases demonstrate the importance of carefully drafting and reviewing employment contracts and appointment letters to ensure compliance with Nigerian labour laws. Counsel urged the court to resolve this issue in favour of the Claimant.
  16. In concluding his submission counsel on the whole urged the court to grant the reliefs sought by the Claimant as the Claimant has successfully discharged the burden placed on her in law to establish her case.

COURT’S DECISION:

  1. I have considered the processes filed by the parties in this case the evidence adduced in proof of the respective positions of the parties, as well as the written and oral submissions of counsel for the parties.
  2. From the facts as disclosed by the pleadings and evidence before the court, the grouse of the claimant is that in year 2022, the Cross River State Government published vacancies in various Ministries in the state requesting individual interested to apply. Consequently, claimant applied and was issued with offer of appointment exhibit A by the 4th defendant. the claimant accepted the offer and did documentation at the Ministry of Establishment and appointment letters were issued to the claimant. See exhibits B and C, respectively. In May 2023, at the Ministry of Justice the claimant did documentation by submitting her documents at the registry of the Ministry of Justice and upon enquiry of the next step, the claim was told that they will get in touch with her for pay roll, induction and posting.
  3. In September, 2023 representative of the newly recruited staff of the Ministry of Justice visited the Attorney General but the topic of their employment was swept under the carpet. Thereafter, the claimant and others who were not in attendance at the visit tried severally visit the Attorney General but all attempts proved abortive.  They also wrote to the Governor but no response.
  4. The defendants on their parts while placing reliance on exhibits D1 – DD6, stated that the appointment of the claimant was marred by irregularities as 81 letters of appointment were forged and issued without consent or authority of the 4th defendants. As a  result of the discovery of  irregularities in the process of recruitment by the 4th defendant, in an effort to rectify the lapses with a view to having employees with genuine letters into the service, the process was suspended and candidates were directed to attend verification exercise at the 2nd defendant’s office but the claimant failed and refused to attend the verification exercise thus why she was not verified and was not amongst the 13 employees verified, pay-rolled and posted and are now enjoying their salaries.
  5. What emerges from the facts of this case are that a recruitment exercise was conducted by the 4th defendant which resulted in issuance of appointment letters to several individuals, some of whom have been successfully pay-rolled. 
  6. The claimant was one of the candidates issued with letter of appointment into the civil service by the 4th defendant. however, she is yet to be pay rolled and yet to be paid any salary by the defendants from 2022 when she was recruited till 2024, when this suit was instituted. She has not received any pay since her employment.
  7. The claimant instituted this action to seek for declaration she is a staff of Cross River State government and that appointment is statutorily provided. She is also seeking for declaration that she is entitled to be paid her monthly salary as contained in the appointment letter in the sum of N4,296,948.26 being arrears of salary from year 2022b – 2024. She also seeking an order mandating the 1st defendant to deploy the claimant to her duty post. N20,000,000.00   cost of litigation and general damages. And 22% post judgment interest.
  8. The defendants on their part are of the view that the claimant has failed to discharge the evidential burden of proof required to entitle her to the reliefs sought. They also asserted that the procedure for recruitment of staff into the Cross River State civil service was not followed. Due to fundamental improprieties surrounding the procedure and the issuance of appointment letters, particularly the fake appointment letters in circulation, it was the business of the defendants to verify the letters in circulation, hence  the verification exercise which the claimant deliberately failed to attend. As the claimant built her case on lies that the job was advertised; that she applied for the job and was interviewed; that she wrote exhibit D to the defendants to challenge the discrimination in employing her colleagues whereas there is nothing in exhibit D to that effect. That she has been unable to practice law, whereas her professional details on exhibit D7 says different. The claimant who has not earned  salary is not entitled to be paid monthly salary, arrears of salary or any other benefit at all. The claimant cannot claim or recover solicitors fees as general damages.
  9. It is trite that in civil matter like the one hand the duty of court is to determine cases based on the facts established at the trial. As such facts constitute the fountain head of law and decisions or determination of cases are related to the facts and each case is considered in its factual milieu. The facts cannot be supplanted by legal arguments, no matter how brilliant. Thus, the courts have stated over and over that address of counsel cannot be substituted for pleadings and/or evidence. Therefore, for the claimant to succeed must supply sufficient credible evidence in proof his case. see Asuerinme v. I.N.E.C. (2025) 17 NWLR (Pt. 2015) 433.
  10. By sections 131-132 of the Evidence Act, 2011 (as amended in 2023), whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Similarly, in civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side. It is this requirement of the law that is termed legal burden. In this case, the claimant who want this court to dispense justice in her favour is the one that has the burden of proving her assertions based on which she want the court to render favourable judgment in her favour. See  Okoro v. Udeh (2026) 1 NWLR (Pt. 2024) 163
  11. In civil suits, cases are won upon a preponderance of evidence. Therefore, a claimant in such a case has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand. A case is decided on the totality of evidence adduced. Therefore, if on any given issue, the evidence of the claimant be as good as that of the defendant so that there is an equilibrium, it is the party on whom rests the burden of proof that fails. This is because the evidence does not preponderate in such party’s favour. See Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182, Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101, Jiaza v. Bamgbose (1999) 7 NWLR (Pt. 610) 182, Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400, Egwa v. Egwa (2007) 1 NWLR (Pt. 1014) 71, Igwe v. Alozieuwa (1990) 3 NWLR (Pt. 141) 735, Asuerinme v. I.N.E.C. (2025) 17 NWLR (Pt. 2015) 433.
  12. From the provisions of sections 131, 132 and 133 of the Evidence Act, 2011 (as amended), the party that has the primary legal burden to prove the existence or non-existence of any fact is the one who desires a court to give judgment as to any legal right or liability dependent on the existence or non-existence of facts which he asserts and is the party to fail if no evidence is led on either side. So, by the provisions, particularly section 133(1) of the Act, the factor that determines who has the initial burden of proof is not whether the allegation is affirmative or negative. An allegation is affirmative when it asserts the existence of facts. It is negative when it asserts the non-existence of facts. See Orianzi v. A.-G., River State (2017) 6 NWLR (Pt.1561) 224; Oboh v. Obaika (2024) 2 NWLR (Pt. 1922) 421. Proof is a process by which the existence of facts is established to the satisfaction of the court. See Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt.952) 416; A.P.C. v. Karfi(2018) 6 NWLR (Pt.1616) 479; Ojobo v. Moro (2019) 17 NWLR (Pt. 1700) 166; Asuerinme v. I.N.E.C. (2025) 17 NWLR (Pt. 2015) 433.
  13. Now, from the facts and evidence before the court, has the claimant been able to discharge the burden of proof imposed on her by the law to entitle her to grant of any of the reliefs sought.
  14. The claimant relied heavily on exhibits A, B and C, in proof of her assertion that she has an employment having statutory flavour and therefore entitled to be paid salary from 2022 to 2024, when she instituted this suit. However, the defendants contended that the recruitment exercise was marred with irregularities ranging from absence of advertisement, no examination and interviews conducted. Above all there was issuance of fake letters by one of the members of staff of the 4th defendant which resulted in her dismissal from service as per exhibit D5. There is also the claim that the entire case of the claimant was built on lies.
  15. There is no disputing the facts that the issuance of letter of appointment by the 4th defendant to claimant acceptance of the said letter amount to establishment of contractual relationship. This will also presuppose that there is a valid contract of service. However, this presumption of regularity is rebuttable. 
  16. With the defendants’ insistence that the employment of claimant as per exhibits A, B and C, is fraught with irregularities, the defendants have the burden of proving that the irregularities are capable of affecting the validity of the appointment to render it invalid. And disentitled the claimant to make any claim based on the said employment bedeviled with pre-employment irregularities.
  17. By the Cross River State public service rules, 2004, specifically rules 02102 and 02207, vacancies to be filed by the 4th defendant are to be advertised to give chance to interested candidates wishing to bye for those positions or posts to apply for consideration. The rules also stated mode of application by filing form for scrutiny to verify claim made therein and interview. The rules also provide for conduct of interview of interview. The claimant has in her statement of facts and reply to statement of facts insisted that there was advertisement and it was based on the advertisement she applied she was interviewed and exhibits A, B and C, were issued to her. The law is well settled that where parties have joined issues. The claimant must prove the assertion on which issues were joined.
  18. Apart from ipse dexit, the claimant has not adduced any evidence to support her claim that advertisement was made for vacancies to be filed. She has also not adduced any evidence to support her claim that she was interviewed, as there was no notice of invitation to attend the purported interview. On advertisement, if it is true there was, why has the claimant not tendered the advert she said was placed on web site and in the newspaper. In the absence of proof of advertisement and conduct of interview I reject the assertion of the claimant that there was advertisement and interviews for the recruitment exercise as per exhibits A, B and C.
  19. The public service rules, 2004, forbade appointment without advert and interview; that the contract was tainted with misrepresentation when the claimant pleaded that she complied with all conditions precedent to be employed, which the Court found to be false; and that the contract was vitiated by deceit. Accordingly, the claimant’s appointment is illegal and unenforceable.
  20. However, let me quickly states that advertisement and interviews or exam are pre-employment irregularities, which if there is evidence of non-involvement of the claimant may not have any negative impact on the recruitment exercise. But in the case at hand the finding was that no such advertisement or interview took place. This means the defendants have succeeded in proving that the claimant lied regarding the claim she is putting before the court, therefore, the claimant, should not be allowed to benefit from her own wrong doing.
  21. One other disturbing aspect of exhibits A, b and c, is that the offer of appointment was said to had been made on 4th November, 2022. While the offer of appointment to pensionable establishment containing terms and conditions of appointment was issued on 20th December, 2022 and the main letter of appointment was also issued on 20th December 2022 and in it, it was stated that the appointment was with effect from  1st July, 2022, that is before the offer of appointment was issued.  Can this be true appointment to take effect before resumption of duty, this also goes to corroborate the stand of the defendants that the recruitment was bedeviled with irregularities, may be thus why the claimant avoided or neglected to state date of her application and date of interview.
  22. The foregoing, analysis has cast doubt on the legality of claimant’s appointment.
  23. The claimant would have been vindicated on her claim  that she underwent formal interviews, by relying on the "indoor management rule." This means you are not expected to know about internal administrative lapses of the Commission, but no such interview took place. This goes to show that the claimant has knowledge of the pre-employment irregularities regarding lack of advertisement and interview. Though, failure to adhere to the employment procedures or guidelines, is the defendants doing and not the claimant, the claimant cannot be absolved from blame, since she falsely stated there was advertisement and interview which this court found not to be true. 
  24. Courts have held that if an irregularity was the fault of the government’s own staff (like the Chairman or other officials), the innocent candidate should not be punished for those internal failures. 
  25. Another issue regarding the validity of claimant’s employment borders on the verification conducted by the Attorney General which the claimant’s failed to attend. The question that needs answer is can the refusal to attend vitiate or impact negatively on the employment of the claimant.  The claimant insisted she was never notified of the alleged verification exercise. On the face of denial of being notified or invited to attend the onus shift to the defendants to prove that the claimant was indeed notified of the verification exercise but failed and neglected to attend. The defendants instead of bringing evidence of invitation extended to the claimant to attend the verification exercise, placed reliance on exhibit D, as evidence of claimant’s knowledge of the exercise. I have scrutinized exhibit D, there is nothing in it to indicate claimant’s awareness or knowledge of verification exercise conducted by the 2nd defendant to ascertain genuiness of employment of new employees recruited by the 4th defendant in disregard of extant rules and regulation and racketeering, scam shown in the employment process. See exhibits D1, D2, D3 and D4.
  26. In view of lack of proof of claimant’s invitation, the failure to attend does not attract any negative consequences. Furthermore, the Attorney General (AG) does not typically have direct statutory power for involvement in matters of employment handled by the 4th defendant. however, his role in a "verification exercise" is often administrative or investigative. This is because the Attorney General is the Chief Law Officer of the state and can be directed by the State Governor to lead a committee or panel to investigate administrative "irregularities". While the Civil Service Commission (CSC) has the exclusive constitutional power to appoint and discipline, the executive arm (via the AG) can audit processes to identify fraud or "ghost workers". 
  27. What is clear is that the attorney general cannot unilaterally discipline a civil servant; he can only recommend actions to the Civil Service Commission or the Governor based on his  findings. Therefore, failure of the claimant to attend verification may raise presumption that the appointment is "Fake" or that the officer is "deliberately staying away to avoid detection".  
  28. The failure to attend verification may also render the employee liable to be removed from office. 
  29. The claimant has also raised issue of discrimination; since others have been pay-rolled, lack of evidence of invitation to claimant to attend verification has heightened the suspicion of discrimination, but since it was found out that claimant’s employment ab initio did not follow due process, issue of discrimination even if proved may not be of any assistant to the case of the claimant.
  30. I now, turn to claim for arrears of salary and entitlement to be paid salary as and when due. It is only upon the existence of a valid contract of employment that an employee or employer can rely on the terms and conditions of that contract of employment as binding on parties. In this instant case, the court found that there is no binding enforceable contract of service between the claimant and defendants due the infraction of the laid down rules on employment on advertisement and interview. This means no claim can be entertain on salary due to absence of valid employment.
  31. Another clog to the claim of salary was the fact that the claimant’s appointment even if valid which is disputed it cannot ground claim of salary as by the admission of the claimant in his statement of facts he is yet to resume duty. The claimant has also not served the defendants for one day. In Honica Sawmill (Nig) Ltd v. Holf (1992) 4 NWLR (Pt. 238) 673 CA, it was held that as between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period; and it is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid the employee was. In the instant case, the claimant did not prove to this Court that she worked for the employer during the relevant period of claim as she is yet to assume duty. The claimant is accordingly not entitled to the salary she claimed. I so find and hold.
  32. The assertion of the claimant that since her employment in 2022 she has not been paid salary, has no basis because the claimant is yet to complete her employment processes as she has not  assumed, in public service date of resumption of duty is the date when salary will start to accrue for an employee, in the case at hand claimant has not assumed duty and has not worked for even one day, therefore she cannot claim any salary without evidence she has assumed duty and worked to earn salary. 
  33. It is only upon the existence of a valid contract of employment that an employee or employer can rely on the terms and conditions of that contract of employment as binding on parties. In this instant case where there is no valid, binding and enforceable contract of employment, the claimant has no locus to claim arrears of salary not earned as she has not worked for the defendants to be entitled to salary.
  34. From all I have been saying above the claimant has not proved entitlement to declarations sought which are the main reliefs and the failure of the declarations means failure of the ancillary or incidental reliefs sought.
  35. All in all the case of the claimant woefully failed same is hereby dismissed.
  36. I make no order as to cost. Parties to bear their respective costs.
  37. Judgment is hereby entered accordingly.

 

 

 

Sanusi Kado, 

     Judge.

REPRESENTATION:

Daniel I. G. Ahiakwo, Esq; for the claimant

Ededem C. Ani, Esq; Attorney General Cross River State for the defendants appearing with, Udenyi Omaji, Deputy director, John Odong, Esq; Senior State Counsel 1 and Miracle Abong, Esq; State Counsel ii, Ministry of Justice, Calabar.