BACK

NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

11TH FEBRUARY 2026                                         SUIT NO: NICN/CA/11/2022

BETWEEN:

Ikwo Okomomm0oh Ntem-Ikpi …………………………………………………… Claimant

AND

1.   Government of Cross River State

2.   Attorney-General of Cross River State                                   defendants

3.   Commissioner for Health, Ministry of Health

Cross River State.

JUDGMENT.

1.   The Claimant approached this Court on 30th day of March, 2022, via her General Form of Complaint along with statement facts, witness statement on oath, list of witnesses, list of documents and photocopies of documents to be relied on at trial. A motion on notice for summary judgment was filed together with the general form of complaint. Vide paragraph 10 of the amended statement of facts amended by order of court made on 29/1/2025 and filed on 16th April, 2024, the claimant prays for the following reliefs:-

1.   The sum of Ten million, Seven Hundred and Sixty-Nine Thousand, Two Hundred and Twenty Naira (10,769,220) being claimant’s gratuity already computed by the defendants pending payment.

2.   The sum of 1.5 million naira for legal services rendered by the claimant counsel (Ntem Ikpi & Associates, Ugep) in favor of the claimants.

3.   Interest at the rate of 10% per annum from March 2019 till the date of judgment and thereafter 10% per annum until the entire judgment debt is completely liquidated.

2.           The Defendants filed their statement of defence on 1/11/2022. This process was accompanied by Defendants’ list of witnesses, witnesses’ statements on oath as well as list and copies of documents to rely on at trial. The claimant’s reply to the statement of defence was filed on 16/4/2024.

3.           The claimant testified in proof of her case as CW1. CW1 adopted her witness statement on oath as her evidence in this case. Fourteen documents were tendered in evidence through CW1. They were marked as exhibits A to N. 

4.           CW1 was cross examined by counsel for the defendant, wherein in her testimony under cross examination, CW1 stated that she retired on 5/3/2019. She has paid her due for collecting the Laptop. She stated that the payment for laptop was through deductions from her salary. Exhibits K, L, M and N, were tendered in proof of deductions from salary in payment for laptop. The witness said by exhibit N, she paid in September, 2015, exhibit M, she paid for in May, 2014. She paid for 17 months till September, 2015 payment completed. She came to court to fight for her right. For exhibit B she paid N1,000,000.00  cash to her counsel and receipt was issued to her she agreed her pension was being paid but her gratuity was not paid. She does not want to know whether others have not been paid; she is fighting for her right.

5.           For the defendant one Meshack Nyong, testified in defence of the defendants as DW1. DW1 adopted his witness statement on oath as his evidence in this case. Five documents were tendered in evidence through this witness. They were admitted in evidence and marked as exhibits DW1A to DW1E.

6.           Under cross examination DW1 testified that he is not opposed to claimant's being paid gratuity. He is aware the claimant had not been paid gratuity. All the documents tendered by the claimant are genuine. 

THE CASE OF THE CLAIMANT

7.           The claimant joined the service of Cross River State government as a student mid-Wife on 5/3/1984 and retired from service on 5/3/2019, as a Director (Public health) on salary grade level 16. The claimant had not been paid her gratuity in the sum of N10,769,220.00 after meritorious service to the government rendered for Thirty-Five years. The claimant’s gratuity has been withheld and refused to be paid by the defendants despite series of demands.

     THE CASE OF THE DEFENDANT.

8.           The position of the defendants is that the claimant deliberately refused to inform the government when she is due to retire and was still receiving salaries after retirement instead of pension allowance. The claimant is owing the government for the laptop that was supplied to her while still in service. There is no time frame within which gratuity will be paid, as payment is ongoing as retired civil servants are paid according to their year of retirement from service. Counsel for the claimant and the claimant herself are a married couple, so his wife would not have paid him any money not to talk about One Million Five Hundred Naira. The claimant’s claim is pre-mature.

THE SUBMISSION OF THE DEFENDANT.

9.           O. O. Ebang, Senior State Counsel, Ministry of justice, Calabar, appearing for the defendants, adopted the final written address of the defendants filed on 9/10/2025, as his argument in this case. In the final written address, a single issue was formulated for determination, to wit:-

Whether from the evidence, facts and circumstances of this case the Claimant is entitled to any of the reliefs sought in this suit.

10.        In arguing the sole issue counsel refers to relief one, (1) and submitted that it is not in dispute that the claimant having retired from service, is entitled to the payment of her gratuity. The defendants have never denied statutory obligations. However, the defendant witness during cross-examination acknowledged that the State Government, due to financial constraints has adopted a phased arrangement in clearing outstanding gratuities. He further stated that payments are currently being made in batches and the claimant being in the 2019 batch has already been duly captured in the current batch being processed for disbursement. It is therefore evident that the claimant’s demands are already receiving due attention.

11.        Counsel submitted that the law is settled that the court does not make an order in vain.  In Governor of Ekiti State Vs. Olubunmo (2017) LPELR-42102 (CA), the Court of Appeal held that where an act complained of is already being addressed, there is no need for the court to make an order compelling the same. Also, see A. G Federation V. Abubakar (2007) 10 NWLR (pt. 1041) at 75; Ekpeyoung v. Nyong (1975) 2 S.C. 71. Thus, to enter judgment in this circumstance will amount to compelling the defendant to do what he is already doing in good faith.  We most respectfully urge this Honorable court to refuse the claimants relief on the first claim as it is currently being attended to.

12.        Counsel also argued in the alternative, in the event that this Honorable Court is inclined to enter judgment in favor of the claimant, counsel urged the court to take judicial notice of the efforts of the defendant in processing and paying gratuities in batches, including the claimants own entitlement. Counsel urged the court to find and hold that the claimant is not entitled to the grant of relief 1.

13.        On relief two (2), the claim for the cost of litigation assessed at 1.5 million Naira, counsel submitted that from the facts and evidence before the court, it is claimed as special damages. The law is trite that solicitors’ fees are in the nature of special damages which must be specifically pleaded and strictly proved. To support his contention counsel refers tyo the case of NURTW & ORS v. FIRST CONTINENTAL INSURANCE CO. LTD (2019) LPELR-48005(CA).

14.        Counsel further submitted that a cursory look at the receipt exhibited will reveal that the claim for the sum of 1.5 Million Naira is for professional fees paid by the Claimant to her Solicitor to prosecute this suit, is not allowed in law. In support of this position counsel relied on the case of Nwanji v. Coastal Serv. (Nig.) Ltd. (2004) 11 NWLR (Pt. 885) 552.

15.        Counsel also submitted that the main cause of action of the Claimant in this suit is the non-payment of the sum of 10 million (Ten Million Seven Hundred and Sixty-Nine Thousand Two Hundred and Twenty) Naira only, being the claimant’s gratuity calculated by the defendant and not the professional fees paid to her solicitors. In the case of MICHAEL V. ACCESS BANK (2017) LPELR-41981(CA) 1 at 48-49, the Court stated thus:

“It seems to me that a claim for Solicitors fees which does not form part of the cause of action is not one that can be granted. A relief which a claimant in an action is entitled to, if established by the evidence, are those reliefs which form part of the cause of action…Therefore, I think that on the current state of the law, a claim for Solicitors fees, which does not form part of the Claimant’s cause of action is not one that can be granted”.

16.        It was submitted by counsel that a claim for solicitors’ fees is a private arrangement between counsel and client, to saddle the opposing party with it would amount to double compensation and unjust enrichment.

17.        Counsel further draws the court's attention to the fact that in this case, the claimants’ solicitor is her spouse. The law presumes that services rendered between spouses are gratuitous and not intended to give rise to a binding contract enforceable in law. Granting such a claim my lord, is an attempt to enrich oneself in the guise of legal representation and offends public policy. Counsel urged the court to find and hold that the claimant is not entitled to the grant of relief 2.

18.        On relief three (3), interest at the rate of 10% per annum from March 2019 till the date of judgment and thereafter 10% per annum until the judgment debt is completely liquidated. Counsel submitted that the law is settled that he who asserts must prove. See Secs 131 (1) & 132 of the evidence act 2011(as amended) and the case of Abayomi Vs. Saap-tech Nig. Ltd (2020) 1 NWLR (pt 1706) 453 at 492. Thus, the onus is on the claimant to establish this in her pleading and evidence of her entitlement to justify the claims.

19.        Counsel posited that the principle for award of pre- judgement interest is trite, pre judgment interest is not awarded perfunctorily. A party who claims pre-judgment interest must plead and prove their claim to interest. To support this view counsel relied on the cases of DANTAMA Vs. UNITY BANK PLC (2015) LPELR 24448 (CA) 22-23 AND INTERDRILL NIGERIAN LTD & ANOR Vs. UNITED BANK FOR AFRICA PLC (2017) 13 NWLR (PT 1581) 52 AT 72-73.

20.        According to counsel, in the instant case, the claimant has failed to plead or prove any contractual clause or statutory basis entitling her to pre-judgement or post judgment interest at 10% per annum. Her claim is therefore baseless and in bad faith especially owing to the fact that the claimant is already captured in the current batch being processed for gratuity payment.

21.        According to counsel, interest is compensatory and not punitive, thus, to grant 10 % interest in this case, in the absence of any proven entitlement would amount to punishing the defendant.

22.        Counsel also submitted that under Order 47 Rule 7 of the NICN (Civil Procedure) Rule, 2017, has empowered this court to in its discretion to award post judgment interest. However, this provision is discretionary and not automatic. The claimant cannot as of right demand 10% pre-judgment and post judgement interest. Counsel urged the court to hold that the claimant’s claim for 10% interest rate of pre- judgment and post judgment sum is misconceived and refuse the same in its entirety. Counsel urged the court to resolve the lone issue raised for determination in the negative against the claimant.

THE SUBMISSION OF THE CLAIMANT.

23.        K. Ntem Ikpi, Esq; counsel for the claimant adopted the claimant’s final written address which was franked by him as his argument in this case. in the final written address, a single issue was formulated for determination, to wit:

Whether the Claimant has discharged the anus of proof to be entitled to judgment on the reliefs sought.

24.        In arguing the sole issue for determination counsel refers to section 254C(1) (k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides inter alia that this Honourable Court has the jurisdiction to hear and determine matters “relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto”

25.        Counsel also refers to section 136 (1) of the Evidence Act, 2011, which is to the effect that the burden of first proving a fact lies on the party against whom the judgment of the court would be given if no evidence is produced on either side.

26.        Counsel submitted that from the evidence adduced, the claimant has shown that there is nothing even in the statement on oath of DW1 that has controverted or challenged the evidence of the claimant. In other words, throughout the gamut of evidence of the clamant, the defendants have not controverted or challenged any. In such circumstance, of unchallenged evidence and no-denial of facts, the court has an obligation to act on such unchallenged evidence, before it. In support of this submission counsel relied on the case of MOBIL PRODUCING NIG UNLIMITED V MONOKPO No2 2001 FWLR pt 78 p1210 at 1218 R6; ATT- GEN ANAMBRA STATE V ATT GEN FEDERATION 2005 Pt 268 p1557 at 1565 R6. YA’U V DIKWA 2001 FWLR pt 62 p1987 at 19996 R18 and ZABOLEY INTERNATIONAL LTD V OMEOGBEIN 2005 AFWLR pt 278 p 1172at 1175 Rs 5 & 6.

27.        Counsel also refers to evidence of DW1 under cross examination on 25/5/2025, where he admitted that the claimant is entitled to the amount claimed and the same has not been paid to her. It is trite law that whatever is expressly admitted, as the foregoing, requires no further proof. See A.C.B. Ltd v GWAGWADA (1994) 5 NVVLR (pt 342) 25.

28.        Counsel submitted that the defendant had falsely claimed that;-

1.   The claimant did not inform Government when she was due for retirement and was still receiving salaries,

2.   the claimant is still owing for laptop supplied to her while still in service.

3.   there is no time limit for payment of gratuity 

4.   “Counsel to the claimant and the claimant herself are a married couple so his wife would not have paid him  . . . . .to prosecute this case.”

29.        Counsel submitted that the claimant frontloaded, tendered and were admitted in evidence as exhibits: Letter of Notification of Retirement dated 21/9/2018 (Ex F) and Defendants’ Reply to letter of Notification dated 18l10/2018 (Ex 10) to show that the defendants were duly informed and in good time of her date of retirement. This evidence was not dislodged or controverted under cross examination.

30.        It was submitted that in respect of the laptop, the claimant admitted collecting laptop from the defendants for the sum of N115,000.00 only but stated further that the defendants recovered same amount from her salary within seventeen months, that is, May, 2014 to September, 2015 by deducting the sum of N6,764.17 each month, until the entire debt was completely liquidated. The claimant tendered and were admitted in evidence four pieces of her “Pay Advice” (aka pay slip) for the months of April and May, 2014 (where she started payment) and September and October, 2015, (where she ended the payment) to show the relevant period when the deductions commenced and ended. Under cross examination on 21/5/2025, the claimant reaffirmed the same position, stating unequivocally that she was not indebted to the defendants in anyway whatsoever.

31.        The defence posits that one of the Solicitors of this Law Firm and the claimant are married couple and therefore the law firm is not entitled to payment of professional fee or to charge for their labour. On the other hand, the claimant argues that the law firm of Ntem Ikpi & Associates which she briefed to represent her and which issued her the Cash Receipt evidencing her payment of the professional fee is a separate and distinct legal entity or personality from her husband. She proceeded to tender the Certificate of incorporation of the said law firm of Ntem Ikpi and Associates and the same was admitted as exhibit. Counsel submitted that the lame argument of the defence is predicated on a misconception of the law,

32.        Counsel continued his submission that the law is settled that denial of the claimant’s averment per se vide the statement of defendant without proving the denial by evidence cannot defeat the claimant’s established claim. On this sub mission reliance was placed on the case of Insurance brokers v Atlantic Textiles (1996) 9 K L R (Pt 44) 1675.

33.        It is submitted that  at this stage, the onus of proof has shifted and it was incumbent on the defendants who asserted affirmatively the existence of a fact or issue (not claimant) to show that the claimant was receiving salaries after her due date of retirement and that she still owes foe laptop supplied to her. This, the defendants have bluntly refused or neglected to do. The burden of proof may shift depending on how the scale of evidence preponderates.  In ABDULLAH! V TASHA (200) F WLR pt  81  p1807 at 1812 H12 & at 1827 – 1828 paras H – A the Court stated the law thus:

“The onus of proof is said not to be static because in civil suits and proceedings certain facts may be admitted by the defence which make for the adducing of evidence irrelevant. Yet, by the state of pleadings, some facts averred in the defendant’s pleading may be such that in the course of trial, he is obliged to establish them not to cast the burden on the plaintiff to prove otherwise”

34.        Counsel also submitted that the defendant ought to prove to the court with specific evidence. All the allegations contained in paragraph 4.05 above more so as these facts are within the knowledge of the defendants and failure to do this amounts to admission of facts. This was the decision of the Court in MAMMAN V DAMBE (2002) FWLR pt 86 p428 at 433 H 8, the court held thus;

Where the plaintiff pleads specific facts which are deemed to be within the knowledge of the defendant, the defendant ought not simply to “deny” but should proffer facts to counter the plaintiff’s allegation and put the matter in issue. Otherwise, it will be deemed admitted, for, there will be no other fact on the other side, to counter the fact in the statement of claim, since the defendant cannot adduce evidence of facts not pleaded. In support of this submission counsel relied on the case of Otapo v Sunmonu (1987) 5 SC 228 AT 302,

35.        It is the submission of counsel that once it is discovered that the defendant does not have a bona fide defence, or real defence the court will enter final judgment against the defendant. In support of this proposition counsel relied on the cases of Macaulay v NAL Merchant Bank Ltd (1990) LPELR-1801(SC), Nishizawa v S. M. Jethwani (1984) 12 S.C. 234.

36.        In concluding his submission counsel urged the court to hold that the claimant’s case is unassailable and the defendant has no defence. 

COURT’S DECISION:

37.        I have considered the processes filed by the parties, the evidence presented by both parties, including oral and documentary evidence. I have equally considered the written and oral submissions of counsel in adumbration of the positions of their respective clients.

38.        The facts that necessitated the institution of this case are not complex, they are straight forward and not in dispute. The claimant was employed into the service of the defendants as a student mid wife on the 5th of March 1984 and retired as a director on the 5th of March 2019 on the salary Grade Level 16 after 35 years of service. The claimant is yet to be paid her gratuity despite several demands, but she had been enjoying her pension.

39.        For the defendants, they averred that the claimant did not inform the government when she is due to retire from service and continued to receive salary after retirement. They also stated that the claimant is indebted to the defendants for the laptop she received while in service and was yet to liquidate the payment. They also averred in their pleading that there is no time frame for which gratuity will be paid as payment is ongoing and the government is making efforts to clear the backlog of gratuities owed retired civil servants and this is done in batches according to their year of retirement. It is also the case of the defendant that the Claimant and counsel to claimant are a married couple, so his wife would not have paid him any professional or legal fees to conduct proceedings on her behalf. There is also no prior agreement between the parties in this suit as to the interest and cost of litigation claimed by the claimant and the claimants claim is premature and done in bad faith.

40.        It appears there is concordance by the parties that the sole issue for determination is whether the claimant has proved entitlement to any of the reliefs sought.

41.        The gratuity constitutes a terminal benefit and forms part of the conditions of service for civil servants who retire under pension schemes that existed before the Pension Reform Act 2014. Such entitlements are vested contractual rights that crystallize upon retirement and cannot be unilaterally withheld or delayed indefinitely by the employer. In New Nigeria Development Company Limited v. Daniel Ugbabe Ugbabe (ELC (2021) 3589 SC), the Supreme Court emphasized that retirement benefits, including gratuity and pension, are regulated by applicable statutes and circulars, and that employees are entitled to have these benefits computed and paid in accordance with the law governing their employment at the time of retirement.

42.        The claimant retired in 2019 after 35 years of service under a pension scheme operative before the Pension Reform Act 2014. Her entitlement to gratuity is governed by the terms of service applicable at retirement, which constitute a binding contract between her and the government. The claimant’s gratuity was computed by the Accountant General of Cross river State amounting to the sum of N10,697,220.00. see exhibit H.

43.        The law is settled that the party who seeks a Court judgment regarding any legal right or liability, dependent on the existence of asserted facts, must prove that those facts exist. This is supported by Section 131 of the Evidence Act. In this suit the main claim of the claimant borders on non-payment of her gratuity since her retirement in 2019. In the circumstance, the claimant has the burden of proving her entitlement to gratuity by adducing credible and conclusive evidence to demonstrate its existence. See sections 131(2), 132, and 131(1) of the Evidence Act. Proof, in legal terms, is the process by which the existence of facts is established to the satisfaction of the Court. This principle is highlighted in Jega v. Ekpenyong [2025] 11 NWLR (Pt 1998) 33 at 120-121. Evidence is considered credible when it is worthy of belief, and conclusive when it leads to a definitive outcome. Such evidence must be strong and not contradicted by the opposing party, as noted in Jega v. Ekpenyong [supra], Dec Oil and Gas Limited v. Shell Nigeria Gas Limited & Anor [2021] 11 NWLR (Pt 1786) 75 at 117, and Bimba Agro Livestock Company Limited v. Landmark University [2020] 15 NWLR (Pt 1748) 465 at 496. It is important to note that while civil cases are decided based on the preponderance of the evidence, that evidence must be admissible, relevant, and credible. It should be conclusive and provide a level of certainty that aligns with the circumstances of the case at hand. See A.B.C. Transport Company Ltd. v. Omotoye [2019] 14 NWLR (Pt 1692) 197 at 212, Ayanru v. Mandilas Limited [2007] 10 NWLR (Pt 1043) 462 at 485, and Kaydee Ventures Ltd v. Min., F.C.T. & Ors [2010] 7 NWLR (Pt 1192) 171 at 205-206.

44.        The claimant in an attempt to prove her case tendered in evidence documents which were admitted in evidence without objection and they were marked as exhibits A, B, C, D, E, F, G, H, I, J, K L, M and N.

45.        I note exhibit F was claimant’s application dated 21st September, 2018, seeking for approval for retirement from service. I also note that exhibit H, was issued in the name of the claimant on 19th March, 2019, conveying approval given for payment of gratuity to the claimant to the tune of N10,769,220.00 for her service to the state from 5/3/1984 to 4/3/2019. Exhibit H is clear evidence of official acknowledgment and admission of liability by the defendants in respect of payment of gratuity to the claimant.

46.        I am satisfied by the evidence adduced by the claimant in her witness statement on oath and documentary evidence, the claimant has established her entitlement to gratuity for services rendered to the state government. The claim of the claimant was corroborated by the evidence of DW1 the defendants’ sole witness who testified under cross examination that the claimant served the defendants and is entitled to her gratuity. He also confirmed that all the documents tendered in evidence by the claimant which were admitted and marked as exhibits in this case, are genuine. The law is trite and what was admitted needs no proof. The defendants having admitted the claim for gratuity through their only lone witness they are bound by the said admission and the claimant has established her claim for gratuity without more. Since the defendants did not dispute the claim of gratuity, they have so admitted the claim, which amounted to claim against interest. In law admission against interest by a party is perhaps one of the best form of evidence in favour of the adversary. See Nu Metro Retail Nigeria Limited v Tradex S.R.L. & Anor (2017) LPELR-42329(CA); Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534, Omisore & Anor. V Aregbesola & Ors. (2015)  LPELR-24803(SC).

47.        Despite not disputing, claim for gratuity, the defendants in their defence have asserted that the claimant did not inform the government of her retirement and she continued to receive salary even after retirement. This claim was not backed up by any iota evidence in fact exhibits F and H, have exposed the fallacy in the claim by the defendants.

48.        The defendants have also in their quest to continue to deprive the claimant of her legitimate entitlement to gratuity for meritorious service rendered to the state have alleged that the claimant is indebted to the defendants for a laptop computer given to the claimant while in service and yet to finish paying for the said laptop computer. Yet, the defendants did not produce any evidence to support their claim. there was no agreement tendered to prove the extent of indebtedness of the claimant to the defendants.

49.        Presumably, the defendants’ assertion that the claimant is indebted for a laptop computer given to her during her service seems to be raising question of whether the said debt can be set-off against gratuity.

50.        Under order 30 rule 2(2), order 32 rules 4 and 8, of the rules of this court set-off is a recognized defence where mutual debts exist between parties. However, the party claiming set-off must establish that:

1.   That a valid debt exists;

2.   That the debt is liquidated or easily ascertainable;

3.   That both debts arose from the same transaction or are connected.

51.        In the present case, the defendant has merely alleged that the claimant owes money for a laptop without providing evidence of:

I.The value of the alleged debt;

II.Whether there was a contractual obligation to return the laptop or pay for it upon retirement;

III.Whether the laptop was provided as part of the claimant's conditions of service or as a personal benefit subject to return.

52.        I am of the firmed belief that without proper pleading and proof, this bare allegation cannot constitute a valid defence for set-off or deprive the claimant of her entitlement to gratuity. The defendants have not established the existence of the debt through proper counterclaim, evidence, and valuation. A mere assertion cannot justify withholding the entire gratuity.

53.        In any event, in the case at hand the claimant has successfully vide exhibits K, L, M and M, has established that she has paid for the laptop given to her while in service as the payment was made through deductions from her salaries. The defendants having not adduced any iota of evidence to justify their claim of indebtedness of claimant to the defendants cannot be heard to rely on that phantom claim to whittle down the claim of gratuity by the claimant.

54.        On the defendants’ assertion that there is "no time frame within which gratuity must be paid" and that the claimant must wait until "her turn comes" in accordance with batches determined by year of retirement, and that the claimant will be paid her gratuity, is legally untenable.

55.        It is to be remembered that claim for gratuity forms part of terminal benefits of an employee, which must be paid without any delay within a reasonable time. What constitutes reasonable time depends on the circumstances. In the case at hand the claim is that of gratuity, this is entitlement when it is expected to be paid to enable employee settled for retirement life to withheld such entitled from 2019 to 2022 when this case was brought to court and till date of judgment which is almost six years is manifestly unreasonable and constitutes a breach of contractual obligation.

56.        In Dr. Ben O. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (ELC (1993) 2188 SC), the Supreme Court held that where an employer fails to pay terminal benefits as stipulated in the contract of service, such failure constitutes a breach of contract, and the employee is entitled to seek judicial enforcement of the right to payment.

57.        In view the decision of the Supreme Court above, the defendants in this case cannot be allowed to use administrative convenience, budgetary constraints, or the existence of a "batch system" as justification for indefinite delay in fulfilling a legal obligation. If this court sanctioned or approved of such flimsy excuses, it will render the employment contract illusory. This court  must reject  and not accept such excuses, as approving such action will deprive retirees of legitimate entitlement to gratuity.

58.        On claim for N1,500,000.00 as solicitor’s fees and cost of litigation. The defendant's argument that the claimant would not have paid solicitor's fees because the claimant and her solicitor are married is misconceived and irrelevant. The award of costs, including solicitor's fees, is a matter within the discretion of the court and is intended to compensate the successful party for expenses reasonably incurred in prosecuting the action. The relationship between a party and their legal representative does not extinguish the right to claim costs. Legal services rendered remain professional services, and the fact that spouses may have a personal relationship does not negate the professional nature of legal representation.

59.        In Samuel Lambert & Ors v. Chief A.S.B.C. Okujagu & Ors (ELC (2014) 1121), the Court of Appeal awarded costs to the successful party based on what was reasonable in the circumstances. The court will assess the claim for N1,500,000.00 solicitor's fees and cost on its merits and determine an appropriate award if need be.

60.        There is no doubt the claimant engaged the services of solicitor to prosecute this case and in the process certain expenses were incurred in filing and other legitimate payment made in the course of prosecution the case in court. For the solicitor’s fees, the law is that you cannot pass payment of solicitor’s fees engaged by a party to his opponent. On cost incurred there is no evidence on how much was expended as cost of filing and other sundry expenses for the court to make an award. However, the general rule remains that cost follow events and this at the discretion of the court.

61.        On claim for interest, the defendant's assertion that there was no agreement for payment of interest and costs does not constitute a valid defence to the claimant's claim.

62.        On Costs: As stated earlier in this judgment, costs are awarded by the court to the successful party as a matter of law and practice. No prior agreement is required. The court has discretion to award costs based on the Rules of Court and the circumstances of the case. see order 47 rule 7 of the rules of this court.

63.        The last defence put up by the defendants is their contention that the claimant's action is premature and in bad faith because she will be paid "when her turn comes" is wholly without merit. 

64.        Let me say that in law where a right has crystallized and the obligor refuses or delays performance without justification, the creditor is entitled to seek judicial enforcement immediately. The claimant's right to gratuity arose upon retirement in 2019. The fact that the government has chosen to adopt a batch payment system does not render the claimant's claim premature. On the contrary, the prolonged delay justifies the institution of the action.

65.        In Aliu Bello & Ors v. Attorney-General of Oyo State (ELC (1986) 1430 SCPAGE1; (1986) 5 NWLR (Pt. 45) 528,), the Supreme Court held that courts are more interested in substance than in mere form, and that reliance on technicalities leads to injustice. The court will not permit the government to use administrative processes as a shield against fulfilling clear legal obligations.

66.        Let say for emphasis that the days when courts bows to technicalities have gone for good. It is no longer in doubt that this court and indeed all other superior courts of records have jettison lending their ears to technicalities. Courts rooms are no longer allowed litigants to use them as way of outsmarting each other. See Afolabi v. Adekunle (1983) 2 SCNLR 141, 150. 

67.        From all I have been saying above, the claimant has succeeded in proving her entitlement to payment of gratuity in the sum of N10,769,220.00. The defendants are hereby ordered to pay the claimant the sum of N10,769,220.00 (Ten Million Seven Hundred and Sixty Nine Thousand Two Hundred and Twenty Naira) as her legitimate gratuity for 35 years meritorious service rendered to the defendants.

68.        This case is pathetic in the sense that the claimant retired in 2019 and ought to have been paid her gratuity since then, by the government in power then. The failure by the then government to pay claimants her gratuity when she retired was sheer wickedness and man’s inhumanity to man. In fact the officials of government should always remember that power is transient and does not last forever, that should have been the driving force in governance. They should also bear in mind that they are being paid for the job they are doing and they are not doing any favour to anybody or person in performing their assigned duties. 

69.        Thus: the attitude of some government officials while in public service need much to be desired, their notion of not minding the impact or consequences of their action on lives of others is condemnable. Their refusal to do what they were supposed to do basking under euphoria of the so-called doctrine that ‘government is continuous’ is clear evidence of their betrayal of trust reposed on them by virtue of the position they occupied when they were to act and refused to act and shift their responsibility to when they are no longer in service for others to do. The mere fact that government is continuous should not be an excuse or license for abdication of duty when it matters. Public officials should always remember the day of reckoning. Let me say no more on this.

70.        The claimant is not entitled to solicitor’s fees but is entitled to cost which I assessed in the sum of N500,000.00 (Five Hundred Thousand Naira).

71.        All monetary awards in this judgment are with immediate effect and failure to settle the judgment sum will attract 10% simple interest per annum till liquidation.

72.        Judgment is hereby entered accordingly.

1.   The Claimant approached this Court on 30th day of March, 2022, via her General Form of Complaint along with statement facts, witness statement on oath, list of witnesses, list of documents and photocopies of documents to be relied on at trial. A motion on notice for summary judgment was filed together with the general form of complaint. Vide paragraph 10 of the amended statement of facts amended by order of court made on 29/1/2025 and filed on 16th April, 2024, the claimant prays for the following reliefs:-

1.   The sum of Ten million, Seven Hundred and Sixty-Nine Thousand, Two Hundred and Twenty Naira (10,769,220) being claimant’s gratuity already computed by the defendants pending payment.

2.   The sum of 1.5 million naira for legal services rendered by the claimant counsel (Ntem Ikpi & Associates, Ugep) in favor of the claimants.

3.   Interest at the rate of 10% per annum from March 2019 till the date of judgment and thereafter 10% per annum until the entire judgment debt is completely liquidated.

2.           The Defendants filed their statement of defence on 1/11/2022. This process was accompanied by Defendants’ list of witnesses, witnesses’ statements on oath as well as list and copies of documents to rely on at trial. The claimant’s reply to the statement of defence was filed on 16/4/2024.

3.           The claimant testified in proof of her case as CW1. CW1 adopted her witness statement on oath as her evidence in this case. Fourteen documents were tendered in evidence through CW1. They were marked as exhibits A to N. 

4.           CW1 was cross examined by counsel for the defendant, wherein in her testimony under cross examination, CW1 stated that she retired on 5/3/2019. She has paid her due for collecting the Laptop. She stated that the payment for laptop was through deductions from her salary. Exhibits K, L, M and N, were tendered in proof of deductions from salary in payment for laptop. The witness said by exhibit N, she paid in September, 2015, exhibit M, she paid for in May, 2014. She paid for 17 months till September, 2015 payment completed. She came to court to fight for her right. For exhibit B she paid N1,000,000.00  cash to her counsel and receipt was issued to her she agreed her pension was being paid but her gratuity was not paid. She does not want to know whether others have not been paid; she is fighting for her right.

5.           For the defendant one Meshack Nyong, testified in defence of the defendants as DW1. DW1 adopted his witness statement on oath as his evidence in this case. Five documents were tendered in evidence through this witness. They were admitted in evidence and marked as exhibits DW1A to DW1E.

6.           Under cross examination DW1 testified that he is not opposed to claimant's being paid gratuity. He is aware the claimant had not been paid gratuity. All the documents tendered by the claimant are genuine. 

THE CASE OF THE CLAIMANT

7.           The claimant joined the service of Cross River State government as a student mid-Wife on 5/3/1984 and retired from service on 5/3/2019, as a Director (Public health) on salary grade level 16. The claimant had not been paid her gratuity in the sum of N10,769,220.00 after meritorious service to the government rendered for Thirty-Five years. The claimant’s gratuity has been withheld and refused to be paid by the defendants despite series of demands.

     THE CASE OF THE DEFENDANT.

8.           The position of the defendants is that the claimant deliberately refused to inform the government when she is due to retire and was still receiving salaries after retirement instead of pension allowance. The claimant is owing the government for the laptop that was supplied to her while still in service. There is no time frame within which gratuity will be paid, as payment is ongoing as retired civil servants are paid according to their year of retirement from service. Counsel for the claimant and the claimant herself are a married couple, so his wife would not have paid him any money not to talk about One Million Five Hundred Naira. The claimant’s claim is pre-mature.

THE SUBMISSION OF THE DEFENDANT.

9.           O. O. Ebang, Senior State Counsel, Ministry of justice, Calabar, appearing for the defendants, adopted the final written address of the defendants filed on 9/10/2025, as his argument in this case. In the final written address, a single issue was formulated for determination, to wit:-

Whether from the evidence, facts and circumstances of this case the Claimant is entitled to any of the reliefs sought in this suit.

10.        In arguing the sole issue counsel refers to relief one, (1) and submitted that it is not in dispute that the claimant having retired from service, is entitled to the payment of her gratuity. The defendants have never denied statutory obligations. However, the defendant witness during cross-examination acknowledged that the State Government, due to financial constraints has adopted a phased arrangement in clearing outstanding gratuities. He further stated that payments are currently being made in batches and the claimant being in the 2019 batch has already been duly captured in the current batch being processed for disbursement. It is therefore evident that the claimant’s demands are already receiving due attention.

11.        Counsel submitted that the law is settled that the court does not make an order in vain.  In Governor of Ekiti State Vs. Olubunmo (2017) LPELR-42102 (CA), the Court of Appeal held that where an act complained of is already being addressed, there is no need for the court to make an order compelling the same. Also, see A. G Federation V. Abubakar (2007) 10 NWLR (pt. 1041) at 75; Ekpeyoung v. Nyong (1975) 2 S.C. 71. Thus, to enter judgment in this circumstance will amount to compelling the defendant to do what he is already doing in good faith.  We most respectfully urge this Honorable court to refuse the claimants relief on the first claim as it is currently being attended to.

12.        Counsel also argued in the alternative, in the event that this Honorable Court is inclined to enter judgment in favor of the claimant, counsel urged the court to take judicial notice of the efforts of the defendant in processing and paying gratuities in batches, including the claimants own entitlement. Counsel urged the court to find and hold that the claimant is not entitled to the grant of relief 1.

13.        On relief two (2), the claim for the cost of litigation assessed at 1.5 million Naira, counsel submitted that from the facts and evidence before the court, it is claimed as special damages. The law is trite that solicitors’ fees are in the nature of special damages which must be specifically pleaded and strictly proved. To support his contention counsel refers tyo the case of NURTW & ORS v. FIRST CONTINENTAL INSURANCE CO. LTD (2019) LPELR-48005(CA).

14.        Counsel further submitted that a cursory look at the receipt exhibited will reveal that the claim for the sum of 1.5 Million Naira is for professional fees paid by the Claimant to her Solicitor to prosecute this suit, is not allowed in law. In support of this position counsel relied on the case of Nwanji v. Coastal Serv. (Nig.) Ltd. (2004) 11 NWLR (Pt. 885) 552.

15.        Counsel also submitted that the main cause of action of the Claimant in this suit is the non-payment of the sum of 10 million (Ten Million Seven Hundred and Sixty-Nine Thousand Two Hundred and Twenty) Naira only, being the claimant’s gratuity calculated by the defendant and not the professional fees paid to her solicitors. In the case of MICHAEL V. ACCESS BANK (2017) LPELR-41981(CA) 1 at 48-49, the Court stated thus:

“It seems to me that a claim for Solicitors fees which does not form part of the cause of action is not one that can be granted. A relief which a claimant in an action is entitled to, if established by the evidence, are those reliefs which form part of the cause of action…Therefore, I think that on the current state of the law, a claim for Solicitors fees, which does not form part of the Claimant’s cause of action is not one that can be granted”.

16.        It was submitted by counsel that a claim for solicitors’ fees is a private arrangement between counsel and client, to saddle the opposing party with it would amount to double compensation and unjust enrichment.

17.        Counsel further draws the court's attention to the fact that in this case, the claimants’ solicitor is her spouse. The law presumes that services rendered between spouses are gratuitous and not intended to give rise to a binding contract enforceable in law. Granting such a claim my lord, is an attempt to enrich oneself in the guise of legal representation and offends public policy. Counsel urged the court to find and hold that the claimant is not entitled to the grant of relief 2.

18.        On relief three (3), interest at the rate of 10% per annum from March 2019 till the date of judgment and thereafter 10% per annum until the judgment debt is completely liquidated. Counsel submitted that the law is settled that he who asserts must prove. See Secs 131 (1) & 132 of the evidence act 2011(as amended) and the case of Abayomi Vs. Saap-tech Nig. Ltd (2020) 1 NWLR (pt 1706) 453 at 492. Thus, the onus is on the claimant to establish this in her pleading and evidence of her entitlement to justify the claims.

19.        Counsel posited that the principle for award of pre- judgement interest is trite, pre judgment interest is not awarded perfunctorily. A party who claims pre-judgment interest must plead and prove their claim to interest. To support this view counsel relied on the cases of DANTAMA Vs. UNITY BANK PLC (2015) LPELR 24448 (CA) 22-23 AND INTERDRILL NIGERIAN LTD & ANOR Vs. UNITED BANK FOR AFRICA PLC (2017) 13 NWLR (PT 1581) 52 AT 72-73.

20.        According to counsel, in the instant case, the claimant has failed to plead or prove any contractual clause or statutory basis entitling her to pre-judgement or post judgment interest at 10% per annum. Her claim is therefore baseless and in bad faith especially owing to the fact that the claimant is already captured in the current batch being processed for gratuity payment.

21.        According to counsel, interest is compensatory and not punitive, thus, to grant 10 % interest in this case, in the absence of any proven entitlement would amount to punishing the defendant.

22.        Counsel also submitted that under Order 47 Rule 7 of the NICN (Civil Procedure) Rule, 2017, has empowered this court to in its discretion to award post judgment interest. However, this provision is discretionary and not automatic. The claimant cannot as of right demand 10% pre-judgment and post judgement interest. Counsel urged the court to hold that the claimant’s claim for 10% interest rate of pre- judgment and post judgment sum is misconceived and refuse the same in its entirety. Counsel urged the court to resolve the lone issue raised for determination in the negative against the claimant.

THE SUBMISSION OF THE CLAIMANT.

23.        K. Ntem Ikpi, Esq; counsel for the claimant adopted the claimant’s final written address which was franked by him as his argument in this case. in the final written address, a single issue was formulated for determination, to wit:

Whether the Claimant has discharged the anus of proof to be entitled to judgment on the reliefs sought.

24.        In arguing the sole issue for determination counsel refers to section 254C(1) (k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides inter alia that this Honourable Court has the jurisdiction to hear and determine matters “relating to or connected with disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto”

25.        Counsel also refers to section 136 (1) of the Evidence Act, 2011, which is to the effect that the burden of first proving a fact lies on the party against whom the judgment of the court would be given if no evidence is produced on either side.

26.        Counsel submitted that from the evidence adduced, the claimant has shown that there is nothing even in the statement on oath of DW1 that has controverted or challenged the evidence of the claimant. In other words, throughout the gamut of evidence of the clamant, the defendants have not controverted or challenged any. In such circumstance, of unchallenged evidence and no-denial of facts, the court has an obligation to act on such unchallenged evidence, before it. In support of this submission counsel relied on the case of MOBIL PRODUCING NIG UNLIMITED V MONOKPO No2 2001 FWLR pt 78 p1210 at 1218 R6; ATT- GEN ANAMBRA STATE V ATT GEN FEDERATION 2005 Pt 268 p1557 at 1565 R6. YA’U V DIKWA 2001 FWLR pt 62 p1987 at 19996 R18 and ZABOLEY INTERNATIONAL LTD V OMEOGBEIN 2005 AFWLR pt 278 p 1172at 1175 Rs 5 & 6.

27.        Counsel also refers to evidence of DW1 under cross examination on 25/5/2025, where he admitted that the claimant is entitled to the amount claimed and the same has not been paid to her. It is trite law that whatever is expressly admitted, as the foregoing, requires no further proof. See A.C.B. Ltd v GWAGWADA (1994) 5 NVVLR (pt 342) 25.

28.        Counsel submitted that the defendant had falsely claimed that;-

1.   The claimant did not inform Government when she was due for retirement and was still receiving salaries,

2.   the claimant is still owing for laptop supplied to her while still in service.

3.   there is no time limit for payment of gratuity 

4.   “Counsel to the claimant and the claimant herself are a married couple so his wife would not have paid him  . . . . .to prosecute this case.”

29.        Counsel submitted that the claimant frontloaded, tendered and were admitted in evidence as exhibits: Letter of Notification of Retirement dated 21/9/2018 (Ex F) and Defendants’ Reply to letter of Notification dated 18l10/2018 (Ex 10) to show that the defendants were duly informed and in good time of her date of retirement. This evidence was not dislodged or controverted under cross examination.

30.        It was submitted that in respect of the laptop, the claimant admitted collecting laptop from the defendants for the sum of N115,000.00 only but stated further that the defendants recovered same amount from her salary within seventeen months, that is, May, 2014 to September, 2015 by deducting the sum of N6,764.17 each month, until the entire debt was completely liquidated. The claimant tendered and were admitted in evidence four pieces of her “Pay Advice” (aka pay slip) for the months of April and May, 2014 (where she started payment) and September and October, 2015, (where she ended the payment) to show the relevant period when the deductions commenced and ended. Under cross examination on 21/5/2025, the claimant reaffirmed the same position, stating unequivocally that she was not indebted to the defendants in anyway whatsoever.

31.        The defence posits that one of the Solicitors of this Law Firm and the claimant are married couple and therefore the law firm is not entitled to payment of professional fee or to charge for their labour. On the other hand, the claimant argues that the law firm of Ntem Ikpi & Associates which she briefed to represent her and which issued her the Cash Receipt evidencing her payment of the professional fee is a separate and distinct legal entity or personality from her husband. She proceeded to tender the Certificate of incorporation of the said law firm of Ntem Ikpi and Associates and the same was admitted as exhibit. Counsel submitted that the lame argument of the defence is predicated on a misconception of the law,

32.        Counsel continued his submission that the law is settled that denial of the claimant’s averment per se vide the statement of defendant without proving the denial by evidence cannot defeat the claimant’s established claim. On this sub mission reliance was placed on the case of Insurance brokers v Atlantic Textiles (1996) 9 K L R (Pt 44) 1675.

33.        It is submitted that  at this stage, the onus of proof has shifted and it was incumbent on the defendants who asserted affirmatively the existence of a fact or issue (not claimant) to show that the claimant was receiving salaries after her due date of retirement and that she still owes foe laptop supplied to her. This, the defendants have bluntly refused or neglected to do. The burden of proof may shift depending on how the scale of evidence preponderates.  In ABDULLAH! V TASHA (200) F WLR pt  81  p1807 at 1812 H12 & at 1827 – 1828 paras H – A the Court stated the law thus:

“The onus of proof is said not to be static because in civil suits and proceedings certain facts may be admitted by the defence which make for the adducing of evidence irrelevant. Yet, by the state of pleadings, some facts averred in the defendant’s pleading may be such that in the course of trial, he is obliged to establish them not to cast the burden on the plaintiff to prove otherwise”

34.        Counsel also submitted that the defendant ought to prove to the court with specific evidence. All the allegations contained in paragraph 4.05 above more so as these facts are within the knowledge of the defendants and failure to do this amounts to admission of facts. This was the decision of the Court in MAMMAN V DAMBE (2002) FWLR pt 86 p428 at 433 H 8, the court held thus;

Where the plaintiff pleads specific facts which are deemed to be within the knowledge of the defendant, the defendant ought not simply to “deny” but should proffer facts to counter the plaintiff’s allegation and put the matter in issue. Otherwise, it will be deemed admitted, for, there will be no other fact on the other side, to counter the fact in the statement of claim, since the defendant cannot adduce evidence of facts not pleaded. In support of this submission counsel relied on the case of Otapo v Sunmonu (1987) 5 SC 228 AT 302,

35.        It is the submission of counsel that once it is discovered that the defendant does not have a bona fide defence, or real defence the court will enter final judgment against the defendant. In support of this proposition counsel relied on the cases of Macaulay v NAL Merchant Bank Ltd (1990) LPELR-1801(SC), Nishizawa v S. M. Jethwani (1984) 12 S.C. 234.

36.        In concluding his submission counsel urged the court to hold that the claimant’s case is unassailable and the defendant has no defence. 

COURT’S DECISION:

37.        I have considered the processes filed by the parties, the evidence presented by both parties, including oral and documentary evidence. I have equally considered the written and oral submissions of counsel in adumbration of the positions of their respective clients.

38.        The facts that necessitated the institution of this case are not complex, they are straight forward and not in dispute. The claimant was employed into the service of the defendants as a student mid wife on the 5th of March 1984 and retired as a director on the 5th of March 2019 on the salary Grade Level 16 after 35 years of service. The claimant is yet to be paid her gratuity despite several demands, but she had been enjoying her pension.

39.        For the defendants, they averred that the claimant did not inform the government when she is due to retire from service and continued to receive salary after retirement. They also stated that the claimant is indebted to the defendants for the laptop she received while in service and was yet to liquidate the payment. They also averred in their pleading that there is no time frame for which gratuity will be paid as payment is ongoing and the government is making efforts to clear the backlog of gratuities owed retired civil servants and this is done in batches according to their year of retirement. It is also the case of the defendant that the Claimant and counsel to claimant are a married couple, so his wife would not have paid him any professional or legal fees to conduct proceedings on her behalf. There is also no prior agreement between the parties in this suit as to the interest and cost of litigation claimed by the claimant and the claimants claim is premature and done in bad faith.

40.        It appears there is concordance by the parties that the sole issue for determination is whether the claimant has proved entitlement to any of the reliefs sought.

41.        The gratuity constitutes a terminal benefit and forms part of the conditions of service for civil servants who retire under pension schemes that existed before the Pension Reform Act 2014. Such entitlements are vested contractual rights that crystallize upon retirement and cannot be unilaterally withheld or delayed indefinitely by the employer. In New Nigeria Development Company Limited v. Daniel Ugbabe Ugbabe (ELC (2021) 3589 SC), the Supreme Court emphasized that retirement benefits, including gratuity and pension, are regulated by applicable statutes and circulars, and that employees are entitled to have these benefits computed and paid in accordance with the law governing their employment at the time of retirement.

42.        The claimant retired in 2019 after 35 years of service under a pension scheme operative before the Pension Reform Act 2014. Her entitlement to gratuity is governed by the terms of service applicable at retirement, which constitute a binding contract between her and the government. The claimant’s gratuity was computed by the Accountant General of Cross river State amounting to the sum of N10,697,220.00. see exhibit H.

43.        The law is settled that the party who seeks a Court judgment regarding any legal right or liability, dependent on the existence of asserted facts, must prove that those facts exist. This is supported by Section 131 of the Evidence Act. In this suit the main claim of the claimant borders on non-payment of her gratuity since her retirement in 2019. In the circumstance, the claimant has the burden of proving her entitlement to gratuity by adducing credible and conclusive evidence to demonstrate its existence. See sections 131(2), 132, and 131(1) of the Evidence Act. Proof, in legal terms, is the process by which the existence of facts is established to the satisfaction of the Court. This principle is highlighted in Jega v. Ekpenyong [2025] 11 NWLR (Pt 1998) 33 at 120-121. Evidence is considered credible when it is worthy of belief, and conclusive when it leads to a definitive outcome. Such evidence must be strong and not contradicted by the opposing party, as noted in Jega v. Ekpenyong [supra], Dec Oil and Gas Limited v. Shell Nigeria Gas Limited & Anor [2021] 11 NWLR (Pt 1786) 75 at 117, and Bimba Agro Livestock Company Limited v. Landmark University [2020] 15 NWLR (Pt 1748) 465 at 496. It is important to note that while civil cases are decided based on the preponderance of the evidence, that evidence must be admissible, relevant, and credible. It should be conclusive and provide a level of certainty that aligns with the circumstances of the case at hand. See A.B.C. Transport Company Ltd. v. Omotoye [2019] 14 NWLR (Pt 1692) 197 at 212, Ayanru v. Mandilas Limited [2007] 10 NWLR (Pt 1043) 462 at 485, and Kaydee Ventures Ltd v. Min., F.C.T. & Ors [2010] 7 NWLR (Pt 1192) 171 at 205-206.

44.        The claimant in an attempt to prove her case tendered in evidence documents which were admitted in evidence without objection and they were marked as exhibits A, B, C, D, E, F, G, H, I, J, K L, M and N.

45.        I note exhibit F was claimant’s application dated 21st September, 2018, seeking for approval for retirement from service. I also note that exhibit H, was issued in the name of the claimant on 19th March, 2019, conveying approval given for payment of gratuity to the claimant to the tune of N10,769,220.00 for her service to the state from 5/3/1984 to 4/3/2019. Exhibit H is clear evidence of official acknowledgment and admission of liability by the defendants in respect of payment of gratuity to the claimant.

46.        I am satisfied by the evidence adduced by the claimant in her witness statement on oath and documentary evidence, the claimant has established her entitlement to gratuity for services rendered to the state government. The claim of the claimant was corroborated by the evidence of DW1 the defendants’ sole witness who testified under cross examination that the claimant served the defendants and is entitled to her gratuity. He also confirmed that all the documents tendered in evidence by the claimant which were admitted and marked as exhibits in this case, are genuine. The law is trite and what was admitted needs no proof. The defendants having admitted the claim for gratuity through their only lone witness they are bound by the said admission and the claimant has established her claim for gratuity without more. Since the defendants did not dispute the claim of gratuity, they have so admitted the claim, which amounted to claim against interest. In law admission against interest by a party is perhaps one of the best form of evidence in favour of the adversary. See Nu Metro Retail Nigeria Limited v Tradex S.R.L. & Anor (2017) LPELR-42329(CA); Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534, Omisore & Anor. V Aregbesola & Ors. (2015)  LPELR-24803(SC).

47.        Despite not disputing, claim for gratuity, the defendants in their defence have asserted that the claimant did not inform the government of her retirement and she continued to receive salary even after retirement. This claim was not backed up by any iota evidence in fact exhibits F and H, have exposed the fallacy in the claim by the defendants.

48.        The defendants have also in their quest to continue to deprive the claimant of her legitimate entitlement to gratuity for meritorious service rendered to the state have alleged that the claimant is indebted to the defendants for a laptop computer given to the claimant while in service and yet to finish paying for the said laptop computer. Yet, the defendants did not produce any evidence to support their claim. there was no agreement tendered to prove the extent of indebtedness of the claimant to the defendants.

49.        Presumably, the defendants’ assertion that the claimant is indebted for a laptop computer given to her during her service seems to be raising question of whether the said debt can be set-off against gratuity.

50.        Under order 30 rule 2(2), order 32 rules 4 and 8, of the rules of this court set-off is a recognized defence where mutual debts exist between parties. However, the party claiming set-off must establish that:

1.   That a valid debt exists;

2.   That the debt is liquidated or easily ascertainable;

3.   That both debts arose from the same transaction or are connected.

51.        In the present case, the defendant has merely alleged that the claimant owes money for a laptop without providing evidence of:

I.The value of the alleged debt;

II.Whether there was a contractual obligation to return the laptop or pay for it upon retirement;

III.Whether the laptop was provided as part of the claimant's conditions of service or as a personal benefit subject to return.

52.        I am of the firmed belief that without proper pleading and proof, this bare allegation cannot constitute a valid defence for set-off or deprive the claimant of her entitlement to gratuity. The defendants have not established the existence of the debt through proper counterclaim, evidence, and valuation. A mere assertion cannot justify withholding the entire gratuity.

53.        In any event, in the case at hand the claimant has successfully vide exhibits K, L, M and M, has established that she has paid for the laptop given to her while in service as the payment was made through deductions from her salaries. The defendants having not adduced any iota of evidence to justify their claim of indebtedness of claimant to the defendants cannot be heard to rely on that phantom claim to whittle down the claim of gratuity by the claimant.

54.        On the defendants’ assertion that there is "no time frame within which gratuity must be paid" and that the claimant must wait until "her turn comes" in accordance with batches determined by year of retirement, and that the claimant will be paid her gratuity, is legally untenable.

55.        It is to be remembered that claim for gratuity forms part of terminal benefits of an employee, which must be paid without any delay within a reasonable time. What constitutes reasonable time depends on the circumstances. In the case at hand the claim is that of gratuity, this is entitlement when it is expected to be paid to enable employee settled for retirement life to withheld such entitled from 2019 to 2022 when this case was brought to court and till date of judgment which is almost six years is manifestly unreasonable and constitutes a breach of contractual obligation.

56.        In Dr. Ben O. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (ELC (1993) 2188 SC), the Supreme Court held that where an employer fails to pay terminal benefits as stipulated in the contract of service, such failure constitutes a breach of contract, and the employee is entitled to seek judicial enforcement of the right to payment.

57.        In view the decision of the Supreme Court above, the defendants in this case cannot be allowed to use administrative convenience, budgetary constraints, or the existence of a "batch system" as justification for indefinite delay in fulfilling a legal obligation. If this court sanctioned or approved of such flimsy excuses, it will render the employment contract illusory. This court  must reject  and not accept such excuses, as approving such action will deprive retirees of legitimate entitlement to gratuity.

58.        On claim for N1,500,000.00 as solicitor’s fees and cost of litigation. The defendant's argument that the claimant would not have paid solicitor's fees because the claimant and her solicitor are married is misconceived and irrelevant. The award of costs, including solicitor's fees, is a matter within the discretion of the court and is intended to compensate the successful party for expenses reasonably incurred in prosecuting the action. The relationship between a party and their legal representative does not extinguish the right to claim costs. Legal services rendered remain professional services, and the fact that spouses may have a personal relationship does not negate the professional nature of legal representation.

59.        In Samuel Lambert & Ors v. Chief A.S.B.C. Okujagu & Ors (ELC (2014) 1121), the Court of Appeal awarded costs to the successful party based on what was reasonable in the circumstances. The court will assess the claim for N1,500,000.00 solicitor's fees and cost on its merits and determine an appropriate award if need be.

60.        There is no doubt the claimant engaged the services of solicitor to prosecute this case and in the process certain expenses were incurred in filing and other legitimate payment made in the course of prosecution the case in court. For the solicitor’s fees, the law is that you cannot pass payment of solicitor’s fees engaged by a party to his opponent. On cost incurred there is no evidence on how much was expended as cost of filing and other sundry expenses for the court to make an award. However, the general rule remains that cost follow events and this at the discretion of the court.

61.        On claim for interest, the defendant's assertion that there was no agreement for payment of interest and costs does not constitute a valid defence to the claimant's claim.

62.        On Costs: As stated earlier in this judgment, costs are awarded by the court to the successful party as a matter of law and practice. No prior agreement is required. The court has discretion to award costs based on the Rules of Court and the circumstances of the case. see order 47 rule 7 of the rules of this court.

63.        The last defence put up by the defendants is their contention that the claimant's action is premature and in bad faith because she will be paid "when her turn comes" is wholly without merit. 

64.        Let me say that in law where a right has crystallized and the obligor refuses or delays performance without justification, the creditor is entitled to seek judicial enforcement immediately. The claimant's right to gratuity arose upon retirement in 2019. The fact that the government has chosen to adopt a batch payment system does not render the claimant's claim premature. On the contrary, the prolonged delay justifies the institution of the action.

65.        In Aliu Bello & Ors v. Attorney-General of Oyo State (ELC (1986) 1430 SCPAGE1; (1986) 5 NWLR (Pt. 45) 528,), the Supreme Court held that courts are more interested in substance than in mere form, and that reliance on technicalities leads to injustice. The court will not permit the government to use administrative processes as a shield against fulfilling clear legal obligations.

66.        Let me say for emphasis that the days when courts bows to technicalities have gone for good. It is no longer in doubt that this court and indeed all other superior courts of records have jettison lending their ears to technicalities. Courts rooms are no longer allowed for litigants to use them as way of outsmarting each other. See Afolabi v. Adekunle (1983) 2 SCNLR 141, 150. 

67.        From all I have been saying above, the claimant has succeeded in proving her entitlement to payment of gratuity in the sum of N10,769,220.00. The defendants are hereby ordered to pay the claimant the sum of N10,769,220.00 (Ten Million Seven Hundred and Sixty-Nine Thousand Two Hundred and Twenty Naira) as her legitimate gratuity for 35 years meritorious service rendered to the defendants.

68.        This case is pathetic in the sense that the claimant retired in 2019 and ought to have been paid her gratuity by the then government in power. The failure by the government to pay claimants her gratuity when she retired was sheer wickedness and man’s inhumanity to man. There is need for people in authority to always remember that power is transient and does not last forever. They should also bear in mind that they are being paid for the job they are doing and not doing any favour to anybody or person in performing their assigned duties. 

69.        Thus: the attitude of some government officials while in public service need much to be desired, their notion of not minding the impact or consequences of their action on lives of others is condemnable. Their refusal to do what they were supposed to do basking under euphoria of the so-called doctrine that ‘government is continuous’ is clear evidence of their betrayal of trust reposed on them by virtue of the position they occupied when they were to act and refused to act and shift their responsibility to when they are no longer in service for others to do. The mere fact that government is continuous should not be an excuse or license for abdication of duty when it matters. Public officials should always remember the day of reckoning. Let me say no more on this.

70.        The claimant is not entitled to solicitor’s fees but is entitled to cost which I assessed in the sum of N500,000.00 (Five Hundred Thousand Naira).

71.        All monetary awards in this judgment are with immediate effect and failure to settle the judgment sum will attract 10% simple interest per annum till liquidation.

72.        Judgment is hereby entered accordingly.

 

 

 

 

Sanusi Kado,

Judge.

REPRESNTATION:

K. Ntem Ikpi, Esq; for the claimant

O. O. Ebang, SSC 1, Ministry of Justice Calabar, for the defendants.