IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA.
DATE: THURSDAY 2ND NOVEMBER 2023 SUIT NO: NICN/OW/18/2015
AND
SUIT NO. NICN/OW/48/2015
IN THE CONSOLIDATED SUITS:
BETWEEN:
MRS. A.C. CHUKWUNYERE.
MRS. SYBIL ONWUDIEGWU. CLAIMANTS
AND
PRINCESS C. DIMGBA. CLAIMANT
AND
FEDERAL MEDICAL CENTRE, UMUAHIA.
DR. WAKIL CHIBOK. DEFENDANTS
DR. ABALI CHUKU.
REPRESENTATION:
· Chief G.I Chionye; A.J Jonah; E.A. Amadi for the claimants.
· Grant Osu; Chidinma Ibe.
JUDGMENT:
1. These are consolidated suits the summaries of which are that the claimants were employed at various times as student nurses by the Government of Imo State through its Public Service Commission, Owerri in 1979. They were respectively issued with instruments of employment to that effect and posted to the Nursing School at Ramat Specialist Hospital, Umuahia (now in Abia State). Subsequently, the claimants acquired their requisite qualifications as registered nurses between 1982 and 1983. Upon gaining these qualifications, they were then employed as staff nurses and were each issued with letters of temporary appointment in that regard. The 1st and 3rd claimants were eventually posted to work in the General Hospital in Uzuakoli while the 2nd claimant was posted to the Queen Elizabeth Specialist Hospital, Umuahia. They all got their letters of confirmation of their respective appointments. Hitherto, the hospitals where the claimants were posted to, were all under the control and management of the Health Management Board of Imo State prior to their take over by the Federal Government of Nigeria. In 2013, the claimants were accordingly directed vide separate letters dated 3/5/2013 by the management of the 1st defendant, to report at the National Pension Commission’s office for the purpose of completing their compulsory retirement forms and to update their records. In 2015 however, they were accordingly stopped or prevented from performing their duties as nurses on the basis that they had served the government for 35 years and so became due for compulsory retirement from service since they were initially appointed as student nurses in 1979. Upon failing to successfully appeal against what they believe are undue and untimely retirements, the claimants approached this court for redress of this action which were purportedly orchestrated by the defendants. The defendants of course deny all these claims as bogus.
CLAIMANTS’ RELIEFS AGAINST THE DEFENDANTS:
2. The 1st & 2nd claimants filed a joint complaint with other accompanying processes on 3/3/2015, while the 3rd claimant subsequently filed a separate writ of complaint along with other accompanying processes on 25/6/2015. The parties opted to have their suits consolidated into one being that they contain similar facts and reliefs against the same parties. The 3 claimants thus amended their respective statements of facts via applications dated 13/10/2015 and filed on 14/10/2015. In the 1st and 2nd claimants’ amended statement of facts, they seek the following reliefs:
i. A declaration that the defendants have no power to terminate the appointment or stop the 1st claimant MRS. A.C CHUKWUNYERE, from performing her duties as a staff of the Federal Medical Centre Umuahia based on the letter of appointment dated 23/3/79 issued to her as a student nurse instead of the letter of appointment dated 4/8/82 issued to her as a staff nurse.
ii. A declaration that the appointment of the 1st claimant MRS. A.C CHUKWUNYERE as a staff nurse on 4/8/82 and her subsequent confirmation on 7/11/85 and promotion up to the post of deputy director of Nursing Service with the 1st defendant, is still subsisting.
iii. A declaration that the defendants have no power to terminate the appointment or stop the 2nd claimant MRS. SYBIL ONWUDIEGWU, from performing her duties as a staff of the Federal Medical Centre Umuahia based on the letter of appointment dated 24/10/79 issued to her as a student nurse instead of the letter of appointment dated 30/9/83 issued to her as a staff nurse.
iv. A declaration that the appointment of the 2nd claimant, MRS. SYBIL ONWUDIEGWU as a staff nurse on 30/9/83 and her subsequent confirmation on 2/6/86 and promotion up to the post of deputy director of Nursing Service with the 1st defendant, is still subsisting.
v. AN ORDER setting aside any purported termination of the appointments of the claimants [i.e., 1st & 2nd claimants], by the defendants which is based on the letters of appointment issued to them as student nurses.
vi. An order directing the defendants to pay the 1st claimant her full salary for the month of March 2014 and other subsequent months until her appointment is properly terminated.
vii. An order directing the defendants to pay the 2nd claimant her full salary for the month of October 2014 and other subsequent months until her appointment is properly terminated.
viii. An order directing the defendants to recall the claimants to their duty post respectively as deputy Directors of Nursing Services at Federal Medical Centre, Umuahia.
ix. The sum of N10,000,000.00 (Ten Million Naira) as general damages against the defendants for the unlawful interference with the 1st claimant’s right to perform her duties as a Director of Nursing Service of the Federal Medical Centre, Umuahia.
x. The sum of N10,000,000.00 (Ten Million Naira) as general damages against the defendants for the unlawful interference with the 2nd claimant’s right to perform her duties as a Director of Nursing Service of the Federal Medical Centre, Umuahia.
xi. An order of injunction restraining the defendants, their agents and servants from further interfering with the appointments of the claimants as staff of the Federal Medical Centre, Umuahia based on their respective letters of appointments issued to them as student nurses.
3. From the 3rd claimant’s amended statement of facts, she seeks the following reliefs:
i. A declaration that the termination of the appointment of the claimant [i.e. 3rd claimant] by the defendants on 15/6/2015 based on the letter of appointment issued to the claimant as a student nurse dated 24/10/79 instead of the letter of appointment issued to the claimant as a staff nurse dated 30/6/83, is unlawful, null, and void and of no effect whatsoever.
ii. A declaration that the appointment of the [3rd] claimant as a staff nurse on 30/6/83 and her subsequent confirmation on 6/8/85 and promotion to the post of deputy director of Nursing Services by the 1st defendant, is still subsisting.
iii. AN ORDER setting aside the purported termination of the appointment of the [3rd] claimant by the defendants which was based on the letter of appointment issued to her as a student nurse.
iv. An order directing the defendants to pay the [3rd] claimant her full salary for the month of October 2014 and other subsequent months until her appointment is properly terminated.
v. An order directing the defendants to pay the [3rd] claimant all her promotions/ salary arrears from the 1st of January 2014 to the date of the judgment in this suit.
vi. An order directing the defendants to recall the [3rd] claimant to their [her] duty post respectively as deputy Director of Nursing Service at Federal Medical Centre, Umuahia.
vii. The sum of N10,000,000.00 (Ten Million Naira) as general damages against the defendants for the unlawful termination of the appointment of the claimant from the services of the Federal Medical Centre, Umuahia.
viii. An order of injunction restraining the defendants, their agents and servants from further interfering with the appointment of the claimant as a staff of the Federal Medical Centre, Umuahia based on her letter of appointment issued to her as a student nurse.
4. The 1st and 2nd claimants’ suit is number NICN/OW/18/2015 whereas the 3rd claimant’s is suit number NICN/OW/48/2015. Their amended claims were filed with the leave of this court which was granted on 6/3/2018 and so their suits were consolidated by this court with the agreement of the parties’ counsel.
5. The 3 claimants opened their now joined case on 13/3/2019. They relied on their respective testimonies as witnesses (C.W.1, CW2, and CW3 – being the 2nd, 1st and 3rd claimants respectively). They tendered a total of 18 documents in all (exhibits C1 - C18). They eventually closed their case on 12/11/2020.
6. Meanwhile, the defendants filed their joint statements of defence and accompanying processes against the case of the 1st and 2nd claimants and also to that of the 3rd claimant. Each of the joint statements of defence and accompanying processes is dated 12/7/2016 but filed on 18/7/2016. The processes were filed out of time but were duly regularized via the defendants’ applications for extension of time dated 12/7/2016 but filed on 18/7/2016.
7. Upon receipt of the defendants’ statement of defence, the 1st and 2nd claimants filed their Joint Reply dated 3/3/2017 but filed on 6/3/2017; the 3rd claimant also filed a Reply dated 19/6/2017 but filed on 20/6/2017. The claimants’ replies were filed out of time but were also duly regularized vide various motions for extension of time filed on 6/3/2017 for the 1st and 2nd claimants, and on 20/6/2017 by the 3rd claimant.
8. These defendants opened and closed their defence on 25/3/2022, calling and relying on the testimony of one witness (DW1 – Ekpemu Roland) who tendered 20 documents (Exhibits D1 – D20) accordingly.
9. At the conclusion of trial, the defendants’ counsel filed his final written address on 19/1/2023. The claimants’ counsel filed his final written arguments and submissions on 31/5/2023. Upon receipt of the claimants’ counsel’s submissions, the defendants’ counsel filed a reply on 22/6/2023. Although filed out of time, the said reply was regularized via an application dated 21/6/2023 and filed on 22/6/2023.
10. On 2/11/2023, the parties’ counsel adopted their respective arguments and submissions virtually whereupon this court immediately delivered this judgment.
1ST AND 2ND CLAIMANTS’ FACTS:
11. As contained in the 1st and 2nd claimants’ amended statement of facts, they aver that they were both staff of 1st defendant establishment which was previously known as “Queen Elizabeth Specialist Hospital, Umuahia” but later changed to “Ramat Specialist Hospital, Umuahia”, Abia State and finally as the Federal Medical Centre, Umuahia. That the 2nd and 3rd defendants were the chairman of the board in charge of the administration of the 1st defendant hospital and the director in charge of the implementation of the decisions of the 1st and 2nd defendants respectively.
12. They aver further that they were initially employed as staff nurses in the 1st defendant hospital and eventually promoted to the positions of Deputy Directors of Nursing Services after years of dedicative service. Accordingly, Queen Elizabeth Specialist Hospital, Umuahia was under the control and management of the Health Management Board Imo State prior to its take over by the Federal Government of Nigeria.
13. The 1st claimant claims that at the point of her initial appointment, she was known as Adamma Uwaeme, while the 2nd claimant was known as Sybil Orji. They were both appointed as student nurses in the Ramat Specialist Hospital, Umuahia by the Public Service Commission, Owerri, Imo State vide separate letters dated 23/3/1979 and 24/10/1979. Accordingly, their appointments were never confirmed before they were again appointed as staff nurses by the Health Management Board, Imo State vide letters dated 4/8/1982 and 30/9/1983 respectively, which appointments were eventually confirmed vide letters dated 7/11/1985 and 2/6/1986 respectively.
14. Therefore, in virtue of the Federal Government Public Service rules regulating the appointments of the claimants, their appointments were meant to run for a duration of 35 years, from when they were first appointed as staff nurses or upon the attainment of the age of 60 years, whichever comes first.
15. They remained in dedicative service in the 1st defendant hospital until when, to their utmost astonishment, they were enlisted along with some other staff, for compulsory retirements. The 1st claimant was directed by a letter dated 3/5/2013 from the management of the 1st defendant hospital, to complete some retirement forms at the National Pension Commission. She was subsequently directed to apply for her pre-retirement leave which was supposedly calculated from the date of her 1st appointment as a student nurse.
16. The 1st and 2nd claimants were soon after, prevented from performing their duties on 23/2/2015, without serving on them any letters of termination and without paying their full salaries from March 2014 to February 2015 for the 1st claimant, and from the month of October 2014 to February 2015 for the 2nd claimant.
17. Before they were prevented from coming to work and sequel to the unfortunate news of their retirements, the claimants along with other affected staff of the hospital, protested to the 1st defendant hospital management board vide a letter titled, “Re: Retirement at 32 years of Service” dated 5/5/2014. A response was made by one Chief (Barr.) Emeka Okeke (KSJ) (Chairman of the Committee on the Establishment and Promotion of the 1st defendant hospital) on behalf of the defendants, on 21/7/2014 in a letter titled, “Re: Your Letter of Protest Over Premature Retirement”. Within, the claimants were accordingly informed that the board of the 1st defendant hospital had adopted and approved that their dates of compulsory retirements, shall be computed from the time of their second appointments as “Staff Nurses or Midwives”. However, this was never communicated to the claimants before 23/2/2015 when they were physically prevented from performing their duties.
18. The 1st and 2nd claimants engaged a solicitor, Chief G.I Chionye, who wrote letters to the 1st defendant hospital on 5/11/2014 and 7/11/2014, demanding the recall of the claimants and the payment of their full salaries for March 2014 and other subsequent months (for the 1st claimant) and from October 2014 to February 2015 (for the 2nd claimant) respectively. Their solicitor’s letters were ignored by the defendants.
19. The claimants further aver that the refusal to calculate their dates of retirement from the date of their appointments as staff nurses, has caused them untold damages and so they seek for justice from this court.
3RD CLAIMANT’S FACTS:
20. Gleaned from the 3rd claimant’s amended statement of facts filed on 14/10/2015, she (formally known as Bethel C. Onwukwe), avers that she was a staff of the 1st defendant, formally known as “Queen Elizabeth Specialist Hospital, Umuahia”. She was, by a letter dated 24/10/1979, initially employed as a ‘student nurse’ in the Ramat Specialist Hospital, Umuahia by the Public Service Commission, Owerri, Imo State.
21. She further avers that upon resumption of duty, at the said Ramat Specialist Hospital (now the 1st defendant hospital), she was referred to the administrative division of the Ministry of Health, Owerri. There, she was issued a letter dated 5/11/1979 with reference number MHB/7017/10 titled, “Notification of Appointment” wherein her appointment date was stated to be with effect from 29/10/1979. This appointment was, however, not confirmed by the defendants before she was again appointed as a staff nurse by the Health Management Board, Imo State vide a letter dated 30/6/1983, which appointment was later confirmed vide letter dated 6/8/1985.
22. The 3rd claimant further avers that in virtue of the Federal Government Public Service Rules that regulate her appointment, the duration of her appointment is to be for 35 years commencing from 30/6/1983 (and not from 29/10/1979) when she was subsequently appointed as a staff nurse, or upon the attainment of 60 years, whichever came first.
23. According to her, she discharged her duties diligently and consequently earned various promotions up to the post of a Deputy Director of Nursing Services, which promotion was published on 31/1/2015 but released on 17/2/2015. Accordingly, her retirement date should have been on 30/6/2018 or whenever she attained the age of 60 years. The 1st defendant illegally or wrongfully published her name along with other persons’, as those to proceed on compulsory retirement even before her due retirement date.
24. That she, along with other aggrieved staff, challenged their premature retirement to the 1st defendant vide a letter titled “Re: Retirement at 32 years of Service” dated 5/5/2014. A response by one Chief (Barr.) Emeka Okeke (KSJ) (chairman of the committee on the Establishment and Promotion of the 1st defendant hospital), was written on behalf of the defendants on 21/7/2014 in a letter titled, “Re: Your Letter of Protest Over Premature Retirement”. Within, the protesters were accordingly informed that the board of the 1st defendant hospital had adopted and approved that the claimant’s retirement date shall be computed from when she was appointed as a “Staff Nurse or Midwife”.
25. The 3rd claimant engaged Chief G.I Chionye as her solicitor and he wrote the 1st defendant a letter dated 5/11/2014, demanding her recall to work and for the payment of her full salaries from October 2014 to February 2015, but to no avail.
26. This claimant further avers that she was working in the 1st defendant hospital on 15/6/20015 when she was orally directed by the 3rd defendant to stop work thereby denying her right to work for the full statutory term in office. Accordingly, her forceful premature retirement was done in denial of her right to fair hearing which has therefore caused her untold damages.
27. Before closing their case however, these 3 claimants tendered a total of 20 documents in evidence in this suit as follows:
i. 2nd claimant’s letter of appointment as staff nurse dated 30/9/1983 (Exhibit C1).
ii. 2nd claimant’s letter of confirmation of appointment dated 2/6/1986 (Exhibit C2).
iii. 2nd claimant’s offer of appointment as a student nurse dated 24/10/1979 (Exhibit C3).
iv. Letter of protest dated 21/7/2014 (Exhibit C4).
v. 2nd claimant’s solicitor’s letter dated 5/11/2014 (Exhibit C5).
vi. Letter dated 1/8/2014 (Exhibit C6).
vii. 1st claimant’s offer of appointment letter as a student nurse dated 23/3/1979; Offer of temporary appointment dated 4/8/1982; and Confirmation of appointment letter dated 7/11/1985 (Exhibits C7 (a), C7 (b) and C7 (c) respectively).
viii. Document titled “Retirement After 30 years of Service” (Exhibit C8).
ix. Reply from Committee of the Board dated 21/7/2014 (Exhibit C9).
x. 3rd claimant’s solicitor’s letter dated 7/11/2014 (Exhibit C10).
xi. Annual Performance Evaluation Report Form for 2011 (Exhibit C11).
xii. Annual Performance Evaluation Report Form for 2013 (Exhibit C12).
xiii. 3rd claimant’s appointment letter as student nurse dated 27/10/1979 (Exhibit C13).
xiv. Offer of Appointment as student nurse dated 5/11/1979 (Exhibit C14).
xv. Offer of Temporary Appointment as staff nurse dated 30/6/1983 (Exhibit C15).
xvi. Confirmation letter dated 6/8/1985 (Exhibit C16).
xvii. Promotion letter dated 31/1/2015 (Exhibit C17).
xviii. Letter of the 3rd claimant’s solicitor dated 5/11/2014 (Exhibit C18).
DEFENDANTS’ FACTS:
28. From the defendants’ joint statement of defence against the 1st and 2nd claimants’ and that of the 3rd claimant which were separately filed on 18/7/2018, they denied that the claimants were initially employed as staff nurses. Rather, that they were employed as student nurses on 27/3/1979, 29/10/1979, and 29/10/1979 respectively.
29. The defendants aver that the 1st defendant is an administrative creation of the Federal Ministry of Health, Abuja, and not a creation of the law of the Federal Republic of Nigeria.
30. The defendants further state that the 1st and 3rd claimants were employed by the Ministry of Health when they were still spinsters and with their maiden names, which are Adamma Uwaeme and Bethel C. Onwukwe respectively, and so they were posted to the 1st defendant hospital as student nurses. They rely on the 1st claimant’s letter of notification of appointment dated 30/3/1979, as well as the 3rd claimant’s letter of appointment dated 24/10/1979.
31. Furthermore and again respecting the 1st and 3rd claimants, the defendants aver that these claimants were employed as holders of WAEC Certificates. They were employed and posted to the School of Nursing, Ramat Specialist Hospital, Umuahia (now the 1st defendant hospital) to undergo training. That in 1982 and 1983 respectively, the 1st and 3rd claimants qualified as staff nurses upon successful completion of their training.
32. Respecting the 1st claimant particularly, the defendants aver that her appointment in 1979 was pensionable and she was given a pensionable letter of employment on salary scale grade level 04 at an entry point of N1,200.00 per annum. It is further averred that by the terms and conditions of the 1st claimant’s employment, she was entitled to salary increase every 1st day of April, starting from April 1980, which she enjoyed until 1982 on grade level 04 while she was still a student nurse.
33. The defendants further state that the 1st claimant earned her RN (Registered Nurse) certification in 1982 upon successfully completing her training, which advanced her to a better status in her nursing profession. This resulted to her advancement from grade 04 to grade level 07 step 1 on an annual salary of N2,832.00. She was accordingly posted to the General Hospital, Uzoakoli as a staff nurse. They rely on her letter of promotion dated 4/8/1982.
34. The defendants describe the letter dated 4/8/1982 and titled, “Offer of Temporary Appointment” as the 1st claimant’s letter of accelerated promotion from salary scale grade level 04 to grade level 07 which equally serves as her letter of accelerated promotion in status from a student nurse to staff nurse. The defendants further state that the 1st claimant enrolled in a 1 year further training in the School of Midwifery, Ramat Specialist Hospital Umuahia (now School of Midwifery Federal Medical Center, Umuahia). When she completed the training, she became qualified as a Registered Midwife (RM) in 1984.
35. Respecting the 1st claimant’s training in the School of Midwifery, Ramat Specialist Hospital Umuahia, the defendants state that the 1st claimant never had any break in her employment with the 1st defendant hospital. They emphasize that the 1st claimant never had any reduction in here salary during the period of her service and she had and enjoyed her salary increments between 1979 to 1982 (on grade level 04) and between 1982 to 1984 (on grade level 07).
36. The defendants further aver that the 1st claimant completed a form – staff nominal roll form (dated 21/10/1985), wherein she filled her first employment date to be 27/3/1979. And through a letter dated 7/11/1985, the 1st claimant’s appointment with the 1st defendant was confirmed and backdated to 7/7/1984. The defendants went on to state that the 1st claimant’s subsequent promotion and posting to General Hospital Uzuakoli in 1982 and her confirmation of appointment and posting to Akahaba General Hospital, Abiriba in 1985 all related to her employment as a student nurse in 1979. According to the defendants, all forms filled by the claimant during her employment establish her date of first employment as 27/3/1979 and confirmation date as 7/7/1984. The defendants rely of the 1st claimant’s Annual Performance Evaluation Report Forms for the years 1990, 1991, 2011, and 2013.
37. The defendants believe that the 1st claimant already served for a period of 35 years from 27/3/1979 when she was employed as a student nurse at grade level 04 to March 2014 when she was compulsorily retired.
38. The defendants state further that the 1st claimant was among the affected staff who underwent the National Pension Commission (PENCOM) Verification and Enrolment Establishments process in 2013 because they were all due for retirement in 2014. They also state that the 1st claimant should not pretend to be surprised that her name was shortlisted along with others, for compulsory retirement in 2013, since she had personally and in preparation to her retirement, completed her form and served same on the 1st defendant and on PENCOM.
39. The defendants also deny stopping all the claimants from working on the fateful day of 23/2/2015 contrary to their claims that they were physically stopped from performing their duties prematurely. That specifically, the 1st claimant, voluntarily stopped working by herself in March 2014 upon her attainment of 35 years in service.
40. They however admit that the claimants along with others, protested against their retirement to the 1st defendant’s management board. Accordingly, in the management board’s 45th and 46th general meeting, they considered the protest letter by the claimants and referred same to the Establishment and Promotion Committee. The defendants also state that the said committee at its 46th general meeting held on 9th and 10th of April 2014, indeed considered the petitions by the claimants and adopted the decision already taken by the board, which is in line with the Public Service Rules and Regulations.
41. The defendants also aver that at the 47th general meeting of the management board of the 1st defendant hospital held between 17th and 18th of July 2014 (erroneously stated to have been on 16th and 17th of July 2014 by the claimants), the chairman (2nd defendant), sought for further clarification on the issue of the retirement of the claimants from the Head of Service of the Federation. Accordingly, at the 48th general meeting of the board held on 24th and 25th September 2014, the chairman of the board was informed by its secretary, Mr. Ekpemu Rowland, that a letter was written to the Head of Service of the Federation in respect of the claimants’ petition.
42. The defendants also state that in the 49th meeting of the 1st defendant’s board held on 25/11/ 2014, the board concluded on the issue of the claimants’ retirement on the basis of the response letter from the Head of Service of the Federation dated 6/10/2014 and maintained that the claimants’ retirement dates should be determined from the date of their employment as student nurses and midwives and not from when they became staff nurses.
43. The defendants denied the legitimacy of the letter purported to have been written by Chief (Barr.) Okeke describing it as a forgery. This is because he accordingly participated and made decisions in the meetings of the board of the 1st defendant hospital except for the one held on 25/11/2014.
44. Respecting the 2nd claimant’s claims, the defendants aver that upon receipt of her letter of notification of retirement (dated 10/2/2015) by the administrative department of the 1st defendant, the 2nd claimant was sent a letter which congratulated and directed her on how to proceed to apply for her retirement benefits.
45. The defendants further aver that the 2nd claimant’s terms and conditions of employment are similar in all material form as that of the 1st claimant produced above (with the exception of their names, dates of employments, dates of increment of salaries, dates of qualification as Registered Nurses and midwives, entry points, salaries, and places of postings).
46. According to them, the 2nd claimant was not stopped from performing her duties prematurely, but that after receiving her salaries for the months of November 2014, December 2014 and January 2015, she wrote the 1st defendant on 10/2/2015 to inform the 1st defendant that she had retired as far back as October, 2014.
47. With respect to the 3rd claimant’s claims, the defendants aver that her appointment in 1979 was pensionable and she was issued with a letter of pensionable employment on salary scale grade level 04 at an entry point of N1,320.00 per annum. It is further averred by the defendants that in accordance with the terms and conditions of the 3rd claimant’s employment, she was entitled to a salary increase every 1st day of November, starting from November 1980, which she enjoyed until 1983 on grade level 04 while she was still a student nurse.
48. The defendants further state that the 3rd claimant earned her RN (Registered Nurse) certification in 1983 upon successfully completing her training, which enhanced her status in the nursing profession. This resulted in her career advancement from GL 04 to GL 07 on an initial annual salary of N3,174.00. She was posted to the General Hospital, Uzoakoli as a staff nurse. They relied on her letter of promotion and positing dated 30/6/1983.
49. The defendants described the letter dated 30/6/1983 and titled, “Offer of Temporary Appointment” as the 3rd claimant’s letter of accelerated promotion from salary grade level 04 to grade level 07 which also serves as her letter of accelerated promotion in status from a student nurse to a staff nurse.
50. The defendants further state that the 3rd claimant enrolled into a 1 year further training in the School of Midwifery, Ramat Specialist Hospital Umuahia (now School of Midwifery Federal Medical Center, Umuahia). When she completed the training, she became qualified as a Registered Midwife (RM) in 1985.
51. Respecting the 3rd claimant’s training at the School of Midwifery, Ramat Specialist Hospital Umuahia, the defendants state that the 3rd claimant never had a break in her employment career with the 1st defendant hospital. They emphasize that the 3rd claimant’s salary had never been reduced in her entire career and that she enjoyed her salary increments from 1979 to 1983 (on grade level 04) and between 1984 to 1985 (on grade level 07).
52. The defendants aver that the 3rd claimant completed by filling and filing a staff nominal roll form (dated 17/8/1988) in October 1988, wherein she wrote the date of her first employment as October, 1979. By a letter dated 6/8/1985, the 3rd claimant’s appointment with the 1st defendant hospital was confirmed and backdated to 25/4/1985. They rely on the 3rd claimant’s Annual Performance Evaluation Report Forms for 1990, 1991, 2001, and 2013 to rebut her claims.
53. The defendants also aver that the 3rd claimant’s service years ended after 35 years calculating from 29/10/1979 when she was first employed as a student nurse on grade level 04, to March 2014 when she was duly compulsorily retired.
54. The defendants state also that the 3rd claimant was among the staff who underwent National Pension Commission (PENCOM) Verification and Enrolment Establishments process in 2013 because she was also due for compulsory retirement in 2014. The defendants also believe that the 3rd claimant was not surprised that she was shortlisted for retirement in 2013 because she personally and in preparation to her retirement, filled and served on the 1st defendant and on PENCOM, all her retirement documents.
55. Accordingly also, the 3rd claimant served on the defendants, a letter of notification of retirement (dated 15/5/2015) through the administrative department of the 1st defendant hospital which caused the board of the 1st defendant to write and congratulate the 3rd claimant and also directed her on how to apply for her retirement benefits.
56. The defendants further averred that the 3rd claimant falsified her retirement date in her letter of 15/5/2015. They therefore urge this court to dismiss this suit for being frivolous and unmeritorious.
57. In all, the defendants tendered 20 documents in evidence in this suit as follows:
i. Letters of Appointment of the 1st and 2nd claimants dated 27/3/1979 and 29/10/1979 (Exhibit D1 (a) and D1 (b) respectively).
ii. 1st claimant’s letter of notification of appointment dated 30//3/1979 (Exhibit D2).
iii. 1st claimant’s letter of promotion dated 4/8/1982 (Exhibit D3).
iv. Staff Nominal Roll dated 21/10/1985 (Exhibit D4).
v. 1st claimant’s confirmation of appointment dated 7/11/1985 (Exhibit D5).
vi. 1st claimant’s APER Forms for the years 1990 and 1991 (Exhibit D6).
vii. Letter from PENCOM dated 24/10/2013 (Exhibit D7).
viii. 1st defendant’s response to PENCOM dated 30/12/2013 (Exhibit D8).
ix. Minutes of 45th general meeting of the 1st defendant’s board held on 25th and 26th February 2016 (Exhibit D9).
x. Minutes of general meeting of the 1st defendant’s board held on 9th and 10th April 2014 (Exhibit D10).
xi. Minutes of general meeting of the 1st defendant’s board held on 16th and 17th July 2014 (Exhibit D11).
xii. Minutes of general meeting of the 1st defendant’s board held on 24th and 25th September 2014 (Exhibit D12).
xiii. Minutes of general meeting of the 1st defendant’s board held on 25th November 2014 (Exhibit D13).
xiv. Letter from the office of the H.O.S of the Federation dated 6/10/2014 (Exhibit D14).
xv. 1st claimant’s letter of notification of retirement dated 10/2/2015 and the defendants’ reply of 20/3/2015 (Exhibits D15 (a) and D15 (b) respectively).
xvi. APER Forms of the 2nd claimant for years 1990, 2000, and 2013 (Exhibit D16).
xvii. 3rd claimant’s Nominal Roll Form dated 17/8/1988 (Exhibit D17).
xviii. 3rd claimant’s APER Forms for 1990, 1991, 2001, and 2018 (Exhibits D18 (a), (b), (c), and (d) respectively).
xix. 3rd claimant’s letter of notice of retirement and the defendants’ reply dated 15/5/2015 and 8/6/2015 respectively (Exhibits D19), and
xx. Copy of letter to Federal Mortgage Bank dated 20/5/2013 (Exhibit D20).
CLAIMANTS’ REPLY:
58. The claimants in their replies, state that they were not employed as WAEC certificates holders. They further restate that they were employed as student nurses and their employments were not pensionable and that they were not initially entitled to promotions or increments until they were subsequently employed as staff nurses.
59. They also state that they neither received any salary increment between 1979 to 1983 nor did they receive any leave allowances or any other allowances as student nurses. According to them, it was after obtaining their RN certifications that they went for fresh interviews before they were employed in 1982 whereupon their old salaries were discontinued. They also state that they did not enjoy any increments or promotions from grade level 04 to 07, but that it was their new employment grade levels that were given to them which had nothing to do with their previous employments as student nurses.
60. According to the claimants, there was a break in their service due to their studies, whereupon their salaries were discontinued until they went for fresh employment interviews as staff nurses.
61. Respecting their Staff Nominal Roll Forms which they signed including the other forms tendered by the defendants, the claimants stated that they were compelled to fill in 1979 as their year of first employments inside those forms.
62. The claimants also stated that they reluctantly and grudgingly attended the PENCOM invitation after the 1st defendant sent their names as staff due for retirement. And that the letter of the defendants to the H.O.S of the federation did not disclose the claimants’ staff nurse appointment letters.
63. The 2nd and 3rd claimants specifically denied ever stealing money belonging to the 1st defendant at any time as alleged in the defendants’ statement of defence.
DEFENDANTS’ COUNSEL’S FINAL SUBMISSIONS AND ARGUMENTS:
64. At the close of trial, the parties’ counsel were ordered to file their respective final addresses and submissions whereupon counsel for the defendants filed his written submissions dated 15/6/2022, on 9/1/2023. Within, he crafted 2 issues for determination by this court, as follows:
i. Whether from the pleadings and evidence adduced on both sides, the claimants can be said to have proved their case to be entitled to the reliefs sought in this case.
ii. Whether the claimants’ case is supported by the Public Service Rules of the Federation to entitle them to the reliefs sought in this suit
65. Learned defendants’ counsel jointly canvassed his arguments and submissions on the 2 issues raised. He began by emphasizing on the relevance of the claimants’ letters of appointments to this suit citing the case of MOROHUNFOLA V. KWARA STATE COLLEGE OF TECHNOLOGY (1990) LPELR- 1912 (SC) for inspiration. He submitted that the defendants tendered in evidence these claimants’ employment letters as student nurses and argued that the claimants were issued the Public Service Rules when they were employed.
66. Thus, referring to the process of recruitment of public servants as stated under Rules 020202, 020203, and 020202 of the Public Service Rules (PSR) of the Federation, learned counsel emphasized that the case of the claimants fall under the category of employees to be treated or considered as trainees or pupils under Rule 020202 (a).
67. Learned counsel submitted that upon completion of further studies, the claimants became ready for their substantive positions as staff nurses, and so regardless of this, their years spent as student nurses must be computed. He submitted further that the claimants cannot take the benefits of their employments by discounting the years spent in service as nursing trainees. He relied on the decisions in BREWTECH NIG LTD V. AKINNAWO & ANOR (2016) LPELR-40094 (CA); HOTEL & CATERING SERVICES LTD V. UNCLE T FYRNITURE CO. (NIG) & ANOR (2018) LPELR-45887 (CA).
68. Respecting the claimants’ APER forms tendered as exhibits in this suit, learned counsel submitted that those documents speak for themselves and urge this court to peruse them and give effect to them accordingly. He placed reliance on the decisions in ECOBANK V. EBOIGBE (2021) LPELR-56615 (CA); AHMED V. CENTRAL BANK OF NIGERIA (2013) 11 NWLR (PT. 1365) 352.
69. In all, learned counsel emphasized that the claimants accepted their retirements in 2014 and proceeded to perfect their verification processes with PENCOM along with the other affected public servants then. They cannot renege from that duty knowing fully well that they had attained their age of retirement from service. Counsel thus urged the court to dismiss their cases for being frivolous.
CLAIMANTS’ COUNSEL’S FINAL SUBMISSIONS AND ARGUMENTS:
70. The claimants’ counsel filed his final written submissions on 31/5/2023. Within, a lone issue is distilled for determination by this court, which is “whether the claimants have proven their case on preponderance of evidence as required by law as to be entitled to the reliefs sought”.
71. Learned counsel first emphasized on the nature of the claimants’ employments as statutory that are regulated by the Federal Government’s Civil Service Rule. He relied on the decision in CBN V. DINNEH (2010) 17 NWLR (PART. 1221) 125 RATIO 8.
72. Now referring to the testimony of the DW1 under cross examination, counsel states that the witness said that he read the statement he made on oath in his lawyer’s office and same was also signed there (in his lawyer’s office). Learned counsel thus submits that it is wrong in law for a witness to sign his deposition outside the office of the commissioner of oaths before whom such deposition is supposed to be signed in accordance with the law. Counsel relies on NWAOKOLOBI V. EJIMELI AND ANOR (2020) LPELR-51357 (CA); BUHARI V. INEC (2008) 12 SCNJ 1 AT 91; EROKWU & ANOR V. EROKWU (2016) LPPELR- 41515 (CA); CHIDUBEM V. EKENNA & ORS (2008) LPELR-3913; NWABUOKU V. OTTIH (1961) 2 SCNLR 232 to submit that the statement of DW1 is unacceptable in law. He argues that the deposition of DW1 amounts to a nullity, hence the defendants have no evidence before this court to controvert those made by the claimants. Counsel further cited sections 5 and 10 of the Oaths Act, Laws of the Federation 2004, and section 112 of the Evidence Act 2011 to buttress his point on this.
73. Eventually, the claimants’ counsel submits that having failed to controvert the claimants’ evidence, they have proven their case so as to entitle them to all the reliefs sought in this suit.
DEFENDANTS’ COUNSEL’S REPLY ON POINTS OF LAW:
74. Learned counsel for the defendants filed a reply to the claimants’ counsel’s written submissions. It is dated 21/6/2023 but filed on 22/6/2023.
75. Counsel particularly engaged paragraphs 23 – 25 of the claimants’ counsel’s submissions, where it was argued that DW1’s written statement on oath was admittedly signed in his lawyer’s office, and that the said deposition is effectually unacceptable in law.
76. Differentiating between an affidavit and a witness written statement on oath, learned defense counsel submits that an affidavit merely contains facts believed and stated by a deponent to be accurate and true to the best of his knowledge, and that the court may elect to admit same as an unchallenged fact or not. Conversely, a witness’ written statement or deposition on oath only becomes an admissible evidence after it is adopted by the witness in an open court or trial. He relied on the case of ADEDIBU & ORS. V. LAWAL & ORS (2002) LPELR- 57360 (CA); REGISTERED TRUSTEES OF ROMAN CATHOLIC OF THE ARCHDIOCESE OF ONITSHA & ORS V. EDOZIUNO (2021) LPELR-56188 (CA) to support his argument. On the strength of the latter case, counsel further submits that any objections to any statement on oath or deposition have to be made before it is adopted by a witness and not after it is taken as an evidence-in-chief. He also relied on the case of BIU V. DAHIRU (2021) LLPELR-55718 (CA), inter alia. Counsel urged this court to treat the question of where DW1’s statement was sworn at, as a mere technicality and rather focus on doing substantive justice to this suit by dismissing same.
COURT’S DECISION:
77. I carefully perused all the processes filed in this suit, analyzed the evidence produced by the parties, listened to and deeply pondered on the witnesses’ testimonies both in chief and under cross examination, examined the laws as guide, and considered the final written submissions of learned counsel for the parties. I believe that one issue akin to the one formulated by counsel for the defendants and the sole issue raised by counsel for the claimants are materially and substantially similar, whereas issue 2 of the defendants’ counsel’s submissions needn’t be isolated as same is captured under his issue 1. Hence, for the purpose of this judgment, this court is convinced that the sole and all-encompassing issue sufficing for determination should be “whether from the pleaded facts and evidence adduced on both sides, the claimants have proven their case to be entitled to the reliefs sought in this suit.”
78. I shall determine this sole issue on the strength of the facts before this court which are tied to all the evidence adduced by the parties. Being that this suit is consolidated, the facts are similar in nature, but the claims made by the respective claimants will be distinguished at the point of making my final pronouncement. It must however be observed that there are some sets of facts which are undisturbed and undisputed in this suit. The claimants and these defendants agree on the following facts:
i. That at different times in 1979, these claimants were variously interviewed by the Public Service Commission, Owerri and offered appointments as student nurses in the Ramat Specialist Hospital, Umuahia – now known by its current name as the 1st defendant.
ii. That the 1st, 2nd and 3rd claimants became qualified as registered nurses in 1982 (for the 1st claimant) and in 1983 (for the 2nd & 3rd claimants), respectively.
iii. That upon their qualification as registered nurses, these claimants were each served with letters of temporary appointments as staff nurses, and subsequently served with letters of confirmation of each appointment.
iv. That the claimants’ employments are regulated by the Public Service Rules of the Federation.
79. Suffice to state that the kernel of this suit from the existing facts before this court is whether the computation of the claimants’ years in pensionable service should be done from their first letter of appointment (1979) when they were employed as student nurses, or from their second and subsequent employments as full time staff nurses in 1982/1983 (as the case may be). This suit was battled by the parties since 2015 within the sphere of this question.
80. Meanwhile, it is necessary to state that in all civil suits such as this one, the onus of proof is statutorily placed on a claimant. This is because he is the asserter who initiated the suit against a defendant. Hence the Latin idiom, “qui affirmat non ei qui negat incumbit probatio”.
81. Therefore, claimants must first establish by credible evidence, that they are entitled to their reliefs before the onus probandi will shift to the defendants. Elucidating on the nature of the duty on a litigant to establish his claims, the appellate court in ALIYU & ORS v. YOLA & ORS (2022) LCN/16188 (CA) held inter alia:
“the burden is on the plaintiff to establish his claim. This is the evidential burden of proof. It is only after the plaintiff has adduced sufficient credible evidence that the burden of proof would shift to the defendant. The shifting burden of proof is enacted in Section 136 of the Evidence Act 2011 and it provides that the burden of proof as to any particular fact, lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any {other} particular person. But the burden may in the course of a case, be shifted from one side to the other. As explained in ADIGHIJE v. NWAOGU (2010) 12 NWLR (PT.1209) 419 @ 463: “Section 137 of the Evidence Act, 2004 (now Section 133 (1) Evidence Act, 2011)”
82. Sections 131 and 132 of the Evidence Act 2011 are apposite and require no further quote.
83. This notable legal foundation underscores the duty on the claimants to prove their case on the strength of credible evidence. I observed earlier in this judgment that the claimants’ counsel argued that the claimants actually proved their claims and are entitled to the reliefs sought in this suit. Claimants’ counsel had submitted that the claimants’ evidence are unchallenged and uncontroverted in so far as DW1, who is the defendants’ sole witness, testified under cross examination that he read and signed his statement on oath in his lawyer’s office. Learned counsel submitted that the defendants’ have no other evidence before this court to rely on in rebuttal of the claimants’ claims since the statement on oath adopted by DW1 as his statement in chief is invalid and unacceptable in law. He cited numerous legal precedence.
84. In opposition, on the strength of the decisions in ADEDIBU & ORS. V. LAWAL & ORS (2002) LPELR- 57360 (CA); REGISTERED TRUSTEES OF ROMAN CATHOLIC OF THE ARCHDIOCESE OF ONITSHA & ORS V. EDOZIUNO (2021) LPELR-56188 (CA); and BIU V. DAHIRU (2021) LPELR-55718 (CA), learned counsel for the defendants distinguished between an affidavit and a witness statement of oath to also submit that any objections to any statement on oath must be made before it is adopted by a witness and not when it must have been taken as an evidence-in-chief.
85. I hereunder reproduce the testimony of DW1 being referred to here. Precisely on 25/3/2022, Ekpemu Roland (the DW1) testified as follows under cross examination:
Quest: You know your former lawyer, Grant Osu?
Ans: Yes
Quest: Grant Osu prepared that written deposition and you signed it in his office?
Ans: We read through it together and I signed it in the office.
Quest: Who was there when you signed it?
Ans: I cannot recall.
86. From the testimony of DW1, it is beyond peradventure that he testified to signing his sworn deposition in his lawyer’s office. Going by the rules of this court, it is required of a litigant (the claimant especially), to accompany his filed writ of complaint with a statement of facts establishing the cause of action; a list of witnesses to be called; written statements on oath of all the witnesses listed by him, etc. See Order 3 Rule (9). In the same vein, a defendant who wishes to file his defence to the complaint is required to accompany his statement of defence with a written statement on oath of all the witnesses listed to be called and other processes. See: Order 15 Rule (1) of the Rules of this court 2017.
87. While I agree with the submissions of learned counsel for the defendants on the uniqueness of affidavits and sworn depositions, I deem it pertinent to also note that both affidavits and depositions on oaths are subject to the Evidence Act 2011 and the Oath (Amendment) Act Cap 01, LFN 2004. Therefore, respecting the question before whom an affidavit or deposition on oaths can be made, section 10(1) of the Oaths Act provides as follows:
“It shall be lawful for the Chief Justice of Nigeria, a Justice of the Supreme Court, the President and Justices of the Court of Appeal and any judge of the Federal High Court, a notary public, and any commissioner for oaths, to administer any lawful oath or to take any lawful affirmation or affidavit which may be required to be taken or made for the purpose of complying with the requirements of any law for the time being in force throughout Nigeria or elsewhere, except where such procedure is expressly or by necessary implication manifestly excluded by the terms of such law as aforesaid and the presumption shall be against any such exclusion”.
88. Section 111 of the Evidence Act however provides that the fact that an affidavit purports to have been sworn in the manner prescribed in the preceding sections of the Act, shall be prima facie evidence of the seal or signature of any such court, judge, magistrate or other officer or person mentioned in, or appended or subscribed to, any such affidavit; and the authority of such court, judge, magistrate or other officer or person to administer oaths.
89. Furthermore the Act provides in section 112 as follows:
“An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered or before his legal practitioner, or before a partner or clerk or his legal practitioner.”
90. I must acknowledge that in recent times, questions on the validity and admissibility of sworn depositions which were taken contrary to the provisions of the law, have been copiously pronounced upon by the courts. In 2008, the opportunity unveiled itself at the apex court in the case of BUHARI V. INEC (2008) NSCQR (457) AT 634. There, the respondent in the election petition at the Court of Appeal had challenged the validity of the appellants’ witnesses’ depositions on oath. The said depositions on oath were said to have been taken before a Notary Public, one Val. I. Ikeonu Esq., who had also appeared as counsel in the suit as one of the petitioners’ counsel. The depositions were however admitted subject to the right of the opposition to raise objections to their admissibility at a later stage in the proceedings. Eventually, the appellate court held inter alia that in view of the provisions of section 83 of the Evidence Act [now section 112] and section 19 of the Notary Public Act Cap 331 LFN 1996, the said Notary Public (Val. I Ikeonu Esq.) being a petitioner’s counsel, lacked the competence to notarize any document used in the proceedings.
91. However, at the apex court, the appellant rehashed this argument again in much the same tone as the learned defendants’ counsel in this suit, stating that there is a difference between an affidavit contemplated under the Evidence Act and a witness’ statement of oath, and also that upon being sworn and adopted before the court, a statement of oath might have been cured of all irregularities. Moreso, it was further argued, that any objection to the validity of a statement on oath must be raised before it is adopted by a witness and not after it has been adopted. Upon considering the submissions of counsel there, the apex court while upholding the decision of the Court of Appeal on the issue, held inter alia as follows:
“… Again, I am not with him in the distinction. In the first place, a person who swears to a written statement under paragraph 1(1)(b) of the Practice Directions or one who swears to an affidavit under the Evidence Act is known as a deponent; a person who testifies by deposition. Deposition simply means a statement of a witness made under oath out of court. Although there could be differences between affidavit and deposition, it does not seem to apply to the case.
The third argument is the one on “healing any defect in the swearing of the depositions...” This is quite a new one to me. I know of no such adjectival law. Taking the argument further, it means that once a deponent takes oath, it automatically wipes out all the defects provided for in the Evidence Act, particularly in section 83. Although learned Senior Advocate did not specifically mention section 83, I know that is where he is going. Unfortunately, learned Senior Advocate did not cite the law which will perform the automatic medication like iodine to a wound or panadol to headache. There is no such balm to lessen the “pain” in section 83 not to talk of complete healing.
Learned Senior Advocate submitted that section 83 anticipates what he called the “later affidavit” and not a procedural deposition which is normally re-sworn at the adoption”. Unfortunately for the appellant, section 83 does not draw any such cleavage or dichotomy. What does learned Senior Advocate mean by the expression “procedural deposition”? Does this infer that there is substantive deposition? Depositions are all matters of procedure as they are adjectival in nature and content.
I should finally make the point that learned Senior Advocate did not refer to any authority, either by way of statute or case law to back up or justify his submissions. I am not surprised because I do not know any. The submission has not the support either of section 83 of the Evidence Act or paragraph 1(1)(b) of the Practice Directions which provide for written statements on oath of witnesses. Accordingly, question (a) fails.”
92. I am not unaware of the case of BIU V. DAHIRU (2021) LPELR-55718 (CA) relied upon by learned counsel for the defendants. In that case, the respondent’s witness had testified that he signed his deposition on oath at the respondent’s office. The trial court nonetheless considered the said statement on oath of that witness, and when the same issue arose for consideration at the court of appeal, the appellate court whilst of the view that the authority of BUHARI V. INEC (supra) was distinguishable from the instant suit on appeal, held inter alia that a witness’ deposition on oath should not be subjected to stringent conditions as an affidavit. It was held that a witness deposition should not be as sacrosanct as an affidavit, and that a statement on oath being adopted on oath before the court should be weightier than an affidavit and the oath taken in court cures it of any defect in formality.
93. However, in 2022, the appellate court once again considered a similar issue in UMAR v. KATAGUN & ANOR (2022) LPELR-58147(CA). Here, PW1 testified under cross examination that his statement on oath was deposed to in his lawyer’s office. Resolving the issue on this, the court of appeal whilst relying on BUHARI V. INEC (supra) among others, held inter alia as follows:
“I have seen the arguments of the 1st Respondent's Counsel, the Respondent's Brief of Argument in respect of issue one to the effect that the Appellant's counsel misunderstood the decision of the Apex Court in BUHARI V. INEC (SUPRA). Be that as it may, the position of the law is that an affidavit when sworn to, there is a presumption that it was sworn before a person authorize to administer Oath. See Sections 111 and 112 of the Evidence Act which provide as follows: " (111) The fact that an affidavit purports to have been sworn in the manner prescribed in the preceding sections shall be prima facie evidence of - (a) The seal or signature, as the case may be, of any such Court, Judge, Magistrate or other officer or person mentioned in, or appended or subscribed to, any such affidavit; and (b) The authority of such Court, Judge, Magistrate or other officer or person to administer oaths." However, this presumption is rebuttable and if it is shown that the affidavit was not sworn to before a person authorized to administer oath, then such affidavit cannot be used. Section 112 of the Evidence Act provides: "An affidavit shall not be admitted to be used, which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner." In the case of BUHARI V. INEC & ORS (SUPRA), TOBI JSC (as he then was and of blessed memory) at page 99 paras A-C, on the instances where an Affidavit will not be admitted, said: "That takes me straight to Section 83 of the Evidence Act. It reads: "An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner. The section provides for four instances where an affidavit will not be admitted. They are, if sworn before (a) a person on whose behalf the same is offered; (b) his legal practitioner; (c) a partner; (d) a clerk of his legal practitioner." See also MADUAKOLAM SAMUEL CHIDUBEM V. OBIOMAEKENNA & ORS (2008) LPELR-3913 (CA), RICHARD IDOWU AKANMODE & ANOR V. MELAYE DANIEL DINO & ORS (2008) LPELR-8405 (CA). In the instant appeal, the presumption has been rebutted and proved by the evidence of PW1 under cross-examination that he deposed to his Witness Statement on Oath in his lawyer's office. See also SECTION 10 OF THE OATH ACT as to the persons authorized to administer oath on a deponent. See also BUHARI V. INEC (SUPRA) and plethora of judicial authorities. Further, SECTION 13 OF THE OATHS ACT provides: "it shall be lawful for any commissioner for oaths, notary public or any other person authorized by this Act to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the Fifth Schedule to this Act." Thus, what makes legitimacy in oath taking is the deponent standing before a person authorized to administer oath. In the instant case before the trial court, the presumption that the Witness Statement on Oath was sworn before a person authorized to administer oath has been rebutted and proved that PW1 deposed to his Witness statement on oath in his lawyer's office. It would have been different if PW1 simply testified that he deposed to his Witness Statement on oath in any named registry of the court or a Notary Public different from his lawyer's office in case his lawyer is a Notary Public. Hence, the trial court was wrong to have relied on the Statement on oath of PW1 and the documents or exhibits attached thereto. Thus therefore, PW1's Witness Statement on Oath, having failed to comply with the provisions of SECTION 112 OF THE EVIDENCE ACT and SECTIONS 10 and 13 OF THE OATHS ACT, and the decision of the Apex Court in BUHARI V. INEC and plethora of decisions of this Court, PW1's witness’ statement on oath and all documents attached thereto are hereby expunged from the records of this case." Per DANLAMI ZAMA SENCHI, JCA (Pp 43 - 46 Paras B - E)”
94. In HALI ALIYU V. BELLO BULAKI (2019) LPELR-46513 (CA), the law is now well settled beyond any reproach that a witness statement on oath signed in the chambers of a counsel, is null and void and of no effect. Such a witness statement on oath is unreliable for use in the proceedings before the court. This is because a witness statement signed in the chambers of a counsel has violated the Evidence Act, Oaths Act and the provision of the Notaries Public Act.
95. The witness’ statement on oath which is required to accompany the originating processes as envisaged by the provision of Order 3 Rule 9 of the rules of this court, is akin to a deposition in an affidavit in that both depositions in an affidavit and as a witness’ statement on oath, are simply statements of a witness made under oath but outside of court. In either case, to make the affidavit or the written statement under oath acceptable for use by this court, they must be sworn before the person duly authorized to take such oaths. Therefore, section 112 of the Evidence Act earlier quoted, is instructive again since it provides: “An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner." By the decision in BUHARI VS. INEC (supra), witness statement on oath is akin to an affidavit sworn to before commissioner for oath.
96. A global view of the provisions of sections 112 and 117 (4) is that for an affidavit to be admitted in evidence or allowed to be used as evidence, it must not only be sworn before a person so authorized to administer the oath such as the commissioner for oaths or a Notary Public, it must also be signed in the presence of such an officer. In the case of a Notary Public to which legal practitioner belongs, Section 19 of the Notaries Public Act Cap. N141 LFN 2004 comes into play. It provides: “No notary public shall exercise any of his powers as a notary in any proceedings or matter in which he is interested." Reading the above provisions of the Evidence Act together with Section 19 of the Notaries Public, it is manifestly clear that an affidavit sworn in the chambers of a legal practitioner appearing for a party in any proceedings or before a clerk in his chambers is inadmissible in evidence. This includes a witness written deposition on oath.
97. This is so because a deponent's legal practitioner is a person interested in the proceedings and therefore disqualified from notarizing for his client. Though the legal practitioner in whose chambers the depositions were sworn is or may be a notary public, being a legal practitioner representing the defendant in this suit, he is precluded from notarizing any document for him for use in the case.
98. Additionally, oath taking goes beyond mere signing of the contents of the document before the person authorized to administer the oath. It includes most importantly, compliance with section 5 (1) (a) & (b) of the Oaths Act, which requires the person taking the oath, if a Muslim, to place both hands on a copy of the Holy Qur'an and if he is a Christian, to hold in his right hand a copy of the Holy Bible or of the New Testament and if a Jew, to hold in his uplifted hand a copy of the Old Testament and to then repeat after the person administering the oath, the prescribed words. It is after this has taken place, that the commissioner for oaths verifies the contents and then confirms that same was signed in his presence by endorsing his own signature to that effect.
99. Therefore, for any such deposition to be competent for use, it must be duly signed and sworn before the appropriate officer in accordance with the Evidence Act and the Oaths Act. It is the due swearing that gives life to the declaration on oath. Without the due swearing of the deposition in the presence of and by the proper officer authorized to take the oath, the statement on oath is a mere piece of paper and not a deposition or affidavit. See UDUSEGBE VS. SPDC (NIG.) LTD. (2008) 9 NWLR (Pt. 1093) 593; MARAYA PLASTICS LTD. VS. INLAND BANK NIG. PLC (2002) 7 NWLR (Pt. 765) 109.
100. The conditions necessary to make an affidavit competent were stated in the case of DR. MUHAMMAD IBRAHIM ONUJABE & ORS. VS.FATIMA IDRIS (2011) LPELR - 4059 (CA) as follows: “The Oaths Act is a general statute that deals with oaths. The provision under the Evidence Act on affidavits, places a condition precedent which ought to be fulfilled to render the affidavit competent. One fundamental condition is the swearing on oath before the commissioner for oath. It is on this vein that the provision under the Oaths Act becomes relevant. That is why a defect as regards the swearing on oath is not a mere irregularity as to form, but a defect as to substance. The appearance of stamp and signature of Commissioner for Oath only raises the presumption of regularity. But this presumption was quickly rebutted with the evidence of DW1 that he signed his deposition on oath in his lawyer’s office.
101. In a similar and clear tone, on the effect of violation of the provisions of Sections 112, 117 (4) of the Evidence Act and 19 of the Notaries Public Act, MUKHTAR, JSC as he then was in BUHARI V INEC (Supra) held:
“It is settled law that an affidavit that is bereft of the requirements of the law it is expected to meet, (most especially not a mere defect in the format that can be admitted with the leave of court), will not be accommodated, (because, as it is in this case the error is fundamental) – but must be rejected, and if already admitted must be expunged."
102. With the rebuttal of the presumption of regularity by DW1, the case of BUHARI V INEC (supra) comes to play to render the witness’ statement on oath fundamentally defective, the depositions having been signed in the chambers of the defendants’ counsel.
103. There is no doubt that the current trend in our jurisprudence is to lean towards doing substantial justice and disregard technicality. However, where a matter has been settled by the apex court, the decision of the apex court becomes binding on this court and other subordinate or immediate appellate courts. It must be made clear that this court possesses no powers whatsoever to depart from or ignore the position taken by the apex court on the same or similar facts. Doing so will amount to overruling the decisions of the apex court and the court of appeal. This court will not embark on such futile and rapscallion exercise. This court having not been shown that the decision in BUHARI V INEC (supra) is overruled by another subsequent decision of the apex court, cannot depart from the said decision. It is binding on this court and must be applied appropriately. I so hold.
104. It is also notable to state that the facts in UMAR v. KATAGUN & ANOR (supra) are on all fours with the facts of the instant suit. In both suits, the witness’ statement on oath was signed in the counsel’s office. In the Nigerian legal jurisprudence, the celebrated principle of judicial precedence still holds true and in force. It is important to understand the guiding principles to the application of the doctrine of stare decisis or judicial precedent in our judicial milieu. Elucidating on the nature of the principle in ONYEMAIZU V. OJIAKO (2000) LPELR- 10373 page 1 at 36, the appellate court held in the following words:
“The Nigerian court operating the common law, religiously follow the doctrine of precedent in the enforcement of the judicial process. As a matter of law and tradition, they adore the doctrine. Under the doctrine, decisions of superior courts are binding on the inferior courts. Put in another language, the decision of a higher court is binding on a lower court. Thus, decisions of the Supreme Court are binding on the Court of Appeal and all other Courts below it. Decisions of the court of Appeal are binding on the High Courts [including the National Industrial Courts] and all other courts below. Decisions of the High Courts are binding on Magistrates courts and other inferior courts.” (Bracketed by me for emphasis).
105. It is also judicially established that where there are conflicting decisions of a superior court, the lower court is bound to follow the most recent decision – see BELLO & ANOR. V. IKWUE (2021) LPELR-55652 (CA); FABUNMI V. UI & ANOR. (2016) LPELR-41132 (CA); KANU V. ASUZU & ANOR. (2015) LPELR-24376 (CA). Hence, this court is bound to follow the decision of the appellate court in UMAR v. KATAGUN & ANOR (supra) which is the latest in time and much more similar in facts with the instant suit more so as the opinion taken by the supreme court remains the authority on the issue.
106. It is unfortunate that there is nothing this court can do other than to follow the law. This court by the doctrine of stare decisis is duty bound to follow the decisions of the apex court and that of the court of appeal. Dancing on the heels of the decisions already expounded therefore, I am propelled by legal conviction to accept the view that the statement on oath by the DW1 which he admitted was deposed to and signed in the office of the defendants’ lawyer, is defective, invalid and inadmissible. Same is, as well as all the documents tendered through DW1, jettisoned and expunged.
107. It should be understood that this court decided not to adopt the decision of the Court of Appeal in VICTOR ADEGBOYE V. UBA (Appeal No. CA/IL/20/2021 delivered on 14/4/2022 per Amadi, JCA) which legitimises the application of section 12(2)(b) of the National Industrial Court Act 2016 whenever necessary by this court, to depart from a strict application of any provisions of the Evidence Act where doing so would cause an injustice to a party or promote undue technicality in arriving at a decision. Not only is this not sought for by the defendants' counsel, this court is faced with a question that was already directly decided upon by the apex court which is ultimately binding on this court to adopt and apply without excuses giving the bare principles of stare decisis. I am not unaware of some decisions of this court like the one in ARINZE OKEKE V. ARAB CONTRACTORS AND 1 OTHER (UNREPORTED) SUIT NUMBER NICN/EN/759/2014 Per Arowosegbe, J, in which my learned brother resolved not to expunge the claimant's sworn deposition despite that it was sworn to before the deponent's lawyer. That case was dealt with according to the peculiarities of its facts and circumstances.
108. Having expunged the sole evidence of the defendants, this court is constrained to proceed to consider the merit of the claimants’ case viz a viz the reliefs sought in this suit. It is trite that a litigant who seeks declaratory reliefs shall only succeed on the strength of his case and not on the weakness of the opposition’s defense. SEE: JUMEZ NIG. LTD. V. NWAKHOBA (2008) 18 NWLR (PART. 119) 361; EMENIKE V. PDP (2012) 12 NWLR (PART 1315) 556. I do not agree with the submission of learned counsel for the claimants which supposes that since the defendants do not have any statement on oath, it automatically translates to the claimants’ victory. The claimants still have to prove their case by credible evidence.
109. It was established in the earliest stages of this case that the claimants had to undergo training and acquire special nursing certifications before they could qualify as staff nurses. CW3 particularly testified under cross examination that without her certification as a registered nurse she would not have been qualified to be employed as a staff nurse. Nontheless, the claimants maintain that their second letters of temporary appointments as staff nurses represent fresh and new appointments, rather than a continuity of their initial appointments as student nurses contrary to what the defendants want this court to believe. Each of the claimants stated under cross examination that there was a break or intermission in their employment before they were temporarily appointed as staff nurses.
110. Interestingly, when asked when the break periods were, CW1 referred to a period between May 1983 and September 1983 as the break period. The CW2 referred to a period between April and August 1982 as the break period, while the CW3 referred to a period between November 1982 and June 1983 as the break period.
111. Respecting their emoluments prior to their appointment as staff nurses, CW1 testified that she only received stipends as salary. CW2 testified that she received basic salaries without allowances, while the CW3 stated that she received allowances, but not salaries, leave allowances or any other benefits.
112. Respecting the claimants’ salaries as student nurses, exhibit C14 (3rd claimant’s notification of appointment as student nurse) is quite luminous and I make quick to reproduce paragraph 2 of exhibit C14 hereunder as follows:
“2. The following conditions will apply:
Effective date of appointment: 29th October, 1979
Salary Scale: Grade Level 04
Entry Point: N1,320.00 p.a
Increment date: 1st November…”
113. Exhibit C14, without ado, is at variance with and clearly contradicts the claimants’ common positions that they were not paid salaries while serving as student nurses.
114. Thus said, I must clarify that the claimants and defendants are in agreement on the fact that the Public Service Rules regulated the claimants’ employments at all times material to this suit. As such, the following provisions of the Public Service Rules are instructive on the issue under consideration. These are:
i. Rule 020202 - direct appointment to the Federal Public Service may be in any of the following categories:
a. As trainee or pupil.
b. On probation in a pensionable post.
c. On non-pensionable contract to a non-pensionable post, or against a pensionable post for a specific period.
d. On temporary basis other than (c) when the post proves difficult to fill, they shall normally be advertised.
115. The literal canon of interpretation of statutes presupposes that where the language of the legislature is plain and unambiguous, the court shall attribute to them, their regular and ordinary meanings – AMINU TANKO VS. THE STATE (2009) 1-2 MJSC 209 AT 255. I believe these rules are plain enough and less likely to be misconstrued. The claimants were appointed as student nurses. The term ‘student’ is defined by the Cambridge Dictionary to include, “a person who is learning at a university or college”. On the other hand, the term ‘trainee’ is defined by the same Cambridge Dictionary to include “a person who is learning and practicing the skills of a particular job”. Rule 010103 defines a ‘trainee’ as, “a person appointed to a training post in any grade, it includes a pupil”.
116. I find these two terminologies (‘student’ and ‘trainee’) as synonymous words within the context of qualifying a person who is in the process of learning a particular profession.
117. Now, the claimants’ appointment letters as student nurses, read in part, “… the commission has decided to offer you appointment as student nurse in the (sic) school of nursing, Ramat Specialist Hospital, Umuahia…” – See exhibit C7(b). There is no gainsaying that the claimants by their initial letters of appointments, were placed under the trainee category of employees which is as envisaged under rules 020202 (a) of the Public Service Rules.
118. Indeed, after their initial appointments as student nurses, they subsequently sat for an examination before they could qualify as registered nurses. This was the only way they could become staff nurses of the hospital. Again, rule 020203 (a) of the Public Service Rules (PSR) is instructive and directional on the current issue. The provision reads thus:
“when a candidate for employment requires additional professional experience before he can be regarded as fully qualified for appointment to a specific post, the candidate may be appointed as a trainee or pupil for a normal service of two years in the post. This period may however, be reduced in special circumstances. On completion of the “training period” the pupil may be appointed to the full grade on probation and will not be eligible for confirmation in the service until he/she has fulfilled the conditions laid down in Rule 020203 where applicable.”
119. Juxtaposed with the facts of this suit, one would be tempted to conclude that the provisions of Rules 020203 (a) of the PSR substantially resonates with the facts of this case. However, this court is inclined to scrutinize the claimants’ evidence for a more comprehensive determination of the issue at hand.
120. The claimants tendered in evidence exhibit C7 (c), exhibit C1 and exhibit C15, which are the 1st, 2nd and 3rd claimants’ letters of offer of temporary appointments respectively. They are dated 4/8/1982, 30/9/1983, and 30/6/1983 respectively. These exhibits are similar in their contents and intentions, and so for clarity of emphasis I shall reproduce the body of the letters hereunder:
“I am directed to refer to your recent posting to General Hospital Uzuakoli, and to inform you that you have been offered Temporary Appointment as Staff Nurse, on salary grade level 07 Step 1 (N2,832.00) per annum.” (underlined for emphasis).
121. Although exhibits C7 (c) and C15 for the 1st and 3rd claimants read “General Hospital Uzuakoli” as their primary place of posting, exhibit C1 for the 2nd claimant reads “Queen Elizabeth Specialist Hospital” instead. These documents speak for themselves, and this is the reason why documentary evidence is celebrated as the best evidence – See A.G BENDEL STATE v. U.B.A ltd (1986)4 NWLR (PART 37) 547; AKINBISADE v. THE STATE (2006) 17 NWLR (PART 1007)184 SC.
122. Now examining these pieces of evidence thoroughly, I am immediately attracted to the line that reads: “I am directed to refer to your recent posting to General Hospital Uzuakoli…”. This expression is indeed salient in my view. I actually believe that the reference to the “recent posting” as contained in that line, addresses the fact that a posting was hitherto made and took effect before the making of those letters to signify their appointments as staff nurses – Exhibit C7(c), Exhibit C1 and Exhibit C15). In other words, the postings under reference, predated the issuance of letters of temporary appointments as staff nurses. To think of a person being posted to a duty post before his/her employment seems anomalous and incoherent to me, as only someone already in a valid employment can be posted or transferred to a duty post. Therefore, in the instant suit, it is not out of place to presume that there were some kind of valid and subsisting employments between the claimants and their employers, which formed the hanger for which the postings referred to in Exhibits C7(c), C1 and C15 were effected.
123. Although the claimants remain resolute with their contentions that there was a break or intermission in their respective appointments before their temporary appointments as staff nurses were done, these do not impress me in the face of the evidence before this court.
124. On the validity or otherwise of the dates of first appointments in the APER forms which the claimants individually filled out throughout their service years, each of them (as CW1, CW2 and CW3), admitted under cross examination that they filled in 1979 as their year of first appointment in service in their various ‘Civil Service Annual Returns and Performance Evaluation Report Forms’ (otherwise known as CSARPER or simply APER forms). However, they each went on to testify that they did not fill in 1979 willfully. The CW1 (2nd claimant) particularly stated that the form (CSARPER) was always returned back to her whenever she filled in the year 1983 as her first year in service. The CW2 (1st claimant) stated that she was compelled to write 1979, while the CW3 (3rd claimant) stated that she wrote 1979 out of duress.
125. Exhibits C11 and C12 are copies of the CSARPER for the years 2011 and 2013 respectively which were tendered through CW2 (1st claimant) by the defendants’ counsel. I can see boldly written on each of them, the date “27th March, 1979” in the column provided for ‘date of first appointment in service’. Meanwhile, there is nothing before this court to show that these claimants were ever compelled to fill in the year 1979 as their first year in service at the 1st defendant hospital. What is curious is that for the over 30 years spent by these claimants in service, there is nothing before this court to suggest that they, at any point in time, formally complained to any of the defendants for purportedly compelling them to fill in their CSARPER forms, a date which they believe was not their actual entrance date in service. It is even more disturbing that CW2 testified under cross examination that she was already a qualified lawyer as at 2013 when she filled exhibit C12.
126. Equity only aids the vigilant and not the indolent. The same CW2, (like the other witnesses), admitted to filling in year 1979 as her first year in service in her pre-retirement form when they went with other employees to PENCOM. What I find incredulous is that CW2 further testified under cross examination that the defendants also forced her to fill 1979 at PENCOM as her first year in service. I mean, what could be more ludicrous?
127. It is imperative to remember that the minimal standard of proof expected of the claimants’ claims is to be determined on a balance of probability – section 131 of the Evidence Act 2011. Their task is thus lesser having jettisoned the defendants’ evidence in toto. In spite of that, I am still convinced that the claimants were actually employed as student nurses under the category of trainees or pupils in 1979, and upon qualifying in 1982/1983 (as the case may be) as certified registered nurses and issued with temporary appointment letters to the position of Staff Nurses, they were subsequently confirmed as employees of the 1st defendant in accordance with the recognizable public service rules which were similar to the current one at the time of this judgment.
128. It therefore follows that these claimants were already in public service prior to their temporary appointments as staff nurses, and bound by the provisions of the Public Service Rules. Thus, respecting the retirement of public officers, Rule 020810 of the Civil Service Rules 2008 provides as follows:
“(i) the compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier.
(ii) No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier”.
129. The language of the law here is ‘shall’ and carries with it a compulsory application. These claimants entered public service and became public servants in 1979 in virtue of their appointments as student nurses (trainees). Their contention that the period of time working as student nurses ought not to be considered in calculating their retirement year, is a perfidious attempt to infract the PSR which clearly determines that no public servant can exceed the prescribed period of 35 years in service or upon attaining the age of 60 years. Their respective status as trainee or pupil student nurses is recognized by the PSR and must be reckoned with in the computation of their years in service, and I so hold.
130. Flowing from all the above findings by this court, it is my honest view that the 1st, 2nd, and 3rd claimants, having been duly employed as student nurses into the public service on 23/3/1979, 24/10/1979, and 24/10/1979 respectively, had already served for 35 years by the year 2014 and thus due for compulsory retirement in line with PSR 2008. I so hold.
131. As such, the sole issue for determination in this judgment is resolved against these claimants and in favour of the defendants. Consequently, the claimants’ suits fail in their entirety and same are hereby dismissed.
132. Judgment is entered accordingly. Parties are to bear their respective costs.
DELIVERED VIRTUALLY THIS THURSDAY THE 2ND DAY OF NOVEMBER 2023.
Hon. Justice I.S. Galadima,
Judge.