Where claimant proofs his case with credible evidence, the onus shifts (2)

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.

Appellant submitted the from the totality of the evidence led the Lagos State Civil Service Rules and the law relating to the Appellant’s employment it is obvious that the Judgment of the Court is perverse and ought to be set aside. And from all the issues for determination in this suit the answers to them favour the Appellant as argued above.

It was urged upon this Court to grant the Appellant’s prayers as specifically set out in prayers 1,2,3,4 and 5 of the Further Amended Statement of Claim. Reference was made to Section 137 of the Evidence Act Cap E14 LFN 2004 as well as to section 135(i) of the Evidence Act which provides: “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he assert must prove that those facts exist’’.

Based on the above, Respondents contended that the Appellant must not only plead relevant facts to show that his retirement due to re-organisation was not validly done but he must also give credible evidence. That it is trite law that it is unnecessary to plead law, statute or sections thereof before reference can be placed on them.

However facts which are material and which will lead to the legal result sought to be relied on must be pleaded. Reference was made to the case of HYACINTA Anyawu vs. Robert A. Mbara & Anor. (1992) 5 NWLR (Pt.242) Page 386 at 398. Respondents therefore submitted that the evidence adduced at the Court below by the Appellant on his retirement being premised on re-organisation which under the Civil Service Rules can only occur when there is abolition of post goes to on issue.

It was therefore urged upon this Court to place no reliance on the said paragraph. But that the Respondents have discharged the onus of proof justifying the retirement of the Appellant referring to paragraph 13 and 14 of the Amended Statement of Defence.

And Paragraph 14 of the Statement of Defence dated 5th November 2002 states further: “Due to the re-organisation which is still an on-going exercise the Plaintiff’s retirement from the State Civil Service was approved with effect from 16th July 1999’’.

That the above averments formed the bedrock of Respondents only witness uncontradicted evidence of a mass shake-up of the Civil Service. It was urged upon this Court to uphold the decision of the learned Trial judge. Referring to this instant case the Appellant was retired based on re-organisation. The facts supporting this is stated in Exhibit ‘’P3’’.

Therefore Respondents contended that the Appellant’s retirement was validly done. That the Appellant’s counsel misconceived the law, when he posited that the Appellant’s post or position was not abolished.

He placed heavy reliance on Rule 02905 of the Civil Service Rule and submitted that the commission should initiate proceedings.

And that the learned Appellant’s counsel also failed to place before this Court fact which would show the breach of the Civil Service Rules by Respondents.

It was therefore submitted that the retirement of the Appellant due to re-organisation is valid in law. It was further reiterated by Respondent that the retirement of the Appellant was a policy decision of Government and it was urged upon this Court to support it.

He referred to the case of Dosumu vs. A.G. Lagos State (1984) 3 NWLR Pt. 3 Page 552. Respondents contended that the Appellant was not entitled to be heard before a decision could be reached by the Respondents. On the Counter-Claim Respondents contended that the judgment of the trial judge giving possession to the Respondent was not appealed against.

Therefore any argument canvassed on the issue should be discountenanced. The Respondents urged this Court to dismiss the Appeal. It is trite law that parties to an action are bound by the pleadings. Parties are to present the facts on which their action is based in the pleadings. The party who needs pronouncement of the Court, must lead evidence on his pleadings, to give it life in proof of the assertion, it wants to establish before the Court. Pleadings upon which no evidence has been led goes to no issue.

This point has been frequently emphasized in several judicial authorities of the Apex Court. It can be gleaned from Appellant’s pleadings that he pleaded in paragraph 8b of the Reply to Statement of Defence and Counter-Claim that the Veterinary Department has not been merged with any other department and till dated still has the position of Director of Veterinary Service as its headship. The Appellant’s in their pleadings placed before the Trial Court relevant facts upon which evidence was led before the Court.

The provision of Section 135(i) of the Evidence was complied with by the Appellant’s. The contention of the Respondent was adequately rebutted by the Appellant’s pleadings, wherein relevant facts were placed before the Trial Court that his purported retirement due to re-organisation, was not validly done.

Having carefully perused the pleadings of the parties I am unable to agree with Respondents counsel that parties admitted that Appellant was retired based on re-organisation. That is not deducible from the evidence before the Court. .

The main thrust of the Appellant’s grouse in this Appeal, is that he was not retired based on the appropriate valid law governing his terms of employment.

I am unable to agree with Respondents that Appellant did not give credible evidence, to show that his retirement due to re-organisation was not validly done. The Appellant pleaded that ‘’he is not of old age declining productivity or in ill-health and his position as the Director of Veterinary Service in the Lagos State Ministry of Agriculture and co-operative has been abolished, neither was his department merged with another one.

The Appellant gave evidence in support of his pleadings on the issue of abolition of his office as it relates to re-organisation being the reason for his retirement. 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-organiastion according to law.

On a careful study of regulation 02905, the contention of the Respondents is correct to the extent that the commission is empowered to retire officers as provided for therein.

Even though I agree with the strong argument canvassed that the commission, though empowered to retire officers it should initiate or undertake proceedings in the behalf in such manner as it shall think fit. The Appellant reiterated the point that proceedings had to be imitated by the commission.

It is clear from Regulation 02905, that it is a condition precedent that the commission, to validly and lawfully retire a Pensionable Officer of Appellant’s stature, the condition precedent must be complied with.

The summary retirement of the Appellant is ultra vires Regulation 02905, of the Lagos State Civil Service Rule. The contention of the Appellant is correct, in that this Rule 20905 is unavailable to the Respondent, who had already premised the retirement of the Appellant on re-organisation.

Consequently the burden on the Respondent is to show that the retirement vide the re-organisation, was done legally in consonance with the Civil Service Rules, and not on any other ground. This the Respondent have failed woefully to do.

The ordinary meaning of the Rules is that proceedings must be initiated. It is trite law that statutes must be given their ordinary simple and unambiguous meaning.

In this instant case, the interpretation give Rule 02905 offends the Principle of fair hearing which is enshrined in Section 36(2) of the constitution of the Federal Republic of Nigeria.

In Olaniyan vs. Unilag (Supra) Aniagolu JSC stated. “The procedure adopted by the council may be quickly convenient and time saving but dictate of natural justice demand that the legal principle of audi alterem partem must be obeyed no matter how cumbersome and inconvenient it may appear to the council’’.

The Appellant alluded to the facts canvassed in his written address before the lower Court, and same was not considered by the Lower Court. The Appellant also referred to his pleadings wherein prayer iv which prayed for a Declaration that the Plaintiffs employment as a Civil Servant subsists until March 2007, when the Plaintiff will be 60 years of age.

It was clearly shown by Appellant that he was not 60 years old when he was retired. The Respondents having contravened the law applicable to the Appellant’s terms of service, in retiring him prematurely, that exercise is null and void.

Therefore the Appellant’s employment still subsists. He cannot be removed from the office by any person during the period of the term except for misconduct or when the master or body or institution he is appointed to serve, dies or ceases to exist.

The conclusion that I reach in the instant case is that the retirement of the Appellant is void, and therefore he should complete his term. The learned Trial Judge from the pleadings and evidence before the Court, ought to have granted the declaration sought by the Appellant.

Unfortunately from the records I note that the Appellant Claimant is now over 60 years and ordinarily should have retired in March 2007 has since passed. The claim in the Appellant’s Statement of Claim succeeds.

I am in agreement with Appellant that from the totality of the evidence led, the Lagos State Civil Service Rules and the law relating to the Appellant employment, it is obvious that the judgment of the Court is perverse and the judgment of the learned trial judge is herby set aside.

The prayers of the Appellant as set out in prayer 1,2,3,4 and 5 of the Further Amended Statement of Claim are granted. The Counter Claim of Respondent was not proved according to law is the 7 days notice served on the Appellant was not tendered in Court.

Therefore the condition precedent to the commencement of recovery of premises must be strictly proved.

The appeal is allowed, the judgment of the Lower Court delivered on the 30th of October 2006 is set aside. The Appellant prayers 1,2,3,4 and 5 are granted. Also the judgment of the Court on the Counter Claim is set aside.