IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
ACTING PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: DECEMBER 3, 2019
SUIT NO. NICN/ABJ/170/2018
BETWEEN
ASP 1 Biramobofa Kiribien (Rtd)– Claimant
AND
1. Nigeria Police Force
2. Inspector General of Police
3. Nigeria Police Force (NPF) Pension -Defendants
REPRESENTATION
P. A. Achuara, with Ms Christiana Agbebaku, for the claimant.
Chidike Iheukwumere, for the 3rd defendant.
No legal representation for the 1st and 2nd defendants.
JUDGMENT
INTRODUCTION
1. The claimant filed this action on 19th June 2018. With leave of Court, the claimant amended his originating processes. By the amended statement of claim, the claimant is claiming against the defendant for the following:
(a) A declaration that the purported sum of N2,500,000.00(Two Million, Five Hundred Thousand Naira only) being his outstanding gratuity balance owed him by the defendants should be paid to him.
(b) An order of court directing that all his gratuity and/or benefit be paid to him in full and not installmental.
(c) An order of Court directing the defendants to pay the claimant the sum of N30,000,000.00 (Thirty Million Naira only) as general damages for the embarrassment, time and transport wasted and physical/psychological trauma caused by the non-payment of his gratuity as at when due.
(d) The sum of N500,000.00 (Five Hundred Thousand Naira only) as cost of this suit.
2. Only the 3rd defendant reacted by filing its statement of defence and other defence processes. In fact, throughout the trial, the 1st and 2nd defendants did not appear in court, nor were they represented by any counsel. At the trial, the claimant testified for himself as CW and tendered Exhibits A, B, C, D1, D2, E1, E2, F and G. For the 3rd defendant, Ahmed Musa, who works with the Nigeria Police Force Pensions Ltd as Deputy Manager, testified as DW and tendered Exhibits NPF1, NPF2, NPF3 and NPF4.
3. At the close of trial, parties filed their respective final written addresses. The 3rd defendant’s final written address was filed on 26th August 2019, while that of the claimant was filed on 1st November 2019. The 3rd defendant did not file any reply on points of law. Both final written addresses were deemed adopted by the Court on 31st October 2019 in accordance with Order 45 Rule 7 of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017).
THE CASE BEFORE THE COURT
4. It is the claimant’s case that he was employed by the 1st defendant on 1st December 1981 as a recruit constable. He worked for 35years and was promoted to the rank of ASP 1. That after his retirement, he and his colleagues were called upon to sign for the collection of their gratuity payment. That on reaching the headquarters of the 1st defendant in Yenegoa, Bayelsa State, the officer-in-charge in the 1st defendant’s headquarters told all the retirees to sign the Retirement Benefit Consent Form and not to show it to each other. That he almost collapsed when he saw the sum of N1,300,000.00 (One Million, Three Hundred Thousand Naira)only as his gratuity. That when he enquired from the officer-in-charge why his gratuity was N1,300,000.00 (One Million Three Hundred Thousand Naira)only and why they were not allow to look at each other’s consent form, he was told by the officer-in-charge that the remit is from Abuja and that they are working with the instructions given to them by the 3d defendant’sheadquarters in Abuja. That after signing his consent form he went to the 3rd defendant’s headquarters in Abuja to lay his complaints. Prior to laying his complaint, he perused the consent form of his colleagues of the same grade 9 and discovered that the amount in his colleagues consent form is far higher than his own. It is the claimant case that after his complaint, he was called upon by the 3rd defendant to apply for an additional lumpsum of N500,000.00 (Five Hundred Thousand Naira) only pending when the National Pension Commission (PENCOM) will send additional sum of money in respect of his matter. He told the head of benefit of the 3rd defendant that his outstanding gratuity is N2,500,000.00 (Two Million, Five Hundred Thousand Naira) only. That on 16th May2018, the claimant went to the 1st defendant’s headquarters in Yenegoa, Bayelsa State and applied for the additional lumpsum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira)only.That he was shocked when the 3rd defendant wrote to him a letter that the sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira)only cannot be paid to him given that he is only entitled to an additional lumpsum of N554,733.00 (Five Hundred and Fifty-Four Thousand, Seven Hundred and Thirty-Three Naira)only. It is thus the claimant case that he is entitled to a gratuity sum of N3,800,000.00 (Three Million, Eight Hundred Thousand Naira)only.
5. To the 3rd defendant, however, the claimant failed to prove his case; as such he is not entitled to the reliefs sought in these proceedings. Accordingly, the claimant’s suit should be dismissed on a full indemnity basis to the 3rd defendant.
THE SUBMISSIONS OF THE DEFENDANT
6. The defendant started off with an objection to inadmissible evidence. The claimant had tendered Exhibits D1 and D2, which are statements of account of Mr Simon Wurukeseye and Mr Young Martins. It is the 3rd defendant’s contention that these documents areinadmissible because of the following reasons:
(a) The claimant is not the maker of Exhibits D1and D2. That as can be clearly seen from the pleadings and evidence before the Court, the claimant is not the maker of the Exhibits D1 and D2 and as such cannot reasonably be permitted under the laws prescribing for admissibility of documentary evidence to tender such documents by himself without the presence of the makers, who should tender them, or at best some reasonable explanation as why he is the one tendering the said documents instead of the owners of the documents, citing section 83(1) of the Evidence Act 2011. That the purport of the above is that where the maker of any statement covered by a document is not called as a witness, such a statement and/or document ought not to be admitted in evidence. That in the instant case, the claimant is not the maker or to whom Exhibits D1and D2 relate as they belong to someone else. Those individuals, who are the original owners of the document, have not been called in as witnesses to tender the said documents contrary to the above provision of the Evidence Act.Again, the claimant has failed to lay proper foundation as to why he intends to tender the said documents himself.Thus, no evidence has been led to show why those individuals cannot be called as witnesses in accordance to the last proviso to the section 83(1).
(b) Proper Custody. To the 3rd defendant, Exhibits D1 and D2 have not emanated from proper custody as envisaged by section 156 of the Evidence Act 2011. That Exhibits D1and D2 tendered by the claimant did not emanate from the individuals with whom they would naturally be and there is obviously nothing to show, from the pleadings and evidence before the Court that proper custody is probable in favor of the claimant as to why he can be permitted to tender such documents. That the 3rd defendant’s objection is rooted in the unassailable age-long principle of law that the best person to tender a document in evidence is the maker. This invariably extends to the argument of proper custody where the document is tendered by someone else aside the maker, as in this case. That in both instances where the minimum requirement of the law on admissibility of documentary evidence has not been met, the Courts have been enjoined to discountenance such document and not to rely on it, urge the Court to so do in this case; and citingOnochie v. Odogwu[2006] 2 SC (Pt. Il) 153.
7. The 3rd defendant then submitted a sole issue for determination, namely: whether from the evidence before the Court, the claimant is entitled to the reliefs sought. The 3rd defendant took reliefs (a) and (b) together. That the claimant’s case is based on the alleged claim that he is entitled to N3.8m pension. However, and rather surprisingly, he has not shown or led any evidence to show that he is indeed entitled to such an amount further to his retirement nor did he show from the statement of his pleading or evidence before the Court how he arrived at that figure. That what the claimant has done is to present what he thinks is his entitlement as pension, particularly in comparison with what other individuals supposedly got as pension. That the claimant cannot reasonably expect the Court to rely on such speculation in granting his reliefs, citingANPP v. ROASSD[2005] 6 NWLR (Pt. 920) 38.
8. The 3rd defendant went on that aside form objecting to Exhibits D1 and D2, it has gone on to show via the PENCOM approved template, which the claimant stated he has no idea about per his evidence before the Court, what the claimant is specifically entitled to. It is thus the 3rd defendant’s submission that this is the true state of evidence the Court is to rely on and not the claimant’s speculated or expected figure. That that where there is no evidence to support a relief claimed by a claimant, the courts have been urged to dismiss such a relief; more so as the Court cannot grant what has not been claimed by the claimant, citingNigeria Air Force v. Shekete[2002] 18 NWLR (Pt.798) 128. The 3rd defendant then urged the Court to dismiss relief (a) for lacking in merit with no evidence before the Court to support such claim.
9. Regarding relief (b), the 3rd defendant submitted having since the claimant is not entitled to the erroneous claim of N3.8m but to the sum of N1,314,511.00 (One Million, Three Hundred and Fourteen Thousand, Five Hundred and Eleven Naira) only, while his monthly programmed withdrawal amounted to N32,168.90 (Thirty-Two Thousand, One Hundred and Sixty-Eight Naira, Ninety Kobo) only, of which the claimant had already received as shown by Exhibits NPF2 and NPF3; and an additional sum of N544,733.65 (Five Hundred and Forty-four, Seven Hundred and Thirty-three Naira, Sixty-Five Kobo) only remitted by PENCOM into the claimant’s Retirement Savings Account (RSA) and which indeed the 3rd defendant is willing to make such payment provided the claimant makes the right application without the discrepancy in the figures, we concede that such sums are his entitlement. That from the evidence before the Court, the claimant was asked to apply for payment of the reconciled figure but he chose to request for a higher sum based on calculations best known to his imagination, which calculations not supported by any evidence and so cannot be granted. What is more? That in paragraph 10 of the amended claim, the claimant admitted that even his colleagues, whom he had discussions with and looked through what they were paid, were of a different step even though they were of the same Grade 9. That this obviously shows that not everyone is entitled to the same payment based on the PENCOM approved template before the Court.
10. On reliefs (c) and (d) i.e. the claims for N30 Million as general damages and N500,000 as cost, the 3rd defendant submitted that the summary of the first monetary claim of N30 Million falls under both general and special damages going by the qualifications of what the claimant alleges he has suffered. That general damages can only be granted as a form of compensation for breach or violation of a legal right while special damages on the other hand cannot be granted as a matter of right; the claimant is expected to specifically plead such damages and to show how he arrived at such calculated figure, citing Harka Air Services Ltd v. Keazor[2006] 1 NWLR (Pt. 960) 160. That in the instant case, the claimant has failed to specifically plead the quantum of embarrassment, time wasted, physical/psychological damage and trauma he claims to have suffered. That there is no evidence, oral or documentary, as to how much he claims to have expended on transportation either. There is, therefore, nothing to support the ridiculous claim of N30 Million under the heading of special damages and as such the Court should dismiss that claim.Also, regarding the claim for general damages, that as can be seen from the above case, such can only succeed as an implication of a breach or violation of a legal right. The defendant then asked what the legal right breached or violated in this case was; and answered: NONE.
11. The 3rd defendant continued that theclaimant would have been paid his gratuity if he had agreed to the figure as calculated and due to him by the PENCOM approved template, but he chose to object to the figure, rather opting for a higher and unfounded sum. That his legal right to his gratuity was not breached or violated in any way whatsoever to warrant a grant of general damages in any amount.That the 3rd defendant admitted during cross-examination that indeed there was a delay in the payment of gratuities but such was due to bureaucratic effects beyond the control of the 3rd defendant. That such delay did not erode or nullify the legal right to the gratuity due to the claimant, and what is more, the claimant’s cause of action is not premised on delay of payment of his gratuity but on an assumed and contested figure of N3.8 Million which necessitated the action before the Court. The defendant then urged the Court to dismiss the claim for general damages as lacking in merit having not been proved and/or supported by evidence.
12. The claimant also claimed the sum of N500,000 as cost of this action in relief (d). To the 3rd defendant, it has long been held by the courts that it is unethical to pass on the burden of professional fees or cost of the action to the other party, citingGuinness Nig. Plc v. Emmanuel Nwoke[2000] 15 NWLR (Pt. 689) 135. Moreover, that there is nothing to show, even by the barest hint of a professional bill of charges or solicitor’s receipt, how the sum of N500,000accrued and whether or not such has been paid by the claimant who also stated that he has suffered huge losses due to lack of payment of his gratuity. Accordingly, the 3rd defendant urged the Court to also dismiss relief (d) as same is unfounded and not supported by any evidence. In conclusion, the 3rd defendant urged the Court to dismiss this suit for lacking in merit.
THE SUBMISSIONS OF THE CLAIMANT
13. The claimant also submitted a sole issue for determination, namely: whether the claimant have (sic) proved his case on preponderance of probable evidence as to render the defendants liable in damages in this suit.It is the claimant’s submissionthat he has been able to prove his case to entitle him to judgment. That his evidence as contained in the witness statement on oath was unchallenged and uncontroverted by the defendant, citing NAOC Ltd v. Janyim (Nig) Ltd[2015] All FWLR (Pt. 785) 366 at 374. That what the defendant attempted doing during cross-examination was to ask the claimant technical questions as regard his knowledge of Pension Act, which questions are issues of law. That questions regarding the facts contain in the claimant’s witness statement on oath were never ask by the defendant and as such the claimant’s evidence remained unchanllenged and uncontroverted; and so his evidence is cogent evidence, which the Court should accept and act on. Also, that all the documents tendered by the claimant in this suit are all relevant in proof of his case.
14. On the admissibility of Exhibits D1 and D2, the claimant submitted that the documents are relevant and as such admissible in this case, citing section 4 of the Evidence Act 2011, which provides that: “Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction are relevant whether they occurred at the same time and place or at different times and places”. That Exhibits D1 and D2 are documents and consent form of colleagues of the claimant which are all documents forming part of the same transactions to wit consent forms which enables the claimant and his colleagues to access their gratuity and benefit, and as such from part of the transaction and relevant in this suit. Furthermore, that by section 89 of the Evidence Act 2011 secondary evidence maybe given of the existence, condition or content of a document whenthe original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved. That Exhibits D1 and D2 are secondary evidence whose original are with the 3rd defendant, the party whom the document is sought to be proved. That such documents are by section 83 of the Evidence Act admissible in law, referring toShobanke v. Sarki[2006] All FWLR (Pt. 292) 131 CA. It is thus the claimant’s submission, that Exhibits D1 and D2, which are consent forms of the claimant’s colleagues, are documents whose originalsare in the possession of the 3rd defendant whom they are sought to be proof against. That such documents are by the provision of the law admissible in evidence, citing Attorney General of Oyo State v. Fairlakes[1989] 5 NWLR (Pt. 21) 255 at 282 SC. Accordingly, that Exhibits D1 and D2, which are the Retirement Benefit Withdrawal Consent Forms of the claimant’s colleagues, can be admitted in evidence and relied upon by the Court without the same colleagues being called in evidence,relying on section 83(2) of the 2011 Evidence Act and Igbodim v. Obianke [1976] 9 – 10 SC 179.
15. To the claimant, the main pre-occupation of the Court should be the evidential value which such document will assist the Court in arriving at a just decision of the case at hand.That the courts have also held in a plethora of cases that the source of evidence generally, and of documentary evidence in particular, is irrelevant. Thus once documentary evidence is relevant and admissible in law, it will be admitted and acted upon, the fact that it was criminally, fraudulently or unlawfully obtained without proper custody notwithstanding, referring toUkachukwu v. Uba[2006] All FWLR (Pt. 300) 1736 CA,Alli v. Alesinloye[2000] FWLR (Pt. 15) 2610 at 2646,Oshunrinde v. Akande[1996] 6 SCNJ 193 and Agbahomovo v. Eduyegbe[1999] 2 SCNJ 94.
16. The claimant went on that in civil cases, the person who assets has the primary onus or burden of proving the assertion thereof. That he discharged this burden by his evidence, which evidence is credible and sufficient in proving the assertions he made, citing Agboola v. UBA Plc[2001] All FWLR (Pt. 574) 74 at 83. It is thus the claimant’s submission that the preponderance of evidence in this case is in his favour as the defendant does not have any credible evidence to be placed on the imaginary scale. More so as the defendantcontradicted himself by the evidence of DW when he stated under cross-examination that he cannot remember the claimant’s gratuity, the sum of money which he validated for the claimant, and also admitted that the claimant’s gratuity is still being owed the claimant by the 3rd defendant. That in the absence of any credible evidence by the defendant, the balance of probability is in favour of the claimant, urging the Court to so hold and grant all hisnclaims.
17. To the claimant, general damages are not quantifiable as a matter of fact;it is purely at the discretion of a trial court which heard all the parties and could easily determine what would amount to reasonable compensation to a party entitled to such an award, referring toFramo Nigeria Ltd v. Shaibu Daudu[1993] 3NWLR (Pt. 281) 372. Also, that a receipt is not a necessity in proving special damages; as such, unchallenged oral evidence when given on items classified as special damages and not supported by production of receipts is not fatal to a claimant’s claim, citingBoshali v. Allied Commercide Exporters Ltd[1961] All NLR 917 and Datoegoem v. Musa Dashe[1997] 12 NWLR (Pt. 16) 333. That the claimant in this case stated in his statement of claim that he suffered a lot of embarrassment, time and transportation wasted as well as physical/psychological trauma as a result of non-payment of his full gratuity by the defendant and that he incured N500,000.00 (Five Hundred Thousand Naira)only as cost of this suit. That all these are classified as special damages, thenon-production of receipt of which is not fatal to his case.That this piece of evidence as to what hesuffered was never challenged or contradicted during cross-examination by the defendant. The claimant prayed the Court to rely on same and grant all the reliefs he claims. In conclusion, the claimant prayed the Court to dismiss the defence of the defendant and grant all his reliefs.
18.Like I earlier pointed out, the 3rd defendant did not file any reply on points of law.
COURT’S DECISION
19. I have carefully considered the processes filed and the submissions of the claimant. The defendant had objected to the admissibility of Exhibits D1 and D2, which are the Retirement Benefit Withdrawal Consent Forms of the claimant’s colleagues, In virtue of section 12 of the National Industrial Court (NIC) Act 2006, this Court treats issues of admissibility of documents rather flexibly once the authenticity of the document in question is not really in issue. The authenticity of Exhibits D1 and D2 are not in issue. The only point made by the 3rd defendant is that the owners of the documents were not called as witnesses; and so it did not have the opportunity of cross-examining each on the respective documents. This argument goes more to cogency or the weight to be attached to the documents, not so much to admissibility. I so find and hold.
20. In Mrs Bessie Udhedhe Ozughalu& anor v. Bureau Veritas Nigeria Limited unreported Suit No. NICN/LA/626/2014, the judgment of which was delivered on 20th March 2018, relying on Ademulegun Aderemi & 15 ors v. Wema Bank Plc unreported Suit No. NICN/LA/10/2011, the judgment of which was delivered on 16th July 2014, the defendant had argued that the claimants cannot base their claim on the entitlement of another but on the deceased’s, and that the case of the claimants is not one built on unfair labour practice as to call for comparison. It is correct that a claimant builds his case only on a right inuring to him, not on rights of others; except where his case is one of unfair labour practice, where comparison with rights of others is permissible. Where a claimant has already establish his entitlement as a right, the question of the rights of others is merely a reinforcing argument, not necessarily that of basing a claim on the rights of others. This Court explained this point in Mrs Bessie Udhedhe Ozughalu& anor v. Bureau Veritas Nigeria Limited when it held that the argument of the defendant would be sustainable only if the claimants did not establish their case as to the entitlement of the deceased as of right to payment in both Naira and USD. Since the Court had held that payment in Naira and USD was part of the terms of the contract of employment of the deceased, this Court went on to hold that the question of the claimants basing their claims on the entitlements of CW2 or DW did not arise at all. That the evidence as to the position of CW2 and DW in this context was merely to reinforce the right of the deceased to the fact that his contract was after all not unique to him alone. The Court then held that the claimants did not thereby base their claim on unfair labour practice as they have already established the deceased’s right to payment in Naira and USD given the exhibits they tendered. In the instant case, therefore, the claimant will need to establish his right to the outstanding gratuity he claims before he can use Exhibits D1 and D2 as a reinforcement of the fact that his outstanding gratuity is not unique to him.
21. In relief (a), the claimant is claiming for N2,500,000.00 as his outstanding gratuityowed to him by the defendants. The claimant’s case is thereby a claim for special damages. The claimant got it right when he asserted that the burden of proof is on he who asserts. This means that the burden of proof rests on the claimant. Accordingly, the argument of the claimant that the defendant does not have any credible evidence to be placed on the imaginary scale is uncalled for as it seeks to shift the burden away from the claimant onto the defendant. So too is the argument of the claimant that in the absence of any credible evidence by the defendant, the balance of probability is in favour of the claimant. And the fact that DW stated under cross-examination that he cannot remember the claimant’s gratuity does not take away the burden of proving the special damages the claimant claims from him. In proof of his case, the claimant submitted that his evidence is not controverted by the defendant; and that his oral evidence is sufficient as proof for his claims. The rule, by the minimal evidential requirement, is that a claimant cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence before the trial court as held in Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69 and Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247. See also this Court’s decision in Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC.
22. So, for the claimant to succeed in his claims, he must prove the twin issues of his entitlement to the outstanding gratuity he claims and how he came by the sum he claims; and he must do this with concrete and cogent evidence, which normally is documentary evidence, not oral. Where the evidence is oral, it must be corroborated by some other credible evidence. This Court said this much in Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018 in the following:
In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.
23. The onus of proving claims for special damages is pretty onerous. 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA), for instance, held that a claim for gratuity, pension, housing fund, salary is a claim for special damages, which must be particularized and strictly proved. And by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), what appears to be an admission cannot apply to a claim for special damages. Put in another way, a claim for special damages cannot succeed because it is admitted. That special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. From these case law authorities, the fact that DW admitted that the claimant’s gratuity is still being owed the claimant by the 3rd defendant is not sufficient to be the proof of the outstanding gratuity of N2.5 Million that the claimant is claiming.
24. Now, in the instant case, the claim by the claimant for outstanding gratuity is a claim for special damages. Gratuity is a function of the quantum of salary or part of it multiplied by the number of years served. Since the quantum of gratuity cannot be ascertained unless the salary upon which it is calculated is known, and the claim for special damages must by law be particularized, the claimant in the instant case is required to have pleaded his salary in order to ascertain the basis upon which he claims N2.5 Million as outstanding gratuity. See Lijoka Olaniyi Dennis & 1677 ors v. First Franchise Service Ltd & anor [2019] 2 NICLR 27-96. This he did not do. All the claimant did was to plead that his total gratuity is N3,800,000.00, out of which N1,300,000.00 was paid leaving N2,500,000.00 as outstanding. See paragraph 15 of the amended statement of claim. The claimant would proceed in paragraph 17 of the amended statement of claim to make it look like the defendants are still owing him N3,800,000.00 as full gratuity. Hear his pleading in the said paragraph 16:
The non-payment as the Claimant full gratuity which is the sum of N3,800,000.00 (Three Million, Eight Hundred Thousand Naira Only) by the Defendants has caused the Claimant disgrace, embarrassment and untold hardship as he find it difficult to take care of his family after 35 years he served the nation meritoriously.
The claimant would then in the concluding words of paragraph 2.2 of his final written address state that his case is “that he is entitled to a gratuity sum of #3,800.000.00 (Three Million, Eight Hundred Thousand Naira Only)”.
25. The evidence of DW, which I agree with, is that the entitlement to gratuity of a retired ASP depends on a number of factors such as RSA balance, annual total emolument and age of the recipient. All of this was not pleaded and proved by the claimant. If in paragraph 10 of the statement of claim, the claimant had the presence of mind to plead a phone number he put across (094603400 – an incorrect one though), supported by paragraph 12 of the witness statement on oath (0904603400 – still incorrect number), I do not know why he did not have the same presence of mind to plead his salary. How did the claimant come by N3,800,000.00 as his full gratuity in the first place for which N1,300,000.00 was paid leaving as outstanding N2,500,000.00? The claimant did not tell this Court. The sad part of it all was that all through his cross-examination, the claimant feigned ignorance to ALL but one of the questions he was asked. In particular, he testified that as at the time he filed this suit, he did not know the balance in his pension account with the Nigeria Police Pension Ltd. And still, he filed this suit against including the 3rd defendant. It is like the claimant filed this suit hoping that the defendants will prove his case for him. This is the sense in which the argument of the claimant that DW contradicted himself when he stated under cross-examination that the claimant’s entitlement as gratuity is a figure he cannot remember; and that DW admitted that the claimant’s gratuity was not paid in full, must be understood. All of this cannot take away the fact that the onus of proof still rests on the claimant. In all seriousness, therefore, it cannot be taken that the claimant has proved his claim for special damages, especially the claim for outstanding gratuity. I so find and hold. Reliefs (a) and (b) accordingly fail and so are dismissed.
26. Relief (c) is for “N30,000,000.00…as general damages for the embarrassment, time and transport wasted and physical/psychological trauma caused by the non-payment of his gratuity as at when due”. Once the claimant cannot prove his entitlement to the payment of gratuity, the question of “embarrassment, time and transport wasted and physical/psychological trauma caused by the non-payment of his gratuity as at when due” cannot arise; and so the very basis upon which relief (c) lies collapses. Relief (c) accordingly cannot be granted. It fails and so is dismissed.
27. Once reliefs (a), (b) and (c) fail, the claim for cost must equally fail. It is accordingly dismissed.
28. On the whole, and for the reasons given, the claimant’s case has no merit whatsoever. It is accordingly dismissed.
29. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
