IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 13TH DECEMBER, 2018
SUIT NO. NICN/BEN/09/2016
BETWEEN
PIUS .E. UFUAH …………………… CLAIMANT
AND
1. GOVERNING COUNCIL OF AMBROSE ALLI
UNIVERSITY, EKPOMA
2. AMBROSE ALLI UNIVERSITY, EKPOMA …DEFENDANTS
REPRESENTATION
P.Y. Musa with him are R.A Yinusa and A.Y Thomas for the Claimant
N.L. Omorodion for the defendants
JUDGMENT
The claimant was the Bursar of the 2nd defendant from 31st December, 2009 until November 15, 2011 when he was suspended from office through a letter dated November 15, 2011 without any rational reason. The claimant challenged the constitutionality and legality of the said suspension vide Suit No. NICN/AK/57/2012, which was heard on the merit and judgment was delivered on the 28th of March, 2014 in his favour. He wrote a letter dated 10th April, 2014 through his counsel to the Vice Chancellor of the 2nd defendant, following the refusal of the defendants to comply with the orders of the Court. He later applied for the issuance and service of Form 48 on the Principal Officers’ of the defendants, which made them recall him from suspension by a letter of 24th July, 2015. That although he was recalled, he was only paid part of his financial entitlements for the period he was on suspension which is 1st November, 2011 – 24th July, 2015. According to the claimant the breakdown of the unpaid entitlements is as follows:
SALARIES & ALLOWANCES DUE FROM NOV. 2011 – JULY, 2015 N N N
Monthly Basic 267,428.30
Peculiar Allowance218,007.00
Rent108,323.16
Responsibility Allowance62,500.00
Domestic Allowance97,376.25
Excess workload60,000.00
Gross Salaries and Allowances for one month813,634.71
Gross Salaries and Allowances for 7 months (Jan – July, 2015)5,695,443.00
Less 1/2 Basic salaries earned for the period i.e. N119,824.64 by 7838,772.00
4,856,671.00
Less balance of Tax payable for the period339,675.00
Salary and Allowances due for payment4,516,995.00
ALLOWANCES DUE FROM NOV. 2011-JUL, 2015
Fuel @ N50,000.00/month2,250,000.00
Entertainment @ N3,000.00/month135,000.00
Office Maintenance @ N5,000.00/month225,000.00
Communication Allowance @ N20,000.00/month900,000.00
Security Allowance @ N5,000.00/month225,000.003,735,000.00
SUNDRY ALLOWANCES
Electricity Bill Allowance @ N5,500.00/month for 60 months330,000.00
Wardrobe Allowance (2012-2015) @ N75,000.00 pa300,000.00
PUTME claim for Principal Officers for 4 session (2011-2014) @ N175,000.00/session700,000.00
Part-time program claims for Principal Officers for 4 sessions (2010-2014) @ N190,000.00/session760,000.00
Pre-Degree claims for Principal Officers for 4 sessions (2010-2014) @ N190,000.00/session760,000.00
Students Industrial Work Scheme (SIWES) claims for 5 sessions (2009/10/11/12/13/14) @ N95,000.00/session475,000.00
Sandwich claims 4 sessions (2010-2014) @ N190,000.00760,000.00
Salary for 3 security men withdrawn N24,344 x 32 months (December 2012 to July, 2015)2,337,024.006,422,024.00
MEETINGS OF COUNCIL & ITS COMMITTEE: ALL’CE FOR SITTING, TRANSPORT & NIGHT (WHERE APPLICABLE) – NOV 2011-JUL, 2015
Council Meetings (46 sittings) 2,465,000.00
Finance & General Purpose Committee (11 sittings)575,000.00
Tenders Board (23 sittings)1,150,000.00
Committee on Establishment Structure (12 sittings)805,000.004,995,000.00
MISCELLANEOUS ENTITLEMENTS
Furnishing for Principal Officers’ residence1,800,000.00
Gen. Set/Plant for Principal Officers’ residence560,000.00
Hire of car in lieu of official vehicle withdrawn wef Nov. 2011 (45 months)9,765,000.00
Accrued leave (Monetized) 1998, 1999, 2002, 2010-2015 1,604,569.00 14,729,569.00 34,398,589.00
TOTAL OUTSTANDING BENEFITS 34,398,589.00
That the defendants equally refused to pay his gratuity in the sum of N28,509,760.00, that upon the refusal of the defendants to pay his full financial entitlements in the sum of N34,398,589.00, he instructed his counsel to write a letter dated 19th October, 2015 to the defendants in that regard. That the failure of the defendants to respond to the letter or meet his demand necessitated the institution of this suit
The claimant finally stated that he is entitled to the official Toyota Corolla car assigned to him as Bursar as part of his retirement benefits in line with his conditions of service. That he indicated his intention to retire from the service of the defendants with effect from the 24th July, 2015, the notice which the defendants reacted to vide a letter dated 24th August, 2015. Wherefore the claimant claimed against the defendants by a General Form of Complaint dated 9th May, 2016 the following reliefs:
1. N34,398,589.00 (Thirty Four Million, Three Hundred and Ninety Eight Thousand, Five Hundred and Eighty Nine Naira) being the outstanding balance of the arrears of allowances and other entitlements due to the claimant as Bursar of Ambrose Alli University, Ekpoma from 1st November, 2011 till 24th July, 2015.
2. Interest on the aforesaid sum of N34,398,589.00 at the rate of 21% per annum from the 28th March, 2014 till the date of judgment in this suit and thereafter at 10% per annum till the entire debt is paid.
3. N28,509,760.00 (Twenty Eight Million, Five Hundred and Nine Thousand, Seven Hundred and Sixty Naira) being gratuity due and payable to the claimant by the defendants upon claimant’s retirement from the service of the defendants with effect from 24th July, 2015.
4. Interest on the aforesaid sum of N28,509,760.00 at the rate of 21% per annum from the 24th July, 2015 till the date of judgment in this suit and thereafter at 10% per annum until the entire debt is paid.
5. An Order directing the defendants to release to the claimant in a sound working condition, the claimant’s official Toyota Corolla car, which the claimant is entitled to take away as part of his retirement benefits upon claimant’s payment of the nominal value of the car.
6. A Declaration that the defendants by their failure and/or refusal to obey the judgment of this Honourable Court delivered in Suit No. NICN/AK/57/2012 on the 28th March, 2014 frustrated the claimant’s retirement from service of the defendants as Bursar with effect from the 31st December, 2014.
7. A Declaration that the claimant’s notice of voluntary retirement from the defendant’s service dated the 20th August, 2015 is valid and binding on the defendants.
8. An Order directing the defendants to pay the claimant’s pension and gratuity as retired Bursar of the 2nd defendant with effect from the 24th July, 2015.
It is the response of the defendants in their amended statement of defence filed on the 5th of June, 2018 that they have paid the full financial entitlement for the period the claimant was on suspension to him upon his recall to office, that he is not entitled to N28,509,760.00 as gratuity neither was he entitled to a Toyota Corolla car or any other car as retirement benefit. It is the contention of the defendants that the claimant’s suit is incompetent, an abuse of Court process and speculative and that no cause of action has arisen in respect of gratuity as it is not yet due for claim. They furthermore averred that upon receipt of financial allocation from the Edo State Government for payment of gratuity, payment will be made serially as there is backlog of retired staff waiting to be paid. It is stated that the claimant did not retire from the 2nd defendant at the end of his tenure as Bursar and that his position reverted back to deputy Bursar based on the 2nd defendant’s regulations. That the Court is functus officio in regard to the claimant’s claims, also that the Court lacks jurisdiction to re-litigate same as the claims have been decided by this Court in Suit No. NICN/AK/57/2012.
During trial, the claimant testified for himself as CW1 and through CW2 one Chris Adamaigbo, They adopted their sworn depositions as their evidence in the case and tendered some documents which were admitted and marked as Exhibits PE-PE11 and CM- CM2. The defendants also adopted their statement on oath deposed to by one Ojeaga Oiseomokhai Faramoluwa dated the 26th of June, 2016 as his evidence in the case.
At the close of trial, both parties filed their final written addresses in compliance with the rules of this Court. On the 5th of June, 2018, the defendants filed theirs wherein two issues were formulated for determination:
1. Whether having regards to the facts and circumstances of this case this Honourable Court has jurisdiction to entertain the case.
2. Whether on the merits the claimant has been able to establish his case and is entitled to judgment on the basis of his claims.
On issue one learned counsel to the defendants submitted that the claimant is estopped from re-litigating the issue of salaries, arrears of allowances and other entitlements due to him as Bursar since it had already been decided in his favour in the judgment of this Court delivered in Suit No. NICN/AK/57/2012 on 3rd March, 2014. They buttressed this position by the authority of Okorocha v. P.D.P [2014] 7 NWLR (Pt. 1406) 213 ratio 19. It is further contended that any other claims or issues that may be valid for the Court to decide in this suit have been contaminated, thus, the entire claim is liable to be struck out. See the case of NDIC v. Governing Council ITF [2012] 9 NWLR (Pt. 1305) 252. It is therefore their contention that this suit should be dismissed for want of jurisdiction with substantial cost.
On issue two counsel posited that the claimant claims are not supported by any document and that the Court will not award specific sum of money as salaries and allowances where such is not proved by evidence, they relied on the case of Eze v. Gov. Abia State [2014] 14 NWLR (Pt. 1426) SC 192 P. 215 para E. That if claim 1 fails, relief 2 being ancillary to it, must fail. As per claim 3, it is argued that the claimant did not retire from the 2nd defendant as Bursar at the end of his tenure, which automatically revert him to his previous position having not spent his mandatory retirement age. (Exhibit P.E. 10″). Moreso, that the claimant did not comply with Order 3 Rule 12(1) of National Industrial Court of Nigeria Rules 2017, as such, it is submitted that cause of action has not arisen in respect of claim 3. That if claim 3, claim 4 being ancillary to, it must also fail. Claims 6 and 7 were described as declaratory reliefs which the claimant must prove his entitlements to with credible evidence and not by conjecture as reliance was placed on the case of Nwaogu v. Atuma [2013] 11 NWLR (Pt. 1364) 117, ratio 10.
On the whole, defendants submitted that the entire claims of the claimant must fail for his failure to tender in evidence his letter of appointment as Bursar and Condition of service of the defendants as captured in the University’s regulations and scheme governing the service of Senior Staff as approved on October 26, 2010. They equally urged the Court to dismiss this case for lacking in merit.
The claimant in response, raised two issues for determination in his final written address filed on 30th July, 2018:
1. Whether having regard to the ruling of this Court delivered on 14th March, 2017 the Court is not functus officio with respect to the issue of the claimant’s suit being allegedly caught by the principle of res judicata.
2. Whether having regard to the settled pleadings and evidence adduced by the parties, the claimant has not proved his claim on the preponderance of evidence and therefore entitled to the reliefs claimed from the Court.
In addressing issue one, counsel placing reliance on the case of Economic & Financial Crimes Commission v. Barrister Yakubu Mohammed Naallah & Ors [2016] LPELR – 41326 at pg 14-15 paras B-D among others, argued that the Court is functus officio with respect to the defendants’ erroneous contention that claimant’s suit is caught by the doctrine of res judicata, as the Court has in a ruling dated 14th of March, 2017 dismissed the defendants’ application in that regard. He then posited that the only remedy is for the defendants to appeal against same. He also stated that the defendants’ argument that this suit is contaminated with bad claim is totally misconceived and untenable.
On issue two, counsel posited that the defendants’ contention that his full entitlements upon his recall from suspension have been paid to him, ought to be discountenanced as they failed to discharge the legal burden on them since a party who affirms the positive has the burden to prove same. See Ogah v. Ikpeazu & Ors [2017] LPELR – 42372 SC. He went on to state that he is not required by law to prove his case beyond all reasonable doubt, being a civil case. Again, that the defendants’ argument that his claim is speculative is untenable, misconceived and bereft of substance. It also the submission of the claimant that the defendants cannot be allowed to benefit from their own wrong doing by failing to comply with a judgment of the Court, which they did not appeal against. Consequently, he urged the Court to hold that his retirement as Bursar of the 2nd defendant is with effect from 24th July, 2015, being the date the defendants complied with the judgment of the Court of 3rd March, 2014. Also, that the defendants ought to show a contrary figure of claimant’s gratuity if they are to dispute the one computed by the claimant, this position is supported by the authority of Onwujuba & Ors v. Obunu & Ors (1991) LPELR-2717 SC 11-12 at paras E-C. Based on this, claimant urged the Court to hold that his claim for gratuity having retired as Bursar is unassailable. See the case of A.I.B Ltd v. I.D.S Ltd (2012) 17 NWLR (Pt. 1328) 1 at 50, it is the position of the claimant that he is entitled to both his claims for pre-judgment and post-judgment interest and urged the Court to so hold.
The claimant further urged the Court to hold that the notification of his intention to retire as Bursar of the 2nd defendant effective from 24th July, 2015 is perfectly in order.
After a careful consideration of all the processes on record; the documents tendered in evidence as well as the oral evidence of the witnesses and written submissions of counsel, it is my humble view that the sole issue that would best determine this case is –
Whether or not the claimant has proven his case as to entitle him to the reliefs sought?
The claimant’s grievance for which he took out this suit is that by the judgment of this Court dated 3rd of March, 2014, which ordered for his reinstatement, he was reinstated by the defendants on the 24th of July, 2015, after series of correspondence from his counsel. He stated that upon reinstatement on the 24th of July, 2015, he indicated his intention to retire from the services of the 2nd defendant on the 20th of August, 2015, that he was partly paid the arrears of allowances and other entitlement due to him as a Bursar of the 2nd defendant in the sum of N34, 398,589 (Thirty Four Million, Three Hundred and Ninety Eight Thousand Naira, Five Hundred and Eighty Nine Naira). He also stated that he is entitled to the sum of N28, 509,760.00 (Twenty Eight Million, Five Hundred and Nine Thousand, Seven Hundred and Sixty Naira). The defendants on the other hand reacted that the claimant is not entitled to the sum he claims. They also averred that the claimant did not retire as a Bursar as he was not cleared from the institution as a retired Bursar. That if a staff is appointed to a tenured position and he retires at the end of that tenured position, he will be entitled to the entitlement of the office and if not then he reverts back to his erstwhile position prior to being in the tenured position. They further stated that the Court is functus officio in this regard as the claims have been decided in Suit No NICN/AK/57/2012.
It is clear that parties are not in contradistinction with regards to the nature of employment of the claimant as the sole grouse of the parties in this suit are with respect to the claims of the claimant and his retirement therein and not with his employment. It is the defendants’ claims that this Court is functus officio as the claims before the Court has been litigated in Suit No NICN/AK/57/2012 and in response the claimant finds this assertion erroneous and misconceived. The Term functus officio by Black’s Law Dictionary 9th Edition edited by Byran A. Garner at page 743 defines the term functus officio as having performed his or her office without further authority or legal competence because the duties and functions of the original commission have been fully accomplished. This term means that when a Court has fully decided on a matter, it cannot go back to relitigate thereon as to do so will amount to sitting on appeal over a decided matter. See the cases of Ecotrade Ltd v. Alhaji (Chief) Sikiru Alabi Macfoy & Anor [2015] LER [2015] CA/L/199/2008; Agbaso v. Ohakim [2011] LPELR-8812CA. This principle is hinged on the fact that there must be an end to litigation also known as Res judicata. A keen perusal of the claims in this instant suit and that of Suit No NICN/AK/57/2012 delivered on the 3rd of March, 2014 reveals that they are unlikely to attract the principle of functus officio/res judicata and I say so in view of the fact that the claims in the judgment dated the 3rd of March, 2014 was premised on the claimant unlawful suspension and in this suit, his reliefs are predicated upon his claims for his outstanding and unpaid salaries and allowance from the period he was suspended till 24th July, 2015 when he was reinstated and his gratuity upon his retirement which are two distinct claims and not the same as the defendants would want the Court to believe little wonder the defendants on the 14th of March, 2017 withdrew their preliminary objection dated 13th of March, 2017 on the issue of functus officio. It is germane to state also that the claimant’s claims are within the exclusive jurisdiction of this Court to entertain as per Section 254C (1)(k) of the 1999 Constitution as amended. It is thus on this premise that I find that this Court is not funtus officio and discountenance the argument of the defendants in this regards,
With regards to the averment of the defendants on the issue of retirement, it is the claimant’s argument that sequel to his reinstatement on the 24th of July, 2015, he validly retired vide a letter dated 20th of August, 2015 with effect from the 24th of July, 2015 when he was recalled into his office. In prove of same he tendered exhibit PE11 (his letter of retirement) and by a careful look at the same exhibit PE11, the defendants replied his letter of retirement dated 24th of August, 2015, the content of which I reproduce hereunder thus-
“………
Date 24th of August, 2015
OUR REF:REG/SSA/P.150/277
Mr. P.E Ufuah
u.f.s The Vice Chancellor,
Ambrose Alli University,
Ekpoma
Dear Mr. Ufuah,
VOLUNTARY RETIREMENT FROM THE SERVICE OF AMBROSE ALLI UNVERISITY, EKPOMA
I refer to your letter dated 20th August, 2015 on the above subject in which you informed the Pro Chancellor and Chairmen of Council of your intention to retire from the service of Ambrose Alli University, Ekpoma with effect from 24th of July, 2015.
In view of the above, I am directed by the Pro Chancellor and Chairman of Council to inform you that the Statutory date of the end of your Service as Bursar in Ambrose Alli University is with effect from 31st December, 2014
F.A Ojo- Maliki, MNIM, MANUPA
Senior Deputy Registrar
(General Duties)”
In the case of NSRMEA v. ISSSAN [2011] 23 NLLR (Pt. 64) 120 NIC P.156. The term retirement means bringing the service of an employee to an end. Retirement could be mandatory, compulsory or voluntary. Mandatory retirement is when an employee in the Public/civil Service of the Federation/State has attained the requisite age or years of service in service of the Federation/State. Compulsory retirement connotes when an employee’s employment is brought to an end prematurely by his employer as a measure of punishment. Voluntary retirement is a retirement done willingly by the employee. It is settled position of law in the world of work that parties to a contract may choose to determine the relationship by given notice as prescribed by its terms of contract. It is the law of common that every employee has the right to resign/retire from his appointment whenever he so desires and this takes effect when same is communicated or received by the employer even when the employer does not expressly accept it. There is also no need for the employer to reply to the letter of retirement before it becomes effective. In the English case of Horwood v. Lincoinshire County Council [2012] UKEAT 0462/11. It was held in that case that the effective date of termination of employment of Ms. Horwood was the date it was communicated to her employer i.e. the date they received same. In the Nigerian case of WAEC v. Oshionebo, [2006] 12 NWLR (pt. 1994) 258 CA, the Court of Appeal made a distinction between resignation and retirement and held in that case that a notice of resignation is effective not from the date of the letter but on the date it was received. That tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. While giving a notice of retirement carries with it the right to be paid a pension or gratuity, but does not confer the right to withdraw from the service immediately and automatically. It is also the position of the Court of appeal as decided in the case of OSU v. P.A.N. Ltd [2001] 13 NWLR (PT. 731) 627CA, that-
”Where an employee is required by his contract to give a notice of retirement and he complies, the notice of retirement will appropriately expire at the stipulated periods regardless of directives from the employer that the employee should stop work before the due date stipulated. Thus such an employee remains a staff of the employer up to and including the last day when the notice would have properly expired’.
See also the case of by O.S.H.C. v. Shittu [1994] 1 NWLR, PT 321, P 476 CA
The claimant upon his reinstatement on the 24th of July, 2015 signified an intention to retire by a letter dated 20th of August, 2015 of which the defendant vide a letter dated 24th of August, 2015 informed him that the Statutory date of the end of his Service as Bursar in Ambrose Alli University is with effect from 31st December, 2014. The defendants in their argument stated that the claimant did not retire as a Bursar as he did not retire at the end of his tenure as a Bursar on the 30th of December, 2014 hence his position was reverted back to deputy bursar, the appointment he occupied prior to his appointment as a Bursar. It is the established position of law that the burden of proof lies on the party who will fail in the case where no evidence is given, and when he fails to prove, he cannot be entitled to judgment as civil cases are decided on preponderance of evidence. See Section 131 of the Evidence Act, 2011; See the cases of Fabian Tommy Osukpong & 3 ors v Raymond Etukudo Eduoika & Anor [2016] 1 NWLR (Pt. 1493) 329; N.N.P.C v Lutin Investments [2006] 1SC (Pt III) 49, [2006] 2 NWLR (Pt.965) 506. It is pertinent to state that the defendants have failed to adduce in evidence that the claimant did not retire as a Bursar. It is noteworthy that he was appointed vide a letter dated December, 15th 2009 to the position of the 2nd defendant’s Bursar with effect from 31st of December, 2009 for a term of five years, on the 15th of November, 2011 he was unlawfully suspended and subsequently reinstated on the 24th of July, 2015 by the order of Court vide a judgment delivered on the 3rd of March, 2014. It is the law that when the termination/suspension of an employment with statutory flavour has been declared unlawful, the effect is as if the employee never left the said employment and as such the employee is expected to be reinstated back into his position that is to status quo ante bellum. See the cases of Bassey v. Akwa Ibom & Ors [2016] LPELR-41244, Effiong V. Ebong [2006] 18 NWLR (Pt. 1010) 109 CA. The implication of this is that sequel to the suspension of the claimant been adjudged unlawful, the claimant never left the employment of the defendants hence his reinstatement and therefore there was no break in his employment he is deemed to be in the employment of the defendants from when he was appointed till when he retired and counting thereon, it is a period of five (5) years and seven months. The defendants in recognition of the due expiration of claimant’s tenure, issued him exhibit PE 10 and PE11 intimating him that his tenure as a Bursar has statutorily elapsed and to that end he has an option to retire voluntarily as a Bursar or revert back to the system. He was also informed that the due date of the statutory expiration of his office is the 31st of December, 2014. The defendants in this suit are blowing hot and cold differently put they are approbating and reprobating and this act, the law precludes them from doing. See the cases of Ajayi v. Texaco Nigeria Ltd. (1987) 3 NWLR (Pt.62)577; Alaribe v Okwuonu [2016] 1 NWLR (Pt. 1492) 41 CA. It is obvious on record that the claimant did not retire as an Acting Bursar, but I find in the circumstances of this case that the claimant retired as the Bursar of the university on the 24th July 2015, the date he was reinstated back to his position as Bursar of the University. This is so in view of the defendants’ unlawful suspension of the claimant and his reinstatement which did ate into his tenured date. Ditto the fact that the defendants’ gave him an option to retire and he did take that option and thus retired. I so find and hold.
It is the claimant’s contention that he is entitled to the sum of N34, 398,589.00 (Thirty Four Million, Three Hundred and Ninety Eight Thousand, Five Hundred and Eighty Nine Naira) being the outstanding balance of the arrears of allowances and other entitlements due to him as Bursar of Ambrose Alli University, Ekpoma from 1st November, 2011 till 24th July, 2015. Defence counsel in response posited that they have paid the full financial entitlement for the period the claimant was on suspension to him upon his recall to office. They also posited that the claims are not supported by any document and thus the Court will not award specific sum of money as salaries and allowances where such is not proved by evidence. It is the law that he who asserts must prove the existence of his assertion to the satisfaction of the Court and with credible evidence in support thereof as the burden of proof lies on the party that will fail where evidence is not tendered therein. See Section 135-137 of the Evidence Act, 2011 and the cases of Geneva v Afribank Nig Plc [2013] LPELR 20662 SC; Onah v Okenwa & Ors [2010] LPELR 4781 CA; Ojo v ABT Associates Incorporated & Anor [2014] LPELR 22860 CA. From the record of Court, the claimant tendered exhibit PE6 ‘Annexure A’ which is a letter dated 19th of October, 2015 and written by the claimant’s counsel informing the defendants of the breakdown of their debts to the claimant and also exhibit CM2. A perusal of Exhibit CM2 dated 22nd March, 2012 discloses that the documents is on the approved new entitlements/allowances for Council members and other principal officers of the University which includes the claimant with effect from 30th of March, 2012. Also a careful scrutiny of the document Exhibit PE6 Annexure A discloses that the claimant claim is broken down into; (a). Salaries and allowances from (January 2015 – Jul 2015) in the sum of N4,516,995.00, (bi). Allowances due from Nov, 2011- Jul 2015 in the sum of N3, 735,000, (bii) Sundry Allowances in the sum of N6,422,024.00, (c) Meetings of Council & its Committees: Allowances for sitting, Transport, & Night (Where Applicable)-Nov 2011- Jul 2015 N4,995,000, Miscellaneous Entitlements in the sum of N14,729,569.00.
With regards to the claimant’s claims on his Salaries and allowances from (January 2015 – Jul 2015) in the sum of N4,516,995.00, it is clear on record that there is nothing on record to substantiate the assertion of claimant that he is entitled to the sum of N4,516,995.00. The claimant failed to tender his statement of account or payslip or any statutory documents to substantiate his claim in the said sum and the Court cannot embark on a voyage of discovery to fish for evidence to support the claims of parties where they fail to adduce same in evidence. It is equally trite that the failure to support pleadings with evidence goes to no issue as averments in pleadings are facts as perceived by the party relying on them. There must be oral or /and documentary evidence to evince that the facts pleaded are true. Consequently, pleadings without evidence to support it are worthless. See the cases of Magnus & Anor v Okpoto & ors [2018] LPELR 45618 CA; Ugwuani v Okeke & Anor [2017] LPELR 42735 CA; FCMB v Registered Trustee of Moses Salihu ABU Foundation [2018] LPELR 45160 CA. It is therefore on this basis that I find and hold that the failure of the claimant to adduce real/cogent evidence to show the fact that the defendants are indebted to him in the sum of N4,516,995.00 Salaries and allowances from (January 2015 – Jul 2015) goes to no issue and thus fail.
It is the claimant’s contention also that he is entitled to the sum of N3, 735,000 and N6,422,024.00 as Allowances due from Nov, 2011- Jul 2015 and Sundry Allowances. There is equally nothing before this Court evincing that he is so entitled to the total sum as claimed however, a careful examination of Exhibit CM2 reveals that the claimant is entitled to Communication Allowances at N20,000 per month and there is nothing to the contrary to show that he was paid the said sum. It is crystal clear that the claimant was suspended from November, 2011 till 24th of July, 2015 when he was recalled back by the defendants that is a period of three (3) years and 9 months or a period of 45 months, hence the sum of N20,000 multiplied by 45 months will give the total sum of N900,000.00 as claimed. It is on this basis that I find that the claimant is entitled to the sum of N900,000 as his Communication allowances from Nov, 2011- Jul 2015. I so hold. With respect to claimant’s claim on his wardrobe allowance from 2012 to 2015 an examination into exhibit CM2 reveals that he is entitled to the said allowance in the sum of N75, 000 Per annum. It is trite that where pleadings are supported by cogent and credible evidence it is meant to be believed by the Court and it is premised upon this principle that I find and hold that the claimant is entitled to the sum of N300,000 as his wardrobe allowance from 2012 to 2015 at the sum of N75,000 per annum.
With regards to the claimant claims in the sum of N4,995,000 as Meetings of Council & its Committees: Allowance for sitting, Transport, & Night (Where Applicable)Nov 2011- Jul 2015 and N14,729,569.00 as Miscellaneous Entitlements. I will reiterate the principle of law that he who asserts must prove with substantial evidence the existence of his assertion. There is no iota of evidence on record to prove that the claimant is entitled to the Miscellaneous Entitlement in the sum claimed however, a careful scrutiny of exhibit CM2 reveals that the claimant is entitled to the sum of N40,000 per sitting. Now the germane question to ask is has the claimant proven that he is entitled to the 46 sittings as claimed? This question is paramount in view of the fact that there is nothing on record showing credibly that the defendants while the claimant was unlawfully suspended had it Council meetings 46 times to entitled the claimant to the sum claimed. And or that he sat at the Council’s meeting 46 times for him to be entitled to the allowance. The claimant therefore has failed to prove his claim in this regard and thus same must fail. It is in consequent of this that I find that claimant claims in the sum of N4,995,000 as Meetings of Council & its Committees: Allowance for sitting, Transport, & Night (Where Applicable) November 2011- Jul 2015 and N14,729,569.00 as Miscellaneous Entitlements fail. I so hold.
It is the contention of the claimant that he is entitled to the sum of N28,509,760.00 (Twenty Eight Million, Five Hundred and Nine Thousand, Seven Hundred and Sixty Naira) being gratuity due and payable to him by the defendants upon claimant’s retirement from the service of the defendants with effect from 24th July, 2015. The defendants on the other hand stated that the claimant did not comply with Order 3 Rule 12(1) of National Industrial Court of Nigeria Rules 2017, as such, it is submitted that cause of action has not arisen in respect of claim 3. I have held supra that the claimant’s retirement is with effect from 24th of July 2015. The law is trite that an employee, who lawfully retires from his employment, would be entitled to be paid gratuity and pension. It is also pertinent to state that the right of employee in the Public Service to receive pension and gratuity is Constitutionally guaranteed hence, the provision of any rules or law shall not fetter with such a right as provided for in the 1999 Constitution as amended, this is as stated by Section 1 (3) of the 1999 Constitution as amended, which entrenched the supremacy of the Constitution above all laws/Rules in the land. It is in the light of this that I find that the right of the claimant to ventilate his grievance in Court by virtue of Section 6(6)(b) of the Constitution as amended and Section 254C(1)(K) cannot be foreclosed by Order 3 Rule 12(1) of the rules of this Court 2017 which is subsidiary and inconsistence with the cited provisions of the Constitution. It is to that extent that I find that the claimant’s claims before this Court are competent and thus dismiss the argument of counsel in this regard. I so find and hold.
It is germane to state that pension/gratuities are monies earned by an employee and they are likened to human rights which is constitutionally guaranteed by Section 210(1) and (2) of the 1999 Constitution as amended. It is a right that cannot be withheld under any circumstance or altered to his detriment. It is therefore, inhumane for a retiree or pensioner to be denied his gratuity and pension when he ought to enjoy same and when he ought to be enjoying the fruits of his labour. Sectionn 210 is captured for ease of reference thus-
“Subject to the provisions of subsection (2) of this section, the right of a person in the public service of a state to receive pension or gratuity shall be regulated by law.
(2) Any benefits to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent permissible under any law, including the code of conduct.”
See the cases of Popoola v Attorney General of Kwara State [2011] LPELR 3608CA; CBN v Amao [2010] 5-7SC (Pt 1) P. 25-26.
It is apparent from the above that the claimant having lawfully retired is entitled to his gratuity and pension and it cannot be withheld by the defendants under any guise or tactics. Moreso, when the defendants have admitted that the claimant is entitled to same. It is therefore not in contention. Since the law is that payment of gratuity and pension becomes due upon retirement, the claimant is therefore to be paid his pension and gratuity forthwith. I so find and hold.
With regards to the claimant’s contention that he is entitled to take away his official Toyota Corolla car, as part of his retirement benefits upon the payment of the nominal value of the car. The claimant in his final written address at paragraph 4.44 stated that this claim has been overtaken by events as the defendants have since released the official vehicle to him upon payment of the book value for the vehicle. The defendants corroborating claimant’s assertion under cross-examination asserted through DW1 that on the 9th of April, 2018 the 1st defendant has written a letter to the claimant to pay the book value and collect his car. It is trite that admitted fact needs no further proof. It is consequent upon this that I let go the claim of the claimant as same has been settled by parties. I so find and hold.
Claimant also claims Interest on the aforesaid sum of N34,398,589.00 at the rate of 21% per annum from the 28th March, 2014 till the date of judgment in this suit and thereafter at 10% per annum till the entire debt is paid and the sum of N28,509,760.00 at the rate of 21% per annum from the 24th July, 2015 till the date of judgment in this suit and thereafter at 10% per annum until the entire debt is paid. With regards to claimant claim on prejudgment interest, the rules of the Court is that the Court at the time of delivering a judgment or making an order may direct the time within which payment is to be made or other act is to be done and may order interest at the rate not less than 10% per annum to be paid upon any judgment. The import of this is that a claimant cannot ask for prejudgment interest. The Court can only award interest on judgment as from the date of judgment. See Order 47 Rule 7 of the National Industrial Court Rules, 2017. It is in this vein that I discountenance with his claims for pre judgment interest.
In summary, the claimant’s claims succeed in part and for the avoidance of doubt it is declared and ordered as follows-
That this Court is not functus officio by the judgment in Suit No NICN/AK/57/2012 delivered on the 3rd of March, 2014.
That the claimant lawfully retired on the 24th of July, 2015 as Bursar of the 2nd defendant.
That the claimant claim in the sum of N34,398,589.00 (Thirty Four Million, Three Hundred and Ninety Eight Thousand, Five Hundred and Eighty Nine Naira) partly succeeds as stated hereunder.
a. That the claimant is entitled to the sum of N900,000 as Communication allowance from the period of November, 2011 to July, 2015
b. That the claimant is entitled to the sum of N300,000 as his ward robe allowance from the period of 2012 to 2015.
That the claimant is entitled to his gratuity and pension in the sum N28, 509,760.00 (Twenty Eight Million, Five Hundred and Nine Thousand, Seven Hundred and Sixty Naira).
That the claimant is entitled to the release of his official Toyota Corolla car upon the payment of the nominal value of the car. ( Same already released to him)
That claimant claims on pre-judgment interest fails.
All judgment sum is to be paid within two months of this judgment, failing which it shall attract an annual interest of 10% of the total judgment sum.
Judgment is accordingly entered.
Hon. Justice Oyewumi Oyebiola O.
Presiding Judge
