IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BAUCHI JUDICIAL DIVISION

HOLDEN AT BAUCHI

BEFORE HON. JUSTICE MUSTAPHA TIJJANI

 

JULY 24, 2025                                            

SUITNO:NICN/BAU/07/2024

 

 

BETWEEN:                                                           

 

MAYMUNAT A. ABUBAKAR -         --       --       --       -CLAIMANT        

 

AND

 

ABUBAKAR TAFAWA BALEWA UNIVERSITY 

TEACHING HOSPITAL BAUCHI    --------------      -DEFENDANT

 

REPRESENTATIONS:

 

I.D. Buzi, Esq for the Claimant.

A.A. Garkuwa Esq for the Defendant.

 

JUDGMENT

 

On March 3, 2024, the Claimant prepared a complaint, which was officially filed on March 6, 2024. This complaint, accompanied by a statement of facts, seeks the following reliefs from the Defendant:

1. A Declaration that the Defendant is the Claimant’s employer and no other person else.
2. A Declaration that the Claimant’s employment with the Defendant is still subsisting either on ground of years of service or date of birth.
3. A Declaration that the stoppage of the Claimant’s salaries and allowances by the Defendant while the Claimant’s employment is still subsisting is illegal, null, void and of no effect.
4. A Declaration that the purported retirement of the Claimant from the employment of the Defendant is illegal, null, void and of no effect.
5. An Order setting aside the letter of approval of the Claimant’s retirement from the employment of the Defendant with immediate effect.
6. An Order directing the Defendant to reinstate the Claimant back to service and in the status she was before the purported retirement.
7. An Order directing the Defendant to pay to the Claimant her accumulated salaries and allowances from the month of August, 2022 till date.
8. N10, 000, 000.00 (Ten Million Naira) only being general damages for the trauma and hardship meted on the Claimant as a result of the Defendant’s action.
9. The cost and expenses incurred by the Claimant to prosecute this suit.

 

 

BRIEF FACTS OF THE CASE  

The Claimants assert that the claimant was employed by the defendant. The claimant was integrated into the defendant's workforce on September 3, 2010, following an appointment with the Ministry of Health on October 14, 1982. On December 12, 2011, the claimant requested a transfer of service, which the defendant approved on December 29, 2011. The defendant later informed the claimant of her retirement, referencing her initial appointment date of October 14, 1982. The claimant disputes this retirement, arguing that her employment with the defendant constituted a new appointment. Consequently, the claimant initiated legal action against the defendant.

 

The defendant's learned counsel submitted the Final Written Address, presenting two issues for determination:

 

1. Was the claimant eligible for retirement on 14/10/2017, given that she joined the civil service on 14/10/1982 and transferred her service to the defendant on 26/11/2010?

2. Has the defendant/counter claimant established its case based on the preponderance of evidence, thereby justifying the reliefs sought in the counterclaim?

 

5. Regarding the first issue, the defendant affirms that the claimant was indeed due for retirement. The defendant argues that the claimant's original appointment with the Ministry of Health, dated December 21, 1982, remains valid and has not been resigned, terminated, or dismissed. The defendant refers to exhibit TH1 and asserts that, under Nigerian employment law, an employment relationship continues until it is explicitly ended by resignation, dismissal, or retirement, as per the contract terms or applicable laws. The defendant's counsel also cites the Public Service Rules (PSR), which govern civil service employment in Nigeria, stating that an employee's service is continuous unless formally terminated.
6. Learned counsel referenced Rule 020908 of the Public Service Rules, which highlights that retirement is based on either the length of service or reaching the retirement age, starting from the date of first appointment. The counsel also cited the cases of Nwajagu v. Baico (Nig) Ltd. (2000) 12 NWLR (Pt. 682) 561, Idufueko v. Pfizer Products Ltd. (2014) LPELR-22999(SC), and RIBADU VS. NATIONAL BOUNDARY COMMISSION (2024) LPELR-80018 (CA) at page 19. In these cases, the court dismissed the appeal, stating that the trial court was correct in its decision that the appellant was not offered a new appointment by the respondents. The ratification and regularization of the appellant's secondment appointment could not replace a new appointment. The appellant received a fresh appointment letter from the respondent, which the court deemed a ratification of the appointment. The court further clarified: "The letter relied upon by the appellant is not an appointment letter but a ratification of appointment. A ratification letter cannot be equated with a fresh appointment letter. Ratification implies confirming and accepting a previous act, making it valid from the moment it was done, and its effect is to place the parties in the same position as if the act ratified had been previously authorized." The Defendant argues that this situation mirrors what occurred between the claimant and the defendant. The claimant was accepted by the defendant at salary grade level 11 step 5, which would not be possible if it were a new appointment. Similarly, when the claimant was promoted via Exhibit TH 9, it indicated that her services were merged, effective from 1/1/2006. The defendant further submits that in the case of RIBADU VS. NATIONAL BOUNDARY COMMISSION (Supra), there was an employment advertisement, the appellant applied, passed the interview, and received a fresh appointment letter. Yet, in the interest of justice, the court held that such an appointment was a ratification. The situation in this case is even more straightforward, as there was no advertisement for recruitment, no interview conducted, and a letter (EXHIBIT TH 2) conveyed approval for the absorption of staff, in addition to EXHIBIT TH 3 and TH 4.
7. The Defendant argued that during cross-examination, the claimant acknowledged accepting the appointment offered in 1982 and serving for six years. The Defendant contended that the claimant never resigned from her initial 1982 appointment, and her claim of being unable to locate her resignation letter is speculative, lacking any supporting evidence. Additionally, the counsel pointed out that the claimant admitted under cross-examination to preserving all correspondence with the defendant. This suggests that if she had resigned from her 1982 appointment, she would have produced the resignation letter, given her habit of preserving correspondence. 

 

 

9. The Defendant also highlighted that the claimant does not dispute her initial employment in 1982 and has not resigned. She even requested a change in the date of her first appointment. Thus, her claim of resignation appears to be an afterthought and contradicts the document titled ‘RE: NOTICE OF RETIREMENT’ that she attached. The Defendant further argued that since the claimant's first appointment in 1982 remains valid and active, it is unlawful for her to accept another appointment with the defendant as she claims.The defendant's counsel maintained that even if the claimant's appointment with the defendant were considered a new appointment, it would be unlawful due to the existence of her valid 1982 appointment.
10. The Defendant argues that the claimant herself requested to change the date of her initial appointment from 1982 to 2008, directing the court's attention to Exhibit TH 10. During cross-examination, the claimant confirmed this fact, further demonstrating that the defendant acknowledges her first appointment was indeed in 1982, not 2010 as she later asserted. Additionally, in January 2011, after being reabsorbed by the defendant, the claimant filled out her Annual Performance Evaluation Report (APER) in her handwriting, citing 14/10/1982 as her initial appointment date. The defendant refers to EXHIBIT TH 7 for this evidence. While in the defendant's service, the same exhibit 7 shows her appointment to her substantive position was in 2008, at grade level 11, step 6. The defendant contends this indicates she merged her service from 1982, which is why she referenced her substantive position as 2008 and was already at level 11, step 6 by 2011. This is consistent with what she filled out in January 2012 in EXHIBIT TH 8. The claimant's actions clearly indicate her first appointment date is 14/10/1982, and she cannot now deny this fact. The Learned Counsel cites ARIK AIR LTD VS. CATERING AND FACILITIES SOLUTIONS LTD (2017) LPELR-50398 (CA), arguing that the claimant, having benefited from promotions and other advantages based on her 1982 appointment, cannot now claim her appointment was in 2010.

 

11. Furthermore, the defendant's counsel submits that the claimant was promoted via a letter dated 27/3/2014 (EXHIBIT TH 9), with the promotion taking effect notionally from 1/1/2006. If the claimant's appointment was indeed in 2010, as she claims, it would be illogical for her promotion to take effect in 2006, predating her alleged appointment with the defendant. The claimant has never complained about this and has enjoyed the benefits of the promotion. The Defendant refers to the case of ADEBAYO VS. BENUE STATE UNIVERSITY (2021) LPELR-54221 (CA), where it was held that a respondent, by remaining silent upon receiving the appellant’s Exhibits ‘1’, ‘3’, and ‘4’, conveyed the impression of agreement with the appellant's claim of indebtedness. The respondent cannot, after five years, reverse this implied agreement. This is supported by EXHIBIT TH 9.
12. The Defendant claims that the claimant requested a service transfer on December 12, 2011, which the defendant approved on December 29, 2011. The court is directed to review EXHIBIT TH 3 and TH 4. EXHIBIT TH 4, which is the letter confirming the acceptance of the claimant's service transfer, clearly states, “…Abubakar Tafawa Balewa University Teaching Hospital, Bauchi is willing to accept you on transfer of service.” The Defendant argues that EXHIBIT TH 4 demonstrates that the claimant was accepted through a service transfer, not a new appointment. The Defendant's counsel refers to the case of ALH. HAMZA DALHATU VS. ATTORNEY GENERAL, KATSINA STATE & ORS (2007) LPELR-8460 (CA), asserting that a service transfer does not end the existing employment but rather integrates the employee into a new department or employer while maintaining service continuity. The court is also referred to Rule 020501 of the PSR, which governs public sector service transfers, ensuring employees retain the benefits and obligations of their previous service upon approved transfer. Additionally, the case of Aiyetan v. Nigerian Institute for Oil Palm Research (1987) 3 NWLR (Pt. 59) 48 or (1987) LPELR-275 (SC) is cited, where the court acknowledged that a public sector service transfer is a continuation of prior service, not a new appointment. EXHIBITS TH 7, TH 8, and TH 9 support this legal position, emphasizing that the claimant was accepted based on a service transfer rather than a new appointment.

 

13. Furthermore, the Defendant's counsel argues that retirement under Nigerian Civil Service Rules is determined by the date of the employee’s first appointment. The Defendant correctly calculated the claimant’s retirement date from October 14, 1982, in line with the continuity principle outlined in the PSR. The court is referred to Rule 020908 of the PSR, which states that retirement age is based on either 35 years of service or 60 years of age, whichever occurs first. This calculation starts from the date of the first appointment, regardless of any subsequent transfers. The cases of Ogbaje v Abuja Investment and Property Development Company Ltd. (2007) LPELR-11855(CA) and Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 are also referenced.
14. Learned Counsel further submits that the appointment letter dated 3/9/2010, which the claimant attached, indicates seniority effective from 1/1/2003. This suggests it is a continuation of the initial appointment from 1982. Additionally, no new appointee in public service can start at level 11, step 5. Therefore, the first paragraph of the 2010 appointment letter confirms it is a continuation of the previous appointment. The defendant argues that grade levels 07-10 are the entry points for new appointees with the claimant's qualifications, citing Rule 020502 (ii) of the Public Service Rules. Thus, the claimant's placement on grade level 11 upon being absorbed by the defendant indicates she was accepted on transfer, merging her services with her initial service. Counsel refers the court to the case of UDO VS. CROSS RIVER STATE NEWSPAPER CORPORATION (2001) 14 NWLR (PART 732) 116 @ 433 Per OGBUAGU JSC, which states that when a contract involves several documents, the trial court can only determine the issues based on those documents and the parties' conduct. Counsel submits that the claimant's conduct in Exhibits TH3, TH4, TH7, TH8, and TH9 clearly shows she was accepted by the defendant on a transfer of service. 

 

 

 

 

The question is whether the defendant/counter claimant has successfully demonstrated her case based on the preponderance of probability, thereby justifying the reliefs sought in the counterclaim. The defendant/counter claimant contends that the counterclaim has been substantiated on the balance of probability. She refers to EXHIBIT TH 1, which neither party has resigned from nor terminated, as evidence of the claimant’s initial appointment date as a civil servant. The defendant argues that since the claimant transferred her services and was subsequently reabsorbed by the counter claimant, she was due for retirement in 2017, having completed 35 years of service from her first appointment in 1982. The defendant cites the case of SURV. MUSTAPHA YAHAYA RIBADU VS. NATIONAL BOUNDARY COMMISSION (2024) LPELR-80081 (CA), which states: “…The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service, whichever is earlier. 2. No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service, whichever is earlier.” According to these Civil Service Rules, it is mandatory for a public servant to retire upon reaching 60 years of age or completing 35 years in public service. The defendant urges the court to resolve issue two in her favor and grant the reliefs sought in the counterclaim.

 

Conversely, the claimant's counsel submitted a written address on June 16, 2026, outlining three issues for consideration: 

 

1. Whether the Claimant was eligible for retirement on October 14, 2017, from the Defendant's employment, given the absence of service transfer or service condonation during the Claimant's tenure with other organizations before joining the Defendant.

2. Whether the alleged termination of the Claimant's employment by the Defendant was lawful and adhered to civil service regulations.

3. Whether the Claimant has sufficiently demonstrated her case with a preponderance of evidence to justify the Honourable Court granting all her requested reliefs as stated in the complaint.

 

 

19. The claimant's counsel further submitted that there is no dispute regarding the Claimant's employment as a Nurse student with the Bauchi State Hospital Management Board in 1982. However, after six years, she left to join the Nigerian Air Force, subsequently worked with two other organizations, and then accepted a new appointment with the same Hospital Management Board in 2008, before finally joining the Defendant in 2010. Throughout her employment history, there was no consolidation of service that would justify her retirement from the Defendant's employment by 2017. The Defendant's claim that the Claimant has accumulated 37 years of service is unfounded, as they have not provided evidence to show that the Claimant merged her years of service during her second tenure with the Bauchi State Hospital Management Board. The Claimant, in her pleadings and evidence, informed the court that she was employed by the Bauchi State Government in 2008 after a successful interview with the Bauchi State Hospital Management Board, and later joined the Defendant in 2010. It is a well-established legal principle that the burden of proof lies with the party asserting a fact. Therefore, the Defendant should have provided credible evidence that the Claimant did not resign from her previous employment before joining the Bauchi State Government in 2008 on a new appointment. The Claimant, however, has demonstrated her resignation from other positions and refers the court to Exhibits MAM 17 B and MAM 18 B.
20. The Government of Bauchi State is a separate and distinct entity from the Defendant. Therefore, it cannot be assumed that the Claimant's employment with the Defendant is an extension of her previous employment with the Bauchi State Government. The Defendant's reliance on Exhibits TH2, TH3, and TH3 is merely an attempt to mislead by suggesting a merger of services during the Claimant's employment with other employers before joining the Defendant. The Claimant's counsel argues that Exhibit TH6, attached to the Defendant's pleadings, is irrelevant and offers no support for their case for two reasons. First, the exhibit does not confirm that the Claimant's appointment on 11th August 2008 was issued in error. In fact, Exhibit TH6 was created after the Claimant left the Bauchi State Government in 2010. It would have been expected that the exhibit should corroborate a withdrawal letter for such an appointment. Second, the creator of Exhibit 6, Sunusi M. Tukur, or any other Bauchi State staff, should have been called to testify about the exhibit, and failing to do so means the exhibit was improperly presented to the court. The law is clear that my lord cannot make further inquiries on a document that should have been demonstrated in open court.

 

21. The Claimant's counsel respectfully submits that upon accepting an appointment with the Defendant, the Claimant left her service with the Bauchi State Government, making any correspondence regarding the transfer of service irrelevant, given the contents of Exhibit MAM 1, which is a new offer accepted by the Claimant. We also submit that based on Exhibit MAM 1, the only binding contract in the employment relationship between the parties in this suit is the new offer (Exhibit MAM1). The Claimant has shown in her pleadings and evidence that she was born on 16th April 1968 and was employed by the Defendant on 3rd September 2010. Simple arithmetic shows she has 10 more years to serve as a Nurse Educator, whose employment cannot be terminated without following the due process of law as outlined by the rules of the Federal Civil Service. See Exhibits MAM 1, MAM 10, and MAM 14.
22. Counsel argued that the Claimant was not scheduled for retirement on 14/10/2017 from the Defendant's employment, as stated in Exhibit MAM 9. This was despite the absence of any service transfer or condonation during the Claimant's tenure with other organizations before joining the Defendant in 2010, as shown in Exhibit MAM 1. Therefore, the Claimant's employment termination by the Defendant was illegal, null, void, and ineffective, as it did not comply with the Public Civil Service rules.

 

“The relevant provisions of the Civil Service Rules pursuant to which the Appellant was posted to the 4^th Respondent reads thus-

SECTION 6 – TRANSFER AND SECONDMENT 02601- TRANSFER is the permanent release of an officer from one service to another or from one class to another within the same service….” 

24. In the cited authority, the key issue regarding the transfer of service is that it must occur within the same service. In this case, the Bauchi State Government does not share the same service as the Defendant, which operates under the Federal Civil Service Rules. It is further argued that if the Claimant had been transferred within the same service, her appointment would not have been subject to separate conditions, such as being permanent and pensionable. To illustrate that the Claimant's appointment was new, the Defendant confirmed her appointment in accordance with civil service rules through a letter dated 12th February 2018, effective from 3rd September 2012 (see Exhibit MAM 19). The Claimant's counsel noted that the Defendant did not retract Exhibit MAM 19 when it chose to terminate the Claimant's appointment via Exhibit MAM 9, stating her retirement was effective from 12th October 2017. Additionally, the Defendant praised the Claimant on two occasions (see Exhibits MAM 20A and MAM 20B), suggesting that the Defendant's inconsistent actions towards the Claimant are contradictory, which is disapproved by law. The case of Longe v. F.B.N Plc (2006) All FWLR (pt. 313) P.46 @ 71, paras. D-E was cited. Counsel urged the court to resolve these issues in favor of the Claimant and grant her the reliefs sought in her Complaint.
25. ISSUE NO. 3

Whether the Claimant has successfully demonstrated her case by a preponderance of evidence to justify this Honourable Court granting all her requested reliefs as outlined in the complaint. The Claimant asserts that she has met this burden of proof, which is required in civil cases like this one, as opposed to criminal cases. She has shown that she was newly appointed by the Defendant through a letter of offer dated 3rd September 2010, with no document transferring her service from the Bauchi State Government to the Defendant. In paragraphs 33 and 34, the Claimant argues and provides evidence that her qualifications make her a lecturer (Nurse Educator), equating her status to that of a university lecturer or similar institutions, allowing her to serve until the age of 65. Refer to Exhibits MAM 10, MAM 13, and MAM 14. The Defendant acknowledges this claim but limits its admission to the fact that the Claimant was not hired as a tutor. However, the Claimant contends that her qualifications have always positioned her as a Nurse Educator. If the Defendant now claims she was not employed as a tutor, it has never questioned her role as a Nurse Educator. Exhibit MAM 14, addressed to the head of the Defendant, supports that the Claimant, as a staff member performing Nurse Educator duties, is entitled to the benefits of the circular granting staff of her status the privilege of retirement at 65.

 

27. In civil cases, once a party has presented certain facts and evidence, the burden shifts to the opposing party to provide credible evidence to refute them. In this case, the Claimant has provided unchallenged evidence of her career progression from Assistant Chief Nursing Superintendent to Chief Nursing Superintendent, Peri-Operative Nurse, and finally to Nurse Educator. The Defendant's argument that the Claimant was not employed as a tutor is irrelevant without credible evidence to support it. The Claimant references the cases of BUPA VS. BUKA (2003) FWLR (PT. 183) 38 and Bamigboye & anor v. Owolabi & ors (2022) LPELR-56885(CA) (Pp. 16-18 paras. D), emphasizing that the burden of proof lies with the party responsible for presenting evidence in court. This burden has a legally defined standard, and failure to meet it could result in losing the case. It is crucial for the court to accurately determine who bears the burden of proof and the required standard, as misdirection could lead to the judgment being overturned on appeal. Therefore, it is essential for the party with the burden of proof to fulfill this obligation.
28. The Claimant further submit that the Defendant’s attitude The treatment of the Claimant has been akin to a witch hunt, culminating in an unjustified compulsory retirement. Exhibits MAM 2, MAM4, MAM5, MAM6, and MAM7 all indicate that the Claimant has endured continuous psychological trauma at the hands of the Defendants. The Defendant should have no concern with the Claimant’s previous employment; instead, it should adhere to the terms and conditions outlined in the Claimant’s employment offer dated 3rd September 2010.

 

 

30. The Claimant also referenced Exhibit TH11, a letter from the Office of the Head of Service of the Federation, which confirms that the Defendant indeed reported the Claimant to the ICPC. Ultimately, the ICPC failed to adhere to civil service rules by disregarding the contents of the employment offer dated 3rd September 2010, wrongly recommending compulsory retirement. Consequently, the Defendant issued the Claimant a retirement notice and demanded the refund of N27,900,129.23, alleging that the Claimant had improperly benefited from remaining in service.
31. Learned Counsel argue that the sequence of actions and the failure to pay the Claimant's accrued salaries and allowances have caused her significant psychological distress, warranting general damages. They referenced the case of Anibaba v. Dana Airlines Ltd & Anor (2022) LPELR-57827(CA) (Pp. 38-40 paras. D), which established that compensatory damages, also known as actual damages, are equivalent to general damages. These damages are awarded for actual injury or economic loss, excluding punitive or exemplary damages. The court further clarified that general damages are monetary compensation for injuries such as suffering, opportunity cost, economic loss, and inability to perform certain functions or breach of contract, where no precise monetary value can be calculated. General damages differ from special damages, which are specific costs, and from punitive damages, which are intended to punish the defendant for malicious or grossly negligent conduct. It is emphasized that general damages are presumed by law to result from the type of wrong complained about by the victim. They are compensatory damages for harm that typically arises from the tort for which a party has sued, and such harm is reasonably expected, requiring no specific allegation or proof. These authoritative statements indicate that general damages fall within the scope of compensatory damages but are not covered by non-compensatory damages, which are prohibited by Article 29 of the Montreal Convention. Clearly, the appellant's claims, which are under threat of dismissal, are based on general damages, which the law equates with compensatory damages, and these are allowed under Article 29 of the Montreal Convention.
32. Learned counsel for the Claimant argues that in civil cases like this one, the Claimant must establish their case based on a preponderance of evidence or balance of probabilities, which differs from the standard of proof in criminal trials. In this particular case, the Claimant has met the required burden of proof, leaving the Defendant with no evidence to counter the Claimant's claims. We request the court to recognize the Claimant's entitlement to all lost salary and allowances as detailed in Exhibit 21, which were unexpectedly paid in September 2023, leaving those from August 2022 outstanding. The Claimant's counsel further contends that the Defendant failed to present any evidence to support its counterclaim, and any pleadings without evidence are irrelevant. Consequently, the counterclaim is considered abandoned, and the Defendant/Counter Claimant is not entitled to the reliefs outlined in paragraph 18 of its counterclaim due to the lack of supporting evidence.

 

33. In conclusion, the Claimant's counsel submits that the Claimant has successfully presented a case through both oral and documentary evidence. The burden has now shifted to the Defendant, who has been unable to provide a defense against the Claimant's case. Therefore, we urge the Honourable court to grant all the reliefs requested in the Claimant's complaint before this court.
34. THE COURT’S DECISION

I have thoroughly reviewed all the submitted processes, the evidence presented, and the testimonies of the witnesses during cross-examination. The Claimant claims that the Defendant extended a job offer to her on 3rd September 2010, as shown in Exhibit MAM 1. She argues that throughout her career, which included roles at the Bauchi State Hospital Management Board from 1982 to 1988, the Nigerian Air Force, and other organizations before returning to the Bauchi State Hospital Management Board in 2008, there was no transfer or merger of service that would justify her retirement from the Defendant's employment by 2017.

The Claimant's main arguments are as follows:

• Exhibit MAM 1, the Offer of Appointment dated 3rd September 2010, constitutes the binding contract between the parties.
• The Defendant did not demonstrate any formal transfer or merger of service as mandated by the Public Service Rules.
• The Claimant resigned from her previous roles, as shown in Exhibits MAM 17B and MAM 18B.

35. The Defendant's argument, which relies on Exhibit TH6 to claim that the 2008 appointment was mistakenly issued, is considered inadmissible hearsay because the document's author did not testify. Meanwhile, the Claimant's appointment was validated by Exhibit MAM 19, dated 12th February 2018, and effective from 3rd September 2012, contradicting the Defendant's later assertion that her service was transferred. The Defendant's actions, which include praising the Claimant (as shown in Exhibits MAM 20A and MAM 20B) and writing to the Accountant-General on her behalf (Exhibit TH12), demonstrate both approval and disapproval. The Claimant argues that, based on her birth date of 16th April 1968 and her role as a Nurse Educator, she should be allowed to retire at 65 years of age, according to the relevant circulars, specifically Exhibits MAM 10, MAM 13, and MAM 14.
36. The Defendant asserts that the Claimant was integrated into the service following her initial appointment with the Ministry of Health on 14th October 1982. The Defendant's arguments are as follows:
    • The Claimant did not resign from her 1982 position.
    • On 12th December 2011, the Claimant requested a transfer of service (Exhibit TH3), which the Defendant approved on 29th December 2011 (Exhibit TH4).
    • The Claimant's actions, such as completing APER forms that cite 14th October 1982 as her initial appointment date (Exhibits TH7 and TH8), indicate the continuity of her service.
    • The Defendant promoted the Claimant, as shown in Exhibit TH9, effective from 1st January 2006, which is before her purported new appointment in 2010, thus indicating a consolidation of service.
    • Upon absorption, the Claimant was placed on Grade Level 11, Step 5, which is inconsistent with a new appointment for someone with her qualifications, as the typical entry level is Grade Levels 07 to 10 according to Rule 020502(ii) of the Public Service Rules.
    • According to Rule 020908 of the Public Service Rules, retirement is determined by either 35 years of service or reaching 60 years of age, whichever occurs first, starting from the date of the first appointment.
    •  
37. After thoroughly reviewing the pleadings, evidence, and final written submissions from both parties, this Honourable Court has identified the following issues for resolution:

Whether the Claimant's employment with the Defendant a new appointment, or does it represent a continuation of her previous service through a transfer?

• According to the relevant Public Service Rules, was the Claimant eligible for retirement on 14th October 2017?
• Was the Claimant's alleged retirement conducted lawfully and in compliance with the Civil Service Rules?
• Has the Claimant sufficiently demonstrated her case with the preponderance of evidence to warrant the reliefs she seeks?
• Has the Defendant/Counter-Claimant successfully substantiated its counterclaim? 

38. Issue 1: Whether the Claimant's Employment Was a Fresh Appointment or a Continuation via Transfer of Service
39. The entire dispute revolves around this fundamental issue. The Court has meticulously reviewed the documentary evidence submitted. Exhibit MAM 1, the Offer of Appointment dated 3rd September 2010, seems at first glance to be a new employment offer. Nevertheless, the Court is required to consider the overall context and the behavior of the parties involved, rather than just the document's appearance. As established in UDO v. CROSS RIVER STATE NEWSPAPER CORPORATION (2001) 14 NWLR (Pt. 732) 116 at 433, per Ogbuagu, JSC:

"Where a contract (which includes contract of employment) involves several documents, the trial Court can only determine the issues before it, on the basis of the documents including letters relating to the contract and the conduct of the parties."

Firstly, the Claimant submitted a request for a transfer of service on December 12, 2011, as documented in Exhibit TH3. The Defendant's reply, dated December 29, 2011, and found in Exhibit TH4, clearly states: "Abubakar Tafawa Balewa University Teaching Hospital, Bauchi is willing to accept you on transfer of service." This document, created shortly after the Claimant's integration, serves as undeniable proof that both parties viewed the arrangement as a transfer of service, not a new appointment.

Secondly, the Claimant's Annual Performance Evaluation Reports (APERs), specifically Exhibits TH7 (January 2011) and TH8 (January 2012), which she completed in her own handwriting, cite October 14, 1982, as her initial appointment date. This indicates that the Claimant herself acknowledged her service began before her 2010 engagement with the Defendant.

Thirdly, the Defendant's promotion letter, Exhibit TH9, dated March 27, 2014, was retroactively effective from January 1, 2006. This date precedes the Claimant's alleged new appointment in 2010. Legally, a promotion cannot be backdated to before employment starts unless there is continuity or a merger of service. The Claimant accepted this backdating without objection and benefited from it. She cannot now accept and reject the same situation. Refer to ADEBAYO v. BENUE STATE UNIVERSITY (2021) LPELR-54221 (CA).

Fourth, upon absorption, the Claimant was assigned to Grade Level 11, Step 5. According to Rule 020502(ii) of the Public Service Rules, new appointees with the Claimant's qualifications usually start at Grade Levels 07 to 10. Being placed at Grade Level 11 aligns with the recognition and integration of her previous service.

Fifth, the Claimant's request to change her initial appointment date from 1982 to 2008 (Exhibit TH10) indicates her acknowledgment of 1982 as her original appointment year.

Sixth, the principle from RIBADU v. NATIONAL BOUNDARY COMMISSION (2024) LPELR-80018 (CA) at page 19 is relevant here. The Court of Appeal in that case determined that a ratification letter cannot be equated to a fresh appointment letter, stating: "Ratification implies the confirmation and acceptance of a previous act, validating it from the moment it was performed, thereby placing the parties in the same position as if the act had been previously authorized."

41. Similarly, in this case, Exhibit MAM 1, although presented as an offer of appointment, should be interpreted in conjunction with the subsequent transfer documents (Exhibits TH3 and TH4) and the Claimant's actions. The Claimant's assertion that the Federal Civil Service Commission did not approve her service transfer, citing Chapter 2, Section 5, Rule 020502 of the Public Service Rules, is acknowledged. However, the substantial documentary and circumstantial evidence, including the Claimant's APERs, her transfer application, the Defendant's acceptance of the transfer, the backdated promotion, and her placement on Grade Level 11, collectively demonstrate, on a balance of probabilities, that her employment with the Defendant was a continuation of her previous public service through a transfer of service. Therefore, this issue is resolved in favor of the Defendant. I so hold.
42. Issue 2: Whether the Claimant Was Due for Retirement on 14th October 2017

After establishing that the Claimant's employment has been continuous since her initial appointment on 14th October 1982, the Court is required to implement the applicable sections of the Public Service Rules. According to Rule 020908(i) and (ii) of these rules:

"The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service, whichever is earlier. No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service, whichever is earlier."

43. The Court of Appeal in OGBAJE v. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LTD. (2007) LPELR-11855 (CA) highlighted that an employee's retirement benefits and responsibilities are linked to the total length of service, starting from the initial appointment date.
44. In the case of AMADI v. NNPC (2000) 10 NWLR (Pt. 674) 76, the Supreme Court dismissed the notion that transferring service equates to a new appointment. The Court emphasized that the initial employment relationship persists unless explicitly ended. Applying these principles:
    • First appointment date: 14th October 1982.
    • Completion of 35 years of pensionable service: 14th October 2017.
    • Claimant's birth date: 16th April 1968 (turning 60 on 16th April 2028).
45. According to Rule 020908, retirement is determined by whichever comes first: reaching 60 years of age or completing 35 years of pensionable service. The Claimant reached 35 years of pensionable service on 14th October 2017, which was before she turned 60 in 2028. Consequently, the Defendant accurately set the Claimant's retirement date as 14th October 2017. The Claimant's argument that her role as a Nurse Educator grants her the right to retire at 65 is not convincing. The retirement age of 65 is designated for academic staff at universities and similar institutions under certain statutory guidelines. The Claimant has not demonstrated that her position qualifies under these guidelines. Furthermore, even if she were eligible to retire at 65, Rule 020908 states that retirement is determined by either reaching 35 years of pensionable service or turning 60, whichever comes first. The Claimant had already completed 35 years of pensionable service by 2017. Therefore, this issue is decided in favor of the Defendant. I so hold.
46. Issue 3: Whether the Purported Retirement Was Lawful

The Defendant's retirement letter (Exhibit MAM 9), dated 6th December 2023, was issued after the official retirement date but merely confirmed a retirement that had already occurred by law on 14th October 2017. The Court determines that the Defendant acted within its legal authority in issuing this letter. This retirement was not an employment termination but a statutory retirement in accordance with the Public Service Rules. The Claimant argues that the Defendant's later actions, such as writing to the Accountant-General on her behalf (Exhibit TH12) and issuing commendation letters (Exhibits MAM 20A and MAM 20B), constitute contradictory behavior. However, these administrative actions cannot restore or recreate an employment relationship that ended by law.

The Claimant has not met the burden of proof necessary in civil proceedings. Although civil cases are decided based on the balance of probabilities, the Claimant's own evidence undermines her position. Specifically:

• Her APER forms list 14th October 1982 as her initial appointment date.
• She requested a transfer of service.
• She did not provide a resignation letter for her 1982 appointment.

49. This Court aligns with the reasoning in NWAJAGU & ORS v. IGBOANUGO & ANOR (2020) LPELR-51473 (CA), which states that "Courts do not act on speculations." The Claimant's claim of resigning from her 1982 appointment is speculative, lacking documentary support, and contradicted by her completion of APER forms indicating 1982 as her first appointment date. Consequently, the Court concludes that the Claimant has not proven her case on the balance of probabilities, leading to the dismissal of her claims. I so hold.
50. Issue 5: Whether the Defendant Has Proved Its Counterclaim

The Defendant/Counter-Claimant is seeking to reclaim the sum of N27,900,129.23, which represents the salaries and allowances paid to the Claimant after her retirement eligibility in 2017. This Court has determined, based on the balance of probabilities, that:

• The Claimant was supposed to retire on 14th October 2017.
• Despite her retirement date, the Claimant continued to receive salaries and allowances.
• These payments were mistakenly made, as the Claimant was no longer eligible to remain in service.

The Counterclaimants are seeking to recover salaries and allowances, which fall under the category of special damages. To be successful, these must be explicitly stated and rigorously proven, as established in 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) and NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC). If a Counterclaimant does not meet this requirement, the counterclaim will not succeed, as demonstrated in cases such as Unilorin Teaching Hospital V. Abegunde (2013) LPELR-21375 (CA), SPDC (Nig) Ltd V. Tiebo VII, Mbata v. Amanze (2018) 15 NWLR (1643) 570 CA, and Alao v. VC Unilorin (200) 1 NWLR (Pt. 1069) 428.

51. This Court exercises caution in its discretion. The Defendant's delay in issuing the retirement letter and continuing to process the Claimant's salaries contributed to the situation. Administrative errors by the Defendant, such as confirming the Claimant's appointment in 2018 (Exhibit MAM 19) after she was eligible for retirement, added to the confusion. However, the law clearly states that a public servant cannot legally retain salaries received after the statutory retirement date. 
52. Upon examining the Defendant’s counterclaim, I noted paragraph 18(e), which requests the sum mentioned above, and paragraph 16 of the main body of the counterclaim, which repeats this relief. The amount claimed, N27,900,129.23, requires precise proof of computation, which is not fully addressed in the pleadings; a finding of liability in principle does not automatically validate the specific sum claimed without supporting computation in evidence. 
53. I observed a lack of details to substantiate the claim for special damages. It is evident from the averments that the Counterclaimant’s pleading does not contain any assertions identifying the amounts sought in relief.  In Mojekwu v. Mojekwu (1997) LPELR-13777(CA) (Pp. 41 paras. B), Tobi J. C. A (as he then was), held thusly:

"It is my understanding of the law that for a Court of law to grant a relief, there must be averments in the statement of claim supporting it. In my view, a relief which is not supported by averments in the statement of claim goes to no issue and a trial judge is entitled to ignore such relief, and I so hold." 

54. Ultimately, I am compelled to reach the unavoidable conclusion that the Counterclaimant, having failed to establish her case by a balance of probabilities and a preponderance of evidence, is not entitled to the reliefs sought in the Counterclaim. Consequently, the Counterclaimant’s case is dismissed. I so hold.
55. Before concluding, I would like to reference my previous judgment in Suit Number NICN/BAU/22/2017. Although the facts of that case initially appeared similar to the current one, a closer look reveals key differences. In the present case, the level at which the Claimant was integrated by the Defendant is not something that could be offered in a new appointment. Additionally, the Claimant had applied to transfer her services to the Defendant, and this request was approved, as evidenced by the exhibits presented. These distinctions set the current case apart from Suit Number NICN/BAU/22/2017, leading to a different decision.

 Judgment is entered accordingly; I make no order for costs.

                 

                   ………………………………………..

                           HON. JUSTICE MUSTAPHA TIJJANI