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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

       BEFORE HIS LORDSHIP: HON. JUSTICE K.D. DAMULAK

 

DATED THIS 13TH DAY OF MAY, 2025                             

SUIT NO: NICN/AK/02/2025

BETWEEN

MR. JOHN LEKE BORODE                          ……….             CLAIMANT

AND

  1. THE CHAIRMAN

IDO-OSI LOCAL GOVRNMENT 

AREA IDO-EKITI, EKITI STATE

  1. THE SECRETARY

IDO-OSI LOCAL GOVRNMENT                                     ……… DEFENDANTS

AREA IDO-EKITI, EKITI STATE

  1. IDO-OSI LOCAL GOVRNMENT 

AREA IDO-EKITI, EKITI STATE

 

REPRESENTATION

No ppaerance  for the claimant

Olaoluwa Folayan for the defendants

 

JUDGMENT

INTRODUCTION

  1. The claimant took out a complaint against the defendants on 21/1/2025. The claimant seeks the following Reliefs;
  2. A declaration that the termination of the employment of the claimant since 1st July, 2013 without any valid, cogent and verifiable reasons is illegal, wrongful, null and void and of no effect.
  3. An order of court directing the defendants to pay the sum of N7,701,352.12 only being his gratuity and arrears of salary from July 2023 to July 2024.and to calculate and pay the remaining salaries, gratuities and emoluments of the claimant from August 2014 to the time that he is statutorily entitled to retire.as a staff of the defendants.

OR IN THE ALTERNATIVE

 An order of court directing the defendants to compute and pay to the claimant all his salaries, gratuities and emoluments and other entitlements due to him from the date of termination of his employment to the date that he is statutorily entitled to retire.as a staff of the defendants.

  1. AN order that such computation and payment of the entitlement  due to the claimant shall not exceed 30 days after the   judgment of this honourable court or so soon thereafter.
  2. Cost of N10,000,000.00 only as general damages against the defendants for unlawful termination of his employment
  3. Cost of action at N2,000,000.00 to be paid by the defendants to the claimant.
  4. All the defendants were served with the complaint on 31/1/2025 as seen on pages 32, 33 and 34of the courts file but none of them deemed it fit to enter any appearance, let alone a statement of defence. The defendants were also served with hearing notice for the hearing of 17/3/2015 which were all received on 10/3/2015 as seen pages 37, 38 and 39 of the courts file but they all failed to come to court and no explanation. 
  5. Accordingly, since the matter was ripe for hearing, the claimant was heard on 17/3/2015 and since there is no intention on the part of the defendants to defend the suit, the case was adjourned to 3/4/2025 for judgment.
  6. The defendants filed two motions on notice seeking to set aside the judgment and to defendant the suit and same was granted without objection on 38/5/2025. The defendants filed an amended statement of defence by a motion of 11/12 2025.
  7. The case was started de-novo on 5/12/2025 with the claimant testifying while the defendant witness testified on 27/1/2026.

 

 

CASE OF THE CLAIMANT

  1. It is the case of the claimant who testified as CW that he was employed as a driver by the 3rd defendant by a letter of 22/5/2001 on an initial salary of N 51,588.00 per annum at salary grade level 03 and his employment was confirmed by a letter of 1/3/2004.
  2. He enjoyed promotions up to senior driver grade level 06 step 2. He was assigned to His Royal Highness Oba Oluwole Olubunmo, the Olorin of Ekiti, Ekiti State. He was paid his salaries regularly until the very month that his employment was illegally and unlawfully terminated. He got to work and discovered another driver inside the car he was driving and the Kabiyesi told him that his employment was terminated, without any further explanation.
  3. That the letter of termination dated 17/6/2013 was not addressed to him personally but to the 1st defendant and he could not lay his hand on the original letter up till today.
  4. The content of the letter with which his appointment was terminated reads thus;

The Chairman

Ido/Osi Local Government

Ido/Ekiti

                        MR. BORODE LEKE JOHN –A DRIVER

This is to inform you that I cannot continue to work with my present driver Mr. Borode and I have informed him accordingly since 3rd June, 2013.

Consequently, I would want you to employ another driver whose name and particulars I would send to you later with effect from 1st July, 2013 as a replacement.

Thank you very much for your understanding and cooperation.

Yours faithfully

                                                                        

Signed

His Royal Majesty

Oba Oluwole Olubunmo III

The Olorin of Orin-Ekiti

                                                                                    

  1. He went to the 3rd defendant to meet the Director of Administration, he he met him stern looking and ordered to leave his office.
  2. That the D.A ordered the security men to drive out of the local government. He kept coming to the office but each time the D.A saw him, he would order the people around to drive him out of the local government.
  3. That he was never issued any query. 
  4. That his salaries and emoluments were stopped the same month and his employment enjoyed statutory flavor.
  5. That on 17/4/2018, the Ag. Director of Administration named Alade S.T on behalf of the defendants wrote a letter to the Accountant General office for his reinstatement back into the Local Government pay roll but the letter has not been effected up till today.
  6. That his salary arrears from July,2013 to  July, 2014 is N 6,430,396.98k and his gratuity is N1,270, 985,16 and pension per month is N29,074.82K
  7. That the statutorily allowed time for his full retirement will be 27/9/2025. Since he was born 27/9/1965. 
  8. In cross examination, claimant said I stand by my paragraph 11.I did not write to the council, I met the Director called D.A. I still stand by my paragraph 23. My salary has been stopped, that is evidence of dismissal.

 CASE OF THE DEFENDANTS

  1. It is the case of the defendants through one Babalola Gabriel Gbenga, a senior administrative officer of the defendants, that the defendants never terminated the employment of the claimant in any way as it was the claimant himself who absconded from duty from April, 2013 without bringing reasons for his absence or notifying the defendants and was reported by HRM, Oba Oluwole Oluand and all efforts to trace him, including a visit to his home town at Aaye-Ekiti, prove abortive.(pars 4, 8,10, 15, 17, 19, 22, 23, 24)
  2. That this suit is statute barred, having not been filed within the time allowed by the limitation law of Ekiti state, 2010, cap19. That the cause of action arose in July2013 and lapsed in 2019 but this suit was filed in 2015, six years after the cause of action lapsed.
  3. That the alleged letter dated 17/5/2013 is a concocted letter which is not n custody of the defendants and that the letter dated 17/4/2018 does not exist at all, did not emanate from the defendants and is not contained in any of their files.
  4. That salaries are meant for employees who are in the service and not meant for employees who absconded from work as the claimant and the claimant is not entitled to any salary arrears.
  5. That pension and gratuity are not for an employee who has not retired from his appointment and the claimant is not entitled.to same.
  6. In cross examination, DW said the Kabyesi under which the claimant work does not have attendance register in his place. I am not aware that the Olorin brought any complaint to the D.A about the claimant. What happened is that the Olorin made a request to the D.A for replacement of his driver in 2013. His driver was changed. I know ...that the claimant was paid till June, 2013. The claimant was not issued any query. We called him on phone but his number was not going.

 

FINAL WRITTEN ADDRESS OF THE DEFENDANTS

  1. In his final written address for the defendants filed on 29/1/2026, learned Temitope Alabi argued that the claimant has not   proved his case against the defendants to be entitled to the reliefs sought. He also argued that this suit is statute bared and incompetent thus robbing this court of the jurisdiction to entertain same. 

 

FINAL WRITTEN ADDRESS OF THE CLAIMANT

  1. In his final written address for the claimant, filed by a motion of 18/4/2026 and deemed on 15/4/2026, learned Olayemi submitted that the claimant has proven his case to be entitled to the reliefs claimed.

COURT’S DECISION

  1. Having read the pleadings and the evidence of the claimant, both oral and documentary, the issue for determination is whether the claimant has proven any of his claims against the defendants. But first, the objection.

 

  1. OBJECTION TO JURISDICTION

 

  1. The defendant raised a preliminary objection to the effect that this suit is statute barred.
  2. Counsel submitted that the content of the complaint filed on 21/1/2025 is to the effect that the salary of the claimant has been stopped since the month of July, 2013.The cause of action arose in July, 2013 but the action was filed 12 years thereafter.
  3. That section 4(1) (a) of the Ekiti State Limitation Law provides that the following actions shall not be brought after expiration of six years from the date on which the cause of action accrued, that to say- (a). Actions founded on simple contract or on Torts, (b). Action to enforce a recognizance, (c). Actions to enforce an award, where the submission is not by an instrument under seal, (d). Action to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
  4. That this law states that any action founded on simple contract or on tort must be commenced within six years from the date the cause of action arose.
  5. Learned counsel urged the court to hold that this suit filed after 12 years of the accrual of the cause of action had become stale, extinguished and unenforceable and to dismiss the case.
  6. In his reply on point of law, counsel argued that the contract of employment like that of the claimant is amenable to statute of limitation. OKORONKWO V INEC (2025) LPELR-80425(SC) and ANOLAM V FUTO &ORS 92025) LPELR-80027(SC).
  7. In response to the objection, counsel submitted that the Limitation law of Ekiti State Cap l9, 2010 (as amended) is the Ekiti State domesticated Law which derived it’s root from the Public Officer Protection Act (POPA) of the Laws of the Federation of Nigeria (2004). However, section 254 c - (1)(b) of the Nigerian constitution grants the National Industrial Court exclusive authority to interpret and apply to employment disputes.  
  8. That the Courts have stated that the statutes relating to labour and employment issues, thus rendering Public Officer Protection Act (and by extension statute of Limitation), a general statute designed to protect public officers against suit from any party absolutely irrelevant. The law does not apply to an employment under the contract of service. National Revenue Mobilization Allocation and Fiscal Commission & ors. v Ajibola Johnson & ors (2019) 2 NELR (pt. 1658) 546.  Suit No: NICN/LA553/2018 – Mr. Godson Ikechukwu Nkume V. First Bank of Nigeria Ltd. And suit No: NICN/LA/402/208 – Lilian Nnnena Akumah V First Bank of Nigeria PLC.
  9. That the Limitation Law and the public officers Protection Act do not address employment relations but applies broadly to all public officers, including those who are not engaged in labour or industrial work.  
  10. The response of the claimant went off point by first, wrongly construing the Limitation law of Ekiti State Cap l9, 2010 (as amended) as the Ekiti State domesticated Law which derived it’s root from the Public Officer Protection Act (POPA) and then proceed to submit that the Law does not apply to an employment under the contract of service. Citing National Revenue Mobilization Allocation and Fiscal Commission & ors. v Ajibola Johnson & ors (2019) 2 NWLR (pt. 1658) 546 and the defendant counsel rightly responded by submitting that the current position of the law on the applicability of POPA is the decisions of the Supreme court in OKORONKWO V INEC (2025) LPELR-80425(SC) and ANOLAM V FUTO &ORS 92025) LPELR-80027(SC).
  11. The defence counsel also made conflicting submission by submitting that the claim is for unpaid salaries and yet claiming that the claim is statute barred even when in the statement of defence, admitting none payment of the claimant from 2013 to date of filing this suit, the defendants categorically maintained that they never at any time terminated the employment of the claimant but the claimant absconded. (pars 5, 8,10, 15, 17, 19, 22, 23, 24)
  12. I have looked at the entire pleadings of all the parties and I agree with the defendants that the claimants’ employment was never terminated but his salary was stopped from July 2013 without any reason given.

In the circumstance, having not terminated the employment of the claimant, the claimant’s claim for his salary is a claim for work and labour done and such claim is not caught by limitation law. Every month that he is due for salary and the defendant fails to pay him gives rise to a new cause of action, so the continued failure to pay the claimant is a continued injury which cannot be caught by the statute of limitation, It also qualifies as a claim for work and labour done which also is not caught by the limitation law. See OYETAYO V ZENITH BANK NIG.PLC (2012)19 N.L.R (PT84) P37 AT PP. 416. 

By the authorities, claims on specific contracts, claims for work and labour done and claims where the injury is a continuing one are not caught up by the limitation law.

See also F.O.Obayuwana v Minister of Federal Capital Territory & ors (2009) LPELR-8202(CA); Abiodun V A.G. Federation (2007) 15 NWLR (PT.1057) P359 at p412; CBN V Amao &2 ors (2015)5 ACELR P1 at P24,  (2010) v0l. 5-7(PT.111) MJSC P.1

 

  1. Also, the defendant counsel assumes that the claim of the claimant is one of a simple contract or tort. That is not the case herein, the instant case is a claim for work and labour done. The contract between the claimant and the defendants is a contract of service over which this court has jurisdiction, which is distinct from a simple contract over which this court does not have jurisdiction but the state high Court. See Nigeria Unity Line Plc v. Usman (2014) 6 NWLR (Pt. 1404) 546 and   FUTA v. BMA Ventures (Nig.) Ltd. (2018) 17 NWLR (Pt. 1649) 477 (2018) 17 NWLR (Pt. 1649) 477

 

  1. Accordingly, the objection fails and is dismissed.

 

B.MERITS OF THE CASE

 

  1. The first point of call here is the ruling on the admissibility of exhibits JLB 5 Tendered and JLB 6Tendered by the claimant and objected to by the defendants on the ground that they are mere photocopies of public documents that ought to be certified but were not certified. 
  2. It is true that secondary evidence of public documents ought to be certified to be admissible. Exhibit JLB 5Tendered is a photocopy of a letter on the letter head of the Olorin. 
  3. The defendants in paragraphs 13 of their statement of defenece averred that they were not in custody of the document and learned defence counsel repeated same in court on 8/12/2025.
  4. I have looked at exhibit JLB5 Tendered, even though addressed to the chairman, Ido/Osi Local Government, there is nothing on the document to show or suggest that it comes from the file of the 3rd defendant.  It is a photocopy of the claimant’s copy of the said letter as it is shown to be copied to him and ticked as his own copy. The Olori even wrote and signed on it to the claimant as follows; you may wish to follow this up with Ido/Osi Local government and the Olori also wrote and signed on it for claimant as follows; please, move out of your official residence on or before 30-06-13.
  5. What this implies is that the claimant did not tender the copy send to the defendants from the defendants file but his own copy which qualifies as a private document. What qualifies a private document addressed to a public body as public document is it being part of the official record of or in custody of a public body. See Section 102 of the Evidence Act, 2011. and I.G.P v. Bello (2023)1 NWLR (Pt. 1865)265@306-307,where the court held that a private document addressed and sent to a public body only qualifies as a public document if the original is in custody of that public body. 
  6. Learned defendant counsel who is the same person raising objection on certification is the same person who in his response is saying that the document is not in their possession or custody. The arguments of learned defendant counsel are self-destructive. 
  7. In my view, if the document is not in the custody of the defendants, and the copy tendered does not purport to come from the public record, as in this case, then it is not a public document which photocopies needs to be certified to make it admissible especially since claimant in his pleadings and evidence has laid proper foundation as to the whereabouts of the original that he cannot trace the original. The document is admissible by reason invoking section 12 of NICA, 2006 and I so admit same. 
  8. In any case, the contents of the said document in my view correlates with even the evidence of the DW in his oral evidence in his written statement on oath and cross examination on 8/12/2026 that the Olorin reported claimant and requested that his Driver be changed. This fact alone lends credence to the said Exhibit JLB5Tendered. It is in view of the above reasons that I discountenance the objection to exhibit JLB 5 Tendered and admit and mark same accordingly as Exhibit JLB 5.
  9. The same objection was raised to Exhibit JLB6 Tendered. A cursory look at the said document reveals that it is a letter written by one S.T Alade in his official capacity as an officer of the defendants and addressed to the Accountant General, this alone qualifies it as a public document as being documents forming part of the official acts or record of a public officer which admissible form is either its original or a certified true copy. The copy tendered is neither the original nor a certified true copy. There is neither any proof on the face of the letter that it was served on the Accountant General. It is thus inadmissible. See Iorapuu v. State (2020)1 NWLR (Pt. 1706) 391 Exhibit JLB 6 is hereby rejected and so marked.
  10. Similarly, the defendant in his final written address submitted that the claimant failed to file a reply to the statement of defence and as such is deemed to have admitted the facts in paragraph 7-14.16.18 and 19 of the statement of defence. The response of the claimant counsel is that it is not in all cases that a reply must be filed to a statement of defence. the issue of abscondment is the only issue here and the pleadings of the claimant has debunked the issue of abscondment and it needs no special response in form of a reply.
  11. It is true that the only new issue in paragraphs 7-14, 16,18 and 19 is the allegation that the claimant absconded from work. The facts averred by the claimant are already contrary to the allegation of abscondment and so issues are already joined. The claimant said he came to work and met another driver in his car and he kept going the 3rd defendant to see the Director of Admin (DA) but the DA refused to attend to him but rather always ask people to send him out of the Local Government. The said DA has not been called by the defendants to deny this fact.
  12. In the circumstance, filing a reply will be otiose or lead to unnecessary duplication of court processes. See IWUOHA V NIPOST LTD ((2003)8 NWLR (PT.822)P.308 at 340-341.This issue is resolved against the defendants and in favour of the claimant.

 

MERITS OF THE CASE

 

  1. From the facts of the case, the claimant was employed by the 3rd defendant on 22/5/2001 and assigned to His Royal Highness Oba Oluwole Olubunmo, the Olorin of Ekiti, Ekiti State. On 17/6/2013, His Royal Highness wrote a letter (Exhibit JLB5) to the 1st defendant to the effect that he could no longer work with the claimant and would want a replacement. This is how the letter reads;

 

The Chairman

Ido/Osi Local Government

Ido/Ekiti

                        MR. BORODE LEKE JOHN –A DRIVER

This is to inform you that I cannot continue to work with my present driver Mr. Borode and I have informed him accordingly since 3rd June, 2013.

Consequently, I would want you to employ another driver whose name and particulars I would send to you later with effect from 1st July, 2013 as a replacement.

Thank you very much for your understanding and cooperation.

Yours faithfully

                                                                        

Signed

His Royal Majesty

Oba Oluwole Olubunmo III

The Olorin of Orin-Ekiti

  1.  Based on this letter, the 3rd defendant stopped paying the claimant his salaries and, through its Director of Administration (DA), refused to even attend to the claimant. 
  2. It is probably because of the refusal to pay that the claimant erroneously said his employment was terminated. In an employment statutorily protected, failure to pay salaries, no matter for how long, as long as the employment of the employee was not terminated, the failure to pay cannot amount to termination, unlike in a master/servant relationship where the refusal to pay salaries can amount to constructive dismissal. See Ilodibia v Nigeria Cement CO. Ltd (1997) LPELR-1494(SC)1 at P.18-20 paras C,; CBN & Anor V Aribo (2017) LPELR-47932 (SC)            and Balogun Babawande v Hyperlink Technologies &ors (unreported) suit No. NICN /ABJ/254/2021 a judgment delivered by O. O. Oyewumi JNICN, as he then was, now JCA.
  3. From the content of the above letter, the Olorin of Ekiti, Ekiti State did not in any way purport to terminate the appointment of the claimant. The said Olorin of Ekiti, Ekiti State was never the employer of the claimant and could not, in law, have terminated the employment of the claimant.
  4. Similarly, the 3rd defendant said it did not terminate the appointment of the claimant either, and there is no termination letter. Both in fact and in law, the appointment of the claimant was never terminated. As far as the facts disclosed are concerned, this is a case of non -payment of salaries and not termination of employment as the employment of the claimant has not been shown to have been terminated by his employer in any way, more so that his employment is statutorily protected and could not be terminated for no reason nor just because the Oba simply said he could no longer work with the claimant. 
  5. The defendants, after admitting refusal to pay the claimant his salary, repeatedly insisted that they did not terminate the appointment of the claimant but that the claimant absconded from work, see paragraphs 5, 8,10, 15, 17, 19, 22, 23, 24 of the depositions of DW which are a reproduction of statement of defence.
  6. What is the evidence of abscondment from work? There is none. The DW, in cross examination, said I am not aware that the Olorin brought any complaint to the D.A about the claimant. The claimant was not issued any query. If the only witness of the defendants is not aware of any complaint from the Oba to whom the claimant was attached, but is aware of a request from the Oba for a change of his driver, which accords with the content of exhibit JLB 5, then the court reasonably believes that there was no complaint of absconment from the Oba against the claimant and in the absence of any further proof of abscondment, the court finds and hold that the claimant did not abscond.
  7. In any event, the repeated insistence by the defendants that the claimant absconded amounts to pouring water on stone and expecting it to dissolve in view of the insistence that the defendants never at any time terminated the appointment of the claimant and that the claimant was not issued any query. This is so because if the claimant absconded from work and he was neither queried nor dismissed, the legal implication is that the defendants condoned any such infringement by the claimant and cannot at this stage rely on same as a defence for not paying the claimant his salaries. See ELECTRICITY CORPORATION OF NIGERIA V. NICOL (1968) LPELR-25505(SC) where the court held;

It is settled law that if a master did not complain and appeared to be satisfied with a servant's conduct, that complaint cannot be a ground for dismissal on a subsequent occasion. See Smith v. Allen 176 Eng. Rep. 73, and in the case of Beattie v. Farmenter (1888-89) 5 T.L.R. 396 Lord Esher, M.R. said as follows- "As to irregularities, the defendant could not rely on them in as much as, after full knowledge of them, he continued the plaintiff in his service."

 

  1. For the fact that the employment of the claimant was never terminated, the claimant cannot be entitled to relief (i).
  2. By the facts accepted as true, the claimant has proven his entitlement to  relief (ii) only in terms of payment of his salaries from July 2013 to the date of judgment and thereafter till he retires on 27/9/2025. 
  3. The same claimant, who remembered to say his salary at grade level 3, did not remember to say how much was his monthly salary on grade level 6 step 2. Even though the claimant avers in paragraphs 26 and 27 of the statement of facts and testified to the same effect that his salary arrears from July, 2013 to  July, 2024 is N 6,430,396.98k and his gratuity is N1,270, 985,16 and pension per month is N29,074.82K as calculated for him by a treasury staff of the Ekiti state Local Government Service Commission, this averment and evidence is based on nothing ,the basis of the calculation is not stated and the staff is not called as a witness to disclose the basis of his calculation.
  4. The mystery of the claimant stating his salary at level 3 but failing to state same at level 6 remains a puzzle. The salaries of the claimant from 2013 to date of retirement would not need any staff or an expert to calculate once the last salary of the claimant is stated.
  5. The claimant has proven his entitlement to salaries from July, 2013 to September, 2025 and is entitled to such a declaration and no more, having failed to prove the amount claimed. It is trite law that who asserts or claims a relief must prove it by credible admissible evidence, and judgment for and grant of such claims must be based on legal evidence of the highest probative value and weight. See Ayeni v. Adesina (2007) 7 NWLR (Pt. 1033) 233 at 264 paras. A - B (CA);as the duty of every court of law is to render to everyone according to his proven claim, and nothing more. It cannot give to a party a relief he has not proved. See In-Time Connection Limited v. Mrs. Janet Ichie (2009) LPELR-8772(CA)

  1. This judgment is being delivered today13/5/2026 so the claimant ought to have retired on 27/9/2025. The defendants are to so treat the claimant and process his papers and retirement entitlements accordingly.
  2. I see no reason to award general damages to the claimant.
  3. The 2017 Rules of this Court, specifically by Order 55 Rules 1 and 4 empower this Court to award cost at its discretion at judgment stage. Although the claimant assessed the cost at N2,000,000, I in my discretion considering the processes filed and the number of appearances on behalf of the claimant award cost of action N500,000 in favour of the claimant.
  4. For the avoidance of doubt, it is hereby declared and ordered as follows;
  5.  A DECLARATION that the employment of the claimant was never terminated at any point in time.
  6. A DECLARATION that the defendants owe the claimant his salaries from July 2013 to September, 2025.
  7. A DECLARATION that the claimant is entitled to be paid his salaries on grade level 6 step 2 from July 2013 to 27/9/2025.
  8. A   DECLARATION that the claimant retired on 27/9/2025
  9. A CONSEQUENTIAL ORDER that the defendants process and issue to the claimant his retirement papers and retirement entitlements accordingly.
  10. Cost of this action is assessed at N500,000.00 in favour of the claimant.

 

  1. This is the judgment of the court and it is entered accordingly.

 

………………………………………

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE