| IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
——————————————————– Suit No: NICN/CA/42/2013 Petitioner: PASTOR AKPAN SAMUEL EFFIONG And Respondent: DEPARTMENT OF STATE SERVICE Date Delivered: 2017-03-03 Judge(s): HONOURABLE JUSTICE E. N. AGBAKOBA Judgment Delivered REPRESENTATION FELIX UDOM for the claimant JOHN EKPE for the defendant J U D G E M E N T The Claimant instituted this action via Amended Complaint with the accompanying frontloaded documents filed on 5th June, 2014 against the defendants for the following reliefs: A DECLARATION that it is wrongful, unlawful and unconstitutional for the defendant to discriminate against the claimant by not paying him a monthly pension of #40,638.93 but pays a smaller amount of #13,792.10 contrary to periodical increments done by the Federal Government of Nigeria for the retired Federal workers. AN ORDER of Court directing the defendant to pay the claimant the sum of #4,318,642.46 (Four Million, Three Hundred and Eighteen Thousand, Six Hundred and Forty Two Naira, Forty Six Kobo) only which represents the unpaid arrears of pension accruable to the claimant from 1999 till September, 2013. Exemplary damages of #5,000,000.00 (Five Million Naira) against the defendant. #1,700,000.00 being the cost of this suit. Claimant’s Case The claimant was employed by the defendant in 1982 and in 1996 he retired with the rank of Assistant Security Officer (ASO). While the claimant contends that he is not paid a monthly pension that is due to an officer that retired as ASO, while the defendant contends that the claimant retired with the rank of a Chief Detective (CD). Claimant averred that he was not paid his full monthly pension, thus, he commenced this action. The defendants filed their AMENDED STATEMENT OF DEFENCE dated 8th July, 2014 on 14th July, 2014. The Defendant’s case is that the claimant prior to his retirement was involved in Orderly Room trial for misconduct in 1994 and punishment awarded appropriately which affected his right to promotion (if at all it did exist). The Defendant stated that the claimant while in the service of their service and rose to the rank of Chief Detective (CD) on 1st January, 1994 and was compulsorily retired from the service with effect from 5th March, 1996, just two (2) years after his promotion to the post of CD upon receiving a punishment of severe reprimand which constituted a bar to his promotion or loss of seniority. According to the Defendant the said letter of retirement from service with Ref. No. C200/32/T dated 5th March, 1996 which purportedly addressed the claimant as ASO is erroneous and never emanated from the defendant; they denied issuing the claimant with letter of retirement with the rank of ASO stated in it. The defendant averred that she is not aware of any letters emanating from the claimant or any of the alleged increment of pensions or emoluments. She denied knowledge and/or being in possession of circular Nos. S.1549/10 of 23/2/2001; O. filed/xix/173 of 15/11/2000; B62316/S.1/840 of 5/10/2000; SWCO.1/Vol. iv/1011 of 17/5/2000 and B.632/S.1/X/843 of 5/10/2000 or any other circular. The defendant stated that she never received any complaint from the claimant or his agent and had never reacted in any manner and that the moneys paid to the claimant are the sum he is entitled to as a retired Chief Detective and no more and that the claimant is regularly paid what is due to him as Chief Detective retiree. The defendant denies owing or withholding any sum due to the claimant as his pension entitlement. Furthermore, that the harmonization of pension was for officers who were retired on or before the year 2000 but not to the category of the claimant who retired as a Chief Detective. Defendant stated that after the calculation of the claimant’s pension as a Chief Detective (CD), his computerized arrears stood at #403,982.20 and his monthly pension is #11,317.77 and no more. WHEREOF the defendant denies the claims of the claimant stating that the claims are frivolous, gold digging, and an attempt to ridicule and embarrass the defendant that had provided a platform for the claimant to serve and continuously provide for his upkeep as a responsible public citizen and urged the Court to dismiss same. The claimant file an AMENDED REPLY TO DEFENDANT’S STATEMENT OF DEFENCE dated and filed on 28th October, 2015. Wherein the Claimant denied that he was not retired with the rank of Assistant Security Officer (ASO) as the letter of retirement showed and that his claim before the Court is a wrong computation of his retirement benefits and not in respect of the rank with which he retired. Furthermore, the claimant maintained that the Orderly Room trial was illegal and he was later exonerated from the blame and retired with a clean record and that had to be commended in the retirement letter. The claimant also averred that his promotion to the rank of ASO did not depend upon a period but upon his achievements and performance during service. He stated that at the time of his retirement there was no other officer that retired with the name of Samuel Akpan and that the pension paid to him is far below what he is entitled to. Furthermore, the claimant stated that the letter of retirement from service with Ref. No. C200/32/T dated 5/3/1996 was addressed to him as ASO to show the last rank that he retired with. And that he never illegally or fraudulently obtained his letter of retirement as he was not the author of the letter nor gave the letter to himself. The Claimant also stated that the defendant had received the letters that were sent to her and that apart from the copies sent to the defendant, the National Pension Commission also delivered the copy that was sent to her to the defendant. Trial commenced on the 5th November 2015 with the claimant testifying as CW, adopting his written statement on oath which was marked as Exhibit C1 and proceeded to tender 13 other exhibits. The defendants called one witness, Eriba Eyenmi, of the defendants Personnel DEFENDANTS’ FINAL ADDRESS dated and filed on 2nd August, 2016. ISSUES Whether based on the available facts and evidence before this Honorable Court the claimant is entitled to his reliefs. Whether the suit of the claimant is competent in view of the Limitation Law i.e. Sec. 2 (a) of the Public Officers Protection Act, LFN, 2004. ON ISSUE 1 Whether based on the available facts and evidence before this Honorable Court the claimant is entitled to his reliefs. Learned Defence Counsel John Ekpe Esq. submitted that claimant is not entitled to the reliefs sought as under our legal system, the cardinal principle of law is that he who asserts must prove his case with credible and unchallenged evidence. SEC. 131 of the EVIDENCE ACT, 2011; ELIAS v. DISU (1962) 1 SCNLR 361; ARASE v. ARASE (1987) 5 SC 33. He submitted that in civil cases, a party who wishes to succeed in obtaining judgment in his favour must adduce such credible evidence as is necessary to establish his case. ELIAS v. OMO-BARE (1982) 5 SC 291. It is defendant counsel’s contention that the claimant seeks a declaratory relief that is unlawful and unconstitutional for the defendant to discriminate against him by paying him a monthly amount of #40,638.93) against smaller amount (#13,792.10) that the defendant pays him. And that under our legal system, declaratory relief falls within the discretionary power of the Court. NZURIKE v. OBIOHA (2011) LPELR 4661 (CA), per Ogunwumiju, JCA; A.G. CROSS RIVER STAET v. A.G. FEDERATION (2005) 6 SCNJ 152; OGOLO v. OGOLO (2006) 2 SCNJ 235. Submitting that this Court as a superior Court of record has inherent power to examine the records placed before it with a view of making use of the information therein. WEST AFRICAN PROVINCIAL CO. LTD. v. TOBACCO CO. LTD. (1987) 2 NWLR (PT. 57); NWANOSIKE v. UDOZEN (1993) 4 NWLR (PT. 290) 684 @ 687. Defence Counsel urged the Court to invoke the provisions of Sec. 167 (d) of Evidence Act; N.S.C. (NIG.) LTD. v. INNIS-PALMER (1992) 1 NWLR (PT. 218) 422 to the effect that if the claimant had tendered his letter of last promotion, it would have been unfavourable to his claim. The counsel to the defendant further contended that the claimant ought to have called the maker of Exhibit C3 as a witness to give evidence in his favour and that failure to do so invites the Court to invoke the provisions of Sections 83 (1) and 149 (d) of the Evidence Act, 2011 against the claimant. ALI v. UBA PLC (2015) ALL FWLR (PT. 771) 1482 CA; A.P.C. v> INEC (2015) ALL FWLR (PT. 771) 1420 SC. Furthermore, that the defendant’s denial that she issued Exhibit C3 to the claimant was not punctured by the claimant during the trial at all. EZE v. OKOLOAGU (2010) 3 NWLR (PT. 1180) 183 @ 189. To the Defendant Counsel ] Exhibits C4, C5, C7, C9, C10, C11 & C12 are the fulcrum of the claimant’s claim and that the said exhibits were tendered when the defendant counsel was absent in Court whereof he would have objected to their admissibility. However, that by Sec. 251 of the Evidence Act, 2011, the Court is enjoined to expunge wrongly admitted documents from its records. That the said exhibits are public documents that require certification before admission into evidence. SEC. 104 of the EVIDENCE ACT, 2011; GAU v. GAU (2015) ALL FWLR (PT. 776) 591@ 606-607, PARAS. H-A; FAAN v. WAWAL EXPRESSE SERVICES (NIG.) LTD. (2011) 1 SCNJ 133; AREGBESOLA v. OYINLOLA (2009) ALL FWLR (PT. 472) 1147; SOLOMON v. MONDAY (2015) ALL FWLR (PT. 762) 1695; AFOLABI v. ALEREMU (2013) ALL FWLR (PT. 691) 1621. Counsel to the defendant continued by assuming without conceding that the said exhibits are admissible in evidence, that the next fundamental question is: “what is the legal status of the said circulars wrongly received in evidence as Exhibits C4, C5, C7, C9, C10, C11 & C12?― he replied with the case of MAIDERE v. FRN (2014) ALL FWLR (PT. 717) 725, urging the Court to expunge same from the record. It is the Defendant’s counsel’s submission that the claimant tendered a computer generated Bank Statement of Accounts marked as Exhibit C14 without compliance with the requirements of Sec. 84 of the Evidence Act, 2011 which is the effect that every computer generated document must as a matter of law be certified in line with the Section. He submitted that furthermore Exhibits C4, C5, C7, C9, C10, C11 & C12 were never addressed to the defendant by name or by communication, thus, it is the duty of the claimant to lead credible and cogent evidence to show that the said circulars, though inadmissible in nature, were received by the defendant and who received same on behalf of the defendant, as it is the law that the burden of proof in a court such as this lies on the claimant who alleges the affirmative. OJO v. AKINSANONYE (2014) ALL FWLR (PT. 754) 18; FAKOYA v. IJELU (2015) ALL FWLR (PT. 762) 1644. Counsel to the defendant submitted that the claimant has not led any evidence in proof of the claim that his alleged nonpayment has infracted on his constitutional rights as provided for in Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) for in his claim to be said to be unconstitutional. MAIDERE v. FRN (Supra); AKAIMWO v. NSIRIM (2008) ALL FWLR (PT. 410) 610. ON ISSUE 2 Whether the suit of the claimant is competent in view of the Limitation Law i.e. Sec. 2 (a) of the Public Officers Protection Act, LFN, 2004. Learned Counsel to the defendant submitted that the jurisdiction of the Honorable Court was not properly invoked by the claimant for the determination of the issue in controversy between the parties herein. A.C.N. v. INEC (2014) ALL FWLR (PT. 716) 460 SC; TEIBOGTREN v. GOVERNOR, DELTA STATE (2015) ALL FWLR (PT. 764) 1 CA; AGBONIKA v. UNIVERSITY OF ABUJA (2014) ALLFWLR (PT. 715) 335 CA; CBN v. AMAO (2011) ALL FWLR (PT. 558) 806 SC; NDIC v. GOVERNING COUNCIL, IFE (2014) ALL FWLR (PT. 742) 1790 CA. It is defence counsel’s submission that the cause of action had long since extinguished when the claimant noticed the alleged irregularity of the defendant in 1999. SEC. 2 (a) of the PUBLIC OFFICERS PROTECTION ACT, CAP P41, LFN, 2004; IBRAHINM v. JSC, KADUNA STATE (1998) 14 NWRL (PT. 584) 1 SC; WAEC v. UDIKA (2014) ALL FWLR (PT. 757) 797 CA. The claimant filed their final written address which they tagged REPLY ADDRESS OF THE CLAIMANT dated 5th October, 2016 on the 4th October, 2016. Wherein they raised the following ISSUES Whether based on the available facts and evidence before this Honorable Court, the claimant is entitled to his reliefs. Whether the suit of the claimant is competent in view of the limitation law i.e. Sec. 2 (a) of the Public Officers Protection Act, LFN, 2004. Whether the claimant retired as an Assistant Security Officer (ASO) or as a Chief Detective (CD) Whether the defendant has raised any defence that should deprive the claimant favourable judgment. Whether the defendant’s address that was filed on 2nd August, 2016 is competent. ON ISSUE 1 Whether based on the available facts and evidence before this Honorable Court, the claimant is entitled to his reliefs. Citing Sec. 173 (2) & (3) of the 1999 Constitution(as amended), Learned counsel for the claimant Felix Udom Esq. submitted that claimant is entitled to his reliefs and that it was in compliance with the above constitutional provisions that the defendant had been making periodical increments of the monthly pensions that were paid to the claimant. On defendant’s argument that the claimant had failed to prove his case, counsel submitted that claimant has proved his case by adducing credible evidence. Regarding defendant’s submission that claimant needed to tender his letter of promotion to the rank of ASO, counsel argued that it is not necessary to tender the letter of promotion as the letter of retirement is sufficient. Reason being that the defendant is a paramilitary department which can at times not follow due process in its activities. He referred the Court to paragraph 2(b) of the Amended Reply to the Amended Statement of Defence. On defendant’s contention that the claimant needed to tender letter of clearance to enable him be entitled to be paid the pension that is meant for an officer that retired as ASO, counsel submitted that it is the defendant that ought to have tendered the letter of clearance because payment of entitlements to the claimant depended upon issuance of the clearance letter which had to be done before entitlement is paid. Regarding defendant’s contention that photocopies of public documents that were tendered needed to be certified in accordance with the Evidence Act, 2011, counsel submitted that even though this position is true, it will not be applicable to Exhibit C5 which is an original private document that was received by the claimant and Exhibit C11 (the letter dated 5th October, 2000) which contains some useful private document that will assist the Court to justly determine this case. ON ISSUE 2 Whether the suit of the claimant is competent in view of the limitation law i.e. Sec. 2 (a) of the Public Officers Protection Act, LFN, 2004. Claimant Counsel submitted that this case is competent and not affected by the provision of the Public Officers Protection Act and that it should also be noted that the cause of action in this case also bothers on debt. PARAGRAPHS 6, 10, 11, 14, 15, 16, 17 & 18 of the STATEMENT OF FACTS; CENTRAL BANK OF NIGERIA (CBN) v. AMAO & 2 ORS. (2011) ALL FWLR (PT. 558) 805 @ 827, per Onnoghen, JSC @ PARAS. E-H. ON ISSUE 3 Whether the claimant retired as an Assistant Security Officer (ASO) or as a Chief Detective (CD). Claimant Counsel referred the Court to paragraph 3 of the Statement of Facts where claimant stated that he retired that he retired in 1996 with the rank of ASO and that he also tendered Exhibit C3 which is the retirement letter. Counsel asking the question: “Did the writer of Exhibit not read the document before signing it?― urged the Court to hold that the claimant retired as an ASO and is therefore entitled to be paid #40,638.13 as monthly pension. ON ISSUE 4 Whether the defendant has raised any defence that should deprive the claimant favourable judgment. Counsel to the claimant relying on ORDER 8(1) & (2) of the NATIONAL INDUSTRIAL COURT RULES, 2007 submitted that the defendant has not entered appearance in this case that would have enabled the Court to consider its defence. INAKOJU & ORS. v. ADELEKE & ORS. (2007) 143 LRCN 1 @ 164 UZ. ON ISSUE 5 Whether the defendant’s address that was filed on 2nd August, 2016 is competent. Learned Claimant’s Counsel submitted that the defendant’s address filed on 2nd August, 2016 is incompetent because the defendant’s counsel who filed the address failed to comply with the provisions of RULE 10 (1), (2) & (3) of PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS, 2007. He argued that the defendant’s Final Address is a legal document that is envisaged by sub-rule (2) and filed by a legal practitioner who did not affix his stamp and seal approved by the Nigerian Bar Association. YAKI & ANOR. v. BAGUDU & ORS. (2015) VOL. 249 LRCN 1 @ 35-36, per Justice Ngwuta. The defendants filed their REPLY ON POINTS OF LAW TO THE CLAIMANT’S ADDRESS dated and filed on 11th October, 2016. On the allegation that the defendant had been making periodical increment of the monthly pensions, defence counsel argued that such submission is merely speculative and a figment of imagination of the claimant not supported in evidence and facts. IGWILO v. CBN (2000) 9 NWLR (PT. 672) 302. Furthermore, that Exhibit 5 referred to and relied upon by the claimant is clearly inadmissible as same did not pass the test of admissibility as laid down by Sections 98 and 90 of the Evidence Act, 2011. On the allegation that the defendant has agreed that there was increments over the years, counsel for the defence contended that this submission is meant to distract the Court from the truth of the matter. That the issue of alleged increment was never admitted by the defendant who had put the claimant to the strictest proof and which proof the claimant failed to discharge. IGWILO v. CBN (Supra) 332. On the allegation that the defendant can at times not follow due process in its activities, defendant counsel submitted that it confirmed that the Exhibit C3 was issued or is in possession of the claimant in error as stated in paragraph 9 of DW1 evidence on Oath, because due process was not followed. On allegation that it is the defendant that should have tendered a letter of clearance, counsel relying on Sec. 131 of the Evidence Act submitted that the claimant had admitted that payment of entitlement depended upon issuance of clearance letter which had to be done before entitlement can be paid and which the claimant had not done with respect to his claim of ASO rank. On the allegation that Exhibit C11 is a certified document, counsel urged the Court to discountenance the said submission as there was no features on the said Exhibit to show that same had been duly authenticated in line with Sec. 104 of Evidence Act. GAU v. GAU (2015) ALL FWLR (776) 591 @ 606-607, PARAS. H-A. On the allegation that Sec. 12 (2) of the Industrial Court Act gives the Court discretion to admit document contrary to Evidence Act, 2011, counsel submitted that discretionary power of the Court must be exercised judiciously and judicially, not according to private opinion. OGUNDIPE v. NITEL (2016) ALL FWLR 9PT. 817) 612 @ 633. Furthermore, that the said provision cannot be made a clog in the wheel of justice and cannot give teeth to a death evidence like Exhibits C6-C12. MAIDERIBE v. FRN (2014) ALL FWLR (PT. 717) 725 @ 739. On the allegation that Exhibit C14 is not a computer generated document, counsel responded that the document is computer generated considering the online signature at the foot of the said Exhibit, urging the Court to discountenance the claimant’s submission and expunge same from the records. Defendant Counsel argued that assuming without conceding that the said Exhibit C14 was not from the internet, submitted that no foundation as required by Sections 89 & 90 (1) (e) of Evidence Act, 2011 was laid before its reception as exhibit. On the allegation that the defendant has not entered appearance by filing memorandum of appearance in this suit, counsel answered that the purport of Order 8 Rule 5 of the National Industrial Court Rules, 2007 is misconceived by the claimant and that the defendant filed appropriate processes in defence of this suit in line with the afore-said Order. Furthermore, that the Golden Rule of practice is not to spring surprises on your adversary and that application to set aside for any irregularity in the Court should be by way of Motion and not as speculated by the claimant. ORDER 5 RULES 1, 2 (2) and that he has waived his right to do so. On the allegation that the claimant’s claim is on debt, counsel submitted that the defendant is not indebted to the claimant in any way or manner and that it is a surprise as same is not borne out of the claimant’s pleadings and evidence in court. ODOMA v. PDP (2015) ALL FWLR (PT. 773) 1962 @ 1989, PARAS. B-E. 0He urged the Court to discountenance the said afterthought submission. CBN v. AMAO (2011) ALL FWLR (PT. 558) 806. The Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant is entitled to the reliefs sought in this suit. The defendant’s second issue raises a question of jurisdiction which is by law required to take precedence. See the case of FEDERAL AIRPORTS AUTHORITY v. NWOYE (2015) 53 NLLR (PT. 180) 446 CA @ 455, where it was held that “Jurisdiction is important and should not be toyed with by parties who are not successful in the lower court, as jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the Court to hear and determine a suit. where a court does not have jurisdiction to hear a matter, the entire proceedings, no matter how well conducted and decided would amount to a nullity. It is thus, mandatory that courts decide the issue of jurisdiction before proceeding to any other matter―. THE ATTORNEY GENERAL OF LAGOS STATE v. DOSUNMU (1989) 3 WLR (PT. 111); AMERICAN INTERNATIONAL INSURANCE v. CEEKAY TRADING LTD. (1981) 5 SC 50; UTIH & ORS. v. ONOYIVWE & ORS. (1991) 1 NWLR (PT. 166); OBIUWEUBI v, CENTRAL BANK OF NIGERIA (2011) 7 NWLR (PT. 465). The defendants are contending that the claimants suit is statute barred having commenced outside the period prescribed by the Limitation Law i.e. Sec. 2 (a) of the Public Officers Protection Act, LFN, 2004. The statute in question is section 2(a) of the Public Officers Protection Act 2004, which provides as follows – Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect. (a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison. When determining whether or not an action is statute barred, Courts are enjoined to look at the originating process to see when the cause of action arose and then compare it with when the action in question was filed. BELLO & ORS. v. NIGERIA CUSTOMS SERVICE BOARD (2015) 53 NLLR (PT. 179) 343 NIC @ 368 In the instant case the suit was commenced in the Federal High Court Uyo on the 9th December 2010, this court in the case of KJANG Vs, NATIONAL AGENNCY FOR THE CONTROL OF AIDS (NACA) NICN/ ABJ/ 230/ 2012 delivered on the 20th March 2013 held that “in determining whether an action transferred to the court by another court commenced …….the court will take into consideration when the action was first filed and not the date of transfer from the other court.― When determining whether or not an action is statute-barred, Courts are enjoined to look at the originating process to see when the cause of action arose and then compare it with when the action in question was filed. The question, therefore, is when the cause of action in the instant action arose. It is defence counsel’s submission that the cause of action had long since extinguished when the claimant noticed the alleged irregularity of the defendant in 1999. The claimants argue otherwise. This means it would be necessary to determine what really the cause of action is in the instant case and then determine when it arose. In COMRADE ISHOLA ADESHINA SURAJUDEEN V. MR. ANTHONY NTED & ANOR UNREPORTED SUIT NO. NICN/LA/114/2013 the ruling of which was delivered on July 10, 2014 this Court (relying on ‘lai Oshitokunbo Oshisanya’s An Almanac of Contemporary Judicial Restatements – With Commentaries – The Basebook, Vol. ia, Administration of Justice and Evidence (Spectrum Books Limited: Ibadan), 2008 at page 3 paragraphs 10 – 13) defined cause of action as – …the cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse. See also AG, FEDERATION V. AG, ABIA STATE & ORS [2001] 11 NWLR (PT. 725) 689 AT 733. The claimant’s reliefs are A DECLARATION that it is wrongful, unlawful and unconstitutional for the defendant to discriminate against the claimant by not paying him a monthly pension of #40,638.93 but pays a smaller amount of #13,792.10 contrary to periodical increments done by the Federal Government of Nigeria for the retired Federal workers. AN ORDER of Court directing the defendant to pay the claimant the sum of #4,318,642.46 (Four Million, Three Hundred and Eighteen Thousand, Six Hundred and Forty Two Naira, Forty Six Kobo) only which represents the unpaid arrears of pension accruable to the claimant from 1999 till September, 2013. Exemplary damages of #5,000,000.00 (Five Million Naira) against the defendant. #1,700,000.00 being the cost of this suit. And from the claimant statement of claim I find that the claimant’s cause of action is the non payment to him of the increments due to him with this pension i.e the under payment off his pension. When a matter falls within the realm of the limitation law the next question to be asked is whether the matter qualifies for any of the statutory exception which to my mind and by case law is limited to continuing injury. The claimant’s contention as the matter being one of debt has no bearing when a case is being challenged on the basis of a limitation law. As the statute has provided its own exceptions and debt is not one of them So can the exception of Continuing injury avail the claimant, parties were asked to further address the court on this point The test on continuance of damage or injury laid down by the Supreme Court in AG, RIVERS STATE V. AG, BAYELSA STATE & ANOR [2013] 3 NWLR (PT. 1340) 123 AT 144 – 150 is one that relates to periodical payments, not one-off payments as is the case with especially relief b) as claimed by the claimants. See ALSO HON. RUNYI KANU (JP) & ORS V. THE ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE CROSS RIVER STATE & ORS [2013] 32 NLLR (PT. 91) 63 NIC. NICN/LA/149/2014 AUPCTRE & ANOR Vs. NATIONAL THEATRE OF NIGERIA & ORS Delivered MAY 18, 2016 The law is that “for the exception of “continuance of damage or injury― to limitation of action rule to avail an employee, there must be periodicity of payment. For instance, where an allocation which comes periodically, by, monthly (like salary and allowances) is deprived an employee, there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply―. BELLO & ORS. v. NIGERIA CUSTOMS SERVICE BOARD (Supra ). Seeing as the claimants cause of action is under payment of pension and that he from all indication is still receiving his pension See para I find that the claimant suit falls within the exception to the applicable limitation law and is therefore not statute barred. I hold. Before I address the merit of the case I will address some other contentions raised by parties the Reply on point of law is not a opportunity for the other side to raise fresh argument, re argue or re-beautify already made submissions at this stage of a trial it is only permissible to show that that point of law newly raised in the address of the other counsel is misconceived or not applicable to the case at hand or distinguishable or has been overridden by new or later authoritative statement of the law. In this process a defendant is expected to pin point the action point of law he is addressing and show the court the present position of that point of law. This the defendant in this suit failed to do rather he took the opportunity to re address the court of issues already submitted and re argue these point. For the purposes of this judgment all such re agreement and re beautification including the new issues raised shall be discountenanced accordingly. The claimants also argued that the defendant has not entered appearance in this case ORDER 8(1) & (2) of the NATIONAL INDUSTRIAL COURT RULES, 2007that having not done this the Court is unable to consider its defence relying on INAKOJU & ORS. v. ADELEKE & ORS. (2007) 143 LRCN 1 @ 164 UZ. The defendants countered that the purport of Order 8 Rule 5 of the National Industrial Court Rules, 2007 is misconceived by the claimant and that the defendant filed appropriate processes in defence of this suit in line with the afore-said Order. Furthermore, that the Golden Rule of practice is not to spring surprises on your adversary and that application to set aside for any irregularity in the Court should be by way of Motion and not as speculated by the claimant. ORDER 5 RULES 1, 2 (2) and that he has waived his right to object. Both parties have refuse to give credence to the antecedence of this suit, being a transferred case the parties having duly regularized their processes it is too late in the game and overly technical to be raising the issue of non filing of memorandum of appearance at this stage. Especially as this court does not have an equivalent of Or 13 of the High Court (Civil Procedure) Rules of Akwa Ibom State under which a plaintiff is entitled to judgment in his favour upon a defendant failing to file a Memorandum of Appearance, and considering the circumstances of this case, the defendant having filed his defence, cross examined the claimant entered his defence, called his witness and concluded by adopting his final address. In addition to considering the nature of this court, I find that the interest of justice at this time requires that this court treat the non-filing of a Memorandum of Appearance as a mere irregularity under Or 5(2) NIC Rules 2007. I find and hold. The defendants have submitted that Exhibits C6-C12 require certification and that the court should discountenance these documents on the ground that the documents offend section 104 of the Evidence Act. Looking at the exhibits in question I find that Exhibit C6 is a letter from the defendants addressed to the claimant with the heading ‘Petition against alleged victimization’ dated 20th October 1993, is in fact an original letter requiring no certification being best evidence itself See DANA IMPEX LTD Vs. AWUKAM [2006] 3 NWLR (Pt. 968) 554 at 562 paras D-E per Chukwuma Eneh JCA (As he then was). Exhibit C7-C7(5) are six separate letters from the defendants addresses to 6 six different person informing them of their final recalculated pension all six documents bore the same reference no and was dated 23rd February 2001. In this court, a claimant must build his case on his own right/entitlement, not on the right/entitlement of another, and as in labour law the position of the law is that except in a claim for unfair labour practice where comparison may be essential (which is not the case of the claimant in the instant case), evidence of the payments or entitlement of other is of no import or relevance in this suit not being one of unfair labour practice. See the unreported case SUIT NO. NICN/LA/308/2013 SAMSON KEHINDE AKINDOYIN VS. UNION BANK OF NIGERIA PLC delivered on the 15th April 2015. Exhibit C8 is a letter addresses by the defendants dated 15th July 2013 to the Association of Retired Officers of the defendants with the heading ‘Update on Outstanding Pension Issues’ in reply to the Associations letter of 17th February 2012. The problem with this exhibit is that the claimant was not the addressee of this letter neither is it his case that he is a member of the Association, a fact that requires to be both pleaded and proved by evidence. See HABU V. NUT, TARABA STATE [2005] 4 FWLR (Pt. 283) 646. It is pertinent to note that the law requires the claimant to prove to the court that he is a member of the particular union or employee association. Neither has the claimant laid any evidence as to how he came about this letter, neither did the claimant forward, tender or frontload the Association’s letter to which Exhibit C8 was written in response thereto, to enable the court have a holistic picture of the points. The evidence I find is fragmented and unreliable. I cannot attach any weight to this document. Exhibit C9 is a letter from the National Pension Commission to the Counsel Daniel & Daniel Attorneys informing them that their complaint with regard ‘Payment of Harmonized Pension of Mr. Akpan Samuel’ had been referred to the defendants. This document is clearly a photocopy, the claimant in open court had informed the court that the original was with his former counsel. Exhibit C10 is a certified true copy of the Circular of government Ref SWC/S/04/S.08/Vol. IV /207 of 5th August 2010 and duly acceptable to this court. Exhibit C11 is a photocopy of government circular B.63216/S.1/X/840 of 5th October 2000. This document being a public document by law requires certification, the claimant has asked this court to evoke the provisions of Section 12(2) (a) and (b) of the National Industrial Court (NIC) Act 2006 and allow this document as being relevant and also asking the court to depart from the rules of evidence with respect thereto. The requirement of certification in law is to obviate the necessity of calling public officials to testify as to the genuineness of a document and to preserve the original documents from being removed from their proper place of custody See ONOCHIE Vs. ODOGWU [2006] 6NWLR (Pt. 975) 65 at 89. Also thereby giving assurance of the documents production from proper custody. In the case of ARAKA Vs. EGBUE [2003] 33 WRN 1, 15-17 Nike Tobi JSC considered that were are “in the age of sophisticated technology, photo tricks are the order of the day….― See also OGBORU Vs. UDUAGHAN [2011] (Pt. 1232) 608. With the available sophistry in reproducing documents these days I find this document unreliable not being certified and even given the provisions of Section 12(2) (a) and (b) of the National Industrial Court (NIC) Act 2006, it would be unreliable to attach any weight to this document. The same goes for Exhibit C4 I find and hold. Exhibit C12 is a letter written by the claimant himself to the defendants on the 13th March 2008, this letter is devoid of any endorsement indicating that it was ever received by any of the two addressees or any person at all. The position of the law is that a lack of evidence of acknowledgment on a document or notice, by way of endorsement, receipt or stamp is an indication that the said document or notice was not presented/ delivered to the address/ addressee(s) or person intended or any person at all. See cases of unreported SUIT NO: NICN/CA/104/2013 AKPAN LAWRENCE IDORENYIN Vs. SKYE BANK PLC delivered on the 18th February 2016 and unreported SUIT NO: NICN/CA/14/2014 ENIANG NDEM Vs MR. NDOMA AKPET & 3 ORS delivered on the 24th February 2016. This document as it is, is merely evidence of something the claimant wrote and I can attach no added weight or importance to it. The defendants have also taken exception to Computer generated documents such as Exhibit C 14, the claimants bank statement, on the basis that sections 84(2) and (4), 89(h) and 90(1)(e) of the Evidence Act 2011 where not complied with and so these exhibit should be discountenanced. Now bearing in mind that this court, the National Industrial Court (a) may regulate its procedure and proceedings as it thinks fit; and (b) shall be bound by the Evidence Act but may depart from it in the interest of justice See Section 12(2)(a) and (b) of the National Industrial Court (NIC) Act 2006,. In KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED [2012] 27 NLLR (PT. 78) 374 at 454, where the informality and flexibility expected of the court during adjudication was clarified; and citing the instructive and incisive holding of the Supreme Court of India in NTF MILLS LTD V. THE 2ND PUNJAB TRIBUNAL, AIR 1957 SC 329, which explained that the ‘task of this Court is to adjudicate on the disputes between employers and their workmen, etc and in the course of such adjudication determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing the Court is undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that the Court’s jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace. This process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience’. Now, it must be noted that the defendants are not contesting the authenticity of these Exhibits the defendants grouse is they are computer printouts and were not tendered in accordance with the Evidence Act and not their evidential value (the informality enjoined on this Court by section 12 of the NIC Act 2006 and as explained in KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED does not permit the approach of the defendants). The interest of justice does not warrant this kind of technicality that the defendants are introducing here. Accordingly, it is my finding and holding that in the interest of justice, the relevant provisions of the Evidence Act cited by the defendants shall be departed from for the purposes of this judgment. The argument of the defendants in that regard accordingly fails and is hereby discountenanced. Exhibits C and C shall accordingly remain admitted; the only issue left is their evidential value as far as this suit is concerned. See the cases of LUCKY IHANZA & ANOR V. GLOBAL FLEET OIL & GAS LIMITED UNREPORTED SUIT NO. NIC/LA/217/2011, the judgment of which was delivered on March 27, 2013, MR. IROKO A. LATEEF V. GLOBAL FLEET OIL & GAS LTD UNREPORTED SUIT NO. NIC/LA/222/2011, the judgment of which was delivered on May 13, 2013 and MR. OLUBAYO ADEYEMI V. GLOBAL FLEET LTD [2013] 35 NLLR (PT. 105) 384 and SUIT NO. NICN/LA/32/2012ESTHER OGBODU VS. GLOBAL FLEET OIL & GAS LTD & ANOR (Unreported) in all these cases objections were raised as to the admissibility of computer generated evidence and this Court overruled the objections as admitted the documents. All these means is that the technicality introduced by the Evidence act as regards computer generated evidence cannot be held to apply to this court that is enjoined to be flexible and informal I find and hold. Exhibits C14 remains admitted. Having said this it is necessary to point out that the court have continuously slated counsel for dumping documents on the court without any indication as to what the parties wish the court to infer from such documents or the rationale behind the tendering of same, see the unreported case of SUIT NO. NICN/LA/496/2012 ADEBAYO BOYE Vs. FBN MORTGAGES LIMITED delivered on the 7th April 2016. Now to the Merit of the claimant’s case the claimant maintained that his grouse is that he was not paid his due increments and was under assessed in his pension payment. His contention primarily is that as an ASO he was entitled to a pension above the N924.51 which he received. Nowhere in the claimants suit did he advance any evidence what the pension or even the salary of an ASO was, neither did he tender any evidence of his pay slip or bank statement as to what he earned as an ASO to enable the court determine whether he was under paid his pension. The defendants have maintained that the claimant was never at any time an ASO, this I find is the pivot on which all the claimant’s claims rest. The claimant case is that he was retired as an ASO by the defendants, but from all the documents and testimony before the court there is not evidence of the claimant ever having been promoted to ASO, the defendant contend that that the claimant’s last promotion was in 1994 to the post of Chief Detective. The argument of the claimant that he was retired with the rank of ASO with reliance on a letter of retirement from service addressed to S. Akpan with the suffix (ASO) as it is in Exhibit C3 without more I find is insufficient to found a claim to the entitlement of ASO. This being a point in contention duly raised at the pleading stage I find that the claimant had ample opportunity to refute this contention, the claimants averment that his promotion was over due and delayed and was based on his achievement and performance during service amounts to a pleading but no evidence was adduced in support thereof and by mere pleadings without evidentiary support is of no moment as the position of the law is Facts pleaded in respect of which no evidence was led go to no issue SAMSON BABATUNDE OLAREWAJU V. AFRIBANK NIGERIA PLC [2001] VOL. 6 MJSC 68 AT 76G. It is also the claimants case that successive reforms and circular reviewed his pension upwardly and the increment were not relefected on his pension to the extent or amount he expected. And that by three distinct circulars the claimants pension ought to have been drastically increased but this was not so due to under assessment. The first of such circulars is the one of 20th January 11997 Circular No. B63216/S.1/13/105, the claimant had given the defendants notice to produce this circular but despite the non presentation of this by the defendants the claimant did not tender their copy, the claimant in all pleaded five circulars; 1) 20th January 11997 Circular No. B63216/S.1/13/105, 2) 23rd February 2001 Circular No. S. 1549/10. 3). 15th November 2000 Circular No. file/x.x/173, 4.)5th October 2000 Circular No. B6 2316/S.1/840. Exhibit C11 5.) 17th May 2000 Circular No. SWC.0.1/Vol. iv/101. As having effect of increasing his pension but only one Exhibit C10 has been found reliable being duly certified but this circular was not pleaded. The law is that a party who produces an exhibit so that the Court could utilize it in the process of adjudication must not dump it on the Court, but must tie it to the relevant aspects of his case. See IVIENAGBOR V. BAZUAYE [1999] 9 NWLR (PT. 620) 552; [1999] 6 SCNJ 235 at 243, OWE V. OSHINBANJO [1965] 1 ALL NLR 72 at 15, BORNU HOLDING CO. LTD. V. ALHAJI HASSAN BOGOCO [1971] 1 ALL NLR 324 at 333, ALHAJI ONIBUDO & ORS V. ALHAJI AKIBU & ORS [1982] 7 SC 60 at 62, NWAGA V. REGISTERED TRUSTEES RECREATION CLUB [2004] FWLR (PT. 190) 1360 at 1380 – 1381, JALINGO V. NYANE [1992] 3 NWLR (PT. 231) 538, UGOCHUKWU V. CO-OPERATIVE BANK [1996] 7 SCNJ 22, OBASI BROTHERS LTD V. MBA SECURITIES LTD [2005] 2 SC (PT. 1) 51 at 68, EZE V. OKOLAGU [2010] 3 NWLR (PT. 1180) 183 at 211, ANPP V. INEC [2010] 13 NWLR (PT. 1212) 547, UCHA V. ELECHI [2012] 13 NWLR (PT. 1316) 330 at 360, BELGORE V. AHMED [2013] 8 NWLR (PT. 1355) 60 at 99 – 100, OMISORE V. AREGBESOLA [2015] 15 NWLR (PT. 1482) 202 at 323 AND 324 and ADEMOLA BOLARINDE V. APM TERMINALS APAPA LIMITED UNREPORTED SUIT NO. NICN/LA/268/2012 the judgment of which was delivered on 25th February 2016. The claimant did not do this. Exhibit C10 was not so tied. In effect, it and all the other exhibit were simply dumped on this Court. That was not good enough. In this case even if the exhibit were in fact tied to the claimants claim it would not have done him any good as he failed to establish the basis of his claim. The claimant gave no evidence as to what the ASO pension was or that he was ever promoted to the post of ASO for the court to make a finding on the issue. I hold that the letter of retirement with the letters ASO do not amount to a promotion or advancement of the claimant to that rank to enable him claim the benefits attributed to that rank or maintain this action for same. Promotion in employment law is a factual situation it cannot be inferred or attributed. In the case of ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION, [2006] 14 NWLR (PT. 1000) 610 CA it was held that ‘promotion is neither automatic nor as of right’. Also in the Indian case OF LH SUGAR FACTORIES & OIL MILLS LTD V. STATE OF UTTAR PRADESH (1961) I LLJ 686 (ALL), per SS Dhavan J, held as follows – Promotion generally necessitates a consideration of comparative suitability of eligible workmen and such a selective process would require a consideration not only of the best performance of those eligible, but necessitates the making of a comparative estimate of their skill, sometimes of a technical nature, their personality, capacity to discharge heavier responsibilities and similar other factors…― There is nothing before the court to indicate that the claimant was promoted to the post of ASO his claim that the rank was conferred on him as a result of his achievement and performance while in service has not been substantiated to the satisfaction of this case. I find that the claimant has not established the fundamental basis of his claim and as such this suit therefore fails and so is hereby dismissed. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice E. N. Agbakoba. Judge |
