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National Industrial Court

ABDULLAHI MUHAMMAD GUSAU & ORS -VS- FEDERAL COLEGE OF EDUCATION (TECHNICAL)

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

 

BEFORE HONOURABLE JUSTICE K.D.DAMULAK

ON THURSDAY THE 19TH DAY OF JULY, 2018

SUIT NO.NICN/KN/40/2016

BETWEEN

  1. ABDULLAHI MOHAMED GUSAU
  2. LAWALI HAMIDU GUSAU ……………………………………………… CLAIMANTS

AND

FEDERAL COLLEGE OF EDUCATION (TECHNICAL)

GUSAU                                                                                    ……………………… DEFENDANT

REPRESENTATION

  1. Mohamad Shamsudeen Esq.for the claimants.
  2. A. Tambari Esq. for the defendants.

 

JUDGMENT

1.INTRODUCTION

The claimants commenced this suit before this Court at the Kano Judicial Division by a complaint dated and filed on 11/8/2016, accompanied by all the required documents in line with the Rules of this Court. The claimants are asking for the following reliefs;

  1. A declaration that the Claimants being Public Servants in the pensionable employment of the Defendant, are entitled to the payment of their withheld salaries and monetization, pensions and gratuities, upon the determination of the contracts of employment existing between the Claimants and the  Defendant on the 24th June, 2011.
  2. A declaration that the letters dated 29th December, 2010 purporting to suspend the Claimants are unlawful, illegal and of no effect, since the 1st Defendant woefully ran foul of chapter 6.6.1 of the Regulations.

iii.               A declaration that the Defendant’s letters dated 24th June, 2011 purporting to terminate the Claimant’s appointments are wrongful and of no effect as the  Defendant did not follow the provisions of chapter 7.2 of the Regulations.

  1. An order commanding the defendant to pay the Claimants each their entitlements including their withheld salaries from the period of interdiction and suspension, three months salaries (lump sum) in lieu of notice, 50% monetization, gratuities and pension.
  2. An Award of the sum of N10, 000,000.00 (Ten Million Naira) as general damages for wrongful termination of the Claimants’ appointments.
  3. The Cost of prosecuting this action.

The defendant counter claims against the claimants as follows;

“a. The sum of N148,040.77 being the outstanding amount payable to the defendant after withholding the defendants’(sic.Claimants’) entitlements”.

“b. The sum of N10 000,000 as general damages.

 

  1. FACTS OF THE CASE

The claimants were employees of the defendant from 1995 and were also members and officials of the defendant’s Senior Staff Association (SSA). Following some alleged misappropriation of the funds of the said SSA, an allegation made by the defendant, the claimants were placed on interdiction and later suspension, they were prosecuted and discharged, faced disciplinary committee of the defendant and subsequently their employments were terminated on 24th June, 2011 contrary to the recommendation of the disciplinary committee.

The claimants had sued the defendant along with two other defendants. The 2nd and 3rd defendants then;1.National Commission for Colleges of Education and 2. Federal Ministry of Education, objected to the inclusion of their names as parties on the ground that there was no cause of action disclosed against them. The Kano Judicial Division of this court upheld the objection and struck out their names.

The defendants had filed a joint statement of defense and counter claim on 5/10/2016 to which the claimants filed a reply on 4/11/2016 and upon striking out the names of the 2nd and 3rd defendants, the defendant filed an amended statement of defense and counter claim on 27/3/2017. The claimants did not amend their processes.

 

The claimants instituted this suit on 11/8/2016, a period of five years and two months after the cause of action accrued. By a preliminary objection filed on 27/3/2017, the defendant prayed the Court to strike out this suit for being statute barred thereby robbing this Court of jurisdiction to entertain same; this objection was dismissed in a ruling dated 7/12/2017 on the ground that part of the claim related to withheld salaries, gratuities and pension; which claims are exempted from the application of the Public Officers Protection Act, being claims for work and labour done.

At the hearing, the claimants testified for themselves and two witnesses testified for the defendant. The final written addresses of both counsel were adopted on 20/7/2018.

 

  1. CASE OF THE CLAIMANTS

Testifying for the claimants as CW1 was Abdullahi Mohammed Gusau, 1st claimant. In his examination in chief, he adopted his two statements on oath dated 11/8/2016 and 4/11/2016 which were in line with the pleadings in the statement of facts, this witness testified as follows;

He was in the employment of the 1st Defendant as a store officer in the bursary department from 1995 and was promoted in the year 2008 to the rank of Principal Store Officer 1. His annual salaries and allowances was N1,898,670.00 as at the 24th June 2011 when his employment was terminated. Prior to his termination he had a criminal matter at the Upper Sharia Court 1 at Gusau which made the Defendant to place him on interdiction from 17/8/2009. On completion of the criminal trial and discharge by the court, he delivered the clearance letter issued by the court to the Defendants’ Registrar. By so doing he expected that the interdiction would be lifted. He was further suspended by a letter dated 29/12/2010 and was never summoned before any investigating/disciplinary committee. That the defendant owes him the sum of N1,344,891.25 as his half salary withheld during interdiction as well as the sum of N949,335 as his salary withheld during his suspension. In paragraph 20 of statement on oath, this witness gave details of entitlement from the defendant upon determination of his appointment as follows;

Contiss 11/2                Per Annum                                          Month

N1,898,670                             N158,222.50

  1. Interdiction Period:          17th August 2009 – 29th December, 2010 – 17 months half pay (N79,111.25) = N79,111.25 x 17 = N1,344,891.25.
  2. Suspension period: December, 2010 – June, 2011 period of six months = N158,222.5 x 6 = N949,335
  3. 50% Monetization = N250,000.00.
  4. Three months salary (lump sum) in lieu of Notice N158,222.5 x 3 =N474,667.5
  5. Gratuity: Period of fourteen years in services of the College = N2,430,397.60
  6. Pension benefit: Basic Salary- N158,222.25 – 22nd June, 2011 – 21st July, 2016 (7 years) = 34 months – N158,222.25 x 34 = N13,290,690.00

GRAND TOTAL = N18, 739,881.35

CW1 testified further that upon termination of his employment, the defendant issued him with his last pay certificate in confirmation of the fact that he was a staff in active service and on the job. That the defendant never terminated his employment pursuant to section 6.6.6(c) of the regulations and he is entitled to his emoluments and entitlements upon due determination in line with the condition of service and the said amount of N 4,463,069.08 on account of which his appointment was terminated does not belong to the defendant but to the Senior Staff Association of which he was its treasurer.

The CW1 tendered the following documents in evidence and they were admitted and marked as follows;

  1. His letter of appointment dated 16/9/1996-       Exhibit AMG 1
  2. His confirmation of appointment dated 16/2/1999  –        Exhibit AMG 2
  3. His letter of promotion dated23/10/2008-      Exhibit AMG 3
  4. Regulations Governing conditions of service in 1stdefendant. – Exhibit AMG 4
  5. His suspension letter dated 29/12/2010-         Exhibit AMG 5
  6. His letter of inter diction dated 17/8/2009        –         Exhibit AMG 6
  7. His termination letter dated 24/6/2011-         Exhibit AMG 7
  8. His letter of protest dated 31/1/2011                                   –         Exhibit AMG 8
  9. His letter of protest dated 19/9/2011                                 –         Exhibit AMG 9
  10. His last pay certificate dated 20/7/2011  –         Exhibit AMG 10

 

Testifying under cross examination, CW1 stated as follows;

My appointment was terminated because of unionism as I am among the union leaders of the Senior Staff Association of the defendant. The Union secured a loan from Union Bank for our members and distributed the loan to our members and nobody complained that he did not get the money he requested. The defendant guaranteed the loan. I did not embezzle the money. All the members of the Association are staff of the defendant. I was not served with a query by the defendant with respect to embezzlement of funds. The Association has a constitution. I never admitted embezzling fund belonging to the association.

Testifying for the claimants as CW2 was Lawali Hamidu Gusau, 2nd claimant. He also adopted his two statements on oath dated 11/8/2016 and 4/11/2016. In his examination in chief, which was in line with the pleadings in the statement of facts, his testimony is in all respects the same with that of CW1 except that CW2 was first employed as MASTER III and was promoted in 2008 to the rank of a “Principal Master” before his termination of employment with the defendant and he was the secretary of the Senior Staff Association.

The CW2 also tendered the following documents in evidence and they were admitted and marked as follows;

  1. His letter of appointment dated 19/1/1995-       Exhibit LHG 1
  2. His confirmation of appointment dated 16/2/1999-        Exhibit LHG 2
  3. His letter of promotion dated 23/10/2008-      Exhibit LHG 3
  4. His letter of inter diction dated 17/8/2001-     Exhibit LHG 4
  5. His suspension letter dated 29/12/2010-         Exhibit LHG 5
  6. His termination letter dated 24/6/2011                   –         Exhibit LHG 6
  7. His last pay certificate dated 21/7/2011-         Exhibit LHG 7
  8. His Application to lift interdiction and suspension dated 28/1/2011                                                                                                                                                    –        Exhibit LHG 8
  9. His request for settlement of entitlement dated 5/9/2011-         Exhibit LHG 9
  10. Request for termination benefits                                   –         Exhibit LHG 10

Testifying under cross examination, CW2 stated as follows;

My appointment was terminated because of unionism because of a loan secured by the officials of the union for the congress. The defendant acted as guarantor for the loan. The Association has a constitution.

 

  1. CASE OF THE DEFENDANT

Testifying for the defendant as DW1 was Aliyu Umar. In his examination in chief, which was in line with the pleadings in the amended statement of defence, this witness testified as follows;

He is the current Registrar of the Defendant. The claimants withdrew an unauthorized sum of N4, 463,069.08k from the Senior Staff Association of the Defendant’s account NO 0155958/001/0000 with Sterling Bank Gusau which they admitted to at the management meeting of 15th April 2009 and promised to make refunds. Upon admission and promise to refund the unauthorized sum, the claimants were given a grace period of 3 days to refund the full sum. On expiration of the 3 days grace to refund the sum they were both issued queries and a formal complaint was made to Nigeria Police Force Gusau for investigation. They were both arraigned before Sharia Court 1 Samaru Gusau in which they were both discharged of the criminal charge for lack of diligent prosecution. Thereafter, a committee was set up to look into the matter. The claimants admitted to the unauthorized withdrawals before the committee and started making refunds. The Defendant being the guarantor had repaid the unauthorized withdrawal as a loan to Sterling Bank, the defendant had to withhold the claimants entitlements in order to recover the money with which the defendant serviced the loan. The DW1 contends that based on Chapter 6.6.6 of the Defendant’s Condition of Service a staff placed on suspension will only be entitled to arrears of his salaries when reinstated; but where his employment is terminated while on suspension he forfeits all his emoluments withheld during the period of suspension. The management terminated the employment of the claimants which was approved by the Governing Council of the defendant. That the defendant had to withhold the entitlements of the claimants in order to recover the money with which the defendant serviced the loan and after deduction of the embezzled amount from claimants’ entitlements, the claimants still owe the defendant the sum of N148, 040.77.

DW1 tendered some documents which were admitted in evidence and marked as follows;

  1. Management meeting of 15/4/2009 —        Exhibit AU11’
  2. 2nd  claimant’s reply to query  dated 15/7/2009             – Exhibit AU12.
  3. 1st claimant’s letter dated13/7/2009                                  -Exhibit AU13.
  4. A document said to be a report of the meeting of the appointment and promotion committee                                                      – Exhibit AU 14.

Some documents, three in number, were marked as rejected and ruling was reserved on a bundle of document paginated as 1 to  15 purported to contain two documents dated 20/4/2011 and 21/4 2011.

Testifying under cross examination, DW1 stated as follows;

The account from which the claimants allegedly made the withdrawal was not the defendant’s account. The account belongs to the Senior Staff Association of the defendant. The defendant has something to do with the account because the defendant funds the account. The defendant is funding the account because the Senior Staff Association took a loan from Sterling Bank and the College guaranteed the loan through UBA by issuing an Irrevocable Payment Standing Order (IPSO) to UBA in favour of Sterling Bank and was supposed to deduct the amount from staff salary account. That is what I meant by the college is funding the account. I attended the proceedings of Upper Sharia Court 1 Samaru, Gusau. I was not in court when the claimants were discharged.

 

Testifying for the defendant as DW2 was Yakubu Mohamed Dabam, the current Deputy Registrar of the defendant. His examination in chief, which was in line with the pleadings in the statement of defense, was in all respect the same as the evidence of DW1.

Testifying under cross examination, DW2 stated as follows;

I made the discovery of the unauthorized withdrawal by myself because I went to the Bank and collected the statement of accounts. It is in the unions file. I did not attach the statement of account to my witness statement because there was a report already given to the management to that effect. I don’t know the specific entitlement of each of the claimants.

 

5.SUBMISSION OF DEFENDANT’S COUNSEL

Learned counsel for the defendants submitted 5 issues for determination as follows;

  1. Whether or not reliefs 2 and 3 of the claimants claims are statute barred.
  2. Whether or not the reliefs for withheld salaries during the pendency of the interdiction and suspension as well as 3 months salaries in lieu of notice & 50% monetization as contained in relief 4 of the claimants processes is statute barred.
  3. Whether or not claimants claim for pension is statute barred in line with EXH AMG 4.
  4. Whether or not the claimants claim for pension is pre-matured in line with S.106 (1) & 107 (1) Pension Reform Act 2014.
  5. Whether or not the claimant’s relief 3 does not amount to approbating & reprobating.

Submitting on his issue 1 as to whether or not reliefs 2 and 3 of the Claimants are statute barred, learned E.W Ikpi Esq. reproduced reliefs 2 and 3 of the claimants’ claims and referred the court to exhibits AMG 5 & 7, Public Officers Protection Act CAP. 41 LFN 2004 and contended that when Claimants were suspended by the defendant on the 29th December, 2010 the Claimants had until 29th March 2011 to challenge the said suspension in court. In the same vein from when the Claimants’ employments were terminated by the Defendant on the 24th June 2011, the Claimants had until 24th September 2011 to challenge the said termination in Court. Counsel concluded that any suit commenced after the expiration of three months from when the cause of act accrued is statute barred. Counsel referred to the cases of SULGRAVE HOLDINGS INC V FGN [2012] 17 NWLR (PT 1329) PAGE 309 AT PAGE 321; CHRISTIANA I. YARE V NATIONAL SALARIES, WAGES & INCOME COMMISSION (2013) LPELR-20520 (SC) and NATIONAL POPULATION COMMISSION V MR. O.O. WILLIAMS (2016) LPELR-41492 CA.

In his Issue 2 on whether or not the reliefs for withheld salaries during the pendency of the interdiction and suspension as well as 3 months salaries in lieu of notice & 50% monetization as contained in relief 4 of the claimants processes is  statute barred, Defendant Counsel argued that the Defendant being a Public Officer and under the protection of the Public Officers Protection Act the Claimants are not entitled to their withheld salaries from the period of interdiction and suspension; three months salaries (lump sum) in lieu of notice; and 50% monetization as contained in relief four of the complaint and Statement of Claim because the suit was brought after the 3 months. More so, Counsel stated that the claimants had made some refunds though inadequate and that the defendant had deducted their debt balance of the unauthorized withdrawal from their

 

entitlements. In spite of the deduction from their entitlements the claimants still owes the defendant.

In his Issue 3 on whether or not claimants claim for pension is statute barred in line with EXH AMG 4, Learned Counsel held that both claimants are not qualified for pension and gratuity in line with the list of conditions of paragraph 15.5.1 of the Regulations Governing the Conditions of Service of Staff (i.e. EXH AMG 4). The learned counsel further stated that if both claimants were qualified they would have done that out of time of the statutory 3 months stipulated by the Public Officers Act 2014.

Issue 4 is whether or not the claimants claim for pension is premature in line with S.106 (1) & 107 (1) of the Pension Reform Act 2014.

Defendant’s counsel submitted that the claimants ought to explore the conditions precedent as stipulated by the Pension Reform Act 2014 which provides as follows:

“106 (1) An employee or beneficiary of a retirement Savings Account who is dissatisfied with a decision of the Pension Fund Administrator or employer in respect of pension matters under this Act, may request, in writing, that such decisions be reviewed by the Commission with a view to ensuring that such decision is made in accordance with the provisions of this Act or any regulation made there under.

107 (1) Where either party is dissatisfied with the decision of the Commission on any matter referred to it under section 106 of this Act, such party may refer to arbitration in accordance with the Arbitration and Conciliation Act or to the National Industrial Court.”

Counsel argued that since there is nothing before the court to show that claimants have explored the options stipulated above, this bereaves the Court of jurisdiction or the green light to entertain this issue.

Issue 5 is whether the claimants’ relief 3 does not amount to approbating & reprobating.

Defendant Counsel refers the court to EXH AMG 9 (dated 5th September, 2011 and 19th September 2011) which show the claimants making demands for terminal benefit, the purported three months’ salary (lump sum) in lieu of notice. In reliefs 1 and 4, the claimants are, on one hand claiming gratuity and pension benefits which are only accruable to a person who has left the service of his employer or relieved of his employment. In relief 3, on the other hand, claimants seek the annulment of their termination letter. The claimants are by so doing blowing hot and cold. Counsel referred the Court to the decision of K. KOIKI & ORS V B.V. MAGNUSSON [1999] LPELR-1697(SC).

Counsel then urged the Court to hold that the suit is lacking in merit, incompetent and statute barred and liable to be dismissed.

6.SUBMISSION OF CLAIMANTS’ COUNSEL

The claimants’ counsel formulated 3 issues for determination thus;

  1. Whether the court can regurgitate his(sic) earlier ruling as regards the claimant’s claim being statute barred.
  2. Whether or not non-payment of the claimants by the defendant is not wrongful?
  3. Whether the Defendant/Counter-claimant has proved its claim on the balance of probability to warrant the award of the counter-claim.

On Issue 1, learned Pwahomdi Esq. stated that the first three issues distilled by the Defendant in paragraph 3.1 page 4 of its final address relate to the question of statute bar, an issue that goes to the jurisdiction of this Honourable Court. He further stated that this Court had dismissed those issues as formulated in his Notice of Preliminary Objection filed on the 27th March 2017. By reason of the ruling the issues are functus officio and the court incapacitated to reopen the same matter all over. Counsel cited DINGYADI & ANOR V INEC & ORS (2010) LPELR 951; TOMTEE (NIG.) LTD V FHA (2010) 16 WRN 24 AT 37-38 SC; AKINREMI V BINUYO (2010) 34 WRN 123 AT 144; NGERE & ANOR V OKURUKET & ORS (2014) 10 SCM 167 AT 189.

On Issue 2, learned counsel submitted that the defendant having abruptly brought to an end the employment of the claimants, without strict compliance with the conditions of service, the Claimants are entitled to the grant of all the reliefs sought therein. Counsel submitted that the claimants have earned certain entitlements and that the failure of the defendant to pay all those entitlements, rendered their termination unlawful and unconstitutional. Counsel submitted that Articles 6.6.1, 7.2, 15.5.1 in EXH AMG4   which deals with termination of appointment, payment of pension, gratuities and other terminal benefits were disregarded. More so, that they are entitled to damages as a result of the wrongful termination which includes what the claimants have earned and what they would have earned. Counsel made references to a number of decisions which are UDO V CSNC (2001) 22 WRN 53; (2001) 14 NWLR (PT 732) 116; OLANIYAN V UNILAG (2004) 15 WRN 44 AT 73-74; IOH. AHMADU BELLO UNI. HOSP. MGT. BOARD V ANYIP (2011) 44 WRN 1 AT 15 – 16; AJAGBE V IDOWU (2011) 7 SCM 29 AT 42-43; NRMAFC V JOHNSON (2007) 49 WRN 123 AT 151; EFUWAPEV UBA PLC (2007) 37 WRN 159 @ 201; SPDCN V OLANREWAJU (2009) 6 WRN 53 @ 80.

On ISSUE 3, learned Counsel stated that the Defendant counter claimed the sum of N148,040.77 as an outstanding amount payable to the Defendant after withholding the claimant’s entitlement and N10,000,000.00 as general damages but have failed woefully to prove this claim neither by teller evidencing such payment nor statement of account and urged the court to dismiss the counter-claim in its entirety. The authorities of BALGUN YUSUFF (2010) 16 WRN 158 AT 179; ZENITH INT’L B. LTD V VICKDAB & SONS (NIG) LTD & ANOR (2010) 40 WRN 165-178 were relied upon.

Learned counsel urged the court to hold that the claimant has discharged the onus of proof and grant their reliefs as prayed.

7.DEFEDANT’S SUBMISSIOM ON POINTS OF LAW

In his reply on points of law, Defendant Counsel agreed that generally, the Court cannot sit on appeal over its previous ruling which is functus officio. He went on to submit that there are exceptions to this rule.

Counsel relied on the following authorities: ALHAJI MUHAMMADU MAIGARI DINGYADI V INDEPENDENT NATIONAL ELECTORAL COMMISSION (2010) LPELR-SC.32/2010-(R); TOMTEC NIGERIA LIMITED V FEDERAL HOUSING AUTHORITY (2009) LPELR-SC. 12/2005; CHIEF EMMANUEL BELLO V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR (2010) LPELR-SC 330/2008.

Defendant counsel argued that the issue of jurisdiction can be raised at any point and being that Claimants’ claims are statured barred, the Court lacks jurisdiction. He further stated that the Public Officers Protection Act applies in this suit and that the Court cannot grant the reliefs because it lacks jurisdiction to so do. Counsel placed reliance on the case of BUREMOH V AKANDE (2017) LPELR-41565 (SC).

Counsel further urged the court to overrule itself as regards its previous ruling refusing to dismiss the claims of the claimants as statute barred referring to the cases of ROTIMI WILLIAMS AKINTOKUN V PRACTITIONERS DISCIPLINARY COMMITTEE [2014] LPELR-22941 where the court held that“…Judges are not infallible. They can make human errors. Infallibility belongs only to God”.

Defendant Counsel submitted that the defendant contradicted the claimants claim by tendering in evidence how the claimants’ entitlements were computed and withheld to make up for the funds the Defendant used in offsetting the unauthorized loan facility embezzled by the claimants and that the record of the court binds both parties. The authorities of OTUMBA ADESESAN OGUNTOYO (ORADEREMO OF IJEBU-IFE) V PRINCE FATAI ADELAJA [2009] LPELR-2353 (SC) and DAME PAULINE K. TALLEN & ORS V DAVID JONAH JANG & ORS [2011] LPELR-9231 (CA) were relied upon.

Counsel referred to paragraph 6(iii) on page three of EXH AU 14 which recommends that “the outstanding loan from sterling Bank and guaranteed by the college be paid by the college”  as proof that the defendant is the guarantor and have paid the said unauthorized withdrawal to the Bank. Counsel further stated that it is not in contention or dispute that the defendant guaranteed the said loan and not necessary to so prove as facts admitted need no proof. Counsel placed reliance on the following authorities: HUEBNER V AERONAUTICAL INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT CO. LTD (2017) LPELR-42078(SC); EBEM & ANOR V NSEYEN [2016] LPELR-40122 (CA); BAALO V FRN [2016] LPELR-40500 (SC) and JAY JAY V SKYE BANK PLC [2016] LPELR-40185 (CA).

8.ISSUES FOR DETERMINATION

The defendant submitted five issues for determination as earlier reproduced while the claimant submitted three issues for determination, also reproduced above. It is the view of this court that the three issues submitted by the claimants can adequately dispose of this matter, they are hereby adopted as the issues for determination herein but amended as follows;

  1. Whether this court can overrule its earlier decision that the claims for work and labour done in this suit are not statute barred.
  2. Whether the claimants are entitled to their withheld salaries, 50% monetization, 3 months salaries in lieu of notice, pension and gratuity upon determination of their employment by the defendant.
  3. Whether the Defendant/Counter-claimant has proved its counter claim by credible evidence.
  4. COURT DECISION.

As earlier pointed out, ruling was reserved until judgment on a bundle of document paginated as 1 to  15 purported to contain two documents dated 20/4/2011 and 21/4 2011.

Defendant’s counsel had led the DW1 to identify a document referred to in paragraph 9(i) and (ii) of his statement on oath as the report of Senior Staff Disciplinary Committee of 20/4/2011. When the witness identified the document, counsel applied to tender the document in evidence. The document however turned out to be  a bundle of 15 pages of papers containing three separate documents.

The first document titled “SENIOR STAFF DISCIPLINARY COMMITTEE MINUTES OF FIRST MEETING HELD ON 20 /4/2011” which document is signed is at pages 1 and 2.

The second document is titled “SENIOR STAFF DISCIPLINARY COMMITTEE MINUTES OF 2ND MEETING HELD ON 21 /4/2011” which document is signed is at pages 3 to 5.

The third document is titled “SENIOR STAFF DISCIPLINARY COMMITTEE, Report for outstanding entitlement of the three accused S.S.A members due to interdiction and suspension”, is undated though signed and is at pages 6 to 15.

The claimants counsel had objected to the admissibility of these documents on the following grounds;

  1. The document dated 21/4/2011 is not pleaded.
  2. The document dated 20/4 /2011 is pleaded but not properly identified.
  3. The documents are Certified True Copies of a photocopy and they contravene section 89 (a), (b) (c) and (d) of the Evidence Act.

In response, defendant’s counsel submitted that a photocopy of a document is admissible in line with section 89 of the Evidence Act if it is a Certified True Copy.That the document dated 20/4/2011 is pleaded in paragraph 13(1) and (2) of the statement of defence. That the document dated 21/4/2011 is pleaded in paragraph13 (iii) and the witness testified about it in his paragraph 9(ii) of his witness statement on oath.

I have considered the submissions of both counsel in view of the pleadings and witness statement on oath.  I find that the document dated 20/4/2011 is pleaded in paragraph 13(i) of the statement of defence and testified upon in paragraph 9(i) of CW1 statement on oath. I have also considered section 89 of the Evidence Act and there is nothing in that section to suggest that certified photocopy of a document is not admissible. Accordingly, the first document, pages 1 and 2, titled SENIOR STAFF DISCIPLINARY COMMITTEE MINUTES OF FIRST MEETING HELD ON 20 /4/2011 is hereby admitted in evidence and marked as Exhibit AU15.

On the second document dated 21/4 /2011, I have read paragraph 13(iii) of the statement of defense, the document pleaded therein is report of meeting of appointment and promotion committee held on 21/6/2011, similarly, the testimony in paragraph 9(ii) referred to report of defendants management meeting held on 7/6/2011, the SENIOR STAFF DISCIPLINARY COMMITTEE MINUTES OF 2ND MEETING HELD ON 21 /4/2011 sought to be tendered in evidence is neither pleaded nor testified upon. The said document dated 21/4/2011 is accordingly marked as rejected.

The third document, (pages 6 to 15) is undated, it is not pleaded and no evidence on it, it is inadmissible and is accordingly marked as rejected.

The defendant had tendered in evidence a document purported to be a report of the meeting of the appointment and promotion committee of the defendant. This document was admitted without objection and marked as exhibit AU14. This document, although the body reveals that it is a report of the A&PC which met on 21/6/2011, the document is not dated and is not signed. The law is now settled that an unsigned and undated document is a worthless paper without evidential value. See AMAIZU V.NZERUBE (1989) 4 NWLR (Pt 118) at page 755; SALIBAWA V. HABILAT (1991) 7 NWLR (Pt. 174) at page 461;  GLOBAL SOAPS & DETERGENT IND. LTD v. NAFDAC (2011) All FWLR (Pt. 599) 1025 at 1047.

The law is that a document which is inadmissible can be expunged when the court comes to consider its judgment even though the document was admitted in evidence. See HASHIDU V. GOJE [2003] 15 NWLR (PT.843)352 where the court held;

Where inadmissible evidence as in the instant case of unpleaded document which ought to be pleaded is received or admitted in evidence, by a trial court, it is its duty, when it comes to consider its judgment to treat such inadmissible evidence as if it had never been admitted, i.e. to reject it. See Metalimplex v. A.-G. Leventis & Co. Ltd. (1976) 2 SC 91 at page 102. The court has power to expunge the inadmissible evidence that is wrongly admitted. See Ajayi v. Fisher (1959) 1 FSC 90; Owonyin v. Omotosho (1961) 2 SCNLR 57; (1961) 1 All NLR (Pt.11) 304 at page 307. In Agbaje v. Adigun (1993) 1 NWLR (Pt.269) 261 it was held by the Supreme Court that when evidence has been wrongly admitted, the law is that the evidence must be expunged from the record when the judgment is being considered. The Supreme Court went further to say that the basis for the rule is that the evidence does not go to any issue and that being so it cannot be legal evidence upon which the court can make a finding of fact.

Exhibit AU14 being undated and unsigned and worthless is hereby expunged.

The court shall now turn to the issues for determination as adopted by the court.

ISSUE 1

This issue also covers issues 1, 2, 3, and 5 formulated by the defendant.

The defense counsel dedicated issue 1 of his final written address to whether or not reliefs 2 and 3 are statute barred. Similarly counsel dedicated his issues 2 and 3 to whether or not the claim for withheld salaries, salaries in lieu of notice, monetization, pension and gratuity are statute barred and his entire 16 page reply on points of law to urging the court to strike out the entire suit for being statute barred in spite of my ruling on this issue dated 7/12/2017 dismissing defendants preliminary objection, praying the court to strike out the entire suit for being statute barred. The preliminary objection dated and filed on 27/3/2017 prayed for;

  1. An Order of this honourable court striking out this suit for being statute barred thereby robbing this court of jurisdiction to entertain same.

In the ruling of 7/12/2007, this court held on pages 4 and 5 thus;

 

”Without further ado, the court is legally bound to agree with the argument of learned counsel for the claimants that part of the claim before the court is for work and labour done and is based on a contract of employment; these are matters which are exempted from the application of the public officers protection Act as listed in ‘b’ and ‘c’ above”

….

 

“Accordingly, the suit of the claimant, part of which is a claim for work and  labour done based on a contract of employment, is not statute barred by reason of   the provision of the public officers protection Act. I so find and so hold”.

What is clear from the wordings of the ruling is that the suit was not dismissed because of part of the claim not affected by the provisions of the Public Officers Protection Act. This was because the objection simply attacked the whole suit and not part of it and the court did not apply the principle of severance. This also implies that the status of any relief that is not for work and labour done will be considered during the judgment.

Prayers 2, 3 and 5 are independent prayers challenging the suspension and termination of claimants’ employment as wrongful even though there is no prayer for reinstatement which should have been the consequence of such declarations.

The cause of action for the suspension and termination of the claimants’ employment arose on 29/12/2010 and 24/6/2011 respectively and this suit was filed on 11/8/2016, by the authorities, these particular claims are statute barred by reason of section 2 of the Public Officers Protection Act.

By the authorities, this court can severe the claims that are statute barred and proceed to  determine the claims that are not statute barred. See the ruling of this court in SULEIMAN OBA ABDULRAHAMAN  V  USMANU DANFODIO UNIVERSITY TEACHING HOSPITAL SOKOTO,  in  suit NO. NICN/SK/03/2017,      the ruling of which was delivered on  Wednesday the 21st   day of February, 2018 in which this court held as follows;

“Now, the position of the law is that where there are different causes of action in a suit, only that cause of action that is statute barred will be struck out and the other cause of action which is not statute barred shall proceed to hearing on the merit.

See   ELF OIL NIGERIA LIMITED v. OYO STATE BOARD OF INTERNAL REVENUE(2002) LPELR-12260(CA),  where the court of appeal held;

The total amount claimed which is N4,852,319 is for six years of assessment, 1991, 1992, 1993, 1994, 1995 and 1996 and there are therefore six distinct claims, one for each of the years. It is settled law that where an action contain different claims and different causes of action the court has to examine each of the claims for the purpose of determining whether any of them is caught by the statute of limitation.

See ANWADIKE V ADM-GEN OF ANAMBRA STATE (1996) 7 NWLR (Part 460) 315.

The limitation period is six years and by virtue of the provision of section 15 of the Interpretation Act Cap. 192 Laws of the Federation of Nigeria 1990 the year on which the particular event occurred is excluded. Having regards to the fact that this summons was issued on the 17/2/98 the claims for the assessment years of 1991 and 1992 appears to me to be caught by the limitation period. I hold therefore that the claims for the years1991 and 1992 are statute barred and same are therefore struck out. The claims for 1993, 1994, 1995 and 1996 survive and the action can proceed to trial on these claims.”

 

Consequently, the claims in prayers 2, 3 and 5 are statute barred and are hereby struck out.

Similarly, learned defendant’s counsel submitted in his issue five that the claim in prayer 3 amounts to approbating and reprobating on the part of the claimants. The claimants’ counsel did not respond to this.

As seen above, prayers 2, 3 and 5 go together, they are all based on a challenge of the lawfulness of the termination of the claimants. Prayers 1 and 4 on the other hand accept the termination and asks for due entitlements. These sets of prayers do not and cannot go together except in the alternative.

See METAL CONST. (W.A.) LTD. V. ABODERIN (1998) 8 NWLR (PT.563) 538; (1998) 6 S.C 105  where the court held;

It cannot be disputed that either party to a suit may, in a proper case include in his pleadings alternative and inconsistent allegations of material facts, as long as he does so separately and distinctly. A plaintiff is thus entitled to plead two or more inconsistent sets of material facts and claim relief in the alternative thereunder. He may also rely on several different rights alternatively, although they be inconsistent. See: Philipps v. Philipps (1878) 4 QBD 127 at 134.

A claimant cannot approbate and reprobate in the same claim. See H.K.S.F.  V. AJIBAWO (2008) 7 NWLR (PT.1087) 511 AT 530,  PARAS. C-D (CA) where the court held;

A plaintiff in an action for nuisance or any action cannot approbate and reprobate as to the nature of the claim and the relief he seeks from the court.

A party must be consistent in his claim and will not be allowed to approbate and reprobate over the issue. See Suberu v. State (2010) 5 SCM 215.

A claimant cannot ask for inconsistent reliefs in one suit as done by the claimants herein. See MR JOSEPH OLUJIMI KOLAWOLE AGBAJE v. INDEPENDENT ELECTORAL COMMISSION & ORS(2015) LPELR-25651(CA) where the court held;

It is a general principle of law that inconsistent reliefs cannot be claimed for in one action and if claimed for in the same action cannot be tried together. See AROMIRE v. AWOYEMI (1972) ALL NLR 101 AND EZEKWESILI & ORS v. AGBAPUONWU & ORS (2003) 4 SC (PT.1) 33 in which the Supreme Court restated and applied this principle.

Claimants’ reliefs 2, 3 and 5 are inconsistent with the main reliefs in prayers 1 and 4 and the claimants are not in law and procedure allowed to do this. See FABUNMI V. AGBE (1985) NWLR (PT.2); (1985) 3 SC 28 where the court held;

A plaintiff or defendant in his counter-claim cannot claim a relief which is inconsistent with the relief specifically claimed. See Cargill v. Bower (1878) 10 Ch. D. 502.

The implication of all that I have said above is that reliefs 2, 3 and 5 as claimed by the claimants cannot be considered along with the main prayers in reliefs 1 and 4. The consequence is that reliefs 2, 3 and 5 cannot survive and they are hereby struck out.

Counsel made a lot of submission in his issues 2 and 3 urging the court to overrule its earlier ruling of 7/12/2017 and dismiss the entire suit as statute barred.

I have read the authorities relied upon by counsel; there are indeed exceptions where a court may set aside its earlier decision for reasons fully enumerated in the case of TOMTEC NIG. LTD supra cited by learned counsel, in which case, an application may be brought praying the court to set aside the decision based on that defect.

The exceptions or situations in which a court may be called upon to set aside its decision were clearly spelt out in the case of TOMTEC NIGERIA LIMITED V FEDERAL HOUSING AUTHORITY (2009) LPELR-SC.12/2005 cited by learned defendant’s counsel and they include when;

  1. The judgment is obtained by fraud or deceit.
  2. The judgment is a nullity.
  3. The court was misled into giving judgment under a mistaken belief that parties consented to it.
  4. The judgment was given in the absence of jurisdiction.
  5. The procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
  6. There is a fundamental irregularity.

It must be noted that learned counsel did not allege in any paragraph of his address that the ruling of 7/12/2017 suffers any of the defects listed in the case of TOMTEC NIG, LTD supra let alone show how.

The authorities cited by counsel do not cover a situation where the counsel is simply not convinced that the decision of the court was right, as is the case herein where the court held that claims for work and labour done are exempted from the applicability of the Public Officers Protection Act and counsel is insisting that they are not exempted.

The argument of counsel in this case is as found on pages 4 to 6, paragraphs 5.1 to 5.6 of his reply on points of law which is in its very nature a submission for the court of appeal to the effect that the issue of jurisdiction can be raised at any point and being that Claimant’s claims are statured barred, the court lacks jurisdiction. That the Public Officers Protection Act applies in this suit and that the court cannot grant the reliefs because it lacks jurisdiction to so do, placing reliance on the case of BUREMOH V AKANDE (2017) LPELR-41565 (SC). There can be no better argument suited for the court of appeal on the ruling of this court dated 7/12/2007.

In the instant case, this court remains   functus officio on the issue of whether or not the entire suit of the claimants is statute barred, particularly as to whether claims for work and labour done are exempted from the provisions of the Public Officers Protection Act and I cannot sit on appeal over that decision; else there would be no need for a court of appeal.

This court declines the invitation of learned defendant’s counsel to sit on appeal and to set aside its ruling of 7/12/2017 which ruling has been reproduced above.

ISSUE  2.

In order to properly appreciate this issue it is important to highlight some relevant facts that have been established by pleadings, evidence and exhibits. These facts are;

  1. The claimants were both members of the Senior Staff Association of the defendant and served in the said association as Treasurer and Secretary respectively.
  2. The claimants were terminated at the rank of PRINCIPAL STORE OFFICER 1 and PRINCIPAL MASTER respectively and were both on salary level CONTISS 11step 2. Even though exhibit LHG 7 shows that the 2nd claimant was on salary level CONTISS 11 step 3 with a higher salary, the court cannot go beyond his claim and so he will be treated in this judgment as being on salary level 11 step 2 based on his claim.
  3. The claimants were both placed on interdiction with half pay from 17/8/2009 to 29/12/2010.
  4. The claimants were both placed on suspension without pay from 29/12 to 24/6/2011.
  5. That during the period in view, the claimants were both earning N1, 898,670 per annum which is N158, 222.50 per month.
  6. That the money in contention belonged to the Senior Staff Association (SSA) of the defendant which was a loan borrowed from Sterling Bank (although claimants said it was Union Bank) and the money does not belong to the defendant.
  7. That the defendant guaranteed the loan thorough UBA by issuing an Irrevocable Payment Standing Order (IPSO) to UBA in favour of Sterling Bank  and was supposed to deduct the amount from staff salary account.
  8. That no member of the Senior Staff Association (SSA) of the defendant has complained that he was not given the amount he applied for in the loan.
  9. That the claimants were prosecuted in respect of the alleged embezzlement at Upper Sharia Court1 Samaru, Gusau but were discharged for want of diligent prosecution.

Now whether the termination was right or wrong is no longer in issue, what is in issue now is whether the claimants are entitled to their withheld salaries, salary in lieu of notice,50% monetization, gratuity and pension after their termination. This question will be largely answered by the defendant’s REGULATION GOVERNING CONDITION OF SERVICE OF STAFF IN THE FEDERAL COLLEGE OF EDUCATION (TECHNICAL) GUSAU. Exhibit AMG 4.

However, it is important to note that the defense of the defendant at paragraph 11 of the statement of defense which is equally repeated in the testimony of its witnesses is to admit that the claimants had entitlements but the defendant had to withhold the entitlements of the claimants in order to recover the money with which the defendant serviced the loan.  It is also on this basis that the defendant made a counter claim for the sum of N148, 040.77 being the outstanding amount payable to the defendant after withholding the entitlements of the claimants.

The above pleading, evidence and counter claim means that the claimants’ right to those entitlements are admitted and used as a set off against what the claimants are adjudged to be owing the defendant, as a result of which the claimants are now said to be owing the defendant only the sum of N148, 040.77 as against the sum of N4,463,069.08 allegedly embezzled by the claimants.

The implication of this defense and counter claim is that the defendant can no longer deny the rights of the claimants to the said entitlements as it has attempted to do because a party is not allowed to set up two conflicting claims or defense. See METAL CONST. (W.A.) LTD. V. ABODERIN supra;  H.K.S.F.  V. AJIBAWO supra and MR JOSEPH OLUJIMI KOLAWOLE AGBAJE v. INDEPENDENT ELECTORAL COMMISSION & ORS supra.

 

Furthermore, on whether the claimants can be denied their terminal entitlements because their employments were terminated, it must be noted that the claimants were not dismissed. There is a difference in law between the implication of dismissal and termination. In a dismissal, the employee may be deprived of his terminal benefits but not so in a termination. See JOMBO V P.E.F.M.B (2005)14 NWLR (PT.945)443 where the Supreme Court held,

“Under termination of appointment, the employee is enabled to receive the terminal benefits under the contract of employment… Dismissal on the other hand is punitive and depending on the contract of employment, very often entails a loss of terminal benefits. It also carries an unflattering opprobrium to the employee”.

See also 1. ABOMEDI V N.R.C (1995) 1 NWLR (PT.372) 451 and

  1. UBN PLC V SOARES (2012) 29 N.L.L.R (PT.84) P.329 at P. 357.

First, as to the amount of the claimants’ entitlements pleaded in paragraph 25 of the statement of facts and testified to in paragraphs 20 of the statements of CW1 and CW2 on oath has not been controverted by the defendant either in the statement of defense, evidence or cross examination; as far as the amounts are concerned, they are to be accepted by the court as true and correct except for good reason. See AMERICAN CYANAMID COMPANY VS VITALITY PHARMACEUTICALS LTD 1991 LEGALPEDIA SC 0YMM   [1991] 2 S.C. 47 where the supreme court per Olatawura JSC said;

Where the evidence of a witness has not been challenged, contradicted or shaken under cross examination and his evidence is not inadmissible in law, and the evidence led is in line with the facts pleaded, the evidence must be accepted as the correct version of what he says.

3.   FIRST BANK OF NIGERIA PLC v. MR. EFOBI EFFIONG BAM (2010) LPELR-4160(CA)
where the court per Akeju JCA held;

“It is trite law as stated by the learned trial judge that where evidence of a party remains unchallenged or not contradicted, minimum evidence will suffice. See Bua vs. Dada (2003) NWLR (Pt. 838) 657; Provost Lacoed vs. Edun (200) 6 NWLR (Pt. 870) 476. This principle of unchallenged evidence however does not create a floodgate for every type of evidence.
To qualify for belief and reliance by a trial court, such unchallenged evidence must be credible in all circumstances and must be cogent enough to sustain the claim of the plaintiff. On this principle of unchallenged evidence, the Supreme Court stated in Baba vs. Civil Aviation (1991) (Pt.1) 7 SCNJ 1, per Nnaemeka Agu JSC at page 22 that “……Based on this principle, whenever on an issue evidence comes from one side and this is unchallenged and uncontroverted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance, unless of course it is of such quality that no reasonable tribunal  should have believed it…”

Whether or not the claimants are entitled to claim all or any part of these amounts shall be considered. The court shall now consider each item in the claim.

  1. Withheld salaries during period of interdiction.

The interdiction of the claimants lasted for 17 months from August 2009 to December 2010 during which period they were on half salaries and the amount of withheld salaries of each claimant during this period is N1, 344,891. The claimants contend that they are entitled to the said sum after their discharge from the court and upon termination of their appointments. The defendant contended that the claimants were not entitled based on rule 6.6.6(  c) of exhibit AMG 4. This court already held, and still holds, that the defendant is not entitled to this defense both in law and on the pleadings.

Chapter 6 of the condition of service, exhibit AMG 4, is on Discipline. Rule 6.4 deals with interdiction. It provides that where a staff is charged to court, he is to be placed on interdiction with half salary and is to be reinstated and paid the balance of his salary if found not guilty but to be dismissed if convicted.

In the present case, the claimants were charged to court, placed on interdiction with half salary, they were not convicted but discharged for want of diligent prosecution, they were not found guilty. It is the opinion of this court that the claimants were entitled to a refund of their withheld salaries during the period of interdiction in the sum of N1,344,891 each as a verdict of ‘guilty’ cannot be presumed against  them. I so find.

  1. Withheld salaries during period of suspension.

The suspension of the claimants without pay lasted for six months from December 2010 to June 2011 and the amount withheld for each claimant is N949, 335 which they claim they are entitled to upon the determination of their employment. The defendant contends that the claimants were not entitled to their salaries withheld during suspension because the claimants’ employments were terminated. Again, this defense does not avail the defendant both in law and in view of its admission of claimants’ entitlements and basing a counter claim thereon.

Rule 6.6 of exhibit AMG4 deal with suspension. Rule 6.6.6 provides that a decision must be reached on a suspended staff within 3 months as whether to;

  1. continue his suspension,
  2. Reinstate him and restore his full emoluments withheld during suspension, or
  3. Terminate his appointment in which case the portion of his emoluments withheld during suspension will not be paid.

The provision of rule 6.6.6(c), as seen above, contemplates that a part of the emoluments of a staff on suspension may be withheld during the suspension and may not be paid to the staff if eventually his employment is terminated, it does not contemplate suspension without pay as done by the defendant in this case.

The position of the law is that any punishment or disciplinary measure meted out on an employee which is greater than or outside the terms of employment is wrongful. See UDEGBUNAM V  F.C.D.A ((2003) 10 NWLR (PT.829) P487 where the court held;

“An employer has discretion to give a lesser punishment to an employee, but it has no discretion to give a higher punishment than that prescribed”.

See also ALLOYSIUS V DIAMOND BANK PLC (2015)58 NLLR (PT.199) P92 AT39-40 where the court per Kola- Olalere J held thus;

“However, the law is trite that suspension is not termination or dismissal; consequently, within the period of the suspension, with or without pay, indefinite or for a specific period, the employee so suspended is still in the employment. His appointment was merely put on hold to enable his employer to properly investigate the allegation against him. And so, the employee will be entitled to his salaries and allowances for the period of the suspension. See Longe V First Bank of Nig. Plc (2010) ALL FWLR (pt.525) 259 and Mobil Producing Nig. Unlimited v Effiong (2011) LPELR CA/C/204/209”.

The claimants, by law remained employees of the defendant up to June 2011. This is also confirmed by exhibits AMG 10 and LHG 7 issued by the defendant to the claimants on 20/7/2011, the said exhibits both state the period of service of the claimants with the defendant college to be 3rd June,1995 to 22nd June 2011 and the last month that the claimants were paid is stated as June 2011.

This court therefore is of the view on the above authority and exhibits that the claimants were entitled to their salaries withheld during the period of suspension amounting to N949,335 each as claimed. I so find and hold.

  1. 50 % monetization

The claimants prayed for 50% monetization of N250,000 each. The defendant did not join issues with the claimants on this claim except on the claim being statute barred. Having earlier held that this is a claim for work and labour done, in the absence of any contrary evidence or contradiction from the defendant and in the light of the decision in  ALLOYSIUS V DIAMOND BANK PLC supra, I am of the view that the claimants are entitled to their 50% monetization of N250,000 each. I so find and so hold.

  1. Three months salaries in lieu of notice

It is the contention of the claimants that upon determination of their employments, they were each entitled to 3 months salaries in lieu of notice amounting to N474,667.5 each, their monthly salaries being N158,222,8. The claimants appear to rely on rule 7.2 of exhibit AMG 4 by paragraph 4.2.7 of their counsel’s final written address.

Rule 6.7 of exhibit AMG 4 deals with termination as a disciplinary measure while rule 7.2 deals with cessation of service generally. From the pleadings and evidence before the court, it appears that the termination of the claimants’ employment, rightly or wrongly, fell under rule 6.7 which provides for one month salary in lieu of notice. I hold that upon termination of their employments, the claimants were only entitled to one month salary in lieu notice, their monthly salaries were N158,222,8 each, I find that each claimant was entitled to this sum in lieu of notice upon termination of his employment. I so hold.

e.Gratuity and pension.

The claimants claim for a gratuity of N 2,430,379.60 each and a pension of N 13, 290,690.00 each upon termination of their employments. The defendant contends that the claimants do not meet the conditions provided by the regulations governing the condition of service of the defendant upon which they can be entitled to gratuities and pension. Counsel to the defendants relied on rule 15. 5.1 of exhibit AMG4 to submit that nowhere it is stated that where the appointment of an employee is terminated, such employee will be entitled to gratuity and pension. As earlier held, the defendant is not entitled to this defense. See JOMBO V P.E.F.M.B supra.

A starting point here is the appointment letters of the claimants. Exhibit AMG 1, the appointment letter of the 1st claimant states thus;

“ I write to inform you that the temporary appointment given to you vide this office letter ref:FCET/GS/R/SP160 dated 28th June, 1995 has been changed to permanent and pensionable appointment with effect from the date you assume duty.”

The appointment letter of the 2nd claimant, exhibit LHG1 is titled LETTER OF PERMANENT AND PENSIONABLE APPOINTMENT.

From the contents of the appointment letters of the claimants it is clear that they were on permanent and pensionable appointments, their pensions and gratuities were therefore as of right.

Furthermore, Rule 15.5 of exhibit AMG 4 deals with CONDITIONS UNDER WHICH PENSIONS AND GRATUITIES ARE PAYABLE.  Rule 15.18, dealing with VESTNG OF PENSIONS provides thus;

“pension and gratuity awarded under these regulations shall be regarded as an employee’s inalienable right and shall under no circumstances be withheld or reduced but where an employee is dismissed from service, such dismissal will result in him forfeiting his retiring benefits”

It can be seen then that the pensions of the claimants granted by reason of their employments is an inalienable right and cannot be tampered with except in the case of dismissal. This provision is in line with section 173(1) and (2) of the Constitution of Nigeria, 1999 as amended which provides as follows;

  1. Protection of pension rights

(1)  Subject to the provisions of this Constitution, the right of a person in the public service of the Federation to receive pension or gratuity shall be regulated by law.

(2)  Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section, shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct.

 

In this case the claimants were not dismissed but their employments were simply terminated, they were entitled to their terminal benefits.

Learned counsel to the defendant has submitted that nowhere is it stated in rule 15.5.1 that where the appointment of an employee is terminated, such employee will be entitled to gratuity and pension. This court holds the view that the argument should rather be that nowhere is it stated in the rules that an employee whose employment is terminated shall forfeit his pension and gratuity. Rule 15.18 provides for forfeiture of gratuity and pension only in a case of dismissal, if termination was intended to be included as a ground for forfeiture of gratuity or pension, it would have been included in rule 15.18 or rule 15.5.1. The absence of any such provision only means that an employee is not to forfeit his pension or gratuity on the ground of termination of appointment. I so hold.

The defendant has also pleaded that payment of pensions to the claimants is not the responsibility of the defendant as same has been statutorily vested on the National Pension Commission by the Pension Reform Act, 2014. The section vesting the responsibility of payment of pension on the said Commission has not been referred to as there is no legal submission on this by counsel in his final written address.

I have taken a close look at the Pension Reforms Act, 2014. The National Pension Commission is established by section 17 of the ACT and the object of the commission is stated in section 18 as follows;

  1. The Principal Object of the Commission shall be to-
  2. enforce and administer the provisions of this Act
  3. co-ordinate and enforce all other laws on pension and retirement benefits; and
  4. regulate, supervise and ensure the effective administration of pension matters and retirement benefits in Nigeria.

 

Similarly, the functions of the commission are stated in section 23 as follows;

 Functions of the Commission

 

23 The Commission shall—

(a)   regulate and supervise the Scheme established under this Act and other pension schemes in Nigeria;

(b)   issue guidelines, rules and regulation for the investment and administration of pension funds;

(c)    approve, licence, regulate and supervise pension fund administrators, custodians and other institutions relating to pension matters as the Commission may, from time to time, determine;

(d)   establish standards, benchmarks, guidelines, procedures, rules and regulations for the management of the pension funds under this Act;

(e)    ensure the maintenance of a National Data Bank on pension matters;

(f)     carry out public awareness, enlightenment and education on the establishment, operations and management of the Scheme;

(g)   promote capacity building and institutional strengthening of pension fund administrators and pension funds custodians;

(h)   receive, investigate and litigate complaints of impropriety made against any pension fund administrator, custodian, employer,  staff or agent;

(i)     promote and offer technical assistance in the application of the contributory pension scheme by the states and local governments councils in accordance with the objectives of this Act; and

(j)     perform such other duties which, in the opinion of the Commission, are necessary or expedient for the discharge of its functions under this Act.

 

What I cannot find in these sections is the vesting of the responsibility of payment of pensions on the said commission.

The claimants have both served the defendant for a period of 16 years from 1995 to 2011. Rule 15.5.1( a) provides thus;

“Pensions and gratuity at the rates prescribed in the TABLE A to this regulations shall become payable to an employee in the occurrence of one of the following events.

The said TABLE A provides in respect of service for years thus;

ANNEX TO REGULATIONS FOR THE AWARD OF PENSIONS AND GRATUITIES FORMULA   FOR CALCULATION OF PENSION AND GRATUITY BASED ON PERCENTAGE OF FINAL SALARY.

Year of service Gratuity Pension as % of final salary

16                                  100%                            32%

The combined effect of this together with Rule15.5.1 is that the defendant has a duty to pay the pensions and gratuities of the claimant. These rules were not provided for in the defendant’s rules for fun. I hold that the defendant cannot escape liability for payment of the claimants’ pension.

The defendant has also argued that the claim of the claimants for pension is premature and the court lacks jurisdiction because by reason of Section 106(1) and 107(1) of the Pensions Reform Act, any person who is aggrieved by the decision of his pension administrator or employer in respect of pension matters under this Act is to first explore dispute resolution but the claimants have not done so in this case.

It must be observed that the failure of the defendant to pay gratuity and pension to the claimants does not qualify as such decision contemplated under these sections of the Act; more so that no such decision was ever communicated to the claimants, not even in response to claimants’ exhibits AMG 8 and 9 and exhibits LHG 9 and10 demanding for their said entitlements. The contention at the hearing of this suit that the claimants are not by the rules of their employment eligible for pension and gratuity does not amount to such decision contemplated by the Act and it only shows that the defendant took no action on the issue of the pension and gratuity of the claimants.

I accordingly hold that the claimants have proved their entitlements to gratuity and pension against the defendant.

Although the defendant did not contradict the calculations made by the claimants, however, going by the table above, the calculation made by the claimants is neither reliable nor convincing and it is not safe to award the said amount just because the defendant did not contradict same. For example, the claimants served for from 1995 to 2011, a period of 16 years, the table provides for a gratuity of 100% of final salary for 16 years of service. The claimants however indicated 14 years of service with the amount of N2,430,397.60 without showing how that amount was arrived at. Going by exhibits AMG 10 and LHG7, the last salaries of the claimants as per their claim was N1,898,670.00. The claimants are entitled to this amount each as gratuity and I so hold.

Similarly, the table indicates a pension of 32% of final salary. The claimants calculated their pension as 100% of their monthly salary. The calculation is for June 2011 to July 2016, a period of 4 years 1 month which is 49 months but the claimants indicated June 2011 to July 2016 as 7 years =34 months and then multiplied their monthly salaries by 84 to arrive at N13,290,690.

These calculations are not reliable and this court cannot act on it as true. However, a more reliable calculation based on the table will show 32 ÷100 x 1,898, 670= 0.32 x1, 898,670 =N607, 574.4 per annum.

Monthly pension therefore will be 607,574.4 ÷12 =N50, 631.2

Pension arrears from June 2011 to July 2018(73 months) will be N50, 631.2 x 73 = N3, 696,077.6

I find that the claimants are each entitled to a monthly pension of N50, 631.2 and a pension arrears of N3, 696,077.6 for the period of June 2011 to July 2018.

On the whole, issue 2 is resolved in favour of the claimants in terms of the following entitlements each;

  1. Witheld salaries for the period of interdiction  = N1, 344,891.25
  2. Witheld salaries for the period of suspension   = N0, 949,335.00
  3. 50% monization                                                =  N0, 250,000.00
  4. One month salary in lieu of notice                    =N0, 158, 222.50         
  5. Gratuity                                                             = N1,898,670.00.
  6.  Pensions arrears                                               =N3,696,077.6

TOTAL                                                            =N8,297,196.03

  1. Monthly pension                                              = N50, 631.2

ISSUE 3

This issue is on whether the Defendant/Counter-claimant has proved its counter claim to warrant the award of the counter-claim. In paragraph 27 of the counter claim and paragraphs 22 of the statements of DW1 and DW2, the defendant pleaded and testified as follows;

“27. The defendant avers that the claimants are, according to the report, still having N148,040.77 outstanding to pay the defendant after withholding their entitlements.”

In paragraph 28, the defendant counterclaims thus;

28 The defendant counter claims against the claimants as follows;

  1. The sum of N148,040.77 being the outstanding amount payable to the defendants after withholding the defendants’(sic.Claimants’) entitlements.
  2. The sum of N10, 000,000 as general damages.

The above pleading, evidence and counter claim means that the claimants’ right to those entitlements are not controverted but rather they are admitted and used as a set off against what the claimants are adjudged to be owing the defendant, as a result of which the claimants are now said to be owing the defendant only the sum of N148, 040.77 as against the sum of N4, 463,069.08 allegedly embezzled by the claimants.

The counter claimant has the same burden of proof as a claimant.This counter claim however leaves too much room for speculations.

First, having admitted that the entitlements of the claimants were withheld, the defendant did not say how much was the entitlement of each claimant, infact, DW2 said he did not know. Supposing that by the pleadings, gratuity and pension were not calculated by the defendant as part of the claimants entitlement, the remaining four items in the claimants entitlements, which amounts were not controverted by the defendant amounts to N3,018,893.75 x 2= N6,037,787.50. The amount allegedly embezzled by the claimants jointly is N4,463,069.08, the amount allegedly embezzled by each claimant is not disclosed, supposing it to be equally, that will amount to N2,231,534.54 each which is N787,359.21 less than N3,018,893.75, the admitted entitlement of each claimant besides his gratuity and pension. It is also the claim of the defendant counter claimant that the claimants counter defendants had started paying the admitted embezzled money but the amount already paid was not disclosed. Going by the amount the court has now found each claimant to be entitled to, each claimant would still be entitled to a balance of from the defendant in addition to the amount they are said to have started paying.

Secondly, the account from which the money was allegedly embezzled does not belong to the defendant but to the Senior Staff Association of the defendant. The said association is not a party to this suit and that calls to question the locus standi of the defendant to claim the said amount in the absence of the said Senior Staff Association. The stance of the defendant is that it had to pay the said loan to the Bank as guarantor of the loan thus its claim to the amount from the claimants. The flaw with this contention is that even though it is not in doubt that the defendant guaranteed the loan, the nature of the guarantee was explained by DW1 under cross examination. It is that the defendant/counter claimant issued an Irrevocable Payment Standing Order (ISPO) to UBA (which holds the workers’ salary account) in favour of Sterling Bank which granted the loan and UBA was to deduct the loan from the staff salary accounts and pay to Sterling Bank. To my mind, this settles the repayment issue and the defendant will not need to repay again in any other way, little wonder that the defendant neither tendered the guarantor form nor the evidence of repayment of the said loan as claimed to Sterling Bank.

Thirdly, the claimants, CW1, testified under cross examination that they collected and distributed the loan among their members and no member has complained that he did not get the amount he applied for, this impresses the court as credible. The counter claimant neither pleaded nor proved any contrary evidence to this, whether documentary or otherwise. No member of the Association is said to have complained to the defendant of any fraud and little wonder the prosecution of the claimants at the Upper Sharia Court was a failure and even in this case before this court, no member of the association was called as a witness to the said embezzlement of its funds.

Fourthly, the counter claimant did not show that it served on the claimants any document in respect of payment of their entitlements showing the deduction of any indebtedness therefrom. On the contrary, the termination letters, exhibits AMG 7 and LHG 6 dated 24/6/2011 did not state that the claimants were indebted to the defendant. The last pay certificates issued to the claimants dated 20/7/2011, Exhibits AMG 10 and LHG 7, have a column for specific loans and ‘other loan’ in which the claimants were shown to be free of any indebtedness to the defendant/counter claimant.

Paragraphs 6 and 7 of exhibit AMG 10, which is in all respect the same with Exhibit LHG7, provides as follows;

6.OUTSTANDING LOANS

  1. i) HousingNil
  2. ii) Car loanNil

iii) Furnitue                 Nil

  1. iv) Other LoanNil
  2. LAST MONTH PAID                  June 2011

Learned counsel for the counter claimant submitted that the calculations showing the deduction of the claimants indebtedness from their entitlements is in the report of the Senior Staff Disciplinary Committee. That report is exhibit AU15 and it does not contain any such calculations, even if it did, that document is simply a minute of a meeting and not a report.

The deductions, which amounts or details are not disclosed in either pleadings or evidence, therefore appear to have been asserted only in the statement of defense and counter claim.

I accordingly find that the counter claim of the defendant lacks weighty and substantial evidence, the facts do not preponderate in favour of the counter claim, the counter claim is not proven by credible admissible evidence. The counter claim is full of unanswered questions left to speculations which this court must not do. See AYENI V. ADESINA (2007) 7 NWLR (PT. 1033) 233 AT 264 where the court held

“It is trite law that who asserts or claims a relief must prove it by credible admissible evidence, and judgment for and grant of such claims must be based on legal evidence of the highest probative value and weight. See A.G, Oyo State v. Fairlakes Hotels Ltd. (No. 2) (1989) 5 NWLR (Pt. 121) 255”.

See also 1. ISHOLA VS UBN LTD (2005) ALL FWLR (PT.258) 1202 AT 1213

  1. MOGAJI & ORS V. ODOFIN & ORS (1978) 4 SC 91;
  2. EKPENYONG & ORS V. NYONG & ORS. (1975) 2 SC 71;
  3. ASEIMO V. AMOS (1975) 2 SC 57 AT P. 47
  4. OBASI BROS CO. LTD V M.B.A.S LTD (2005)9 NWLR (PT.929)117
  5. EMMANUEL DEBAYO V. DOHERTY(2009) 1 NWLR (Pt. 1123) 505

 

For all that I have said and the authorities cited above, I find that the defendant counter claimant did not establish its counter claim and same is hereby dismissed.

  1. COURT ORDER

For the avoidance of doubt, it is hereby declared that the counter claim fails and the main claim succeeds. The court hereby makes these declarations and orders as follows;

  1. It is hereby declared that the Claimants being Public Servants in the pensionable employment of the Defendants, are entitled to the payment of their withheld salaries and 50% monetization, one month salary in lieu of notice, pensions and gratuities, upon the determination of their contracts of employment with the Defendant.
  2. The defendant is hereby ordered to pay to each of the claimants the sum of N8,297,196.03 (eight million,two hundred and ninety seven thousand,one hundred and ninety six naira, three kobo)  detailed as follows;
  3. The sum of N1,344,891.25(one million, three hundred and fouty four thousand, eight hundred and ninety one naira, twenty five kobo)  being witheld salaries for the period of interdiction.
  4. The sum of N949,335.00 (nine hundred and fouty nine thousand, three hundred and thirty five naira) being witheld salaries for the period of suspension.
  5. The sum of N250,000.00 (two hundred and fifty thousand naira) being 50% monization .
  6. The sum of N158, 222.50 (one hundred and fifty eight thousand,two hundred and twenty two naira, fifty kobo) being one month salary in lieu of notice.
  7. The sum of N1,898,670.00. (one million,eight hundred and ninety eight thousand,six humdred and seventy naira)  being gratuity.
  8. The sum of N3,696,077.6 (three million, six hundred and ninety six thousand, seventy seven naira and six kobo) being arrears of pension from June 2011 to July 2018.
  9. The judgment sum of =N8,297,196.03 shall be paid to each claimant within 30 days of this judgment failure upon which the judgment sum shall attract 10 % interest per anum.
  10. The defendant is hereby ordered to  pay the claimants  their monthly pensions of N50, 631.2 henceforth.

I make no order as to cost.

Judgment is read and entered accordingly.

………………………………..

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE

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