NICN - JUDGMENT
IN THE NATIONAL
INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR
JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE
MR. JUSTICE SANUSI KADO
23RD DAY OF JULY, 2024
SUIT. NO. NICN/CA/23/2022
BETWEEN:
MR. JULIUS AWOLABI
…………………………………………………………………………………………… CLAIMANT
AND
1.
THE COMMISSIONER OF POLICE
CROSS RIVER STATE COMMAND
DIAMOND HILL, CALABAR DEFENDANTS
2. INSPECTOR GENERAL OF POLICE
FORCE HEADQUARTERS, ABUJA.
3. THE POLICE SERVICE COMMISSION
JUDGMENT.
1.
The claimant commenced this suit via
Originating Summons dated 16/9/2021 and filed on 27/6/2022. However, on
11/6/2023, the court suo motu ordered converting of the originating summons to
a general form of complaint accompanied by statement of facts and its
supporting processes in line with the rules of court. In compliance with the
order of the court the claimant on 20/6/2023 filed a general form of complaint accompanied
by statement of facts and its accompanying processes. Vide paragraph 26 of the
statement of facts the claimant claims against the defendants as follows:-
a.
A declaration that the purported termination
of claimant’s employment by the 2nd defendant is wrongful illegal,
unwarranted and unconstitutional.
b.
A declaration that the refusal of the
defendants to reinstate, the claimant to his employment is a gross violation to
the judgment of this Honourable court in NICN/CA/01/2018.
c.
A declaration that the claimant is entitle to
reinstatement to his employment by virtue of the judgment of this Honourable
court in NICN/CA/01/2018.
d.
A declaration that the discharge of the
claimant in charge no. MOD/67c/2007, by the Chief Magistrate Court sitting in
Obudu Cross River State amount to an acquittal.
e.
A declaration that the judgment and orders of
this Honourable Court in NICN/CA/01/2018, is valid having delivered same in its
competent jurisdiction.
f.
A declaration that the content of any
purported letter of termination/dismissal of his employment does not over-ride
the judgment of this Honourable Court in NICN/CA/01/2018.
g.
A declaration that the refusal of the
defendants to reinstate claimant to his employment is tantamount to contempt of
court.
h.
A declaration that the claimant is entitle to
reinstatement to his employment including all financial benefits, promotions in
line with the instant laws of the Federation that accrued to his employment
from the date of wrongful termination to date.
i.
An order of this Honourable court directing
the defendants to reinstate claimant to his employment with full financial
benefits and promotions that accrued thereof during his wrongful termination.
j.
An order of this Honourable court directing 2nd
and 3rd defendants to pay arrears of the claimant’s salaries and
other accompanied financial benefits accrued forthwith to the claimant from the
month of his wrongful termination of his employment.
k.
An order of this Honourable court restraining
the defendants by themselves, agents, servants, through or by whosoever acting
for them or on their behalf from further interfering with claimant’s
employment.
l.
An order of this Honourable Court directing
the defendants jointly and severally to pay the sum of Five Hundred Million
Naira (N500,000,000.00) only as general and aggravated damages for wrongful
termination of claimant’s employment.
m.
An order of this Honourable court directing
the defendants jointly and severally to pay the sum of Five Million Naira
(NN5,000,000.00) as cost of this action.
2.
Upon being served with the originating summons
commencing this suit the 3rd defendant filed counter affidavit in
opposition to the claimant’s originating summons. However, when the originating
summons commencing this suit was converted to a general form of complaint and
same served on the defendants, they failed and refused to file their statement
of defence. They also refused to attend court sittings despite serving them
with hearing notices severally.
3.
On 25/10/2023, the claimant testified in proof
of his case as CW1. CW1 adopted his witness statement on oath as his evidence
in this case. Five documents were tendered in evidence through CW1 they
admitted in evidence and marked as exhibits A to E.
4.
On 17/1/2024, the defendants were foreclosed
and claimant was ordered to file final written address. The claimant’s final
written address was served on the defendants, but, they failed to file any
address in response.
5.
From the statement of facts, witness statement
on oaths adopted by the claimant as his evidence in this case and the exhibits
tendered in evidence, it can be gleaned that the claimant was enlisted into the
Nigeria Police Force in 1989 as a recruit with No. 14254 and he remained in the
service of the defendants from 1989 to 2007 and on account of his meritorious
service he was promoted to the rank of Sergeant by the 3rd
defendant. During the period of his service the claimant was deployed to MOPOL
II Calabar, Cross River State Command. In 2007, the claimant was deployed from
Calabar to Bebi (IV) on a special duty during the communal clash between the
Tivs of Benue State and Sankwala in Cross River State known as Sankwala/Tivs
war. According to the claimant to his utter chagrin, in the course of his
service to the 1st and 2nd defendants a frivolous
allegation was framed up against him without proof that he sold a rifle to the
Obanliku people during the war which resulted in the stoppage of the claimant’s
salary without notice and other incidental allowances that were already accrued
to him in the course of discharge of his services to the Defendants. Consequently,
the claimant was immediately subjected to trial in the odling (sic) room at the
state command, Diamond Hill Calabar in accordance with the Police Customary
Practice but successfully defended the allegation and there was no proof to
that effect and was discharged. But mischievously not satisfied by the framers
of the allegation, the claimant was further slammed with another frivolous
charge at the Chief Magistrate court Obudu. The claimant was arraigned in charge
no. MOD/67c/2007 which on account of lack of proof was struck out for lack of
diligent prosecution. Following his discharged by the Chief Magistrate, the
claimant filed a suit before this Honourable Court in suit No. NICN/CA/01/2018
and judgment was delivered in his favour which account for the reasons the
claimant was before this Honourable Court to interpret the said judgment and
enforce same on the Defendants.
THE SUBMISSION OF THE CLAIMANT:
6.
On 24/4/2024, this matter came up for adoption
of final written addresses, the defendants failed to appear in court and also
failed to file final written addresses. Consequently, A. O. Obi, Esq; counsel
for the claimant adopted the final written address franked by him on behalf of the
claimant. In oral adumbration counsel informed the court he is adopting the
final written address of the claimant as his argument in this case counsel also
urged the court to uphold the argument canvassed and grant the reliefs being
sought. In the final written address adopted by counsel, twin issues were
formulated for determination. They are:-
(a)
Whether from the surrounding circumstances of
the judgment in MOD/67c/2007 and NICN/CA/01/2018 Claimant is not entitled to
reinstatement back on his employment with the Defendants.
(b)
Whether this Honourable Court has jurisdiction
to enter judgment against the defendant in default and same valid and final.
ARGUMENTS:
7.
Issue ‘a’ Whether from the surrounding
circumstances of the judgment in MOD/67c/2007 and NICN/CA/01/2018 Claimant is
not entitled to reinstatement back on his employment with the defendants. In
arguing this issue counsel submitted that the calm interpretation and the
wordings of the judgment of this Honourable Court in NICN/CA/01/2018 on account
of the claimant’s discharge in MOD/67c/2007 and its constructions is sufficient
for an acquittal counsel refers this Honourable court to exhibits A and B.
8.
Counsel contended that in the wordings and
constructions of the said judgment, it was stated thus:-
“…. For the
avoidance of doubt the court hereby order that the Applicant’s discharge in No.
MOD/67c/2007 by the Chief magistrate’s Court of Cross River State sitting in
Obudu on the 28th day of June 2010 constitutes a discharge and
acquittal of the said charge”.
9.
Counsel submitted that flowing from the
wordings and constructions of this Honourable Court in exhibit B on records in
respect to exhibit A, it is crystal clear that the claimant before this
Honourable Court remain discharged and acquitted in MOD/67c/2007, until this
order of this Honourable Court is set aside by a superior court, it remains
valid and enforceable. There is a presumption in favour of the correctness of
the Court judgment and until that presumption is rebutted and the judgment set
aside by the superior court, it remains subsisting and prevailing between and
binding on the parties. Consequently, such judgment must be obeyed. There is a
mandatory coercive mechanism that such a judgment must be obeyed or enforced on
the parties. To support this submission counsel relied on the case of FIDELITY
BANK PLC VS. M.T TABONA AND 3 ORS. (2019) All FWLR (Pt. 975) pg 885 at pg 888,
and HON HASSAN ANTHONY VS CHRISTIAN ABAH & 2 ORS. (2018) All FWLR (Pt. 933)
pg 944 at Pg 947.
10. It is also the
submission of counsel that judgments of Courts are sacrosanct and must be
sufficiently complied with and obeyed to the letter by all no matter how
perverse until set aside by a superior court. In support of this proposition
counsel relied on the case of LABOUR PARTY VS. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (2009) 2 (pt 1) MJSC pg 101 at pg 107, where it was held:
“A court order
must be obeyed even if such order is perverse until such a time that the order
is set aside by a competent court”.
11. Counsel continued
his submission that the Claimant’s case before this Honourable Court is that he
was wrongly dismissed from his employment with the defendants without notice or
instrument terminating his employment but defendants abruptly stopped his
salaries and other financial allowances accrues to his employment on account of
a frivolous allegations and in the course of his service with the defendants in
keeping peace at the then Sankwala/Tivs of Benue State war. This resulted to
his formal trial in the Chief Magistrate Court Obudu on charge No. MOD/67c/2007
and was discharge thereof by the Chief magistrate court for lack of diligent
prosecution which is tantamount to lack of proof.
12. Counsel further submitted
that the Claimant approached this Honourable Court in Suit No. NICN/CA/01/2018
and judgment was handed down in his favour, but, the defendants till date are
yet to reinstate claimant back to his employment which resulted to this action
in NICN/CA/23/2022. Counsel further refers to paragraphs 7,
8,9,10,11,12,13,14,15-19 of the statement of facts.
13. Counsel submitted
that the claimant before this Honourable Court has proved his case with preponderance
of evidence or on a balance of
probabilities as required by law by establishing succinctly without
equivocation his employment with the defendants, the years of employment and
the frivolous allegations that led to the suspension of his salaries and other
allowances that accrues to his employment the subsequent judgments in his
favour by the courts in its competent
jurisdictions which is sufficient for his reinstatement as a gift for his
innocence against the frivolous allegation. To buttress the point being made
counsel refers the court to section 131- 134 of the evidence Act 2023 (as
amended) and the Supreme Court case of DARLINTON VS. FEDERAL REPUBLIC OF NIGERIA
(2019) All FWLR(Pt 1006) 600 at 604 and the case of USMAN VS. YUSULF (2018) All
FWLR (Pt 950) 1714 at 1741, paras. D-E.
14. It is also the
contention of counsel that the claimant’s contract of employment with the
defendants flows with statutory flavour which in any case attract reinstatement
with other accruing financial benefits
and promotion in line with the labour Act S. 11 (1)- (15) and
International Best practice. An employment enjoys statutory flavour when the
contract of service is governed or regulated by statute or where the conditions
of services are contained in the regulation derived from statutory provisions.
In the circumstance it invests the employee with legal status higher than the
ordinary master/servant relationship. In support of this position counsel
relied on the Supreme Court case of COMPTROLLER GENERAL OF CUSTOMS & 3 ORS.
VS. COMPTROLLER ABDULLAHI B. GUSAU (2017) all FWLR (pt911) 422 at 437.
15. Counsel
maintained that the claimant has proved his case before this Honourable Court
the status of his employment relationship with the defendants as same command
statutory flavour which has laid down procedures for its termination and a
breach of it render the termination void ab initio. In the instant case where the Claimant
termination was in flagrant breach of the procedure but base on frivolous and
baseless allegations with lack of proof as same encapsulated into two judgments
of courts in his favour, this court is left with no better option but to upheld
the case of the claimant and grant his prayers as contained in paragraphs 25
(i) - (xiii) of the statement of facts. On this submission counsel relied on
the case of COMPTROLLER GENERAL OF CUSTOMS &3ORS. VS GUSAU (Supra) held 10
(P 455, Para G.).
16. In concluding his
submission on issue ‘a’ counsel urged the court to find and hold that Claimant
employment contained statutory flavour and the termination of his employment by
the defendants is in flagrant breach of the rules and procedures requiring
termination of employment with statutory flavour and this Honourable Court is
left with no option in consonance with exhibits A and B, than to set aside the
purported termination of Claimant employment and order for his reinstatement to
his employment with all accrued financial benefits and promotions in line with
the labour Act S.11 (1)- (15) and resolved this issue in favour of the Claimant.
17. Issue “b” Whether
this Honourable Court has jurisdiction to enter judgment against the defendants
in default and same valid and final. Counsel in arguing this issue submitted that
this Honourable Court has the requisite jurisdiction to proceed to hear the
Claimant case and enter judgment in default of pleadings as well be valid and
final like in the instant case where defendants flagrantly neglect and
deliberately refuse to defend the claim against them. In support of this
submission counsel relied on Order 35 Rules 4 of the National Industrial Court
(civil procedures) Rules 2017 (as amended).
18. Counsel continued
his submission that a default judgment is one given in default of appearance or
pleadings against a defendant or plaintiff in a cross action, whose name does
appear as such defendant or plaintiff in the records of the trial. Where the
defendant left the case of the plaintiff unanswered, even though he has not
defaulted in carrying out any order of the court, then the judgment is one on
the merit. To support this submission counsel relied on the case of SKY BANK
PLC VS. P.I. ANOLUE & SONS LTD and ANR. (2018) All FWLR (Pt. 942) 48, at
843, where the court outlined the circumstances which will lead to default
judgment and judgment and final to includes:
(a)
Where the defendant failed to enter appearance
at all by filing a memorandum of
appearance
(b)
Where the defendant filed appearance but
failed to file pleadings within time at all.
(c)
Where parties have filed pleading but the
defendant is absent on the date of hearing without any explanation, the Court
may hear the case and give judgment for the Plaintiff.
19. According to
counsel the case of the Claimant in this circumstance fall within the purview
of the first condition where the defendant failed to enter appearance neither
filed pleadings in response to the claimant claim and did not at all enter a
memorandum of appearance in spite of number of hearing notices served on them
which left the court with an irresistible conclusion that the there is no
defence to the Claimant claim. The court is empowered to proceed on the
claimant case and enter judgment based on the evidence of the claimant before
the Court and the judgment is final.
20. Counsel submitted
that the basis for which a default judgment can be entered against a defendant
is where it is proof that defendant in an action has been duly served with the originating
process of Court and failed to enter an appearance either filed a defence or
response to the claim against him, the Court can exercise a jurisdiction and
enter default judgment in favour of the Claimant Claim and it is final
judgment. To support this submission counsel relied on the Supreme Court case
of FIDELITY BANK PLC VS M.T TABORA & 3ORS. (2019) All FWLR (Pt. 975) 885 at
894.
21. It is also the
submission of counsel that in the instant case, the Clamant filed and served
the defendants the originating process of this Court including series of
hearing notices before Claimant proceeded therein with leave of Court to proof
his case against the defendants. Hence this Honourable Court from every
justification is to enter judgment in favour of the Claimant base on the
evidence on records in proof of the claimant’s case. Counsel urged the court to
so hold in the interest of justice and resolve this issue in favour of the
Claimant.
22. In concluding his
submission counsel submitted that the claimant has sufficiently proved his case
as required by law to entitle him to judgment in his favour. Counsel urged the
court to find and hold that Claimant is entitled to the judgment of this
Honourable Court in consonance with his evidence as proof and enter judgment as
per Claimant claim in paragraph 25 of the statement of claim.
COURT’S
DECISION:
23. I have considered
the processes filed in this suit, the evidence led by the claimant at the trial
as well as the final written address and oral submission of counsel for the
claimant.
24. It is clear to me
that the defendants in this suit failed and neglected to defend this suit as
they failed to file defence as required by law. This means the court is only
availed of the case of the claimant.
25. As pointed out earlier the 3rd Defendant had filed a counter
affidavit in opposition to the originating summons commencing this suit.
However, none of the defendants filed defence when the originating summons was
converted to complaint. They failed and neglected to file response to the statement
of facts filed by the claimant on the order of the court converting the
originating summons to complaint. The defendants also failed to appear in court
in defence of this suit, this was despite the numerous hearing notices served
on them. Thus, this suit was not depended as the defendants abandoned the
matter. The natural consequence of failure or neglect to file statement of
defence in answer to the claimant’s pleadings is that issues have not been
joined and by the ordinary rules of pleading, the allegations are taken as
admitted and stand unchallenged so long as they disclose cause of action. See Okoebor v. Police Council (2003) 12 NWLR
(Pt.834) 444.
26. The failure by
the defendants to file statement of defence in answer to the pleading of the
claimants, they are deemed to have admitted the claims or reliefs in the
statement of facts. The action of the defendants in refusing to file defence
may warrant entry of judgment on the strength of the claim of the claimant.
But, it is not in all cases where the defendants have failed to file defence
that the claimants would be entitled to judgment against the defendant. The
peculiar facts of the case are the determining factor to be taken into
consideration by the court. A court should not enter judgment in default of
defence where there are reliefs seeking for declarations as in this case. Albeit,
it is the rule of pleading that which is not denied is deemed to have been
admitted. This means where a claimant filed statement of facts and the
defendant did not file statement of defence in answer thereto, he clearly, will
be deemed to have admitted the statement of claim, leaving the trial court with
the authority to peremptorily enter judgment for the claimant without hearing
evidence. However, in law to every general rule there is exception(s). The
exception to this rule is where the claimant is seeking for declaratory
reliefs. By law, a claimant seeking for declaratory reliefs must prove his case
on the strength of his evidence, not on the weakness of the defence of the
defendant. See Okereke v. Umahi &
ors [2016] LPELR-40035(SC) and Nyesom
v. Peterside & ors [2016] LPELR-40036(SC); and a
declaratory relief is never granted on the basis of admission or default of
pleading. See Bulet International Nig
Ltd v. Dr Omonike Olaniyi & anor [2017] Vol 6 - 12 MJSC (Pt. III) 6. The claimant’s
case being for declarations must succeed on the strength of his case and not on
admission or failure to file defence.
27. However, I note
from the pleadings and evidence before the court as shown by exhibits A and B,
the reliefs being sought by the claimant were the reliefs subject of the decisions
in exhibits A and B. This means that the case of the claimant had been dealt with
as per the decisions in exhibits A and B. This has made the case of the
claimant to amount to abuse of court process or caught up by the doctrine of
res judicator.
28. The question that
needs to be answered is whether this court can at this stage appropriately
consider issue of abuse of court process or res judicator as the case may be without
calling on the parties to address the court on the issue of abuse more
particularly when none of the parties has raised the issue.
29. Generally, on no
account should a court of law raise an issue suo motu which is not in the
contemplation of parties or their counsel in their pleadings before the court and
proceed to resolve it without affording the parties or their counsel the
opportunity of addressing the court on the issue so raised. This principle of
law is in tandem with the fundamental right to fair hearing enshrined
under section 36 of the Constitution of the Federal Republic of Nigeria,
1999 (as amended). Thus, where in the course of composing its judgment,
the court discovers an important issue that was not addressed by the
parties at the time of the hearing, it is duty bound to re-open the
proceedings and invite the parties to address it on the discovered issue before
it decides the issue. See Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Cole v.
Martins (1968) SCNLR 215; Ifezue v. Mbadugha (1984) 1 SCNLR 247; Nigerian Tobacco Co. Ltd v. Agunanne (1995) 5 NWLR (Pt. 397) 541; African Continental Seaways Ltd. v. N. D.R. & G.W. Ltd. (1977) 5 SC 235; Leaders & Co. Ltd. v. Bamaiyi (2010) 18 NWLR
(Pt. 1225)
329; Comptor Commercial & Ind. S.P.R. Ltd. v. Ogun State Water Corp . (2002) 9 NWLR
(Pt. 773) 629.
30. However, it is not
in all circumstances that raising an issue by a court suo motu and
the court deciding the same without calling on parties to address it, that is
fatal to a judgment based on the issue raised suo motu. Like most legal
principles, it admits of exceptions. So, when an issue is raised suo motu, the
parties should be heard before a decision is reached on the issue. That is what
procedural fairness entails. In certain circumstances there would be no need to
call on counsel to address the court on an issue raised suo motu by the court. The Supreme Court and court of appeal have in numerous
cases given catalogue of exceptions. Thus in IDACHABA &
ORS V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2021) LPELR-53081(SC), it
was held that:-
"Finally, I must strongly warn here that
it is not an irrevocable principle that a Court cannot raise an issue suo motu.
The issue the Appellants' learned Counsel allegedly contends that the lower
Court raised suo motu was an issue of jurisdiction of the trial Court to
entertain the claims of the Appellants. The issue having been pleaded and
jurisdictional, the lower Court was free and right to so raise it suo motu. In
fact, this matter was laid to rest, Per OLABODE RHODES-VIVOUR, JSC in OMOKUWAJO
V. FRN (2013) LPELR-20184(SC) (PP. 37-38, PARAS. F-D), when he held that: The
need to give the parties a hearing when a judge raises an issue on his own
motion or suo motu would not be necessary if: (a) the issue relates to the
Court's own jurisdiction. (b) both parties are/were not aware or ignored a
statute which may have bearing on the case. That is to say where by virtue of
statutory provision, the judge is expected to take judicial notice. See Section
73 of the Evidence Act. (c) when on the face of the record, serious questions
of the fairness of the proceedings is evident.
31. See also the cases of AKINGBULUGBE V. NIROWI (2023) 11 NWLR
(Pt. 1895) 339; ANGADI V. P.D.P. &
ORS (2018)15 NWLR (PT. 1641) 1; PERSONS,
NAMES UNKNOWN V. SAHRIS INT’L LTD (2019) 13 NWLR (PT. 1689) 203; and OMONIYI V. ALABI (2015) 6 NWLR (PT.
1456) 572.
32. In the case of OGAR & ORS V. IGBE & ORS (2019)
9 NWLR (Pt.1678) 534, it was held:-
There is this
misconception that in ALL cases where the court, at any stage, finds that an
action is manifestly incompetent either as regards competence, jurisdiction or
by operation of a statute it cannot on its own initiative or suo motu put an end to it without
hearing the parties. English Courts, holding on to the principle that lithe
(sic) consent of the parties cannot give a court jurisdiction which it does not
otherwise possess, II (sic) have held that a court is not only entitled, but
bound, to put an end to proceedings if at any stage and by any means it becomes
manifest that they are incompetent; and that it can do so on its own
initiative, even though the parties have consented to such void action ...
In Effiom v.
Cross River State Independent Electoral Commission, Tabai, JSC, relying on
Tukurv. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 and tacitly
accepting this principle, states that in some special circumstances the court
can raise an issue of law or jurisdiction suo motu and without hearing the
parties, decide on it. He however qualifies it; holding that the principle that
the court ought not to raise an issue suo motu and decide upon it without
giving the parties an opportunity to be heard on it applies mainly to issues of
fact. In any case, the appellant who complains that the court below raised an
issue suo motu and decided upon it without giving the parties an opportunity to
be heard on it, must go further to show that the failure to hear him on the
point occasioned some miscarriage of justice.
33. Given the above trite position of the law, I shall
now consider having regard to the pleading, exhibits tendered and evidence of
the claimant in this suit, whether this suit is not caught by the doctrine of
abuse of judicial process or the claimant estopped from re-litigating the
issues that have previously been decided.
34. The reliefs being sought by the claimant in
this suit have been reproduced in the earlier part of this judgment. Some of
the documents tendered in evidence in proof of the case of the claimant are
exhibits A and B. In exhibit A the claimant was defendant before the Chief
Magistrate Court and the 1st defendant in this case was the
prosecutor in that case. In exhibit B, the claimant in this case was claimant
in that case, the 1st defendant was defendant in that case. A
careful perusal of the reliefs sought by the claimant in this case is dependent
on exhibits A and B.
35. There is no doubt the reliefs being sought
have been granted in exhibits A and B. it is patently clear in exhibit A an
order was made for reinstatement of the claimant back to his job. There is no
evidence before me that this order has been appealed against or set aside on
appeal. And in exhibit B, the discharge of claimant constitute a discharge and
acquittal of charge against him. Striking
out of the charge against the claimant was declared to amount to discharge and
acquittal. It is instructive to note that the order made as per exhibit B was
based on the two issues submitted by the claimant for determination. The issues
as captured in exhibit B, as follows:-
a.
Whether the striking
out of charge no. MOD/67C/2007 and his discharge therefrom, by the chief magistrate’s
court of cross river state sitting in Obudu
on the 28/6/2010 does not amount to a discharge and acquittal in the
circumstances.
b.
Whether in the
absence of any other criminal charge brought against him (claimant) he is not
entitled to reinstatement to the police force.
36.
It is clear to me
the issues submitted in the case at hand bordering on reinstatement of claimant
has been determined in exhibits A and B. the issues having been based on same
issues in this case constitute res judicator or estoppel.
37. The expression “res
judicata” means “a thing adjudicated”; a thing judicially acted upon or
decided; a thing or matter sewed by judgment. It came out of the original
expression “res adjudicate”. The
principle enshrined in res judicata is derived from the “maxim nemo debet bis uexari si constet
curiae quod sit pro una et eadem causa which when literally translated
means: no man ought to be twice vexed, if it is proved to the court that it is
for one and the same cause - Oshoboja
v. Dada (2009) 18 NWLR (Pt. 1172) 188, Yakubu v. Ajaokuta
Steel Co. Ltd. (2010) 21 NWLR (Pt. 1177) 167, Eyo v. Okpa
(2010) 6 NWLR (Pt. 1191) 611, Makun v. Federal
University of Technology, Minna (2011) 18 NWLR (Pt. 1278) 190. Estoppel per rem
judicatam postulates that if an action is brought and the merits of the
question arising there from between the parties be discussed and a final
judgment of a court of competent jurisdiction is handed down over the parties
and the subject matter thereto, any person whatsoever, as against the other
person, is estopped in any subsequent litigation
from disputing or questioning such decision on the merits whether it be used as
the foundation of an action, or relied upon as a bar to any claim - Yoye v. Olubode (1974) 10 SC209, Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126, Dokubo v. Omoni (1999)
8 NWLR (Pt. 616) 647, Odinigi v. Oyeleke (2001)
6NWLR (Pt. 708) 12.
38. By the doctrine of res
judicata, once a dispute or matter had been finally and judicially
pronounced upon or determined by a court of competent jurisdiction, neither of
the parties thereto nor their privies can subsequently be allowed to
re-litigate such a matter in court. A judicial decision properly handed down is
conclusive until reversed by a superior court and its veracity is not open to
challenge nor can it be contradicted. In other words, the rule of estoppel per rem judicatam requires
that where a final decision” is given by a court of competent jurisdiction, the
parties thereto cannot be heard to contradict that decision in any subsequent
litigation between them respecting the same subject matter. As a plea, the
decision operates as a bar to subsequent litigation, and as evidence, it is
conclusive between the parties to it. Once it is found that the question is
caught by estoppel per rem judicatam,
there the matter lies. The term derives its force from public policy which says
that there must be an end to litigation; it enures to the interest of the
society if litigation is brought to finality interest rei publicae ut sit finis litzum. The principle
underlying the plea is for common good that none shall be twice vexed for one
and the same cause. So conclusive and important is estoppel per rem judicatam that the party affected by it is not
allowed to plead against it or to call evidence to contradict it; once a matter
has been decided between two parties by a competent court of law, that matter
must never be again open to litigation between them. Estoppel per rem
judicatam is of two categories and they are:
39. Cause of action estoppel
which occurs where the cause of action is merged in the judgment; that is
transit in res judicatam. On
this principle of law, once it appears that the same cause of action was held
to lie (or not to lie) in a final judgment between the same parties who are
litigating in the same capacity, that is the end of the matter. It precludes a
party to an action from asserting or denying, as against the other party, the
existence of a particular cause of action, the nonexistence or existence of which has been determined by a court of competent
jurisdiction in a previous litigation between the same parties.
40. Issue estoppel which occurs where an issue had earlier on been adjudicated
upon by a court of competent jurisdiction and the same issue comes incidentally
in question in any subsequent proceedings between the parties. The rule is that
once one or more issues have been raised in a cause of action and distinctly
determined or resolved between the same parties in a court of competent
jurisdiction, then, as a general rule, neither party is allowed to re-litigate
that or those decided issues all over again in another action between the same parties
on the same issues.
41. The court in
determining whether the issues, the subject matter of the
two actions and the parties are the same, the court is allowed to examine the
previous case including the decision rendered. The court is as well entitled to
look at the originating preceding in the case being considered or any other
relevant facts to discover what was in issue in the previous case and the case
at hand. It is entirely a question of fact. See Agbasi v. Obi (1998) 2 NWLR (Pt. 536) 1,Okukuje v. Akwido
(2001) 3 NWLR (Pt. 700) 261, Bruce-Akumngio v. Harry
(2001) 11 NWLR (Pt. 723) 88, Adone v. Ikebudu
(2001) 14 NWLR (Pt.733) 385.
42.
It is clear to me
that exhibits A and B, ruling of Chief Magistrate and judgment of this court
were final decisions and that they were delivered by a court of competent
jurisdiction and neither is it in dispute that the subject matter that led to
both decisions were linked to issue of employment of the claimant. It is also
not in dispute that the present claimant is a party in the two previous
decisions in exhibits A and B.
43.
There is no doubt that issue of res judicator did
not only goes to stops on points upon which the court was actually required by
the parties to form an opinion, and pronounce a judgment, but to every point
which properly belonged to the subject matter of litigation and which the
parties exercising reasonable diligence might have brought forward. Thus, it is
irrelevant that the claimant has not included some of the reliefs in this case
in his previous suit at the time of formulating his case. See Yakubu V Ajakuota
steel Rolling Co. ltd (supra).
44.
It is settled
that the styling, restyling or mis-styling of parties in actions should not
prevent a court from examining the proceedings in issue and determining whether
the parties in the present suit are the same or privies to the parties in an
earlier suit and thus caught by the doctrine of estoppel per rem judicatam. See Bassey v. Ekanem (2001) 1 NWLR (Pt. 694) 360, Polyvalent (Nig.) Ltd.
v. Akinbote (2010) 8 NWLR (Pt. 1197) 506, Nikagbatse v. Opuye
(2010) 14 NWLR (Pt. 1213) 50. The inclusion of 2nd and 3rd defendants in
this suit is not enough to render nugatory the application of the doctrine of
estoppel to the claimant’s suit. Therefore, for me to now assume jurisdiction
to determine the present suit it will amount to sitting on appeal on the decision
of this court. The law does not permit doing so.
45.
Part of issues
presented for determination before this court are reinstatement of claimant
back to his job and declaring striking of charge against him as discharge and
acquittal, all these issues have been dealt with in exhibits A and B,
respectively. This means the claimant is barred from raising or making same
claim before another court or this court in respect of the reliefs that have
been previously granted.
46. It is trite that once it is made clear that the self-same question
was substantially in issue in the two suits, the precise form in which either
suit is brought or the fact that the claimant in the one case was the defendant
in the other is immaterial, estoppel subsists between the parties. See Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1, Oyerogba v. Olaopa (1998)
13 NWLR (Pt. 583) 509, Oseni v. Oniyide
(1999) 13 NWLR(Pt. 634) 258, Onyeabuchi v.
Independent National Electoral Commission (2002) 8 NWLR (Pt. 769) 417. Additionally, looking at the facts relied on in exhibit B, it cannot be contested
that the same evidence would be required to prove the claims in the case at
hand. The courts have stated that one of the criteria of identity of two suits
in considering res judicata is
the enquiry whether the same evidence would support both. See Madukolu v. Nkemdilim (1962)2 SCNLR
341, Coker v. Olukoga (1994) 2 NWLR (Pt. 329) 648, Njoku v. Dikibo
(1998) 1 NWLR (Pt. 534) 496, Alapo v. Agbokere(2010) 8 NWLR (Pt. 1198) 30.
47.
From all I have
been saying above, it is my conclusion that the decisions in exhibits A and B, operate
to bar the claimant in this suit from re-litigating his case. Since issues
raised have been disposed of.
48. Another angle to
which the claimant’s action can be viewed is the issue of abuse of court
process. The term "abuse of court process" is an elusive and a
polymorphous precept in the wide domain of litigation. It exhibits variegated
forms and is disobedient to a single definition. It is a mantra in
adjudication, that has the effect of scuttling the life span of an action. A
law lord, Nnaemeka Agu, JSC, captured, graphically, the purport and hall marks
of the term in the celebrated case of Saraki v. Kotoye (1992) 11/12 SCNJ (Pt.1)
26 at 48-49 in these illuminating words:
The concept of abuse of judicial process is imprecise. It involves
circumstances and situations of infinite variety and conditions. Its one common
feature is the improper use of the judicial process by a party in litigation to
interfere with the due administration of justice.
49. It is recognized
that the abuse of the process may be in both a proper or improper use of the
judicial process in litigation. This will arise in instituting a multiplicity
of actions on the same subject matter against the same opponent on the same
issues. The abuse lies in the multiplicity and manner of the exercise of the
right, rather than the exercise of the right, per se
50. These
all-encompassing features of abuse of court process have been, severally,
re-echoed by the apex court in a slew of decided authorities. See CBN v. Ahmed
(2001) 11 NWLR (Pt.724) 369; Ntuks v. NPA (2007) 13 NWLR (Pt.1051) 392;
Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt.1224) 1; Dingyadi v. INEC (No.2)
(2011) 10 NWLR (Pt.1255) 347; Ogboru v. Uduaghan (2011) 17 NWLR (Pt.1277) 727;
Barigha v. PDP (2013) 6 NWLR (Pt.1360) 451; Igbeke v. Okadigbo (2013) 12 NWLR
(Pt.1368) 225; Ogboru v. Uduaghan (2013) 12 NWLR (Pt.1370) 33; Denton-West v.
Jack (2013) 15 NWLR (Pt.1377) 205.
51. It is deducible
from the elastic nature of abuse of judicial process, that there are no hard
and fast rules in determining the absence or presence of it in any action. Put
simply, a court is enjoined by law to examine each case, predicated on its
facts and circumstances, in order to ascertain if it showcases an abuse of
court process or not. See Waziri v. Gumel (2012) 9 NWLR (Pt.1304) 185. On this
score, the factual antecedents of each case have to be married with the
negative elements of abuse of court process.
52. Now, abuse of process is a concept; it is an
idea or a general notion formed by generalization from particular examples. It
is a concept that is imprecise. It involves circumstances and situations of
infinite variety and conditions. In Messrs NV Scheep & anor V. The MV 'S
Araz' & anor (2000) 15 NWLR (Pt 691) 622 at page 664 Karibi-Whyte JSC said
of the concept thus:
"The legal concept of the abuse of the
judicial process or the abuse of the procedure of the court is very wide. The
scope and content of the circumstances of the material facts and conduct, which
will result in such abuse, are infinite in variety. It does not appear that the
category can be closed. New unforeseen conduct from the stratagem of the
plaintiffs can give rise to the abuse. An abuse may be constituted through a
proper and legitimate conduct in bringing actions even in the exercise of an
established right in the manner or time of instituting actions. It may be
constituted by irregularities in the pursuit of actions.
In law, abuse of court process is a term generally applied to a process or proceeding which is wanting in bona fide and is frivolous, vexatious or oppressive. It can also mean abuse of legal procedure or improper use of legal process of a court and can manifest itself in so many ways. However, it always involves some deliberateness or wilful desire to misuse or pervert the system of administration of justice or improper use the judicial process to the irritation or annoyance of another party. See Saraki v. Kotoye (1992) 9 NWLR (264) 156 at 188; Ohitirin v. Agaka (1998) 6 NWLR (554) 366 at 375; Okafor v Attorney General, Anambra State (1991) 6 NWLR (200) 659; Adegbanke v. Ojelabi
54.
The law is also
settled that the issue of abuse of court process is an issue of
jurisdiction. This is because once a court is satisfied that any proceeding
before it is an abuse of court process, it has the power, indeed the duty to
dismiss it. In other words, once a court is satisfied that the proceeding
before it amounts to abuse of process, it has the right and the duty to invoke
its coercive powers to punish the party which is in abuse of its process. Such
power is often exercisable by a dismissal of the action which constitutes the
abuse. See C.B.N. v. Ahmed Orubo v Aiyeleru (1993) 3 NWLR (280) 126; Onyeabuch v
INEC (2002) 8 NWLR (769) 417; Olawore v. Olanrewaju (1998) 1 NWLR (534) 436.
As pointed out earlier, abuse of court process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. The terms "abuse of court process" and "abuse of judicial process" are one and the same thing, abuse of court process simply means that the process of the court has not been used bona fide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and the efficient and effective administration of justice. See Sheriff v. PDP
abuse of court process constitutes a fundamental defect, the effect of which will lead to a dismissal of the process, which is abusive. In other words, once the court is satisfied that a proceeding before it amounts to an abuse of court process, it has the right to invoke its coercive powers to punish the party in abuse of its process, and quite often, that power is exercised by a dismissal of the action, which constitutes the abuse. The court reserves the prerogative and the inherent jurisdiction to protect itself from an abuse of its process and any case which is an abuse must go under the hammer so as to halt the drift created by the abuse. See Dingyadi v. INEC (No.2) (2010) 18 NWLR (Pt. 1224) 154; Arubo v. Aiyeleru (1993) 3; Nwosu v. P.D.P.
court has a duty to jealously guard and protect its process from abuse and therefore will not allow a litigant to abuse its process. see TSA Ind. Ltd. v. F.B.N. Plc (No. 1) Onalaja v. Oshinubi 12 WACA 503; The Vessel Saint Roland v. Osinloye
61. the claimant’s case before this Honourable
Court is that he was wrongly dismissed from his employment with the defendants
without notice or instrument terminating his employment, and defendants
abruptly stopped his salaries and other financial allowances accruing to his
employment on account of a frivolous allegations and in the course of his
service with the defendants in keeping peace at the then Sankwala/Tivs of Benue
State war. This resulted to his formal trial in the Chief Magistrate Court
Obudu on charge No. MOD/67c/2007 and was discharged by the Chief magistrate
court due to lack of diligent prosecution. Thus, why the Claimant approached
this Honourable Court in Suit No. NICN/CA/01/2018 and judgment was further
handed down in his favour but defendants till date are yet to reinstate
claimant back to his employment which resulted to this action suit No.
NICN/CA/23/2022. Counsel also submitted that in the instant case the Claimant
termination was in flagrant breach of the procedure based on frivolous and
baseless allegations with lack of proof as same encapsulated into two judgments
of courts in his favour therefore this court is left with no better option but
to upheld the case of the claimant and grant his prayers as contained in
paragraphs 25 (i) - (xiii) of the statement of facts.
It is manifestly clear that the claimant brought this action in an attempt to challenge wrongful termination as well as to enforce the decisions in exhibits A and B, where an order for his reinstatement was made. Therefore, t
63. special procedure
is prescribed for the enforcement of a particular right or remedy,
non-compliance with or departure from such a procedure is fatal to the
enforcement of the remedy. To put it in another way where the law has laid down
a procedure, mode or manner for doing a thing, there is no other acceptable
method of doing it. The courts are duty bound to ensure that the particular
mode or method prescribed by law are complied with. Failure to comply with the
prescribed procedure would deprive the thing done of any potency or effect and
it will amount to a nullity. In the instant case, the use of a general form of
complaint by the claimant to enforce or execute decision, judgement or order of
the court that is not declaratory in nature is not known to law. The claimant’s
rejection to employ the provisions of the Sheriff and Civil Process Act and
rules of court to enforce or execute the decision, judgment or order made in
exhibits A and B, is in total disregard of the law and it should not be
condoned and it has rendered the steps taken void and of no effect. See Jack v.
University of Agriculture, Makurdi (2004) 5 NWLR
(Pt. 865) 208; Tukur v. Taraba State Govt.(1997) 6 NWLR
(Pt. 510) 549; Dongtoe v. Civil Service Commission (2001) 9
NWLR
(Pt. 717) 132; Saude v. Abdullahi (1989) 4 NWLR
(Pt. 116) 387;; Mobil Producing (Nig.) Unltd. v. Johnson
(2018) 14 NWLR
(Pt. 1639) 329; MPPP v. I.N.E.C. (2015) 18 ; Gusau v. Lawal Ajayi v. S.E.C.
64. It is imperative
that in seeking to enforce or execute decision, judgment or order of court, the
procedure laid down in the Sheriff and Civil Process Act and rules of court are
strictly complied with. See Buhari v. Yusuf (2003) 14 NWLR (Pt.841)
446.
65. A court of law
must, as a matter of compulsion, do justice by procedure laid down by the law
and indeed the Constitution which is the grundnorm of Nigerian body polity. In
the case at hand the claimant’s claim seeking to enforce or execute exhibits A
and B, cannot be allowed by the court in the manner the claimant has approached
the court.
As also pointed out earlier the claimant apart from seeking to enforce decision of courts, is also alleging that termination of his employment was wrongful. It is trite law that a claimant seeking a declaration that the termination of his appointment is wrongful, unlawful and unconstitutional being contrary to his contract of employment, must plead and prove the following material facts: (a) that he is an employee of the defendant; (b)the terms and conditions of his appointment; and (c) the circumstances under which his appointment can be terminated, or he can be retired. These are essential particulars of a claimant’s pleading and the foundation of the action without which his claim cannot be sustained. See Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506; Shell B.P. Petroleum Dev. Co. Ltd. v. Onasanya (1976) 6 SC 89; NITEL v. Oshodin (1999) 8 NWLR (Pt.616) 528; Mobil Producing Nig. Unlimited v. Asuah
In determining disputes arising from the determination of a contract of employment, the court must confine itself to the plain words and meaning which can be derived from the terms of the contract of service between the parties which provides for their rights and obligations. The contract of employment binds the parties and they cannot go out of it in search of more favourable terms. See Fedpoly, Idah v. Egbeke
68. contract of employment is the foundation, the platform and pivot
upon which a case for wrongful or unlawful termination of employment by an
employee against an employer is completely founded, predicated and its success
or failure is entirely dependent on the terms and conditions agreed to by the
parties in their contract for the employment. see Ideh v. Univ. of Ilorin (1994) 3 NWLR (Pt.330) 81; Ibama v. S.P.D.C.N.
Ltd. (2005) 17 NWLR (Pt. 954) 364;Imoloame v. W.A.E.C.
(1992) 9 NWLR (Pt. 265) 303; UBN Ltd. v. Edet (1991)
1 NWLR (Pt. 167) 369; Amodu v. Amode
(1990) 5NWLR (Pt. 150) 356; U.B.N. Ltd. v. Ozigi
(1994) 3 NWLR (Pt.333) 385; Layade v. Panalphina
World Transp. Ltd. (1996) 7 SCNJ1; (1996) 6 NWLR (Pt. 456) 544; (1996) 6 NWLR (Pt. 456) 544;.Angel Spinning &
Dyeing Ltd. v. Ajah (2000) FWLR (Pt. 23) 1332,(2000) 13 NWLR (Pt. 685) 532.
69.
Ordinarily, the
terms and conditions to regulate and govern an employment for services are
embodied and contained in the letter offering the appointment or employment
from the Employer addressed to the Employee which if accepted freely and
unconditionally by him, will constitute a valid, binding and legally
enforceable agreement or contract of the employment between them. It is
therefore, the free and unqualified acceptance of all the terms and conditions
set out in the letter of appointment for the employment of the employee that
forms the basis for the existence of legally binding and enforceable
relationship between him and the employer. In any case or legal action in which
any of the parties claims breach of any of the terms or conditions agreed to by
the parties as set out in the letter of appointment, the letter of appointment
becomes sine qua non to the
maintenance and success of the action. In the case of Katto v. C.B.N. (1999) 5 SC 1 at 12;(1999) 6 NWLR (Pt. 607) 390 Uwaifo, J.S.C, stated that:-
“It is the law that when an employee complains that his employment
has been wrongly terminated he has onus, just, to place before the court the
terms of the contract of employment and, second to prove in what matter the
said terms were breached by the employer. As the contract of service is the
bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the
terms thereof.”
70. In the case at hand the claimant is alleging that his employment
was wrongfully terminated in the circumstances the onus is on him to establish
that his termination by the defendants is not in accordance with the terms and
conditions of contract of service between them, it is for the claimant to plead
and prove the conditions of service regulating the contract of
service in question. The claimant having not pleaded and proved terms and
conditions governing his employment he is not entitled to declaration that his
termination was wrongful. See Amodu v. Amode (1990) 5 NWLR (Pt. 150)356 @ 370, Iyere v. Bendel
B.F.F.M. Ltd. (supra), also reported in (2008) 18NWLR (Pt. 1119) 300; Olalekan v. Management
Board U.M.T.H.(2017) 11 ACELR 199 (CA); Raji v. O.A.U. (2018) 12 ACELR182; Ekunola v. C.B.N. (2016) ACELR 48 (SC); (2013) 15 NWLR(Pt. 1377) 224; Okomu Oil Palm Co. Ltd.
v. Iserhienrhien (2001) 3SC 140; (2001) 6 NWLR (Pt. 710) 660; Iwuchukwu v. Nwizu
(1994)7 NWLR (Pt. 357) 379.
71. In this case the claimant who approached this court with the
allegation of wrongful or unlawful determination of his employment by the
defendants; his employer, and claimed declaratory reliefs, in the main, and
damages, bore the initial statutory burden of evidential proof by dint of the provision
of sections 131, 132 and 133(1) of the Evidence Act, 2011. Failure by a
claimant, to discharge the initial evidential burden of proof of the claims he
made would result in the dismissal of the claims by the court. See: Tori v. National Park Services of Nigeria
(2011) 5 -7 MJSC (Pt. I) 153; (2011) 13NWLR (Pt. 1264) 365; Purification Tech. Nig.
Ltd. v. Jubril (2012)6 - 7 MJSC 188; (2012) 18 NWLR (Pt. 1331) 109; Orlu v. Gogo-Abite
(2010) 8 NWLR (Pt. 1196) 307; Ishola v. Folorunso
(2010)13 NWLR (Pt. 1210) 169. The failure of the claimant to establish terms and conditions of
his service is fatal to his claim. See Morohunfola
v. Kwara State Coll. of Tech. (1990) 4 NWLR(Pt. 145) 506; Aji V
Chad basin (2017) .
72. In this case, the claimant did not
complain of breach of any specific condition of his service or any part of the
Civil Service Rule(s), which the defendants failed to observe, or to comply
with in terminating his appointment. See Nasarawa
State University v. Nekere (2018) LPELR 44550; Kwara State Judicial Service Commission v.
Tolani (2019) 7 NWLR
(Pt.1671) 382; Ajuzie v. First Bank of Nigeria Plc (2016)
LPELR 40459;.Morohunfola v. Kwara State College of Technology(1990) 4 NWLR
(Pt.145) 506; Amodu v.
Amode (1990) 5 NWLR
(Pt.150) 356; Katto v. CBN (1999) 6 NWLR (Pt.607)
390; Iwuchukwu v. Nwizu
(1994) 7 NWLR (Pt.357)
379;
73.
It is settled law that for a party to be awarded any relief by a court of
law, that party must not only plead with particularity but also prove by
credible and convincing evidence that he is indeed entitled to the relief he
seeks. A court of law has no jurisdiction to grant to a party that which he has
not asked for. See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; Okoko v. Dakolo (2006)
14 NWLR (Pt. 1000) 401; Ayanboye
v. Balogun (1990) 5 NWLR (Pt. 151) 392; Ige
v. Olunloyo (1984) 1 SCNLR 158;
Atser v. Gachi (1997) 6 NWLR (Pt. 570) 609; Ladoke
v. Olobayo (1992) 8 NWLR (Pt. 261) 605; Awosile
v. Sotunbo (1992) 5 NWLR (Pt. 243) 514.
74. claim that is vague and lacks certainty is no claim
at all. In the instant case, reliefs 8, 9 and 10 the claimant did not state
with certainty the quantum of his salaries and full financial benefits. These
reliefs were vague, uncertain, unascertainable and lacking in particulars and
proof by evidence must fail. See University of Jos
v Dr. M. C. Ikegwuoha (2013) 8 NWLR (PT.1360) 478.
Furthermore, claim as enjoined by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC).