Where claimant proofs his case with credible evidence, the onus shifts (1)

THE Appellant having led credible relevant evidence in proof of his pleadings, that there was no re-organisation in the Civil Service. The evidence led by Appellant has rebutted the contention of the Respondents on that point.

Therefore the onus is on the Respondent to establish by credible evidence, that they carried out an exercise of re-organisation according to law. So held the Court Of Appeal, holden at Lagos in a unanimous leading judgment delivered by His Lordship, Fatima Omoro Akinbami, JCA with his learned brothers, Rita Nosakhare Pemu and Chinwe Eugenia Iyizoba JJCA concurring while allowing the appeal.

The parties were represented by Adewale Lawal Esq, for Appellant while Emmanuel Akande Esq. for Respondent. The facts are as contained in the body of the judgment.

This is an Appeal against the judgment of the High Court of Lagos State in Suit No.ID/2018/1999 delivered on the 30th day of October, 2008. The claimant/Appellant was a Civil Servant in the employment of Lagos State Civil Services and was the Director of Veterinary Service at the Ministry of Agriculture and Co-operative until 16th July 1999 when he was summarily retired from services.

The Appellant being dissatisfied with his retirement filed a writ of Summon and Statement of Claim. The Appellant instituted this action at the High Court of Lagos State challenging his retirement by the Defendants and his claim is as set out in paragraph 20 of the further amended Statement of Claim. The Defendant filed their 2nd Amended Statement of Defence and Counter claim.

The learned Trial judge on the 30th October 2008 dismissed the Claimants claim and granted the Counter – claim. The Appellant being dissatisfied with the said judgment filed this appeal praying this Court of Appeal to reverse the judgment of the High Court.

The Appellants formulated nine issues to wit: (a) Whether the Claimant/Appellant pleaded that his position as Director of Veterinary Service at the Ministry of Agriculture and Co-operative has been abolished. (b) Whether the Defendants have discharged the onus on them that the Appellant was retired on an exercise of re-organization. (c) Whether the learned Trial judge was right was right in holding that the 2nd Defendant could retire the Appellant pursuant to Rule 02905 of the Lagos State Civil Service Rule without initiating proceedings in that respect.

In their Brief Argument the Respondents formulated two issues for determination:- Whether the retirement of the Appellant due to re-organization exercise was validly done and within the ambit of law.

In his Brief of Argument duly filed in this Court, Appellant contended that onus of proving re-organization was on the Respondents. See the case of Psychiatric Hospital Management Board vs. Ejitgba 2000 11 NWLR Pt. 671 page 154 at 160 para e.

The law is very clear in civil cases,that the burden of proving the existence or non-existence of a fact lies on the party who would lose if no evidence is given in support of his case.

The Appellant referred to his pleadings that his position as Director of Veterinary Services has not been abolished. Reference was made to paragraph 15 of the further Amended Statement of claim, and paragraph 8b of the Reply to Amended Statement of Defence, and Counter-Claim.

The conclusion reached by the learned trial judge was that the Respondents have proved that the retirement was due to re- organization. Judgment of the Court at Page 84 lines 11-13 of the Record does not flow from evidence placed before the Court, in my respectful view.

Appellant stated that the learned Trial judge disregarded the totality of his counsel’s submissions and proceeded to accept the ipse-dixit of the Respondents, without proof. That this is perverse and absolutely wrong.

Appellant argued Issue 3 (1c and d) together, submitting that the learned Trial judge fell into error by interpreting Rule 02905 of the Civil Service Rules, to hold that the Respondents could summarily retire him. That Rule 02905 states that the Commission should initiate or undertake proceedings in that behalf, in such manner as it shall think it fit.

That the important word is initiate or undertake PROCEESINGS. It does not lead itself to summarily retire a Public Officer whose retirement age is 60 years. And that the parties admit that the retirement was done summarily and that the Claimant was not heard. It was reiterated by Appellant that if his retirement is void, then he should complete his term.

He contended that the learned trial judge was in error not to have granted the declaration, as there was complete evidence before him on the issue. The Appellant claimed N15, 014,184.81.The Amended Statement of Defence did not contradict Appellant that he was not examined on his claim and his evidence thereto remains unchallenged.

He urged the Court to accept the evidence. See case of Obembe vs. Wembod Estate 1977 5 SC (Reprint 1970) at page 83 Odulaja vs. Hadded 1973 IISC (reprint) page 216 at 221.

In his evidence the Claimant/Appellant alternatively asked for an order directing the Respondents to calculate and pay to him his arrears of salary/bank pay allowance and entitlements gratuity from 16th July 1999 when he was retired until March 2007 when he will be 60 years and also his pension.

He submitted that this will meet the Justice of the case. On Issue 3 (i and g) Appellant submitted that the judge in the Lower Court misconstrued and misapplied the statement of Oputa JSC in Dosumu vs. A.G Lagos State 1989 3 NWLR Pt. III Pg. 552 when she said Supreme Court has ruled that Courts must always support government policy and decisions.

Appellant argued that the judge fell in error in holding that the Supreme Court said that the Court must always support government policy. That his statement is strange and persevere, a colossal abdication of responsibility to settle dispute dispassionately between parties whether government or individuals with reference to the law and without fear or favour.

And the trial judge’s view makes a mockery of the principle of separation of powers and attempt to place the judiciary under the Executive.