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 FEBRUARY, 2025                      

SUIT NO: NICN/YL/15/2023

BETWEEN:

COMFORT SANGA --------------------------------------------------------- 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.

M.M. HAMIDU ESQ, Senior State Counsel 1, Adamawa State Ministry odf 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.                        Liquidated sum of N1,583,553.81 (One million, five hundred and eighty-three thousand, five hundred and fifty-three Naira, eighty-one Kobo) representing the outstanding gratuity due to her.

                                     ii.                        Liquidated sum of N246, 335.95 (Two hundred and forty six thousand, three hundred and thirty five Naira, ninety five Kobo) being accrued unpaid pension for seven months, due to her.

                                       iii.                        The sum of N5 million being general damages for the trauma, distress and the breach of obligations of the Adamawa State Government to her.

                                        iv.                        The sum of N5 million being the cost of action.

                                           v.                        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 17^th of October, 2023 entered appearance and on the 24^th of October, 2023 filed a Joint Statement of Defence accompanied by the Defendants’ List of Witnesses and Statement on Oath of Mr. Dennis Haslon.

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. Claimant tendered in evidence Exhibits Comfort1 to Comfort4.  Defendants Learned Counsel chose not to cross examine 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 23^rd of October, 2024 while the Claimant on the 13^th of November, 2024 filed her Final Written Address dated 12^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. The Claimant was employed by the Defendants by a Letter dated 22^nd May, 1989 as a Civil Servant and served the Defendants till her retirement on 28^th November, 2021, a period of 35 years of meritorious service. By a letter dated 3^rd March, 2022, the Adamawa State Civil Service Commission approved her retirement from the services of the Defendants and on upon her retirement, the Adamawa State Pension Board which is an agency of the 1^st Defendant issued and availed her a copy of document dated 2^nd June, 2022 which is a Computation of Retirement Benefit stating her entitlement to the sum of N1,583,553.81 as gratuity. That till date she has not been paid the gratuity. That her monthly pension of the sum of N35,190.85 should have commenced from December, 2021 but the Defendants only commenced the payment in June, 2022, thereby leading to an accrued outstanding of N246,335.95 due to her.

10. That the Defendants delayed the payment of her monthly pension for a period of seven months which accrued to the sum N246,335.95.

11. The Claimant through her Counsel Messr. Lexfield Chambers, demanded for the payment of the outstanding emoluments and gratuity due to the Claimant, giving the Defendants one month notice of intention to sue dated 4^th of August, 2023 and upon the expiration of same, and the Defendants still not making any effort to liquidate the outstanding gratuity and accrued unpaid pension, the Claimant filed this action.

12. That under the circumstances, given the laws, policies and letters of appointment issued by the 1^st Defendant, the Defendants have no good defence to the claim for the outstanding emoluments and gratuities.

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

Exhibit Comfort1: Letter of Appointment dated 22^nd May, 1989

Exhibit Comfort2: Approval of Retirement from Service dated 3^rd March, 2022

Exhibit Comfort3: CTC of Retirement benefits computation dated 2^nd June, 2022

Exhibit Comfort4: Demand Letter/Pre-Action Notice dated 4^th August, 2023

CASE OF THE DEFENDANTS

14. 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, 3 and 8 but denied paragraphs 4, 5, 6, 7, 9, 10 – 12 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 and the Computation of Retirement Benefits dated 2^nd July, 2022 and that the Defendants are not in a position to produce original of the Computation 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.

15. That payment for backlog of pension arrears has since commenced and is in progress based on retirement date, currently the next scheduled to receive payments are those retirees for the Month of July, 2021 while the Claimant retirement date is November, 2021 few months in between.

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 confirm that there is no circular that retiring staff will queue up before collecting their pension. Yes, because of any in-house arrangement someone can be paid without queueing. Yes, also at the point of entry and exit, civil servants are not informed that they will have to queue up to collect their entitlement. I will not be happy to wait for 15 years post retirement before collecting my pension. 

DEFENDANTS’ FINAL ADDRESS

20. In the adopted Final Written Address, Defendants formulated sole issue for determination as follows:

i.                    Whether from the facts and evidence before the Court, the Claimant is entitled to N5 million general damages against the rule of double compensation?

21. On the above sole issue, Defendants Counsel posited that the burden of proof lies on the Claimant to establish her case by cogent and credible evidence on preponderance of evidence and balance of probability. Learned Counsel cited and relied on Section 134 and 136 of the Evidence Act, 2011 as well as the judicial authorities of Kate Enterprises Ltd v Daewoo Nigeria Ltd (1985) 7 SC 1, Nwadike v Ibekwe (2018) LPELR – 46073 (CA) and Sawaba v Gaadi (2006) All FWLR (Pt 823) 1880 para B. Defendants Learned Counsel contended that the Claimant who claimed to have suffered trauma, distress and thus general damages of N5 million did not place any material evidence or expert witness to substantiate the allegations of trauma, distress and breach of obligations.

22. Defendants Counsel argued that an award of general damages in favour of the Claimant in this case will violate the rule against double compensation. Learned Counsel relied on the authorities of U.B.A v Ishola (2001) 15 NWLR (Pt 735) 47 at 86 para B and Edun v Provost, LACOED (1998) 13 NWLR (Pt 580) 52. Defendants Learned Counsel urged the Court to decline that relief on general damages.

CLAIMANT’S FINAL WRITTEN ADDRESS

23. 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?

24. On the lone Issue, Claimant Learned Counsel posited that the Claimant has by credible and cogent evidence established that she was a civil servant as an employee of the 1^st Defendant and retired and was entitled by Pension Act and contract to the gratuities and pension claimed and till date has not been paid by the Defendants.

25. Claimants Learned Counsel pointed out that the Defendants Counsel did not canvass any argument with respect to their defence but only dwelt on the general damages sought by the Claimant. Learned Counsel also pointed out that the DW1 merely adopted his Statement on Oath without tendering any document to back up the assertions of existence of any statement of policy that retirees are required to queue for payment of retirement benefit and pension.

26. Claimant Learned Counsel argued that by Exhibit Comfort1 and Comfort2, Claimant established that the Claimant was employed, worked, retired and her retirement approved, and her gratuity computed to be the sum claimed in this Suit by Exhibit Comfort3 and that the Claimant has not been paid till date by the Defendants despite demand as evidenced by Exhibit Comfort4.

27. Claimants Learned Counsel argued that the DW1 did not disown these exhibits and the Defendants did not lead any evidence to dispute or discredit the exhibits. 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 on existence of policy that is not supported by evidence go to no effect.

28. Claimant Learned Counsel argued that the Certified True Copy of the Computation of Retirement Benefits of the Claimant issued by the Defendants Pension Board has clearly shown the gratuity entitlement of the Claimant in this case.

29. 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.

30. 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 circular 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.

31. With respect to the general damages being claimed by the Claimant in this case, Claimant 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.

32. Claimant Learned Counsel argued that given the fact that the Claimant, a retiree with no means traversed Gombe to Yola with Counsel, seeking for the payment of her gratuity, whereas the gratuity ought to have been paid by the Defendants since 2022, 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

33. 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?

34. 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)

35. In line with the above principles of evidence law, the Claimant who claims that she was a retired employee of the Defendants entitled to gratuity and unpaid pension which had been demanded but remained unpaid, must adduce credible and cogent evidence in proof of these facts.

36. 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).

37. I have noted that the Defendants Learned Counsel did not canvass argument with respect to the evidence led before this Honourable Court. I have also noted that the Defendants did not cross examine the Claimant on Exhibits Comfort1 to Comfort4 tendered and admitted in evidence. In the light of the above, this Honourable Court is of the view that the Defendants have accepted and conceded the authenticity and regularity of the respective documentary evidence. 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.

38. In the light of these documentary exhibits placed before this Honourable Court, the Claimant has shown the employment relationship and retirement from the service of the 1^st Defendant vide Exhibit Comfort1 and Comfort2. The Claimant has further established by Exhibits Comfort3 the computation of the Claimant’s pension and gratuity. I have seen in Exhibit Comfort3 the computation of the gratuity put at N1,583,553.81 as calculated by the 1^st Defendant’s Pension Board. This figure tallies with the claim of Claimant in this case.

39. The Claimant also put it in evidence that this gratuity has remained unpaid after the retirement since 2021 and despite demand evidenced in Exhibit Comfort4, the Claimant’s Solicitors Pre-Action Notice in proof of this demand for payment.

40. 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.

41. With respect to Relief 2 on due and unpaid pension, I have noted that the Defendants did not deny the allegation of the Claimant of being owed seven months’ pension at N35,190.85 monthly but tacitly admitted the claim at paragraph 5 of the Joint Statement of Defence pleading backlog of pension arrears as the reason for the failure or delay in the payment and that payment is now in progress based on retirement date. I have also examined the evidence-in-chief of the Defendants sole witness and noted that no evidence was led in proof of this averment of the Defendants.

42. While it is the law that facts admitted require no further proof, see Section 123 of the Evidence Act, 2011 as well as the judicial authorities of Citi Bank (Nig) Ltd v Ikediashi (2020) LPELR – 49496 (SC); Idi v Rabiu & Anor (2020) LPELR – 49993 (CA), the failure of the Defendants to lead evidence in proof of their assertion of backlog of pension arrears also amount to abandonment of that averment, as it is trite law that an averment in pleading upon which no evidence is led goes to no issue and deemed abandoned. See Magnusson v Koiki & Ors (1993) LPELR – 1818 (SC); Omoboriowo & Ors v Ajasin (1984) LPELR – 2643 (SC); Ifeta v SPDC Nig Ltd (2006) LPELR – 1436 (SC).

43. Going further in this case, and 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 Claimant 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.

44. However, I have noted the response of the Defendants sole witness in the course of cross examination where the DW1 answered thus: Yes, I confirm that there is no circular that retiring staff will queue up before collecting their pension. Yes, because of any in-house arrangement someone can be paid without queueing. Yes, also at the point of entry and exit, civil servants are not informed that they will have to queue up to collect their entitlement. I will not be happy to wait for 15 years post retirement before collecting my pension.

45. 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 Claimant in the instant case.

46. 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.

47. 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 Reliefs 1 and 2 as claimed.

48. 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 Claimant. The contention of the Defendants Counsel is that the Claimant did not lead evidence in proof of the general damages and that an award of same in this case will violate the rule against double compensation.

49. It is therefore apposite to briefly state the nature and principles of general damages as distinct from special damages. 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. The grant of general damages is totally at the discretion of the Court. 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).

50. The Court has considered when general damages will be granted in employment or labour litigation in addition to any specific claim made. Examples are cases where sharp practices, unfair labour practices are made out. Also where the conduct of the employer is such that is highly arbitrary and unconscionable or where it undoubtedly wreaked havoc or caused hardship on the Claimant which ought to be compensated by nominal damages. As such, it is my view that the Claimant, who put in 35 years in service of the Defendants and retired and her pensions withheld for seven months without any justification and her gratuity remained unpaid despite demand but made to go through the rigor of litigation as a senior citizen of this Country and more so the unfair labour practice of unwritten policy of the Defendants, is entitled to general damages in this case. See Board of Management of FMC, Makurdi v Kwembe (2015) LPELR – 40486 (CA), Mogaji v Benue State University (2022) LPELR – 56727 (CA). This in my view does not amount to double compensation.

51. I hereby award general damages of N500,000 only against the Defendants in favour of the Claimant in this case.

52. 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.

53. 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.

54. 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 N1,583,553.81 (One Million, Five Hundred and Eighty-Three Thousand, Five Hundred and Fifty-Three Naira, Eighty-One Kobo) representing the outstanding gratuity due to the Claimant.

ii.                  The Defendants are also by order of this Honourable Court directed to forthwith and immediately pay to the Claimant the sum of N246,335.95 (Two hundred and Forty Six Thousand, Three Hundred and Thirty Five Naira, Ninety Five Kobo) being accrued unpaid pension for seven months, due to the Claimant which has been admitted by the Defendants in this case.

iii.               A sum of N500,000 (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 Claimant.

iv.                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.

v.                   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.

55. This Judgment is entered accordingly.

                                                                                                       _____________________________________

                                                                                      HON. JUSTICE J.T. AGBADU FISHIM PhD.

                                                                                                     PRESIDING JUDGE

                                                                                                            30/1/2025