HON. OMOLEGBON ODUSOLA -VS- ONDO STATE GOVERNMENT & 4

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE A. A.ADEWEMIMO

DATED:3^RD DECEMBER, 2018SUIT NO: NICN/AK/18/2017

BETWEEN

HON. OMOLEGBON ODUSOLA……………………. CLAIMANT

AND

ONDO STATE GOVERNMENT
THE GOVERNOR OF ONDO STATE
THE ATTORNEY GENERAL AND COMMISSIONER DEFENDANTS
THE PERMANENT SECRETARY,

MINISTRY OF JUSTICE, ONDO STATE.

THE ACCOUNTANT GENERAL, ONDO STATE

REPRESENTATION:-

OMOLEGBON ODUSOLA APPEARED FOR HIMSELF.

I. ADEJUMO, ADMINISTRATOR GENERAL & PUBLIC TRUSTEE, FOR ALL THE DEFENDANTS.

JUDGMENT

The Claimant by a Complaint before this Court on the 17^thMay, 2017claims against the Defendants as follow:

A Declaration that the claimant being a Political aide to the executive Governor of Ondo State in the Ondo State Government between 27^th December, 2013 to 26^th February, 2017 is entitled to be paid Salaries, Furniture Allowances, Severance Gratuity and other prerequisite of office due and accruable to his position as Special Assistant to the Executive Governor of Ondo State on Social Media and Communication.

A Declaration that the refusal or failure of the defendants to pay to the claimant his due outstanding seven (7) months salaries, full furniture allowances, Severance Gratuity as a Political aide to the executive Governor of Ondo State in the Ondo State Government on or before or immediately after leaving office on 26^th February, 2017 is wrongful, unlawful and constitutes violation of claimant’s right to his entitlements as recommended by Executive Governor of Ondo State in line with Revenue Mobilization Allocation & Fiscal Commission recommended entitlements for public and political office holders in Nigeria.

An Order directing the defendants to pay over to the claimant the sum of;

(a) N1,637,984.39 (One Million, Six Hundred and Thirty Seven thousand, Nine hundred and Eighty Four Naira, Thirty Nine Kobo) only being 7months arrears of monthly salaries due and accruable to the claimant from August 2016 to February 2017 calculated at the rate of N233, 997.77 (Two Hundred and Thirty Three thousand, Nine Hundred and Ninety Seven Naira, Seventy Seven Kobo) only per month, which was unlawfully withheld by the defendants.

(b) N681,000.00 (Six Hundred and Eighty One Thousand Naira) being the outstanding balance of the wardrobe/Furniture Allowance due and accruable to the claimant calculated at 300% of claimant Annual Basic Salaries which stood at N1,040,625.00 Per Annum; the amount claimed is the outstanding balance after deduction of the N2,440,000.00 already paid to the claimant by the defendants.

(c) N3,121,875.00 (Three Million, One Hundred and Twenty One Thousand, Eight Hundred and Seventy Five Naira) only being the Severance Gratuity or benefit due and accruable to the claimant calculated at 300% of the claimants annual basic salaries which stood at N1,040,625.00 per Annum.

N500,000.00 (Five Hundred Thousand Naira) only being general damages for the wrongful and arbitrary continuous withholding of the claimant’s salaries, allowances and other fringe benefits by the defendants.

An order of Injunction restraining the defendants whether by themselves, their servants, agents or privies, e.t.cfrom further interfering and or withholding the payment of the claimant’s outstanding salaries, balance of furniture allowance, Severance gratuity as Personal Assistant to the out gone Governor of Ondo State, which benefits the claimant is lawfully entitled to for his lawful service to the Ondo State Government.

The Claimant filed along with the Complaint all the accompanying processes, i.e. the statement of facts, deposition on oath of the claimant, list of witnesses and documents to be relied upon. The claimant later filed a motion to amend his Statement of Facts which was moved and granted by the court on the 26^th of October, 2017.

The Defendants on their own part filed their Memorandum of appearance, Statement of Defence, out of time, the processes were regularized by a motion on notice moved and granted on the 10^th of July 2017.

The Claimant’s case is that he was employed as Personal Assistant to the Governor of Ondo State, on Social Media and Communication, vide appointment letter dated 27^th December, 2013. He averred that apart from his monthly salaries, he is also entitled to other allowances, yearly leave bonus, and severance gratuity or benefit payable to him during or immediately after leaving office as recommended by Revenue Mobilization Allocation & Fiscal Commission and the breakdown of his salary remuneration was attached to the said letter. He averred in his Statement of Facts that by virtue of his appointment he was a public office holder in the Ondo State Government until the termination of his appointment, and therefore entitled to be paid salaries, allowances and other prerequisites of office, which includes gratuity or benefit due and accruable to his office or position as a Personal Assistant to the 2^nd Defendant.

The Claimant stated that the other defendants are the persons or bodies with statutory duties to pay and ensure the prompt payment of his salaries, allowances, which included severance gratuity and other benefits attached to his office. He alledged that the defendants failed or refused to pay the salaries due and accruable to him for August 2016 to February 2017
(a period of 7 months) when his appointment was terminated, he also alledged that his Wardrobe/Furniture allowances and pension/ severance gratuity were also not paid as recommended by Revenue Mobilization Allocation and Fiscal Committee Act. The claimant stated all his entitlements which the defendants refused to pay as follows:

Arrears of salaries from August 2016 to February

2017 at the rate of N233,997.77 per month. N1,637,984.39

Severance gratuity calculated at 300% of

Annual Basic Salary which stood at N1,040,625.00

Per Annum at basic monthly salary of N86,718.75 N3,121,875.00

Balance of wardrobe/furniture allowances

Calculated at 300% of annual basic salary which

Stood at N1,040,625.00 per annum at basic

Month salary of N86,718.75 and after deduction of

N2,440,000.00 already paid N681,000.00

Total N5,440,859.39

General Damages N500,000.00

Grand Total N5,940,859.39

The claimant averred that the defendants have since refused, neglected and or failed to pay all the above entitlements despite repeated demands both orally and through letter of demand.

Whereof the claimant claims against the defendants jointly and severally as aforementioned.

In their statement of defence, the 1^st – 5^thdefendants denied each and every allegation of facts contained in the Statement of Facts.

It is the Defendants’ case that the Claimant was never a public or/and a political office holder with the 1^st and 2^nd Defendants but a political aide to the immediate past Governor of Ondo State whose remuneration was provided by his principal. The Defendants also admitted that upon the appointment of the Claimant, he was been paid the provided remuneration he was entitled to i.e. N233,997.77 monthly after all lawful deductions. The defendants averred that the claimant was not one of the public or political office holders contemplated by the Revenue Mobilization Allocation and Fiscal Commission Act, and stated that the Claimant’s remuneration, as provided, had been paid in full up to July 2016 while civil servants, public and political office holder and other categories of workers are owed salaries for the same period the Claimant is claiming, due to paucity of funds in the State.

The 1^st – 5^th Defendants averred further that:

By the claimant’s letter of appointment dated 27^th December, 2013, he was appointed a special assistant to the former Governor of Ondo State
As aide to the former Governor, the remuneration of the Claimant was provided by his employer and not the Revenue Mobilization Allocation and Fiscal Commission.

The due and accrued remuneration of the Claimant provided by his employer was paid in full up till July 2016 while the 2^nd Defendant is committed to the payment of outstanding salaries, inclusive of that of political appointees.

That the Claimant’s letter of appointment as Special Assistant and the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) recommendations on salaries, allowances and other benefits of political, public and Judicial office holders are very clear on remuneration and benefits .
That apart from the monthly salaries from August 2016 to February 2017 which the Defendants are committed to paying, subject to availability of fund in the State, the Defendants individually and severally are not liable to pay the Claimant any wardrobe/furniture or any other allowances.

The Defendants also averred that they shall at the trial contend that the 1^st, 2^nd 4^th and 5^th Defendants are not juristic persons, that the suit is a misjoinder of parties. And that part of the claims are statute barred by virtue of the Public Officers’ Protection Law of Ondo State, 2006.

Finally, the 1^st – 5^th Defendants averred that the suit isfrivolous, misconceived and an attempt to embarrass the Defendants and as such should be dismissed with substantial costs.

Trial commenced in this suit on the 13^thOctober,2017 with the claimant testifying for himself as CW1 by adopting his witness statement on oath, and further witness Statement on oath. He tendered several exhibitswhich were admitted and marked as Exhibits 001–003and was cross examined. The Claimant thereafter closed his case.

On the 16^thof April, 2018 the Defendants opened their defence by calling their sole witness ModupeIsaiahOlaniran as DW1, who adopted his witness Statement on oath and tendered one Exhibit which was admitted without objection and marked as Exhibit OD1, the witness was cross examined, and thereafter the Defence closed their case, and the case was thereafter adjourned for the adoption of final written addresses on the 24^th of October, 2018.

It is worthy of note that the Claimant filed his final written address before the Defendants, the Defendants’final written Address was dated 14^th May, 2018 and filed 15^th May, 2018. It was adopted on the 24^th of October, 2018. In the final Address the Defendants formulated the following two issues for determination:

Whether from the evidence before the court and the circumstances of this case, the Claimant has been able to prove to the Court with credible evidence that he was an employee of all the defendants.

Whether from the evidence led, exhibits tendered and the position of the law, the Claimant has been able to prove his case to be entitled to the reliefs sought.

On issue one, the Defendants counsel submitted that the Claimant was only recognized as a political aide to the former Governor of the State whose appointment did not have anything to do with either the 1^st Defendant or the present Governor of Ondo State. He posited that political aides are officials attached to particular Public/Political office holders to assist them in the conduct and discharge of their official duties and their remunerations are already provided for, in their Principal’s personal emoluments and these are either paid directly by the Principals or by the State. In the instant case, the erstwhile Governor enjoyed certain perquisites attached to his office which include inter alia official vehicles, official drivers, political aides (especially Personal Assistants and Special Assistants) that were on Government payroll. He therefore submitted that the Claimant was one of the aides and as such could not be regarded as an employee of the Defendants.

Counsel submitted that although the Claimant is entitled to the provided remuneration stated in his letter of appointment by his Principal, he cannot equate himself to the status of a Public or Political Office holder whose remuneration are spelt out by the Revenue Mobilization Allocation & Fiscal Commission. They further stated that there is no privity of contract between the Claimant and the 1^st, 3^rd, 4^th and 5^th Defendants to warrant their being made a party to this suit having sued the successor to his former Principal,that is the 2^nd Defendant. Counsel cited MUSTAFA v. MUNGUNO L.G. (1987) 2 NWLR (Pt.62) 663

On issue two, counsel submitted that the Constitution of the Federal Republic of Nigeria, 1999 as amended, vest the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) with the power to fix remuneration of public and political office holders including the Executive, Legislative at both Federal and State levels as well as the Judiciary. Counsel stressed that this mandate is conferred on the Commission in relation to the three arms of Government by Sections 70, 84, 111 and 124 Section 32(d) of the Third Schedule, Part 1, paragraph 4 of the 1999 constitution of the Federal Republic of Nigeria. These provisions provides in general terms, the remunerations of Public/Political Office Holders and throughout these provisions, there is no mention of Special or Personal Assistants since they are just Aides whose remunerations are part of their Principal’s emoluments. He submitted that public or political office holders’ compensation packages are made up of basic salaries, allowances and benefits, just like any other employee and the take home pay with other benefits in case of termination are codified and set out in their appointment letters. Therefore, to approve financial grants outside these provisions simply because a public officer is in a position to do so smacks of arbitrary use of privileges that cannot stand legal scrutiny, which the Claimant is suggesting but not so stated in his letter of appointment.

Counsel also submitted that the issue of the 7-months’ salary arrears has not brought about any cause of action since there is no dispute in respect of same to warrant adjudication, this is because the delay or non-payment of salaries that affected the generality of workers did not occur as a result of trade dispute and therefore cannot constitute a cause of action on its own. Aside the aforesaid, the defendants submitted that this issue is not peculiar to him as an individual or as a result of any dispute but was applicable in general to all political appointees and aides; and this is attributable to the poor financial status of the State.

Finally, A.Adelana (Deputy Director) for the State submitted that since they have not denied owing the Claimant and the non-payment is not peculiar to the Claimant but of general application to all political appointees/aides, there is no cause of action. The Defendants adumbrated and submitted that the whole suit was premised on what distinguishes a political aide from a political/public office holder, and urged the court to disallow and dismiss the entire suit.

The claimant thereafter adopted his final written addressdated and filed 9^th May, 2018. In the address the claimant formulated two issues for determination to wit:

Whether by the defendants’ admission of indebtedness of seven(7) months’ salaries to the claimant and when there is no contrary evidence to the amount stated as 7 months salaries, whether the claimant is not entitled to judgment on the admitted sum.
Whether the claimant did not on preponderance of evidence, prove his entitlement to the reliefs sought in this case.

On issue one, he submitted that the law is trite that what is admitted needs no further proof and in an action for liquidated demand, where the defendant admitted any part of the amount claimed, the rules of the court empowers this court to enter judgment for the admitted sum. He referred to Order 34 Rule 4 of the Rules of National Industrial Court of Nigeria (civil procedure) Rules 2017.He submitted thereon that he is entitled to judgment for his seven (7) months salary to the tune of N1,637,984.39 (One Million Six, Hundred and Thirty Seven Thousand, Nine Hundred and Eighty Four Naira, Thirty Nine Kobo) being salaries due to him for the months of August, 2016 to February 2017 calculated at the rate of N233,997.77 (Two Hundred and Thirty Three Thousand Nine Hundred and Ninety Seven Naira, Seventy Seven Kobo) only per month and the court should invoke the above cited Order of court.

OmolegbonOdusola appearing for himself, submitted that the defendants in paragraphs 6(c) & (e) of their statement of defence admitted owing the claimant the said arrears and expressed their willingness to pay the Claimant as soon as the funds are available. He argued that since the defendants have asserted their willingness to pay the arrears of salary, the claimant is entitled to judgment on the said sum. He therefore urged the court to so hold and enter judgment in his favour as per his claim in paragraph 13(3) (a) as contained in the Amended Statement of Facts.

On issue two, whether the claimant did not on preponderance of evidence, prove his entitlement to the reliefs sought in this case, he cited the case of OkpokamVs Treasure Gallery Ltd &Anor (2017) PLELR-42809 @ Pg. 13, Paras. C-E

Claimant submitted that in the instant case what is to be determined is whether he has succeeded in proofing that the defendants, especially the 1^st and 2^nd defendants had an agreement with him to pay severance gratuity and furniture allowances to him. He reiterated that in proving these reliefs as stated in paragraphs 6, 7, 8, 10 and 11 of his amended statement of facts, he adduced evidence to the effect that uponhis appointment, the 1^st and 2^nd defendants agreed to pay him and others their furniture/wardrobe allowance and severance gratuity or benefit using the same measure as other political appointees covered by Public and Political Office Holders remuneration as provided by Revenue Mobilization Allocation & Fiscal Commission. The claimant also alleged that the defendants paid N2,440,000.00 (Two Million Four Hundred and Forty Thousand Naira), as part of claimant’s furniture/wardrobe allowance when he was leaving office in February 2017 leaving a balance of N681,000.00 unpaid. He referred to Paragraph 10 of amended statement of fact and paragraph 5 of the Reply to 1^st to 5^th Statement of Defence.

Claimant argued that in law when averments in the statement of claims/facts are not traversed by the defence, they are presumed admitted, and that the law is trite that when a party denies an allegation of fact he shall not do soevasively . He cited IMNL VS Nwachukwu (2000) FWLR (Pt. 10) @ 1748. R.I. Sanzgitter Stahl (GMBH) Vs. TunjiDosunmu Industries Ltd (2010) 42 (Pt.2) NSCQR, 1085 @ 1109.

Claimant submitted that since the defendants have agreed that the 2^nd defendant have the power to decide his remuneration and the defendants did not deny that the 2^nd defendant agreed to same as recommended by Revenue Mobilization Allocation & Fiscal Commission, he urged the court to presume the fact as admitted and consider Exhibit “003” in coming into that conclusion. He further argued that the defendants admitted in exhibit 003 that they owed the claimant 7months salaries and severance gratuity or benefits and this admission creates estoppel against the defendants. He cited Section 169 of the Evidence Act, 2011.

He referred to the evidence of the DW1 during cross-examination to the effect that the N2,440,000.00 paid to the claimant was a “Take-Home-Package” and submitted that this cannot be admitted as evidence by this court because it was never pleaded. He reiterated that it is trite law that evidence on matter not pleaded cannot be received in evidence even if extracted during cross-examination. He cited the case of Adenle V. Olude (2002) 13 SMC pg 11.

Claimant also submitted that the law is trite that where the evidence of a witness is not direct but speculative and borders on hearsay, such evidence is inadmissible by virtue of the Evidence Act. He therefore urged the court to avoid a situation in which a witness will testify and his evidence is based on second hand information by another person as this would have no evidential value.

Finally, he submitted that the law is trite that general damages flow naturally from the wrong occasioned to the claimant by the defendant. The refusal of the Defendants to pay the claimant his entitlement as at when due therefore entitles the claimant to damages in other to assuage the claimant for the delayed payment caused by the action of the defendants. He urged the court to grant reliefs 4 and 5 as contained in the Amended Statement of Facts.

Claimant submitted that the basis of his claim is the oral agreement and understanding he had with the 1^st and 2^nd Defendants, he argued that this fact was not controverted by the defendants, citing Exhibits OO2 and OO3.

Finally, he urged the court to grant all his reliefs based on the defendants admission of same.

I have listened to the witnesses called by both parties in this suit, I have also studied all their processes and their final submissions in proof of their case.

It is worthy of note, before going to the issues for determination, that the Defendants in their Statement of Defence raised an issue that parts of the Claims of the Claimant is statute barredin view of the Public Officers’ Protection Law of Ondo State, 2006. The defence however did not make any reference to this issue in his final written address. Ordinarily it is the position of the law that an issue not canvassed is deemed abandoned, however the issue raised is a jurisdictional issue, of which the court is bound to consider, in view of the fact that any decision of court reached without jurisdiction is a nullity. It is settled law that in other to determine whether a claim is statute barred under the Public Officers Protection Act/ Law the court should look at the originating process of the Claimant, in this case the Complaint and the Statement of Facts, see;

In Ebonyi State University &Anor v. Ifeanyi&Anor [2016] LPELR-41051(CA) .Kofa&Anor v. Kaita&Ors[2011] LPELR-8952 (CA)

It is the position of the law that, when the date of filing the action is compared with the date when the cause of action arose, it must fall within the three(3) months statutorily period prescribed by the Act, otherwise the suit is said to be statute barred. Examining paragraph 9 of the statement of facts reveals that the cause of action aroseinAugust,2016, and covered that period till February 2017, when the appointment of the Claimant was terminated, and his accrued salaries remained unpaid. It is also on record that this suit was filed on the 17^th of May, 2017. A comparative study of the two dates discloses a time lag of 2 months and 17 days, which is still within the 3 months period stipulated by thePublic Officers Protection Law. This aside, it is the position of the Law that the Act will not affect claims for work and labour done, seeBFI Group Corporation v. Bureau of Public Enterprises [2008] LPELR8560 CA. It is in the light of the above that I find that the Claims as captured in this caseare not statute barred. This issue raised in the Defendants’ pleadings is therefore misconceived and hereby discountenanced.

I will now go to the issues for determination in this case. I have come up with the following issues for determination to wit;

Whether or not the proper parties are before this court

Whether or not the claimant is entitled to his claims

On issue one, the defendants canvassed the argument that there is no privity of contract between the Claimant and the1^st, 3^rd, 4^th and 5^th Defendants to warrant been made a party to this action. The claimant on the other hand in his written deposition before this court, which was adopted as his evidencein this case, testified to the fact thatthe 1^st, 2^nd, 3^rd and 4^th Defendants are creations of the CFRN 1999, and all the Defendants have different roles to play in ensuring that the claimant’s entitlement is paid. See paragraphs 3 and 4 of the claimant’s witness statement on Oath dated 4^th of August, 2017.

The argument of the Defendants that there is no privity of contract between the Claimant and the Defendants in this case, is premised on the fact that he was appointed by the former Governor as his personal aide. This line of argument is however defeated by their admission that they are indeed owing him his salaries for seven (7) months, and his letter of Appointment tendered as Exhibit OO1 testified to this. This Exhibit is on the 1^st Defendants letter head and signed by the Secretary to the State Government, the position of the law is that, documentary evidence is the best evidence, for which a court can rely on in reaching a decision, See TAFIDA & ANOR V. GARBA 2013 LPELR 22076 CA per AGUBE JCA:

“There is no doubt that the Supreme Court had decided in Egharevba V. Osagie (2010) 180 LRCN 103; and it is trite on authorities too numerous to mention that because of its permanence and durability, documentary evidence is the best evidence and the best proof of the contents of that document such that oral evidence should not be allowed to discredit or contradict the contents thereof except where fraud is pleaded”

The pertinent question to ask is arethe parties joined as the Defendants in this case necessary parties?.Necessary parties has been defined in several authorities, see the Supreme Court case of;REGD TRUSTEES OF NATIONAL ASSOCIATION OF COMMUNITY HEALTH PRACTITIONERS OF NIGERIA AND OTHERS V. MWHUN & ORS 2008 34 NSCQR Pt1 @ 321 per MUKHTAR J.SC;

“All those who claim or share interest in the subject matter of the suit, or who may be affected by the result, as well as those who the court may join suomotu, are necessary parties, for their presence before the court may be necessary in order to enable the court, effectively and completely to adjudicate upon and settle all the questions involved or in controversy”

Flowing from the above, I find that the evidence adduced in this case disclosed that all the Defendants are directly or indirectly crucial to the just determination of this case, and they are therefore necessary parties. I so hold.

On issue two, the defendants admittedowing the Claimant 7 months salary arrears, but their contention is that the non- payment is not peculiar to the Claimant but of general application in the public service of Ondo State, and that this is attributable to paucity of funds.

The position of the law isUbi Jus UbiRemedium,that is where there is a wrong, there must be a remedy, to deny a remedy to the victim of a wrong should always be regarded as exceptional. Any justification must be necessary and requires strict and cogent justification.

It is also the law that the court must provide a remedy where the plaintiff has established a right. The court is to look into the substance of an action and not the form. See BFI Group Corporation v. Bureau of Public Enterprises [2012] LPELR-9339 (SC).

Can the argument that salaries are being owed to other public servants due to paucity of funds in the statebetenable in law having regard to the fact that the Claimant is no longer in the employment of the Defendants?

In Afribank (Nig) Plc. v. Osisanya [2000] 1 NWLR (Pt.642), pg. 599 the Court explained that:

“ In an ordinary relationship like in this one and following the common law principle, a termination of a contract of service, even if unlawful brings to an end the relationship of master and servant…”

In Iloabachie v. Philips [2002] 14 NWLR (Pt.787) 264 CA the court stated as follows:

“The word “termination” conveys two meanings depending on the context in which it is used:

When it is used as a result of some misconduct of an employee it becomes a form of punishment.
When it is used to denote the normal cessation of the contractual relationship of an employer and employee with entitlements to the benefits which accrued under the contract, it is synonymous with the word “retirement”.”

In L.U.T.H & M.B v. Adewole [1998] 5 NWLR (Pt.550) 406 the court held as follows:

“where the claim is that payment of salaries has been wrongfully withheld, the cause of action accrues from the date the salaries are due for payment. The liability of the employer does not generally depend on demand for payment”

In the instant suit, the Claimants employment has already been terminated and he is entitled to be paid his salaries. The other workers referred to are still in employment of the State. The claimants’ salaries are his accrued entitlements which he worked for and ought to be paid, even more now that he is no longer in the employment of the defendants. In EMIKO EYASAN V. NNPC 2012 LPELR 19667 CA PER BAGE JCA, held as follows:

“It seems to me that when an employer brings the contract of employment to end by terminating it, the employee ceases to be in his employment and his subsisting rights, if any are to make a claim for the terminal benefits as provided in the contract of employment, See Chukwumah v. Shell Petroleum (1993) 4 NWLR (pt. 287) 512. The employee could not at his own option keep alive a contract of employment, which has been determined by the employer”

The argument of the Defendants that this claim is not justiciable based on Section 17 (3) a of the CFRN 1999, will thus not be applicable to this case. It is premised on the above, that I find that the claimant is entitledto be paid his 7 months arrears of salary from August 2016 to February2017 at the rate of N233,997.77 per month adding up to a sum of N1,637,984.39 (one million, Six hundred and thirty seven thousand, nine hundred and eighty four naira, thirty nine kobo). I so hold.

The Claimant is also claiming in his reliefs 1, 2, 3b and 3cfor balance of wardrobe/ furniture allowance and severance gratuity. The defendants on the other hand contended that the Claimant was just an aide to the former Governor of the State, and was not a Public/Political Office holder whose remuneration is spelt out by the Revenue Mobilization Allocation & Fiscal Commission, and that political aides are officials attached to a particular Public or Political office holder to assist him/her in the conduct and discharge of his/her official duties. The Defendants posited that their remunerations are already provided for and included in their Principal’s personal emoluments which is payable directly by their principal or the State.They furtherargued that Constitution of the Federal Republic of Nigeria, 1999 as amended, vest Revenue Mobilization Allocation and Fiscal Commission (RMAFC) with the power to fix remuneration of public and political office holders including the Executive, Judiciary and Legislature at both Federal and State levels and cited Sections 70, 84, 111 and 124 respectively while Section 32(d) of the Third Schedule, Part 1, paragraph 4 of the CFRN, 1999, and that throughout these provisions, there is no mention of Special or Personal Assistants.

The Claimant on the other hand argued that it was the defendants who failed to controvert his assertion and evidence to the effect that the 1^st and 2^nd defendants agreed to pay the claimant his severance and allowances the same way other appointees were being paid. Claimant relied on Exhibit 003.

The relevant provisions of the law as to remunerations of Political/Public officers holders are Sections 70, 84, 111, 124 and 32 (d) of 3^rd Schedule Part 1 of the 1999 Constitution of the Federal Republic of Nigeria, and in all these provisions Special Assistant was not captured.

The Claimant’s letter of appointment was tendered by him and marked Exhibit 001.The Exhibit in paragraph 2reads as follows:

“2. The details of remuneration and other benefits of the position will be communicated to you on assumption of duty”

The annexure to Exhibit 001 states as follows;

SPECIAL ASSISTANT TO THE GOVERNOR

SALARY REMUNERATION

Basic/ per month = 86,718.75
Utility = 26,015.63
M/V = 65,039.06
Entertainment = 26,015.63
PA = 21,679.69
Domestic Allowance = 65,039.69
Newspaper = 13,000.82

Gross pay ?303,515.65

DEDUCTION

Tax = 34,150.00
Monthly Due = 13,663.75
EEF = 75 (48,507.45)

?255, 731.62

The claimant also tendered 1^st and 2^ndDefendants letter acknowledging his outstanding salaries and entitlements, this was marked as Exhibit 003,paragraph 2 of the said Exhibit reads as follows;

“2. In view of the foregoing, I am directed to inform you that your client will be paid his outstanding salaries and severance allowance alongside with other Political Office Holders as soon as all pending issues on it are resolved.”

(Underlining mine for emphasis)

On the 13^th of December 2017, CW1 stated under cross-examination, as follows;

I was appointed 27^th December 2013
I was appointed Special Assistant to the then Governor of Ondo State.
Attached to my letter Exh 001 is the salaries and allowances I am entitled to.
The terms speak for itself.
There is an implied addendum to this doc.
I am familiar with the RMAFC Act
My position is not covered by RMAFC Act
But as at the time I was appointed it was an understanding between me and the Government that we would be covered by that Act.
I have evidence to show that I will be covered by the Act and it is so stated in Exh 003
I am a political aide to the Government
At the same time I am an aide to the Governor
I only have Exh 003 to show I will be paid my wardrobe/ furniture allowance
I averred in my statement of facts particularly in paragraph 9, that I am been owed 7 months salary arrears, but it is not peculiar to me but all the workers in Ondo state
The Government promised to pay but later refused to pay because we belonged to an opposition party.
I have no document on this

On the 16^th of April, 2018, DW1 stated under cross examination that;

I went through the Claimant’s file before coming before this Court and I am aware that the Claimant was paid ?2.4m as parting gift based on the months that he worked for.
I assert that you are not entitled to the payment of any allowances, and that was why you were given parting gifts. You are only entitled to your salary
I was not at the meeting when the former Governor agreed to pay the sum of ?2.4m to you
By virtue of my position it is only my Permanent Secretary that can attend the meeting called by the Governor to decide payments to be made to political appointees.

Q: also you cannot know or be present at a meeting called by the Governor where he decided to pay us severance allowance and wardrobe allowance.

I cannot be part of the meeting
I am not aware that the present Governor Mr Akeredolu has written to you acknowledging that your 7months salary and gratuity will be paid to you
I confirm that I wrote Exhibit 003 which acknowledged payment due to you (7months salary and gratuity)

Q: I put it to you that Governor Mimiko agreed to pay me my gratuity and wardrobe allowance and other benefits, and it was based on this that they wrote Exhibit 003 to me.

A: Exhibit 003 was written in our office and I signed it for my permanent secretary, it was after I signed that I checked RMAFC and based on this the Claimant is not entitled because he is an aide (Special Assistant to Mr. Governor)

The ?2.4m was parting gift and there is no law backing it.
We did not notify or write any letter to the effect that you are no longer entitled to gratuity under RMAFC

(Underlining mine for emphasis)

From all that has been stated above, the following key points can be noted:

The Claimant is being owed 7months arrears by the Government which is not in dispute.
The Claimant’s position as Special Assistant is not covered by the RMAFC.
The terms of appointment of the Claimant is governed by Exhibit 001.

What then is the import of the part payment of the wardrobe/furniture allowance alledgedly paid to the Claimant. It is worthy of note that nothing was placed before this court in evidence of the assertion that what was paid to the claimant was wardrobe/furniture allowance, the claimant relied on an understanding between him and the former Governor and Exhibit 003 in proof of this leg of his claim, assuming that there is evidence that the allowance paid on to the Claimant was indeed captured as wardrobe/furniture allowance, is he so entitled?In the instant suit, Cw1 said there is an addendum to the offer of appointment given to him asides Exhibit 001 and the former Governor assured him that he would be paid all the allowances under RMFAC. It is therefore not in dispute that the agreement he had with the former Governor is extraneous to his contract of employment and had no legal backing. In other words it was money paid ex gratia, the term ex gratia is defined as a payment by one who recognises no legal obligation to pay. Exhibit 003 will not avail the claimant in this case because at the tail end of the letter there is a proviso; “as soon as all pending issues on it are resolved.”the Defendants are not bound to act outside the scope of the law and contract of employment . The term ex gratia was defined in Adefemi v. Abegunde [2004] 15 NWLR (Pt.895) 1 CAas follows;

“The term is latin. It connotes something given out of grace, favour, indulgence or gratuitous. Henry Campbell Black, author of Black’s Law Dictionary defines it as a “term applied to anything accorded as a favour, as distinguished from that which may be demanded ex debito, a matter of right.” So it follows that ex-gratia being claimed by the respondents, is a payment by one who recognises no legal obligation to pay.” See P.A.N v. Oje [1997] 11 NWLR (PT.530)”

Also on the issue of pension, it is also the law that documentary evidence is the best form of evidence as it serves as an hanger for oral testimony. See Buraimoh v. ESA [1990] 2 NWLR (Pt.135) p. 406. In U.D.F.U., Sokoto v. Balogun [2006 ] 9 NWLR (Pt.984) pg.124 the court held that “ Documentary evidence where this is relevant ought to be produced and tendered as they speak for themselves against the ipso dixit of a witness in respect of such transaction which may not be readily accepted by the court…”

Furthermore, the law is that a contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties. See Akinfe v. U.B.A Plc. [2007] 10 NWLR (Pt.1041) 185

“At any rate, a court of law is not a santaclaus that makes ex-gratia awards. In civil claims, the jurisdiction of a court is circumscribed to rendering unto a party according to his proven claim, see Agbi v. Ogbe [2006] 11 NWLR (Pt.990) 65.”Per Ogbuinya J.C.A in International Tobacco Company Plc v. British American Tobacco Nigeria Limited &Anor [2013] LPELR-20494(CA)

It is in the light of the above, that I find that the claim for severance, pensions and allowances as contained in the Claimant’s Amended Statement of Facts were premised on promises delivered ex-gratia by the former Governor of Ondo State, and is not tenable under the CFRN 1999, RMFAC Act, the claimant’s contract of employment or any other law. The reliefs as stated as it pertains to this leg of the claim contained in Parts of Reliefs 1 and 2, 3(b) and (c) therefore fails. I so hold.

On the claim for the sum of N500,000.00 (Five Hundred Thousand Naira) as general damages. General damages are the kind in which the law presumes to be the consequence of the act complained of. In employment cases, the court is usually reluctant to grant such, as it will amount to double compensation, having already granted the claim forarrears of the claimant’s salaries for 7 (seven) months. I find no ground to support this leg of the claim. This leg hereby fails. I so hold.

Finally, on the order of injunction restraining the defendants, their servants or privies from further interfering and withholding his outstanding salaries, balance of furniture allowances, severance gratuity, the position of the law is clear in that the basis of the grant of an injunction should be on the ground to protect or preserve a right of a party/person; a right which has been established before the Court. The need is weighed against the corresponding need of the party to be protected against any injury resulting from having been prevented from exercising his legal right for which he could not be adequately compensated in damages. See the case of Oduntan v. General Oil Ltd [1995] 4 NWLR (Pt.387) at pg12 H-13 A. On this premise,I find that there is nothing warranting the grant of an injunction in this casehaving granted his claim for arrears. This relief therefore fails. I so hold.

It is in the light of all the above stated that I find and hold that theclaims in this case succeeds in part and for the avoidance of doubt I declare and order as follows:

That the claimant is not a public officer/political officer holder as contemplated by the Revenue Mobilisation Allocation & Fiscal Act and is therefore not entitled to gratuity and other allowances for political office holders envisaged under the Act
That the Defendant shall pay to the Claimant a sum of N1,637,984.39K,the total sum of his7 months’salary arrears for the months of August 2016 to February2017.
The other legs of the claim are refused

I make no order as to cost.

Judgment is accordingly entered.

Hon.Justice A.A Adewemimo

Judge .