National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

20^TH DAY OF AUGUST, 2024

SUIT NO: NICN/CA/01/2019

BETWEEN:-

MR. ESHIET ETIM EKPENYONG …………………………………………………………………. CLAIMANT

AND:

CROSS RIVER BASIN DEV. AUTHORITY ……………………………………………………. DEFENDANT

JUDGMENT

1. The Claimant commenced this suit via a general form of Complaint dated 14/1/2019 and filed on the same date. With the leave of court the claimant amended his originating processes commencing this suit. on 9/5/2023 leave was granted to the claimant to further amend his originating processes commencing this suit. Vide paragraph 34 of the further amended statement of facts, the claimant claims against the defendant as follows:-

1. A declaration that the Claimant was an employee staff of the Cross River Basin Development Authority having been lawfully employed by the Defendant on the 1/2/1984 and his employment duly confirmed on the 1/2/1986 vide his letters of appointment and confirmation issued to the Claimant on the 25^th March 1985 and 5^th October 1987 respectively, until he retired from the Service on 1/2/2019.

2. A Declaration that the suspension of the Claimant from duty by the Defendant (CRB) on the 10/12/2010 without pay was wrongful and malicious, based on suspicion the Claimant having been found not guilty of the alleged offence of misappropriation of the sum of N8,446, 148.38 and was discharged and acquitted vide the Ruling of the Chief Magistrate’s Court of Cross River State of the 13^th day of August , 2018.

3. A Declaration that the Charge No. MC/497C/2012 leveled against the Claimant by the Commissioner of Police on the request and on instruction of the Cross River Basin Development Authority was wrongful and malicious, the said Defendant having failed woefully to prove a case of misappropriation of the sum of N8,446,148. 38 against the Claimant as the Claimant was exonerated and accordingly discharged and acquitted by a court of competent jurisdiction.

4. …………………………..

5. A Declaration that the Claimant is entitled to all his unpaid salaries, allowances, leave allowances and all other benefits due to him from 2010 withheld by the Cross River Basin Development Authority till when the Claimant retired from service.

6. A declaration that the Claimant is entitled to three (3) promotions like his counterparts, Mrs Atim Etim Okokon and Mr. Samuel Daniel Iduot, who were the same rank with the Claimant as Higher Executive Officers on Salary Grade Level 12 as they were promoted three (3) times during the period the Claimant was on suspension.

7. A declaration that the Claimant is entitled to be promoted to be on Salary Grade Level 12and on the same step with his colleagues so as to be on equal rank as his counterparts in the employment of the Defendant, Cross River Basin Development Authority, and to be paid all the promotion arrears due to him.

8. A Declaration that the Defendant in this complaint has over the years subjected the claimant to untold hardship, mental torture and psychological trauma for having wrongfully suspended the claimant since 2010 and intentionally refusing to recall the claimant from suspension after the claimant had written and notified the defendant of the outcome of the proceedings in Charge MC/497C/2012 in his letter of 16/10/2018.

9. An order that the sum of N3,469,500.00 based on Claimant’s monthly salary of N3,469,500.00 withheld by the Defendant for the period of 97 months and 21 days from the 11^th day of December, 2010 to 31^st January, 2019 be paid to the Claimant by the Defendant.

10. An order that the Defendant pays 21% interest on the sum of N3,469,500.00 to the Claimant from 2011 till the time when the Claimant is paid off the sum in view of the fact that the Defendant has been keeping the said N3,469,500.00 and trading with it to the detriment of the Claimant.

11. An Order that the defendant should work out Claimant’s annual salary increments (incremental rate) from 2011 to 2019, period of 97 years and pay him with 21% interest.

12. An Order restraining the Defendant or its agents or servants or management of the Defendant from ejecting the Claimant from his occupied official/employees quarter on his retirement until all his (claimant) entitlements are paid.

13. An Order that the Defendant includes the name of the Claimant in the list of next batch of her retirees for retirees workshop and image capturing to enable Claimant receive his pension and gratuity.

14. The sum of N50,000,000.00 ( Fifty million Naira) only as general damages against the Defendant for the financial embarrassment, untold hardship mental torture, and psychological trauma caused to the claimant and his family since 2010 till date as a result of the Defendant’s wrongful act of suspending the Claimant from duty.

15. The sum of N1,000,000.00 ( One million Naira only) as cost of action.

2. Upon being served with the originating processes commencing this suit, the defendant filed its statement of defence. The statement of defence was amended and further amended. In the further amended statement of defence the defendant counter claim against the claimant defendant to counter claim as follows:-

3. The sum of N8,446,148.38 which has been lost to the defendant since May, 2011 and interest on the above sum at the rate of 10% per amount from the judgment till payment.

4. An order for the claimant to vacate official quarter which was allocated the claimant due to his employment which tenure has expired on February, 2019 upon his attainment of 35 years of service.

5. The trial of this matter commenced de novo with the claimant testifying on 8/11/21, as CW1. CW1 after identifying his two witness statements on oath adopted same as his evidence n this suit. Documents were tendered in evidence through CW1 which were admitted and marked as exhibits A to O. After his cross examination CW1 was discharged. However, CW1 was recalled where he adopted his further amended witness statement on oath, exhibits O, and P, were also tendered through him. He was cross examined thereafter he was discharged.

6. On 22/6/2022, the Defendant called one Etoro Abasi Ibana, an Assistant Director with the defendant, who testified as DW1 in the defence of the defendant. The witness after identifying his witness statement on oath, adopted same as his evidence in this case. DW1 was also recalled and adopted his further amended witness statement on oath.

THE CASE OF THE CLAIMNT:

7. The claimant was employed by the defendant on 1/2/1984, as a messenger on salary GL 2/1. The pensionable appointment of the claimant was confirmed vide letter dated 5/10/1987. The claimant rose to become Higher Executive officer GL 08, with effect from 1/1/2008. In 2009, the defendant deployed the claimant to Finance Department as Revenue Cashier. As Revenue Cashier the claimant’s duty was to collect money for the defendant, record same in cash book and to lodge same at designated bank account. On 4/1/2010 an audit of cash office inspection/audit conducted by Assistant Chief Internal auditor alleged shortage of cash to the tune of N8,224,706.28. Another audit of 4/5/2010 revealed shortage of N9,051,548.38. Consequently, the defendant wrote to the commissioner of police for investigation and possible prosecution of the claimant. The claimant was also on 10/12/2010 suspended without pay.

8. The claimant was charged to court for misappropriation and stealing the defendant money to the tune of N8,446,148.38 (Eight Million Four Hundred and Forty Six Thousand One Hundred and Forty Eight Naira Thirty Eight Kobo), in charge No. MC/497C/2012. At the end of the prosecution that lasted for seven years, the claimant was discharged and acquitted upon no case submission. Vide letter dated 4/10/2018, the counsel for the claimant wrote to the defendant requesting recall of the claimant from suspension and payment of his salaries. The claimant also vide letter dated 16/10/2018, wrote to the defendant pleading for his recall from suspension. On 25/10/2018 he applied for approval of his retirement leave, but till date defendant has refused to look at it. The claimant having made effort to have his rights restored without success, on 27/11/2018, his Solicitors served the defendant notice of intention to sue. On 30/11/2018, the defendant replied stating that they are looking at the case of the claimant.

THE CASE OF THE DEFENDANT:

9. The defendant admitted claimant being its employee, as Revenue Cashier. However, audit reports by the Defendant’s Assistant Chief auditor, via Exhibits F and F2, titled Cash Office Inspection Report, dated 4^th January 2010 and 4^th May 2010, revealed that the claimant was unable to account for funds that had come to his custody to the tune of N9,051,548.38 (Nine Million Fifth One Thousand Five Hundred and Forty Eight Naira, Thirty Eight Kobo). Upon being served with the Audit report, titled, Cash Office Inspection Report, the claimant made some effort to account for the funds partially to the tune of N605,400.00 (Six Hundred and Five Thousand Four Hundred Naira), but was unable to account balance of all the cash to the tune of N8,446,148.38 which he received into his custody in his official capacity on his schedule of duty.

10. The Claimant was issued with a query. The Claimant’s reply to the query was unsatisfactory as his effort to account for the sum found outstanding did not completely explained all the sum revealed as shortage, as his account left sum of N8,446,148.38 unaccounted for. The Defendant in accordance with the Public Service Rule, 030406, 2008 Edition, Federal Republic of Nigeria Gazette, No. 57, Vol.96, suspended the Claimant from work indefinitely and without pay, while investigation continued. The claimant also appeared before Management Disciplinary Committee of the Defendant to defend himself.

11. The Defendant suspecting a possible criminal situation reported the matter to the Commissioner of Police, who carried out their investigation and on their own filed a criminal complaint of misappropriation and stealing against the Claimant on 10/08/2016 and prosecuted him. Upon a no case submission, which was upheld in the matter, the Claimant was discharged and acquitted.

12. The Claimant wrote to the Defendant on 16/10/2018 and forwarded the Judgment of the Court to the Defendant and demanded to be reinstated. Through his Lawyer he further communicated with the Defendant. The Defendant responded and intimated him that the matter was being looked into, as the Defendant was also awaiting the report from the State Counsel from the Ministry of Justice that took over the prosecution of the matter from the C.O.P, to be briefed as to their consideration of the matter and advice the Defendant.

13. In the interval, the Claimant’s end of service terminal point approached, and on 25/10/2018 the Claimant wrote to the Defendant conveying the fact that his service will reach 35 years on or about 1^st February 2019, and his retirement leave is to take effect from 1^st November, 2018 to 1^st February, 2019. His Counsel wrote to the Defendant on 27^th November, 2018 giving Notice of Intention to sue. This was responded to by the Defendant, vide letter dated 30/11/2018, Exhibit N. Without awaiting the consideration and response of the Defendant, the Claimant soon proceeded to filing this action on the 14^th January 2019. The Defendant also filed a defence and Counter claim against the Claimant. The above processes have been amended.

THE SUBMISSION OF THE DEFENDANT:

14. Bassey Enem, Esq; counsel for the defendant in oral adumbration informed the court that he is relying on the final written address and reply on points of law as his argument in this matter. In the final written address twin issues were formulated for determination. They are:-

1. Whether the Claimant has proved his case and entitled to the Reliefs/ declarations sought.

2. Whether the Defendant is entitled to the Counter Claim in the sum of N8,446,146.38 against the Claimant.

15. The broadly formulated twin issues were argued based on sub-issues arising from the specific reliefs and declarations sought by the Claimant, as set out in the Statement of facts. The sub-issues are:-

1. Whether the suspension of the Claimant was wrongful by virtue of the fact that the Claimant was subsequently discharged and acquitted of criminal charges by the Court for misappropriating/stealing the sum involved.

2. Whether the charge leveled against the Claimant was wrongful and malicious.

3. Whether the Claimant has proved and is entitled to the order for payment of N3,469, 500. 00 said to be monthly salaries at rate of N35,000.00 withheld from December, 2010 to January, 2019 (8 years and 2 months), leave allowance, and other benefits till he retires and interest of 21% over the said sum.

4. Whether the Claimant is entitled to three (3) promotion up to level 12, the level claimed was attained by his colleagues as at the time of the suspension and be paid all promotion arrears and also annual salary increments from 2011 till 2019 ( a period of 9 years, with interest at rate of 21%.

5. Whether the Claimant is entitled to retain his service accommodation after the end of his service.

6. Whether the Claimant is entitled to N50 million Naira general damages for finical embarrassment, untold hard-ship, mental tortured and psychological trauma allegedly caused by the Claimant for wrongful suspension.

7. Whether the Claimant has proved and is entitled to the claim for N1m cost of the action claimed.

8. Whether the Defendant is entitled to the Counter Claim for the sum of money the Claimant could not account for resulting in a loss to the Defendant.

ARGUMENT OF ISSUES:

Issues 1 & 2:

16. Counsel argued issues 1 & 2 together. It is the submission of counsel that the suspension of the claimant which was done through exhibit G, followed due process and was proper, devoid of any malice whatsoever. It was not wrongful at all. The fact that the Claimant was subsequently discharge and acquitted of the criminal prosecution, does not make the claimant’s suspension wrongful or malicious.

17. Counsel further submitted that the claimant, a Revenue Cashier with the defendant, whose duty it was to collect revenue/monies from persons, record same and also deposit them into designated accounts of the defendant was upon being audited found wanting. Counsel refers to Further Amended Statement of Defence and Further Amended Written Statement on Oath of the DW1 (paragraphs 4, 6, 8, 10, 11, 12, 13, 20). The Audit reports (Cash Office Inspection Reports, of 4/1/2010 and 4/5/2010) tendered in evidence as exhibits F and F1. Counsel posited, it is interesting to note that the Claimant himself kept the Cash Book Records on which the said audit was conducted. He has not denied this fact. Indeed, upon being confronted with the Audit reports he made effort to account for the shortage determined as outstanding, which he had not paid into the Bank. To support this submission counsel relied on exhibits P 1- 5 tendered under cross examination of CW1, answer to query, and paragraphs 9, 10, 11 and 12 of the Further Amended Written Statement on Oath of the DW1. Counsel continued his submission that the Record, and evidence before the Court showed Cash shortage of N8,224,706.46 as at 31/12/2009, which the claimant admitted as correct Statement of the record and audit. The claimant upon being queried as per exhibit O, admitted this shortage, and proceeded to account for same partially, but which effort did not succeed as he could not account for all the money. It was obvious that although from his records, cash book that he had received this sum of money, it is in evidence that the cash was neither in his physical custody or lodged in the bank. The claimant was issued query, dated 27^th August 2010 and also invited before the Management Disciplinary Committee to defend himself. This fact is stated in exhibit G. Following this determination and the failure of the claimant to discharge or give reasonable explanation as to the whereabouts of the sum, upon unsatisfactory response to the query issued him, the claimant was suspended as per exhibit G dated 10^th December 2010. The Claimant himself, under cross examination, admitted that there is provision for suspension in the terms of his employment. Counsel submitted from the scenario of events, there is absolutely no evidence whatsoever, of malice or any wrongful conduct attributable to the defendant in dealing with the case of the claimant as far as the unaccounted shortage is concerned.

18. It is also submission of counsel that in Civil Proceedings by Section 131 – 134 of the Evidence Act, 2011, the claimant has the Legal burden of establishing his claim and proving the claims alleged. The onus probandi rests on him and he as the one who will fail of no evidence is led at all. In support of this contention reliance was placed on the cases of Olude vs: Adeeso (2015) LPELR – 25587 Akinbade and Anor Vs: Babatunde and Ors (2017) LPSLR – 43463 (SC), NDUUL VS: WAYO and Ors (43463 (SC), Nduul vs: Wayo and Ors (2018) LPELR – 45151 (SC).

19. Counsel further submitted in discharging this burden, he must demonstrate by credible evidence and in reference to his Letter of Appointment/Condition of Service as specified in his letter of appointment how the act of his suspension without pay was wrongful, and how the act of referring/reporting his case of unaccounted funds in his possession to the COP was wrongful and malicious, to entitle him to the reliefs sought in this action.

20. Counsel submitted that condition of service is sacrosanct in determining whether there is the violation or breech complained of by the Claimant. In Yahaya V FRSC (2020) LPELR-52332, the Court of Appeal held that since the Claimant failed to plead the condition of service, the Public Service Rules, to show that they were breached by the Respondent, the claim has not proved his case and the case must fail and be dismissed. Indeed, James Shehu Abiriyi, J.C.A observed that the Claimant/Appellant erected his case on quick sand ( P. 26, paras A-D) also Okoebor v. Police Council (2003)12 NWLR (Pt 834) 444 SC. The contract/condition of service is the foundation of an action complaining of the wrongful action of the employer. It is for the Plaintiff to prove in what way his term of employment gave his employer a restricted right, over circumstances of suspension over him or right at all, and show in the terms and condition of his employment and the circumstances which made the matter in which his suspension without pay was unlawful. See Amodu v. Amode (1990)5 NWLR (Pt. 150)356@370; Nepa v Adeyemi(2006)LPELR-5932(CA) Per Akaáhs JCA (Pp 19-23, paras. F-C). He failed to discharge this burden.

21. It is submitted going through the entire pleadings and evidence of the Claimant, he has not given any iota of evidence, nor demonstrated how his suspension without pay was wrongful, nor how the report to the COP was wrong or malicious. Indeed, it is only in the relief claimed in this action, that the Claimant alleged that his suspension without pay was wrongful. Counsel contended that the relief claimed cannot stand on its own. It is the facts and evidence led, that demonstrates entitlement to the relief claim. In Umeanozie v. FBN Plc (2016)LPELR- 41038(CA), the Court of Appeal held thus:

“It is the facts pleaded in the statement of claim that shows entitlement to the reliefs claimed therein. So unless there are facts pleaded in the statement of claim showing entitlement to the reliefs claimed thereon, then the claim for the relief fails on the pleadings, and does not qualify for trial” Per Agim J.C.A (P13,paras B-C). See also Farasco (Nig) Ltd v. PZ Ind Plc (2010)LPELR- 4141(CA), Musa v. Yakubu & Ors (2015)LPELR- 40377(CA)

22. It is submitted that even on the basis of above submission alone, the case of the Claimant is completely untenable, and as held by the Court of Appeal, it completely fails on the pleadings, and does not qualify for trial, and we urge you to so find and hold, in respect of these issues.

23. It is further submitted if this court hold that the claims can still go on trial, it is submitted that these issues must still be resolved against the claimant. In the first instance, the Claimant under cross-examination admitted that under his term of service, there is provision for suspension. Having so admitted, it is his duty to discharge the burden of demonstrating that having regards to his case viz a viz the condition of service, the suspension was wrongful or malicious, which in his relief, he seeks a declaration on. To support his submission counsel refers to Rule 030406 Public Service Rules 2008 Edition.

24. Counsel also submitted that the law is that, a Claimant seeking a declaratory relief, must demonstrate that he is entitles to same. In Salaja v. Salaja the Court of Appeal held thus:

"It must be emphasized that declaratory reliefs are not given just for the asking. A party seeking declaratory relief must satisfy the Court by cogent and proven evidence that he is entitled to such declaration. It cannot be proved half way." Per DENTON-WEST ,J.C.A . (2013) LPELR-21967(CA) (Pp. 30 paras. A-A)

25. It is submitted as held by the Court, that "It is not for the defendant to disprove the claimant's case where the claimant has himself failed to prove his case. Where the claimant fails to prove his case by his own evidence the claim becomes liable to be dismissed and the trial Court does not need to consider the defendant's case. See AYANRU vs. MANDILAS LTD (2007) 10 NWLR (PT 1043) 462, OMISORE vs. AREGBESOLA (2015) LPELR (24803) 1 at 102'103.

26. It is submitted that a declaratory relief cannot be granted even on the admission of the Defendant, nor can the Claimant rely on the weakness of the Defendant’s case. See Yakubu v. Jauroye (2014) All FWLR (Pt 731)1, Eya v. Olapede (2011) FWLR (Pt 584) 28 SC, Ezeigwe v. Awudu (2008) All FWLR (Pt. 434) 1529 SC. It is only after pleading adducing sufficient and credible evidence that the burden of proof will shift to the other side. See Mopson Pharmaceuticals Ltd. Vs: Uduagha (2019) LPELR – 49218 (CA). Counsel submitted that without the pleadings in the statement of facts and evidence in the written statement on oath the declaration sought has no foundation.

27. Counsel contended that the allegation of malice contained in the relief has not been established by the Claimant. The Claimant only tendered the letter to the COP reporting the matter. Exhibit E. The content of the letter are simple, a simple report. Conveying without any comment the facts of the case, which they have investigated as they suspected possible fraud/embezzlement. This letter conveys no evidence of malice, the facts supplied as supportable by their investigation, and they did not insist on prosecution, but merely left the investigation and possible prosecution to the police.

28. The word "Malice," is defined to mean the intentional doing of wrongful act without cause or excuse with intent to inflict an injury or under circumstance that the law will imply an evil intent. Under Black's Law Dictionary, 6th Edition p. 956, the word "malice" was defined to mean, a condition of mind which prompts a person to do a wrongful act willfully, i.e. on purpose, to the injury of another or to do intentionally a wrongful act towards another without justification or excuse. See (Bayam Vs: Aqang (2010) LPELR - 9159 (CA). (See also Oduwole and Ors Vs: West (2010) LPELR – 2263 (CA). By this definition, the Defendant has not acted with malice, but in discharge of public duty.

29. It is submitted that under the law, a defendant, who believed that he had genuine complaint against a plaintiff, which is genuine to the knowledge of a reasonable person or the police, cannot be liable to a civil action of malicious prosecution. This is because there is no wish, desire or intention to hurt or harm the Plaintiff outside a possible commission of a crime. Besides, the Claimant, who alleges malice is required to give particulars (Bakare and Anor Vs: Ibrahim (1973) LPELR – 710 (SC). In Onwurah and Ors Vs: Nwumeh and Anor (2016) LPELR – 40304, the court held that where no particulars have been filed, no such favorable findings can be found. Furthermore, a Claimant who asserts that the Defendant has committed these wrongful acts has the burden of proving the existence of facts constituting these wrongful acts. See Okonge Vs: Durmebi (2014) LPELR – 24155 (CA). Counsel also submitted that the Claimant has not shown or proved any case of malice against the action of the Defendant. Counsel urged the court to so hold.

30. According to counsel a proper evaluation of the content of Exhibit “E, the Defendant did nothing more than was necessary in conveying the suspected criminal conduct to the police. Besides, the Claimant has not demonstrated the display of the element of malice on the part of the Defendant or how their conduct in the circumstances was wrongful or malicious. Indeed a person is in law entitled to report any case of suspected crime to the police authority. See Eziilo and Anor Vs: Ezeonu (2019) LPELR – 48336 (CA), Isheno Vs: Julius Berger (Nig) Plc (2008) 6 NWLR (Pt. 1084) 582. Mbang Vs: Janet and Ors (2014) LPELR – 2265C (CA)., Fajemirokun Vs: Commercial Bank (2009) LPELR – SC. 336/2002. In fact, non-report may amount to concealment of crime.

31. Counsel continued his submission that once a reasonable man from the set of facts available can conclude that the Plaintiff probably has committed a criminal offence, and reports to the police, he cannot be guilty of malicious prosecution. See Musa Vs: Yasuf (2006) LPELR – 7586 (CA). The law enjoins that for a Defendant to be liable in a Claim for malicious persecution all the 4 essential ingredients of malicious prosecution must be established. See Balogun Vs: Amubikahn (1989) 3 NWLR (Pt. 107) 18, 19 and 20. In this case, none has been established. Counsel contended that the Claimant cannot be entitled to the declaration that Defendant’s action was wrongful and/or malicious. The fact that the Claimant’s prosecution resulted in a discharge or acquittal did not affect the non - liability of the Defendant.

32. Counsel also submitted from the way the relief in paragraph 34(2) is couched, the Claimant seems to ground his allegation of wrongful suspension on the fact that he was discharge and acquitted by the Chief Magistrate Court of the criminal case of misappropriation and stealing. This is a clear misconception of the law.

33. Counsel also submitted that there is a world of difference between Criminal and Civil liability. A person can be discharged and acquitted in a criminal case, which in usually based on establishing criminal guilt of the accused person, while he can still on the same fact, held liable in a civil remedy. That is the situation in this matter. Thus acquitting and discharging the Claimant of crime of stealing or misappropriation on the subject sum, does not make the act of suspending him wrongful and/or malicious. The criminal discharge/acquittal did not find that no money was missing which the Claimant admitted was received by him but could not account for. He admitted the shortage. After all, the basis of liability in our criminal and civil actions basically are different. See Nwakire Vs: C.O.P. (1992) and LPELR – 2097 (SC)). In criminal liability proof of mens rea and actus reus are the two ingredients for Criminal Liability. It is not the case in Civil liability, that is why even when a criminal prosecution is ongoing on the same facts, civil proceedings for civil liability can also be initiated and perused at the same time. See Ezeobi v. Ezeobi (2015)LPELR-25883(CA), Bello v. Surajo (2021)LPELR-55542(CA). Discharge of a party in a criminal trial will not be a bar to civil proceedings premised on the same transaction. See Eagle Transport Ltd. Vs: Anyia and Anor (2017) LPELR – 42020 (CA). Bello v. Surajo (2021) PLELR-55542(CA), National Electricity Liability Management Ltd. V. Omotusi & Ors (2010) LPELR- 41396 (CA).

34. Counsel submitted that in the circumstances, the Claimant has failed woefully to discharge the burden of proof in the claim that the suspension of the Claimant was wrongful and/or malicious. Counsel urged the court to resolve this issue against the Claimant.

35. Issue 3: Whether the Claimant has proved and is entitlement to the order for payment of N3,469,500.00 said to be withheld sum total of salaries from December, 2010 to January, 2019. (8 years and 2 months) leave allowance and other benefits till he retires, interest at 21% over the said sum.

36. In arguing sub-issue 3 counsel submitted that in the first instance, that, the Claimant having failed to discharge the burden of demonstrating that his suspension without pay for the gross misconduct he committed, by negligently handling the funds of the Defendant, was wrongful as in sub-issues 1&2 above, the payment of withheld salaries, which in any case the Claimant did not work for, as a consequential or ancillary order to the main claim for declaration of his suspension as wrongful, cannot be made in favour of the Claimant. See Henry O. Awonoyi v. ARMOC (2002) 6 SCNJ 141.

37. It is submitted in making claim for salary as per paragraphs 23 – 35 of the Claimant’s Further Amended Statement of facts, the claimant did not tender pay slip to prove his salary as at 2010 as averred. Initially, in the earlier amended Statement of facts, the Claimant claimed a monthly salary of N64,815.25 and other sums based on promotions he would have earned up to Jan 2019, totalling N8,168,154.08 based on IPPIS and tendered Exhibit A, which has now been abandoned. The Claimant now makes a claim of N35,500.00 monthly salary, totalling N3,469,500.00 for the period of 97 months, 21 days. In effort to prove this claim, the Claimant tendered Exhibit O (mistakenly so marked, as the Document titled Query dated 27/8/2010 had earlier been so marked) after obtaining leave of court on 9^th May 2023 to tender a new exhibit. It is submitted parties are in law enjoined to be consistent in proving their case and stating their facts to prove his case. (See USO & ANOR v. AZOMANI (2021) LPELR- 55560 (CA), Okoye v. Dumebi (2014) LPELR- 24155(CA). counsel contended these conflicting assertions and statement of facts clearly portrays that the Claimant is not certain or sure of his claims, or that he is attempting to mislead the court. Indeed, from evidence elicited from him under cross examination over this Exhibit O, he admitted that this exhibit which obviously is a photocopy as also observed by the court, had been in his custody long before this action was instituted. So, why did he not produce it long ago, and why was he asserting on oath in the Amended Written Statement of fact of 25^th February 2020 before the court, a different figure of N64, 815.26 as monthly salary? My Lord will also observe, that this document purportedly collected from a bank, a photocopy, is not signed by any officer of the bank, or certified in any way by the bank. Indeed it fails to comply with the requirement of S 84 of the Evidence Act 2010. Counsel submitted any document that is not signed, and the name of the officer issuing same and his signature endorsed is not credible, indeed is a worthless piece of paper with no evidential value whatsoever. A salary of a public officer, is proved by tendering of payslip, not with a piece of paper, purporting to be a bank statement. We urge the court to discountenance same. See Tabik Investment Ltd vs GTB Plc (2011)All FWLR (Pt.602)1592 (SC) Indeed, even if admitted in evidence, we submit that it carries no weight and incapable of supporting the party’s averment and contention. See Garba vs. Kwara Investment Co. (2005) LPELR- 2636 (SC).

38. Counsel submitted that the basis of the Claimant’s computation and grounds for so being entitled, is purely based on speculation which in law cannot ground or prove a valid claim before the Court. The Claimant indicated that he will rely for his proof of entitlement to the increased salary by tendering records/documents of one Mrs. Atim Etim Okokon. Throughout his evidence he failed to tender such records, nor did he call the said lady to testify on his behalf. Thus, there is no credible evidence to substantiate the allegation of the Claimant that such officer has been so promoted to Level 12, as alleged. It is submitted even if the fact was as stated, that is no basis in law, in according the Claimant such right. The said person may have fulfilled the condition warranting the promotion as specified in the Civil Service Rules etc. It is our submission therefore, that the evidence relied upon by the Claimant is not credible at all, it is worthless, speculative and cannot ground proof of any claims/reliefs before any court of law. In all the paragraphs of his said Further Amended Statement of facts and Further Written Statement on Oath (paragraphs (24 – 34), stated facts that apart from being speculative are also based on the invalid assumptions that he Claimant would have been promoted and be entitled to the said worked out salaries. The Claimant also based the computation he worked out on the policy of the Federal Government (See paragraphs 23-37 of the Further Amended Statement of Facts, which he has not tendered. This court is therefore expected to speculate on the content of this policy not tendered before the court. The best way of poof is by credible evidence and not speculation.

39. On the claim for interest, counsel submitted that there are legal two ways by which action for interest on a sum of money claimed as a debt can arise. Firstly as a right and Secondly, where there is power conferred by statute to do so in the exercise of the Courts discretion. See Himma Merchants Ltd v Aliyu (1994) 5 NWLR (Pt 344) 667(SC). (The Claimant must prove the basis for his entitlement for same by showing that it is supported either by statue or contract agreement between the parties or based on mercantile custom. In respect of this case, with respect, none has been demonstrated here, and we urge you to refuse the relief. (See also NPA Vs: Amunu Ibrahim and Co and Anor (2018) LPELR – 44464 (SC). We also urge the court to resolve this issue against the Claimant.

40. Issue 4: Whether the Claimant is entitled to 3 promotions up to level 12, allegedly attained by his colleagues as at the time of his suspension and be paid all promotion arrears.

41. In arguing this issue counsel refers to paragraph 34(6) and (7) of the Further Amended Statement of Facts, where claimant has claimed entitlement to 3 promotions and an order of court for the Defendant to work out all the entitlements due to him, including salaries and other benefits based on the three promotions and filed it in court. Counsel submitted that the Claimant is not entitled to any such promotion as claimed. By his pleadings and evidence, the Claimant purportedly relied on the worthless evidence that since his colleague on similar position he was as at the time of his suspension, has been promoted to level 12, this Court upon his discharge and acquittal in Exhibit 1, should automatically order that he be promoted to such level and be paid arrears of salary calculated at such level. The Claimant, whose duty it is, failed to tender his condition of service, or other rules or regulations, which has been captures in Exhibit C, to establish his right to promotion herein claimed. Those are the foundation to ground whatever rights the claimant claims in this action. It is not for the Defendant to prove that he has no such right. See Yahaya v FRSC (supra) Until the Claimant discharges this burden, by pleading and leading sufficient evidence to prove his allegations, the same does not shift to the Defendant, to justify their defence. Even then, the Defendant pleaded and also led evidence to the effect that the Claimant is not so entitled. They also averred that in the service, promotion is not automatic, but subject to fulfillment of conditions by which the employee must have satisfied based on competitive merit from eligible candidates, assessment of candidate’s record of performance or efficiency and ability to perform duty and responsibilities of higher post as approved by Federal Public Service Commission. (See paragraphs 21 and 22 of the Further Amended Statement of Defence/Counter Claim.

42. Furthermore, under cross examination, the Claimant admitted that he did not fill any APER form (which he admitted must be filled before promotion) nor attended any promotion interview. There is also uncontradicted evidence from the Defendant, that an employee under suspension in not entitled to promotion, in that he will not attend any promotion interview. Participation in promotion interview, and success, is a condition precedent. It is our submission therefore, that the Claimant has failed to show or establish his right to the claimed promotion when he did not fulfill the condition for promotion as contained in his condition of service. The Letter of Appointment of the Claimant, Exhibit C in paragraph (vi) recognizes the Civil Service Rules, Standing orders, Regulations and Instructions issued by the Federal Public Service of Nigeria etc. The burden in law is on him to establish his right to this relief/claim from the condition of his service contract, and not to make claims in the air. It is submitted that failure of the Claimant in not pleading and tendering his condition of service, to support his entitlement to the promotions he now claims as earlier canvassed in this written address, renders the claims in this relief untenable and baseless. On this submission counsel relied on the case of Yahaya v FRSC supra, Amodu v Amode (Supra). It is further submitted that it is the burden of the Claimant to prove that he is entitled to such promotion by demonstrating fulfilment of the conditions contained therein, in reference to his condition of service. This has not been done. Even if he has pleaded the condition of service, he must plead facts, and demonstrate how the terms or condition contained therein had been violated or breached, before his claim can be established and upheld. It is submitted in the pleadings and Further Written Statement on Oath, no such facts have been pleaded or verified on oath.

43. Counsel also submitted that promotion is competitive, and the fact that one employee who has attended promotion interview, satisfied the precondition and accessed to be so deserving of promotion, and was so promoted as alleged by the Claimant, is not comparable to the Claimant, who has not satisfied such pre conditions; and the fact that he or she has been so promoted, does not qualify the Claimant to be entitled to automatic promotion. Counsel refers to paragraphs 24 of the Further Amended Statement of Defence and Paragraphs 21 & 22 of the Further Amended Written Statement on Oath of the Defendant DW1 and submitted that the Claimant did not deny this fact in his Reply To The Statement of Defence and Defence to the Counter Claim. Counsel submitted that as pleaded Public Service Rules, which this Court can take judicial notice of as held in Yahaya v. FRSC (supra), counsel relies on Section 4, Annual Performance Reports of Junior Officer – Rule 050402 (Public Service Rules 2008). It is submitted the Claimant having failed to establish his right to the said promotions, he is not entitled to the relief he is claiming in paragraph 34 (6 & 7) of the Further Amended Statement of Fact.

44. Issue 5: Whether the Claimant is entitled to remain in the service accommodation after the end of his service.

45. It is submitted that this issue must be resolved against the Claimant. It is in evidence that the Claimant upon employment by the Defendant, was, as part of his benefit given an official accommodation. There is also evidence by the Claimant (See Exhibit L) that his service came to an end on 1/2/2019 after 35 years. Indeed the Claimant admits that he is no longer in the service of the Defendant following his attainment of 35 years of service. The question is, is the Claimant still entitled as of right to live in the said property upon the end of his service period? Counsel submitted the answer is an obvious No.

46. It is submitted the duty and burden on a Claimant is to establish the basis of any right claimed, which he seeks the declaration of the Court. This he must show in his contract of employment or any other rules. (See Zurmi Vs: Okonkwo and Anor (2018) LPELR – 46964) (CA). (See also Ladoja Vs: INEC (2007) lpelr – 1738 (SC) Odofin Vs: Ayoola (1984) 11 SC 174; Aluicha and Ors Vs: Elechi and Ors (2011) LPELR – 7823 (SC).

47. In Exhibit “C“ which the Claimant tendered in support of his case, the Claimant’s employment in item 2 (vi) was subject to the conditions specified in the Civil Service Rules, standing Order and other regulations and instructions issued by the Federal Public Service of Nigeria and the Defendant: The Claimant has not tendered any condition of service nor draw the Court’s attention to any of these regulations which grants him the right to accommodation after retiring or reaching the terminal point of his service. Besides, there is no single portion or paragraph of his pleadings where he pleaded material facts to ground his right to this declaration. It is only in his relief that this issue has been raised. Counsel submitted that reliefs in an action can only follow and be derived from the facts pleaded. Reliefs not derived and following facts pleaded/evidence in support, are without foundation.

48. It is submitted that any benefit a staff or employee enjoys by virtue of employment as accommodation, terminates upon the determination of that service. See Nwana Vs: FCDA (2004) All FWLR (Pt. 220) 1243 (SC). The Supreme Court held thus:

"It is settled law that where an agent or servant is allowed to occupy premises belonging to his principal for the more convenient performance of his duties, he acquires no estate therein: See Woodfall's Law of Landlord and Tenant pages 294-295. He is merely a licensee and he has no right to continue to remain in the premises on the cessation of his employment. Consequently, he cannot maintain an action in trespass against his employer in the event of his eviction." Per EDOZIE ,J.S.C in nwana v. fcda & ors (2004) LPELR-2102(SC) (Pp. 18 paras. D).

49. Counsel submitted the Claimant having not proved, either by his pleadings or evidence in support, is not entitled to the right/relief claimed in paragraph 34 (12) of the Further Amended Statement of Fact in this action. The right to retain his service accommodation beyond the date his service ended.

50. Issue 6: whether the claimant is entitled to general damages and cost of the action claimed. Counsel submitted that the claim of the sum of N50 Million Naira as general damages for what he termed “financial embarrassment, untold hardship, mental torture and psychological trauma caused to the Claimant and his family since 2010 till date as a result of the Defendants wrongful act of suspending the Claimant from duty. The question is, in the first instance was the Claimant’s suspension wrongful? Counsel submitted that the burden is on the Claimant to prove the wrongfulness of his suspension. That burden by law is on him to discharge. See Section 131 and 132 Evidence Act Morgan – Galu Vs: Asha (2015) All FWLR (Pt. 800) 1214, Onu Vs: Agu (1996) 5 SCNJ 74. The claimant has not demonstrated anywhere with regards to his term of employment how the suspension was wrongful. Rather during cross examination, he admitted that there is provision for suspension under his term of employment. It is for the Claimant to prove his case, and where he fails to so discharge, he cannot rely on the weakness of the Defendant’s case/defence. See Akinola Vs: Olowu (1962) 1 All NLR 224. After admitting that suspension is provided for in his Service, it was his duty to show how his suspension was wrongful under the terms of his service/employment, which he has not done.

51. Counsel submitted by Rule 030406 of the Civil Service Rules, which the defendant pleaded, and which this court can take judicial notice of, as held in Yahaya v. FRSC (Supra), the Defendant has a right to suspend a staff from exercise of the powers and functions of his/her office and from enjoyment of his/her emolument.

52. According to counsel for the claimant to be entitled to benefit for the award of general damages he must lead evidence to show the breach of his right. He must demonstrate which of his right, or how his right has been breached by the Defendant to be entitled to damages. In Morgan – Gulu v s: Asha (2015) All FWLR (Pt. 800) 1214 the Court of Appeal held that in the absence of breach of a right, there can be no presumption of general damages in law. (See also Adeniran Vs: Aland (1992) 2 NWLR (Pt. 223) 350; Ijebu Ode Local Government Vs: Adedeji Balogun and Co Ltd (1991) I NWLR (Pt. 166) 136, (1991) 1 SCNJ 1. Even then, in New Nigeria Newspapers Ltd v. Atoyebi (2013)LPELR- 21489 (CA) the court held that general damages are strange in contract of employment cases, in that it is special damages that are known, which is always to be proved strictly.

53. Counsel submitted that the Claimant is absolutely not entitled to what he termed ” cost of action” in the tune of N1 Million Naira, as there is no proof of the sustenance of such cost except the bare claim made on the relief to this action. What indeed is the basis of such claim has not been disclosed or has the Claimant demonstrated the right to such claim. The Claimant has also not pleaded nor led evidence as to whether he paid or incurred such cost of action. This cost of action is claimed as a specific claim in the Writ of Summons in this action, in which case it is a specie of special damages, that must be specifically pleaded and strictly proved. In Hadejia Jamaare River Basin Development Authority v. Chimande (Nig) Ltd (2016) LPELR-40202(CA) (Pp. 20-21 paras. F) the Court held thus:

"Now, cost can be claimed in either of two ways - (i) as a specific relief on the writ of summons; or (ii) orally in open Court, as a consequential relief, after the conclusion of the case and entry of judgment. Where cost is claimed as a specific relief on the writ of summons and in a particular sum, it is in the nature of specific damages that must be specifically pleaded and proved - Divine Ideas Ltd Vs Umoru (2007) All FWLR (Pt.380) 1468, Fortune International Bank Plc Vs City Express Bank Ltd (2012) 14 NWLR (Pt.1319) 86. Where it is claimed orally in open Court as a consequential relief, at the conclusion of a matter, its award is entirely at the discretion of the Court." Per ABIRU ,J.C.A. Here, the Claimant claimed the cost of action as a specific relief, but as required by law, he has failed to discharge the burden of proof by proving same specifically and strictly as special damages are usually proved, tendered no credible proof of such expenses as cost, except as a claim made in the relief.

54. Counsel urged the court to reject the claims for general damages and cost of action/interest claimed and resolves this issue against the Claimant.

55. Issue 7: whether the defendant is entitled to counter claim. In arguing in favour of grant of counter claim in the sum of sum of N 8,446,148, which as determined in the Audit Report from examination of the records/books kept by the Claimant as Revenue Cashier was not accounted for. The Claimant admits that it was his duty to receive money for the Defendant and lodge such monies in designated bank account, See paragraph 7 of his Further Amended Statement of facts and also paragraph 7 of the Further Amended Written Statement on Oath of Facts. Credible evidence led by the Defendant, through DW1, shows unequivocally that the sum was arrived at as shown in Exhibit “ F2” from an audit examination on the record kept by the Claimant of cash that came into his custody as Revenue Cashier, and which he held in trust for the Defendant. The Claimant was expected to lodge such cash into designated bank accounts, which he did not and was also unable to present the physical cash of that amount to the auditors.

56. Also, the Claimant was queried in Exhibit “O“ and he replied same and following the endorsements in Exhibit “ F & F2 “ which he admitted under cross examination as his, he attempted to account for the shortage that the Audit Report (Cash Office Inspection Report) Exhibit F, F2 established. This is evident in Item G, which under cross – examination he admitted to be his endorsement and signature. It is submitted that his attempt to account for the specific sum of N9,051,548.38, which brought the amount outstanding to N8, 446,148.38, amounted to an admission of the sum audited and determined lost as it could not be accounted for. He never contested in his reply to the query that the sum established as shortage, was not correct, the same having been arrived at from the records of the cash book he kept. He attempted for the first time in his pleadings in this court to accuse another staff Mr. Samuel Daniel Iduot of being responsible. See paragraph 9 of his Further Amended Statement of Facts. It is submitted that no such defence or claims was ever raised/made by the Claimant in his reply to the query, when the matter was fresh and when he was confronted. Had he made such claims, then, accusing another staff, it would have been necessary to confront such staff for his defence or comment. Counsel urged the court to regard this recent claim of the Claimant as an afterthought and disbelieve him completely.

57. It is submitted that the Claimant was unable to account for the sum of N8,446, 148.38, as per exhibits “F, F1”. Under Re- examination, the Claimant responded falsely that he recovered the sum that was unaccounted for and handed it over to one Mr. Samuel Iduot. Having admitted that he recovered the sum, it was his duty to demonstrate where and how he paid it over to the defendant. Rather, his whole defence had been that he has been discharge and acquitted of stealing/misappropriation of the sum involved by a court of competent jurisdiction. Counsel maintained that the Claimant, throughout his reply to the Query and appearance before the Disciplinary Committee of the Management of the Defendant, never made this assertion. Counsel contended that this is a false assertion, an afterthought, wherein he has made a false allegation against a staff behind his back, without giving him the opportunity to defend same. He has also not called him to testify. Counsel urged the court to discountenance this piece of evidence, as it lacks credibility, or any evidential value, having regards to all the circumstances surrounding same. It is submitted as an employee of the Defendant the Claimant was expected and indeed obligated to diligently handle the monies that came into his custody. He is not expected to be negligent in the handling of such funds, which negligence has occasioned the Defendant loss. See paragraph 24 (4a - c) of the Defendant’s Further Amended Statement of Defence/Counter Claim wherein the Defendant pleaded the duty the Claimant owed the Defendant as a servant, which he breached.

58. It is submitted that the Defendant is entitled to claim such unaccounted sum from the Claimant, which is hereby claimed on this action. The Claimant’s contention in defence to the Counter Claim is that, he is not liable to this claim on the grounds that he has been exonerated by the Judgment in the Criminal Court delivered on 13/08/2018. See paragraph 1 of the Defence to Counter Claim. In response to this defence, counsel adopted the earlier submission in paragraph 4.09 - 4.12 of this Final Written Address of the Defendant, and further submits that this constitutes no valid defence to the Counter Claim. It is the law, that whatever is not denied, is deem admitted. See Okoebor v. Police Council & Ors (2003) LPELR- 2458(SC), Iriri v. Erhurhobara (1991)2NWLR (Pt 173) 252 @ 255. In the circumstances, the Claimant is deemed in law to have admitted the counter claim. Counsel urged the court to grant same.

59. It is submitted that the Claimant was investigated for misconduct, by reason of the negligence in the discharge of his duty which occasioned a colossal loss of Government fund. See Rule 030301 of the Public Service Rules (2009). Indeed, by Rule 030310, of the said Civil Service Rules, which is binding on the Claimant, the Defendant is entitled to surcharge the Claimant who is also liable for the loss he has occasioned and made to payback such established amount and/or withhold any monies due to the Claimant in satisfaction of this sum lost by reason of the Claimant’s negligence. The rule provides thus: (a) If at any time the public revenue sustains a loss by reason of the neglect or fault of any officer, he/she will be liable to be surcharged with the amount and any sum due to him or her from government may be withheld in satisfaction of such surcharge”. It is submitted that the Claimant who negligently as a servant had custody of the funds of the Defendant, has a duty to account for and obligated to pay back such sum that he held on behalf of the master and to be held liable to pay up. Counsel adopted his submission in paragraphs 4.22- 4.23 above.

60. Counsel urged the court to grant the Counter Claim to prevent loss of Government revenue occasioned by the action and/inaction or negligence of the Claimant and resolve this issue in favour of the Defendant.

THE SUBMISSION OF THE CLAIMANT:

61. Friday Edo Ekanem, Esq; counsel for the claimant submitted eight (8) issues for determination they are:-

i. Whether the Claimant was a staff of the Defendant from the 1^st day of February, 1984 until the 1ss day of February, 2019 when he retired from the service: if the answer is in the affirmative whether the clamant is entitled to receive gratuity and pension,

ii. Whether the Defendant has a duty to forward the name of the claimant as one of its retirees to Accountant-General of the Federation or the appropriate authority to enable claimant receive his gratuity and pension.

iii. Whether the claimant has proved his claims in this suit and therefore entitled to receive all his unpaid salaries based on his monthly salary of N35,5OO.00 amounting to the sum of N3,469,500.00 (Three Million Four Hundred and Sixty-nine Thousand, Five Hundred Naira) unreasonably withheld for 97 months and 21 days by the Defendant for no just cause.

iv. Whether the Defendant is not liable to pay interest on the said N3,469,500.00 for keeping the Claimant out of his funds for the period of 97 months and 21 days from 11/12/2010 to 31/12/2018 (over 8 years) and for trading with the Claimant’s money.

v. Whether the Defendant has any legal right to still hold the Claimant accountable to the purported shortage and/or misappropriation of N8,446,148.38 when the claimant was discharged and acquitted of the purported offence by the Chief Magistrate’s Court of Cross River State, being a court of competent jurisdiction, in charge No.MC/497C/2012 (Exhibit H) in the Ruling of the said court on 13/8/2018 which is Exhibit I in this suit.

vi. Whether the Defendant has a right to punish the Claimant in any form or surcharge him for the purported allegation of shortage of N8,446,148.38 of which the Claimant had been discharged and acquitted bearing in mind the provisions of Rule 030411 (b) of the Public Service Rules 2014 and when the Claimant is not indebted to the Defendant.

vii. Whether the Defendant can counter-claim against the claimant for the alleged shortage/misappropriation of N8,446,148.38, the subject matter in charge No. MC/497C/2012 levelled against him (claimant) after he had been exonerated, discharged and acquitted of the same offence by a court of competent jurisdiction.

viii. Whether the Defendant has the right or can be allowed to re-open or re-litigate criminal issues or points in this Civil Action when such criminal issues or points were already raised, canvassed and decided upon in criminal charge by a Court of Competent Jurisdiction,

ARGUMENT OF ISSUES:

62. Counsel started by arguing issues i and ii, together.

I. Whether the claimant was a staff of the Defendant from the 1^st day of February,1984 until the 1^st day of February, 2019 when he retired from the service; if the answer is in the affirmative, whether the Claimant is entitled to receive gratuity and pension.

II. Whether the Defendant has a duty to forward the name of the Claimant as one of its retirees to the appropriate authority or the Accountant General of the Federation to enable claimant receive his gratuity and pension.

63. In arguing issues I and ii, counsel submitted that the claimant on record was an employee and or a bona fide staff of the Defendant in this suit, having been employed vide exhibit C letter dated the 2^nd day of March, 1985, was employed by the Defendant as a messenger, with effect from the 1^st day of February, 1984, on a salary Grade Level 02/1, in the sum N1,530.00 per annum in the Federal Government of Nigeria. The claimant’s appointment was confirmed with effect from 1^st day of February, 1986 vide exhibit C1, letter dated 10^th day of October, 1987, reference: CRB/AD/C.14/S[Vo/.1. After his confirmation the claimant was vide exhibit D, letter dated 2^nd June, 2009, promoted to the rank of Higher Executive Officer Gl. 08, with effect from 1^st January, 2008.

64. Counsel submitted that DW1, has confirmed to this court that the claimant is a staff of the defendant. Counsel is of the view that the defendant has a bounden duty to send or forward the Claimant’s name as one of its retirees to the appropriate authority to enable Claimant receive his gratuity and pension, having worked for 35 years with the Defendant from 1^st day of February, 1984 and retired on the 1^st of February,2019. As DW1 has told this court under cross examination that every worker in the employment of the Defendant who puts in 35 years of service is entitled to gratuity and pension and confirmed that the claimant put in 35 years’ service and retired in February, 2019.

65. According to counsel failure of the Defendant to forward the name of the Claimant without any justification whatsoever, after he retired from the service on the 1^st of February, 2019 has occasioned a serious hardship to the Claimant and such deliberate act on the part of the Defendant offends against Section 210 of the Constitution of the Federal Republic of Nigeria,1999, counsel support his submission with the case of Poooola Vs. Att.Gen.. Kwara State (2019) All FWLR PT.604 175 at 180, where it was held:-

“By the provisions of Section 210 of the Constitution of the Federal Republic of Nigeria, 1999, pension or gratuity shall not be withheld under any circumstances… It is wicked and inhuman for a retiree or pensioner to be denied his pension and gratuity.”

66. It is submitted that the act of the defendant and or its failure to have since forwarded the name of the claimant to the Accountant-General of the Federation or appropriate authority is a sign or an act of wickedness and inhuman in view of the fact that the Claimant retired from the service of the Defendant honourably after serving for 35 years and his employment was the one with statutory favour.

67. Counsel submitted that based on the above stated facts with dates and the evidence of the sole witness for the Defendant, the Defendant has a duty and responsibility to forward the name of the Claimant to the appropriate authority as done for other retirees to enable claimant receive his gratuity and pensions in the interest of fairness to the claimant. Counsel urged the court to so hold and to resolve issues numbers one (i) and two (ii) in favour of the claimant.

68. Issues nos. iii and iv;

69. It is submission of counsel that claimant has convincingly and overwhelmingly proved his claims in this suit. As the claimant has shown without doubt that he was an employee of the defendant and has worked for 35 years before he retired on 1/2/2019. DW1 under cross examination has told this court that the claimant is entitled to his salaries, gratuity and pension, but that the claimant’s gratuity and pension like all other staff is not usually paid by the defendant. DW1 also informed this court that claimant’s appointment was not terminated and that he was not dismissed from the service of the defendant.

70. Counsel submitted that exhibit Q his statement of account shows claimant’s last salary as N35,500.00 (Thirty Five Thousand Five Hundred Nara). The claimant worked for ten days in December, 2010 and was paid N9,500, on 7/1/2011 on prorate. Counsel continued his submission that the claimant was on 10/12/2010 suspended without pay. The claimant was also charged to court on the request and instruction of the defendant as per exhibit E letter dated 15/6/2011, which alleged defrauding/embezzlement of the sum of N8,446,148.39 belonging to the defendant. While the claimant was on suspension without pay, his monthly salary was still running. This assertion was confirmed by DW1, that his salary was still running.

71. The claimant was suspended from 10/12/2010 to 31/12/20916 97 months 21 days and his salaries amount to the sum of N3,469,500.00 counsel urged the court to hold that the claimant is entitled to his unpaid salaries.

72. Counsel also submitted that when claimant was wrongfully charged for stealing/misappropriation of the sum of N8,446,148.38, as far exhibit H. the claimant was not found guilty for the allegation, he was accordingly discharged and acquitted vide exhibit I. Despite the claimant’s counsel letter and that of the claimant informing the defendant of claimant’s discharge, it refused and neglected and ignored to recall the claimant and pay his salaries. The defendant unreasonably withheld claimant’s salaries and kept the claimant out of his funds and then traded with the claimant’s fund till date without justification. Counsel submitted that for keeping clamant out of his fund, the defendant is liable to pay interest on the claimant’s money it withheld and made use of it. To support his contention counsel relied on the cases of UBN lc v Awmar Properties Ltd (2019) ALL FWLR (Pt.987) 903 @ 908, Appa & D’Alberto (Nig.) Plc v NDIC (2022) ALL FWLR (Pt.1128) 217 @ 223, National Bank of Nigeria Ltd v Savol West Africa Ltd (1994) 3 NWLR (Pt.333) 435; REAN Ltd v Aswani Textile Ltd (1991) 2 BWLR (Pt.176) 639.

73. Issues v and vi:

v. Whether the Defendant has any legal right to still hold the Claimant accountable to the purported shortage and/or misappropriation of N8,446,148.38, when the claimant was discharged and acquitted of the purported offence by the Chief Magistrate’s Court of Cross River State, being a court of competent jurisdiction, in charge No.MC/497C/2012 (Exhibit H) in the Ruling of the said court on 13/8/2018 which is Exhibit I in this suit.

74. It is submission of counsel that the defendant has no right to hold the claimant accountable to the purported shortage and/or stealing or misappropriation of the sum of N8,446,148.38. Having referred the matter that is allegation of shortage to the police for investigation and prosecution, the defendant is bound by the outcome of the criminal trial. The claimant was complainant or more or less a party since three employees of the defendant took part and gave evidence in the proceedings at the chief magistrate court. the allegation was based on mere suspicion and claimant was found not guilty and was discharged and acquitted, the defendant has no legal right to still hold the claimant accountable to the purported shortage of N8,446,148.38, counsel urged the court to resolve issue 5 against the defendant.

75. Counsel also submitted that the law is trite finding of court not appealed against is subsisting and binding as such decision is regarded as being conclusive. See Roberts v IGP (2021) ALL FWLR (P.1096) 2, Dasuki v FRN (2019) ALL FWLR (Pt.994) 568.

76. Counsel urged the court to do substantial justice, by looking at the overwhelming documentary evidence in favour of the claimant and make use of same in determining the issues before this court which is a court of justice and equity, but not a court of technicality. Abidun v FRN (supra). Counsel urged the court to look into the relevant documents in the record in doing justice to this case.

77. Counsel continued his submission that the defendant has no power to find claimant guilty of purported shortage of the sum of N8,446,148.38 when the court of competent jurisdiction has exonerated him from any blame relating to the purported shortage. For defendant to reopen issue shortage when court of competent jurisdiction had already dealt on the same issue at the criminal trial and decided upon it and declared the claimant not guilty, the defendant is indirectly trying to declare the claimant guilty of criminal offence when it has no such power.

78. On whether defendant has a right to punish the claimant in any form or surcharge him for the payment of purported allegation of shortage of N8,446,148.38, counsel submitted that the defendant has neither legal or moral right to punish or penalize the claimant in any form either by way of withholding his legitimate salaries or by surcharging the claimant for no just reason at all. Since claimant has been discharged and acquitted which the defendant has admitted.

79. Counsel asked with discharge and acquittal of claimant, can he be can he punished for same offence by a non-judicial body or an organization such as defendant on record. Counsel answered we think not.

80. Counsel submitted by the provision of Rule 030411(b) of the public service rules 2014, which governed the employment relationship between the claimant and the defendant, an officer who had been acquitted of any criminal offence cannot be punished or penalized for the same charge or offence levelled against him. Rule 030411(b) of the public service 2014, read:

An officer acquitted of a criminal offence shall not be penalized for any charge of which he/she has been acquitted, but nothing in this rule shall prevent him/her being dismissed or otherwise punished on any other charge arising out of his/her conduct in the matter, provided that such charges do not raise substantially the same issue as those of which he/she has been acquitted.

81. Counsel submitted operative words is ‘shall not’ that is officer acquitted shall not be penalized, in this case claimant has been discharged and acquitted of offence of stealing/misappropriation of the sum of N8,446,146.38 and it is the same amount counter-claim against the claimant.

82. It is submitted unless the defendant proves with cogent evidence that the claimant is indebted to it, or has committed any criminal offence known to law, it has no right whatsoever to punish or penalize the claimant for the offence of which he had been acquitted without ant basis and cannot surcharge the claimant ether.

83. Issue vii; Whether the Defendant can counter-claim against the claimant for the alleged shortage/misappropriation of N8,446,148.38, the subject matter in charge No. MC/497C/2012 levelled against him (claimant) after he had been exonerated, discharged and acquitted of the same offence by a court of competent jurisdiction.

84. It is submission of counsel that for counter claiming against claimant for the shortage which the defendant itself could not prove, the defendant is now caught by concept of estoppel. Since the defendant reported claimant to police for investigation and prosecution. And the outcome of prosecution on the N8,446,148.38 was discharge and acquittal. The discharge and acquittal has cancelled any claim against the claimant where such claim relate to the purported allegation or shortage of the sum of N8,446,148.38, which has been put to rest by exhibit I.

85. Counsel submitted that even though defendant has made mention of the words negligence in some paragraphs of the defence, defendant never led evidence at trial to support or show that the claimant was negligent and besides since the purported allegation relate to the issue of shortage which was put to test at the criminal trial, the issue of counter claim against the claimant should be discountenance.

86. Counsel further submitted that it is settle law that counsel submission is no substitute or argument or written address cannot take place of or replace or be a substitute for evidence not led at trial see Engr. Vassiley v Pass Industries Ltd (2000) vol 22 WRN 103. Counsel urged the court to hold leading cannot constitute evidence, nor would counsel’s address take the place of evidence. APC V Harrison (2012) vol 22 WRN 75.

87. Counsel urged the court to hold that defendant cannot counter claim for the sum of N8,447,146.38, since claimant has been discharged in a criminal trial.

88. Issue viii; Whether the Defendant has the right or can be allowed to re-open or re-litigate criminal issues or points in this Civil Action when such criminal issues or points were already raised, canvassed and decided upon in criminal charge by a Court of Competent Jurisdiction.

89. In arguing this issue counsel submitted that the claimant having been charged before chief magistrate court and having been discharged and acquitted on the charge of stealing N8,446,146.38 and some of the exhibits tendered in this case were tendered at the criminal trial the defendant cannot be allowed to re-open or re-litigate criminal issues in civil action, as defendant is caught by concept of estoppel. According to counsel by this action the defendant is asking this court to overturn the decision of chief magistrate court or sit on appeal which this court does not have jurisdiction to do so.

REPLY ON POINTS OF LAW

90. In reply to issues I and ii, counsel for the defendant submitted that is a none issue as the position of the defendant is that t is entitled to dedct the sum N8,446,148.38 from entitlement of the claimant. the question of whether claimant was entitled to gratuity and pension are issues that did not arise when this suit was commenced on 14/1/2019. Likewise theforwarding or processing of claimant’s pension and gratuity, which involves clsimant filing form and submitting relevant documents has never been an issue in dispute before the institution of this suit. as claimant attained retirement age after institution of this suit.

91. On issues iii and iv, on credibility of exhibit Q the fact that a document was admitted with or withot objection, does not necessarily mean that this document has established or made out the evidence contained therein and must be accepted by the court. Ari v State 2023 LPELR-60140(CA). it is submitted claimant failed to prove N35,500.00 for making conflicting claims and failing to tender pay slip. Exhibit Q is photocopy which require certification.

92. Counsel also submitted claim of interest is untenable as defendant is not a business enterprise, and emolument of officers not utilized remain in the public account of the Federal Government and not utilize for trading as canvassed by the claimant.

93. Issues v and vi, counsel submitted claimant persisted in misconception not distinguishing between criminal and civil liability in this situation. Counsel submitted rule 030411(b) of public service rules does not avail the claimant.

94. On issue vii; the claimant did not deny he was servant of the defendant at all material times. He admits his duty of receiving, recording and paying money to designated bank account. The complaint is that he was negligent in the performance of his duty by not lodging money as expected hence shortage that was revealed, which he acknowledge and was only able to partially account which left the sum of N8,446,148.38 unaccounted for. See exhibit O query issued to claimant. The claimant counter claims these sums and gave particulars of negligence.

95. On issue viii; counsel submitted claimant argument was based on misconception.

COURT’S DECISION:

96. Let me start by observing that the claimant despite commencing this suit via a general form of complaint had consistently referred to the general form of complaint as writ of summons, the rules of this court did not make provision for writ of summons as one of the mode of commencement of action before this court.

97. Also with the amendment of the amended complaint and its accompanying processes and the further amendment by the defendant, the pleadings that defined the issues in dispute are the pleadings filed on 11/5/2023, the further amended statement of defence and counter claim filed on 18/12/2023 and the claimant’s reply to the statement of defence and defence to counter claim.

98. The counsel for the claimant has rightly observed that the bank statement of account admitted in evidence was wrongly marked as exhibit O, as there is in existence a document marked as exhibit O. I have gone through the record of proceedings, it is true that the First bank statement account was wrongly marked as exhibit O, in the circumstance I hereby re-marked it as exhibit Q. Therefore, the First bank Statement of account will be referred to as exhibit Q in this judgment.

99. From the reliefs sought as per paragraph 34 of the further amended statement of facts, the reliefs being sought are supposed to be fifteen in number but there is omission of relief 4. This means the claimant is having only fourteen reliefs. The law is settled that claim before the court are circumscribed by the reliefs being sought and the court’s bounden duty is to consider the reliefs sought, as both the parties and the court are bound by the reliefs sought by the parties. The law on the duty of a claimant in regard to proof of his claim is well settled. In Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47, the apex court has stated the law, thus:

‘’A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.

100. This trite position of the law is based on the fact that a court of law has no power to make case for either of the parties before the court. The duty of the Court is to decide the matter based on the pleadings of the parties as submitted by them. It is trite law and elementary, that parties are bound by their pleadings. The claimant will also succeed in the relief or remedy he seeks and no more. See the case of Shell P.D.C of Nigeria Ltd. v. Nwawka (2003) 6 NWLR (Pt. 815) 184 at 209.

101. A careful examination of the reliefs being sought will show that seven (7) of the reliefs being sought are for declarations. The law is well settled that declaration is granted based on strength of the claimant’s case and not on weakness or admission of the parties. Therefore, for the claimant to be granted declaration he must satisfy the court of his entitlement to the declaration to the fullest. This can be done by adducing cogent credible admissible evidence. The law regarding burden of proof for declaratory relief is well settled it is on the party claiming for the declaration. The law requires a party to plead and prove his declaratory relief on the strength of his evidence called by him without relying on the evidence called by the Defendant. This burden is quite heavy in the sense that such declaratory relief is not granted even on admission by the Defendant where the claimant fails to establish his entitlement to the declaration by his own evidence. This means that the declaratory relief being sought by the Claimant cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the defendant witnesses. In other words court does not grant declaration of right either on admission or in default of pleading, but only if the court is satisfied by the evidence adduced. See Bello V Eweka (1981) 1 SC 101; (1981) 1 SC (Reprint) 63; Mutunwase V Sorungbe (1988) 12 SC (pt.i) 130; (1988) 5 NWLR (Pt.92) 90 @ 102; Dumez Nigeria ltd V Nwakhoba (2008) 18 NWLR (pt.1119) 361; (2008) LPELR-965(SC).

102. The authorities are to the effect that for the Claimant to succeed in his claim for declaration regarding the invalidity of his suspension from office and entitlement to unpaid salaries and promotions, he must adduce concrete, reliable evidence showing that he is entitled to such declarations and he cannot rely on admission or lack of pleading of the defendant to sustain his claim. This is because grant or refusal of a declaratory relief is at the discretion of the court. Thus, where a party seek declaratory reliefs the onus is on him to succeed on the strength of his own case and not on weakness of the case of the Defendant. The same duty applied to a defendant who seeks declaratory relief in counter claim. The Claimant or counter claimant must adduce or led sufficient evidence which prima facie show that he is entitled to the declarations sought. In that instant the claimant can rely on the case of the defendant or that of defendant to counter claim to support his case to establish and prove his case. See Odofin V Ayoola (1984) 11 SC 72; Wuluchen V Gudi (1981) 5 SC 291; Adelaj V Fanoiki (1990) 2 NWLR (Pt.131) 137; Gankon V Uguchukwu Chemical Ind. Ltd (1993) 6 NWLR (Pt.297) 55; Alexchendu V Oshoke (2002) 9 NWLR (Pt.773) 521.

103. Coming to relief 1; which is for declaration that claimant was employed by the defendant and retired from service on 1/2/2019. The evidence before the court more particularly exhibits C, C1 and D, are proof that claimant was employed by the defendant. The effective date of appointment of the claimant was given as 1/2/1984. This means by 31/1/2019, the claimant had served the defendant for 35 years. This in effect means by effluxion of time the claimant retired from the service of the defendant on 31/1/2019. This also shows that the claimant as at now is no longer in service. In the circumstance, relief 1 succeed and same is hereby granted.

104. Reliefs 2 and 3, are on suspension which the claimant alleged was wrongful, malicious and has subjected the claimant to untold hardship, mental torcher and psychological trauma.

105. The claimant is of the view that he ought not have been reported to police for investigation and charged before the Chief Magistrate Court as the allegation leveled against him was based on suspicion. The defendant on its part has argued that the suspension of claimant was not wrongful as it followed due process, the claimant having been indicted by audit reports exhibits F and F1.

106. Let me say that the term ‘suspension’ in the employment context refers to state, when any employee is temporarily debarred by his employer for the time being, from performing any of his official function or enjoying certain privileges. In otherwords it means an order of suspension of employee is issued to keep away the employee from the exercise of his official functions or enjoyment of or certain privileges. Suspension is not capable of putting to an end the contract of service relationship without more. The relationship is only put on hold temporarily.

107. The Supreme Court has the opportunity of defining the term suspension in the case of Longe V First Bank PLc (2010) 6 NWLR (Pt.1189) 1; (2010) LPELR- as stated below:

‘’The word 'suspension' means a temporary privation or deprivation, cassation or stoppage of or from, the privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victims or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiation of the discipline a period to make up his mind as to what should be done to the person facing the discipline. Although in most cases, suspension, results in a disciplinary action, it is not invariably so. There are instances when the authority decides not to continue with the matter. This could be because the investigations did not result in any disciplinary conduct." Per OGUNTADE, JSC. (P. 43, paras. A-E)

Adekeye JSC, (as he then was) added his voice, thus:-

‘’Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other."

108. The case of the Claimant is that his suspension from office was wrongful and malicious because it was based on suspicion. The claimant has stated that he was appointed by the defendant, his appointment was confirmed, thereafter, he was promoted to the rank of Higher Executive officer Grade Level 08 and deployed to account department to work as Revenue Cashier charged with responsibility of receiving money on behalf of the defendant, recording same and paying it into a designated bank account. However audits reports exhibits F and F1, alleged missing of certain money, based on which he was suspended reported to Commissioner of Police who investigated and charged him to court, but the Chief Magistrate Court did not found him wanting and discharged and acquitted him, as per exhibit I. but the defendant refused to recall him back to his job and paid him his salaries and entitlement.

109. The defendant on its part insisted that the claimant’s suspension was not wrongful or malicious, because he was indicted by audits report for unaccounted money which he could not account. Consequently, it has the duty to report the defrauding of the government by the claimant. That it only made report to the police who on their own conducted investigation and charged the claimant to court.

110. The claimant’s letter of appointment exhibit C is very clear on the terms and condition of service of the claimant. it is clear to me that vide exhibit C the claimants conditions of service are as contained in exhibit C and Public Service Rules which is the rules governing claimant’s employment with the defendant. see Okocha V Civil Service Commission (Edo State) & Anor. (2003) LPELR-7268(CA).

111. Exhibit G letter of suspension is very clear that the claimant’s suspension, which is to allowed investigation into the allegation of unaccounted government money in the custody of the claimant. The law is settled that an employer has the right to suspend employee whether provision has been made for such or not in the conditions of service. Therefore, where there is allegation of misconduct as in this case, employer has the right to suspend the employee pending the outcome of investigation into the allegation. See Koomlong I. Miaphen V University of Jos Consultancy Limited (2013) LPELR-21904(CA).

112. From the decision of the Supreme Court in the case of Longe V First Bank Plc (supra) it is clear as the day light that issue of suspension is within the province of the defendant in this suit. The Public Service Rules also confers power on the defendant to suspend its employee.

Rule 030406 - Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he/she should forthwith be prohibited from carrying out his/her duties. Pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office (if within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers and functions of his/her office and from the enjoyment of his/her emolument

113. There is no doubt that when there is allegation of serious misconduct more particularly bordering on commission of crime and Abuse of Office, appointing authority will no doubt have power to suspend an employee of whatever status to allow room for discreet investigation of the allegations. It must be noted suspension is not passed merely on suspicion or on mere receipt of complaint without more. In the case at hand claimant was queried and answered the query upon not being satisfied with the answers given, the claimant was suspended and reported to the police for discreet investigation.

114. It is clear to me from the facts as disclosed in the pleadings that the suspension of the claimant in this case was not wrongful as it was done in line with the dictate of the law.

115. I now turn to reliefs 5, 9, 10 and 11, in these reliefs the claimant is seeking for payment of unpaid salaries for 97 months 21 days, 21% interest and to work out annual salary increment.

116. The law is also trite that claim for salaries and other entitlements are claim for special damages which by law the claimant must specially plead, particularize and strictly proved, and the law on this is replete. See NNPC Vs CLIFCO NIG LTD (2011) 4 MJSC 142, NEKA BBB MANUFACTURING CO. LTD VS AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt.1) 32, UTA VS GOLFIC Securities Nig. Ltd & Ors (2022) LPELR - 57079 CA; Ajigbotosho Vs RCC (2018) LPELR - 44774 (SC), Egypt Air Ltd Vs Ibrahim (2021) LPELR - 55882 (CA) and LUTC (Nig) PLC Vs Samuel Peters (2022) 57289 (SC), where the Supreme Court said: "Ordinarily, the law is clear that special damages must not only be specifically pleaded, they must be strictly proved by credible evidence of particular losses. See Luke N. Onyiorah Vs. Bendict C. Onyiorah & Anor (2019) LPELR 49096 (SC), Okafor & Ors Vs. Obiwo & Anor (1978) LPELR - 2413 (SC)." Per ARIWOOLA, JSC (as he then was now CJN) (P. 12, paras. E-F).

117. The evidence of the claimant as to entitlement to these reliefs is to the effect that he served the defendant for 35 years. But before his retirement he was suspended, reported to police who investigated the allegations leveled against him. He was charged to court of competent jurisdiction which discharged and acquitted him of the charge of misappropriation/stealing. That vide exhibits J the defendant was notified of the outcome of the charge against the claimant which was contained in exhibit I. but, the defendant failed and refused to recall him and paid him his unpaid salaries up to the time of his retirement from service for serving for 35 years.

118. The defendant has not disputed reporting the clamant to police it has also not disputed the outcome of the charge against the claimant. The excuse the defendant gave was they are waiting for advice from the state counsel that prosecuted the matter.

119. Exhibit I, the ruling of the Chief Magistrate Court that discharged and acquitted the clamant is very clear and unambiguous for the claimant to be waiting for advice when the state counsel was not claimant’s legal adviser. The defendant has no justification in refusing to recall the claimant having been discharged. The defendant instead of claiming to be waiting for advise if, it was serious should have swung into action to conclude the disciplinary action it had started when it received the audit report, but, it decided not to do anything until the clamant had instituted this action. The defendant is guilty of procrastination, as there is no law barring the defendant from taking disciplinary action against the defendant even with the charge pending against the claimant. The defendant in this case must blame itself for its tardiness. The claimant is entitled to be paid his unpaid salaries.

120. The defendant has argued that the claimant has given different figure with the one he stated in his statement of facts and in the amended statement of facts. Let me say that the law is settled that once there is an amendment the amended process is no longer relevant as it has vacated the court record. The only active and relevant pleading of the claimant is the further amended statement of facts. Therefore, whatever was stated in the previous pleadings are of no moment. The defendant has also stated that the claimant should have tendered pay slip in proof of his salary, let me say that there is no law that makes pay slip as the only means of proving salary. Proof of salary can be done by oral evidence and in this case the claimant has tendered exhibit Q to establish his last paid salary to the tune of N35,500.00 I accept it as the correct salary paid to the claimant in the absence of contrary evidence from the defendant.

121. For interest and increment there is no evidence adduced to support these claims I hereby discountenanced them.

122. In Reliefs 6 and 7, the claimant is seeking for three promotions to be at far with his colleagues whom they were on the same rank with on level 08 when the claimant was suspended from service.

123. In Salubi vs. Nwariaku (2003) 7 NWLR Part 819 page 426, the Supreme Court, per Ayoola, J.S.C. (of blessed memory), stated that: "It is trite law that the Court normally should not grant a relief not sought by the parties. Where a party makes averments but such averments do not relate to any relief sought in the case, the Court will not grant a relief which would have followed the averments without an amendment of the claim. See also OSALADE V. OSALADE (2020) LPELR-51165(CA).

124. I note that the further amended statement of facts did have depositions on entitlement to promotion. The law is well settled that relief which not supported by pleading and evidence is incompetent and lacking in merit. The court cannot grant relief for mere asking, there must be pleading and evidence to support the relief sought. The court has a bounden duty to grant to a party only his proven claim(s). The rationale is that a court of law is not a Santa Claus that grants unsolicited award to recipients as that tantamount to ex-gratia award. In the instant case, the claim to promotions having not been backed up by pleading and evidence must fail due to lac of proof entitlement to same. See BGL Plc v. F.B.N. Plc (2024) 8 NWLR (Pt. 1942) 181.

125. The claim for promotions has not been supported by the further amended statement of facts. The absence of pleading and evidence in support has rendered the relief incompetent. Where there is no evidence led to establish the claims made before a court, such claims will be dismissed for want of evidence. See Rimi v. INEC (2005) 6 NWLR (Pt. 920) 56.

126. In a civil case, the claim presented by the claimant is won and lost first on the pleadings and secondly on the evidence led in support of the averment in the statement of claim. Conversely, the defence is premised on the facts averred in the statement of defence and the evidence adduced in support thereof. In other words, civil cases are decided upon what is put as an issue by the parties and which issues are decided on the balance of probability based on the preponderance of evidence. In all civil suits, the onus to prove a particular fact or a case, in general, is on the party who asserts, and a party who proves his case on the balance of probability will obtain judgment on the preponderance of evidence and balance of probation in his favour. See Newbreed Organisation Ltd v Erhomosele (2006) FWLR (PT.307) 1076; FBN Plc v Umaru & Anor (2023) LPELR-59469(CA). The claimant having not pleaded facts on promotions has failed in his duty of establishing his claim.

127. Even if there are pleadings regarding promotions being sought, the claimant will not be able to succeeds, as promotion is a privilege is not granted for mere asking as it is not automatic. For claimant to succeed on promotion must be able to show to the court he has fulfilled all the conditions precedent to promotion. The claimant as per his evidence has stated under cross examination that he had not filled APER and has not attended any interview, this has gone to show that the claimant has not proved entitlement to promotion.

128. Let me emphasise that promotion of employee is not automatic, unless where it is shown to be vindictive. Apart from the alleged three times promotion of his colleagues to Grade level 12, there is no evidence to show that claimant has met all requirement of promotion but he was denied by the defendant. The claimant having not proved entitlement to promotions same is hereby refused.

129. The law is trite promotion from one level or position in an organisation to another is not a right but a privilege, which is earned. An employer cannot be compelled to promote its employee, no matter the good opinion the employee might have of himself. Promotion is neither automatic nor as of right. See Abenga v. B.S.J.S.C (2006) 14 NWLR (Pt.1000) 610; Nwoye v. FAAN (2019) 5 NWLR (Pt.1665) 193.

130. On the claim seeking for injunction restraining the defendant or its servants from ejecting the claimant from his official quarters. The law has been settled beyond reproach that an employee occupying official quarters has no right to continue to be in occupation of the premises of his employer upon leaving service. This means once there is no more employment relationship, the servant or employee must give up possession of official quarters being occupied as a result of his employment relationship with his employer. In view of the apex court decision in the case of Nwana v FCDA (supra), the claimant is not entitled to an order restraining the defendant from ejecting him from the quarters of the defendant in which he is in occupation by virtue of his employment which has elapsed due to effeluxion of time.

131. Relief 13, is on demand for claimant to be sent on retirement workshop this is only possible if employee is in service having formerly retired from service the defendant has no obligation to send claimant to any workshop. This relief has been overtaken by event.

132. For access to pension, I take judicial notice of the fact that pension of Federal Government employees is governed by the Pension Reform Act, as amended. The claimant has stated in his pleading that the office of Accountant general had been paying his pension he should get in touch with his pension funds administrator in line with the provisions of Pension Reform Act, as amended, to access his pension and gratuity.

133. Relief 14, is for payment of N50M general damages this court having granted claimant’s relief on unpaid salaries, it will amount to double compensation to grant general damages. This relief failed same is hereby refused.

134. Relief 15, is for cost, this is granted at the discretion of the court.

DECISION ON COUNTER CLAIM.

135. The law is well settled that counter claim is a cross-action with separate pleadings, judgment and costs, and not merely a defence to the claimant’s claim. It is an independent action that is not part of the original action, although for convenience they are tried together. In such trials, parties in the original action swap places - the defendant assumes the position of claimant, and the claimant assumes that of defendant. Thus, a COUNTER-CLAIM is a weapon of defence that allows a defendant to enforce a CLAIM against the plaintiff, as effectually as an independent action. But a COUNTER-CLAIM cannot be inconsistent with the claimant's CLAIM in the sense that it cannot erect a totally DIFFERENT CASE from that of the claimant. see Okonkwo v. C.C.B. (Nig.) Plc (2003) 8 NWLR (Pt.822) 347; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29: S.C.

136. The defendant counter claimant in proof of the counter claim stated that audit reports exhibits F and F1, shows missing money entrusted in the custody of the claimant. Following this discovery, the claimant was queried. He was also reported to the police for investigation of defrauding the government. The police at the end of their investigation filed a criminal charge before Chief Magistrate Court the claimant made a no case submission which was upheld consequently, claimant was discharged and acquitted. However, while defendant was waiting for advice from state counsel that prosecuted the matter. The claimant, defendant to counter claim filed this action and the defendant in turn incorporated in its defence a counter claim seeking to recover the unaccounted missing money in the sum of N8,446,148.38, which the claimant had admitted as per exhibit P1-5. It is the case of the defendant counter claimant that the defence put up by the claimant defendant to counter claim to the effect that the money was handed over to one Samuel D. Iduot his colleague in office was false as the claimant defendant to counter claim did not state so at the earliest opportunity when he was served with query, as his answer never raised the defence of giving the money to Mr Iduot.

137. The claimant/defendant to counter claim, in his defence stated that he had been exonerated of any missing money as per exhibit I, ruling on no case submission. According to the claimant/defendant to counter claim, the defendant/clamant to counter claim has been estopped from seeking to recover the unaccounted missing money from the claimant/defendant to counter claim. The reason being that he had not been found guilty of misappropriation or stealing of the money fr which he had been tried by a court of competent jurisdiction.

138. Let me say that in the case at hand, the claim for recovery of the sum of N8,446,148.38 is a civil matter different from exhibit H, the criminal charge against the claimant for misappropriation or stealing. In law certain facts can amount to both criminal and civil wrong. In such situation the mere fact that a criminal charge had been filed and the accused discharged, may not operate to debar institution of civil action based on facts that also amount to criminality. In fact a criminal action and criminal prosecution can go hand in hand or separately or one after the other.

139. The claimant has also raised issue estoppel. Issue estoppel applies when parties or their privies are prevented in a subsequent suit from re-litigating an issue which had earlier on been adjudicated upon by a court of competent jurisdiction and which same issue comes incidentally in question in any subsequent proceedings. In other words issue estoppel applies to preclude a party from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him.

140. Issue estoppel is an impediment which bars a person from re-litigating an issue which has been isolated and raised in a particular proceeding and has been finally determined in that proceedings. The rule is that once an issue has been raised and distinctly determined between the parties, then as a general rule neither party can be allowed to fight over that issue all over again. See IKOKU VS EKENKWU (1995) 7 NWLR PART 410 PAGE 637; BAMGBEGBIN VS. ORIARE (SUPRA)." Per BADA, J.C.A. (P. 15, paras. A-C)

141. The condition precedent to the application of issue estoppel is based on the principle of law that a party is precluded from contending the contrary of any specific point which having been once distinctly put in issue has with certainty been determined against him. See BWACHA VS IKENYA (2011)3 NWLR (PT 245)610.

142. In the case at hand the elements to present for application of ssue estoppel do not exists

143. In the parties in the criminal charge decided by the Chief Magistrate Court are not parties before this court. Likewise the issue in the case at hand which is recovery of unaccounted funds is not same with misappropriation/stealing tried in the charge before the Chief Magistrate Court. See also IKENI VS EFAMO (2001)10 NWLR (PT 720)1; EBBA VS OGODO (2000) 10 NWLR (PT 675) 387, INAKOJU VS ADELEKE (2001) 1 SC (PT 1) page 1 at 127.

144. For issue estoppel to apply the same question must be for decision in both proceedings (which means that the question for decision in current suit must have been decided in the earlier proceedings). This is not the case in this action.

145. Having shown that the issue estoppel raised by the claimant can only come when the claimant is being prosecuted for the offence of stealing or misappropriation. Furthermore, the charge prosecuted before the magistrate court and the case at hand are not between the same parties. The defendant counter claimant is not a party to the criminal prosecution before the court.

146. In the attempt to prove entitlement to the refund of the sum of N8,446,148.38 from the claimant/defendant to counter claim, the defendant/claimant to counter claim has alleged negligence against the claimant in handling the amount sought to be recovered. I am satisfied from the pleading and evidence before the court that the claimant ought have exercise care and diligence in handling the money of the defendant entrusted in his care. But he alleged that his boss, that he has not disclosed his name, nor was he called as witness, gave him instruction him to hand over money received on behalf of the defendant to one Samuel D Iduot, which he did as directed. The claimant has not also tendered the said directive before the court. He has also not called the said Samuel D. iduot to corroborate his story. In the circumstance, I found the claimant negligent in handling the money entrusted to him by the defendant and therefore liable to refund the said sum of money. This is because an employee owes it a duty to his employer to protect its property or use same in such a way that no preventable loss would occur. Where he is tardy or there is lack of diligence in his approach to his duty or he is negligent and the employer or master by the same suffers loss, due to the unacceptable and untoward behaviour of the employee such employee is liable to pay for whatever loss he had caused his employer.

147. In employment jurisprudence the doctrine of good faith in master and servant or employer and employee relationship is not based on dishonesty but on absolute loyalty. It connotes a concept that in the course of the services being rendered by the servant he must apply utmost diligence in his approach to duty, and manifest work ethics that would put him in good stead in the eyes of his employer. Therefore, a master or employer is entitled to dismiss a servant whose conduct was simply incompatible with the faithful discharge of his duty to his master. See Maja v. Stocco (1968) NMLR 372; Abomali v NRC (1995) 1 NWLR (Pt. 372) 451.

148. On official quarters, I have already found the claimant not entitled to retain the said accommodation having retired from service. I hereby ordered the claim to vacate his official quarters and give up possession to the defendant counter claimant.

149. From all I have been saying above the claimant has succeeded partially in his claims. While the defendant/counter claimant has succeeded in his claims. In the circumstances, I hereby ordered as follows:-

a. The clamant is entitled to his unpaid salaries in the sum N3,469,500.00 (Three Million, Four Hundred and Sixty Nine Thousand, Five Hundred Naira) as his unpaid salaries for 97 Months 21 days as claimed.

b. The defendant is hereby ordered to pay to the claimant the sum of N3,469,500.00 (Three Million, Four Hundred and Sixty Nine Thousand, Five Hundred Naira), being his unpaid salaries for 97 Months 21 days as claimed.

c. The claimant is not entitled to remain in the official quarters allocated to him while in service having retired from service of the defendant by effeluxion of time.

d. The defendant/claimant to counter claim is entitled to recover the sum of N8,446,148.38 (Four Million, Four Hundred and Forty Six Thousand, One Hundred and Forty Eight Naira Thirty Eight Kobo), being unaccounted sums of money received by the claimant on behalf of the defendant in the course of his employment as Revenue Cashier.

e. The clamant/defendant to counter claim is hereby ordered to pay the defendant/claimant to counter claim, the sum of N8,446,148.38 (Four Million, Four Hundred and Forty Six Thousand, One Hundred and Forty Eight Naira Thirty Eight Kobo), being unaccounted money received by the claimant on behalf of the defendant in the course of his employment.

f. The claimant is hereby ordered to vacate official quarters allocated to him while in service and give vacant possession to the defendant counter claimant.

150. I make no order as to cost. Parties to bear their respective costs.

151. Judgment is hereby entered accordingly.

Sanusi Kado,

Judge,

REPRESENTATION

Imo Inyang, Esq; for defendant with Bassey Eneh, Esq;

Color

WD