| IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
——————————————————- Suit No: NICN/CA/141/2013 Petitioner: ENGR. PATRICK EDET OQUA And Respondent: ATTORNEY-GENERAL, CROSS RIVER STATE Date Delivered: 2017-03-03 Judge(s): HONOURABLE JUSTICE E. N. AGBAKOBA Judgment Delivered REPRESENTATION: R. O. ISONG for the claimant E. N. EYO State Counsel 2 Ministry of Justice Calabar for the defendant J U D G E M E N T The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 27th September, 2013 against the defendants for the following reliefs: A DECLARATION that the non-payment of his salaries and allowances since December, 2002 is unjust and unlawful. A DECLARATION that the purported letter of retirement as well as notice to quit is null and void and of no effect. AN ORDER compelling the Cross River State Government to pay the sum of #8,428,930.4 (Eight Million, Four Hundred and Twenty Eight Thousand, Nine Hundred and Thirty Naira Four Kobo) being unpaid salaries from December, 2002 till September, 2013 and thereafter his monthly salary as at when due. AN ORDER compelling the Cross River State Government to promote the claimant to grade level 14. AN ORDER compelling the Cross River State Government to accept from the claimant, the full payment for the claimant’s house 17B Parliamentary Village, Calabar valued at #2,160,000 (Two Million, One Hundred and Sixty Thousand Naira). AN ORDER of perpetual injunction restraining the Cross River State Government and any of her agents from disturbing the peaceful possession of the claimant’s residence at No. 17B Parliamentary Village, Calabar. Exemplary damages in the sum of #10,000,000 (Ten Million Naira). In the alternative, the claimant claims as follows: A DECLARATION that the non-payment of his salaries and allowances since December, 2012 is unjust and unlawful. A DECLARATION that the purported letter of retirement as well as notice to quit is null and void and of no effect. A DECLARATION that the effective date of retirement of the claimant is 22 March, 2013. AN ORDER compelling the Cross River State Government to pay to the claimant the sum of #8,039,859.9 (Eight Million, Thirty Nine Thousand, Eight Hundred and Fifty Nine Naira, Nine Kobo) being unpaid salaries from December, 2002 to March, 2013. AN ORDER compelling the Cross River State Government to pay the claimant’s gratuity and pension calculated from 22nd March, 2013. AN ORDER compelling the Cross River State Government to accept from the claimant, the full payment for the claimant’s house 17B Parliamentary Village, Calabar valued at #2,160,000 (Two Million, One Hundred and Sixty Thousand Naira). AN ORDER of perpetual injunction restraining the Cross River State Government and any of her agents from disturbing the peaceful possession of the claimant’s residence at No. 17B Parliamentary Village, Calabar. Exemplary damages in the sum of #10,000,000 (Ten Million Naira). In the further alternative, the claimant claims as follows: A DECLARATION that the non-payment of his salaries and allowances since December, 2012 is unjust and unlawful. A DECLARATION that the purported letter of retirement as well as notice to quit is null and void and of no effect. A DECLARATION that the effective date of retirement of the claimant is 22 March, 2013. AN ORDER compelling the Cross River State Government to pay to the claimant the sum of #8,039,859.9 (Eight Million, Thirty Nine Thousand, Eight Hundred and Fifty Nine Naira, Nine Kobo) being unpaid salaries from December, 2002 to March, 2013. AN ORDER compelling the Cross River State Government to pay the claimant’s gratuity and pension calculated from 22nd March, 2013. AN ORDER restraining the Cross River State Government from evicting the claimant from his home at No. 17B Parliamentary Village, Calabar until six months after his outstanding salary and gratuity is paid. The sum of #10,000,000. (Ten Million Naira) being Exemplary damages. Claimant’s Case The Claimant is an Engineer by profession and was employed into the public service of the Government of Cross River State in 1988. He stated that he was allocated a house by virtue of his employment at No. 17B Parliamentary Village, Calabar where he lives with his wife and children. The Claimant averred that as part of his duties in the Ministry of Works, he was given a project to execute which project was not finished on time, as a result of this, his name was removed from the payroll in December, 2002 without a query or disciplinary hearing. He stated that three months later, he was invited to appear before the Disciplinary Committee to explain himself, which he did and that no letter of suspension or any other communication of disciplinary action was given to him. And that eleven years later in 2013, he received a letter of retirement from the defendant informing him that his retirement is retrospective with effect from 2002. The defendants filed their processes namely their STATEMENT OF DEFENCE dated 4th February, 2015 and filed on 5th February, 2015. Defendant admitted that claimant had a disciplinary action against him, but deny that he was pardoned, rather, that his punishment was merely mitigated. The defendant submitted that claimant was not offered opportunity to purchase the house he occupied as a result of his continued service in Government, rather it was because Government desired to divest her interest from all her residential properties and sell to the occupiers and the general public and that claimant had not accepted the offer up till now. And that claimant was not to make payment on the house from his salary but through a loan, which he was to obtain from any financial institution. To the defendant, the claimant was not denied justice nor was he treated unfairly, that on the contrary, claimant defrauded the State Government of the sum of #1,576,860.00, which he admitted before the Civil Service Commission. The defendant averred that the State Government issued a letter of retirement to claimant dated 22/03/2013 maintaining that claimant’s period of service spanned from 1988 to 2002, when his salary was stopped. The Defendant submit that the claimant is not entitled to any of the reliefs sought, urging the Court to dismiss the suit for lacking in merit, being speculative, wanton, frivolous, and an abuse of the process of the court. At the trial the claimant testified as CW adopted his written statement on oath which was marked C1 and went on to tender eleven (11) other documents. Under cross examination CW testified that he received one document in addition to Exhibit C6 from the defendants asking him to pay the initial deposit for the official residence he was occupying, that he didn’t pay, but he wrote to the Ministry accepting to pay but he was unable to obtain the required loan due to the stoppage of his salary, he further testified that he served the Cross River State Government meritoriously. And that he was not at the site that was also the Office headquarters when the Inspectors came but that was the week CW closed down the site. The claimant denied being suspended that his name was deleted from the salaries pending further investigation and that during that time he duly reported for work during the time and worked on the directive of the Chief of Staff to the Head of Service, sent on jobs by his Head of Department. He further testified that he is a civil Engineer and remained in the Civil Engineering department but that since 2002 he had not completed any APER forms, that as he was working in Projects where they did not observe the time book. They testified that in 2008 he was posted to oversee the patching of roads and states that he has a letter to that effect. And thereafter they kept directing him to jobs and he kept going, that the Chief of Staff kept promising to handle his matter and in 2013 he received a letter of retirement. The defendant called one witness, Ikoi Obeten their Deputy Director Administration, who adopted his written statement on oath which was marked exhibit D1 and went on to tender four (4) other documents. DW testified that the claimant was not an engineer but a Technical Officer on Grade level 09, that the claimant was issued Exhibit D2, the Letter of Retirement. Under cross – examination DW testified that he attended the Disciplinary meeting that discussed the claimants matter but did not tender the recommendation of the committee, he also testified that he could not remember when the claimants salary was stopped, and that the claimant was relieved in 2002 after he absconded from his duty post, he went on to explain that an officer who absconds from duty would not be retired immediately, he has to go through the procedure that is why the letter was issued in 2013. In reply to the question whether the rules allow retroactive retirement he replied “No but when an officer’s salary is stopped the retirement or dismissal after going through the procedure takes effect from the date the salary is stopped. That is the usual practice. At the close of trial parties were directed to file their final written addresses in line with the rules of this court. After waiting for the address of the defendants to no avail the claimants filed their CLAIMANT’S FINAL WRITTEN ADDRESS dated 19th September, 2016 and filed on 22nd September, 2016. With the following two (2) ISSUES Whether the dismissal or termination of the claimant with retrospective effect was proper. Whether the claimant is entitled to the unpaid salaries from December, 2002 till September, 2013 and thereafter, monthly salary as at when due and for damages. ON ISSUE 1 Whether the dismissal or termination of the claimant with retrospective effect was proper. Learned Counsel for the Claimant Rekana O. Isong, submitted that before a person can be deprived of his right, whether by a judicial or administrative panel, he must first be given a fair hearing and that such administrative panel is required by law in the discharge of its duty to observe the principles of fair hearing by affording adequate opportunity to the person/s against whom allegations were made, to know and answer to such allegations. AKWA IBOM CIVIL SERVICE COMMISSION v. AKPAN (2013) LPELR-22105 (CA). She argued that in the instant case, punishment by way of removal of claimant’s name from payroll and stopping his payment of salary was done long before he was even invited to appear before the disciplinary committee. CHIEF AUGUSTINE A. NAWA v. ATOORNEY-GENRAL, CROSS RIVER STATE & ORS. (2007) LPELR-8294 (CA). It is Claimant counsel’s contention that in a democratic government where the rule of law prevails, a civil servant cannot be retired at will without complying with the Civil Service Rules and Regulations having Constitutional force and backing. That presently, it is the duty of the Court to safeguard the rights and liberties of the individual and to protect him from any abuse or misuse of power. F.C.S.C. v. LAOYE (supra); AIYETAN v. N.I.F.O.R. (Supra), per Omokri, JCA (P. 49, PARAS. A-F). Counsel to the claimant submitted that a decision given in breach of fair hearing must be declared to be no decision and set aside. AUGUSTUS A. NDUKAUBA v. CHIEF SILAS M. KOLOMO & ANOR. (2005) ALL FWLR (PT. 248) 1602 @ 1614, per Lokulo-sodipe, JCA (Pp. 37-38, PARAS. F-B). ON ISSUE 2 Whether the claimant is entitled to the unpaid salaries from December, 2002 till September, 2013 and thereafter, monthly salary as at when due and for damages. Claimant Counsel submitted that where a right has been infringed whether it is a fundamental right or a statutory right and the aggrieved party comes to the court for reinforcement of the right, it will not be given complete relief if the court merely declares the existence of such right or the fact that the existing right has been infringed. It is the duty of the court to order a proper remedy.― Ubi jus ibi remedium―, per Omokri, JCA (P. 52, PARAS. E-F); UNDERWATER ENG. CO. LTD. V. DUBEFON (1995) 6 NWLR (PT. 400) 156. The defendants filed their DEFENDANT’S FINAL ADDRESS dated 17th October, 2016 on 18th October, 2016. Wherein they raised four (4) ISSUES for determination Whether the claimant was in breach of the CRS Public Service Rules, 2014, which led to his subsequent retirement from service. Whether the property occupied by claimant by virtue of his employment can be retained by him after the termination of his employment. Whether in the circumstances of this case, claimant is entitled to any of the reliefs sought. ON ISSUES 1 AND 2 Whether the claimant was in breach of the CRS Public Service Rules, 2014, which led to his subsequent retirement from service. Whether laid down procedure was followed before claimant’s retirement. Learned Counsel to the Defendant E. N. Eyo State Counsel 2 Ministry of Justice Calabar, submitted that since it was the claimant who wrongfully repudiated the contract of service by his wilful failure to carry out his duties under the contract, the termination of his contract with retrospective effect is quite in order. Per Kutigi, JSC in OBO v. COMM. OF EDU., BENDEL STATE (Supra) 625 @ 635; per Onu, JSC (PT. 698) Supra 625 @ 637. He submitted further that an employee has no right to receive a copy of the report of committee set up by his employer concerning him. FEDERAL CIVIL SERVICE COMM. V. LAOYE; per Omage, JCA in NITEL v. AWALA (2001) 45 WRN 146 @ 159. It is the Defendant counsel’s submission that a claimant wins on the strength of his own case and not on the weakness of the adverse party. EYO v. ONUOHA (2011) VOL. 45 (PT. 1) N.S.C.Q.R.H. 4 @ 215. And relying on the authority of ISHENO v. BERGER (2008) 4 MJSC P. 107 H2, Counsel to the defense submitted that an employer has the discretion to either declare an employee redundant or retire him, therefore, claimant’s retirement is in order ON ISSUE 3 Whether the property occupied by claimant by virtue of his employment can be retained by him after the termination of his employment. Relying on the case of F.C.D.A. v. NWANNA (1998) 4 NWLR (PT. 544) 73 @ 83, per Salami, JCA, Defendant counsel answered this issue in the negative, submitting that claimant was an illegal occupant who had no documents vesting title to the property on him. ON ISSUE 4 Whether in the circumstances of this case, claimant is entitled to any of the reliefs sought. Counsel to the Defendant submitted that claimant lied to the court during his testimony, which proves that he is not a credible witness and also gave testimonies which contradict his pleadings. OLADUDU v. TENIYE (2002) FWLR (PT. 120) 1634 RATIO 3. She submitted that it is the duty of the court to make findings on evidence led before it, and ascribe probative value to it. BARMANI VENTURES LTD. V. KINGSFOAM & CHEMICAL IND. (2002) FWLR (PT. 124) H4 @ 417. And that it is claimant’s duty to prove his case, and not the defendant and that he who asserts must prove; that it is only after the claimant proves his case that the burden will shift to the defendants. Per Mukhtar, JSC in OHOCHUKWU v. A.G. RIVERS STATE (2012) VOL. 2 MJSC (PT. 11) 106 – 108. The Defence Counsel submitted that declaratory reliefs are discretionary and that what would entitle a claimant to a declaration is a claim which a court can recognize, and if validly made it is prepared to give legal consequences to. AROWOLO v. OLOWOOKERE (2011) 48 N.S.C.Q.R. 70 H3. T And that exemplary damages are punitive in nature, and cannot avail the claimant against the defendant. ONAGORUWA v. IGP (1991) 5 NWLR (PT. 193) 593 @ 649, per Niki Tobi, JSC. On 6th December 2016, the claimant was requested to reporsed to the issues raised by the defendant in their belated final address, the matter was then stood down for one hour for the claimants to respond, the claimant counsel opted to respond viva voce, shall be in-corporated in this judgment below,. The Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind are the issues as formulated by the defendant and I shall adopt the issues raised by the defendant to holistically address the areas in contention in this suit.. Whether the claimant was in breach of the CRS Public Service Rules, 2014, which led to his subsequent retirement from service. Whether laid down procedure was followed before claimant’s retirement. Whether the property occupied by claimant by virtue of his employment can be retained by him after the termination of his employment. Whether in the circumstances of this case, claimant is entitled to any of the reliefs sought. Before addressing the merit of this case is it is necessary to deal with the objection raised during the trial. The defendants had raised objection to the tendering of Exhibit C3 and C4 on the grounds that the exhibits were not made by the claimant and it was addressed to the Chairman they also raised an objection to Exhibit C5 C5(2) that the documents were not listed in the Claimants list of documents, in their final written addresses the defendant s stated that the exhibits was neither pleaded, frontloaded or certified. Now the Counsel to the claimant in response on the 6th of December 2016 in open Court submitted that Exhibit C3 was made by a member of the panel, the Deputy Director of the primary ministry and was so authorized to pen the exhibit. In respect to Exhibit C5 the claimants argued that the defendants have not presented any evidence that the actions of the Deputy Directors were ever considered wrong hence the absence of any queries or reprimand against the Deputy Director. The position of the law is that the court are required to consider the relevancy of documents before them in determining admissibility. The defendants have not argued that the said exhibit were not relevant further more Exhibit C3 and Exhibit C4 were duly pleaded in paragraphs 12 and 14 of the claimant’s statement of fact. Also in paragraph 15 the claimant mentioned his deployment to various sites between the years of 2003-2008 are also borne out by Exhibit C5. The position of the law is that pleadings is a rule of evidence while frontloading is a rule of court and as the claimant has satisfactorily pleaded the circumstances and I find the facts contained in these exhibits are contemporaneous to the fact in issue i.e. and are relevant, and properly admitted. That the claimant’s employment enjoys statutory flavour is not in doubt in fact it is not one of the points in contention in this matter. Notwithstanding that the claimant did not file his letter of appointment I am satisfied that from the evidence before the court that this court able to court determine the Claimants Condition of Service. See SAVANNAH BANK PLC Vs. FAKOKUM [2002] 1 NWLR 1. The claimant’s appointment is one of statutory flavour governed by the Cross River State Public Service Rules, I find. Now to the merits of this case, with regard to issue 1 and 2; whether the claimant was in breach of the CRS Public Service Rules, 2014, which led to his subsequent retirement from service, and whether the laid down procedure was followed before the claimant was retired. The claimant’s case is that in 2002 he was charged with the direct labour of a road in Odukpani Local Government where due to the inability of a local cement company to deliver an allocation of cement he had already paid for in good time his project was delayed, on inspection it was discovered that the work had been suspended and the claimant salary was stopped. That he was invited as shown in Exhibit C2 and appeared before a panel of the Civil Service Commission Exhibit C4. The claimant also tendered three exhibits being letter written over the years complaining of the removal of his name from the nominal roll, non-payment of salary. Exhibits C4 dated 14th June 2008 was written by Mrs. E.O.O. Oyo, the Director of Administration recommending that his salary be restored bearing a dispatched stamp of Ministry of Works and Transport dated 18th June 2008, Exhibit C9 dated 9th June 2011 written by Michael K. Egim the Director of Administration bearing a received stamp of the Civil Service Commission requesting that decision be taken on the plight of the claimant, and Exhibit C10 written by the claimant himself dated 14th February 2011, of all the three exhibits it is Exhibit C10 that the court cannot attach any weight as it is bereft of any sign that it was ever delivered to any one or received by anyone. The law has been well established that in order to prove that a letter was actually delivered to the addressee there must be proof of receipt and this can be established by (a) dispatch book indicating the receipt, or (b) evidence of dispatch by registered post or evidence of witnesses, credible enough that the person was served with the document. NLEWEDIM Vs. UDUMA [1995] 6 NWLR 309 at p394 para B. followed in AGBAJE Vs. FASHOLA [2008] 6 NWLR (Pt. 1082)1. The claimant also tendered Exhibit C5- C5(2) being three distinct memos of various postings during the years that establish that the claimant did in fact work for the defendants from 2002 until 2013 . Now the defendants on their part maintain that the claimant absconded from work in 2002, when inspectors visited the site and his name was deleted from the nominal roll, with regards all the other averments and assertions of the claimant relying on Exhibit D3, the defendants deny and put the claimant to the strictest proof. It is the case of the defendant that the claimant was in fact indicted for serious misconduct contrary to 03401(ii) and (x) and (xviii) with the penalty of dismissal and deny that the claimant was pardoned as he stated. The defendants further stated that Exhibit C3 and C4 were doctored to include the words “…..on this great act of injustice― and the defendant proposes that the court rely on Exhibit C4, to refute the use of those words. The defendants also deny the claimants contention that he was working throughout the period for the defendants by stating that the claimant had a personal relationship with the Deputy Director Design Construction who drafted the claimant to participate in dualization of roads projects. The position of the law of pleadings is that a party who does not admit any fact in the opposing party’s pleadings must specifically deny same. General or evasive denial does not amount to a denial. To constitute an effective and sufficient denial of an averment in the statement of claim or petition, the denial must be apt, precise, succinct, full and complete and not evasive, rigmarole, vague and bogus. See EL-TIJANI V. SAIDU [1993] 1 NWLR (PT. 268) 246. Also, a mere denial of a detailed, factual situation without attacking the veracity or authenticity of details contained therein is in law not a denial. See JACOBSON ENGINEERING LTD V. UBA LTD [1993] 3 NWLR (PT. 283) 586. A traverse that the “1st defendant denies paragraph 22 of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein― does not amount to a denial for the purpose of raising an issue for trial. See LEWIS & PEAT (NRI) LTD V. AKHIMIEN [1976] 1 ALL NLR (PT. 1) 460, UBA LTD V. EDET [1993] 4 NWLR (PT. 287) 188, OHIARI V. AKABEZE [1992] 2 NWLR (PT. 221) 1 and LSDPC V. BANIRE [1992] 5 NWLR (PT. 243) 620. Furthermore, a general traverse to the effect that the defendant denies certain paragraphs of the statement of claim without making specific response to those paragraphs does not constitute sufficient denial and have been held to amount to admission. See DIKWA V. MODU [1993] 3 NWLR (PT. 280) 170 AND SANUSI V. MAKINDE [1994] 5 NWLR (PT. 343) 214. Further still, an averment in a statement of defence that the defendant puts the plaintiff to proof or does not admit the correctness of a particular allegation in the statement of claim without more has been held to be insufficient denial. See EKWEALOR V. OBASI [1990] 2 NWLR (PT. 131) 231 AND IDAAYOR V TIGIDAM [1995] 7 NWLR (PT. 377) 359. See also this Court’s decision IN MR. JEZREEL ELO MAYOR V. ECO EXIM ALLIED LIMITED & ANOR UNREPORTED SUIT NO. NICN/LA/651/2013. In addition to the lack of effective denial I find myself unable to lay much credence on Exhibit D4, the brief attached the defendants copy of the letter of Retirement, this brief was written in 2013 by Mr. Etim Efoli Director of Administration, who narrates the events of February 2002 which led to the claimant appearing before a three (3) man panel of the Civil Service Commission, where they directed the claimant to complete the work within three months, the commission to be informed after the work was completed and thereafter a decision would be taken. He went on to state that a decision could not be completed due to the demise of one of the panel members and that in 2008 a request was taken to decide on the matter at which point the commission decided to re consider the matter. The commission then examined the observations and recommendations the query and reply and recommended his retirement with effect from 1st December 2002 when his salary was stopped. I am unable to reconcile to Exhibit D4 with Exhibit C3 a letter from the late Director of Administration who was a member of the 3 man panel of the Commission. In exhibit C3 it was stated in its last paragraph that “Mr. Oqua has completed and handed over the assignment coupled with the fact that the Civil Service Commission had pardoned him, I therefore please request that a written decision on Mr. Oqua’s case be sent to this Ministry, so the Ministry could inturn brief the Head of Service accordingly.― The defendants in their final written addresses tried to rationalize this statement by stating that the author of Exhibit C3 was not a staff of the commission nor chairman of the panel and that she misunderstood what transpired at the panel hearing, unfortunately the law is that the addresses of Counsel no matter how elegantly crafted cannot substitute the position of evidence. See the case of AGU v. MADUNEMELE (2016) LPELR-40176(CA) Now considering the contemporaneous nature of this exhibit to the incident and panel sitting this court is at a loss how exhibit D4 without making any reference to the position in Exhibit C3, could arrive at the conclusions it contained. Furthermore Exhibit D4 is a report or summary obviously made from several documents none of which were acknowledged or brought before this court, not the minutes of any of the panels; not that of 20 or even the review or reconsider panel of 2008 and in this court This Court has reasoned that because a complete set of the documents wherefrom an extract was taken is not shown to the Court, to enable the Court ascertain that the extracts were indeed part of the documents they profess to be, or neither was the Court able to ascertain whether there are any other part or provisions of the complete documents that go contrary to the positions canvassed by the party relying on them, The party wishing to rely on extract, excerpt, summary, analysis or annexures from or summary of excerpts of a document is required to bring the whole documents to court for the court to be satisfied of the source of the excerpts and that no other conclusion could be made from otherwise the complete document. In such instances this court has held that the said excerpts and annexes would have no evidential value and are generally discountenanced. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS V. FEDERAL MINISTRY OF HEALTH UNREPORTED SUIT NO. NICN/ABJ/238/2012 the judgment of which was delivered on 22nd July 2013, and SUIT NO. NICN/LA/400/2013 MR. OLUREMI OMOSHEIN VS.CROWNS RELOCATIONS (NIGERIA) LIMITED delivered on 25th September 2014. In that wise having not presented in court the original document from which the report in Exhibit D4 was made I find that I can place no evidential value of Exhibit D4 made 10 years after the incident. Looking at Exhibit D3 paragraph 4 the second to the last and the last sentences read “in June 2008. A reminder was sent to the Commission requesting it to take a decision on Engr. Oqua’s matter so that the officer could know his fate. Thereafter the Commission decided to reconsider the matter― this presupposes that prior to June 2008 no action was taken since the claimant appeared before the panel and then if the Commission reconsidered the matter that it self implies that the matter had been previously considered. Now there is nothing before the court to indicate that any action was ever taken in 2008, the minutes of the Commissions re considering meeting have not been laid before the court neither has the report of the Commission or the recommendations. In the case of ISEDE VS. JUDICIAL SERVICE COMMISSION EDO STATE & ANORSUIT NO. FHC/B/CS/71/2004 unreported delivered on 1st February 2011, in that case, the Court nullified the dismissal of the plaintiff because the 1st defendant failed to conduct its own distinct investigation rather than rely in the Judicial Service Commission Report. In the instant case there is no evidence of the investigation of 2003 barring Exhibit C3, and neither is there any evidence that the Commissions undertook an independent investigation, at all. So what did they reconsider? Now Exhibit D4 continued in paragraph 6 to state that the action of the claimant constituted serious misconduct contrary to PSR 03402 (ii), (x) and (xviii), yet there was no evidence before the court that the claimant was ever presented with a query on the basis of his action contravening PSR 03402 (ii), (x) and (xviii), neither is there any evidence that the claimant was afforded the laid down disciplinary procedure incumbent in Chapter 4 of the PRS in order to justify the punishment of dismissal that could be subsequently mitigated to termination. Particularly the Rule 030307 which provides the guideline that are required to be followed before an officer is dismissed thus The officer shall be notified in writing the grounds on which it is proposed to discipline him/her. The query should be precise and to the point. It must relate the circumstance of the offence, the rule and regulation which the officer has broken and the likely penalty. In serious case which are likely to result in dismissal, the officer should be given access to such document(s) or reports(s) used against him and he should be asked to state in his or her defence that he/she has been given access to documents. The officer shall be called upon to state in writing within the specified period in the query any ground upon which he/she relies to exculpate himself/ herself. The position of the law as regards what employer must prove to justify dismissal or termination of his employee was stated in the case of OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 NWLR (PT. 1157) 83 following BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290 REFERRED TO.] (P. 145, PARAS. A-B) That “In order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the court’s satisfaction: That the allegation was disclosed to the employee; That he was given a fair hearing; That the employer believed that the employee committed the offence after hearing witnesses. In the instant case, I find that there was no time the offence of abscondment was ever disclosed to the claimant, who was never queried, nor investigated for abscondment I am aware that in situations where an officers is found to have absconded and is suspended or his salary stopped when he is dismissed the dismissal takes effect from the day he was last in the office see OBO v. COMM. OF EDU., BENDEL STATE (Supra) 625 however for this principle to be applied (play in) there must be established a clear case of abscondment. The case before the court is that the claimants salary was stopped, the defendants have not shown the court any evidence to indicate that the claimant kept away from the defendants to amount to abscondment under the Federal Public Service Rules. The contents of Exhibit C3 dated 22nd May 2003, Exhibit C4 17th June 2008 and Exhibit C9 date all go to show that the issue of the claimants was one of omission of his name from Nominal Roll and noting the period between the exhibits and the authors all being the claimant’s superior I find that a case of abscondmentnot made out and cannot be established. The defendants had contended that Exhibit C3 was doctored because Exhibit C4 did not contain the same words, barring any independent evidence of doctoring, or modification of the document this court is unable to give any credence to the contention to the somewhat illogical considering that the exhibits were penned five (5) years apart should contain the same words. I find that the defendants have not substantiated their contention of doctoring in any manner whatsoever and to that extent the contention is hereby dismissed. The claimant had pleaded that he was a level 9 officer on a salary of N69, 759.75, the defendants but for their general traverse that “Save as in herein expressly admitted, the defendants denies each and every allegation of facts as if they were set out and traversed seriatim― did not address the issue of the salary of the claimant in any way whatsoever and in law a general traverse to the effect that the defendant denies certain paragraphs of the statement of claim without making specific response to those paragraphs does not constitute sufficient denial and have been held to amount to admission. See DIKWA V. MODU [1993] 3 NWLR (PT. 280) 170 and SANUSI V. MAKINDE [1994] 5 NWLR (PT. 343) 214. Further still, an averment in a statement of defence that the defendant puts the plaintiff to proof or does not admit the correctness of a particular allegation in the statement of claim without more has been held to be insufficient denial. See EKWEALOR V. OBASI [1990] 2 NWLR (PT. 131) 231 and IDAAYOR V TIGIDAM [1995] 7 NWLR (PT. 377) 359. See also LEWIS & PEAT (NRI) LTD V. AKHIMIEN [1976] 1 ALL NLR (PT. 1) 460, UBA LTD V. EDET [1993] 4 NWLR (PT. 287) 188, OHIARI V. AKABEZE [1992] 2 NWLR (PT. 221) 1 AND LSDPC V. BANIRE [1992] 5 NWLR (PT. 243) 620. See also the unreported case of this court SUIT NO. NICN/LA/651/2013 MR. JEZREEL ELO MAYOR Vs. ECO EXIM ALLIED LIMITED & ANOR DATE: OCTOBER 29, 2014 Given these authorities, I find and hold that there is no specific denial on the part of the defendant that the claimant’s monthly salary is not N69, 759.75. This being the case, I also find and hold that the claimant has proved his claim for monthly salary at the rate of N69, 759.75 for the period December 2002 but until when ? the claimant had not pleaded the date or month of assumption of duty nor did he plead his date of birth to enable the court determine his terminal date and in his alternative reliefs he sought his salary up until March 2013 with a declaration that March 2013 was his retirement dare, whereas in his main reliefs, currently being considered he asked for his salary up until September 2013, (just before he instituted this action) and thereafter his monthly salary as and when due. In the circumstances I find that the claimant is accordingly entitled to the sum of claimed N69, 759.75 as salary from December 2002 until his date of retirement. From the foregoing I find that the defendants have not put before the Court any evidence that the claimant was in breach of the CRS Public Service Rules, 2014, and clearly the laid down procedure for the retirement of the claimant was not followed. I find that there was no basis for his, retirement based on the evidence which led to his subsequent retirement from service. Relies 1, 2, and 3 therefore succeed. With regard to issue 3; whether the property occupied by claimant by virtue of his employment can be retained by him after the termination of his employment. The claimant has not shown to this court that the said property occupied by him was part of his condition of employment so as to clothe this court with jurisdiction to determine this issue. The claimant raised issues as to the Government wanting to divest itself of its properties, the fact that he was entitled to ‘Right of First Refusal’ and applying for a loan to pay for the property all smack of a monetization scheme to this court of which this court has no jurisdiction See the ruling of this court in the unreported case of SUIT NO. NICN/LA/648/2013 MR. OYEBANJI JULIUS ODENIYI Vs. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED delivered on the 2nd July 2014. I find that this court cannot grant this relief. With regard to relief 5 and 6: whether in the circumstances of this case, claimant is entitled to any of the reliefs sought. The claimant has sought the following reliefs; A DECLARATION that the non-payment of his salaries and allowances since December, 2002 is unjust and unlawful. A DECLARATION that the purported letter of retirement as well as notice to quit is null and void and of no effect. AN ORDER compelling the Cross River State Government to pay the sum of #8,428,930.4 (Eight Million, Four Hundred and Twenty Eight Thousand, Nine Hundred and Thirty Naira Four Kobo) being unpaid salaries from December, 2002 till September, 2013 and thereafter his monthly salary as at when due. AN ORDER compelling the Cross River State Government to promote the claimant to grade level 14. AN ORDER compelling the Cross River State Government to accept from the claimant, the full payment for the claimant’s house 17B Parliamentary Village, Calabar valued at #2,160,000 (Two Million, One Hundred and Sixty Thousand Naira). AN ORDER of perpetual injunction restraining the Cross River State Government and any of her agents from disturbing the peaceful possession of the claimant’s residence at No. 17B Parliamentary Village, Calabar. Exemplary damages in the sum of #10,000,000 (Ten Million Naira). In the alternative, the claimant claims as follows: A DECLARATION that the non-payment of his salaries and allowances since December, 2012 is unjust and unlawful. A DECLARATION that the purported letter of retirement as well as notice to quit is null and void and of no effect. A DECLARATION that the effective date of retirement of the claimant is 22 March, 2013. AN ORDER compelling the Cross River State Government to pay to the claimant the sum of #8,039,859.9 (Eight Million, Thirty Nine Thousand, Eight Hundred and Fifty Nine Naira, Nine Kobo) being unpaid salaries from December, 2002 to March, 2013. AN ORDER compelling the Cross River State Government to pay the claimant’s gratuity and pension calculated from 22nd March, 2013. AN ORDER compelling the Cross River State Government to accept from the claimant, the full payment for the claimant’s house 17B Parliamentary Village, Calabar valued at #2,160,000 (Two Million, One Hundred and Sixty Thousand Naira). AN ORDER of perpetual injunction restraining the Cross River State Government and any of her agents from disturbing the peaceful possession of the claimant’s residence at No. 17B Parliamentary Village, Calabar. Exemplary damages in the sum of #10,000,000 (Ten Million Naira). In the further alternative, the claimant claims as follows: A DECLARATION that the non-payment of his salaries and allowances since December, 2012 is unjust and unlawful. A DECLARATION that the purported letter of retirement as well as notice to quit is null and void and of no effect. A DECLARATION that the effective date of retirement of the claimant is 22 March, 2013. AN ORDER compelling the Cross River State Government to pay to the claimant the sum of #8,039,859.9 (Eight Million, Thirty Nine Thousand, Eight Hundred and Fifty Nine Naira, Nine Kobo) being unpaid salaries from December, 2002 to March, 2013. AN ORDER compelling the Cross River State Government to pay the claimant’s gratuity and pension calculated from 22nd March, 2013. AN ORDER restraining the Cross River State Government from evicting the claimant from his home at No. 17B Parliamentary Village, Calabar until six months after his outstanding salary and gratuity is paid. The sum of #10,000,000. (Ten Million Naira) being Exemplary damages. The position of the law is that “When a party makes a claim in the alternative, the belief is that he wants either reliefs sought, in which case when he is granted any reliefs, it suffices for the purpose of satisfying his claims―. HELP (NIG.) LTD V. SILVER ANCHOR (NIG.) LTD (2006) ALL FWLR (PT. 311) 1833 AT 1855 – 1856 (SC), ELEPHANT INVESTMENT LTD v. FIJABI (2015) LPELR-24732(CA) “It is trite that where there are alternative reliefs, as in the instant case leading to this appeal, and one of the reliefs is granted, the other relief cannot be granted by the court. Both the main and the alternative claims cannot at the same time be granted. Also in G.K.F.I. (NIG.) LTD v. NITEL COMMUNICATIONS PLC [2009] 15 NWLR (Pt. 1164) 344 SC; (2009) LPELR-1294 (SC) 32 paras D-G, the Supreme Court, PER OGBUAGBU, JSC held: that”… where a claim is in the alternative, the court should first consider whether the principal or main claim, ought to have succeeded. It is only after the court may have found that it could not, for any reason, grant the principal or main claim, that it would now consider the alternative claim. See MERCANTILE BANK OF NIG. LTD V. ADALMA TANKER & BUNKERING SERVICES LTD [1990] NWLR (PT. 153) 747.” See also OSUJI v. EKEOCHA [2009] 16 (Pt. 1166) 81; NWANGAWA v. UBANI [1997] 10 NWLR (Pt. 525) 559.” Per OBASEKI-ADEJUMO, J.C.A. (Pp. 77-78, paras. C-A. I had already dealt with reliefs 1-3, 5 and 6, leaving reliefs 4 and 7. In relief 4 the claimant is asking the court to compel the Cross River State Government to promote him to grade level 14. The position of the law is that Promotion in employment law is a factual situation it cannot be inferred or attributed. In the case of ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION, [2006] 14 NWLR (PT. 1000) 610 CA it was held that ‘promotion is neither automatic nor as of right’. Also in the Indian case OF LH SUGAR FACTORIES & OIL MILLS LTD V. STATE OF UTTAR PRADESH (1961) I LLJ 686 (ALL), per SS Dhavan J. held as follows – Promotion generally necessitates a consideration of comparative suitability of eligible workmen and such a selective process would require a consideration not only of the best performance of those eligible, but necessitates the making of a comparative estimate of their skill, sometimes of a technical nature, their personality, capacity to discharge heavier responsibilities and similar other factors…― The Courts are accordingly reluctant to ascribe a promotion or promote an officer based merely on efflux of time, considering the integral process of periodical appraisal, evaluation and personal assessment incidental to the process of promotion and as the claimant has not exhibit any evidence of these processes this court has no basis on which to consider this relief afortori grant same. This relief cannot be granted and therefore fails. Relief 7; is for Exemplary damages in the sum of #10,000,000 (Ten Million Naira). In the case of N.D.L.E.A. v. OMIDINA (2013) 16 NWLR (PT. 1381) 589 @ 595 C.A it was held that Exemplary damages may be awarded in situations where: Any action by servants of the Government is oppressive, arbitrary or unconstitutional. The defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. When exemplary damages is expressly authorized by statute. (P. 616, PARAS. D-E). The claimant has not shown this court how he arrived at N10, 000, 000 (Ten Million Naira), although the conduct of the defendant may be seen to be apathetic and less than diligent in failing to take prompt action to restore the claimant to the nominal roll or take any action on the matter one way or the other, the claimant has not proved to the court that the action of the defendant could be considered arbitrary and oppressive so as to rise to the level to which the could begin to consider exemplary damages. This relief also fails, For voidance of doubt this is the courts judgment, Reliefs 1 succeed, reliefs 2 and 3 succeeds in part, relief 4, 5, 6 and 7 fail. It is hereby declared that the non-payment of his salaries and allowances since December, 2002 is unjust and unlawful. It is hereby declared that the purported letter of retirement is null and void and of no effect. It is hereby ordered that the defendants shall compute and pay to the claimant the sum of N69, 759.75 as monthly salary from December 2002 until the date of his retirement. This is the court’s judgement and it is hereby entered. …………………………………………… Hon. Justice E. N. Agbakoba Judge. |
