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National Industrial Court

JOSEPH A. ALI, PhD VS PROFESSOR DANLADI SLIM MATAWAL & 4 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA DIVISION

HOLDEN AT ABUJA.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

 

Dated this 11th day of December, 2018   SUIT NO: NICN/ABJ/271/2015

 

BETWEEN:

 

 

JOSEPHA. ALI, PhD. ………………………………………………………………………………….……………………..CLAIMANT

AND

1 PROFESSOR DANLADI SLIM MATAWAL

(Being Sued in His Official Capacity as

The DIRECTOR-GENERAL/CEO) of

NIGERIAN BUILDING & ROAD RESEARCH INSTITUTE

  1. NIGERIAN BUILDING & ROAD RESEARCHINSTITUTE
  2. HON. MINISTER, FEDERAL MINISTRYOF SCIENCE AND TECHNOLOGY
  3. PERMANENT SECRETARY,

FEDERAL MINISTRY OF SCIENCE AND TECHNOLOGY…………………………………….. DEFENDANTS

 

Representations:

S.O. Agbadu with I.T. Okpeke for the Claimant

  1. K. Khamaghanwith M.B Kambashan for the Defendants.

 

Judgment.

This suit was commenced by a General form of Complaint filed on the 4th of September, 2015 and same was accompanied by a statement of fact establishing the cause of action, list of witnesses, witness statement on oath, list of documents and copies of the listed documents.

The 1st and 2nd defendants in reaction filed a joint statement of defence on the 21st of September, 2015 while the 3rd and 4th Defendant filed theirs on the 10th of December, 2015.

On the 16th of March 2016, the Claimant filed an amended statement of fact establishing the cause of action.

The suit was originally before the Hon. President, Hon. Justice B.A. Adejumo before being reassigned to this court sometime in October, 2017. Upon the matter being before this court,parties took adjournments in attempt to settle out of court but the attempts failed upon which parties proceeded to hearing.

The defendants also amalgamated their statement of defence upon change of counsel and on the 8th of February, 2018 filed an amended joint statement of Defence which also bears a counter-claim and also accompanied by a list of documents, copies of the documents and witness statements on oath.

The Claimant on the 14th of February 2018, filed a reply to the statement of defence ofdefendant and accompanied same with additional list of documents, witness statement on oath and copies of the documents.

Arising from the statement of fact, the Claimant is claiming against the defendants the following:

  1. A Declaration that the decision of the 1st and 2nd Defendants to threaten and actually bar the Claimant from the premises of the 2nd Defendant and discontinue any subsequent involvement with the Claimant, is a breach of the Claimant’s Fundamental Right(s) to personal liberty, association and freedom of movement.
  2. A Declaration that the deliberate and unilateral suspension of the Claimants salaries and allowances by the Defendants in the circumstances of this case, without notice, reason and without affording the claimant an opportunity to be heard as to otherwise, is unlawful and a breach of his Fundamental Right(s) to Fair Hearing and Dignity of Human Person.
  3. A Declaration that the reduction of the Claimant’s monthly salary by theDefendants from N922 ,810.33 (inclusive of tax and allowances) toN442, 143.33(inclusive of tax) for a period of 9 months from April 2011 toDecember 2011, is not justifiable and therefore is malicious, unlawful andillegal.
  4. A Declaration that the Claimant is still in the Public Service of the Federation as a Substantive Staff of the Nigerian Building and Road Research Institute (NBRRI) – (2ND Defendant), until his Compulsory retirement on 27th October, 2015, and is entitled to all the rights, privileges and benefits as a Public Servant in the Public Service of the Federation.
  5. A Declaration that the Claimant is entitled to continue to enjoy the amount of salary he was earning as the Director-General/Chief Executive Officer of the Nigerian Building and Road Research Institute (NBRRI)until his Compulsory retirement on 27th October, 2015.
  6. A Declaration that the Claimant is entitled to continue to enjoy and benefit in the statutory monthly contributory pension scheme from the year April2011 when it was wrongly and unilaterally reduced and further stopped until the Claimant’s compulsory retirement from service in October 2015.
  7. An Order compelling the Defendants to pay, restore and/or remit all the claimant’s statutory pension benefits and allowances, from the year 2011 when it was wrongly and unilaterally reduced and stopped, until the Claimant compulsory retirement from service in October 2015.
  8. An Order compelling the Defendants to Pay the Claimant the total sum ofFOUR Million, Three Hundred and Twenty-Six Thousand Three Naira(N 4, 326,003.00) being the outstanding balance on the Claimant’ssalaries which was reduced by the Defendants from the Month ofApril 2011 to December 2011.
  9. An Order directing the Defendants to pay the Claimant the sum of N2,118, 033.49 (Two Million, One hundred and Eighteen thousand, thirty three naira, forty nine kobo) only being 10% interest compounded annually on the accrued OUTSTANDING Balance of Four Million, Three Hundred and Twenty Six Thousand Three Naira (N 4, 326,003.00) unlawfully withheld by the defendants calculated at 10% interest per year as a result of inflation and the fall in value of the Naira during the period the Claimant’s salaries was wrongly withheld and in possession of the Defendants.
  10. An Order compelling the Defendants to pay the Claimant all his Salaries, Allowances and Entitlements from January 2012 until his (the Claimant)employment is validly determined in accordance with the Claimant’s Condition of Service, amounting to N40,603,654.52 (Forty Million, Six Hundred and Three Thousand, Five Hundred and Fifty-Four Naira, Sixty-Six Kobo only), at N 922,810.33 (Nine Hundred and Twenty two thousand, Eight Hundred and Ten Naira, Thirty three Kobo) per month
  11. An Order Directing the Defendants to pay N8,201,153.36 (Eight Million two Hundred and One Thousand, One Hundred and Fifty three Naira, thirty six kobo) being Ten per (l0%) interest compounded annually on the sum of N40,603,654.52 (Forty Million, Six Hundred and Three Thousand, Five Hundred and Fifty-Four Naira, Sixty-Six Kobo only) in prayer (h) above on the accrued salaries and Allowances of the Claimant calculated at l0% compounded interest per year as a result of inflation and the fall in value of the naira during the period the claimant salaries was wrongly and unlawfully suspended.
  12. An Order Directing the Defendants to pay the shortfall in Claimant’s statutory monthly contributory pension from April 2011 to December 2011 amounting to N458,249.94 (Four Hundred and Fifty-Eight Thousand, Two Hundred and Forty-Nine Naira, Ninety-Four Kobo) put at N50, 916.66 (Fifty Thousand Nine Hundred and Ninety-Six Naira Sixty-Six Kobo) per month.
  13. An Order Directing the Defendants to pay the Claimant the sum ofN235,078.07 (Two Hundred and Thirty-Five Thousand, EightHundred and Twenty-Eight Naira Thirteen Kobo) being ten per(10%) interest compounded annually on the sum of N458,249.94(Four Hundred and Fifty-Eight Thousand Two Hundred and Forty-Nine Naira, Ninety-Four Kobo).
  14. An Order Directing the Defendants to pay the Claimant’s unremittedstatutory monthly contributory pension from January 2012 toOctober 2015 amounting to N3,986,540.32 (Three Million, NineHundred and Eighty-Six Thousand, Five Hundred and Forty Naira,Thirty-Two Kobo) put at N86,663.92 (Eighty-Six Thousand, SixHundred and Sixty-Three Naira, Ninety-Two Kobo) per month.
  15. An Order Directing the Defendants to pay the Claimant The sum ofN847,655.83 (Eight Hundred and Forty-Seven Thousand, SixHundred and Fifty-Five Naira, Thirteen Kobo) being ten per (10%)interest compounded annually on the sum of N3,986,540.32 (ThreeMillion, Nine Hundred and Eighty-Six Thousand, Five Hundred andForty Naira, Thirty-Two Kobo).
  16. An Order Directing the Defendants to pay to the Claimant the sum of N500,000,000.00 (Five Hundred Million Naira) only representing General and Aggravated Damages.
  17. An Order for the payment to the Claimant by the Defendants, the sum of Ten Million Naira (N10, 000, 000.00) only, representing damages for their violation of the Claimant’s Fundamental Rights.
  18. Ten Percent (l0%) post judgment interest till the entire judgment sum is fully liquidated.

 

In opening his case, the claimant himself was called as CW1 and he adopted his witness statement on oath as oral evidence which was marked as C1. Through C1, 41 documents were tendered and admitted in evidence and marked as Exhibits C2 – C42. However, Exhibits C13, C41 and C42 were admitted in protest and to be addressed in the final address and later in this judgment.

Arising from  the amended statement of fact and witness statement on oath of the Claimant, the case for the Claimant is that  he was a career public servant on permanent and pensionable status in the public service of the Federation, under the direct employment of the Defendants particularly the 2nd Defendant. He was initially a lecturer at the ObafemiAwolowo University, Ile-Ife, from where he transferred his service to the 2nd Defendant in 1993. He rose through the rank and became Director/Chief Executive Officer in 2002 and later had his rank upgraded to Director-General/CEO in 2004. His tenure as DG elapsed in 2006 but was renewed for another four years which ended in 2010. Upon the expiration, he applied for his deferred leave of 145 days and to proceed on sabbatical which was granted approval.The said approval required him to resume duties at the 2nd Defendant at the end of the sabbatical as Director, Engineering Materials Research Department (EMRD). Prior to the end of the tenure of the Claimant as DG, the Governing Board of the 2nd Defendant wrote the Claimant through the Chairman to clarify the Claimant’s status in the service of the 2nd  Defendant upon the expiration of the Claimant’s tenure as D.G/C.E.O of the 2nd Defendant and the Governing Board restated that the Claimant is not retiring from service at the end of the Claimant’s tenure as DG/CEO  of the 2nd Defendant but that the Claimant can remain to continue with research work with the 2nd Defendant, if the Claimant so wishes.

The Claimant posited that by virtue of his service as Director-General/CEO of Nigerian Building & Road Research Institute— NBRRI, he is entitled to a Severance Gratuity of 300% of his annual basic salary upon successful completion of his tenure and in view of the above, he wrote a letter to the Director-General, Budget Office of the Federal Ministry of Finance, requesting for his remuneration package in the sum of N5,777,595.00 (Five Million, Seven Hundred And Seventy- Seven Thousand, Five Hundred And Ninety-Five Naira). The said money was paid into the account of the 2nd Defendant but the 2nd Defendant refused to transfer same to the Claimant on the ground that the Claimant was still in the Service of the 2nd Defendant and would not receive Gratuity unless and until he retired, as the payment of the money at the time would amount to paying him Gratuity twice when he eventually retires. The claimant then wrote a Letter to the DG/CEO of NBRRI (the 1st Defendant) to seek clarification from Revenue Mobilisation, Allocation and Fiscal Commission (RAMFC) for advice. But the response from the 1st Defendant was that he needed to seek clarifications from experts on civil service matters before he can act on the matter. The Defendant eventually wrote to the Claimant to pay him his severance allowance but will suspend his salaries with all Allowances pending an “anticipated clarifications” from the 3rd Defendant concerning his status. The Claimant was not pleased and returned the money in view of the suspension of his salary. Eventually, the Defendant paid the money less the vehicle loan owed by the Claimant.

The Claimant also stated that while he was on his deferred Annual Leave and prior to the suspension of his salary by the 1st Defendant, the Defendants unilaterally reduced his salary for 9 months in violation of the applicable condition of service guiding the parties.The monthly pension contribution of the Claimant was also suspended while also reducing same for the 9 months within which his salaries was reduced. Upon failure to restore the Claimant’s salary, his lawyer wrote several letters to the Head of Civil Service of the Federation concerning the matter to which action was eventually taken and directive was given to the 3rd Defendant to restore the Claimant and be paid his entitlements but the Defendants have refused to yield the directive. The Defendant also made it clear to the Claimant that he should not resume his duties pending the clarification of his status. Claimant posits that the Defendants have been in breach of his Fundamental Rights and deliberately deprived him of his earnings.

The Claimant also avers that in view of his compulsory retirement on 27th October, 2015 upon attaining the age of 65,  he wrote to the 1st Defendant notifying the Defendants of his retirement from service and requested for necessary documents to enable him process his pension but the same was not provided.

The Claimant stated that the act of the Defendants in suspending his salaries and Allowances from January 2012 till date has rendered him penniless and he is now left to survive at the mercy of some concerned friends and family members to whom he has now become a burden to his greatest embarrassment, considering his status and standing in the society.

Upon cross examination, Claimant confirmed he served the 2ndDefendant  as DG/CEO for 11 years and agreed that his service with 2nd Defendant as arising from Exhibit C2 is subject to Public Service Rules. Claimant stated that the office of DG & CEO and Director &CEO are the same but that the office of CEO got upgraded from Director to DG. He reckoned that the office of DG & CEO was not mentioned in Exhibit C4. He stated that he was Assistant Director  before he became DG & CEO but he could not remember his salary before he became DG.Claimant also stated that according to the condition of service, he was to return as Director of research. He also confirmed that at the time he wrote the letters, he was no longer a DG & CEO. The Claimant also stated that he was given contract employment when he got to Energy Commission and he wrote to the Commission to inform them he was not qualified for contract employment but he did not think it was necessary to inform the 2nd Defendant. He maintained he spent 2 years at Energy Commission.

Upon the discharge of CW1, the Claimant closed his case while the Defendants opened theirs by calling two witnesses. The firstwitness beingMrs. Esther Chukwuma as DW1 and the other being Raphael Menegbe as DW2. Both adopted their witness statements on oath and same were marked as D1 and D2 respectively. Through DW1, 16 documents were tendered and same were admitted and marked as Exhibits DW1(1) – DW1(16). However, DW1(3) and DW1(8) were admitted under protest. Through DW2, 20 documents were tendered and same were admitted in evidence and marked as DW2 (1) – DW2 (20).

Arising for the joint statement of Defence of the Defendants, the case for the Defendants is that the employment of the Claimant was governed by the Public Service Rules. That although the statement that under the Conditions of Service for Federal Research Institutes, any competent Research Officer made Chief Executive Officer is allowed to return to his/her position as Director of Research at the expiration of his/her tenure as Chief Executive Officer of the institute is generally true, but the Condition of Service so referred to was never approved and applied in any Federal Research Institute, College of Agriculture or such Allied Institute, much less to the Claimant. The Defendants maintained that the Claimant was erroneously approved for proceeding on deferred leave and sabbatical leave having retired from the service of the 2nd Defendant in 2010. The Defendants added that the Claimant did not proceed on sabbatical as he was taken in for contract employment which was not appropriate. The Defendant maintained that the Claimant was not entitled to return to the service of the 2nd Defendant nor entitled to be paid a monthly salary in the sum of N922,8 10.33 (Nine Hundred and Twenty-Two Thousand, Eight Hundred and Ten Naira, Thirty-Three Kobo only) per month and the sum of N3,979,289.97 (Three Million, Nine Hundred and Seventy-Nine Thousand, Two Hundred and Eighty-Nine Naira, Ninety-Seven Kobo only) paid to the Claimant by the 2nd Defendant between April and December 2011 at the rate of N442, 143.33 per month was paid in error and illegally and the Claimant is liable to return same to the 2nd Defendant. The Defendants posits that the error continued until the 1st and 2nd Defendants found out after they had been queried by the Office of the Auditor-General of the Federation, and the Board of Governors of the 2nd Defendant later ratified the action of the 2nd Defendant in suspending the payment of such illegal salary. The Defendants posits that the remittance of pension monies should also suffer the same fate since the Claimant has retired. The Defendant contended that the Claimant misdirected the Office of the Head of Civil Service of the Federation (OHCSF) which led to the directive that he should be paid his salaries. That the Claimant withheld some vital information from the HCSF which would have prevented the HCSF from taking the decision so taken. It was on the sole information provided by the Claimant that the then OHCSF gave that directive. The particulars of the misdirection included the failure to state that he was already a retiree; failure to state that he had taken up contract appointment with Energy Commission and the misdirection that the terms of his employment with the 2nd Defendant was governed by the purported Conditions of Service for Federal Research Institutes, Colleges of Agriculture and Allied Institutes, while it was not actually the case.

The Defendant added that upon receiving directive from the OHCSF, it provided the OHCSF with clearer facts upon which the OHCSF no longer intervened for the Claimant. The Defendants denied liability for the claims of the Claimant and maintained that the Clamant has been paid all his entitlements after his retirement, and his pension has been ready for him, but he deliberately refused to access same therefore, if there were/are any so-called “embarrassment”, “emotional stress”, “financial embarrassment”, “untold hardship” and “indebtedness” among other things claimed by the Claimant at paragraph 54 — 56 and 58 of his amended statement of facts, they were/are self-inflicted by his deliberate return of his gratuities paid to him and his refusal to access his pension even when he had been reminded to do so. Defendant added that besides, the Claimant has worked with Energy Commission of Nigeria on a contract appointment for over Two years after leaving the service of the 2nd  Defendant and earned good money from there.

The Defendants therefore concluded that the Claimant is not entitled to any of his claims.

Upon cross examination of DW1, she posited that it is not correct to say that all the Defendants are answerable to the Head of Service, but it is correct to say that the 3rd Defendant takes directive from the Head of Service (HOS). She confirmed that the HOS wrote to the 3rd Defendant to reinstate and pay the Claimant his benefits but he was not reinstated nor paid. She also posited that the law governing the condition of service of the current DG is the Public Service Rules and she is aware that when the vacancy for the office of the DG was published, the condition of service was Exhibit C4.

Upon cross examination of DW2, he maintained that the deferred leave and sabbatical  leave of the Claimant was approved by the Chairman of the Board. He said he was not sure if the rescission by the board of the approval was in writing. He also posited that he was aware that the directive of the HOS on the reinstatement of the Claimant was taken to the Board and the Board wrote back to the HOS on why the reinstatement would not be possible. He also maintained that the appointment of the Claimant is tenured and upon expiration it is expected that you cease to remain a staff hence he is not aware if he was issued a letter to determine his employment.

Upon discharge of DW2, Defendants closed their case and case was adjourned for adoption of final written address.

Before considering the final written addresses, I reckon that the Claimant filed a reply to the joint statement of defence of the Defendants and therein denied certain averments of the Defendants made in the said statement of defence.

The Defendants filed a joint final written address on the 24th of August 2018 and adopted same on the 25th of October, 2018. Arising from the said final written address which was signed by F.K Khamaghan, learned counsel to the Defendants, F.K. Khamaghan formulated a sole issue for determination to wit:

Whether the Claimant has discharged the legal and evidential burden by proving his case on the balance of probability to entitle him to the judgment of this Honourable court in his favour as per each of the claims contained on the face of his General Form of Complaint.

Arising from the sole issue, learned counsel reckoned that there are two questions embellished in the issue and they are:

  1. When was the Claimant deemed to have properly left service of the 2nd Defendant?
  2. What was the condition of service applicable to the Claimant during his service with the 2nd Defendant?

Before addressing the issues, counsel addressed the preliminary issues relating to exhibits admitted under protest i.e. the objection of the Defendants to the admissibility of Exhibits C13, C41 and C42 as well as the objection of the Claimant to the admissibility of Exhibits DW1(3) and DW1(8).

Counsel stated that the objections of the Defendants with regards Exhibits C13, C41 and C42 are withdrawn while in respect to Exhibits DW1(3) and DW1(8), counsel posited that the grounds for the objection by counsel to the Claimant was not stated during proceedings and would therefore wait for the Claimant’s final address.

Back to the issue for determination, with respect to the first question which is “when was the Claimant deemed to have properly left service of the 2nd Defendant?”, learned counsel posited that the Defendants are of the view that the Claimant actually retired from the service of the 2nd Defendant on 14th of July 2010 and that the proof of same is through DW1’s deposition at paragraphs 13(e)-(f), 14(d), 9(a)-(c), together with Exhibits DW1(9), DW1(10), DW1(11), DW1(12), DW1(13) & DW1(14),

Counsel submitted on behalf of the Defendants that the position of the Claimant that he retired in October, 2015 when he turned 65 is not true and cannot be supported by the available evidence as same is not tenable in law and in fact.

Counsel further posited that in view of the chronology of the Claimant’s journey of service with the 2nd  Defendant which has been established by evidence and not in dispute, the effect is that by 1st January 2003, the Claimant became a political appointee, which signalled the end of his career as a career civil servant. As a political appointee, this ran through 2010. By Exhibit C7, it was clear that his tenure was for Four years with effect from 15th July 2006 and four years from that date would end on 14th July 2010.

He added that by virtue of Exhibits C5, C6 and C7, it is the president and Commander in chief of the Federal Republic of Nigeria that appoints persons in to such position. This would lend credence to the fact that the Claimant was no more a civil or public servant who was employed by the 2nd Defendant as it was in 1993 when he was employed by virtue of Exhibit C2 and in view of that, it is the Appointor who can renew the appointment. He posited that it is settled law that if an appointment is made under a statute, the Appointee can only be removed in a manner consistent with the statute under which he was appointed, otherwise, the Appointee holds his appointment at the pleasure of the Appointor, in this regards, counsel cited the cases of GOVERNOR EKITI STATE V AKINYEM1 [2012] 17 NWLR(PT.1276) 373.; UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL MANAGEMENT BOARD V. DAWA (2001) 16 NWLR (PT. 739) 424 @ 448 and OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 599.

Counsel maintained that in the instant case, the Claimant was not appointed under any specific statute, but under the President’s general powers under the Constitution of the Federal Republic of Nigeria 1999 as amended, and so his appointment was subject only to the pleasure of the President, who clearly spelt out the tenure of his appointment in Exhibit C7 which was never extended or further renewed.

Counsel added that it was due to Exhibits DW1(4), DW1(5), DW1(6) and DW1(7) that the Claimant in preparation of his retirement in accordance with the extant Public Service Rules, went ahead and registered with his pension administrator wherein he voluntarily supplied information including but not limited to the date of his retirement to the pension administrator as 14th July 2010. Counsel referred to Exhibits DW1(9), DW1(10), DW1(11) and DW1(12).

Counsel also contended that Exhibits C11, C28, C30, C32, C33 and C34 do not in any way, alter the date of retirement of the Claimant and were made on either mistaken or deliberate mischievous impression that the Exhibit C4 applies to the Claimant by the various parties involved, which was not the case.

Counsel also submitted that pension transaction is a tripartite contract, involving the prospective retiree, his employer and the pension fund administrator. As such, any variation of the said contract must he with the agreement of the same three parties. He added that this is important, especially when the fact that the employer of the Claimant that is the 2nd Defendant would have an obligation under the new arrangement to continue its counterpart contribution to the pension premium for the Claimant is considered.Counsel cited the case of OTTIH V NWANEKWE (1990) 3 NWLR (pt. 140) p.550.

Counsel further posited with regards to Exhibit C28 that though the import of that exhibit with regard to the date of retirement of the Claimant is that it purported to affirm that the Claimant could return to the 2nd Defendant after his tenure as D.G & CEO of the 2nd Defendant, counsel submitted that the Exhibit becomes worthless in view of the fact that the Condition of service which it purports to bring to bear is not before this Honourable Court, in that the copy tendered in evidence has no evidential value.

Counsel concluded on this issue that on the whole with regards to the question as to when was the Claimant deemed to have retired, that the evidence shows that the Claimant retired on 14th June (sic) 2010 and not any other date and urged the Court to so hold.

With regards to the second question which is “what was the Condition of Service Applicable to the Claimant during his Service at the 2nd Defendant?”, counsel posited that the Defendant’s position on this is that the conditions of service which governed the employment of the Claimant especially when he became the D.G and CEO of the 2 Defendant was the Public Service Rules (Exhibit DWI(2), Circulars applicable to him (Exhibits DW1(4), DW1(5), DW1(6) DW1(7), DW1(8), and the Conditions of Service for Directors-General/Chief Executive Officers of Parastatals under the supervision of Federal Ministry of Science and Technology (Exhibit DW1(3)).

Upon that, counsel submitted that Exhibit C4 has no probative value, same having not been signed and undated. He cited the cases of A.G ABIA STATE Vs. AGHARANVA (1999)6 NWLR (Pt. 607) p. 362 and GLOBAL SOAP & DETERGENT INDUSTRIES LTD. VS NAFDAC (2011) LPELR-4202 (CA). Counsel also posited that admission of a document is different from the probative value and cited the cases of OMEGA BANK NIGERIA LTD. V O.B.C. LTD 120051 8 N.W.L.R. (PT. 928) 547, MEDITERANIAN SHIPPING CO. S. A. Vs. ENEMAKU (2012) 11 NWLR (Pt. 1312) p. 583; FARO BOTTLING CO. Vs. OSUJI (2002) 1 NWLR (Pt. 748) p.311 @330-331 and DANTIYE Vs. KANYA (2009) 4 NWLR (Pt. 1130) p. 13.

Counsel also contended that certification does not cure the defect of signature and date and cited the case of EDILCO NIGERIA LTD. Vs. UNITED BANK FOR AFRICA PLC. (2001) 2 NWLR (Pt. 698) P. 492.

With regards to the claims, counsel contended that it is trite and well settled position of our law of evidence, that whoever wants this Honourable Court to give judgment in his favour should prove his case by virtue of legally admissible evidence, and never to rely on the deficiency of his opponent’s case if any. Counsel cited the case of  BENNETII UDE AGU v MAXWELL NNADI (2002) 18 NWLR (Pt. 778) 223 and section 131 – 133 of the Evidence Act.

Counsel added that the legal burden of proving his claims placed on the Claimant never shifts and it is only the burden of proving particular facts that shift to the Defendants if the Claimant put up a prima fade case. He cited the case of  FELIX 0. OSAWARU v. SIMON EZEIRUKA (1978) 6 & 7 SC 135 at 145.

Counsel posits with regards to relief ‘a’, that being a declaratory relief, the strict burden of proof is on the Claimant as the court cannot depend on the weakness of the other party’s case. He cited the case of GE INT’L OPERATIONS (NIG) LTD Vs. V. Q. OIL & GAS SERVICES LTD. (2016) 10 NWLR (Pt. 1520) p.310 @ 330 Paras D-E. He then contended that the Defendant did not threaten the Claimant. He stated the meaning of ‘threat’ according to Black’s Law Dictionary, 8th Edition and submitted that the Claimant has not proved in any way that the Defendants communicated any intention to harm him or his property for any reason at all.

With regards to relief ‘b’, counsel contended that there is no evidence as to how the Claimant’s right to fair hearing was breached. Counsel cited the case of ITSUELI v SECURITIES AND EXCHANGE COMMISSION 120121 2 NWLR NWLR (PT. 1284) 329 and posited that Exhibits C13, C14, C15, C17, C20, among other Exhibits would show that the Claimant was actively given the opportunity and he presented his case.

On reliefs ‘c’ – ‘p’, Learned Counsel contended that all the reliefs flow from Exhibit C4 which aside from the contention that same is not with any probative value, same is also not applicable to the Claimant at all material times to which he seeks relief C – P, particularly between April 2011 to 27th October, 2015. Counsel contended that in Exhibit C2, when the Claimant was first appointed in the 2nd Defendant, it was clearly stated that the Claimant’s appointment would be governed by “conditions applicable in the Public Service Rules and Instructions”. In 2002, when the Claimant was appointed as Director/Chief Executive of the 2nd Defendant, it was statedthat the appointment was to take effect from 5th July 2002. It was further stated in that Exhibit that he would be governed by “current terms and conditions for all Federal research Institutes and Colleges of Agriculture” He contended that the Exhibit was signed by Director of Personnel Management of Ministry of Science and Technology, on behalf of the 3rd Defendant. Obviously, this is where the Claimant lays claim to Exhibit C4 titled: “Condition of Service for Federal research Institutes, College of Agriculture and Allied Institutions, Federal Republic of Nigeria “. Counsel submitted that Exhibit C5 was improperly obtained from the signatory to that Exhibit by misrepresentation of facts which led the said Director to issue Exhibit C5.

Counsel added that in any way, Exhibit C4 was to take effect by 1st January, 2004 according to Chapter 18 paragraph 18.3 while exhibit C4 was made in 2002. Counsel added that in 2004, 2006 and 2010 when Exhibits C6, C7 and C8 were issued to the Claimant, they did not state what condition of service applies to the Claimant as Exhibit C5 did.

With regards to Exhibits C31 and DW1 (16) which are newspaper publications, counsel contended that same were made by the Claimant during his tenure as DG & CEO who now claims the applicability. He added that the employments made upon the publications did not support the publications as Exhibit DW1(1) stated categorically that “your appointment is with immediate effect for an initial term of Four (4) years, in accordance with the terms and conditions of service obtainable in all parastatals under the ministry”.

Counsel also added that the period of tenure provided in Exhibit C4 is single non-renewable tenure of 5 years under paragraph 2.1.3 (c) while the Claimant served for two terms of 4 years. He also maintained that Exhibit C4 says nothing about being entitled to gratuity after his tenure as D.G and C.E.O of the 2nd  Defendant and to still continue his employment in the 2nd Defendant as a Director.

Counsel also reproduced the provision of paragraph 13.5 of Exhibit C4 and reiterated that the operative word therein is retirement and that for the Claimant to be entitled to gratuity from the 2nd Defendant after his 8 years tenure, or whatever years, he must have either “voluntarily retired”, “compulsorily retired” or “prematurely retired” as the case may be.

With regards to relief ‘q’ and ‘r’, Counsel submitted that damages for breach of Fundamental Right can only be granted upon successful prove of such breach of fundamental right(s) by the Claimant against the Defendants and the Claimant having failed to proof his claims for breach of his fundamental rights by the defendant as claimed in reliefs A and B, is not entitled to relief Q.

He added that similarly, Relief ‘r’ is a consequential relief and can only be granted if this Honourable Court finds to be granted any of the reliefs H-Q in the sum claimed or any lesser sum. He posited that having failed to establish his claim in this case, the Claimant is not entitled to any post judgment interest as claimed in Relief R and urged the Court to so hold.

He concluded that the Claimant has woefully failed to prove his case and same deserves to be dismissed for lacking merit.

In reaction, to the final address of the Defendants, Claimant filed his final written address on the 13th of September, 2018 signed by Counsel to the Claimant, M.J. Haruna.

Arising from the said Claimant’s final Address, counsel to the Claimant, M.J. Haruna formulated four issues for determination to wit:

  1. Whether from the facts of this case and the totality of evidence adduced at the trial, the claimant was prior to the institution of this action still a bonafide member of staff of the 2nd Defendant and
  2. Whether the unilateral decision by the Management of the 2nd Defendant to reduce, stop and further suspend the Claimant’s salary without granting the Claimant any fair hearing as to otherwise and without regards to Exhibits C4, C9, C10, C11, C28 and C40 is unconstitutional, ultra vires, illegal, null and void.
  3. Whether the claimant is entitled to the reliefs and damages sought in this suit against the Defendant.
  4. Whether the Defendants are entitled to their counterclaim against the Claimant.

In arguing issue one, counsel posited that all through the facts leading to this case, up until the close of trial, nothing was placed before this Honourable Court to show that the Claimant’s employment has ceased. He added that DW2, was asked whether the Claimant was issued a termination letter, letter of compulsory retirement, or any document at all that determines the Claimant’s employment, but his response was that he was not aware. He argued that there is nothing to at all to show that the Claimant was not in the employment of the Defendants, therefore his employment subsists.

Counsel referred to the position of the OHCSF in Exhibit C28 and urged the court to hold that the Claimant’s employment still subsists. Counsel also stated that there is no ambiguity in respect of Exhibits C9 and C10 wherein the Claimant was to return as director. He also cited Chapter 6.4 (b) of Exhibit C4.

Counsel contended thata close look at the said Exhibit C4 reveals that the said Document was dated and carries the stamp of the Office of the Head of Civil Service of the Federation, who emphatically restated same in Exhibit C28 and that the document was in the Possession of the Defendants before they produced it before thisHonourable Court, upon a Notice to produce.Certainly the Defendants cannot turn around to deny the Knowledge and applicability ofExhibit C4. Counsel argued that the Defendants should be estopped from changing their position as in Exhibit C11. He cited the cases of A.-G. Rivers State v. A.-G.AkwaIbom State (2011) 8 NWLR (Pt. 1248) at pg. 185 — 186 paras F — A and Chinyere Margaret Stitch v. Attorney General of the Federation &Ors (1986) 2 N.S.C.C. 1389 at p. 1404 lines 3-6.

Counsel also added the case of A-G., Nasarawa State v. A.-G. Plateau State (SUPRA) atpg 451 paras. E – H on the same position ofestopel.

Learned Counsel also questioned that if the Claimant was retired as claimed by the Defendants, then why was he (Claimant) issued with a query letter 2 years after the suspension of the Claimant’s salaries. Counsel added that the query letter issued the Claimant was because he was still in service of the Defendants, therefore the Defendants are estopped from denying otherwise and urged the Court to so hold.

Counsel also posited that by Exhibit C30, Claimant notified the Defendants of his compulsory retirement but the Defendants did not refute same but kept silent and that silence means consent. He cited the case of Joe Iga v. Amakiri (1976) NSCC 610 at p.616 lines 26-27.

Counsel submitted that the x-rayed Exhibits C9, C10, C4, C40, DW.2-9 and C30 are documentary evidence showing that the Claimant was a substantive staff of the Defendants prior to the institution of this action, therefore the Defendants are estopped from denying anything to the contrary.

Counsel also posited that the Claimant wrote to the DG of PENCOM and also his pension administrators to clarify that he is not retired. He concluded on the issue citing the case of NBC PLC V. EDWARD (2015) 2 NWLR (PT. 1443) CA 201 at 235 PARAS. F-G, on  where there is no proof of termination of an employment.

With regards to issue two, counsel contended that the issue for determination borders on the determination of the Claimant’s fundamental human right, specifically his right to fair hearing and whether the Defendants accorded the Claimant the opportunity to present his case, if any, before the management committee of the 2nd Defendant took the decision to suspend his salary. Counsel cited the case of OLUFEAGBA V. ABDUL -RAHEEM (2009) 18 NWLR (PT. 1173) SC 33 PP. 446-447, PARAS. H-B and paragraph 2 of Exhibit C14.

Counsel referred to Exhibit DW1 (15) to posit that the Governing Board of the 2nd Defendant met and deliberated the Pending issues involving the Claimant without the Claimant presence for him to be heard.

Counsel urged the court to resolve the issue in favour of the Claimant.

With regards to issue three, counsel posited that the reliefs sought by the Claimant are in four broad heads including; declaratory reliefs, special damages, general damages and interests on same, and submitted that the Claimant has proved all and is entitled to same. With regards to declaratory reliefs, counsel cited the cases of C.P.C.V. INEC [2011] 18 NWLR (Pt 1279) 493 at 538 and Maja v. Samouris [2002] 7 NWLR (Pt. 765) 78 at pages 100-101 paras H-C and submitted that the Claimant has presented oral evidence and tendered several exhibits in support of his case. With regards to special damages, Counsel contended that two separate payslips of the Claimant were tendered and marked as exhibit C22. He added that the Exhibits clearly show the Claimant’s full salary which was stopped, and the half salary which the Defendant paid the claimant even though he was entitled to be paid his full salary, as personal to him, upon his return to the service of the 2nd Defendant, after the expiration of his tenure as DG/CEO.

Counsel also reproduced the particulars of special damages and cited the cases of Shell Petroleum Development Company V. Tiebo VII (1996) 4 N.W.L R (Pt 445) Pg 657, and Chindo Worldwide Ltd V. Total (Nig) Plc (2001) 16 N.W.L.R. (Pt 739) Pg 291 on the need to explicitly claim special damages.

Learned Counsel also cited section 173 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to posit that the right to Pension is a constitutionally guaranteed right to which the Claimant is entitled.

With regards to general damages, counsel posited that the claim for damages is always granted to restore an aggrieved party in a lis who has suffered injury back to the situation he was or would have been, as far as money can do. He cited the case of Ijebu-Ode Local Government v. AdedejiBalogun& Co. Ltd (1991) 1 NWLR (Pt. 166) 136 atp. 159 paras F— G.

Counsel also posited that that the value of naira has dropped since the claimant’s salary had been stopped. He also cited Order 47 Rule 7 Of the Rules of this Court with regards to the interest on judgment and posited that payment of post judgment interest in our legal tradition is usually regulated by the Rules of the Court in which the suit is been determined and in the fitness of this case. He cited the case of FIRST BANK OF NIGERIA PLC V EXCEL PLASTIC INDUSTRY LIMITED [2003] 13 NWLR (PT. 837) 412 at page 457 paras. F — H.

Issue four relates to the Counter claim of the Defendants and same will be accordingly considered while determining the counter claim.

The Defendants in reaction to the Claimant’s final address filed a joint reply on points of law. Arising therefrom, counsel to the Defendants addressed certain legal issues.

On whether agreements in writing which is tendered in documentary evidence can be varied or denied by oral evidence, counsel cited section 128 of the Evidence Act 2011 and posited that the law admits some exceptions. He also cited the cases of MR OLARENWAJU ADEROUNMU VS. MRS. OLABISI OLAIDE ADEROUNMU (2003)2 NWLR (PT. 803) P.1; AKINBON1 VS.AKINBONI (2002) 5 NWLR (PT. 761) P. 564 and OGHOVONE VS. OGHOVONE (2010)3 NWLR (PT. 1182) P.564

On the issue of estopel, counsel posited that estopel is a statutory principle of the law of evidence contained in S. 151 of the Evidence Act 2004, now 5. 169 of the evidence Act 2011 and that by virtue of the provision, an act, omission or declaration forming an estopel must have been done or said INTENTIONALLY, and the person claiming estopel must have believed such representation and acted on same in that belief. Counsel asked the questions whether the 2nd  and 3rd Defendants intentionally issued Exhibits C9, C 10, and C 11 in favour of the Claimant? Did the Claimant believe in the truthfulness of the said Exhibits when he returned to the 2nd  Defendant before his plans were discovered later?

On the issue of non-issuance of letter of termination of appointment, counsel posited that the issue in the cases cited by the Claimant was on the termination of the employment of the Plaintiff while in the instant case, it is of a person who retired from the service, but found his way back illegally. He added that there is no law which requires the Defendants to write to the Plaintiff a letter terminating his appointment after he has retired.

On the issue of fair hearing, counsel submitted that question of fair hearing only arises where a judicial or quasi-judicial authority is exercised one way or the other citing the case of L.P.D.C. V FAWEHINMI 119851 2 NSCC 998.

The reply in relation to the argument against counter Claim shall be considered upon determination of the Counter claim.

In view of all the foregoing, I have painstakingly evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for determination by this court are to wit:

  1. Whether or not,in view of the evidence before this court, the Condition of service applicable to the employment of the Claimant in the course of service with the 2nd Defendant is the Condition of Service for Federal Research Institute, Colleges of Agriculture and Allied Institutions (Exhibit C4).
  2. Whether or not, in view of the evidence before this court, the Claimant retired from the service of the 2nd Defendant upon the expiration of his tenure as Director-General and Chief Executive Officer on the 14th of July 2010 making him unentitled to further payment of salaries.
  3. Whether or not the Claimant is entitled to the reliefs sought in view of the resolution of issues one and two.

Before resolving the issues, let me start by reckoning that all objections relating to the admissibility of Exhibits C13, C41 and C42 have been withdrawn by Counsel to the Defendants while the objections relating to Exhibits DW1(3) and DW1(8) raised by counsel to the Claimant have also been abandoned same having not been addressed in the final written address and the ground of the objection having not been stated in the course of proceedings.

Consequently, Exhibits C13, C41 and C42 on the one hand and Exhibits DW1(3) and DW1(8) on the other hand are hereby admitted in evidence. I must state however that the admission ofa document in evidence and the weight to be attached are two different things altogether.

The court in Abubakar v. Chuks (2007) 18 NWLR (Pt.1066) at pg. 403 para D-F held that:

…a document which is consistent with the pleadings is admissible, if the document is admissible in law. The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence. Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight. Relevancy, which propels admissibility, is invoked by the trial Judge immediately the document is tendered. At that stage, the Judge applies sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the Judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Per Tobi, JSC

In view of the foregoing,  while I find the admitted exhibits relevant, I shall have to consider the evidential value which they possess in the course of the resolutions of the issues for determination before this court.

I therefore proceed to resolving the issues seriatim.

With regards to issue one, which is “Whether or not, in view of the evidence before this court, the Condition of service applicable to the employment of the Claimant in the course of service with the 2nd Defendant is the Condition of Service for Federal Research Institute, Colleges of Agriculture and Allied Institutions (Exhibit C4)”. The resolution of this issue proceeds on the cognizance of the fact that the Claims of the Claimant in this suit is largely in respect of his unpaid salaries which he keenly predicated on the fact that his employment with the Defendants which led to his appointment as a DG/CEO is regulated by a certain condition of service. In view of this background, it is instructive to note that the court in SEVEN-UP BOTTLING COMPANY PLC v. AJAYI(2007) LPELR-8765(CA)stated that:

“It is well stated in many authorities that a condition of service is the bed rock upon which an aggrieved employee must found his case. Therefore in a matter of contract of service, the court will not look outside the terms as stipulated or agreed to therein to decide the rights of the parties. KATTO v. CBN (1999) 5 NWLR PT. 607, 390.”Per SHOREMI, J.C.A (P. 25, paras. A-B).

In addition, the court in the case of DANIEL M. OGBAJE V. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED(2007) LPELR-11855(CA) addressed the status of a condition of service in an employment relation when it held that:

“…They (parties) are bound by those Conditions of Service. Either party cannot waive or resile from the conditions by merely wishing them away or shoving them away by a wave of the back hand. See the case of: N R. C V. Umero Supra at pgs, 277 – 278. The only way there can be a waiver is by subscribing again to another written contract with new set of conditions and terms. See the case of: Prof S. O Abdulraheem& 3 Ors. V. Prof B. J Olufeogba& 43 Ors.(2006) 17 NWLR (Pt. 1008) p. 280 at p. 325” Per OMOLEYE, J.C.A (P. 45, paras. B-E).

That notwithstanding, the Court of Appeal, PER KEKERE-EKUN, J.C.A (as she then was) pronounced on the precaution to be exercised in the consideration of the operative condition of service in the case ofOMALE V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS. (2011) LPELR-4366(CA) when the learned Justice held that:

“In Salami Vs N,N.N. Ltd. (1999) 13 NWLR (634) 315 @ 331 F – H, Omage, JCA (as he then was) referred to dictum of Uwaifo, JCA (as he then was) in UdemahVs Nigeria Coal Corporation (1991) 3 NWLR (180) 477 @ 479 wherein he held thus: “The fact that a defendant is a statutory body does not mean that the condition of service of its employees must be presumed to be of a special character … It is the evidence given which shows the character of the appointment.” (Emphasis supplied) In AzenaborVsBayero University Kano (2009) 17 NWLR (1169) 96 @ 108 – 109 H – F, this court per Augie, JCA held that it is not enough merely to prove that the employer is a creation of statute, there must be proof that employment is directly governed or regulated by a statute or a section of the statute delegates powers to an authority or body to make the regulations or conditions of service as may be. His Lordship held further: “The rules and regulations, which are claimed by an employee to be part of the terms and conditions of his employment, capable of giving of statutory flavour and to be of protection to the employee must (a) have statutory reinforcement or be regarded as mandatory; (b) be directly applicable to the employee or persons of his cadre; (c) be seen to be intended for the protection of that employment; and (d) have been breached in the course of determining the employment.” (Pp.20-21, Paras. A-A)

In view of the foregoing, I have taken due consideration of the contention between the parties in relation to the applicable condition of service regulating the employment of the Claimant while in the service of the Defendant. I say “while in service” because I reckon the averment of the Claimant in paragraph 52 of his statement of fact which states that he is to compulsorily retire from service by October 27, 2015 when he would turn 65. At the time this suit was instituted in September 2015, the Claimant holds the view that he has not retired but I suppose that view can no longer be sustained today even though there is no document before the court terminating the employment of the Claimant. The issue of when the Claimant retired shall also be addressed in due course.

More poignantly on issue one, while the Claimant contends that his employment was regulated by the Condition of Service for Federal Research Institute, Colleges of Agriculture and Allied Institutions and that by that condition of service, he is entitled to continue his service with the 2nd Defendant upon his return from sabbatical and to continue to enjoy his last salary which is that of a DG/CEO being the last office held and which salary is personal to him.

The Defendants on the other hand have contended amongst other contentions captured above that the Claimant’s employment right from the onset was regulated by the Public Service Rules and that the Condition of Service which the Claimant is laying claim to only came into force in 2004 around the time that the Claimant was already serving his first tenure as DG/CEO. The Defendants also contended that the Claimant was responsible for publishing adverts relating to the condition of service applicable to the 2nd Defendant hence he could have done what suits him.

In view of the above contentions, I reckon that the burden of proof lies on the Claimant who first contends that the condition of service for Federal Research Institute, Colleges of Agriculture and Allied Institutions is what regulates his employment. This is the position of the law as stated PER KEKERE-EKUN, J.C.A in OMALE V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS.(supra) that:

“…the burden of proof in civil matters rests on the person who would fail if no evidence were given on either side. It is also trite that the burden of proof of particular facts shifts from side to side throughout the proceedings until all the issues in contention have been dealt with. See Section 139 of the Evidence Act.”PER KEKERE-EKUN, J.C.A (P.22, Paras. A-C).

The learned justice added in the same case that:

“A party who relies on a document in proof of his claim must tender the document as extrinsic evidence of its contents. See ADELAJA V. ALADE (1999) 6 NWLR (PT 608) 544: JIAZA V. BAMGBOSE (1999) 7 NWLR (PT. 610) 182: SUNDAY ANI & ANOR V. THE STATE (2009) 16 NWLR (PT 1168) 443 AT 456.”PER ONYEMENAM, J.C.A.

The Claimant in regard of the holding of the learned Justice  have placed before this court Exhibit C4 which is the said condition of service for Federal Research Institute, Colleges of Agriculture and Allied Institutions. Claimant in addition has presented Exhibits C2 which is his first letter of offer of employment into the service of 2nd Defendant dated 11th June 1993. Paragraph 4 of the said letter states that:

“The appointment is permanent and pensionable. Until the Institute determines the Conditions of service for itself, your appointment will be subject to the conditions applicable in the Public Service Rules and Instructions”.

In view of this paragraph, it is without doubt that the Claimant started off his employment with the 2nd Defendant on the conditions of service contained in the Public Service Rules. But the active word here is “until” which means up to the time another condition of service is reckoned with. It also suggests that there is an anticipation of the application of another condition of service which is not the Public Service Rules.

By the year 2002 when the Claimant was appointed as Director/Chief Executive Officer in the 2nd Defendant, the letter issued to him i.e. Exhibit C5, in paragraph 2 states that:

“this appointment, which is for an initial period of four years will be subject to the current terms and conditions for all Federal Research Institutes and Colleges of Agriculture in Nigeria” (i.e. Exhibit C4).

The Claimant completed his four years and had his tenure renewed. The renewal letter dated 22nd March, 2006, Exhibit C7 said nothing about condition of service but since it is a re-appointment, it is safe to say that the same condition mentioned in the original appointment four years earlier was maintained. I also find that while the letter of appointment into service was headed in the name of the 2nd Defendant, the letters appointing the Claimant as Director/CEO and its upgrade and the re-appointment were headed in the name of the Ministry of Science and Technology.

I reckon via Exhibit C6 that the Claimant’s position was upgraded to DG/CEO from Director in the earlier letter of appointment. The Claimant’s tenure as DG/CEO ended in 2010 and the Claimant sought for his deferred leave and sabbatical leave and contends that upon his completion of the said leaves, he is entitled to return to the 2nd Defendant pursuant to Exhibit C4.

This is where the fact in issue arose from.

I have therefore paid particular attention to the said Exhibit C4 in which case I reckon the contention of counsel to the Defendants that the said exhibit is not signed nor dated and therefore bears no evidential value. In addition, he contended that the document cannot apply to the Claimant in view of the fact that at the time of his employment, it was stated that the Public service rules is the rules applicable and that in addition to that, the conditions of service for Directors-General/Chief Executive Officers of Parastatals under the supervision of Federal Ministry of Science and Technology (Exhibit DW1(3) and circulars (ExhibitsDW1(4),(5),(6),(7) and (8) are what guides the employment of the Claimant.

Counsel to the Defendants having made a heavy weather of the lack of signature and date on Exhibit C4, I hereby take a close look at the said exhibit and find that immediately after the conclusion of the preface to the Conditions of service is a stamp of the Office of the Head of Civil Service of the Federation and a signature with the date 1-1-04.

In addition, the document itself concludes its preface that “the effective date is 1st January, 2004”. In view of this finding, I hold that the said document is dated and signed and all arguments of the Defendants in this regard are discountenanced.

Having said that, while I have stated clearly that the initial conditions of service applicable to the Claimant as at 1993 was the Public Service Rules and that by his appointment as Director in 2002, the condition named in his appointment letter changed to Exhibit C4 and that lays to rest the contention that the Public service rules applies to the Claimant. However, a twist in the tale of event is that the said Exhibit C4 never came into force until 2004 as stated in Exhibit C4 itself. The question is whether this would affect its applicability to the Claimant. There is no gainsaying that conditions of service can change from time to time. In this case, the last tenure of the Claimant started in 2006 and the letter re-appointing him was silent on the conditions of service to be applicable, consequently, I find that the earlier stated conditions of service of his first appointment, which is Exhibit C4 is to be implied and I so hold.

This finding is concretised by the contents of the preface of the said Exhibit C4. A preface is a synonym for ‘preamble’ and the purpose of a preamble was stated in the case of Ogbonna v. A.G. Imo State (1992) 1 NWLR (Pt. 220) 647 to the effect that:

“It is necessary to note that a preamble to an enactment is, as it were, its preface or introduction, the purpose of which is to portray the interest of the framers and the-mischief they set out to remedy. It may sometimes serve as a key to open the understanding of the enactment” Per NNAEMEKA AGU, JSC. (P. 24, paras. A-B).

In view of the above, paragraph 2 and 3 of the preface to Exhibit C4 states that:

2.it is to facilitate the achievement of this objective that the Federal Ministry of Agriculture and Rural Development and the Federal Ministry of Science and Technology have considered it of utmost importance to work towards a qualitative improvement in the conditions of service of staff of the Federal Research Institutes, Colleges of Agriculture and related Institutions.

3.it is pertinent to mention that there are more than 40 Research Institutes and 13 Federal Colleges of Agriculture that are involved in the National Research Systems (NARS) and manpower development in the sector. These Institutions which are involved in mandates that are multi-sectoral, namely: Agriculture, Industry’s Environment, Health and Pharmaceutical, Energy, etc. have been operating under unahrmonized conditions and scheme of service resulting in rampant industrial unrests. Accordingly, it was decided that a harmonized condition and schemes of service be developed for presentation to government for approval to forestall these problems.

Consequent upon the preface, I reckon that it is the same Federal Ministry of Science and Technology who partook in the preparation of Exhibit C4 that also mentioned in Exhibit C5 that the appointment of the Claimant shall be subject to Exhibit C4.

Having said that, I must state thatI am not oblivious of certain discrepancies pointed out by counsel to the Defendants such as the provision of Paragraph 6.4.(b) which mentions “’Executive Director’ who have served for 5 years term”. He contended that in the case of the Claimant, he was a Director-General/Chief Executive Office and this is different from the words ‘Director/Provost’ used in Exhibit C4. Also, he contends that the tenure of the Claimant was that of two terms of 4 years each.

While I reckon these contentions, I must state that the discrepancies must be resolved in favour of the subject being the employee while applying fortissime contra proferentes rule of interpretation, see the case of Okotie-Eboh v. Manager (2004) 18 NWLR (Pt.905) 242. See also Bello v. Diocesan Synod of Lagos (1973) 3 SC 103, A.-G ..Bendel State v. Aideyan (1989) 4 NWLR (Pt. U8) 646; Abioye v. Yakubu (1991 5 NWLR (Pt. 190) 130; Din v. A.-G of the Federation (1988) 4 N.W.L.R. (Pt. 87) 147, Peenok Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122.

Consequent upon the above findings, issue one is resolved in favour of the Claimant to the effect that in view of the evidence before this court, the Conditions of service applicable to the employment of the Claimant in the course of service with the 2nd Defendant is the Condition of Service for Federal Research Institute, Colleges of Agriculture and Allied Institutions (Exhibit C4).

I then proceed to issue two, which is “Whether or not, in view of the evidence before this court, the Claimant retired from the service of the 2nd Defendant upon the expiration of his tenure as Director-General and Chief Executive Officer on the 14th of July 2010 making him unentitled to further payment of salaries”.

In resolving this issue, I take cognizance of the fact that the resolution of this issue rests on the resolution of issue one and the contention relating to this issue springs from the fact that the Claimant upon the completion of his tenure as DG&CEO on the 14th of July, 2010 had his tenure extended for three months via Exhibit C8, a letter dated the 20th of July 2010 which emanated from the 3rd Defendant. The purpose of the extension which was to enable the Governing Board to conclude the process of appointing a new DG.

This court finds from the available evidence before this court that perhaps there was indeed an ambiguity in relation to what happens to the service of the Claimant upon the end of his tenure as DG/CEO. This is in view of the fact that in the course of the three months extension, the Chairman of the 2nd Defendant via Exhibit C11 communicated to the Claimant, the resolution of the Governing Board of 2nd Defendant with regards to the status of the Claimant after his tenure as DG/CEO of the 2nd Defendant. The resolution was that by certain circular (Exhibit C40) forwarded to all its parastatals by Federal Ministry of Science and Technology which stated that Academic/Research staff were excluded from retiring from service after (8) years of Directorship, the Claimant being a Research Officer is not retiring from service at the end of his tenure as DG/CEO and can remain to continue with research work if he so wishes.

Based on the said Exhibit C40 and C11, the Claimant applied for his deferred and sabbatical leave at the end of the extended three years of his tenure and same was approved by the 2nd Defendant via Exhibit C9 and C10 respectively. The said exhibit C9 which approved the deferred leave stated that the claimant should resume duty on 20th December, 2011 while Exhibit C10 which approved the sabbatical leave stated that the sabbatical leave takes effect from 20th December, 2011.

The Claimant commenced his supposed sabbatical leave at the Energy Commission of Nigeria (ECN). In actual fact, the Energy Commission did not take the Claimant on sabbatical, he was taken on contract employment. The Claimant while applying for sabbatical leave via Exhibit C42 dated the 3rd of February, 2011 had initially intended to observe the sabbatical at the National Research Institute for Chemical Technology (NARICT) Zaria but later applied to ECN  whovia Exhibit C37 dated 25th May, 2011, offered the Claimant a contract appointment.  The Claimant via Exhibit C38 dated 15th July, 2011 wrote to the ECN to posit that the contract appointment was not what he sought for and was not appropriate for him as he was still a member of staff of the 2nd Defendant. The ECN perhaps did not yield going by Exhibit C39 dated 13th December, 2011 and the Claimant continued with the ECN nevertheless.

Before the supposed sabbatical leave commenced with ECN, the Claimant did what perhaps triggered this suit by applying via Exhibit C12 dated the 18th of April, 2011 to the DG, Budget office of the Federal Ministry of Financefor Remuneration package for political, Public and Judicial Office Holders which was a severance Gratuity of 300% of his Annual basic salary computed at N5,777, 595.00. The said money was  paid to the 2nd Defendant perhaps for onward transfer to the Claimant. This gave the Defendants a second thought on the status of the Claimant with the 2nd Defendant.

Upon receiving the payment, the 2nd Defendant via exhibit C13 dated 19th of December, 2011 informed the Claimant that gratuity cannot be paid twice and that the payment represented the retirement of the Claimant however, the money is to be paid to the Claimant in view of year-end financial mopping but the Claimant’s salary would be suspended pending the clarification from the Ministry of Science and Technology.   The Claimant returned the money backed by Exhibit C14, a letter dated 30th December, 2011 due to thedecision of 2nd Defendant to suspend his salary and maintained that same amounted to suspending him without cause. He also urged the management to keep the money until the issue of his gratuity is resolved.

The 2nd Defendant via Exhibit C15, a letter dated 15th January, 2012 reiterated why it decided to pay the gratuity to the Claimant and via another letter dated 15th August, 2012, the 2nd Defendant informed the Claimant of the payment of the money into the Claimant’s account less the Claimant’s indebtedness to the 2nd Defendant.

The failure to restore the salary of the Claimant led to several correspondences between the Claimant,the 2nd Defendant and the Federal Ministry of Science and Technology which eventually led the Claimant to seek the services of his lawyers to write to the Head of Civil Service of the Federation via Exhibits C25 dated 17th July, 2013, Exhibit C26 dated 25th March, 2014 and Exhibit C27 dated 11th June, 2014. The Office of the Head of Civil Service of the Federation (OHCSF) eventually wrote Exhibit C28 dated the 11th of September, 2014 addressed to 3rd Defendant and copied to the DG/CEO of the 2nd Defendant and received by same on the 10th of October, 2010. The said Exhibit C28 asserts the position of the OHCSF to the effect that by section 6.4.(b) of Exhibit C4 which is the approved condition of service for the 2nd Defendant, the Claimant can validly return to the service of the 2nd Defendant as Research Director.

The 2nd Defendant did not yield the directive of the OHCSF on the ground that the information supplied to the OHCSF were not sufficient nor accurate. Aside from this ground, counsel to the Defendant contended that the Chairman who issued the resolution that the Claimant can return to service was misdirected or misinformed and that the resolution of allowing the Claimant return to service was illegal and therefore paying him salaries would be illegal. He also canvassed that the end of the tenure of the Claimant as a political appointee signalled the end of the career of the Claimant as a career civil servant. He also contended that Claimant knew he had retired having proceeded to register with his pension administrator. Counsel also posited that Exhibits C11, C28, C30, C33 and C34 were made on either a mistaken or deliberate mischievous impression that exhibit C4 applied to the Claimant.

Without much further ado, I must state that I have taken due consideration of the contentions of the Defendants and I have also taken a look at the Provision of paragraph 6.4 (b) of Exhibit C4 and I find that the provision states that:

“An Executive Director/Provost who have served his full term of five years satisfactorily and wishes to continue in his services with the institution shall be allowed to proceed on 12 months Sabbatical leave such shall retain the post of Director/Chief Lecturer on return to the institute to continue with his service and shall be allowed to retain the salary as being personal to him”

I also considered paragraph 13.4 of the said Exhibit C4 in relation to retirement and same provides thus:

“A pensionable staff of the Institute or College shall not continue pensionable service beyond the age of 60 years or 35 years of pensionable service whichever comes first. However, Research Academic cadre staff may continue until they attain 65 years of age as obtainable in the Nigerian University.”  

I have earlier held that the discrepancies in Exhibit C4 is to be resolved in favour of the Claimant and also held that the said Exhibit C4 is the Conditions of Service applicable to the Claimant. This position in line with the holding of the Court that conditions of service is binding between parties, makes it a firm holding of this court that the Claimant in view of the Evidence before this court was not retired as at the end of his tenure as DG/CEO of the 2nd Defendant. For the sake of reiteration, the court in the case of DANIEL M. OGBAJE V. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED(2007) LPELR-11855(CA) held that:

“…They (parties) are bound by those Conditions of Service. Either party cannot waive or resile from the conditions by merely wishing them away or shoving them away by a wave of the back hand. Per OMOLEYE, J.C.A (P. 45, paras. B-E).

I am not oblivious of the fact that the Claimant had a contract appointment with the ECN nor the fact that the Claimant filled registration form indicating his retirement. While I have addressed the circumstance surrounding the contract appointment with the ECN, the implication of which would be addressed in due course, I reckon that same did not establish the intent on the part of the Claimant to retire and same does not represent his retirement. With respect to the registration with Pension Commission, the Defendant established the background with exhibits DW1 (9), (10), (11), (12), (13) and (14). I reckon that the said exhibits were in view of the initial incongruity surrounding the status of the Claimant after his tenure on 14th July, 2010. The said exhibits in relation to registration were  prepared prior to the Clarification made in respect to the status of the Claimant with the 2nd Defendant via Exhibit C11which is dated 10th August, 2010. As a matter of fact, the form filled by the Claimant himself and submitted to Pension Commission is dated 11th January, 2010. The Claimant also wrote, Exhibit C32 to the DG, Pension Commission of his status as having not retired. He also wrote Exhibit C33, a letter dated the 23rd August, 2012 to his pension managers to state that he has not retired. All of this were subsequent to exhibit C11.

I must state that I reckon the incongruity in the employment of the Claimant but I must add that the Defendants are themselves the architects of the incongruity The defence of mistake or misdirection or misinformation that counsel to the Defendants attempted to create cannot stand in the face of the convincing and credible evidence placed before this court by the Claimant.

I agree with counsel to the Claimant that the Defendants are to be estopped from reverting from the condition of service which they held out to be applicable to the Claimant upon his appointment as Director which has supplanted the earlier Public Service Rules mentioned in his letter of offer of employment.

The said exhibit C11 which stated to the effect that the Claimant shall not retire at the end of his tenure as DG/CEO, a statement in line with Exhibit C4, the Conditions of Service applicable to the Claimant, is presumed regular in the absence of any thing to rebut same having emanated from the appropriate authority. The presumption is applicable in view of the fact that the said Exhibit C11 is an act and position asserted by the 2nd Defendant in official capacity and the court in the case of NDUKA & ORS v. SULE (2013) LPELR-23629(CA) in this regard held that:

“Presumption of regularity is a principle applied in evidentiary evaluation that transaction made in the normal course of business are assumed to have been conducted in the usual manner unless there is evidence to prove otherwise, where it has been proved that an official act has been done, it will be presumed until the contrary is proved, that the said act complied with any necessary formalities and that the person who did it was duly appointed to do so.” Per ORJI-ABADUA, J.C.A. (P. 22, paras. A-B)

The said Exhibit C11 was a document prepared in the normal course of determining the employment status of the Claimant and the Defendants have not denied the making.

Having stated that the Claimant remained in the employment of the 2nd Defendant after the end of his tenure as DG/CEO on the 14th of July, 2010 and the extended three months in the same office, the Claimant, pursuant to paragraph 6.4(b) and 13.4 of Exhibit C4 is therefore entitled to salaries accordingly as a subsisting employee of the 2nd Defendant until he compulsorily retired.

Before concluding on this issue, I must state that the resolution of issue two particularly with respect to “further payment of salaries”is resolved in cognizance of the periods for which the Claimant was on Contract appointment with the Energy Commission of Nigeria. While the Claimant, validly applied for sabbatical and was indeed granted approval for same. He did not proceed on sabbatical but rather took a contract appointment with the Energy Commission of Nigeria. The Claimanthimself, via exhibit C37 dated 25th May, 2011, established the fact that he was offered a one year contract appointment. The Claimant accepted the offer by virtue of Exhibit DW2(4) dated 31st May, 2011 and raised no objection therein. By Exhibit C39, dated 13th December, 2011, his appointment was approved by the Board of the ECN. Before the Board approval however, the Claimant wrote exhibit C38 dated 15th July, 2011 to the DG/CEO of ECN to notify the ECN that the contract appointment offered to him was not appropriate for him at the time since he was still a member of staff of the 2nd Defendant. this was after the Claimant had accepted the offer and after the contract had taken effect on the 1st of June, 2011 going by Exhibit DW2 (4).

ECN did not terminate the appointment upon receiving the said Exhibit C38, neither did the Claimant resign nor determine the appointment. In fact, the Claimant applied for a renewal of the appointment twice. The first was by Exhibit DW2(6) dated 2nd April, 2012 for the renewal of the appointment which ended on 31st May, 2012 and Exhibit DW2(8) dated 4th March, 2013 for the renewal of the appointment which ended on 31st May 2013.

Upon the first application for renewal, the ECN granted same for one year as against the two years sought for via Exhibit DW2(7). The Claimant himself in the course of cross examination admitted he was at the Commission for two years and there is no evidence that the second application for renewal of appointment was approved.

In the course of Claimant’s engagement with ECN, he was issued a Contract Appointment Agreement which the Defendants tendered as Exhibit DW2(3) dated 31st May, 2011. Arising from the said Exhibit DW2(3), Claimant earned N4,410,600.96 as a salary per annum on CONRAISS 15 Step 9.

In view of the foregoing, this court holds that the salaries to be paid to the Claimant shall exclude the two years period for which the Claimant took up contract appointment with the ECN, same having clearly not being the sabbatical for which the Claimant sought and for which he obtained approval.

Consequently, issue two is resolved in favour of the Claimant to the effect that in view of the evidence before this court, the Claimant did not retire from the service of the 2nd Defendant upon the expiration of his tenure as Director-General/Chief Executive Officer on the 14th of July 2010 making him entitled to further payment of salaries less two years.

 

Issue three which is “Whether or not the Claimant is entitled to the reliefs sought in view of the resolution of issues one and two” relates to the reliefs sought by the Claimant in in this suit. Reliefs a-f are clearly declaratory reliefs and the court inBagudu v. F.R.N. [2004] 1NWLR (Pt.853)182 while describing the nature of declaratory reliefs held that:

“Declaratory reliefs are not only a form of equitable relief, they are statutory/rights as well as constitutional rights. Its judgment (declaratory judgment) broadly speaking, is just a pronouncement of the legal state of affairs. Although it is complete standing alone, it is by itself not enforceable in law see (1) Govt. of Gongola State v. Tukur (1989) 4 NWLR (Pt.117) 593. (2) Ogunlade v. Adeleye (1992) 8 NWLR (Pt.260) 409 and (3) Akunnia v. A.-G., Anambra State (1977) 5 SC 161. Perhaps I should add that declaratory judgment can even be granted without any consequential relief adjoining it see Ekwuno v. Ifejika (1960) SCNLR 320; (1960) 5 FSC 156.” Per ADEREMI, J.C.A. ( Pp. 26-27, paras. E-A

 

In IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE &ORS (2012) LPELR-8621(CA) the court with regards to the entitlement to declaratory reliefs held that:

“Declaratory reliefs are not granted as a matter of course but on credible evidence led. This is so even where the other partly admits the claims. See David FabunmiVsAgbe (1985) 1NWLR (pt.2) 316.”Per TSAMIYA, J.C.A.(P. 22, para. A

It is in view of the above authorities that the declaratory reliefs are considered as follows:

With regard to relief a, the Claimant wants a declaration that the decision of the 1st and 2nd Defendant to threaten and actually threaten and bar the Claimant from the premises of the 2nd Defendant and discontinue any subsequent involvement with the Claimant is a breach of the Claimant’s fundamental right to personal liberty, association and freedom of movement. I have considered all the Exhibits before the court and cannot find any of the Exhibits tendered by the Claimant as containing threat, or bar from the premises of the 2nd Defendant.

For the lack of cogent and convincing evidence, relief ‘a’ is accordingly refused.

With regards to relief ‘b’, which is “a Declaration that the deliberate and unilateral suspension of the Claimants salaries and Allowances by the Defendants in the circumstances of this case, without notice, reason and without affording the claimant an opportunity to be heard as to otherwise, is unlawful and a breach of his Fundamental Right(s) to Fair Hearing and Dignity of Human Person”, I have also reconsidered exhibit C13 which the Claimant himself tendered. The said exhibit notified the Claimant that his salary will be suspended and the reason for the suspension was due to the gratuity paid in favour of the Claimant which the Defendants considered as representing the retirement of the Claimant and the suspension was pending the clarification to be made by the Defendants. In view of this piece of evidence, I do not consider this a breach of the Claimant’s right to fair hearing and I so hold.

Relief ‘c’ is a Declaration that the reduction of the Claimant’s monthly salary by the Defendants from N922 ,810.33 (inclusive of tax and allowances) to N442, 143.33(inclusive of tax) for a period of 9 months from April 2011 to December 2011, is not justifiable and therefore is malicious, unlawful and illegal. The Claimant has for the purpose of this relief tendered Exhibits C22 which is a Pay Advice in an attempt to establish how much he was supposed to be earning as paid in the month of February, 2011 and what he was paid by way of reduction in September, 2011.

While I reckon that the full salary stated in the declaration is N922 ,810.33 (inclusive of tax and allowances), what I find in the Pay Advice (Exhibit C22) is the sum of N886,205.51 for the month of February while that of September is indeed N442, 143.33 as claimed.

Notwithstanding the difference, it is established that the salary of the Claimant was indeed reduced and same can be said to be deliberate and without justification.  Consequently, relief ‘c’ is granted to the effect that this Courts makes a Declaration that the reduction of the Claimant’s monthly salary by the Defendants to N442, 143.33(inclusive of tax) for a period of 9 months from April 2011 to December 2011, is not justifiable and therefore is malicious, unlawful and illegal.

Relief ‘d’,‘e’ and ‘f’ are related:

While relief ‘d’ is for  “a Declaration that the Claimant is still in the Public Service of the Federation as a Substantive Staff of the Nigerian Building and Road Research Institute (NBRRI) -(2ND Defendant), until his Compulsory retirement on 27th October, 2015, and is entitled to all the rights, privileges and benefits as a Public Servant in the Public Service of the Federation”;

Relief ‘e’ is for “A Declaration that the Claimant is entitled to continue to enjoy the amount of salary he was earning as the Director-General/Chief Executive Officer of the Nigerian Building and Road Research Institute (NBRRI) until his Compulsory retirement on 27th October, 2015”.

And relief ‘f’ “A Declaration that the Claimant is entitled to continue to enjoy and benefit in the statutory monthly contributory pension scheme from the year April 2011 when it was wrongly and unliterary reduced and further stopped until the Claimant’s compulsory retirement from service in October 2015”.

The said reliefs are predicated upon the findings of this court in the resolution of issues one and two above. The Claimant tendered exhibits C4 to establish same as the Condition of service applicable to him in the service of the Defendants and same being the determinant of what happens to him upon his successful completion of his tenure as DG/CEO of the 2nd Defendant coupled with Exhibit C11 wherein the 2nd Defendant communicated to the Claimant that he could return to the service as Director if he so wishes. Consequent upon the convincing evidence placed before this court and the resolution that the Claimant did not retire as at 14th of July 2010 when he completed his tenure as DG/CEO of 2nd Defendant, the said relief ‘d’, ‘e’ and ‘f’ are granted.

Relief‘g’ is“An Order compelling the Defendants to pay, restore and/or remit all the claimant’s statutory pension benefits and allowances, from the year 2011 when it was wrongly and unilaterally reduced and stopped, until the Claimant compulsory retirement from service in October 2015”. The said relief is also dependent on the resolution of issues one and two and consequently same is granted.

Relief ‘h’ which is“An Order compelling the Defendants to Pay the Claimant the total sum ofFOUR Million, Three Hundred and Twenty-Six Thousand Three Naira(N 4, 326,003.00) being the outstanding balance on the Claimant’ssalaries which was reduced by the Defendants from the Month of April 2011 to December 2011”and relief ‘j’ which is “An Order compelling the Defendants to pay the Claimant all his Salaries, Allowances and Entitlements from January 2012 until his (the Claimant) employment is validly determined in accordance with the Claimant’s Condition of Service, amounting to N40,603,654.52 (Forty Million, Six Hundred and Three Thousand, Five Hundred and Fifty-Four Naira, Sixty-Six Kobo only), at N 922,810.33 (Nine Hundred and Twenty two thousand, Eight Hundred and Ten Naira, Thirty three Kobo) per month” both relate to specific  amount of money as the claimants unpaid salaries.

In consideration of reliefs ‘h’ and ‘j’, I find that the only piece of evidence before this court in relation to the Claimant’s full salary is Exhibit  C22 for which the full pay for the month of February 2011 is N886,205.51. In view of the said exhibit, it is not certain how much is outstanding per month and consequently uncertain how the Claimant arrived at the said amounts in both reliefs. That notwithstanding, in the case of Eze v Gov, Abia State (2014) 14 NWLR (Pt.1426) 192, the Supreme Court observed that no evidence was led to establish the sums due to the Appellants as salaries and allowances. The Supreme Court however went ahead to hold that since all courts are courts of law and equity and since unpaid salaries are necessary and it was appropriate to order that the appellants be paid their salaries and allowances for the period that they were out of office. The Supreme Court accordingly ordered that the Applicants be paid immediately all their salaries and allowance for 23 months.

In the instant case, the equity of the case also demands that the Claimants be paid all outstanding balance of his salaries for the months of April to December 2011 and also his salaries for the periods he was in employment of the Defendant up to the period of his compulsory retirement although less the period of two years of contract appointment with ECN.

Reliefs ‘l’ and ‘n’ are related to the pension of the Claimant.The said reliefs are predicated upon the grant of the reliefs relating to salaries and same are rights of the claimant which are constitutionally guaranteed by virtue of section 173 of the CFRN 1999 as amended and as contended by counsel to the Claimant. However, the computation made by the Claimant is not evidentially substantiated and same cannot be ascertained in view of Exhibit C22. That notwithstanding, the pension of the Claimant cannot be withheld upon being found to be entitled to same. Consequently, reliefs ‘l’ and ‘n’ are granted to the extent that the Defendants are ordered to compute and pay the Claimant’s statutory monthly contributory pension from April  2011 to December 2011 and also that of January 2012 to October, 2015 to the appropriate contributory body.

Reliefs ‘i’ and ‘k’, are respectively related to 10% interest computations on the outstanding salaries of the Claimant that was reduced from April 2011 to December 2011 and his unpaid salaries from January 2012 to October, 2015.   While reliefs ‘m’ and ‘o’ are related to the Claimant’s statutory monthly contributory pension from April 2011 to December 2011 and also that of January 2012 to October, 2015 which were unremitted. The Claimant sought this relief on the ground that the naira has been devalued in the last three years. I must posit that there is no evidence upon which such interest accumulated upon the Claimant’s unpaid salaries and unremitted contributory pension. The said reliefs ‘i’, ‘k’, ‘m’ and ‘o’ are accordingly refused.

Before addressing the remaining reliefs, I must reiterate that the entitlements ordered to be paid above are less the two years for which the Claimant took contract appointment at ECN.

With regards to other reliefs, relief ‘p’ is considered to be general damages as the said reliefs reads:

“An Order Directing the Defendants to pay to the Claimant the sum of N500,000,000.00 (Five Hundred Million Naira) only representing General and Aggravated Damages”.

It is the position of the law that general damages needs no specific details. The court in Nwachukwu V Egbuchu (1990) 3 NWLR (Pt 139) 433 at 445 while defining general damages said:

“it is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The principle of ubi jus ibiremediumwill apply here – there is no wrong without a remedy.” Per Onu JCA.

Furthermore, the court in UBN PLC v. AJABULE & ANOR(2011) LPELR-8239(SC) described general damages thus:

“General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.” Per FABIYI, J.S.C (P. 32, paras. C-E) see also Nwachukwu V Egbuchu (1990) 3 NWLR (Pt. 139) 433 at 445.

In view of the long spell of this case and the consideration that the long hold on the payment of the Claimant’ s salary is an act of the Defendant which has caused the Claimant some wrong, I find it appropriate to award general damages in the sum of N200,000.00 to the Claimant and against the Defendants.

Relief ‘q’ is“An Order for the payment to the Claimant by the Defendants, the sum of Ten Million Naira (N10, 000, 000.00) only, representing damages for their violation of the Claimant’s Fundamental Rights”. The grant or otherwise of this relief is predicated on the declaratory reliefs sought in reliefs ‘a’ and ‘b’. Consequent upon the finding that no such fundamental right was breached and the eventual refusal of reliefs ‘a’ and ‘b’, the said relief ‘q’ is also accordingly refused.

Relief ‘r’ seeks ten Percent (l0%) post judgment interest till the entire judgment sum is fully liquidated. The grant of this relief is predicated on the discretion of the court as Order 47 Rule 7 stipulates that the Court may at the time of delivering judgment or making the order give direction as to the period within which payment is to be made and may order interest at a rate not less than 10% per annum. In view of this provision, the benchmark set by the rule is 10% and that is what the Claimant has sought for.

In view of the forgoing, relief ‘r’ is granted to the effect that the reliefs granted and the orders made by this court, in this suit, in respect of monies to be paid, are to be complied with within 60 days of the delivery of this judgment after which they shall attract 10% interest per annum.

Issuethree is therefore resolved accordingly.

In the final analysis, I find that the claim of the Claimant to be meritorious and same is accordingly determined to the extent of the reliefs that have been granted.

Before I conclude, it is apposite to separately determine the Counter-Claim before this court and in that light, I take into account claims made by the Counter-claimant and the contentions relating thereto.

The reliefs sought by the Defendants/Counter-Claimants are to wit:

  1. AN ORDER of this Honourable Court, dismissing all the claims of the Claimant against the Defendants in this suit as unfounded and lacking in merit;
  2. AN ORDER directing the Claimant/Defendant to the Counter-Claim to refund the 1st and 2nd Counter-Claimants the sum of N3,668,379.00 (Three Million, Six Hundred and Sixty-Eight Thousand, Three Hundred and Seventy-Nine Naira only) representing Salaries and other payments honestly but erroneously paid the Defendant to Counter-Claim by the 1st and 2nd Counter- Claimants on the mistaken believe that the Defendant to the Counter-Claim was still in the service of the 2nd Counter-Claimant.
  3. AN ORDER directing the Claimant/Defendant to Counter-Claim to pay to the Counter-Claimants the sum of N1,850,000.OO (One Million, Eight Hundred and Fifty Thousand Naira only) representing cost incurred by the Counter-Claimants by way of Legal Fees and cost for filing of processes in defending the Claimant’s action and this Counter-Claim.
  4. Interest at the rate of 10% per annum on the total judgment sum which may be awarded in favour of the Counter-Claimants against the Defendant to Counter-Claim from the date of judgment till same is fully and finally satisfied.

The case of the counter-claimant in this regard is that the Defendant was erroneously paid the Claimant salaries from the month of April 2011 to December 2011 on the mistaken believe that the Claimant was still in the service of the 2nd Counter-claimant having fraudulently maneuverered  his way to remain on the pay-roll of the 2nd Counter-Claimant even after retirement and having misled the Board of Governors of the Counter-Claimant to wrongly approve his return as a Director in the Counter-Claimant.The Counter-Claimant therefore demand a refund of the earned salary amounting to N3,668,379.00 (Three Million, Six Hundred and Sixty-Eight Thousand, Three Hundred and Seventy-Nine Naira only). They also want the Defendant to bear the cost of engaging their lawyer and post judgment interest of 10%.

The Defendant to the Counter-claim on his part, through the reply to the statement of Defence filed by the Counter-claimant, denied all allegations and adopted his reply to the statement of defence to the effect that the Defendant is required to proof strictly the allegations of fraud.

Arising from the final written address  of the Counter-Claimant, learned counsel to the Counter Claimant, F.K. Kharmaghan by issue four therein addressed the counter-claim to the effect that the Defendant to the Counter-claim has not denied that he was paid the said salaries but his defence was that he was entitled to it.  Counsel added that the Claimant is unable to proof that he was subject to Exhibit C4. On the fact that the money paid should be returned being money had and received, Counsel cited the cases of INNOCENT MADUFOR OZIMS V. EDWARD ANORUO 1199113 NWLR (Pt. 181) 571 and CHARTERED BANK LIMITED V FIRST AFRICAN TRUST BANK LIMITED CAJL/403/99.

With regards to cost of litigation, counsel contended that by tendering Exhibits DW2(19) &(20) which evidenced the agreement between the Counter-claimant and their counsel in respect of defending this suit, the Counter-Claimant is therefore entitled to the relief. He cited the case of THE OBROS AUTO-LINK NIG. LTD V BAKELY INTERNATIONAL AUTO ENGINEERING CO. LTD. 120131 2 NWLR (PT. 1338) 337  on the position that cost is at the discretion of the court and urged the court to exercise discretion in granting the relief.

With regards to post judgment sum, counsel cited the case of IDAKULA V. RICHARDS (2000) FWLR (PT. 14) p. 2439 while submitting that it is trite and longstanding practice of our courts, as well a principle intrinsically recognised by the Rules of this Honourable Court, to award interest on judgment sum awarded in favour of a party. He also cited Order 47 Rule 7 of the Rules of this Honourable Court.

On the whole, counsel urged the court to grant the reliefs as per the counter-claim while dismissing the main claim.

The Defendant to the Counter-claim on his part also addressed the counter-claim in his final address. Counsel to the Claimant/Defendant to the Counter-Claim, M.J. Haruna formulated an issue in this regard to wit:

Whether the Defendants are entitled to their counter-claim

In arguing this issue, counsel contended that the Counter-claimant have not proved to this Honourable Court that the Claimant was not entitled to the sum they are asking for. He added that asking the Defendant/Claimant to be responsible for their Solicitors fees is certainly against Public policy as it was their negative actions against the Claimant that led to the institution of this Suit. he cited the case of Bilante Int’l Ltd. v. N.D.I.C (2011) 15 NWLR (Pt. 1270) 407 at pages 428-429paras F-B on the position that a counter-claim is a separate and independent action.

In view of the foregoing, the sole issue for the determination of the Counter-claim is to wit:

Whether or not the Counter-claimants are entitled to the reliefs sought.

In addressing this sole issue, I must state that I take cognizance of the position of the law that a counter-claim is a separate and independent suit and there is no gainsaying that a counter-claim survives the main suit whether or not it succeeds. The court in Zenith Bank &Anor.v. Ekereuwem&Anor (2011) LPELR-5121 CA, held that:

“It is the law that a Counter-claim is a claim on its own in the same suit whereby the Defendant becomes a Plaintiff or Claimant and the Plaintiff in the action itself becomes a Defendant for the purposes of the Counter-Claim. The procedure of a Counter-Claim is resorted to where the facts of the Plaintiff’s case are also conceived by the Defendant as giving rise to his own reliefs, and claims such relief therein to avoid multiple actions. Thus, the Counter-Claim must pass the test of Pleadings and the burden of proof of assertions under Sections 135 and 137 of the Evidence Act”.

It is in view of the foregoing that I have set out distinctly, the issues relating to the counter-claim. That notwithstanding, I am not unmindful of the fact that the major issue arising from the counter-claim has been painstakingly dealt with in the main suit and therefore, the determination of the counter-claim is largely dependent on the resolutions reached in the main suit.

For  want of emphasis however, although with less labour to it, I must state that in view of the claim for refund of salaries paid to the Claimant in April 2011 to December 2011, issues one and two resolved in the main claim addresses this claim to the extent that this court found that Exhibit C4 which is the conditions of service applicable  to the Claimant provides in Paragraph 6.4.(b) to the effect that the Defendant to the counter-claim can return to the service of the 2nd Counter-claimant and consequently would be entitled to the last salary as being personal to him. It was in view of this that the court also held that the Defendant to the counter-claim did not retire from the service of the 2nd Counter-claimant upon the lapse of his tenure as the DG/CEO of the 2nd Counter-claimant. This is also in cognizance of the fact that the Counter-claimants themselves issued Exhibit C11 which informed the Defendant to the Counter-claim that he should return as Director and not retire from the 2nd Counter-claimant upon the end of his said tenure.

Consequent upon the above, the salaries earned by the defendant to the Counter-claim are rightfully earned even though they are less his regular salary. More importantly, I must state that the allegation of the said salaries being fraudulently obtained is a criminal allegation which must be proved beyond reasonable doubt. The court in KAKIH v. PDP &ORS(2014) LPELR-23277(SC)  held that:

“By the clear provision of section 135 (1) of the Evidence Act, if the commission of crime by a party to any proceeding is directly in issue of any proceeding in civil or criminal matter, it must be proved beyond reasonable doubt.”Per GALADIMA, J.S.C (P. 52, para. A).

With regards to what is reasonable doubt, the court in State v. Azeez (2008) All FWLR (Pt. 424) 1423 at Pp. 1458 – 1459, paras F – Aheld that:

“The obligation of the prosecution is to prove the whole crime, including the negative of defences which are in issue, such as alibi in the instant case. Accordingly, an accused who pleads not guilty, casts upon the prosecution the burden of proving facts in issue and if, when the totality of the evidence has been heard and considered, the court is not satisfied beyond reasonable doubt, it must acquit. A reasonable doubt may be created in the mind of the trial Judge either by the evidence adduced by the defence or by the prosecution. All it means is that, the prosecution must adduce such evidence which if believed and if left uncontradicted and unexplained, it could be accepted by the trial court as proof. Thus, proof beyond reasonable doubt does not mean proof to a scientific certainty…Woolmigton v. DPP (1935) AC 462”.Per Mohammed JSC.

In view of the above authorities, aside from the fact that the Counter-claimants have not placed any cogent and convincing evidence to prove that the Defendant to the Counter-claim misdirected the board of the 2nd Counter-claimant in being issued with Exhibit C11, this court has found that the presumption of regularity sways in favour of the Defendant to the counter-claim in respect of the said exhibit.

Consequent upon the forgoing, the counter-claim in respect of the refund of salaries earned and an order dismissing the claim of the Defendant to counter-claim are accordingly refused.

With regards to cost of suit, there is no gainsaying that costs are granted at the  discretion of the court. The court in the case of AFRICAN CONTINENTAL BANK LTD. & ANOR. v. AJUGWO (2011) LPELR-3637(CA) held that:

“It is trite that the award of costs is always at the discretion of the court but such discretion must be exercised judiciously and judicially.” Per OSEJI, J.C.A. (P.41, Para.G)

In addition, the court in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) held that:

“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather, it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd &Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.”Per SANUSI, J.C.A. (P. 73, paras. D-F).

Upon a due consideration of the main suit and the eventual failure of the counter-claim, I do not find the counter-claimants worthy of the discretion in the award of cost and same is accordingly refused.

In the final analysis, the sole issue in determining the counter-claim is resolved against the counter-claimants to the effect that the Counter-claimants are not entitled to the reliefs sought.

Consequently, the case of the counter-claimants is dismissed for lacking merit.

Judgment is accordingly entered.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.

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