Babatunde Olawale -VS- Rufus Giwa Polytechnic & 3 Ors.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D. DAMULAK

ON THE 7^TH DAY OF FEBURARY 2020

SUIT NO: NICN/AK/18/2019

BETWEEN

BABATUNDE OLAWALE …………………………….CLAIMANT

AND

RUFUS GIWA POLYTECHNIC (OWO)
GOVERNIMG COUNCIL.

RUFUS GIWA POLYTECHNIC (OWO)

AG, RECTOR, RUFUS GIWA POLYTECHNIC
G.A OGUNDAHUNSI
AG, REGISTRAR &SECRETARY TO COUNCIL

RUFUS GIWA POLYTECHNIC

SULE ATIKU …………………………………………..DEFENDANTS

REPRESENTATION

Rotimi Olosunyi holding brief of M.O. Oghele for the Claimant.

O.I. Aladedutire for the defendant.

JUDGMENT

INTRODUCTION:

The Claimant by a General form of Complaint filed on the 23^rd April 2019 claims against the defendants the following reliefs:

An Order of Court quashing or declaring a letter dated 25/01/2019 titled RE: STAFF AUDITING-IMPLEMENTATION OF GOVERNING COUNCIL DIRECTIVES ADJUSTING OF RANK/NOMENCLATURES /SALARY which reduced the rank of the Claimant from Chief Executive Officer CONTEDISS 14 Step 3 to Principal Executive Officer on CONTEDISS 11 Step 9 as illegal, unlawful, invalid, null and void.
An Order restoring the Claimant to Chief Executive Officer CONTEDISS 14 Step 3, which is last rank of the Claimant before his voluntary retirement.

FACTS OF THE CASE.

The crux of the Claimant’s case is that he was appointed by the 1^st defendant on the 1^st October 1980 and he rose through the ranks to chief executive officer in 2015. That on the 24^th October 2018, he voluntarily retired vide a letter to the defendant. The defendant approved his retirement vide a letter dated 7/11/2018. However to his utmost dismay, he received a letter dated the 25^th January 2019 reducing his rank from Chief Executive Officer CONTEDISS 14 Step 3 to Principal Executive Officer 1 CONTEDISS 11 Step 3 which invariably has reduced his monthly pay pack as a retired staff.

CASE OF THE CLAIMANT

The Claimant testified as CW 1 in line with his pleadings as follows:

I am a former employee of the 1^st defendant, I was employed vide a letter dated 1^st October 1980 into the Services of the 1^st defendant. My appointment was confirmed vide another letter dated 11^th March 1983. I was promoted severally from Senior Clerical Officer until I was promoted to the post of Chief Executive Officer in 2015.

I wrote a letter on the 24^th October 2018 giving the defendants my notice of voluntary retirement which was approved by the 1^st defendant vide a letter dated 7^th November 2018. However, by another letter dated 25^th January 2019 titled “RE: STAFF AUDITING-IMPLEMENTATION OF GOVERNING COUNCIL DIRECTIVES, ADJUSTING OF RANK/NOMENCLATURE/SALARY the defendant specifically reduced my rank from Chief Executive Officer CONTEDISS 14 Step 13 to Principal Executive Officer 1 CONTEDISS 11 Step 12. By this letter I was demoted and this will equally reduce my monthly pay package as a retired staff of the 1^st defendant.

When I was in the service, I have never been served with any query or found guilty of any offence warranting my demotion after retirement. The action of the defendant has affected the standard of my life and that of my dependants negatively and the policy of demotion after retirement is strange and alien to the condition of service of the 1^st defendant.

The Claimant frontloaded some documents in evidence which were all admitted and marked as Exhibits OB1-OB10 as follows:

The Claimant’s letter of appointment in the 1^st defendant dated 1^st October 1980-Exhibit OB1
The Claimant’s Confirmation of Appointment dated 11^th March 1983-Exhibit OB2
Claimant’s Promotion from Senior Clerical Officer to Assistant Executive Officer –Exhibit OB3
Claimant’s Promotion from the Post of Assistant Executive Officer (Accounts) to Executive Officer (Accounts)-Exhibit OB4
Claimant’s Promotion letter to Higher Executive Officer dated 22^nd January 1996-Exhibit OB5
Claimant’s Promotion Letter to Senior Executive Officer dated 8^th December 1998-Exhibit OB6
Memo dated 5^th April 2007 titled “Adjustment in the Effective date of Year 2005 Promotion Exercise-Exhibit OB7
Affidavit of Loss of Original Letter of Promotion dated 4^th October 2019 declared to by the Claimant & Memo dated 18^th October 2015 titled Senior Staff Promotion –Exhibit OB8
Letter dated 24^th October 2018 titled “ Notice of Voluntary Retirement from the Service of Rufus Giwa Polytechnic Owo , Ondo State –Exhibit OB9
Memo dated 25^th January 2019 titled RE: Staff Auditing-Implementation of Governing Council Directives Adjustment of Rank/Nomenclature/Salary – Exhibit OB10

COURT’S DECISION.

This case was filed on 23/4/2019. It was served on the defendants and the defendants entered their memorandum of appearance on 8/5/2019.The defendants never filed any process in defence of the suit. The case was mentioned de novo before this coram on 13/11/2019 and the defendants were represented by one Tosin Akinyemi holding the brief of one Aladedutire for the defendants and the case was adjourned to 20/1/2020 for hearing on which date no counsel appeared for the defendants, no defence is filed and no letter to explain absence of counsel. The claimant was heard and this case adjourned to 7/2/2020 for judgment by reason of Order 38(2) (1) of the National Industrial Court Rules 2017.

Order 38(2) (1) of the National Industrial Court Rules 2017 provides thus:

“Where a cause fixed for hearing is called and the Claimant appears in Court but the defendant is absent in Court and has not filed any defence to the claim in accordance with these Rules, the Claimant shall be entitled to judgment as far as he can prove his case”.

The position of the law is firmly settled that where a defendant fails to file a defence, judgment may be entered against such defendant in favour of the claimant on the basis of the averment in the statement of claim which should ordinarily be taken as un-denied, See the case of MALLE V. ABUBAKAR [2007] ALL FWLR (Pt.360) 569 at 1600-1601, paras G-A (CA), MOSHOOD v. BAYERO [2001] 52 WRN 42.

The position of the law is as stated in the following cases;

In AMERICAN CYANAMID COMPANY VS VITALITY PHARMACEUTICALS LTD 1991 LEGALPEDIA SC 0YMM [1991] 2 S.C. 47 the Apex Court per Olatawura JSC held as follows;

Where the evidence of a witness has not been challenged, contradicted or shaken under cross examination and his evidence is not inadmissible in law, and the evidence led is in line with the facts pleaded, the evidence must be accepted as the correct version of what he says.

Similarly, in FIRST BANK OF NIGERIA PLC v. MR. EFOBI EFFIONG BAM (2010) LPELR-4160(CA) the court held;

‘’It is trite law as stated by the learned trial judge that where evidence of a party remains unchallenged or not contradicted, minimum evidence will suffice. See Bua vs. Dada (2003) NWLR (Pt. 838) 657; Provost Lacoed vs. Edun (2006) NWLR (Pt. 870) 476. This principle of unchallenged evidence however does not create a floodgate for every type of evidence.

To qualify for belief and reliance by a trial court, such unchallenged evidence must be credible in all circumstances and must be cogent enough to sustain the claim of the plaintiff. On this principle of unchallenged evidence, the Supreme Court stated in Baba vs. Civil Aviation (1991) (Pt.1) 7 SCNJ 1, per Nnaemeka Agu JSC at page 22 that “……Based on this principle, whenever on an issue evidence comes from one side and this is unchallenged and uncontroverted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance, unless of course it is of such quality that no reasonable tribunal should have believed it…….”
(underlining and emphasis by me).



	In IGBI V. STATE (1998) 11 NWLR (PT.574) the court of appeal per Achike JCA held as follows;

‘’ where the trial Judge finds the evidence of a witness is unchallenged or uncontradicted, and where by its very nature the evidence is not incredible, the trial court has no option but to accept it and act on it.’’

The grouse of the Claimant is as disclosed in paragraph 14 of his witness statement on oath, that after he had validly retired from the employment of the defendants vide Exhibit OB9 dated 24^th October 2018 and the defendant approved same by a letter dated 7/11/2018, the defendants issued him a letter dated 25^th January 2019 reducing his rank from Chief Executive Officer CONTEDISS 14 Step 3 to Principal Executive Officer CONTEDISS 11 Step 9. He contends that this is a clear case of demotion after retirement.

Demotion is usually part of discipline of an employee on the grounds of misconduct. There is nothing on record from the fact of this case that the claimant was being disciplined for any alleged wrong to warrant being demoted. Moreover, it is clear that the purported demotion was done in retrospect, that is, the demotion letter dated 25/1/2019 was stated to be with effect from 19^th September 2018. It is trite that “the law looks forward, not backwards” as succinctly captured in the latin maxim “Lex Prospicit Non Respicit”. Retrospective effect given to a letter by an employer under labour law is fatal and deemed unlawful, see the case of CIVIL SERVICE COMMISSION IMO STATE &ORS V. UKWEOZOR [2017] LPELR-42856, DARMA V. ECOBANK NIG.LTD [2017] LPELR-4166SC. The worst in this case is that the letter of demotion is coming after claimant’s retirement.

Therefore, having carefully considered the processes filed by the Claimant and the documents tendered in prove of his case, I find that the evidence of the claimant is unchallenged, it is admissible in law, the evidence is in line with the pleaded facts. The claimant’s evidence is credible and cogent enough to sustain the claim of the claimant and I am compelled to believe and act on his evidence.

The case of the claimant accordingly succeeds and all the claimant’s reliefs are hereby granted.

This is the Judgment of the Court and it is entered accordingly

———————————————–

HON. JUSTICE K.D.DAMULAK

JUDGE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN IN AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D. DAMULAK

ON THE 7^TH DAY OF FEBURARY 2020

SUIT NO: NICN/AK/18/2019

BETWEEN

BABATUNDE OLAWALE …………………………….CLAIMANT

AND

1.RUFUS GIWA POLYTECHNIC (OWO)

2.GOVERNIMG COUNCIL.RUFUS GIWA POLYTECHNIC (OWO)

3.AG, RECTOR, RUFUS GIWA POLYTECHNIC,

G.A OGUNDAHUNSI …………………………..DEFENDANTS

4.AG, REGISTRAR &SECRETARY TO COUNCIL,

RUFUS GIWA POLYTECHNIC, MR. SULE ATIKU

JUDGMENT ORDER

WHEREAS the Claimant by a General form of Complaint filed on the 23^rd April 2019 claims against the defendants for the following reliefs:

An Order of Court quashing or declaring a letter dated 25/01/2019 titled RE: STAFF AUDITING-IMPLEMENTATION OF GOVERNING COUNCIL DIRECTIVES ADJUSTING OF RANK/NOMENCLATURES /SALARY which reduced the rank of the Claimant from Chief Executive Officer CONTEDISS 14 Step 3 to Principal Executive Officer on CONTEDISS 11 Step 9 as illegal, unlawful, invalid, null and void.
An Order restoring the Claimant to Chief Executive Officer CONTEDISS 14 Step 3, which is last rank of the Claimant before his voluntary retirement.

AND after hearing the evidence of the claimant and M.O. Oghele Esq urging the court to enter judgment for the claimant on his evidence, it is held that the case of the claimant succeeds and it is hereby ordered as follows;

COURT ORDER

It is hereby declared that the letter dated 25/01/2019 titled RE: STAFF AUDITING-IMPLEMENTATION OF GOVERNING COUNCIL DIRECTIVES ADJUSTING OF RANK/NOMENCLATURES /SALARY which reduced the rank of the Claimant from Chief Executive Officer CONTEDISS 14 Step 3 to Principal Executive Officer on CONTEDISS 11 Step 9 is illegal, unlawful, invalid, null and void.
The Claimant is hereby restored to Chief Executive Officer CONTEDISS 14 Step 3, which is the last rank of the Claimant before his voluntary retirement.

GIVEN UNDER THE SEAL OF THE COURT AND THE HAND

OF THE HONOURABLE JUDGE, HON. JUSTICE K. D. DAMULAK THIS ^7THDAY OF FEBRUARY, 2020.

………………………………….

HON. JUSTICE K. D. DAMULAK JUDGE