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National Industrial Court

MRS. NKOYO W. N. ONNOGHEN -VS- HONOURABLE MINISTER & 3

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA.

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

15TH DAY OF MARCH 2019                          SUIT NO: NICN/ABJ/212/2018

BETWEEN:

MRS. NKOYO W. N. ONNOGHEN                                           CLAIMANT

AND

  1. HONOURABLE MINISTER

FEDERAL MINISTRY OF HEALTH

  1. FEDERAL MINISTRY OF HEALTH                                   DEFENDANTS
  2. FEDERAL CIVIL SERVICE COMMISSION

REPRESENTATION:

Chief O. J. Onoja, Esq; For the claimant, appearing with OyinlolaAkinbuade, Esq;

  1. Ochum, Esq; For the 1stand 2nddefendant

ChidinmaOtisi, Esq; For the 3rd defendant.

JUDGMENT.

  1. This is an originating summons dated the 25th day of July 2018 and filed on 30th day of July, 2018 taken by the claimant seeking for reliefs as contained in the face of the process. With the leave of court, the claimant amended her Originating Summons. In the amended originating summons, the claimant submitted two question for resolution. They are:

Whether by virtue of the letter of approval by the 3rd defendant ref: 134755/1 and dated 31st May, 2011 changing the claimant notional date of first appointment from 10th September  1975 to 21st June, 1982, the letter from the 2nd Defendant dated 8th May, 2018 carrying out the Directive of the Head of Civil Service of the Federation to formally recognize and accept 21st June 1982 as the notional date of first appointment  of the claimant and  a letter dated 30th May, 2018 from the Head of Civil Service of the Federation acknowledging the restoration of the notional date of first appointment of the claimant to be 21st June, 1982 by the 1st and 2nd defendants, the claimant is not entitled to her salaries, promotion up to Grade Level 17 and other emolument from October, 2010 when her salaries and other entitlement were stopped until due period of statutory retirement being the 20th June, 2017 making her 35th years in service.

Whether by virtue of a letter of approval by the 3rd defendant with ref:134755/1 dated 31/5/2011. The letter from the 1st and 2nd defendants to the claimants with Ref. No: P.25610/1/276 dated 8th day of May 2018, the letter from the Head of Civil Service of the Federation dated 30th May 2018 and the notice of retirement from service/terminal leave dated 20th March 2017 from the claimant to the 1st and 2nd defendants, the claimant is not deemed to have retired from the service of the 2nd defendant on the 20th day of June 2017 having spent 35 years  (from 21st June 1982 to 20th June 2017) and therefore entitled to promotions up to grade level 17 to reflect her status at retirement, computation and payment of her salaries and allowances from October 2010 to June 2017 as well as the computation and payment of her gratuity and pension based on her notional date of first appointment which is 21st June 1982 until her retirement on 20th June 2017.

  1. In anticipation of favourable resolution of the question posed above, the claimant is seeking for the reliefs stated below. They are:-
  2. A declaration that by virtue of the letter of approval by the 3rddefendant Ref: 134755/1 and dated 31st May, 2011 changing the claimants notional date of first appointment from 10th September, 1975 to 21st June, 1982, the letter from the 2nd defendant dated 8th may 2018 carrying out the directive of the Head of Service of the Federation to formerly recognize and accept 21st June 1982 as the notional date of first appointment of the claimant, and a letter dated 30th may 2018 acknowledging the restoration of the notional date of first appointment of the claimant to 21st June 1982 by the 1st and 2nd defendants, the claimant is entitled to her salaries, promotions up to grade level 17 and other emoluments from October 2010 when her salaries and other entitlements were stopped until her due period of statutory retirement being 20th June 2017.
  3. A DECLARATION that by virtue of a Letter of Approval by the 3rd defendant with Ref:134755/1 dated 31st May, 2011, the letter from the 2ndDefendant to the claimantwith Ref No: P. 25610/1/276 dated 8thMay, 2018, the letter from the Head of Civil Service of the Federation dated
    30thMay, 2018 and the Notice of Retirement from Service/Terminal Leave dated  20thMarch, 2017 from the claimant to the 1stand 2nddefendants, the claimantis deemed to have retired from the service of the 2nd defendant on the 20th day of June, 2017 having spent 35 years
    (from 21stJune, 1982 to 20thJune, 2017) and therefore entitled to recommendation for promotions and promotions up to Grade Level 17 to reflect her status at retirement, computation and payment of her salaries and allowances from October, 2010 to June, 2017 as well as the
    computation and payment of her gratuity and pension based on her notional date of first appointment which is 21st June 1982 until her retirement on 20th June 2017.
  4. AN ORDER directing the defendants jointly and or severally to with immediate effect cause the claimant to be promoted to Grade level 17 and or to issue to the claimant with immediate effect herpromotion letters up to Grade level 17.
  5. AN ORDER compelling, directing and/or mandating the 1stand 2ndDefendants jointly and or severally to compute and pay over to the claimant with immediate effect all her salaries, allowances and other emoluments from October 2010 to the 20th June, 2017 when she is deemed to have retired and other entitlements like promotions accruing to the claimantfrom 2011 when the claimant was denied promotion till the 20thJune, 2017 when she is deemed to have retired.
  6. AN ORDER compelling, directing and/or mandating the defendants jointly and or severally to cause to be computed for payment and to pay over to the claimantwith immediate effect her pension and gratuity from the z r” June, 1982 being the notional date of her first appointment
    to the 20tl1 June, 2017 when she is deemed to have retired.
  7. The sum of Two Hundred Million Naira (N200,000,000.00) as general and aggravated damages.
  8. Costs of this suit.
  9. In proof of her claims the claimant deposed to a 48 paragraphs affidavit, with 26 annexures marked as exhibits A-Z. A written address was also filed along with the originating summons.
  10. The amended Originating Summons is supported by a 48 paragraphs affidavit in support, sworn to by the Claimant herself. A written address was also filed in line with rules of court along with the Originating Summons.
  11. Chief O. J. Onoja, Esq; in making oral submission before the Court relied on all the depositions contained in the affidavit in support. Counsel also adopted the written address filed along with the amended Originating Summons as his argument.
  12. The facts that warranted the institution of this suit as narrated by the claimant in the affidavit in support of the Original Summons are to the effect that:
  13. The claimant vide exhibit ‘A’ transferred her service from University of Calabar Teaching Hospital to the Federal Civil Service Commission. Upon effecting her transfer of service, the claimant vide exhibit ‘B’, a letter dated 23/9/2008, the claimantwrote to the 3rd defendantrequesting for change of her  notional date of her first appointment by deducting the number of years spent at the School of Nursing and Midwifery as a student.  Vide letter dated 24th November 2009, attached as exhibit ‘C’, the 2nd defendant requested from the claimantfor further information. The claimant supplied the information requested by the 2nd defendant vide exhibit ‘D’. Theclaimantdid not hear from the defendants until the receipt of exhibit ‘E’ a letter of 31st day of May 2011, conveying to her the 3rd defendant’s approval of her application for change of notional date of first appointment from 21/6/75 to 21/6/82. Sometime in April 2011, she got to know that her name was removed from nominal roll and payment of her salaries and allowances stooped since October 2010.
  14. The Claimant stated that by computation, from 21st June 1982 to October, 2010 when her salary was stopped is a period of 28 years. By 2010, theclaimantwas due for promotion to the position of Deputy Director on (Grade Level 16) and by 2014 was due for the promotion to Director, on (Grade level 17), the grade level on which she would have retired from service. That despite the 3rd defendant interference in the matter, the 1st and 2nd defendant failed to honour Exhibits G, H, I, J and k. Vide exhibit ‘L’ after waiting in vein, the Clamant gave notice of retirement from service/terminal leave with effect from 20/06/2017.
  15. Vide exhibit ‘M’ the Claimant’s solicitors wrote to the Head of Civil Service of the Federation, Permanent Secretary Ministry of Health and the 3rd defendant asking for the claimant’s due/accrued promotions as well as the payment of her salaries and allowances having secured an approval for her notional date of first appointment to read 21/6/1982. After writing several complaint, vide exhibit ‘U’the 1st and 2nd defendants claiming to have complied with directive of Head of Civil Service of the Federation recognizing the 21/6/82 as notional date of Claimant’s first appointment. In reaction to exhibit ‘U’, the Claimant’s Solicitors reminded the permanent secretary of the 1st and 2nd defendants of the need to do the following:
  16.             Grant her promotion as and when due to reflect her status at retirement.
  17.             That she should be deemed to have retired on the 20th June 2017 after 35 years in service and on grade level 17.

    III.            Computation and payment of her salaries and allowances from October 2010 when it was stopped to June 2017

  1.             Computation and payment of her pension and gratuity based on her notional date of her first appointment i.e 21st June 1982 to 20th June 2017 being her date of retirement from service.
  2. The defendants have refused to comply with the demand of the claimants. Thus why she instituted this action.

ISSUES FOR DETERMINATION

  1. The claimant adopted the two questions for determination in the originating summons as the issues for determination

ARGUMENT.

  1. Counsel for the claimant argued the two issues for determination together. Counsel began arguing the issues for determination by submitting that there is no dispute that the claimant was an employee of the 2nddefendant, but her first appointment date was initially recorded by the defendants to read 10th September 1975 which presumably led to her salaries, allowances and pensions to be stopped prematurely before her retirement age. Prior to this development, the claimant had proactively written a letter dated 23/9/2008 for her notional date of first appointment to be changed from 10th September 1975 to 21/6/1982 when she actually joined the Federal Civil Service.It is incontrovertible that the 3rd defendant in response to the claimant’s request vide letter dated 31/5/11 approved her request and approved her notional date to read 21/6/82. After so many demands and entreaties the 1st and 2nd defendants through the permanent secretary wrote a letter dated 8/5/18 purporting to comply with the directive of the head of service of the Federation and Head of Service and 3rd defendant since 2011 and one year after the claimant had retired from service.
  2. Counsel submitted that it is disturbing that despite the fact that the 1stand 2nd defendants having changed the notional date of first appointment to reflect 21s/6/82 have refused to pay the claimant her salaries and allowances since October 2010 when it was stopped, her due promotion up to grade level 17 from 2011 and her pension and gratuity from 21/6/82 to 20/6/17 having duly retired.
  3. Counsel referred to Rule 8 subsection 020810 of the Public Service Rules 2008 which provides as follows:-

‘‘The compulsory retirement age for all grades in the service be 60 years or 35 years of pensionable service which ever is earlier’’.

  1. It is the contention of counsel that the claimant’s notional date of first appointment having been changed and acknowledged by the Defendants to read 21st June 1982till 20thJune, 2017 vide the Notice of Retirement from Service/Terminal leave entitles her to salaries and allowances that
    were stopped in 2010 till her due retirement date of 20thJune, 2017 her due promotions within the period up to Grade Level 17 as well as her pension and gratuity from 21st June, 1982 to the 20thJune, 2017·
  2. Counsel submitted that the claimant is entitled to her salaries, allowances and promotions lost through willful refusal of the 1stand 2nd defendants to act on exhibit ‘E’ and as such same should be duly calculated and paid to her.  Counsel contended that in view of exhibits X, Y and the defendants have the mandatory responsibility of issuing the claimant with her letters of her promotions up to grade level 17 which was her due grade upon retirement save for the unwarranted interference of the 1st and 2nd defendants.
  3. It is the contention of counsel that the 3rddefendant has been statutorily empowered as a creation of the constitution of the Federal Republic of Nigeria by virtue of the Provisions of Sections 153 (1) (d), (2) and Part 1 of the Third schedule to the Constitution to appoint, regulate, promote and discipline Federal Civil Servants in Nigeria. In addition, the Public Service Rules, 2008 particularly in Rule 020104 made pursuant to the Constitution have provided in unequivocal terms that the duty of promotions of Federal Civil Servants apart from the permanent secretaries is that of the Federal Civil Service of the Federation in Exhibit ‘X’and we urge the Honourable Court to so hold.
  4. It is furthersubmitted that since the first appointment date and the due retirement age of the claimantis not contentious, it is imperative that the claimant’s pension and gratuity be paid to her bearing in mind her due grade level and her due retirement age.
  5. Itis submitted that from the affidavit in support of the Originating Summons that the defendants have deliberately committed serious wrong doing against the claimant by their willful act and omission.
  6. It is submitted that since the first appointment date and the due retirement age of the claimant is not contentious, it is imperative that the claimant’s pension and gratuity be paid to her bearing in mind her due grade level and her due retirement age.
  7. The 1stand 2nd defendants who stopped the salaries, emoluments, and allowances of the claimant since October 2010 cannot just recently in May 2018 write a letter that they have complied with Exhibit ‘E’ given to them since 2011 without more. They did not mention what the claimant is entitled to as salaries and allowances. They equally did not mention her pension and gratuity having been deemed to have retired in 20thJune, 2017. This still happened ridiculously in spite of the fact that the demands of the claimantwere tendered before them in the various letters written to them by the claimant and her counsel. Allowing the defendants who deliberately treated the claimant in the manner they chose and setting them free of their obligations to pay the claimant all her entitlements in terms of salaries allowances,promotions, pension and gratuity will make them to profit from their own wrong doing. It has been held in a plethora of decided cases that a party should not be allowed to benefit from his or own wrong doing. In MTN Nigeria Communication Limited v. Corporate Communication Investment Limited (2015) 7 NWLR (Pt. 1459) 437 @ 466 Paras F-H it was held thus:

“The proposition that a man will not be allowed to take advantage of his own wrong doing is no doubt a very salutary one and one which the court would wish to encourage.

The above applies in all fours to the instant case. The claimant signed ExhibitA” but the defendant that prepared Exhibit ‘A’ and forwarded same to the claimant did not sign it. The defendant cannot take advantage of its own wrong doing. My answer to the question (1) is therefore that the non-signing of exhibit ‘A’ by the defendant does not make same worthless and no probative value’’.

  1. Reliance was also placed on the case of ALHAJI HAMUSU UMARU V PAM BITRUS RWANG PAM & ORS. (2010) 2 NWLR (Pt.1178) 404.
  2. It is the submission of counsel that the facts as deposed to in the affidavit are not contentious as they are backed up with documentary evidence. The documents sought to be construed or interpreted themselves to wit: exhibits A-Z, are self-explanatory counsel urged the court to accord them due consideration.
  3. In concluding his submission counsel urged the court to answer all the questions on the face of the originating summons in favour of the claimants and consequently grant all the reliefs sought therein.

CASE FOR THE DEFENDANTS.

  1. The 1stand 2nd defendants in their reaction to the affidavit in support of the originating summons filed a 7 paragraphs counter-affidavit. A written address was also filed in opposition to the originating summons.
  2. In the counter-affidavit the defence of the 1stand 2nd defendants, is that they are not in charge of anything to do with salaries, promotions, retirement, pension and gratuity or retirement in the civil service. They are also not the authority responsible for payment of allowances, salaries or other entitlement like promotions which the claimant is seeking for. The claimant in paragraph 5 of the affidavit in support of the originating summons admitted that the 3rd defendant is responsible for appointment, promotion, and discipline of civil servants in Nigeria. In paragraph 33 of the originating summons, the claimant admitted receipt of a letter from 1st and 2nd defendant recognizing her notional date of first appointment to be 21/6/82. The 1st and 2nd defendants have complied with every directives given to it by the Head of Service of the Federation and the 3rd defendant in this suit and as such have performed their obligations in regards to the claimant.
  3. E. Ochum, Esq; counsel for the 1stand 2nd defendants, in opposition to the originating summons informed the court that he is relying on all the depositions contained in the counter-affidavit. Counsel also adopted the written address filed together with the counter-affidavit as his argument.

In the written address counsel formulated single issue for determination, to wit:

‘‘Whether the Claimant’s suit discloses any reasonable cause of action against the 1st and 2nd defendants’’.

  1. Counsel submitted that cause of action has been defined as the operative fact or facts (to factual situation) which give rise to a right of action which itself is a remedial right. It is the emergence of a factual situation which enables a party to an action in court to have a cause of suing a party. Thus, in the case of ADEKOYA V FEDERAL HOUSING AUTHORITY (2008) II NWLR (PT.1099)539@551, PARAS D-F, the Supreme Court quoted and applied the definition of the term, “cause of action” as defined by Oputa,J.S.C. in FRED EGBE V HON. JUSTICE J. A. ADEFARASIN (1981) I NWLR (PT47)1@20 thus:

“It can safely be defined as the fact or facts which establish or give rise to a right of action, it is the factual situation which give a person a right to judicial relief. In other words, a cause of action is the operative fact or facts (factual situation) which gives rise to a right of action which itself is a remedial right”.

  1. From the above definition, it is safe to submit that a cause of action is the entire circumstances that gave rise to an enforceable right. It is the fact or combination of facts which give rise to a right to sue or be sued. For a cause to therefore arise, the following two elements must be present:
  2.             The wrongful act of the defendant or in this case 1st and 2nd defendants that give rise to the claimant cause of action.
  3.             The consequential damage.
  4. It has been decided by the Courts that to determine what the cause of action is, the court must take a careful look at the Plaintiff writ of summons or the Originating Summons as the case may be.
  5. It is the contention of counsel that a perusal of the affidavit in support of the Claimant’s Originating Summons discloses no omission or wrong doing whatsoever committed by the 1stand 2nd defendants  in this suit to warrant them being sued.
  6. In the 48 paragraphs affidavit of the Claimant, the only likely paragraph that the 1stand 2nd defendants can deduce any cause of action is paragraph 14 where the Claimant deposed thus:

“That I did not know that the Ministry (2ndDefendant) had removed my name from the notional roll and stopped payment of my salaries and allowances since October, 2010 until sometime in April, 2011’’.

  1. It is the contention of counsel that paragraph 14 of theClaimant have been settled by paragraph 33 of their affidavit where they admitted that on May 8th2018, the Claimant received a letter from the 1stand 2ndDefendants through the Permanent Secretary that they have complied with the directive of the 3rddefendant on the date of first appointment of the claimant to be 21stJune, 1982.Counsel also argued that the letter from the 1st and 2nd defendants to the Claimantwhich is boldly headed “change of notional date of first appointment’ dated 8/5/18 which was also annexed by the claimant as exhibit ‘U’ in their process is evidence of compliance by the 1st and 2nd defendant with the date of first appointment of the claimant..
  2. It is the contention of counsel that the orders being sought, being in respect of payment of salaries, allowances, promotions, pensions and gratuity are not within the powers of 1stand 2nddefendants. Counsel contended that where a party fails to disclose any cause of action in a suit, no further evidence shall be required to determine the action against such party. To support this contention counsel cited the case of TOBIOWO V DISU (2008) 7 NWLR (Pt.1078) 533.It is also the contention of counsel that an applicant cannot sue a Respondent against whom he has no cause of action  neither can be sue a Respondent who has no locus standi in his contemplated action as  held in MILITARY ADMINISTRATOR AKWA-IBOM STATE V OBONG (2001) 11 NWLR (Pt.694) 214. In the case of ORJI V OGOCHUKWU (2009) 14 NWLR (Pt.1161), it was held that where a cause of action is absent in a suit the court is divested of jurisdiction to entertain the matter.
  3. In concluding his submission counsel submitted that the claimant’s action lacks merit as same discloses no reasonable cause of action against them. Counsel urged for the dismissal of the case.

OPPOSITION BY THE 3RD DEFENDANT.

  1. In opposition to the originating summons, the 3rddefendant filed a 9 paragraphs counter affidavit and a written address.
  2. ChiddinmaOtisi, Esq; counsel for the 3rddefendant in oral adumbration before the court, relied on all the paragraphs of the counter-affidavit. Counsel also adopted the written address filed along with the counter-affidavit as his argument in opposing the originating summons.
  3. In the counter-affidavit the 3rddefendant admitted being in charge of appointment, promotions and discipline of Federal Civil Servants and its decisions on those matters is final and binding on federal ministries. The claimant was never at any time prevented from sitting for any promotion examination by the 3rd defendant. The Constitutional mandate of the 3rd defendant does not include payment of salaries, allowances, pension and gratuity of the claimant or that of any civil servants except those employed and posted to the 3rd defendant’s office. That promotion under the Federal Civil Service is not automatic nor is it a right. Promotion is a privilege which is made subject to the relevant Guidelines for promotion.
  4. Paragraphs 17-19, Part IV of the Guidelines for appointments, promotion and discipline, 2004 provides the procedure for the promotion to posts on salary grade levels 15-17, which includes:
  5. a)The Senior Staff Committee of the relevant Ministry shall make and forward recommendations for promotion to the 3rd defendant to posts on salary grade levels 15-17 with the relevant information before the 3rddefendant can consider if the staff is due for promotion.
  6. b)After which, all officers due for promotion shall take written examinations and officers on grade levels 14-16 shall be interviewed/examined by the 3rd
  7. c)The eligibility for promotion shall depend on the officer meeting the minimum score of 60% and satisfying all promotion criteria, including availability of vacancy.
  8. It was stated that the 3rddid not receive any recommendation or information relating to the promotion of the claimant for consideration by the 3rd defendant. It was also averred that the claimant has not written any promotion examination nor has 3rd defendant interview the claimant. The claimant has not satisfied all the promotion criteria to make her eligible for promotion by the 3rd defendant. The claimant must satisfy statutory requirements for promotion must be complied with and the claimant must pass and fulfill all conditions for her promotion.
  9. In the written address counsel distilled sole issue for determination:-

Whether the claimant is entitled to the reliefs sought against the 3d defendants vis-à-vis the provision of paragraph 17-19, Part IV of the Guidelines for appointments, promotion and discipline, 2004.

  1. In addressing this issue, counsel submitted that the claimant is not entitled to the reliefs sought against the 3rddefendant considering that there are statutory requirements that must be fulfilled before the claimant can be promoted which the claimant has not satisfied.
  2. Paragraph 17-19, Part IV of the Guidelines for appointment, promotion and discipline 2004 provides for the procedure for promotion of staff to posts on salary grade level 15-17 which applies to the claimant in this suit. Paragraph 19(iii) of the said guidelines specifically provides that :-

‘Eligibility for promotion shall depend on meeting the minimum score of 60% and satisfying all promotion criteria, including availability of vacancy’.

  1. Furthermore, Rule 020701 (e) of the Public Service Rules 2008 provides that:

‘‘All promotions are subject to satisfying minimum requirements declared by Federal Civil Service Commission and availability of vacancies”

  1. The above provisions are clear and unambiguous. They make it compulsory
    for an officer to sit for the promotion examination, meet the minimum score and satisfy all promotion criteria. Unfortunately the claimant in this suit has not shown any evidence to the fact that she has fulfilled the requirements of these provisions to enable her demand for promotion letters from the 3rddefendant.
  2. Moreover,it is trite that Promotion is not automatic neither is it an enforceable right. It is strictly a privilege dependent on certain variables such as the fulfillment of the conditions stated above which are outside judicial control or creation. See Abenga V. Benue State Judicial Service Commission (2006) All FWLR, PT. 1327, P.1338
  3. Counsel urged the court to hold that the claimant is not entitled to
    the reliefs sought against the 3rddefendant in this suit.
  4. In light of the above statutory provisions and judicial pronouncement, counsel for the 3rddefendant urged the court to dismiss this suit against the 3rd defendant and hold that the claimant is not entitled to the reliefs sought as stated against the 3rd defendant in this suit.

COURT’S DECISION.

  1. Having carefully perused the originating summons commencing this suit, and all the processes filed by Counsel for both parties. It behooves on me to first and foremost resolve the preliminary objection raised by the 1stand 2nd defendants regarding the originating summons.
  2. The 1stand 2nd defendants have contended that the claimant has not disclosed a cause of action against them to warrant them being joined as defendants in this suit. They contended that the affidavit evidence which stands in place of pleadings did not disclosed any wrong doing against them.
  3. It is to be noted that the claimant despite being served with the counter-affidavit and the address of the 1stand 2nd defendants did not deemed it fit to respond to the vital issue of lack of cause of action.
  4. In IYEKE V P. T. I. (2019) 2 NWLR (PT.1656) 217, the apex court defined cause of action to mean: bundle or aggregate of facts that the law would recognized as giving the plaintiff a substantive right to make the claim for the relief or remedy being sought. Thus, the factual situation on which a plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of enforcement or being claimed against the defendant. A cause of action consists of the wrongful act of the defendant, which gives a plaintiff his cause of complaint, and the consequent damage.
  5. For purposes of determining existence or otherwise of a cause of action, it is the statement of claim in this case the affidavit in support of the originating summons which stands for pleading that will be considered .
  6. A careful perusal of the claimant’s 48 paragraphs affidavit in support of the originating summons shows that the claimant vide exhibit ‘A’ transferred her service from the University of Calabar Teaching Hospital, Calabar to the main stream Federal Civil Service and was posted to Federal Ministry of Health  (2nddefendant) where she was attached to National Malaria Control Programme (NMCP). The 1st defendant is the alter ego and the principal officer in charge of the administration and management of the 2nd defendant. The defendant also stated that she applied to 3rd defendant for change of her date of first appointment by deducting the number of years she spent in the school. The application was approved see exhibit E and her date of first appointment was changed from 1975 to 21/6/82. It is to be noted that prior to issuance of exhibit E to the claimant, the salaries of the claimant was stopped as from October 2010. That the claimant did not know about the stoppage and removal of her name from nominal roll of the 2nd defendant until April 2011. It was stated that based on exhibit ‘E’ the National Coordinator on of Malaria Control Programme Instructed that the claimant’s name be restored on the roaster while awaiting the reaction of the 2nd defendant but the instruction was not carried out.Theclaimant also stated that she could only have been due for compulsory retirement upon attainment of 60years of age or 35 years in service which ever come first. Having changed her notional date of her first appointment, she will be due for compulsory retirement by 20thJune 2017, when she would have clocked 35 years in service. The 3rd defendant is in charge of appointment, promotion and discipline of civil servants and its decision is binding on all ministries and government agencies on its mandate. Claimant aver that she was due for promotion on 2010 to the position of Deputy Director on grade level 16by 2014 to Director grade level 17 and to retire on 20/6/17.  That she was prevented from sitting for promotion by the 1st and 2nd defendants despite change of her notional date of her first appointment.The claimant had through her lawyer written several letters to the 1st and 2nd defendants demanding for grant of her promotion to reflect her status at retirement. That she should be deemed to have retired on 20/6/17 after 35 years of service. Computation and payment of her salaries and allowances from October 2010 when it was stopped to June 2017.
  7. Having regards to the reliefs being sought which borders on payment of salaries, Computation of pension and gratuity based on her notional date of first appointment, as well as promotions, I have no doubt that the facts as narrated in the affidavit is support of the originating summons  set out above clearly and unambiguously disclosed a cause of complaint. There is also disclosed a civil right and obligation requiring determination by the court. In the circumstance there is a reasonable cause of action disclosed by the claimant against the 1stand 2nd defendants. This is because a reasonable cause of action is a cause of action which, when only the facts in the statement of claim are considered, has some chances of success. It must be reiterated here that at the stage of considering whether a suit raises reasonable cause of action or not, the issue is not whether the allegations as contained in the statement of facts are true or false, but whether the facts averred disclose a cause of action; that is some wrong that the claimant has suffered that the defendant must answer for, and if the defendant fails to put up a proper defence, then the claimantwill ultimately succeed see RINCO VCONSTRUCTION V VEEPEE IND. LTD (2005) 7 NWLR (Pt.929) 85; IBRAHIM V OSIM (1988) 3 NWLR (Pt.82) 257, DANTATA V MOHAMMED (2000) 7 NWLR (Pt.664).
  8. It is clear from the above exposition of the law and facts disclosed in the claimant’s affidavit in support of originating summons that the claimant has disclosed a causeof action against the 1stand 2nd defendants and I so hold.
  9. Having disposed of the preliminary objection, I shall now turn to determination of the two issues submitted for resolution.
  10. The claimantvide her amended originating summons is seeking from this court a declaration that with the approval given by the 3rddefendant of change of her notional date of first appointment the claimant is entitled to her salaries, promotions up to grade level 17 and other emoluments from October 2010 when her salaries and other entitlements were stopped until her due period of statutory retirement being the 20th June 2017. The claimant is also seeking for a declaration that the claimant is deemed to have retired from service on 20/6/17, having spent 35 years from 21/6/82 to 21/6/17 and therefore entitled to recommendation for promotions up to grade level 17 to reflect her status at retirement, computation and payment of her salaries and allowances from October 2010 to June 2017 as well as computation of her salaries and payment of her gratuity and pension based on her notional date of her first appointment which is 21/6/82 until her retirement on 20/6/17. The claimant is also seeking for an order directing the defendants jointly and or severally to with immediate effect cause the claimant to be promoted to grade level 17 and or to issue to theclaimant with immediate effect her promotion letters up to grade level 17. There is also claim for an order compelling, directing and/or mandating the 1st and 2nd defendants jointly and or severally to compute and pay over to the claimant with immediate effect all her salaries, allowances and other emoluments from October 2010 to the 20/6/17when she is deemed to have retired and other entitlements like promotions accruing to the claimant from 2011 when the claimant was denied promotion till the 20/6/17when she is deemed to have retired. There is also claim for an order compelling, directing and or mandating the defendants jointly to compute for payment and to pay over to the claimant with immediate effect her pension and gratuity from the 21/6/82 to 20/6/17, when she is deemed to have retired. Payment of N200,000,000.00 (Two Hundred Million Naira) as general and aggravated damages and cost of this suit.
  11. The counsel for the claimant urged the court to grants the reliefs being sought on the ground that the facts as disclosed in the affidavit in support of originating summons are not contentious as they are backed up by with documentary evidence. The documents sought to be construed or interpreted themselves to wit: exhibits A-Z, which according to counsel are self-explanatory.
  12. The counsel for the 1stand 2nd defendants, argued while relying on the counter-affidavit filed in opposition to this suit that the 1st and 2nd defendants are not in charge of anything to do with salaries, promotions, retirement, pension and gratuity or retirement in the civil service. Counsel submitted that it is not within the powers of 1st and 2nd defendants to pay theclaimant her pension, gratuity, salaries and allowances which were based on promotions as promotion of staff is outside the power of the 1st and 2nd defendants.
  13. The counsel for the 3rddefendant in arguing against the grant of the reliefs being sought by the claimant admitted that the 3rd defendant is in charge of appointment, promotion and discipline off Federal Civil Servants including the claimant. However, counsel submitted that the claimant is not entitled to the reliefs being sought due to the claimant’s non-fulfillment of statutory requirements that must be fulfilled before the claimant can be promoted which the claimant has not satisfied. Counsel referred the court to provisions of paragraph 17-19, Part IV of the Guidelines for appointment, promotion and discipline, 2004.
  14. To resolve the two questions posed for determination, the evidence relied upon by the parties in advancing their position would be scrutinized. This is because the main reliefs being sought by the claimant aredeclaratory in nature. The law is well settled that for a party to succeed in declaratory reliefs he must succeed on the strength of his evidence and not on mere admission or weakness of the defence. In the case at hand for the claim to succeed in convincing the court to declare her to be entitled to salaries, promotions up to grade level 17 and other emoluments from October 2010 to 20/6/17 and a declaration that she is entitled to recommendation for promotions and promotions up to grade level 17 to reflect her status at retirement, computation and payment of her salaries and allowances from October 2010 to June 2017 as well as computation of payment of her gratuity and pension based on her notional date of her frat appointment which was 21/6/82 to 20/6/17. The claimant must adduced sufficient, cogent and credible evidence in proof of the reliefs being sought from the Court.
  15. All the exhibits tendered in this suit by the Claimanti.e exhibits A-Z were all photocopies. The originals have not been produced for the inspection of the Court as required by sections 86 and 88 of the Evidence Act 2011. It is pertinent to note that the claimant has not given explanation as why the original exhibits were not brought before Court as required by law.
  16. It is to be remembered that this suit was commenced vide originating summons see Order 3 Rules 1(1)(b) and 3, of the National Industrial Court of Nigeria Rules 2017, which does not allow for oral testimony except where there is need to resolve conflict in the affidavit evidence being relied upon by the parties in proof of their respective position before the court.
  17. It is settled law that exhibits attached to affidavit evidence for use in an action commenced by originating summons must comply with the requirement of evidence Act on admissibility otherwise such exhibits have no evidential value in the eyes of the law. In the case of THE KANO STATE HOUSE OF ASSEMBLY & ORS. V   ALHAJI MUHAMMADU FALALU UMAR (2014) LPLER-24008 (CA), where the Court has this to say on issue of exhibits attached to affidavit in proof of substantive matter.

‘‘The law is that documents attached to affidavits and especially to originating summons where no oral evidence is taken must fully comply with the requirement of the Evidence law to be acted upon by the court. It makes no difference that same are only attached to the motion or the originating summons, in so far as they are intended to be acted upon by the court to determine any matter, they must meet the requirement of admissibility. Where such documents, as in the instant case, are by their nature public documents, they must be certified to be admissible in evidence and or be relied upon’’.

  1. I must quickly add here that the issue of admissibility would have been different if the objection is at preliminary stage where an interlocutory application is being considered by the Court see NWOSU V IMO STATE ENVIRONMENTAL PROTECTION AGENCY (1990) 4 SCNJ 94, ADEJUMO GOVERNOR OF LAGOS STATE (1970)  ALL NLR 183.
  2. All exhibits being relied upon by the Counsel for the claimantas the basis of proof of the claims before the court are in law not admissible. The documents are photocopies and no explanation has been given as to why the original were not produced. See sections 85, 86 and 88 of the Evidence Act, having not done so the Claimant cannot rely on photocopies in proof of his case. It is to be noted the documents exhibited to the affidavitin support of the originating summons are public documents and they were not certified as required by law. As the only acceptable secondary evidence of a public document is a certified copy of the document. See ARAKA V EGBUE (2003) 17 NWLR (PT.484) 1.
  3. I have also observed that exhibits C and D apart from being photocopies, are not signed and some portions blurred and not legible. It is trite that unsigned document has no evidential value it is considered inthe eyes of the law to be worthless piece of paper. See the Supreme Court case of OMEGA BANK (NIG) PLC V O.B.C LTD (2005) 8 NWLR. Ft.928. 547, where Tobi JSC of the blessed memory held that ‘”A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious”. Moreover, in FINE BONG & ANOR V El) EM & ORS (2016) LPELR- 41190(CA),Oyewole JCA, held that an unsigned document is totally worthless and incapable of conferring any title. In the more recent case of RAJ1 V UNIVERSITY OF ILORIN & ORS (2018) LPELR-44692(SC) an unsigned notice of appeal was held to be defective and invalid and rendered the appeal to be incompetent. Also in UZOKWELU V PDP & ORS (2018) LPELR-43767(CA), it was held that an unsigned document is a worthless paper. It is inadmissible and where admitted, it cannot be relied upon by the court to resolve any controversy between the parties as no weight or probative value can be attached to an unsigned document. Shuaibu JCA also held in ALHAJ1 UMAR ALIYU TECHNICAL V FBN & ANOR (2018) LPELR-44663(CA,) that a document which is not signed does not exist in the eyes of the law. In effect, it is worthless and can neither be admitted nor be enforced. In view if the case law the exhibits attached to the affidavit in support of the originating summons being photocopies not incompliance with the law are worthless, they cannot be relied upon to found a claim before a court of law. As the exhibits are not reliable I hereby discountenanced them. The effect of this finding is that the Respondents cannot make a case under the rejected exhibits. With this holding there is nothing before the Court to interpret. The reason being that the document which the Claimants want this Court to interpret are no longer before the Court.
  4. However, notwithstanding the above finding. I shall still proceed to consider the originating summons on the merit, so that in the event of an appeal and if, It was found that the exhibits are admissible the appeal court will have the opportunity of knowing the position of this Court on the merit of the case on the assumption that the exhibits attached to the affidavit in support are valid in law and have evidential value.
  5. The main grouse of the claimant is that her salaries and allowances were stopped and her name removed from the nominal roll of the 1stand 2nd defendants as from October 2010. But, the claimant did not know of this development until April 2011. How could that be, an employee to have his salaries stopped for 7 Months without him knowing in this era of modern technology? Will this be possible? Thinking aloud.  This means that the claimant does not need her salaries. Otherwise how one could be working for 7 months without salary without knowing. According to claimant she joined the services of the 2nd defendant in 2007 through the 3rd defendant as per exhibit ‘A’. That vide exhibit ‘B’ dated 23/9/2008 she applied for change of her notional date of first appointment to deduct the number of years she spent on studies. The 3rd defendant vide exhibit ‘E’ dated 31/5/11 approved the application for change of notional date of first appointment of the claimant from 10/9/1975 to 21/6/1982, the date she joined services of University of Calabar Teaching Hospital. According to claimant the 1st and 2nd defendant refused to comply with exhibit ‘E’ despite several demands and entreaties.
  6. Vide exhibit ‘F’ one David C. Oladepo, for Chairman without stating his designation, invited the director (HRM) of the 2nddefendant to the 3rd defendant to make some clarifications regarding the case of the claimant. I have carefully perused the content of exhibit ‘F’ the content of paragraph (i) in roman numeral is not clear as to the message it intends to convey, more particularly the use of re-appointment for change of notional date of first appointment of Mrs. Nkoyi , W. Onnoghen;
  7. The claimant also averred in her affidavit in support that following exhibit ‘D’ the director National Coordinator of Malaria Control Programme instructed that her name be put back in the roaster while awaiting the reaction of the Ministry. However, the 2nddefendant refused to restore her name back to the nominal roll.
  8. The claimant vide exhibit ‘H’ letter dated 20/3/17, but received on 2/4/17 at the office of the Permanent Secretary of the 2nddefendant, the clamant notified the 2nd defendant of her retirement from Federal Civil Service with effect from 20/6/17 for putting in thirty five years of service.
  9. The defendants in their various affidavit evidence before the court and in the submissions made by their counsel before the court maintained that they are not in charge of payment of salaries, allowances gratuity and pension of the claimant. The 3rddefendant went further to state that the claimant did not qualify for promotions as she did not fulfil conditions stipulated for promotion to the grade levels she is claiming to be entitled to.
  10. The 3rddefendant was created by the provision of section 153 of the Constitution of the Federal Republic of Nigeria 1999, (as amended) and charged with responsibility of appointment, promotion and discipline of civil servant in the employment of the Federal Republic of Nigeria. It was in the exercise of the powers conferred on it that vide exhibit ‘A’ the claimant’s transfer of service was approved and she resumed work with the 2nd defendant attached to Malaria Control Management Agency. It is evident from the affidavit evidence that the salaries of the claimant was stopped as from October 2010 and her name removed from nominal roll, until some time when exhibit D was received that the National Coordinator on Malaria directed restoration of her name, but that directive was not complied with. It can also be deduced from the affidavit evidence that the claimant has not been working from October 2010 when her salaries was stopped to 20/6/17 when she claimed to have retired from service. The absence of evidence establishing whether claimant has been working from October 2010 to 206/17, when she is deemed to have retired from service is fatal to the claimant’s case for payment of salaries and allowances. For a party to be entitled to salaries and allowances such a party must show by evidence of his entitlement of the salaries and allowance. The reason being that in law claims for salaries and allowance is considered to be claim for special damages that needs to be specifically pleaded particularised and proved by cogent and compelling evidence. The claimant’s non-particularisation of her salaries and allowances has made the claim vague and uncertain.
  11. In any event a claim for special or exemplary damages are never inferred. They have to be specially pleaded and particularized. Evidence must also be adduced to sufficiently prove the claim. The Supreme Court has made it clear regarding proof of this kind of claimin NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) the court puts the law thus:

…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…

…To succeed in a claim for special damages it 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. Special damages are exceptional in character and so there is no room for inference by the court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the court.

  1. On gratuity and pension, the claimant has also not shown by evidence how much she is entitled to and how she arrived at the claim. Like claim for salary, claim for pension and gratuity has to be proved by the claimant for her to succeed.
  2. It is baffling that the claimant who is claiming salaries and allowances, pension and gratuity could not produce even a single pay slip to show what she is being paid as her salaries and allowances as well as her pension. Also the claimant has not tendered her statement of account to show her previous salaries. It is clear that there is nothing before the court to show the quantum of claims/entitlement the claimant is entitled to which the court can grant. The failure of the claimant to prove the quantum of what she is entitled to has deprived this court of the power to make any order regarding payment of salaries and allowances. It should be remembered that claims in respect of remuneration terminal benefits and pension and gratuity are in the specie of special damages which have to be pleaded specifically and proved before a court of law to grant same.The claimant did not specifically plead the quantum of money referred to as her entitlements. The absence of particularization of this claim has rendered the relief vague and uncertain. This claim on the authority of NITEL V OSHODIN (1999) 8 NWLR (Pt.616) 528 and UNIVERSITY OF JOS V DR. M. C. IKEGWUOHA (2013) 9 NWLR (Pt/1360) 478, are not grantable. I so hold.
  3. In the case of 7UP Bottling Company Plc v. Augustus[2012] LPELR-20873(CA), a more apposite case, puts the law in tis words:

The claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded. See Taylor v. Ogheneovo (Supra); Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; A.G. Leventis Ltd v. Akpu (2002) 1 NWLR (Pt. 747) 182; Garba v. Kur (2003) 11 NWLR (Pt. 831) 280: Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Otaru and Sons Ltd v. Iris (1999) 6 NWLR (Pt. 606) 330. The Respondent has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these items.

  1. To put a seal on this issue it is apposite to refer to the decision of this court in INEH V MONDAY MGBETI V UNITY BANK PLC. unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, this Court held thus:

…the rule is that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017. To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 and Mr. Mohammed Dungus&ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. And to prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits” as in the instant case, being monetary sums is a claim for special damages. See Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. Here, the law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically 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. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC) and Mr Ignatius Anyanwu&ors v. Mr Aloysius Uzowuaka&ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC. All items of loss must be specified by the claimant before they may be proved and recovery granted. See Christopher U. Nwanji v. Coastal Services Nig. Ltd [2004] LPELR-2106(SC); [2004] 11 NWLR (Pt. 885) 552; [2004] 18 NSCQR 895. Furthermore, the claimant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd [1987] LPELR-614(SC); [1987] NWLR (Pt. 66) 47; [1987] All NLR 579; [1987] 9 – 11 SC 197 and Marine Management Associates Inc. &anor v. National Maritime Authority [2012] LPELR-206(SC).

  1. See also STEPHEN AYAOGU & 16 ORS. V MOBIL PRODUCING NIGERIA UNLTD & ANOR. unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017.
  2. From the above decided cases it is patently clear that for the claimant to succeed in this case she must prove her entitlement to the damages or claims. The next thing after establishing entitlement is to prove the quantum of her entitlements. It is when these two conditions are met by the claimant that this Court can make pronouncement of her exact entitlement as per her claims before the court. Since there is nothing before the court to establish the claims in the quantum of what theclaimantwould be entitled to, this court does not have the vires to grant the claims of the claimant.
  3. On entitlement to pension and gratuity, under the current Nigerian Legal System, a public or civil servant like the claimant in this suit upon retirement form service will have his/her terminal benefit governed by the Pension Reforms Act 2014. See Rule 020807 of the Public Service Rules 2008, where it was provided that all pensionable officers must participate in contributory pension scheme as provided in the Pension Reforms Act 2004. This clearly shows that all pension matter must be dealt with in accordance with the Pension Reforms Act.
  4. It is to be noted that this law came into being since year 2004 and has undergone some changes. Prior to 2004 payment of terminal benefits was governed by the Pension Act, which provides criteria for entitlement to benefit. However, by the Pension Reforms Act a new contributory pension scheme was introduced to carter for public or civil servants retiring from the civil service and even private sector. See sections 2, 3 and 4 of the Act.
  5. What is now clear is the fact that with the enactment of Pension Reforms Act all employees in the public service are to open retirement savings account with any pension fund administrator of his/or her own choice where the pension contribution will be remitted and upon retirement the employee will access the funds from Pension Funds Administrator with the approval of the National Pension Commission. See sections 11 and 16 of the Pension Reforms Act.
  6. It is clear from a careful perusal of the provisions of Pension Reforms Act that the payment of entitlement of terminal benefit of public or civil servants is no longer with his/her employer. It is now the Pension Funds Administrator that is responsible for payment of all claims regarding terminal or leaving service benefit. This means that the claimantin the case at hand can access her terminal benefit with the approval of the National Pension Commission, from her Retirement Savings Account opened with the Pension Fund Administrator of her own choice.
  7. In view of the foregoing, I agree with the defendants that they are not proper parties to be sued in respect of payment of pension and gratuity as the law has put the responsibility of payment of such benefit on the National Pension Commission and the Pension Funds Administrator chosen by the claimant where a Retirement Savings account was opened.
  8. The claimant is also seeking for a declaration that she is entitled to promotions up to grade level 17 and an order compelling, directing and/or mandating the defendants jointly  and severally to with immediate effect cause the claimant to be promoted to grade level 17 and issue her promotion letters up to grade level 17.
  9. The claimant is seeking these reliefs based on exhibit ‘E’ letter from 3rddefendant changing her date of first appointment and exhibit ‘F’ also purporting to be from the 3rd defendant which I earlier noted that the officer who signed it did not put his designation and lack of clarity in paragraph (i).
  10. The 3rddefendant while relying on the provisions of paragraphs 17-19, of the Guidelines on promotions averred that the claimant is not entitled to promotions due to non-fulfilment of conditions for promotions. The claimant did not contradict or controvert the averment of the 3rd defendant that she was never recommended for promotion, she did not write any promotion examination to grade levels 16 and 17. Which are part and parcel of consideration for promotion. The claimant apart from stating that she was due for promotion to grade level 16 by 2010 and due for promotion to grade level 17 by 2014 did not adduced any evidence to show her eligibility and entitlement to those posts.
  11. I am inclined to agree with counsel for the 3rdclaimant that promotion in the public service or civil service either of federal or state is not automatic it must be earned and upon satisfying all the laid down conditions. It is not a right but a privilege that has to be earned. See MORIKANYO V IBADAN CITY COUNCIL (1964) LPELR-25168(SC), where it was held that an employer is not obliged to grant promotion. The claimant having not shown to have written requisite examination and passing the examination cannot succeed in claim for double promotion. The claim for promotion equally failed and is refused.
  12. A sum total of all I have been saying above is that a closer look at the affidavit in support of the originating summons will also show that the claimants’ averments are not supported with any authenticating evidence in the nature of documents and so leave out grey areas unsuited for an action commenced vide an originating summons.
  13. Even if the exhibits in support of the originating summons despite their state are held to be valid they are still unhelpful to the claimant case as they did not contain cogent evidence to prove the case of the claimant. The exhibits did show the quantum of the claimant’s entitlement, they were vague and uncertain as to what the claimant is entitled to. As it is, therefore, there is no way that the claimant’s affidavit in support of the originating summons, as it is, can sustain this action. From the state of the facts, the claimant is not entitled to grant of discretionary power of grant of declaratory relief in this suit. I so hold.
  14. It is to be noted that the primary duty of a court of law is to do justice, at least substantial, in all matters and causes that come before it, for adjudication by a dispassionate appraisal of peculiar facts, evaluation of material evidence and application of the relevant rules of law and equity. In the determination of the justice of a case and the entitlement of the parties in equity, the facts and material evidence placed before a court, aresine qua non. The decision to make any order in a case, whether sought for or not by any of the parties, must be predicated on such facts and evidence, taking the rights, obligations and interests of both parties into account or consideration. As the court is bound by the reliefs sought by the claimant. See IYEKE V P. T. I. (supra).
  15. The entire episode that led to the filing of this case by the claimant, brought out lack of corporation and coordination in the activities of agencies of government. If the 2ndand 3rd defendants have appropriately synergized in carrying out their various functions in line with their given mandate, the claimant’s travails would have been avoided.
  16. Before drawing the curtain on this judgment, I wish to state that though the use of originating summons is very much welcome and encourage in cases where the sole purpose is interpretation of statute, instruments will or documents. It is however, risky and dangerous in certain cases to employ the use of originating summons to attain justice. It is risky when there may likely be issues that may require calling of witnesses in proof certain facts without which the claimant may not succeed. I am an advocate for supporting the idea that cases on labour matters, terminal benefits are prosecuted via pleadings. This is because that is the only way the court will be afforded the opportunity of ascertaining the veracity of the evidence in proof or disprove of issues in dispute. I say no more.
  17. From the finding in this case the claimant failed to prove her case toentitle her to judgment. In the circumstance, the claimant’s case failed and is accordingly dismissed.

SanusiKado,

Judge.

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