In a letter dated 19th June, 2019, the Secretary to the Kogi State Government, (SSG), Mrs. Folashade Arike Ayoade responded to the position of the Judiciary Staff Union of Nigeria (JUSUN) on the issue of data capturing/pay parade exercise, which JUSUN had rejected following the declaration of the exercise as unconstitutional by the National Industrial Court.
In the said letter, the SSG wrote:
*_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._”
Nothing can be further from the truth and nothing can be more mendacious! I keep on wondering why this government has a penchant for telling lies. The government will also stop at nothing in denying the obvious. Does this government have any 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 pencuniary interests to milk the State of its scarce resources in the name of litigation?
The evidence that the 1st -5th defendants 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 came from Governor Yahaya Bello himself in his broadcast on the eve of the 2019 State Houses of Assembly elections after JUSUN had approached the National Industrial Court. He said:
_”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 as the court ordered in its judgment delivered on 3rd June, 2019 thus:
*_”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.”_*
I ask again, who is advising this governor and this government? What further education does the governor need? And, can he say, in all honesty, that he had no knowledge of the matter?
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 judgment as ignorantly stated in the SSG’s letter. It was a judgment on merit. Hear what the court said:
_*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*_” page 8
The court then assertively stated the position of the law, where there is no defence thus:
*”_As the effect of the failure of a party to call evidence in defence of à 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 uncontrverted case placed before it by the claimant._* page 8
The court, out of abundance of caution, did not just accept the affidavit evidence of the claimant willy-nilly but scrutinised it to be sure that the claim is duly proved. The court 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 the National Industrial Court Rules 2017, which recognises 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 in action. The court stated:
_*”Order 15 of the National Industrial Court Rules 2017 enjoin a party served with an originating process and who intends to file a defence 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 ŕule 2 where the defendant is absent, at the triàl and no good reaso is shown, for absence, the claimant may prove his/her case as far as the burden of proof lies upon her.*_ page 9.
What is more, on the day the judgment was delivered, the 1st -5th defendants were duly represented by Umar Abdulmaled as counsel. So, if I may ask, where is the default in this judgment?
In conclusion, 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 sacrosant and must be obeyed. Fortunately for JUSUN, the judgment is a declaratory judgment which cannot be stayed. I hope this is trite enough for his AG to know. Even if there is an appeal, it cannot operate as a stay. I also hope the AG knows this.
The court has ruled that it is illegal and unconstitutional to keep the money belonging to the Judiciary in the bank. It is hoped that Governor Yahaya Bello will do the needful. It is not about ego but the CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, which he swore to uphold. The government may employ all delay tactics at its disposal in paying the money as ordered by the court, but one thing is clear: one day, monkey will go to the market and will not return.
JUSUN Legal Expert