CORAM

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JUSTICE B. B. KANYIP, PHD, OFR, bpa PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

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PARTIES

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Otokpa Ezekiel

CLAIMANT(S) 

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1.  Nigerian Security and Civil Defence Corps

2.  The Commandant-General Nigerian Security and Civil Defence Corps

DEFENDANTS 

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AREA(S) OF LAW

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EMPLOYMENT LAW, PUBLIC SERVICE, INTERDICTION, HALF SALARY, DISCIPLINE, STATUTORY INTERPRETATION, EVIDENCE, AFFIDAVIT PRACTICE, PRACTICE AND PROCEDURE, SPECIAL DAMAGES, PLEADINGS, ORIGINATING SUMMONS, UNDEFENDED SUIT

 

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SUMMARY OF FACTS

The claimant, Otokpa Ezekiel, is an officer of the Nigerian Security and Civil Defence Corps (NSCDC). On 22 August 2016, the 2nd defendant placed him on interdiction on half salary vide an official letter with Reference No. NSCDE/NHQ/38052/Vol.I/79, pending the determination of a criminal case already before the Federal High Court, Abuja. Paragraph 2 of the said letter expressly stated: “On this note, you are therefore placed on interdiction with half salary pending the determination of the case in Court.”

The claimant remained on interdiction for over seven years without the case being determined. From August 2021, the defendants stopped paying him his half monthly salary to which he was entitled during the period of interdiction, notwithstanding that he remained on interdiction and had not been dismissed or otherwise separated from service. No evidence was placed before the Court by the defendants showing that the criminal case had been determined, nor that permission for extension of the interdiction beyond three months had been sought and obtained from the relevant Board as required under the applicable Guidelines.

The claimant filed this suit on 19 June 2024 by way of originating summons, seeking declarations that the interdiction could not lawfully last more than three months in the first instance without the requisite permission for extension; that he was entitled to half salary while on interdiction; and that the defendants’ failure to pay his half salary was capricious, arbitrary, and a gross violation of the Public Service Rules and the applicable Guidelines. He also sought an order compelling the defendants to compute and pay him all outstanding half salaries from August 2021 to date.

The defendants did not enter appearance, file any defence processes, or appear in Court throughout the hearing. On 23 June 2025, just days before judgment, the defendants filed a motion on notice for extension of time to file their defence processes, but when the matter came up for judgment on 2 July 2025, they were still not represented. The motion was struck out at the instance of the claimant’s counsel, and the case proceeded as an undefended matter.

 

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HELD

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The Court held that the mere failure of the defendants to defend the suit did not entitle the claimant to automatic judgment, as the claimant was still bound by the minimal evidence rule to prove his case to the satisfaction of the Court. On the affidavit in support, the Court struck out paragraphs 18, 23, 24 and 25 for offending section 115 of the Evidence Act 2011, being legal arguments, conclusions, and speculative statements rather than statements of fact.

The Court further found that the claimant failed to frontload the Guidelines for Appointment, Promotion, Discipline and General Purpose issued by the Civil Defence, Fire, Immigration and Prisons (Now Correctional) Services Board (Revised July 2013) which formed the very foundation of his case, rendering his reliefs (1), (2), and (3) incapable of proof. Relief (1) was additionally found to be self-defeating as drafted, as it sought a declaration that the interdiction could last more than three months rather than the opposite. Question (3) was treated as abandoned.

On question (2) and reliefs (2) and (4) relating to payment of half salary, the Court held that the half salary being claimed was special damage that had to be specifically pleaded and strictly proved, but the claimant failed to plead or prove the quantum of his salary and therefore the half salary due to him, rendering the reliefs ungrantable. The claimant’s case was dismissed in its entirety. No order as to costs was made.

 

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ISSUES

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1. Whether the interdiction of the claimant can be made to last more than three months in the first instance without obtaining the requisite permission for its extension under the Public Service Rules and the applicable Guidelines?

2. Whether the claimant is entitled to be paid half of his salary while on interdiction on half salary under the Public Service Rules?

3. Whether the failure of the defendants to pay the claimant his half salary while on interdiction was capricious, arbitrary, and without basis?

 

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RATIONES DECIDENDI

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UNDEFENDED SUIT – FAILURE OF DEFENDANT TO APPEAR OR DEFEND DOES NOT ENTITLE CLAIMANT TO AUTOMATIC JUDGMENT AND MINIMAL EVIDENCE RULE STILL APPLIES

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“I indicated earlier that this suit is undefended. But this does not mean that thereby the claimant is entitled to a favorable verdict. The fact that the defendants did not enter appearance or file any defence process does not absolve the claimant from proving its case to the satisfaction of this Court, given the minimal evidence rule, which is that a claimant cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence before the trial court. See Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC, Mr Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69, Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247.” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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CONTENT OF AFFIDAVIT – PROHIBITION AGAINST SPECULATIVE, OPINIONATED, AND LEGAL ARGUMENT IN AFFIDAVIT UNDER SECTION 115 OF THE EVIDENCE ACT 2011

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“The law by section 115(1) and (2) of the Evidence Act 2011 is that an affidavit ‘shall contain only a statement of fact’ and ‘shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion’. This means that an opinion or speculation cannot be turned to a fact simply because it is in an affidavit.” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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INTERPRETATION OF LAWS AND DOCUMENTS IN AFFIDAVIT – EXCLUSIVE JUDICIAL FUNCTION NOT COMPETENTLY DEPOSED TO BY A WITNESS

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“A witness cannot interpret the law or a document. Interpretation/construction of laws and documents is within the exclusive preserve of the court. Mr Akindele Adedipe v. Oracle Software Nigeria Limited unreported Suit No. NICN/LA/214/2016, the judgment of which was delivered on 15th May 2019 at paragraph 32 held that ‘…the task of interpretation of laws and documents is a judicial function, not an executive one’; and Olapade Samuel Olatunwo Oyebola & ors v. FAAN unreported Suit No. NICN/LA/259/2013, the judgment for which was delivered on 20th May 2019 held that ‘…The interpretation of documents is not the function of a witness. It is a function of law meant for the Court’.” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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CONSEQUENCE OF INADMISSIBLE DEPOSITION IN AFFIDAVIT – STRIKING OUT OF OFFENDING PARAGRAPHS

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“In all, paragraphs 18, 23, 24 and 25 of the claimant’s affidavit in support offend section 115 of the Evidence Act 2011. By Mr Vincent Nosakhare Omoregbe v. Dr Anthonia Osa Osaosemwen Omoregbe [2024] LPELR-80070(CA), the consequence of an inadmissible deposition of an affidavit is the striking out of same from the affidavit. Accordingly, paragraphs 18, 23, 24 and 25 of the claimant’s affidavit in support are hereby struck out.” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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FAILURE TO FRONTLOAD KEY DOCUMENT – CENTRAL INSTRUMENT RELIED UPON IN ORIGINATING SUMMONS MUST BE PLACED BEFORE THE COURT AS EXHIBIT

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“The claimant made specific reference to the Guidelines for Appointment, Promotion, Discipline and General Purpose, issued by the Civil Defence, Fire, Immigration and Prisons (Now Correctional) Services Board (as revised in July, 2013) in questions (1) and (2) posed in the originating summons. The sad part is that the claimant did not frontload this document to the Court. How then is the Court expected to ascertain the truth of the claimant’s references to this document? The very foundation of the claimant’s case is hinged on this document as can be seen in the questions he posed to this Court.” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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COURT GRANTS ONLY RELIEFS CLAIMED AND AS ASKED – SELF-DEFEATING RELIEF NOT GRANTABLE

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“The law is that you get what you claim — it may be less, but certainly not more than what you asked for. Courts are enjoined to grant only reliefs that are asked for, and as asked. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47 and Nigerian Association of Medical and Dental Academics (NAMDA) v. National Universities Commission (NUC) & 2 ors unreported Suit No. NICN/ABJ/421/2024, the judgment of which was delivered on 8 May 2025. Courts are not carpenters to fix or repair the flaws of litigants. See Chief James Onyewuke v. Modu Sule [2011] LPELR-9084(CA).” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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SPECIAL DAMAGES – MUST BE SPECIFICALLY PLEADED AND STRICTLY PROVED BY CREDIBLE AND COMPELLING EVIDENCE

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“The law is clear that special damages must not only be specifically pleaded, they must be strictly proved by credible and compelling evidence. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) and UTC Nig. Plc v. Samuel Peters [2022] LPELR-57289(SC).” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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MONETARY CLAIMS IN LABOUR RELATIONS – BURDEN ON CLAIMANT TO PLEAD AND PROVE BOTH ENTITLEMENT AND QUANTUM

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“In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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WRITTEN ADDRESS – REQUIREMENT OF PROPER PARAGRAPHING AND SERIAL NUMBERING AND PROPER CITATION OF AUTHORITIES

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“In discussing issue (1), the claimant’s written address has two paragraphs labelled 3.02, three paragraphs labelled 3.03 and two paragraphs labelled 3.04. When Order 45 Rule 2(2) of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017) enjoins that written addresses are to be ‘set out in paragraphs and numbered serially’, I do not think that this is the type of confusing paragraphing and serial numbering that is enjoined.” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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USE OF THE WORD SHALL IN LEGISLATION – MANDATORY NATURE ADMITTING NO DISCRETION

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“The operative word used in the sub-rules is ‘shall’. That the word ‘shall’ used in a statute or Rules of Court is mandatory and admits no discretion whatsoever, citing Sanwo-Olu v. Awamaridi [2020] 11 NWLR (Pt. 1736) 458, Maitumbi v. Baraya [2017] 2 NWLR (Pt. 1550) 347 and Gilbert v. Opia & ors [2022] LPELR-56913(CA). That the word ‘shall’ is a word of command and it denotes direction, compulsion, a mandate, an obligation and gives no room for discretion.” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN (summarising and adopting the submission of claimant’s counsel)

 

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CLEAR AND UNAMBIGUOUS STATUTORY WORDS – EFFECT MUST BE GIVEN TO THEM IRRESPECTIVE OF HARSH OR INCONVENIENT RESULT

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“In the case of the claimant, the applicable guidelines is the ‘Guidelines for Appointment, Promotion, Discipline and General Purpose issued by the Civil Defence, Fire, Correctional and Immigration Service Board (Revised July 2013)’ which provides inter alia that: Under no condition should interdiction or suspension be made to last more than 3 months in the first instance. The permission of the Board shall be obtained where the need for extension arises. The claimant referred to Dangana & anor v. Usman & ors [2012] LPELR-7827(SC), which held that where the words of a statute are clear, unambiguous and unequivocally express the intention of the lawmakers, effect must be given to them irrespective of whether that produces a harsh or inconvenient result.” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN (summarising and adopting the submission of claimant’s counsel)

 

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STRATAGEM OF SEEKING DECLARATIONS WITHOUT PLEADING QUANTUM OF ENTITLEMENTS – PRACTICE DEPRECATED AS BYPASSING BURDEN OF PROOF AND CREATING ENFORCEMENT DIFFICULTIES

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“It is becoming fashionable for legal practitioners in this Court claiming employment entitlements of claimants in terms of emoluments to simply ask in general terms for declarations and orders that their emoluments be computed and paid by the employer without indicting what the emoluments are and their quantum. This they do as a shortcut to a verdict, and bypassing the burden of proof placed on them. By doing this, they do not have to prove as strictly required of them the quantum of what they ask for and how they arrived at it. This has placed additional and secondary burdens on the Court when judgments derived therefrom are sought to be enforced. New suits have to be filed in order to proof the quantum of what is the entitlement. This stratagem by legal practitioners is uncalled for and needs to be discouraged.” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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TERMS AND CONDITIONS OF EMPLOYMENT AS CENTRAL TO PROOF IN EMPLOYMENT CLAIMS – FAILURE TO PRODUCE GOVERNING INSTRUMENT FATAL TO CASE

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“Dr Esbra F. T. Blakes v. Niger Delta University [2022] LPELR-57303(CA) held that in the relationship of employee and employer, as it is between the claimant and the defendants in the instant case, the agreed terms and conditions of employment/appointment upon which the claims are made are central and crucial in the proof required by law. So, without the Guidelines for Appointment, Promotion, Discipline and General Purpose, how can the claimant prove and expect to get the reliefs he claims, which reliefs, especially reliefs (1), (2) and (3), actually recite the said document?” — Per B. B. Kanyip, PhD, OFR, bpa, President NICN

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended)

Revised Public Service Rules 2021 — Rules 100101, 100404(i)(iii)

Guidelines for Appointment, Promotion, Discipline and General Purpose issued by the Civil Defence, Fire, Immigration and Prisons (Now Correctional) Services Board (Revised July 2013) — Part VI Section 10(ii)

Nigerian Security and Civil Defence Corps Act

Evidence Act 2011 — section 115(1)(2)

National Industrial Court of Nigeria (Civil Procedure) Rules 2017 — Order 45 Rule 2(2)

 

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OTHER CITATIONS

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