Comrade Confidence Amah v Comrade Kiri Mohammed & Anor.

• Judge: Honourable Justice Sanusi Kado
• Judgment Date: 18 May 2020
• Respondent: Comrade Kiri Mohammed & Anor.
• Appellant: Comrade Confidence Amah
• Docket Number: NICN/ABJ/170/16
• Counsel: Stephen Apeh, Esq; for the Claimant N. A. Idakwo, Esq; for the Defendants.
• Court: National Industrial Court (Nigeria)

1. The Claimant commenced this action by his general form of complaint dated 12/5/2016 and filed on the same day. By his amended complaint and amended statement of facts, dated 21/11/2017 and filed on the same day, sought the following reliefs against the Defendants. They are:-
1. A Declaration that the Claimant’s expulsion from the 2nd Defendant (Union) via a letter dated 14th July 2016 and title “Expulsion from the Union for your continued Anti-Union activities” is unlawful, unconstitutional and null and void.
2. A Declaration that the refusal of the 1st Defendant to relinquish his position as the President of the 2nd Defendant even after he is due to retire from Jigawa State Civil Service is fraudulent, egocentric, unconscionable and unconstitutional.
3. A Declaration that any acts carried out by the 1st Defendant after his due retirement from the Jigawa State Civil Service, is illegal and unconstitutional.
4. A Declaration that the 1st Defendant is not qualified to earn honorariums and other allowances from the coffers of the 2nd Defendant (Union) in the capacity of the President of the 2nd Defendant after he is due to retire from the Jigawa State Civil Service.
5. An Order of this Honourable Court nullifying the client’s expulsion from the 2nd Defendant.
6. An order of this Honourable Court compelling the 1st Defendant to produce the following before this Court (a) Gazette of first employment letter and (b) Gazette of confirmation of first employment to ascertain that actual date of employment of the 1st Defendant.
7. An Order of this Honourable Court directing or compelling the 1st Defendant to immediately refund to the coffers of the 2nd Defendant all sums collected in forms of honorarium and allowances as the President of the 2nd Defendant, since the date of his retirement from the Jigawa State Civil Service till when he will relinquish position of President of the 2nd Defendant.
8. Any other order(s) as this Honourable Court may deem fit to order in the circumstances.
2. The Claimant accompanied his amended statement of facts with witness statement on oath and photocopies of documents to be relied on at the trial. The joint statement of defence of the Defendants was dated 9/4/2018 and filed on the same day. The joint statement of defence was accompanied by witness statement on oath and photocopies of documents to be relied on at the trial. In response to the joint statement of defence, the Claimant filed a reply dated 25/4/2018.
3. On 29th of October 2019, the Claimant testified in proof of his case as CW1. After adopting his witness statements on oath, he tendered three documents in evidence marked as exhibits CLA1-3, CLB1-2 and CLC1-6.
4. The case of the Claimant as can be gleaned from the pleading, witness statement on oath and oral testimony is to the effect that due constitutional breaches in the affairs of the 2nd Defendant, the Claimant as a financial member of the 2nd Defendant wrote a letter of complaint to the Defendants regarding the breaches. But, instead of addressing the issues raised, he was unduly expelled from the 2nd Defendant. The Claimant avers that his expulsion was because of the letter he wrote and institution of this suit. The letter of expulsion dated 14/7/2016, was tendered and admitted in evidence as exhibit CLA1-3.
5. The Claimant stated that the essence of his expulsion was because he stated in his letter that the 1st Defendant has retired from the Jigawa Civil Service which is an open secret in the Union. By the constitution of the 2nd Defendant only public/civil servant are eligible to be members of the 2nd Defendant. The 1st Defendant who is long overdue to retire from Jigawa State Civil Service, parading himself as President of the 2nd Defendant is contrary to the provisions of Rule 4 (a) (i). The 1st Defendant has refused to make open his actual date of retirement so as to justify his unlawful continuous stay as the president the 2nd Defendant.
6. CASE OF THE DEFENDANTS.
7. One comrade Ndako the General Secretary of the 2nd Defendant, testified for the Defendants as DW1. After identifying his witness statement on oath, he adopted the said statement on oath as his evidence. DW1 in the course of giving evidence in chief tendered eleven documents in evidence and they were admitted in evidence and marked accordingly.
8. The case of the Defendants is that the Claimant was a member of the 2nd Defendant until his duly expulsion by the 43rd State Executive Council meeting held on 14/7/2016. Prior to the Claimant’s expulsion he was under suspension for engaging in anti-union activities targeted at disparaging the 2nd Defendant. The letter of suspension dated 30/7/2015 was tendered and admitted in evidence as exhibit E.
9. The 1st Defendant was president of the 2nd Defendant by a valid election of the members of the union in accordance with the constitution of the union, until the conclusion of his tenure as president in October 2017, the 2nd Defendant held its national delegate conference on the 24th and 25th January 2018 and have elected a new leadership to man the affairs of 2nd Defendant. The 1st Defendant was not due to retire in year 2016 as alleged. The Defendant was validly elected president of 2nd Defendant and his tenure to expire in 2017. The 1st Defendant will become due for retirement in 2018 after having served for 35 years in the Jigawa State Civil Service. The 1st Defendant’s letter of appointment was tendered and admitted in evidence and marked as exhibit C. The Defendants upon receipt of Claimant’s complaint authorized that the matter be investigated.
10. It was averred that the Claimant’s suspension and expulsion was a result of his attack on the Rivers State members of the 2nd Defendant and subsequently the Claimant’s involvement in the forgery of names and signatures of members including letter headed papers of the union. The Claimant’s expulsion was done at the state executive council level acting on the report of a committee headed by comrade Fidelis Ologhodien, which report recommended the expulsion of the Claimant and the said report was deliberated upon in the state executive council meeting of the 2nd Defendant in Rivers State. The report was tendered in evidence and admitted in evidence as exhibit D1-5.
11. Upon receipt of the Claimant’s complaint against the 1st Defendant, the 2nd Defendant set up a committee by the Rivers State chapter to investigate the allegation against the 1st Defendant and a letter of invitation dated 29/6/2016 was served on the Claimant requesting the Claimant to substantiate his claims against the 1st Defendant. The Claimant never honoured the invitation, he equally ignored reminder. The invitation and reminder were tendered in evidence and were admitted in evidence and marked as exhibits G and H, respectively.
12. The expulsion of the Claimant followed due process after investigation and subsequent report of the allegation of the Claimant against the Defendants which he was properly expelled.
13. THE SUBMISSION OF THE DEFENDANTS.
14. ISSUES FOR DETERMINATION
15. The Defendants submitted two issues for determination thus:
I. “Whether the Claimant has proved his case on balance of probability to warrant the grant on the reliefs sought”.

II. “Whether the present suit has become Academic and therefore the reliefs sought have become spent”.

16. ISSUE ONE; “Whether the Claimant has proved his case on the balance of probability to warrant the grant of the reliefs sought”.
17. N. A. Idakwo, Esq; counsel for the Defendants in arguing issue one, contended that the Claimant has failed woefully to prove the allegations leveled against the Defendants in this case. The gravamen of the case of the Claimant being that he was wrongly expelled consequent upon his serving a written complaint that the 2nd Defendant has become due to retire in the year 2016; he contends that despite having retired, the 1st Defendant has continued to man the affairs of the 2nd Defendant and wrongly earned honorarium and other allowances. Counsel argued that all the allegations are sweeping statement, as there is no evidence led in proof of same, it is therefore fated to fail as well as all the reliefs claimed in this suit.
18. Counsel contended that is it trite law that the onus of proof lies on the party who alleged and failure to establish his case is fatal to the suit. On this contention counsel referred the court to the cases of UNION BANK OF NIGERIA LTD V. PROF A. OZIGI ( 1994) 3 NWLR PT 333, PG 385; OKUBULE V. OYAGBOLA (1990) 6 NWLR PT 301, PG 539; NIGERIA MARITIME SERVICES LTD V. AFOLABI (1978) 2 SC 79, 84.; HIGH GRADE MARITIME SERVICES LTD V. FIRST BANK OF NIGERIA LTD (1991) 1 NWLR PT 167, PG 290; DURU V. NWOSU (1989) 4 NWLR PT 113 PG 24; MOGAJI V. ODUFIN (1978) 4 SC 91; OKIRI V. IFEAGHA (2001) FWLR PT 73, 140, RATIO 3 & 4; AARE V. ADISA ( 1976) NMLR 304.
19. “The burden of proving a particular fact is on the party who assert it, this onus however do not remain static in Civil cases, it shifts from side to side where necessary and the onus of adducing further evidence is on the person who will fail if such evidence has not been adduced and if he fails to prove the assertion the proper order which the court should make is one dismissing his claims. In the instant case, as the respondent is the person who asserted the rate of interest applicable to loan granted to him by the applicant was 11% per annum then the onus was on him to prove the assertion.’’
20. It is the submission of counsel that the Claimant’s evidence on record has not proved any allegation of retirement nor has it proved that his expulsion is unlawful (predicated on his complaint letter contained in Exhibit CLC 1 to 6 before the Court). The legal burden of Proof rests on the Claimant and has never shifted to the Defendant all through this trial. In support of this point counsel placed reliance on the case of OMOTOSHO V. BON LTD (2006) 9 NWLR PT 986, 573 @ 590 – 591; (2011) LPELR – CA/PH/10/2003, that where...