The National Industrial Court sitting in Abuja, has dismissed an application filed by Group Captain Reginal Osene against Chief of Air Staff and 2 Ors, for his promotion.
This matter was transferred from the Federal High Court pursuant to the order of that court on 28th November, 2011 made pursuant to Section 22 (2) of the Federal High Court Act, Order 49 Rule 5 of the Federal High Court Rules, 2009 and Section 24 of the National Industrial Court Act, 2006.
The Court granted the Claimant’s application to amend his statement of claim by deeming the amended statement of Claim attached to the Motion for amendment as being properly filed and served.
GROUP CAPTAIN REGINAL OSENE through his counsel FESTUS OKPE, ESQ., who had challenged for
1. A declaration that the plaintiff is entitled to have been promoted to the rank of Air commodore with effect from 1st July 2004 and the rank of air vice marshal with effect from 1st July 2007 respectively.
2. An order compelling the defendants to present the Plaintiff to the Air Force Council for promotion to the rank of Air commodore with effect from 1st July 2004 and the rank of air vice marshal with effect from 1st July 2007 respectively.
3. An order compelling the 2nd defendant to pay the plaintiff all arrears due him as per all the promotions from 1st July 2004 and July 1st 2007 respectively.
4. An order compelling the 3rd defendant to write a letter of apology to the plaintiff for threatening to and actually impeding the promotion of the plaintiff.
5. An order restraining the defendants from posting or retiring the plaintiff for seeking to redress the various injustices perpetrated against him.
6. General damages of Two Hundred Million Naira (N200, 000, 000.00) jointly and severally against the defendants.
The Defendants through their counsel IBRAHIM ETSU, ESQ., in their joint written address filed on their behalf by their Counsel distilled 2 issues for determination as follows:
1. Whether given the fact that promotion shall be a privilege and not a right for officers the plaintiff is entitled for the reliefs sought.
2. Whether having failed to comply with the provision of section 178 (3) of the Armed Forces Act, being a condition precedent, the claimant can invoke the exercise of court jurisdiction.
The court presided by Hon. Justice B. A. Adejumo OFR after reviewing the argument of parties, said “I have carefully read through the facts of this case, the written arguments of counsel to the parties including their cited authorities. It must also be noted that the claimant did not tender any document in support of his allegation of threat against him. The law is trite that averments in pleadings not supported by evidence cannot be regarded as proven. In the case of OKPOKO COMMUNITY BANK LTD & ANOR v. IGWE (2012) LPELR-19943 (CA), it was held that, pleadings, no matter how beautifully couched, does not constitute evidence”.
It was stated by the claimant in paragraph 34 of his amended statement of claim that he was retired from service on the ground that he has attained the retirement age for group captains of the Regular Combatant Commission. In my view, the claimant is not contesting his retirement but was only stating that he was supposed to have been promoted to the rank of Air Vice Marshall before his retirement date.
In the case of PURIFICATION TECHNIQUE (NIG.) LTD V. JUBRIL (2012)18 NWLR PT.1331 P.109 RATIO 8, the trite position of law was re-emphasized by the Supreme Court that civil cases are determined on the preponderance of evidence and on balance of probabilities. As stated in the case of EZEMBA V. IBENEME (2004)14NWLR PT.894 P. 617, it is beyond doubt that a party who institutes a civil action must not only plead facts of the case, he equally bears the burden to adduce evidence to support his pleadings.
I have carefully considered the facts, evidence and authorities cited by the claimant in this case and I am not convinced that the claimant has discharged the onus of proof required of him by law. It is my humble view that the reliefs of the claimant in his claim must fail having failed to adduce sufficient evidence before this court to prove same and I so hold.
For clarity and avoidance of doubt, it is hereby held that the claimant having failed to adduce credible, convincing and reliable evidence in proof of his case, this suit is hereby dismissed.
In the end, the case of the Claimant fails and same is hereby dismissed. I make no order as to cost.
Judgment is entered accordingly.
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