The leadership of the kogi state branch of the Judiciary Staff Union of Nigerian (JUSUN) wishes to unequivocally condemn and express our disappointment in Mrs. Folashade Arike Ayoade, the Secretary to the Kogi State Government (SSG), over the message contained in her reaction to our current position on the data capturing and table-payment policy of the Kogi State government.
We were shocked of her response in her letter dated 19th June, 2019 in which she found it difficult to understand our position on the issue of data capturing/pay parade exercise. We had rejected participation in the exercise following the declaration of the exercise as unconstitutional by the National Industrial Court in its judgement of 3rd June, 2019. But instead of complying with the order of the court, the SSG shockingly wrote in the said letter as follows:
“I have been directed to inform you that the said judgment was obtained without the knowledge and participation of 1st-5th defendants in the matter and thus qualify as a default judgment, which can upon application to the court be set aside.”
To us, nothing can be farther from the truth and nothing can be more mendacious! Even in our astonishment, we have been wondering why this government has a penchant for telling lies. The government will also stop at nothing in denying the obvious. Our questions are simple. Does this government have legal adviser at all? Where is the Attorney-General of Kogi state? Why is it so difficult for him to properly advise the governor on matters of law? Is he that ignorant and uninformed that he has serially been misleading the governor or is he serving personal pecuniary interests to milk the state of its scarce resources in the name of litigation?
The evidence that the 1st-5th defendants (the governor of kogi state, his Attorney-General, Commissioner for Finance, Accountant-General and Auditor-General) had knowledge of the matter is as obvious as the daylight. First and foremost, when the 1st-5th defendants were served with the originating summons, the first reaction that came from Governor Yahaya Bello himself was made in his broadcast on the eve of the 2019 State Houses of Assembly elections after JUSUN had approached the National Industrial Court over the eight months salaries we were being owed then. It is notable that our unpaid salaries is almost 12 months now.
He said in the broadcast:
“We are therefore happy that the Chief Judge of Kogi state was also joined to the suit by JUSUN. We look forward to being educated on how a pay parade across all branches and cadres of our civil service is prejudicial to the independence of the judicial arm but not the legislature.”
And the National Industrial Court properly educated him afterwards when it ordered in its judgment delivered on 3rd June, 2019 that:
“The 1st-5th defendants are by perpetual injunction of this court hereby restrained from interfering with the mode of payment of the staff of the Kogi state judiciary particularly members of the claimant to collect their salaries by hand from the executive as it is illegal and breaches the principle of separation of powers. Therefore, it’s unconstitutional, null and void.’’
We therefore ask again: who is advising this governor and his government? What further education does he need? And, can he say, in all honesty, that he had no knowledge of this matter before the National Industrial Court?
Secondly, the court itself found that the 1st-5th defendants were duly served with the summons but only chose not to defend the matter for reasons best known to them. Of course, they did that at their own peril. And that does not make the judgment a default judgement as ignorantly stated in the SSG’s letter. By our own judgment, it was a judgment on merit which is why the court declared in the judgement in these clear words:
“Before I address the merits of this case, it is necessary to clarify some salient points, considering as stated earlier that the defendants did not defend this action or file an affidavit. Technically, therefore, this case approximate to one that is undefended but it must be pointed out that the defendants had ample opportunity to defend this action but chose not to”.
The court then assertively stated the position of the law, where there is no defense thus:
“As the effect of the failure of a party to call evidence in defense of a claim is that he is presumed to have admitted the claim made against him by the other party and the trial court has no choice than to accept the unchallenged and uncontroverted case placed before it by the claimant.”
The court, out of abundance of caution, did not just accept the affidavit evidence of our claim, willy-nilly, but scrutinized it to be sure that the claim is dully proved. It stated as follows:
“As was stated above the defendants did not file any process in response to the claimants’ Originating Processes. Although this may present like a matter in the undefended list, this does not mean the claimants coast home victory. The case of the claimants would have to be evaluated”.
The court consequently proceeded under Order 38 Rule 2 of National Industrial Court Rules 2017, which recognizes the right of a defendant to choose not to defend an action or file a process. The nature of civil proceedings is such that parties are at liberty to adopt whatever step they choose as provided for in the courts’ procedural rules. No court will compel a party in a civil case to appear or file a process. Each party, however, bears the consequences of his actions or inaction.
The court said:
“Order 15 of the National Industrial Court Rules 2017 enjoins a party served with an originating process and who intends to file a defense process as provided for therein. Order 15 therefore recognizes the right of a defendant not to defend an action filed against him or her. And by Order 38 rule 2 where the defendant is absent, at the trial and no good reason is shown, for absence, the claimant may prove his/her case as far as the burden of proof lies upon her.”
What is more, on the day the judgment was delivered on 3rd june, 2019, the 1st-5th defendants were duly represented by Umar Abdulmaled as counsel. So, we ask the SSG to show us where is the default in this judgement if she really understands the term ‘default judgement’.
We would like to use this medium to let Governor Yahaya Bello be further educated that he has been sufficiently deceived by his Attorney-General who takes advantage of his (the governor’s) ignorance to his own personal advantage and that of his cronies. A court’s judgment is sacrosanct and must be obeyed. Fortunately for us, the judgment is a declaratory judgment which cannot be stayed. We hope this is trite enough for his Attorney-General to know. Even if there is an appeal, it cannot operate as a stay. We also hope the Accountant-General knows this too.
Signed:
Emmanuel Waniko
Chairman
