Godwin Okereocha V. Minister of Commerce and Tourism & Anor (2000)
LawGlobal-Hub Lead Judgment Report
ODUYEMI, J.C.A.
By a writ of summons issued out by the Registry of the High Court of the Federal Capital Territory, Abuja on 3rd April, 1991, the plaintiff claimed the following reliefs:-
“(a) A declaration that his purported dismissal by the first defendant was invalid, null, void and of no effect whatsoever.
(b) A declaration that the plaintiff is and continues to be an employee of the first defendant.
(c) An order for the immediate reinstatement of the plaintiff by the defendant.
(d) A declaration that the plaintiff is entitled to his accumulative salaries.
(e) An order for the immediate promotion of the plaintiff by the 1st defendant”.
A statement of claim accompanied the writ.
Plaintiff subsequently filed a further amended statement of claim in which the reliefs claimed were repeated.
The defendants filed a statement of defence but led no evidence in support at the trial.
Plaintiff gave evidence and called one witness. Plaintiff also tendered 7 exhibits; Exhibits P1-P7.
In his judgment delivered on 5th August, 1992, the learned trial Judge agreed with learned counsel for the plaintiff as follows:-
(i) Since the pleadings of defendants had been bare without supporting evidence, such pleadings are deemed abandoned.
(ii) The plaintiff’s evidence remained unchallenged and uncontroverted.
However, the learned trial Judge felt unable to give judgment for the plaintiff because plaintiff, who asked for a declaratory judgment and reliefs had failed to prove his case to merit the declaration and reliefs sought.
In particular, the learned trial Judge held that plaintiff himself had stated in his evidence that the original cause of his dismissal from service and the subsequent conversion to termination of appointment was the numerous queries that were given to him but failed to tender any such queries and his replies to the queries to enable the court decide whether he had been unfairly dismissed from employment or had had his appointment unfairly terminated as plaintiff claimed.
The learned trial Judge concluded thus:-
“In Exhibit P4, the plaintiff had claimed that he was a victim of witch-hunting by his former superior officer. He had also stated therein that he had attached copies of the query he was given.
Unfortunately however, those copies are not attached to Exhibit P4 as claimed. It is in the light of the foregoing that I feel with great anxiety that the case put forward by the plaintiff leaves a lot to be desired and therefore does not deserve a favourable exercise of the court’s discretionary power. The plaintiff’s case fails and is accordingly dismissed”.
It is against that judgment that the plaintiff has appealed to this court. In the lower court, the plaintiff filed one ground of appeal with particulars thus:-
“1. The learned trial Judge erred in law when he held that a declaratory judgment cannot be granted on admission in the pleadings.
PARTICULARS
(a) The plaintiff’s case was not premised only on the uncontroverted and unchallenged averments in his pleadings but also on the uncontroverted and unchallenged evidence adduced in support of the said unchallenged pleadings.
(b) Additional grounds of appeal will be filed upon receipt of the record of proceedings”.
With the leave of this court plaintiff/appellant filed further particulars (b)to ground 1 and two other grounds with their particulars thus:
“Proposed Additional Grounds of Appeal
Particulars of error for ground one
(b) Judgment can be entered in default of pleadings pursuant to the Civil Procedure Rules of the High Court of the F.C.T.
Grounds 2.
The learned trial Judge erred in law when he refused to address his mind to the issue of fair hearing that was not given to the plaintiff/appellant.
Particulars
a. Section 31 of the 1979 constitution of the Federal Republic of Nigeria guarantees that every person be given a fair hearing.
b. The committee set up by the 1st defendant refused to invite the plaintiff/appellant to it before dismissing and subsequently converting the dismissal to termination or given any opportunity to appear before it and be heard.
Ground 3
The learned trial Judge erred in law when he concluded that the plaintiff has not discharged the onus of proof on him under section 136 of the Evidence Act.
Particulars
a. The standard or the burden of proof in civil cases is a minimal one based on the balance of probabilities and not proof beyond reasonable doubt.
b. The unchallenged and uncontroverted pleadings and evidence led by the plaintiff in proof of his case is good enough in civil cases.
The appellant and respondents subsequently by leave of this court respectively filed and exchanged briefs of arguments out of time.
Appellant in his brief identified 3 issues for determination in this appeal as follows:-
“1. Whether or not a declaratory judgment can be granted on admission in the pleadings.
- Whether or not the court below addresses its mind to the issue of fair hearing and whether such failure occasioned a miscarriage of justice.
- Whether proof in civil cases is on the balance of probabilities or proof beyond reasonable doubt”.
The respondents in their brief adopted the issues formulated by the appellant in his brief but treats, in the respondent’s brief, four issues which, with respect, hardly have any bearing on the issues formulated by the appellant or on the grounds of appeal.
The matter came up for hearing in this court on 10th May, 2000. Appellant’s counsel, W.Y.Mamman, Esq. was present. The respondents were not represented by counsel. However, the court was satisfied from its records that on 28th March, 2000 when this appeal was adjourned to 10th May, 2000, Mrs. K. O. Okoli of counsel for the respondents was in court and took the date of adjournment. In fact, it was on that day, 28th March, 2000 that Mrs. Okoli moved the motion of respondents filed on 20th May, 1999 for extension of time within which to file the respondent’s brief and to deem the brief filed as duly filed and served. As it was not opposed by Mr. Mamman on behalf of the applicant, the motion was granted.
Accordingly, in spite of the absence of the respondent’s counsel in court on 10th May, 2000, this court invoked its powers in accordance with Order 3 rules 3 of the Rules as amended, to hear the appeal in the absence of counsel who had filed the respondent’s brief.
Mr. Mamman of counsel for the appellant merely adopted appellant’s brief and urged the court to allow the appeal.
In respect of Issue 1 i.e., whether or not a declaratory judgment can be granted on admission in the pleadings, it is appellant’s argument that since there was no evidence in support of the averments in the statement of defence, the defence is deemed abandoned. Accordingly, the statement of claim together with the evidence in support remained unchallenged, and uncontroverted, the learned trial court ought to have exercised its discretion judiciously and judicially in favour of granting the declaration which was sought by the plaintiff/appellant. It is the contention of appellant that it is only in land matters that the plaintiff is required to succeed on the strength of his own case and not on the weakness of the defendant’s case. He relies on Imah v. Okogbe (1993) 12 SCNJ 173,(1993) 9 NWLR (pt.3 16) 159.
In the respondent’s brief, it is the argument of respondents that the defence in the pleading challenged the statement of claim and there was no reply filed in challenge thereof.
With respect, the statement in the judgment of the learned trial Judge in his judgment which is made the issue No. I in this appeal was quoted out of con. The learned trial Judge went on to say in the next sentence that the plaintiff is required not only to have proved his case but also the justice of the case must merit the declaration sought more than any other remedy.
Learned trial Judge then considered the evidence of plaintiff and concluded that the plaintiff having failed to tender in court the annexure he claimed to have attached to exhibit P4, there was no evidence before him on which he could determine the claim in that Exhibit that plaintiff was a victim of witch-hunting as claimed by plaintiff. The plaintiff had claimed that his dismissal and the subsequent termination of his appointment by the defendants was caused by the numerous queries that were given to him out of malice by his superior officer but failed to tender copies of such queries and copies of his respective replies thereto in court to enable court decide whether plaintiff had been unfairly treated.
In his particulars under ground 1 of the appeal, plaintiff relied on Order 27 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 1990 which deals with default in filing pleadings by a defendant for his contention that judgment could have been entered in his favour in default of pleadings by the defendant.
With respect, pleadings were filed by the defendant in the lower court. Defendant’s failure was for non-attendance of court at the trial. Order 27 was therefore not the applicable rule but Order 37.
Order 37 rule 7 provides that if, when a trial is called on, the plaintiff appears and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.
There is, in effect, a distinction between the consequence of failure to file pleadings and the consequence of failure to attend court to give evidence in support of the averments in the pleadings of a party to the suit. In this case, the defendants are deemed to have abandoned the averments in the statement of defence. That does not relieve the plaintiff on whom the burden of proof lay at the close of the pleadings from the duty of opening his case and proving his claim.
It is my interpretation of the Rules that whereas, a plaintiff may, in the ordinary course of events be given judgment without adducing evidence if no defence was filed and served, the same would not apply to a plaintiff in respect of a claim to which a defence was filed even if the defence was deemed abandoned at the trial because the defendant failed to produce evidence in support of the averments in the statement of defence unless that defence was a wholesale admission of plaintiff’s claim.
It was plaintiff/appellant who averred that his dismissal which was later converted to termination of appointment was invalid, null, void and of no effect; that the queries given him by his superior officer were motivated by malice on the part of the superior officer. As that was not admitted in the defence filed, issues were joined on plaintiff’s claim.
By Ss. 136 and 137 of the Evidence Act, Cap.112 LFN, 1990 the burden of proof of the invalidity of the dismissal was on the plaintiff and if no evidence was called by either side, judgment would be given against him.
Similarly, Order 24 rule 5 of the lower court provides that no action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the court may make binding declarations of right whether any consequential relief is or could be claimed or not.
The provision of the rules of court does not mean that a party would be entitled to a declaratory order even if he failed to prove his entitlement to the right which he claims.
By virtue of Ss. 136 and 137 of the Evidence Act, a plaintiff seeking a declaratory order has a duty to establish first his legal or equitable right thereto. It is only after the establishment by the plaintiff of such right that the issue of the exercise of the discretion by the court whether there are grounds which would militate against the grant of the order or the relief sought could be considered.
Though, a plaintiff may have established facts which would normally entitle him in the normal course of events to the order or relief sought, the court may in the exercise of its discretion, refuse to grant a declaration if, for instance, the plaintiff has not come to court with clean hands or, if the justice of the matter would require that the declaration be not granted.In this case, the learned trial Judge found that the plaintiff has not even discharged the burden imposed upon him, by the state of the pleadings before trial, to entitle him to a declaration.
This was a case of abandonment of the averments in the pleading. The plaintiff is still under an obligation in accordance with order 37 rule 7 of the Civil Procedure Rules of the lower court to prove his case. This, he has failed to satisfy the lower court upon.
I am in agreement with the learned trial Judge that failure of the plaintiff to tender before the lower court, copies of the queries given to plaintiff and his replies thereto were necessary to enable the court to satisfy itself that the action of the superior officer who issued the queries or his consideration of the replies thereto were motivated by malice as alleged. I also agree with the learned trial Judge that failure to tender such documents was fatal to the plaintiff’s case and justified the lower court in refusing to exercise its discretion in favour of plaintiff.
In the event, I resolve Issue 1 in favour of respondents. Issue 2 raises the question whether the lower court addressed its mind to the issue of fair hearing and whether such failure occasioned a miscarriage of justice.
In his summary of the evidence, the learned trial Judge in his judgment put the facts as given in evidence thus:-
“After his dismissal from service, PW1 (i.e. Plaintiff) said he petitioned and was informed that a committee was being set up to look into the matter but that the committee did not invite him but went ahead to recommend that his dismissal be converted to termination”.
The words in brackets are supplied by me for clarity.
If this is what the plaintiff relied upon for his allegation of breach of section 33 by the committee, he was in error. The evidence of plaintiff without disclosing the source of his information or calling direct evidence to establish the source is hearsay and inadmissible under S.77 of the Evidence Act. The learned trial Judge was therefore entitled to ignore it in his judgment even if it had erroneously entered the records of the court.
Even if it was evidence which was properly admitted, plaintiff has not given any evidence that the committee took oral evidence from others while it failed to call plaintiff to give oral evidence. No rule of administrative procedure obliges an administrative tribunal in such circumstance to take oral evidence from parties before coming to its conclusion or a determination of the issue before it if such decision could be reached by consideration of documentary evidence. It is only where a tribunal calls and takes a form of evidence from a party to a dispute and does not give the other party an opportunity of providing that form of evidence that the tribunal may be said to be in breach of the rule of natural justice to give both parties a ‘fair hearing’ or be in breach of section 33 of the Constitution of the Federal Republic of Nigeria, 1979.
In the circumstance, I hold that plaintiff failed to give, before the lower court, satisfactory evidence showing that the committee which considered plaintiff’s petition had a duty to call on plaintiff or any of the other parties involved to give oral evidence before it. There could therefore be no question of failure by the learned trial Judge to consider the issue of fair hearing.
It was not properly raised.
I resolve Issue 2 against the plaintiff/appellant.
Issue 3 poses the question whether in civil cases proof is on the balance of probabilities or proof beyond reasonable doubt. The appellant in his brief contends that section 136 of the Evidence Act which the learned trial Judge relies upon is inapplicable in this case but that S.137 of the Act is the applicable principle this, being a civil action.
Appellant also contends that since his evidence was uncontroverted and unchallenged, the weight of evidence to be attached in a civil case is that which is based on the balance of probabilities; that an application of the principle of burden of proof stipulated in S.136 of the Evidence Act, to this case, had worked injustice on the plaintiff/appellant and ought not to have been applied.
If anything can be gathered from the brief of respondents that is relevant to this 3rd issue postulated by the appellant, it is the submission in Issue 4 of respondent’s brief that the appellant has failed to prove his case in the court below even without evidence from the respondent and that S. 136 of the Evidence Act was aptly applied by the lower court.
I have already considered the effects of both sections 136 and 137 of the Evidence Act on this civil suit and applied them. There is nothing in either section to make either section inapplicable to civil cases or this civil suit.
Furthermore, the mere fact that one party offered no evidence in an action does not entitle the evidence given by the other party to be given any weight whatever the number of witnesses called, if in fact such evidence adduced by the party who gave evidence has no weight at all. It all boils down to the fact that no weight is found at the end of the trial by the learned trial Judge on either side of the imaginary scale of Justice.
In the event, the law as stipulated by S. 136 of the Evidence Act is that no evidence had been put on either side of the scale. The party who would lose the case, according to the state of the pleadings before trial, as in this case was the plaintiff. He had a duty to show that his dismissal which was later reduced to termination of his appointment was invalid. I am in agreement with the learned trial Judge that plaintiff had failed to produce evidence to justify his averment that the dismissal or termination was invalid.
In the event, I resolve Issue 3 as formulated by the plaintiff against the appellant.
Having resolved all the issues posed for determination in this appeal against the appellant, it is my view that the appeal lacks merit. It is therefore dismissed.
I make no order as to costs.
Other Citations: (2000)LCN/0879(CA)
