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/16/2023

BETWEEN:

SUGANFAKENI ABIGAIL SILAS (AS ADMINISTRATOR

OF THE ESTATE OF HAUWA SILAS DANUFI) -------------------------- CLAIMANT

AND

1.   ADAMAWA STATE GOVERNMENT

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

REPRESENTATIONS:

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

ASTA MICHAEL ESQ, 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 N2, 001,093.42 (Two Million, One Thousand and Ninety Three Naira, Forty Two Kobo) representing the outstanding gratuity due to the Late Hauwa Silas Danufi.

                                          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 Hauwa Silas Danufi.

                                       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 20^th of November, 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 20^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 22^nd 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 mother and tendered in evidence Exhibits Silas1 to Silas7.  Defendants Learned Counsel elected not to cross examine the CW1 but proceeded to open their defence.

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 21^st 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 Huawa Silas Danufi, who was her mother.

10. The Late Hauwa Silas Danufi was employed by Letter dated 3^rd December, 1980 and served the Defendants till 3^rd December, 2015, a period of 35 years of meritorious service. By a letter dated 31^st August, 2015, the Adamawa State Civil Service Commission approved her retirement from the services of the Defendants and the Adamawa State Pension Board which is an agency of the 1^st Defendant issued to her an “Approval for Payment of Pension and Gratuity” dated 15^th June, 2016 which detailed the years of service and all necessary service details and further issued a copy of document dated 12^th of July, 2016 which is a Computation of Retirement Benefit stating her entitlement to the sum of N2,001,093.42 as gratuity. That the Late Hauwa Silas Danufi however passed away on the 27^th of March, 2017 and neither she nor her Estate has been paid the gratuity.

11. The Claimant through Counsel Messr. Lexfield Chambers, demanded for the payment of the outstanding emoluments and gratuity due to the Late Hauwa Silas 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.

12. 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 retiree and has obtained Letter of Administration of the deceased Estate dated 15^th of August, 2023.

13. 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.

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

Exhibit Silas1: Letter of Employment dated 3^rd of December, 1980

Exhibit Silas2: Letter from Adamawa State Civil Service Commission to the deceased dated 31^st August, 2015 titled “Approval of Retirement from Service” Exhibit Silas3: Office of the Executive Chairman’s Adamawa State Government Pension Board document titled “Approval for Payment of Pension and Gratuity” dated 15^th June, 2016 and addressed to The Director of Finance of the Pension Board

Exhibit Silas4: Computation by the Adamawa State Government Pension Board of the deceased retiree’s entitlement dated 12^th July, 2016

Exhibit Silas 5: Acknowledgment copy of Claimant’s Solicitors Letter of demand and Pre-Action Notice dated 7^th August, 2023 written to Governor of Adamawa State and copied the 2^nd Defendant

Exhibit Silas6: Claimant’s Letter of Administration (Without Will) of the Estate of the deceased retiree dated 15^th August, 2023

Exhibit Silas7: Claimant’s Solicitors Letter for CTC of Exhibit Silas4.

CASE OF THE DEFENDANTS

15. By the averment in defence and the evidence led by the Defendants, DW1 testified he is Dennis Haslon, civil servant with the Adamawa State Pension Board; particularly he is the Director of Administration. The Defendants admitted paragraphs 2 and 3 but denied paragraphs 4, 5, 6, 8, 9, 10, 11 – 15 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 15^th June, 2016, a statement of final emolument and document titled LFC/07/08/2023 and that the Defendants are not in a position to produce original of Exhibits 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.

16.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.

17.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.

18.That all serving or retired employees who have satisfied the requirements and are entitled to be paid have been receiving their payments in accordance to 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.

19. In his cross examination, DW1 admitted thus: Yes, I am aware that if I tell a lie to the Court I could be charged for a criminal offence. Yes, I know that there is no written policy that pensioners should queue. We can pay as long as Government makes funds available we pay. Yes, I maintained that there is no policy of payment of pension to all the retirees.

DEFENDANTS’ FINAL ADDRESS

20. 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 her case?

21. 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 of retirement, computation of benefits etc and thus raised reasonable doubt about the Claimant’s allegation.

22.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.

23. Defendants Counsel argued that not only is the Claimant’s narrative marred by material contradictions, distortion and omissions which caste serious doubts on their credibility but also 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.

24. 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.

25. 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.

26. 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.  

27. 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 Silas2, 3 and 4, being uncertified copies of public documents are not admissible and as such, this Honourable Court should expunge same out of its record.

28. 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.

29.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.

30. 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

31. 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?

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

33. Claimants Learned Counsel pointed out that by Exhibit Silas1, Claimant established that the deceased was employed, worked, retired and her retirement approved by Exhibit Silas2, her payment of pension and gratuity approved by Exhibit Silas3, the gratuity computed to be the sum claimed in this Suit by Exhibit Silas4 and that the Claimant up to the point of her death, while the Defendants kept her waiting in an odious queue up, was not paid.

34. Claimants argued that Exhibits Silas1, 2, 3 are original copies while Exhibit Silas4 is a certified copy of public document which all remain unchallenged or impeached by the Defendants but only that the Defendants are seeking to defeat this action by technicalities that Exhibits Silas 2, 3 and 4 are uncertified and that the issuance of Exhibits Silas 3 and 4 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.

35. Claimant Learned Counsel cited and relied on the judicial authority of Anagbado v Faruk (2018) LPELR – 44909 (SC) to the effect that Exhibits Silas2 and 3 being originals, do not require certification.

36.With respect to Exhibit Silas4, Claimant Learned Counsel referred to Exhibit Silas7 requesting for the certification and consequent to which same was certified. Learned Counsel argued the Exhibit Silas4 is a certified true copy and thus the contention of the Defendants is misplaced on this score.

37. 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.

38. 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. Learned Counsel argued that it is therefore sheer wickedness to hold that an employee who had put in 35 years of service and retired should queue and wait and remained unpaid till death. Learned Counsel argued that the deceased died in penury awaiting the payment of her earned gratuity and now the Defendants wished her daughter also died in the queue before effecting payment. 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.

39. Finally, on Exhibits Silas2, 3, and 4, Claimant Learned Counsel argued that even if it were correct and true that these were 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 retirement 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.

40.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 is claim for general damages and not special damages while the relief on the sum of gratuity is established by Exhibit Silas4. 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.

41.Claimant Learned Counsel argued that given the fact that the Claimant’s mother died in an odious and illegal queue for gratuity, leaving the Claimant and her Counsel to traverse Gombe to Yola seeking for the payment thereof, whereas the gratuity ought to have been paid by the Defendants since 2015, 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

42. 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?

43. 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)

44. In line with the above principles of evidence law, the Claimant who claims that Hauwa Silas Danufi was a retired employee of the Defendants 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.

45. 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).

46. At this stage, this Honourable Court will resolve the contention of parties on the admissibility of Exhibits Silas2, 3 and 4. The sole ground of objection is that these are public documents which are not certified true copy. I have looked at and examined Exhibit Silas2 and noted that it is an original addressed to the deceased retired employee Hauwa S. Danufi. Exhibit Silas3 is also an original issued in favour of the said deceased, while Exhibit Silas4, I have noted is a Certified True Copy by the Permanent Secretary, Adamawa State Pension Board, Yola.

47. What is the position of the law with respect to Exhibits Silas2 and 3? In Gov. Ekiti State v Ojo (2006) 17 NWLR (Pt 1007) 95 at 129 paras B – D, the Court categorically and emphatically pronounced that because an employer happens to be the Government does not render the employee’s letter of employment a public document. See also the case of Abuul v BENSU (2003) 16 NWLR (Pt 845) 59. 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, the recipient beneficiary of the document who can produce that original from his private custody and competently tender same in Court.

48. 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).

49. With respect to Exhibit Silas4, it is obvious that same is a Certified True Copy of public document. The law is settled that anyone who procured a certified copy of public document is competent to tender same in evidence. The argument of the Defendants on this score is therefore misconceived. Exhibit Silas4 is properly before this Court and this Court can act on it, there being no evidence in rebuttal. See Agagu v Dawodu (1990) 7 NWLR (Pt 160) 56; G. Cappa Ltd v Daily Times of Nig Ltd (2013) LPELR – 22028 (CA); Salami v Ajadi (2007) LPELR – 8622 (CA).

50. Exhibit Silas4 which is a Certified True Copy of Computation of Retirement Benefits dated 12^th July, 2016. The contention of the Defendants is very laughable. The Defendants are holding 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 Silas4 emanated from the Defendant’s Pension Board while Exhibit Silas2 emanated from the Defendant’s Civil Service Commission. These are agency and commission of the 1^st Defendant. These bodies are the appropriate and relevant statutory and constitutional bodies responsible for the act upon which these documents were competently issued. It is therefore preposterous for the Defendants in this case to dissociate themselves from the official acts of their constitutional bodies and statutory agency which acts are within their statutory and constitutional competence.

51.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.” 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.”

52. In the light of the foregoing dilated established position of the law, I am of the view that this Honourable Court rightly admitted Exhibits Silas2, 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.

53. In this instance, the Claimant presented Exhibit Silas1 which is unchallenged by the Defendants. The fact that the deceased retired employee worked and retired as alleged is not in dispute in this case. In addition, Exhibits Silas 5, 6 and 7 remain unchallenged by the Defendants. These documentary exhibits are not denied, challenged or controverted by the Defendants and as such, this Honourable Court can act on them in the determination of this case. See Zaagubo v. Parepare (2021) LPELR – 56421 (CA); Eko Odume v. Ume Nnachi & Ors. (1964) 1 All NLR 329, Ajibade v. Mayowa & Anor (1978) 9 - 10 SC 1 and Attorney-General of Anambra State v. C.N. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt. 66) 547.

54.In the light of these documentary exhibits placed before this Honourable Court, the Claimant has shown by Exhibit Silas6 that the Hauwa Silas Danufi died intestate on 27^th March, 2017 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 and retirement of the deceased with the 1^st Defendant vide Exhibit Silas1 and 2. The Claimant has further established by Exhibits Silas3 the approval for payment of the deceased pension and gratuity. I have seen in Exhibit Silas4 which contains the computation of the deceased gratuity put at N2,001,093.42 as calculated by the 1^st Defendant’s Pension Board. This figure tallies with the claim of Claimant in this case.

55. The Claimant also put it in evidence that this gratuity has remained unpaid after the retirement since 2015 and during the lifetime of the deceased and despite demand for same. I have seen Exhibit Silas5 dated 7^th August, 2023, the Claimant’s Solicitors Pre-Action Notice in proof of this demand for payment.

56. 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.

57. 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.

58. However, I have noted the response of the Defendants sole witness in the course of cross examination where the DW1 answered thus: Yes, I am aware that if I tell a lie to the Court I could be charged for a criminal offence. Yes, I know that there is no written policy that pensioners should queue. We can pay as long as Government makes funds available we pay. Yes, I maintained that there is no policy of payment of pension to all the retirees.

59. 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.

60. 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.

61. In light of the foregoing findings and holdings of this Honourable Court, I hereby hold that the Claimant has proved her case as required by the law and the Defendants have failed to establish any defence against liability. The Claimant is hereby entitled to Relief 1 as claimed.

62. The Claimant is claiming the sum of N5 million as general damages for the trauma, distress and the breach of obligations of the Adamawa State Government to the Estate of the late Hauwa Silas Danufi. 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.

63. 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).

64. 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 35 years in service to the Defendants and retired without being paid his pensions and gratuity and left to face impecuniosity as a senior citizen, and subsequently died without enjoying the fruit of her labour of 35 years, and still the Defendants made her Estate to posthumously pass through the rigor and hardship of litigation, is entitled to general damages in this case.

65. 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 grants 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.

66. 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, after 60 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.

67. 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 N2, 001,093.42 (Two Million, One Thousand and Ninety-Three Naira, Forty Two Kobo) representing the outstanding gratuity due to the Late Hauwa Silas Danufi to the Claimant.

ii.                  A sum of N500,000.00 ( Five Hundred Thousand Naira) is by order of this Honourable Court awarded as general damages for the trauma, distress and the breach of obligations of the Adamawa State Government to the Estate of the late Hauwa Silas Danufi.

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.

68. Judgment is entered accordingly.

                                                                    _______________________________

                                                                                       HON. JUSTICE J.T. AGBADU FISHIM PhD

                                                                                                        PRESIDING JUDGE

                                                                                30/1/2025