WD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVISION

HOLDEN AT YOLA

BEFORE HIS LORDSHIP, HON  JUSTICE J.T. AGBADU FISHIM, JUDGE

DATE: THURSDAY 30^TH JANUARY, 2025                          

SUIT NO: NICN/YL/09/2023

BETWEEN:

REJOICE SILAS SANGA (AS ADMINISTRATOR

OF THE ESTATE OF WILLIAM JEDIEL) -------------------------------- ------------CLAIMANT

AND

1.   ADAMAWA STATE GOVERNMENT

2.     ATTORNEY-GENERAL OF ADAMAWA STATE………………………………DEFENDANTS

REPRESENTATIONS:

BALA SANGA ESQ, for the Claimant. With him are P.R. AJUMEBOR and R.N. GBAA ESQ.

A.A. YAKUBU ESQ, Senior State Counsel 1, Adamawa State Ministry of Justice, for the Defendants.  

JUDGMENT

INTRODUCTION AND CLAIM

1.     The Claimant, by a Complaint and Statement of Fact dated 12^th of September, 2023 but filed the 3^rd of October, 2023 seeks against the Defendants the following reliefs:

                                            i.                        The liquidated sum of N1, 154,548.49 (One Million, One Hundred and Fifty Four Thousand, Five Hundred and Forty Eight Naira, Forty Nine Kobo) representing the outstanding gratuity due to the Late William Jediel.

                                          ii.                        The sum of N5 Million being general damages for the trauma, distress and the breach of obligations of the Adamawa State Government to the Estate of the late William Jediel.

                                       iii.                        The sum of N5 Million being the cost of this action.

                                        iv.                        10% interest on the judgment sum in this suit, from date of judgment, and interest to so continue to run until the date of liquidation of the said judgment sum by the Defendants.

2.     The originating process is accompanied by Claimant’s Statement on Oath, lists of Documents to be relied on trial, Witness(es) to be called by the Claimant and frontloaded copies of documentary exhibits.

3.     In reaction to the Suit, the Defendants on the 10^th of October, 2023 entered appearance out of time and filed a Joint Statement of Defence accompanied by the Defendants’ List of Witnesses and Statement on Oath of Mr. Dennis Haslon, all regularized upon the Defendants’ Motion on Notice dated and filed on the same 10^th of November, 2023 by the order of Court granted on 7^th of December, 2023.

4.     It is on the above pleadings that the Claimant and the Defendants effectively joined issues in this case.

5.     On the 21^st of February, 2024, the Claimant opened her case and adopted her Statement on Oath as her evidence-in-chief in this case. She as CW1 testified that the deceased was her cousin and tendered in evidence Exhibits LFC1 to LFC5.  Defendants Learned Counsel cross examined the CW1.

6.     The Defendants opened their defence on the 25^th September, 2024 and called their sole Witness, Dennis Haslon as DW1 who adopted his Statement on Oath as his evidence-in-chief in this case and was cross examined by the Claimant Learned Counsel.

7.     Upon the close of evidence for the defence on the 25^th of September, 2024, parties were directed to file their respective Final Written Address. The Defendants put in their Final Written Address dated and filed on 16^th of October, 2024 while the Claimant on the 13^th of November, 2024 filed her Final Written Address dated 12^th of November, 2024 but regularized on the 13^th of November, 2024.

CASE OF THE CLAIMANT

8.     By the averments of the Claimant’s Statement of Facts and evidence led by CW1 in proof thereof, the case of the Claimant is thus:

9.     The Claimant is a Nigerian Citizen, Christian, Adult, Female, resident at Ganye, Adamawa State and the Administrator of the Estate of Late William Jediel, who was her cousin.

10. The Late William Jediel was employed by Letter dated 10^th June, 1985 and served the Defendants till his death on 30^th May, 2018, a period of 32 years and 11 months of meritorious service.

11. The Adamawa State Pension Board which is an agency of the 1^st Defendant issued an “Approval for Payment of Pension and Gratuity” dated 1^st December, 2020 which detailed the years of service and all necessary service details and further issued a copy of document dated 3^rd December, 2020 which is a Computation of Retirement Benefit stating his entitlement to the sum of N1, 154,548.49 as his gratuity. That neither the Late William Jediel nor his Estate has been paid the gratuity.

12. The Claimant through Counsel Messr. Lexfield Chambers, demanded for the payment of the outstanding emoluments and gratuity due to the Late William Jediel giving the Defendants one month notice of intention to sue dated 7^th of August, 2023 and upon the expiration of same, and the Defendants still not making any effort to liquidate the outstanding gratuity, the Claimant filed this action.

13. That under the circumstances, given the laws, policies and letters of appointment, the Defendants have no good defence to the claim. That the Claimant is the Next of Kin of the deceased employee and has obtained Letter of Administration of the deceased Estate dated 15^th of August, 2023.

14. That through her Counsel, letter dated 10^th of August, 2023 was written to the Adamawa State Pension Board requesting for the CTC of the Computation of Retirement Benefits but till date, she has not been availed and the Defendants were given notice to produce same.

15. In her cross examination, CW1 answered thus: I cannot remember off hand when the deceased was employed. He died on 30^th May, 2018. I don’t know if there are arrangements to be made before gratuities are paid. I don’t know of any retiree in 2018 who has been paid his or her gratuity.

16. In all the Claimant tendered the following documentary exhibits which were admitted in evidence and marked thus:

Exhibit LFC1: Statement of Final Emoluments dated 3^rd of December, 2020

Exhibit LFC2: Office of the Executive Chairman’s Adamawa State Government Pension Board document titled “Approval for Payment of Pension and Gratuity” dated 1^st December, 2020 and addressed to The Director of Finance of the Pension Board

Exhibit LFC3: Acknowledgment copy of Claimant’s Solicitors Pre-Action Notice dated 7^th August, 2023

Exhibit LFC4: Claimant’s Letter of Administration (Without Will) of the Estate of the deceased retiree dated 15^th August, 2023

Exhibit LFC5: Claimant’s Solicitors Letter for CTC of Computation of Gratuity dated 10^th August, 2023.

CASE OF THE DEFENDANTS

17. By the averment in defence and the evidence led by the Defendants, DW1 testified that he is Dennis Haslon, civil servant with the Adamawa State Pension Board, particularly he is the Director of Administration. The Defendants admitted paragraphs 2, 3 and 8 but denied paragraphs 4, 5, 6, 9 – 13 of the Statement of Facts. DW1 testified that he has been working for the Defendants for the period of 31 years. That the Defendants never issued or authorized anybody to issue to the Claimant or anybody, any document titled Approval for Payment of Pension and Gratuity dated 1^st December, 2020, and Computation of Retirement Benefits dated 3^rd December, 2020 and that the Defendants are not in a position to produce original of the document not being aware of its existence and having not sanctioned the production of any such document to or for the Claimant in this matter or any other body or person.

18. That there is a laid down procedure and requirements for payment of gratuity and other entitlements of either serving or retired employees of the Defendant and the said requirement and procedure are being followed by the relevant government department in respect of employees’ entitlements.

19. That all the Defendant’s employees are aware or at least should be aware that gratuities of retired employees are paid according to year of retirement and the Defendant does not tolerate queue-jumping.

20. That all serving or retired employees who have satisfied the requirements and are entitled to be paid have been receiving their payments in accordance with the laid down procedure put in place by the Defendant. That the Defendants are not liable to the Claimant or any other person for any general or special damages in this matter.

21.  In his cross examination, DW1 admitted thus: Yes, there is no written policy in respect that retirees should queue up before getting their entitlements. It was an in-house arrangement to pay him first. Civil servants are not informed at the point of entry that they have to wait and queue before they get their entitlements.

DEFENDANTS’ FINAL ADDRESS

22. In the adopted Final Written Address, Defendants formulated two issues for determination follows:

i.                    Whether the Claimant has failed to present sufficient evidence to establish her claims, thereby failing to meet the required standard of proof?

ii.                  Whether the Defendants are entitled to dismissal or judgment in their favour due to the Claimant’s lack of credible and relevant evidence, or due to legal or procedural flaws in their case?

23. On Issue i, Defendants Counsel posited that the evidence presented by the Claimant failed to meet the required standard of proof in this case, as it is insufficient to establish the claim of the Claimant. Defendants Counsel argued that DW1 maintained that the Defendant never issued or authorized those documents on Approval and Computation of benefits etc and thus raised reasonable doubt about the Claimant’s allegation.

24. Defendants Counsel referred to Sections 134 and 136 of the Evidence Act, 2011 on the burden and standard of proof in this case and submitted that the burden is on the Claimant to establish her claim. Learned Counsel also relied on the authority of Kate Enterprises Ltd v Daewoo Nigeria Ltd (1985) 7 SC 1 and Sawaba v Gaadi (2006) All FWLR (Pt 823) 1880 para B.

25. Defendants Counsel argued that the Claimant did not establish a clear causal link between the Defendants’ actions and the alleged damages. That alternative explanations for the Claimant’s losses remain unaddressed and thus leaving the claim in speculation.

26. Defendants Counsel submitted that the evidence of the Defendants in rebuttal is more compelling narrative and thus the unsubstantiated allegations of the Claimant should be rejected. Learned Counsel cited and relied on the case of Adighije v Nwaogu (2010) 12 NWLR (Pt 1209) 419 at 43. Defendants Counsel argued that this Court should consider the fact that the Claimant failed to provide evidence of the Defendant’s authorization or issuance of the documents in questions, and this constitute failure to discharge the burden of proof.

27. Defendants Counsel submitted that the evidence in rebuttal has proved that the Defendants followed established procedures for employee entitlements. Counsel noted that the Defendant has a well-established procedure which relevant departments diligently follow and this procedure outlines specific requirements for paying gratuities and other entitlements, ensuring that all employees are treated fairly and consistently. Counsel argued that retired employees receive their gratuities according to their year of retirement and the Defendants strictly enforce this rule to prevent any queue-jumping.

28. Defendants Counsel contended that it is in evidence that serving or retired employees who have satisfied the requirements are receiving their payments in accordance with the established procedure which underscores the Defendant’s commitment to transparency and accountability in handling employee entitlements. Learned Counsel submitted that in light of these facts, the Defendants have fulfilled their obligations regarding employee entitlements. 

29. On Issue ii, Defendants Counsel posited that the Defendants are entitled to a dismissal of this action. Reliance is placed on the provisions of Sections 109, 90(c), 89 – 91, 102 – 105 of the Evidence Act, 2011 as well as the authorities of IGP v Ubah (2015) 11 NWLR (Pt 1471), Alamieyeseigha v FRN (2006) 16 NWLR (Pt 1004) 1; Araka v Egbue (2003) 17 NWLR (Pt 848); Rowaye Jubril v FRN (2018) Legalpedia 40217 (CA); CDO Tudun-Maliki Quarters v Mohammed (2015) 9 NWLR (Pt 1465) 585 to the effect that Exhibits LFC2, LFC3 and LFC4, being uncertified copies of public documents are not admissible and as such, this Honourable Court should expunge same out of its record.

30. Defendants Counsel also relied on the authorities of Mata v Kano State Public Complaint and Anticorruption Commission (Supra) and Ugo v Obiekwe (1989) LPELR – 3319 (SC) to the effect that the failure of certification of these public documents also established that the documents were wrongly obtained and consequently vitiate whatever case is erected on it.

31. Learned Counsel to the Defendants also cited and relied on the judicial precedents of Ironkwe v UBA Plc (2017) All FWLR (Pt 879) 658 paras C – E; Iyere v Bendel Feed and Flour Mill Ltd (2009) All FWLR (Pt 453) 1217 at 1252 paras C – D; to the effect that the prayer of the Claimant, being special damages ought to be specially pleaded and specifically proved, as such cannot be granted upon speculation. Learned Counsel argued that the Claimant has failed to discharge this onus of proof and her case should be dismissed with punitive cost.

32. Defendants Learned Counsel argued that the Defendants have presented compelling and un-contradicted evidence in rebuttal of the case of the Claimant and as such, the case of the Defendants should prevail.

CLAIMANT’S FINAL WRITTEN ADDRESS

33. In the adopted Final Written Address, Claimant distilled a lone issue for determination thus:

1.     Whether the Claimant has sufficiently proved her case to entitle her to the reliefs sought?

34. On the lone Issue, Claimant Learned Counsel posited that the Claimant has by credible and cogent evidence established that her Cousin, the deceased worked as the employee of the 1^st Defendant till his demise and was entitled by Pension Act and contract to the gratuities and benefits claimed and till date has not been paid by the Defendants.

35. Claimants Learned Counsel pointed out that by Exhibits LFC1 and LFC2, Claimant established that the deceased was an employee of the 1^st Defendant until his demise in service of the 1^st Defendant and his gratuity approved by Exhibit LFC2, the gratuity computed to be the sum claimed in this Suit by Exhibit LFC1.

36. Claimants argued that Exhibits LFC2, LFC3 and LFC4 are original documents which remain unchallenged or impeached by the Defendants but only that the Defendants are seeking to defeat this action by technicalities that Exhibits LFC2, 3 and 4 are uncertified and that the issuance of Exhibits LFC1 and 2 are not authorized, not that the documents did not emanate from the Defendants. Learned Counsel relied on the authorities of Ajuwon & 4 Ors v Akanni & Ors (1993) 9 NWLR (Pt 316) 182 and The Admin. & Exec. of the Estate of Abacha v Eke-Spiff & Ors (2009) LPELR – 3152 (SC) 59 – 60 para D to the effect that these bare assertions of the Defendants that are not supported by evidence go to no effect.

37. Claimant Learned Counsel also referred to Exhibit LFC5 by which the Claimant’s Solicitors applied for the CTC of Exhibit LFC1 and same was not certified and thus the Claimant put the Defendants on notice to produce the document but the Defendants still failed to produce it. Learned Counsel relied on Section 167(d) of the Evidence Act, 2011.

38. Claimant Learned Counsel cited and relied on the judicial authority of Anagbado v Faruk (2018) LPELR – 44909 (SC) to the effect that Exhibits LFC2, 3 and 4 being originals, do not require certification.

39. Claimant Learned Counsel also referred to all the averments of the Joint Statement of Defence wherein the Defendants only claim to deny and put the Claimant to the strictest proof. Learned Counsel relied on the authorities of Kopek Construction Ltd v Ekisola (2010) LPELR – 1703 (SC) to the effect that such traverse means nothing and where those ineffective denials are struck out, there is no defence to the claim of the Claimant in this case.

40. Claimant Learned Counsel argued that the defence of queue policy erected by the Defendants was not substantiated by the Defendant but was demolished under cross examination of DW1 which is to the effect that there was no such written policy in existence. Claimant Counsel cited and relied on the authority of Comptroller General of Customs & Ors v Comptroller Abdullahi B. Gusau (2017) LPELR – 42081 (SC) to the effect that unwritten policies create ambiguity in labour matters and are unacceptable and inapplicable and as well contrary to international best practices.

41. Finally, on Exhibit LFC2, Claimant Learned Counsel argued that even if it were correct and true that this was not properly certified, this Court can admit same on the authority of Victor Adegboye v UBA (2022) LPELR – 58778 (CA) and Tabik Investment Limited v GTB Plc (2011) 17 NWLR (Pt 1276) 240, in the light of the overwhelming evidence before the Court establishing the employment status and death in service and failure to pay the outstanding gratuity, this Honourable Court is to hold that wrong certification is a technical issue which should not be allowed to work hardship on the Claimant and moreover, since judgment is yet to be delivered and this issue of non-certification is coming up now, this Honourable Court should order parties to certify the documents ahead of its judgment and re-tender them. Learned Counsel referred to Section 12(2) of the National Industrial Court of Nigeria Act, 2006 and Order 5 Rule 6(2) of the Rules of this Court on the need to do substantial justice by dispensing with rigidity of the rules of evidence.

42. With respect to the damages being claimed by the Claimant in this case, Claimant Counsel pointed out that the contention of the Defendants Counsel that same was special damages is misplaced. Learned Counsel contended that the relief on damages in this case is a claim for general damages and not special damages while the relief on the sum of gratuity is established by Exhibit LFC2. Learned Counsel cited and relied on Order 55 Rule 5 of the Rules of Court to submit that the award of general damages is at the discretion of the Court.

43. Claimant Learned Counsel argued that given the fact that the Claimant’s cousin died in service, it is odious and illegal for the Defendants to expect that the Administrator should join a queue, whereas the gratuity ought to have been paid by the Defendants since 2018, and in the face of the dwindled value of Naira, this Honourable Court ought to award general damages sought in this instance.

COURT’S DECISION

44. Upon my discrete voyage into the pleadings and evidence adduced before this Honourable Court and having waded through the Final Written Addresses of the respective parties in this case, particularly noting the issues for determination formulated by parties for the determination of this Honourable Court, I am of the firm view that the two issues for determination are straight forward:

1.     Whether the Claimant has proved her entitlement to the reliefs sought as required by law?

2.     Whether the Defendants have any defence exonerating them from liability?

45. The law is immutable and sacrosanct that in civil cases like this instant case, the onus probandi lies on the Claimant to establish by credible, cogent and compelling evidence her claims before the Court. The Claimant bears this legal burden which is also pontificated in Section 131 to 134 of the Evidence Act, 2011 (as amended) thus:

“131. (1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

133. (1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.

(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.

134. The burden of proof shall be discharged on the balance of  probabilities in all civil proceeding.”

See also APC & Anor v Obaseki & Ors (2021) LPELR – 55004 (SC)

Nduul v Wayo & Ors (2018) LPELR – 45151 (SC)

46. In line with the above principles of evidence law, the Claimant who claims that William Jediel, her cousin died in the employment of the Defendants and entitled to gratuity which had been demanded but remained unpaid and the said employee being now deceased, the Defendants are liable to pay the Claimant the reliefs sought, must adduce credible and cogent evidence in proof of these facts.

47. It is now settled that contract of employment may be in any form and it may be inferred from agreement of parties and can be shown that such contract was intended, although it is not expressed. See Johnson & Sons v Mobil Producing Nigeria Unlimited & Ors (2009) LPELR -8280 (CA).

48.  At this stage, this Honourable Court will resolve the contention of parties on the admissibility of Exhibits tendered in evidence by the Claimant. The sole ground of objection is that these are public documents which are not certified true copy.

49. However, I observed while perusing the respective parties Final Address that both are mistaken on the correct marking of the Exhibits. They both mistook the Computation of benefits as Exhibit LFC2, whereas the said Statement of Final Emolument is marked Exhibit LFC1 while the Approval for Payment of Pension and Gratuity is marked Exhibit LFC2 this Honourable Court. As such, in the resolution of the impasse between parties on the admissibility question, the Court will proceed in accordance with its records.

50. I have looked at and examined Exhibit LFC1 and noted that it is indeed a photocopy of computation document issued by the 1^st Defendant’s Pension Board while Exhibit LFC2 is an original document issued by the same Pension Board in favour of the Claimant with respect of the deceased William Jediel. Exhibit LFC3 is the Acknowledgment copy of the Pre-Action Notice of the Claimant while Exhibit LFC4 is the Claimant’s original letter of administration.

51. On Exhibit LFC1, I have seen at paragraph 13 of the Statement of Fact that the Defendants were given notice to produce the original. I have also seen Exhibit LFC5 by which the Claimant’s Solicitors applied for the Certified True Copy of the Exhibit LFC1 but curiously neither did the Defendants respond to the Notice to Produce nor avail the Claimant the Certification sought. In my view, the Court is not left without solution in this circumstance. It is the appropriate circumstance where the Court is empowered to allow the secondary copy to be admitted in the interest of justice, more so when it is the form/certification that is being challenged and not the content thereof and moreso where the Defendants were the one who failed to oblige the certification nor present the original, even with Notice to Produce given to it.

52. See Onyekwuluje & Anor v Benue State Govt & Ors (2015) LPELR – 24780 (SC) where the infallible Court pronounced that an exception for a secondary evidence will be made where it is proven that aside notice to produce which the other party failed to comply with, the aggrieved took extra mile to get a certified copy but the other party also rejected or failed to oblige him the certified copy. I am of the view that the Claimant has established this exception in this case. I so hold.

53. The Defendants who failed in all respect cannot, after withholding the original as well as failure to oblige the request for certification, turn around to hold the Claimant on to technicalities by all means in order to defeat the interest of justice. It is no doubt that the Defendants were given notice to produce the original. The Defendants said they are not in the position to produce the original since they were not aware of its existence. Exhibit LFC1 emanated from the Defendant’s Pension Board which is an agency of the 1^st Defendant and the appropriate and relevant statutory and constitutional body responsible for the act upon which the document was competently issued. It is therefore preposterous for the Defendants in this case to dissociate themselves from the official acts of their statutory agency which acts are within the Board’s statutory and constitutional competence.

54. With respect Exhibit LFC2 which is an original document, it has been held in Gov. Ekiti State v Ojo (2006) 17 NWLR (Pt 1007) 95 at 129 paras B – D, that the fact that an employer happens to be the Government does not render a document issued to a private person a public document. See also the case of Abuul v BENSU (2003) 16 NWLR (Pt 845) 59.

55. The Court has held that the original document emanating from and issued by a public body to a private individual can be competently tendered by the addressee or the recipient beneficiary of the document who can produce that original from his private custody and competently tender same in Court.

56. Put differently, the law is that the original produced from his private custody is a private document and requires no certification. It is only where the copy sought to be tendered is said to be the one from the custody of the public body that same will require certification. This has been settled in the following cases by the infallible Court as well as the intermediate Courts: PDP v INEC & Ors (2014) LPELR – 23808 (SC); See Onnoghen, JSC in Iteogu v LPDC (2009) 17 NWLR (Pt 1171) 614. See also Anagbado v Faruk (2016) LPELR – 41634 (CA); Dana Impex Ltd v Aderotoye (2006) 3 NWLR (Pt 966) 78 at 103 paras B – D; and Omale v Federal Ministry of Lands, Housing and Urban Development & Ors (2015) LPELR – 25906 (CA).

57. The above principle of law of evidence is also applicable to Exhibit LFC4 which is the original letter of administration issued to the Claimant.

58. With respect to Exhibit LFC3, which is the Acknowledgment copy of the Pre-Action Notice written by the Claimant’s Solicitors to the Defendants, the contention of the Defendants is that only the one with the Defendants can be tendered and that it is the certified copy that will be the only admissible evidence. The Defendants have not contended that they were not given pre-action notice as required by the law.

59. It is now settled beyond peradventure that private correspondences addressed to public institution do not ordinarily automatically form part of public record of private document. While the private document is in the hand of the private individual, it remains a private document but when it gets to the custody of the public institution, it becomes part of record of private document kept in public custody and thus a public document. At all times, and particularly where the public institution denied being in custody of the said private document, the author or the person who authored and sent the document can validly tender his own filed copy in his private custody as copy of what he authored and sent to the public institution. This does not also require certification since it is a private document. Apt on this position of the law are the judicial precedents of Suu v Jobak (Nig) Ltd (2012) LPELR – 7932 (CA); IGP v Bello (2023) 1 NWLR (Pt 1865) 265; Onwuzurike v Edoziem (2016) LPELR – 26056 (SC); Ipigensi & Anor v INEC & Ors (2019) LPELR – 48907 (CA).

60. This Honourable Court is a specialized Court and so empowered by Section 12(2)(b) of its enabling Act thus: “Subject to this Act and any rules made thereunder, the Court – (b) shall be bound by the Evidence Act but may depart from it in the interest of justice.”

61. In Giwa & Ors v WEMA Bank (2021) LPELR – 54851 (CA), the penultimate Court dilated that, “The phrase ‘in the interest of justice’ refers generally to the cause of fairness and equity and is subject to the discretion of the Judge, taking into cognizance the peculiar circumstance of each case.”

62. In the light of the foregoing dilated established position of the law, I am of the view that this Honourable Court rightly admitted Exhibits LFC1, 2, 3 and 4 in evidence and I am on a firm ground to act on same in the determination of this case. I so hold.

63. In this instance, the Claimant presented Exhibit LFC1 and 2. The fact that the deceased employee worked and died in the service of the 1^st Defendant as alleged is established.

64. In light of Exhibits LFC3, 4 and 5, placed before this Honourable Court, the Claimant has shown by Exhibit LFC4 that William Jediel died intestate on 30^th May, 2018 and the Claimant has been legally appointed as the Administrator of the deceased Estate on 15^th August, 2023. The Claimant has also established the employment relationship of the deceased with the 1^st Defendant vide Exhibit LFC1 and 2. The Claimant has further established by Exhibit LFC2 the approval for payment of the deceased gratuity. I have seen in Exhibit LFC1 which contains the computation of the deceased gratuity put at N1,154,548.49 as calculated by the 1^st Defendant’s Pension Board. This figure tallies with the claim of Claimant in this case.

65. The Claimant also put it in evidence that this gratuity has remained unpaid till date in spite of the demand for same. I have seen Exhibit LFC3 dated 7^th August, 2023, the Claimant’s Solicitors Pre-Action Notice in proof of this demand for payment.

66. In view of the above, I am totally convinced and without hesitation moved to the bone by the evidence of the Claimant and to my view, the Claimant has sufficiently established her entitlement to the Relief 1 claimed by her except the Defendants can show any exonerating defence in this case.

67. Upon my calm review of the pleadings and adduced evidence, the only defence raised by the Defendants is that there exist a queue policy and requirements which the Defendants follow in the payment of gratuity and that the deceased employee and other State employees are aware of this policy by which payment is based on year of retirement subject to release of funds for same.

68. However, I have noted the response of the Defendants sole witness in the course of cross examination where the DW1 answered thus: Yes, there is no written policy in respect that retirees should queue up before getting their entitlements. It was an in-house arrangement to pay him first. Civil servants are not informed at the point of entry that they have to wait and queue before they get their entitlements.

69. It is thus obvious that there is no established legal policy in the Defendants as averred by the Defendants. The Defendants did not tender any documentary evidence of such policy document of the State Government to substantiate the existence of same and the applicability of same to the deceased retiree in the instant case.

70. It is trite law that a bare assertion which requires documentary exhibit to substantiate same remains an ipse dixit without the supporting document and it is not admissible where the further proof by documentary exhibit required is missing. See Busari & Anor v Adepoju & Ors (2015) LPELR – 41704 (CA); WEMA Bank Plc v Folorunso (2013) LPELR – 22040 (CA). There being no proof of the existence of the statement of policy relied upon by the Defendants, let alone any proof that such policy has been made into a legislation or subsidiary legislation or same written into the contract of employment between the Claimant and the Defendants, the assertion of the Defendants remain unsubstantiated before this Honourable Court. See generally the case of Comptroller General of Customs & Ors v Gusau (Supra) which is a decision of the Supreme Court of Nigeria. The defence of the Defendants failed woefully in this case.

71. The Claimant is claiming the sum of N5 million as general damages for the trauma, distress and the breach of obligations by the Adamawa State Government. The contention of the Defendants Counsel that this amount to special damages which must be pleaded and proved is not supported by the position of the law.

72. Distinction between special and general damages must be carefully observed. General damages are damages such as the law will presume to be the natural or probable consequence of the Defendant’s act. It needs not be specifically pleaded. It arises by inference of law and need not be proved by evidence and may be averred generally. Whereas special damages is such a loss as the law will not presume to be the consequence of the Defendant’s act but which depends in part, at least, on the special circumstances of the case. It must be specifically pleaded and proved by credible and cogent evidence. See Incar (Nig) Ltd v Benson Transport Ltd (1975) LPELR – 1512 (SC); NARINDEX Trust Ltd & Anor v NICMB Ltd (2001) LPELR – 1939 (SC).

73. It is a notorious position of the law that the award of general damages is at the discretion of the Court. It is my view that the deceased employee, who put in 32 years in service to the Defendants and died in service should not be made to face the unconscionable obnoxious unwritten policy of queue which is totally unacceptable and contrary to international labour practice. The Claimant is therefore entitled to nominal general damages in this case which I assess at N500,000 only in favour of the Claimant for the trauma and hardship caused the Estate of the deceased employee in this case.

74. The Claimant’s claim for the sum of N5 million as the cost of this action. This Honourable Court has now been given enormous discretion and powers to award cost of action by the provision of Section 40 of its enabling Act. This is in tandem with the principle that a successful party in litigation is entitled to be indemnified of the cost and expenses he was put through as a result of the litigation by the opposing party. This Honourable Court hereby grant the relief to the extent that N500,000 is by order of this Honourable Court assessed as the cost of the action against the Defendants in favour of the Claimant.

75. This Honourable Court is empowered to grant claim of post judgment interest and I am of the view that it is appropriate to incline to the granting of the post judgment interest sought by the Claimant in this instance in light of the consistently plummeting value of Naira and run-away inflation rate. Accordingly, 10% interest on the judgment sum in this suit, from date of judgment, and interest to so continue to run until the date of liquidation of the said judgment sum by the Defendants is by order of this Honourable Court granted as prayed.

76. The two issues for determination formulated by this Court are hereby resolved against the Defendants and in favour of the Claimant. Judgment is hereby entered to the extent set out herein below:

i.                    The Defendants are by order of this Honourable Court to pay the liquidated sum of N1,154,548.49 (One Million, One Hundred and Fifty Four Thousand, Five Hundred and Forty Eight Naira, Forty Nine Kobo) representing the outstanding gratuity due to the Late William Jediel to the Claimant.

ii.                  A sum of N500,000 (Five Hundred Thousand Naira) is by order of this Honourable Court awarded as nominal general damages for the trauma, distress and the breach of obligations of the Adamawa State Government to the Estate of the late William Jediel.

iii.               A sum of N500,000 (Five Hundred Thousand Naira) is assessed by order of this Honourable Court as the cost of action against the Defendants in favour of the Claimant.

iv.                10% interest on the total judgment sum in this suit, after 60 days of this judgment, and interest to so continue to run until the date of liquidation of the said judgment sum by the Defendants is by order of this Honourable Court granted.

77. This is my Judgment and it is entered accordingly.

                                                                                         _____________________________________________

                                                                       HON. JUSTICE J.T. AGBADU FISHIM PhD

                                                                                                 PRESIDING JUDGE

                                                                                                        30/1/2025