IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI

 

DATED: 17^TH MAY 2022                         

SUIT NO: NICN/ABJ/356/2020

 

BETWEEN

PROFESSOR USMAN YUSUF                                           -           CLAIMANT

AND

NATIONAL HEALTH INSURANCE SCHEME    -           DEFENDANT

                       

REPRESENTATIONS

C.O. Audu Esq with O.F. Nduka Esq and A.E. Onu Esq for Claimant.

John Itodo Esq with Z. Akubo Esq and Ekele Atadoga Esq for the Defendant.

                                               

JUDGMENT

INTRODUCTION

1.      It is deducible from the facts of this case as well as the reliefs sought that the claimant is seeking for declaratory reliefs respecting his terminal benefits. It is a well settled principle of law that in a case for declaratory relief as in the instant case, the claimant must succeed on the strength of his own case and not on the weakness of the defendant’s. See the cases of Uzodinma v. Ihedioha [2020] 5 NWLR (Pt 1718) 529 @ 578, Paras D-G.  However, where part of the defendants’ case supports the claimant’s case, he is allowed to rely on part of the defendants’ case that supports his. See the case of Ehinle v. Ikorodu Local Govt [2021]1 NWLR (Pt 1757)279 @ 316-317, Paras G-C; 342, Paras A-B and; Salisu v. Mobolaji [2016] NWLR (Pt 1535) 280-281, Paras H-A and; C.D.C. (Nig) Ltd v. SCOA [2007] 6 NWLR (Pt 587)410. Thus, the claimant in this case is expected to rely on the strength of his own case and not on the weakness of the defendants’ except where part of the case of the defendant supports his. The law is equally long settled that a claimant laying claims to certain terminal benefits/gratuity or other entitlement must produce before the Court document(s)or instruments from whence he derives the entitlements.

 

2.      It is the claimant’s case vide his amended statement of facts and additional witness statement on oath  dated and filed on the 5th day of July 2021 that he was the Executive Secretary of the defendant appointed by the President of the Federal Republic of Nigeria and that prior to his appointment the Governing Council of the defendant approved an Exit Package for retiring and exiting staff and Executive Secretary and the payment of a Consolidated Annualized Exit Package in line with her statutory functions as contained in Section 2 and 7 of National Health Insurance Scheme Act Cap N42 Laws of the Federation of Nigeria 2004 (as Revised) (hereinafter called the Act) wherein he belong to the category D. he equally stated that his appointment was terminated by the President of the Federal Republic of Nigeria vide letter issued to him by the Permanent Secretary Federal Ministry of Health which led to his exit from his office as the Executive Secretary of the defendant automatically entitling him to Severance Gratuity in accordance to Political and Judicial  Office Holders (Salaries and Allowances, etc) (Amendment) Act 2008, Exit Package and the payment of a Consolidated Annualized Exit Package of salary for three years from July 2016 to July 2019 which was the period he served as Executive Secretary of the defendant. Claimant further stated that at the time of retiring he was entitled to customized gifts, health insurance cover alongside his spouse and four biological children under 18 years, one official vehicle as approved by the Governing Council of the defendant. That he retained the official vehicle with Registration Number 12Y 01 Toyota Land-Cruiser V8 2016 model in accordance with the resolution of the Governing Council but deny carting away with properties, items, office equipment and any other vehicles belonging to the defendant noting that the said vehicles were worn out and non-functional, parked at the defendant’s accredited automobile engineer prior to the termination of his appointment. That to the best of his knowledge, the resolution of the Governing Council is still valid, subsisting and effective in respect of Exit Package for retiring and or exiting staff and Executive Secretary and payment of a Consolidated Annualized Exit Package of salary of the defendant.

 

3.      It is against this backdrop that the Claimant approached this Court by a General Form of Complaint dated and filed 30th day of November 2020 and subsequently amended on the 5^th day of July 2021 wherein the Claimant claim against the Defendant as follows:

a. A DECLARATION that the acts and conducts of the Governing Council of the defendant at her 2^nd Regular meeting held on the 16^th January 2014 approving Exit Package and the payment of a Consolidated Annualized Exit Package of  salary for retiring and exiting Executive Secretary of the defendant in accordance to her statutory functions as contained in Section 2 and Section 7 of the National Health Insurance Scheme Act Cap N42 Laws of the Federation of Nigeria 2004 (as Revised) is lawful, valid, subsisting and effective.

b. A DECLARATION that the acts and conducts of the defendant by refusing to pay severance gratuity in accordance to certain Political and Judicial Holders (Salaries and Allowances etc)(Amendment) Act 2008, Exit Package and payment of a consolidated Annualized Exit Package of Salary to the claimant while he was retiring and or exiting from his office as the Executive Secretary of the defendant as approved for retiring and or exiting Executive Secretary of the defendant by the Governing Council of the defendant at her 2^nd Regular meeting held on the 16^th January 2014 in accordance to her statutory functions as contained in Section 2 and Section 7 of the National Insurance Scheme Act Cap N42 Laws of the Federation of Nigeria 2004 (as Revised) is improper, wrongful, illegal, null and void against the enabling Act.

c. A DECLARATION that the Claimant as a retired and or exited Executive Secretary of the defendant is entitled to be paid by the defendant his severance gratuity in the sum of N5, 777,595.00 (Five Million, Seven Hundred and Seventy Seven Thousand, Five Hundred and Ninety Five Naira) being 300% (Three Hundred Percent) of his annual basic salary in accordance to Certain Political, Public and judicial Office Holders (Salaries and Allowances, etc) (Amendment) Act 2008 and the sum of N21, 796, 876.18 (Twenty One Million, Seven Hundred and Ninety Six Thousand, Eight Hundred and Seventy Six Naira, Eighteen Kobo) only as his Consolidated Annualized Exit Package for one year calculated at the Consolidated Annualized Exit Package of salary in the sum of N65, 390, 628.54 (Sixty Five Million, Three Hundred and Ninety Thousand, Six Hundred and Twenty Eight Naira, Fifty Kobo) only for three years payable to the claimant from July 2016, to July 2019 being the period he served as the Executive Secretary of the defendant as approved by the Governing Council of the defendant for retiring and or exiting Executive Secretary of the defendant at her 2^nd Regular meeting held on the 16^th January 2014 in accordance to her statutory functions as contained in Section 2 and Section 7 of the National Insurance Scheme Act Cap. N42 Laws of the Federation of Nigeria 2004 (as Revised).

d. A DECLARATION that the claimant as a retired and or exited Executive Secretary of the defendant is entitled to customized gifts subject to the limit of N1,500,000.00 (One Million, Five Hundred Thousand Naira) only as an Exit Package from the defendant as approved by the Governing Council of the defendant at her 2^nd Regular meeting held on the 16^th January 2014 pursuant to her statutory functions as contained in Section 2 and Section 7 of the National Insurance Scheme Act Cap N42 Laws of the Federation of Nigeria 2004 (as Revised).

e. A DECLARATION that the claimant as a retired and or exited Executive Secretary of the defendant is entitled to Health Insurance Cover alongside his spouse and four (4) of his biological children under the age of 18 years as an Exit package from the office of the defendant in accordance to the approval of the Governing Council of the defendant at her 2^nd Regular meeting held on the 16^th January 2014 in exercise of her statutory functions as contained in Section 2 and Section 7 of the National Health Insurance Scheme Act Cap N42 Laws of the Federation of Nigeria 2004 (as Revised).

f. A DECLARATION that the claimant as a retired and or exited Executive Secretary of the defendant is entitled to at least one (1) official vehicle as an exit Package from the office of the defendant in accordance to the resolution of the Governing Council of the defendant at her 2^nd Regular meeting held on the 16^th January 2014 in pursuance of her statutory functions as contained in Section 2 and Section 7 of the National Health Insurance Scheme Act Cap. N42 Laws of the Federation of Nigeria 2004 (as Revised).

g. AN ORDER of this Honourable Court compelling the defendant to pay to the claimant the sum of N5, 777,595.00 (Five Million, Seven Hundred and Seventy Seven Thousand, Five Hundred and Ninety Five Naira) being 300% (Three Hundred Percent) of his annual basic salary in accordance to Certain Political, Public and judicial Office Holders (Salaries and Allowances, etc) (Amendment) Act 2008 and the sum of N65, 390, 628.54 (Sixty Five Million, Three Hundred and Ninety Thousand, Six Hundred and Twenty Eight Naira, Fifty Kobo) only being the claimant’s Consolidated Annualized Exit Package of salary for three years as the Executive Secretary of the defendant beginning from July, 2016 to July, 2019 as approved by the Governing Council of the defendant for retiring and or exiting Executive Secretary of the defendant at her 2^nd Regular meeting held on the 16^th January 2014 in accordance to her statutory functions as contained in Section 2 and Section 7 of the National Insurance Scheme Act Cap. N42 Laws of the Federation of Nigeria 2004 (as Revised) for retiring and or exiting Executive Secretary of the defendant.

h. AN ORDER of this Honourable Court compelling the defendant to give to the claimant customized gifts to the limit of N1,500,000.00 (One Million, Five Hundred Thousand Naira) only being the monetary value of the said customized gifts as approved by the Governing Council of the defendant at her 2^nd Regular meeting held on the 16th January 2014 for retiring and or exiting Executive Secretary of the defendant.

i. AN ORDER of this Honourable Court compelling the defendant to give Insurance Cover as Exit Package to the claimant being a retired and or exited Executive Secretary of the defendant alongside his spouse and four (4) of his biological children under 18 years of age or in the alternative pay any bill presented to the defendant by the claimant in respect of his health, his spouse’s health and the health of his four biological children under the age of 18 years  as compensation for the insurance cover which was approved by the Governing Council of the defendant on the 16^th January 2014 in the exercise of her statutory functions as contained in Section 2 and Section 7 of the National Health Insurance Scheme Act Cap N42 Laws of the Federation of Nigeria 2004 (as Revised) for retiring and or exiting Executive Secretary of the defendant, his spouse and four (4) of his biological children under the age of eighteen (18) years.

j. AN ORDER of this Honourable Court to in accordance to the resolution of the Governing Council of the defendant in a meeting held on the 16^th January 2014 in pursuance to her statutory functions as contained in Section 2 and Section 7 of the National Health Insurance Scheme Act Cap N42 Laws of the Federation of Nigeria 2004 (as Revised) compel the defendant to give to the claimant as a retired and or exited Executive Secretary of the defendant his official vehicle with Registration Number 12Y 01 FG Toyota Land-Cruiser V8 2016 Model as an Exit Package being the only official vehicle from the office of the defendant attached to the claimant while he was serving as the Executive Secretary of the defendant or in the alternative the sum of N49,197, 750.00 (Forty Nine Million, One Hundred and Ninety Seven Thousand, Seven Hundred and Fifty Naira) only being the monetary value of the said official vehicle.

k. AN ORDER of this Honourable Court retraining the defendant from withholding the claimant’s Severance Gratuity of 300% (Three Hundred Percent) of his Annual basic salary in accordance to Certain Political , Public and Judicial Office Holders (Salaries and Allowances, etc) Act 2008 his exit Package and his Consolidated Annualized Exit Package of salary from July 2016 to July, 2019 as approved by the Governing Council of the defendant on the 16^th January 2014 in exercise of her statutory functions as contained in Section 2 and Section 7 of the National Health Insurance Scheme Act Cap N42 Laws of the Federation of Nigeria 2004 (as Revised) for retiring and or exiting Executive Secretary of the defendant.

l. AN ORDER of this Honourable Court restraining the defendant from unjustly accusing the claimant of purportedly carting away with her properties, items office equipment and vehicles with vehicle Registration  12Y 02 FG Toyota Camry, 12Y O6 FG Toyota Prado, 12Y 21 FG Toyota Corolla and 12Y 46 FG Toyota Corolla belonging to the defendant as the said vehicles are faulty and are under the custody of the accredited Auto-Mobile Engineer of the defendant prior to the termination of his appointment in July 2019.

m. AN ORDER of this Honourable Court compelling the defendant to pay to the claimant the sum of N577,759.5(Five Hundred and Seventy even Thousand, Seven Hundred and Fifty Nine Naira, Five Kobo) being 10% (ten percent ) interest of N5,777,595.00 (Five Million Seven Hundred and Seventy Seven Thousand Five Hundred and Ninety Five Naira) owed the claimant as his Severance Gratuity for one year and the sum of N6,539,062.854 ( Six Million Five Hundred and Thirty Nine Thousand Sixty Two Naira, Eight Hundred anf Fifty Four Kobo) being 10% interest of N65, 390, 628.54 (Sixty Five Million Three Hundred and Ninety Thousand  Six Hundred and Twenty Eight Naira Fifty Four Kobo) only owed the claimant as Consolidated Annualized Exit Package of salary by the defendant for one year three months from July 2019 to October 2020.

n. AN ORDER of this Honourable Court compelling the defendant to pay the claimant the sum of N20,000,000.00 (Twenty Million Naira) only as general damages.

o. AN ORDER of this Honourable Court compelling the defendant to pay the claimant the sum of N6,500,000.00 (Six Million Five Hundred Thousand Naira) only being the cost of maintaining this suit.

p. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance (s) of this case.

4.      The defendant in response entered conditional appearance in this case and filed a Notice of Preliminary Objection dated 8th day of February 2021 praying the Court to dismiss or strike the suit for being incompetence. The Grounds upon which this application is predicated is as follows;

1.         Lack of jurisdiction

2.         The defendant/applicant is a Public Officer within the contemplation of the Public Officer Protection Act.

3.         Any Suit against a Public Officer must be commenced within 3 months next after the act complained of.

4.         The Suit is statute barred- The claimant alleged that his Cause of Action against the defendant (a Public Officer) arose on the 1st day of July, 2019; while this suit was filed on the 39th day of November 2020.

5.         To save the precious judicial time.

5.     Also filed along with the Notice of Preliminary Objection is a written address wherein counsel raised sole issue for the Court’s determination thus; Whether the action as presently constituted is not statute barred. It is the contention of learned counsel that in view of the claimant’s averments in his statement of facts, this suit is clearly statute-barred. He stated that it is settled law that in determining whether cause of action exist in a matter, it is the claimant’s statement of claim/statement of facts that must be examined. He cited in support the cases of Opia v I.N.E.C & Anor. [2014] LER (SC. 16/2013); Kasandubu v. Ultimate Petroleum Ltd [2008] 7 NWLR (Pt. 1086) 274 @ P.297-298 Paras. F-A and Popoola Elanbanjo v. Dawodu [2006] 15 NWLR (Pt. 1001) 76. Counsel also submitted that the cause of action arises when all the facts necessary to give the claimant a right of action have occurred and that any action against any public officer must be instituted within three (3) months of the accrual of the cause of action. He cited in support the case of Ikine v. Edjerode [2001] 12 SC Pt. II 94; Iragunima & Anor. V. Igah [2011] LPELR-3862 (CA) ans Section 2 (a) of the Public Officers Protection Act. (POPA). He submitted that the claimant in spite of being aware of failure of the defendant to pay him Exit Package in July waited till the 30th day of November 2020 to file the instant suit. Going further, learned Counsel posited that Section 34 (1) and (2) of the Act expressly makes provision of the Public Officers Protection Act on limitation of actions applicable to cases instituted against the Scheme such as this and equally provide similar limitation. Counsel equally submitted further that the claimant’s right was a barred and empty cause of action having been instituted outside the prescribed period allowed by law. He cited in support the case of University of Ilorin v. Adeniran [2007] 6 NWLR (Pt.1031) at 498; Sanda v. Kukawa Local Government & Anor [1991] 2 NWLR (Pt. 174) 379 @ 381, 389. He urged to resolve this issue in favour of the defendant against the claimant.

 

6.      Claimant/Respondent in opposition filed a written submission to the defendant’s notice of preliminary objection dated 15th day of February 2021 and filed on the 22nd day of February 2021 wherein counsel raised sole issue for the determination of the Court viz; “Having regard to the facts of this case and the position of law, the provision of Section 2 (a) of the Public Officers (Protection) Act, is not applicable”. Learned counsel submitted that POPA cannot avail the defendant/applicant in the circumstances of this case as the law is well settled that POPA does not and cannot protect a public officer who acts illegally or in breach of the law as in this case and that it is clear from the Statement of facts establishing the cause of action that the claimant/respondent’s case borders on continuous wrong or act by the defendant/applicant. He cited in support the case of University of Ibadan v. Governor of Kwara State & Ors. [2012] LPELR-14326 (CA) P.91 -95 Paragraphs B-A; Kano State House of Assembly v. Umar [2014] LPELR 24008 (CA) P. 50 Paras. E-G and Obot & Ors v. Shell Petroleum Development Company Nigeria Ltd [2013] LPELR-20704 (CA) 30-31 Paras. A-B. He further submitted that going by Section 2 (a) of POPA the period of limitation will only start to run at the cessation of the acts complained of noting that the acts complained of by the claimant/respondent against the defendant/applicant has not yet ceased, the period of limitation has not started running. It is equally the submission of learned counsel that considering the nature of this case it is impossible for the Court to determine the preliminary objection without delving into the merit of the substantive case at an interlocutory stage which the law forbid. He cited in support the following cases; Eregbowa & Ors v. Obanor & Ors [2010] LPELR- 8964 (CA) P.11 Paras. B-C; Nwadike v. The State [2015] LPELR-24550 (CA) P. 11 Paras. C-E and Kwara State & Anor v. Lawal [2017] LPELR-42347 (SC) P. 37-38 Paras. E-A. On the whole he urged the Court to resolve the issue submitted against the defendant/applicant and dismiss the preliminary objection and allow the case to proceed to hearing.

 

7.      Learned Counsel on behalf of the defendant on the 16^th day of March filed a Reply on points of law to the written address of the Claimant in opposition to the Notice of Preliminary Objection on the 16^th day of March, 2021 which was adopted vide letter dated 9^th March, 2022. Learned counsel submitted that the Court is to be guided the Claim of the Claimant as endorsed on the complaint and then compare same with the date the action was filed. He relied on Hassan v. Aliyu [2010]17NWLR (Pt 1223)547; Udoh Trading Co Ltd v. Abere [2001]11NWLR (Pt 723)114. He submitted that on the face of the Complaint and Statement of facts this suit was instituted 17 months after the Cause of action arose. He submitted in response to the submission of Claimant that the defendant acted outside the scope of its authority that the defendant is empowered by Section 7(a) of the Act to manage the Scheme and as such the defendant was under a statutory duty to make sure the emoluments of Claimant are in accordance with the mandatory dictates of the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, ETC) (Amendment) Act, 2008. He relied on the case of Hassan v. Aliyu, supra. He submitted further, that the Claimant misconceived his cause of action with the right of action, he stated that while the Claimant may have a cause of action but his right of action has been extinguished by Section 2 (a) of POPA and the case of Hassan v. Aliyu, supra. He submitted that the act of the defendant cannot be categorized at as continuance of damage or injury to exempt the provisions of Section 2(a) of POPA. He relied on the case of Obiefuna v. Okoye [1961]All NLR  357@360. He submitted that in considering what amounts to continued damage what the Court considers is if the act has been done or is being done. He submitted that the act has already been completed and is clearly different from the legal effect suffered by the act. He relied on the cases of Okafor v. A.G Anambra State [2001]FWLR (Pt 58)1127@1146  and INEC v. Ogbadigbo Local Government [2016]3NWLR (Pt 1498)167@205.

 

8.      The defendant in response filed its consequential amended statement of defence and counter claim dated 3rd November 2021 and filed on the 9th November 2021 and admitted that the claimant was in the employment of the defendant as an executive Secretary but denied his assertion of being appointed by the President of the Federal Republic of Nigeria and the approval of exit package of salary for retiring and or exiting Executive Secretary by the its Governing Council. It is the contention of the defendant that its Governing Council lacks the vires under the Act to set up any benefit or payment categorization and that remuneration and allowances due to staff is as stipulated in their letters of employment and conditions of service. The defendant equally stated that all proposals for review of salaries, allowances or fringe benefits must be sent to the National Salaries, Incomes and Wages Commission through the Ministry of Health for approval prior to implementation. Continuing, the defendant posited that the claim of the claimant did not comply with the Federal Government directive thus it amounts to double compensation. That the appointment of the claimant was terminated by the President vide a letter after 3 years of service as an Executive Secretary of the defendant noting that he is not automatically entitled to payment of any Exit package, customized gifts of Annualized exit package and official vehicle. However pursuant to the letter from Ministry of Health in line with Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc) (Amendment) Act the defendant computed amount due to the claimant to the sum N5,777,595.00 (Five Million Seven Hundred and Seventy Seven Thousand, Five Hundred and Ninety Five Naira) only and same was approve in favour of the claimant, thereafter, the Department of Finance and Administration discovered that the claimant has unretired advances of 1, 241,160 (One Million Two Hundred and Forty-One Thousand) only. Consequently, the incumbent Executive Secretary directed that payment of the said computed amount be put on hold until all properties of the defendant are recovered. In conclusion, the defendant reiterates that the claimant is not eligible to the reliefs sought that he lacks locus standi to institute and or maintain this action. He urged that Court to dismiss the entire claims of the claimant with substantial cost.

 

9.      By way of counter claim, the defendant counter claim against the claimant as follows:

a.         The immediate return of all official vehicles in his possession in a serviceable condition or the money equivalent of the said vehicles less depreciation as calculated by a mutually agreed certified cost adjuster. The vehicles are:

i. A Toyota Land Cruiser V8, 2016 model with registration no.:12Y 01 FG.

ii. Toyota Camry with registration No.: 12Y 02 FG.

iii. Toyota Prado, SUV with Registration No. 12Y O6 FG

iv. Toyota Corolla with Registration No. 12Y 21 FG.

v. Toyota Corolla with Registration No. 12Y 46 FG.

b.         The immediate retirement of the sum of N1, 241, 160 (One Million, Two Hundred and Forty-One Thousand, One Hundred and Sixty Naira) only been unaccounted for by the defendant to the counter claim when his appointment with the counter claimant was terminated.

10. The claimant/defendant to the counterclaim equally filed his statement of defence dated 15th November 2021 wherein he stated that his appointment was not between 2016 and 2019 but 2016 to 2019 and that the effective date was 26th day of July 2016 and not 27th day of July 2016 as posited by the counter claimant. He stated further that it is only Toyota land cruiser V8 that was his official car and it forms part of his exit package while the remaining four vehicles were assigned to the office of the Executive Secretary of the counter claimant. That he was thereafter petitioned by the counter claimant to Independent Corrupt Practices and Other Related Offences Commission and Department of State Security Service that he was in possession its four vehicles, he was invited vide a letter wherein he honored same and at the end of the investigation they discovered that all the vehicles are in the custody of the accredited automobile engineer of the counter claimant for repairs consequently the engineer was ask to return the said vehicles to the Commission for further investigation. That he also instructed his solicitors to write a letter to the Executive Secretary of the counter claimant informing him of the said vehicles are in possession of the its accredited automobile engineer. He urged the Court to dismiss the counter claim for lack of merit.

 

11. Claimant in this case had initially opened his case, testified and was cross examined by the defendant on the 21^st day of June 2021. However, upon the subsequent amendment of the Originating process and the statement of facts, Claimant was recalled on the 17^th day of November, 2021 and he gave his evidence in Chief by adopting his written statement on oath 5/7/2021 and 15/11/2021. Documents which were admitted and marked as Exhibits P-P14 were admitted through him. On the 9^th day of December, 2021, defendant applied to adopt the previous questions and answers put to the Claimant during the initial cross examination on the 21^st day of June 2021 which application was granted. Claimant was put through additional cross examination by learned counsel on behalf of the defendant. The defendant called a sole witness one Victor Umanah who testified as DW. He adopted his sworn witness deposition of 9/7/2021 and 5/3/21 as his oral evidence and tendered documents which were admitted and marked as exhibit V-V4. He was equally cross examined by learned claimant’s counsel. 

 

12. At the close of evidence, as it is lawful to do and in observance with the rules of this Court, the defendant filed its written address dated 25^th day of January 2022 wherein counsel raised three issues for the determination of this Court viz;

1.“Whether by the community reading of Sections 6, 7 and 8 of National Health Insurance Act, 2010, the defendant’s Governing Council has the power to approve any purported Consolidated Annualized Exit package for the defendant’s Executive Secretary and or retiring staff of the defendant;

2.Whether by virtue of Section 8 (4) of the National Health Insurance Act, 2010, the purported Consolidated Annualized Exit Package approved by the Governing Council of the defendant at its 2nd Regular Meeting held on the 16th January 2014 was validly passed; and

3. Whether from the facts and circumstances of this suit and the state of evidence adduced before the Honourable Court, the claimant is entitled to the reliefs sought”

13. Taking issues one and two together learned counsel submitted that by the community reading of Sections 3 (2), 6, 7 and 8 of the Act neither the Scheme, nor the Council severally or collectively has the power to approve any form of emolument, wage or exit package by whatever name called for the defendant’s Executive Secretary which power lies solely with the Federal Government of Nigeria in line with the provision of Section 3 (2) of the Act. He equally submitted that the claimant being a member of the defendant’s Council by virtue of Section 2 (2) (j) of the Act does not have his remuneration determined by the defendant’s Council but the Federal Government in line Section 3 (2) of the Act. He submitted that the powers of the Council are clearly circumscribed in the Act and the power to approve Exit Packages for exiting and or retiring Executive Secretaries and staff of the defendant is not one of the functions or powers ascribed to the Council or even mentioned in the Act which is inconsistent with the age-long legal principle that the express mention of one thing, is to the exclusion of all others which is phrased in Latin as ‘Expressio unius est exclusio alterius’. He cited in support the cases of Abacha v. Federal Republic of Nigeria [2006] 4 NWLR (PT. 970) 239 @ P. 309-310) Paras. H-A; Ojukwu v. Yar’adua [2008] 4 NWLR (Pt. 1078) 435; A.G Lagos State v. A.G Federation [2014] 9 NWLR (Pt.1412) 217. Counsel further submitted that the claimant haven failed to controvert/deny the testimony of the defendant’s witness vide paragraph 13 of his witness deposition dated 9/11/2021 that the Council lacks the power to approve any benefit known as Exit Package is deemed to have conceded. He cited in support the cases of Ebienwe v. State [2011] All FWLR (566) 413 @ 424 Para. D; Jim Jaja v. C.O.P Rivers State & Ors [2012] LPELR-20621 (SC) @ Page 13; Isaac Gaji & Ors v. Emmanuel Paye [2003] 8 NWLR (Part 823) 583 @ 608 A-C and Nigerian Postal Service v. Ibrahim Musa [2013] LPELR-20780 (CA). Learned counsel also submitted that the claimant while under cross examination confirmed that his appointment as the Executive Secretary of the defendant was made by the President and not Governing Council and such admission is a very veritable piece of evidence in favour of the party on the other side.  He relied on Onyenge v. Ebere [2004] 13 NWLR Part 889 Page 1 @ 39 Para. F-G; Seismograph Services Nig. Ltd v. Eyuafe 9-10 SC 135 @ 146 and Lateef Atobatele Ali v. United Bank for Africa Plc [2014] LPELR-22635 (CA). He further submitted that the power of the defendant’s council to determine what remuneration and allowances the defendant’s staff are entitled to earn is limited to persons employed by the Council subject to due consultation with the Federal Civil Service Commission as provided in the Act. He cited in support the cases of Marwa & Ors v. Nyako & Ors [2012] LPELR-7837 (SC); A-G Federation v. Abubakar [2007] All FWLR (Pt. 375) P. 405 @ 548 Paras. C-E; Ugwu v. Ararume [2007] All FWLR (Pt. 377) 909- 910 Paras E-G; Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 423 @ 590 Paras. G-H, 697-698 Paras. H-B; Odogwu v. ILOMBO [2007] 8 NWLR (Pt. 1037) 488 @ P. 515-516 and Pharm-Deko Plc v. F.D.C Ltd [2015] 10 NWLR (Pt. 1467) 225. He submitted that the Council has no such power to fix the Exit package and as such must fail as one cannot build something on nothing and expect it to stand. He cited in support the case of Bejamin Leonard Macfoy v. United Africa Company Ltd [1961 All ER 1169.

 

14. On issue three learned counsel submitted that without prejudice to his submission on issues one and two above, given the state evidence before the Court the claimant is not entitled to any of the reliefs sought by him and that the rights and obligations of an employee in an employment are always determined by the instrument creating such relationship. He cited in support the case of Mbosoh v. JAMB [2008] LPELR-4306 (CA); Olaniyan & Ors v. Unilag & Anor [1985] LPELR-2565 (SC). It is equally the submission of counsel that the wordings of the claimant’s letter of appointment are so clear that they will not admit of any extraneous or addition to alter, modify or add to same. He cited in support the case of Union Bank of Nigeria Ltd & Anor v. Nwaokolo [1995] 6 NWLR (Pt. 400) 127; F.A.T.B Ltd Partnership Investment Co. Ltd [2003] 18 NWLR (Pt.851] 1 @ 74 (SC) and Section 8 (2) (c)(ii). He further submitted that the claimant having accepted all the terms stipulated in his letter of appointment is bound by same. He cited in support the case of Katto v. CBN [1999] 5 NWLR (Pt. 607) 390 @ P. 405 Paras. D-F; Savannah Bank Plc v. Alh. Sani Ibrahim [2000] 6 NWLR (Pt.662) 585; Ogwuche v. Benue State Civil Service Commission & Ors.  [2013] LPELR-22748 (CA) and Onyeukwu v. First Bank of Nigeria Plc [2015] LPELR-24672 (CA).

 

15. Learned Counsel on behalf of claimant on the 17th February, 2022 equally filed his written submission with counsel raising three issues for determination of the Court thus;

1. “Whether the Governing Council of the defendant is statutorily empowered to approve Exit Packages for her staff and Executive Secretary of the defendant and if it is, whether the Governing Council of the defendant approved the Exit Package for the defendant’s staff and Executive Secretary at her 2nd Regular meeting held on the 16th January 2014?”

2. “Whether any former Executive Secretary of the defendant has benefited from the said Exit Packages to enable the claimant to be entitled to it and if the answer is in the affirmative, whether the claimant has indeed been paid the said Exit Packages by the defendant?”

3. “Whether the defendant has indeed proved her counter claim beyond the balance of probability to enable the Court grant of the reliefs sought by the defendant/counter claimant against the claimant/defendant to the counter claim.”

16. On issue one learned counsel submitted that the Governing Council of the defendant is statutorily empowered to approve Exit Packages for her staff and Executive Secretary of the defendant and have in fact approved the said Exit Packages of her staff at her 2nd Regular meeting held on the 16th January 2014. That Sections 3 (2), 6, 7 and 8 of the Act does not apply to the instant case and that while Section 2 of the defendant’s Act created the Defendant’s Council, Section 7 provides for the powers of the defendant’s Council. That the responsibilities of the defendant by virtue of Section 5 and 6 of part II of the Act does not include powers to declare ultra vires, illegal, null and void the resolution of her Council as such is not legally tenable and the words used in the statute are clear and unambiguous. He cited in support the case of Apostle Ekanem R. Ekanem & Ors v. Bishop Rowland O. Obu [2010] LPELR-4084 (CA); Central Bank of Nigeria & Anor v. Mrs. Agnes M. Igwillo [2007] LPELR-835 (SC); Marwa & Ors v. Nyako & Ors [2012] LPELR-7837 (SC) and A-G Federation v. Abubakar [2007] All FWLR (Pt. 375) Pg. 405 @ 548 Paras. C-E. It is equally the submission of learned counsel that the law is trite that where a law or statute provide how a thing is to be done only that procedure and none other must be followed. He cited in support the case of Inakoju v. Adeleke [2007]4 NWLR (Pt. 1025) 423 @ P. 590 Paras G-H, 697-698 Para H-B; Odogwu v. Ilombo [2007] 8 NWLR (Pt. 1037) 488 @ P.515-516 and Pharm-Deko Plc v. F.D.C Ltd [2015] 10 NWLR (Pt. 1467) 225. He also submitted that the defendant’s Act made provision for an Arbitration which was never at any time utilized by the defendant to fault the Resolution of her Governing Council. He cited in support Part VII of Section 26 and 27 of the Act. Counsel further submitted that the powers of the Governing Counsel goes beyond Section 8(4) (a) and (b) of the Act as it also includes powers to determine the overall policies of the scheme including the financial and operative procedure of the Scheme/ carrying out such other activities as are necessary and expedient for the purpose of achieving its objectives as set out in the Decree among other things. He cited in support Section 7 of the Act.

 

17. Regarding issue two, learned counsel submitted that Dr. Femi Thomas who was a former Executive Secretary of the defendant has benefited from the said Exit Package and that the defendant only evasively denied same noting that an evasive denial is no denial at all. He cited in support the cases of A.B Manu & Co (Nig) Ltd v. Costain (W.A) Ltd 1994) LPELR-14550 (CA); Nedlloyd Lijnen B. V. Rotterdam v. offely Agro-Farms & Equipment Co. Ltd & Anor [2013] LPELR-20760 (CA); Aghogo & Anor v. Okumagba [2014] LPELR-22855 (CA) and Apph & Anor v. Oturie [2019] LPELR-46301 (CA).

 

18. With respect to issue three counsel posited that the phrase ‘burden of proof’ denotes the duty in litigation to offer evidence in proof of a party’s assertion such that when a party fails to establish the fact and contention to the appropriate standard he will lose and that the claimant is bound to adduce the best evidence in order to meet the standard of proof provided by the law. He cited in support Section 131 (1) of Evidence Act and the case of Neka BBB Manufacturing Co Ltd v. ACB Ltd [2004] FWLR (Pt.198) 1175. He equally submitted that the counter claimant is not entitled to the reliefs as sought on the counter claim in that he has failed woefully to substantiate the purported allegation against the defendant to the counter claim. On the whole it is the submission of learned counsel that the defendant has failed to establish a defence on merit and to also prove his counter claim against the defendant to the counter claim. He urged the Court to dismiss both the defendant’s defence and counter claim with substantial cost.

 

19. The defendant in his reply on point of law to the defendant’s final written address dated 24th day of February 2022 submitted on issue one that the crux of the matter is not whether the Governing Council has approved the said Exit Packages but whether the Governing Council has the power to approve the alleged Exit Packages for the claimant herein and whether Exit Packages purportedly approved by the Governing Council is legal and valid. He submitted further that Sections 2 and 7 of the Act do not confer on the defendant’s council any such power to approve any Exit Package for the defendant’s Executive Secretary.  He added that when words used in a statute are clear, the Court should give same their ordinary meaning. He relied on the following cases; UBN Ltd v. Ozigi [1994]3NWLR (Pt 333)385; Ugwu v. Ararume [2007]ALL FWLR (Pt 377)909-910, Paras E-G;Tegwonor v. State [2007]LPELR-4674(CA) Attorney General of Kano v. Attorney General of the  Federation [2007]LPELR-618(SC). Continuing, learned counsel posited that the persons the defendant’s Council has the requisite vires to determine their remuneration and allowances subject to the approval from Federal Civil Service Commission are persons it has powers to appoint. It is therefore his submission that the defendant cannot be forced or compelled to comply with or continue to comply with any resolution and decision of any authority including its Governing Council. He urged the Court to discountenance and not accord any probative value to the purported Resolution of the defendant’s Council.

 

20. Learned counsel submitted that the claimant’s contention in paragraph 4.19 of his final written address that the defendant did not submit the issue in contest to arbitration is misconceived. He submitted that it is the Claimant who is the aggrieved party that should have submitted the issue to arbitration. He relied on the cases of Owoseni v. Faloye & Anor [2005]LPELR-2856 (SC), @ 33, Paras C-E ; Daniel v. Adamawa State University, Mubi [2017]LPELR-43625(CA). He argued further that Claimant did not even plead the issue of arbitration in his pleadings and cannot not raise it in his address. He relied on the case of Chiokwe v. State [2013]5NWLR (Pt 1347)205@227 Nkwonta v. Nigerian Gas Co Ltd & Ors [2010]LPELR-3979(CA). He also submitted that the distinction learned counsel for Claimant was trying to draw as to his emolument as a Political appointee and as a Governing Council member is without a difference. He is bound by the letter of appointment which has stated what he is entitled to. He relied on Bukar Modu Aji v. Chad Basin Development Authority & Anor [2015]LPELR-24562(SC); Union Bank of Nigeria Ltd & Anor v. Nwaokolo [1995]6NWLR (Pt 400)127.

 

21. On issue two, learned defence Counsel submitted that the claimant has failed to place any evidence before the Court to controvert the defendant’s position or denial of the assertion. The onus is on he who assert and that assuming but without conceding that the said Dr. Femi was paid his Exit Package. It is equally his submission that the purported payment of the Exit Package does not in any way justify the invitation by the claimant for the defendant to continue in such illegality. In conclusion he urged the Court to dismiss the claimant’s suit and grant the defendant/counterclaimant’s reliefs as contained in the counter claim.

 

22. I have painstakingly examined the complaint, the accompanying processes filed by the claimant in this suit, the statement of defence of the defendant, testimony of witnesses, documents tendered, the preliminary objection of the defendant and written submissions and arguments of both parties, it is my calm view that three issues would determine this suit thus;

1. Whether the Court is clothed with the requisite jurisdiction to entertain this case.

2. Whether the claimant has proven his case to be entitle to the reliefs  sought.

3. Whether the defendant/counterclaimant is entitled to its reliefs.

23. On issue one, it is the defendant’s contention that the action of the Claimant is statute barred by virtue of the provision of Section 2 of the Public Officers Act (otherwise known as POPA). It is the position of the defendant in its preliminary objection and the written address in support that the action of Claimant having been brought outside the 3 months window period provided by Section 2 (a) of POPA is caught up by the said provision and thus statute barred. Counsel referred the Court to paragraphs of Claimant’s statement of facts as regards termination of his appointment on the 1^st day of July 2019 and the General form of Complaint dated and filed the 30^th day of November 2020, that from a comparison of both dates discloses that a period of 3 month has elapsed as provided for in Section 2 (a) of the POPA. He cited the case of A.G Adamawa v. A.G Federation [2014 14 NWLR (Pt. 1428) 515 and submitted further that the failure or neglect of the Claimant to approach this Court within the stipulated period of time (3 months) has robbed this Court of its requisite jurisdiction to entertain this suit thereby rending the claimant’s case as being caught by the statute of limitation. He relied on the case of Egbe v. Yusuf [1992] 6 NWLR (Pt. 245) 1 @ 11-12 and Egbe v. Adefarasin [1985] 1 NWLR (Pt. 3) 546.  It is equally the contention learned counsel for the defendant in the address in support of the preliminary objection that Section 34 of the National Health Insurance Scheme Act, 2004 (hereafter referred to as NHIS Act) makes provision for the applicability of the limitation period in POPA to suits instituted against any officer or employee of the defendant. Learned Claimant’s counsel Charles O. Audu Esq, on the other hand vehemently contended that the Claimant’s case is not caught by the provision of Section 2(a) of POPA and that the Section cannot avail the defendant/applicant in the circumstances of this case as the law is well settled that POPA does not and cannot protect a Public Officer who acts illegally or in breach of the law as in this case and that it is clear from the Statement of facts establishing the cause of action that the claimant/respondent’s case borders on continuous wrong or act by the defendant/applicant. There is no gain saying that Section 34 of the NHIS Act is more or less a recodification of Section 2(a) of POPA. The issue raised by the defendant to the competence of this suit is no doubt one that touches on the jurisdiction of this Court to adjudicate on this matter.

 

24. It is settled law that where a jurisdictional issue is raised, it must be considered first, this is because jurisdiction is a radical and crucial question of competence without which a Court lacks the power to entertain a case. See the following cases; L.L. S.P. I. A Ltd v. MT Tuma [2021] 10 NWLR (Pt1784) 347 (SC); Ngere v. Okuruket XIV [2017] 5 NWLR (Pt.1559)@440 (SC); Diamond Bank v. Ugochukwu [2016] 9 NWLR (Pt. 1517) 193 (SC); IGP v. Andrew [2014] LPELR-22310 (CA); N.E.P.A v. Auwal [2011] 5 NWLR (Pt.1241) 571 (CA). The issue of jurisdiction is very fundamental, it is a threshold matter and it is the life-wire and blood of litigation, the absence of which a suit cannot survive. If a Court has no jurisdiction to determine a case, our case law is replete with plethora of authorities that the proceeding remains a nullity no matter how well conducted. This is so because any defect in competence is not only intrinsic but extrinsic to the entire process of litigation. Therefore, any judgment of Court however well written without jurisdiction is nothing but a nullity. See the case following cases; Adeigban v. Mil-Gov., Lagos State [2017]10 NWLR (Pt.1574) 442 SC; Rt. Hon Emeka Ihedioha & Anor v. Owelle Rochas Anayo Okorocha & 36 Ors [2016] 1 NWLR (Pt.1492) 147 SC, Dalfam (Nig) Ltd v. Okaku Intl. Ltd [2001] 15 NWLR (t. 735) 203 (CA). It is trite that when a statute prescribes a period within which an action must be instituted, the institution of such an action after expiration of prescribed period makes such an action even though with a valid cause of action not maintainable again. Put differently, where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for institution such an action has elapsed. See the following cases; INEC v. Ogbadibo Local Govt. [2016] 3 NWLR (Pt. 1498) 167. ; Ibrahim v. Judicial Service Commission Kaduna State [1998] 114 NWLR (Pt.583)1; Fadare v. A-G Oyo State [1982] 4 SC; Aguma v A.P.C [2021] 14 NWLR (Pt.1796) 351 @ 388 Paras. E-H (SC) Eboigbe v. NNPC [1994] 5 NWLR (Pt 347) 649 at 659; Odubeko v. Fowler [1993] 7 NWLR (Pt.308) 637. A Statute of Limitation which in this case is the POPA removes the right of action, the right of judicial relief in a Claimant and thus leaves him with bare and empty cause of action which he cannot enforce if the alleged cause of action is instituted outside the three months window. 

 

25. I am in agreement with learned counsel for the defendant that the defendant is a Public Officer under the Act to which Section 2 of POPA relate and that Claimant’s action was instituted after three months as prescribed by POPA. Be that as it may, it must be stated at this stage that the rule created by Section 2(a) of the POPA and by extension Section 34 of the NHIS Act permits certain exceptions which are; cases of breach of contract; recovery of land; claims for work and labour done; claims on continued damage/injury amongst others. I place reliance on the following cases; Roe Limited v. University of Nigeria [2018] LPELR- 43855 (SC)1@21 Paras D-G and National Insurance Commission v. Shehu Aminu & Anor [2011] LPELR-19751(CA) and; Radiographers Reg. Board, Nig v. M.& H.W.U.N[2021]8NWLR (Pt 1777)149. Parties in this case have argued back and forth in their written addresses in support of and in opposition of the Preliminary Objection and the Reply on points of law on whether the defendant acted outside the scope of its authority or that its act constitute continuous damage for it not to be protected by Section 2 (a) of POPA. Now in addressing the issues I will make copious reference to some decisions. I agree that a public officer who has acted outside the scope of its authority is not protected by Section 2 of POPA. See the following cases; Adebiyi v. National Instititute of Public Information& Ors [2013]LPELR-22628(CA)1@28-29, Para E.  However, I am in agreement with learned counsel for the defendant, that the defendant in line with its statutory mandate has the power to make sure that the emoluments payable to claimant are in line with what is stated inside his letter of employment. See Section 7(a) of NHIS Act.

 

26. As regards, continuous damage, the law is settled on the meaning of continuing damage or injury. It is also settled that a case of continuing damage or injury is an exception to the application of Public Officers Protection Law as stated supra. The case of Ikine v. Edjerode [2002] FWLR (Pt.92) 1775 @1776, Paras E - G is also relevant here wherein his Lordship Ejiwunmi, J.S.C. (Retired) held inter alia thus: “For that view of the Court below, and with which I am in full agreement, may I refer to the case of Turbuville and Another V. West Ham Corporation (1950) 2 KBD 208. This was a case of some assistant school teachers and the adjustment of their salaries during the 2^nd world war. The teacher put salary claims which their corporation-employer rejected. Time it was held, would not commence in respect of their cause of action, consequent upon the rejection of their claims, until that rejection was communicated to them and not before. Hence, it was held, inter alia, that the Plaintiff's cause of action did not accrue until they received notice of rejection of their claims on 25th February, 1946, and therefore the time limit had not expired when the writs were issued on 23^rd January, 1947” [Emphasis Mine] Claimant in this case particularly in his pleadings stated that the defendant has refused to pay him and he has made several repeated demands to no avail till date. I am of the view that failure of the defendant in this case to formally communicate the reason for the refusal to pay Claimant the said several packages puts the cause of action in abeyance and makes it a continuous damage. The argument of learned counsel for the defendant while relying on the case of INEC v. Ogbadibo Local Government & Ors, supra that the act is different from the resultant effect would have held water if the defendant themselves has communicated to Claimant that he was not entitled. In which case the communication of the decision of the defendant would have been the main injury and the fact that Claimant was still not paid till the filing of the suit would have been the resultant effect. However, in this case, the defendant did not even formally communicate this denial/or non-entitlement to Claimant. The cause of action in this case was as a result of the continuous failure of the defendant to pay Claimant his severance package after exiting office and was kept in abeyance by the failure or refusal of the defendant to state in categorical terms the fate of the Claimant.  In that case of INEC v. Ogbadibo Local Government & Ors, supra, [2014]LPELR-24839(SC)1@57-58, Para C, Okoro JSC held thus in respect of the exception of continuance of injury as an exception to the period of limitation; “Where the injury complained of is a Continuing one, time does not begin to run for the purpose of the application of a limitation law until the cessation of the event leading to the cause of action. In other words, "continuance of injury" means the continuance or repeat of the act which caused the injury. It does not and cannot be said to mean the concomitant effect of the damage or injury.” The act which caused the injury on the Claimant is the refusal of the defendant to pay Claimant the said severance package which act still continued till the action was filed. This, in my view means the cause of action is in abeyance and the failure to pay him is a continuous damage. See also the case of Barr.Talib S. Raji v. Hon. Minister Federal Min of Education & Ors (unreported Appeal No. CA/A/CV/813/2020, a judgment delivered by the Court of Appeal Abuja Div. on the 30^th of September, 2021; wherein Adah JCA; on continuing injury reasoned at page 28 of the judgment thus-“ In the instant case, the failure of the respondents to pay the entitlement of the appellant cannot from the facts and circumstances of this case be excused. Their failure is inexcusable as it is an act of bad faith and a continuous injury which falls into the exception allowed under Section 2(a) of the Public Officers Protection Act” See also the cases of Nestello Gateway Group Ltd v. JSC of FCT, Abuja [2019]LPELR-47929(CA)1@6-14, Para A; UNILORIN v. Ayodeji [2014]LPELR-23821(CA)1@42-46, Paras F-F. In view of all stated supra, I am of the humble view that the act of the defendant amounts to continuance of injury and also put the cause of action in abeyance.

 

27. Assuming but without conceding that the act of the defendant is not even a continuous damage, the Court has held severally that Section 2 of POPA does not apply to cases founded on contract of service. To be more specific and as it relates to the case at hand being claims in respect of labour and work done, the Supreme Court in the case of National Revenue Mobilization and Fiscal Commission &2 Ors v. Ajibola Johnson & 10 Ors [2019] 2 NWLR (Pt 1656) 247 @ 269-271, Paras H-C per Ariwoola JSC reiterated the position of law thus; “Ordinarily, the purpose of the public officers protection law is to protect officers in civil liability for any wrongdoing that occasions damages to any citizen, if the action is not instituted within three months, after the act, default or neglect complained of…There is no doubt, a careful reading of the respondents’ claim will show clearly that it is on contract of service. It is now settled law that Section 2 of the Public Officers Protection Act does not apply to cases of contract. See Nigerian Ports Authority v. Construction General, Farsura Cagefar Spa & Anor [1974] All NLR (PT. 2) 463; Osun State Government v. Danlami Nig. Ltd [2007] 9 NWLR (PT. 1038) 66; [2007] 3 SC (PT. 1) 131; [2007] 6 SCM 145; [2007] LPELR-2817.” … I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondents’ action statute barred. In sum, I hold that the learned Justices of the court below are right in holding that the appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the respondents. The issue is accordingly resolved against the appellants”. See also the case of Musa v. N.I.M.R. [2010]11NWLR (Pt 1205)271. The above case of National Revenue Mobilization and Fiscal Commission &2 Ors v. Ajibola Johnson & 10 Ors, supra is similar to this case. I say so in view of the fact that a careful perusal of the Claimant’s claims shows that it is on contract of service just like in that case though not a simple contract of service but a contract of service for discharge of statutory functions/duties. I am of the view that Claimant’s case being claims in respect of contract of service or labour and work done for the defendant falls under the exceptions created by case law authorities and as such cannot be caught up by the limitation period of three months provided in POPA. It is in the light of the above that I find that the claimant’s case is not statute barred. Thus, this Court is clothed with the requisite jurisdiction to entertain this matter having not been found to be statute barred. Consequently, the defendant’s preliminary objection fails and question one is thus resolved in favour of Claimant.

 

28. Now to issue two, it is Claimant’s averment vide paragraph 1 of the amended statement of facts that he was the Executive Secretary of the Defendant between 27^th July, 2016 to 1^st July 2019. The defendant in response vide paragraph 1 of its consequential amendment filed on the 9^th day of November, 2021 averred that while not admitting Claimant’s averment in paragraph 1 of the statement of facts, he is put to the strictest proof thereof. It is well settled that a defendant who intends to admit or deny a material averment in the Claimant’s pleadings must either do so by admitting it boldly or denying it frankly and that such denial that Claimant is put to the strictest proof is not a sufficient denial of a material averment and will amount to an admission. See the following cases; Rukuje v. Deba [2018]LPELR-44422(CA)1@38-39, Paras C-C; Ugela v. Tarvenda & Ors [2013]LPELR-21232(CA)1@16-17, Para D; Bamgbegbin & Ors v. Oriare & Ors [2009]LPELR-733(SC)1@30-31, Para F,[2009]13NWLR (Pt 1158)370. However, this case being declaratory in nature which is an exception to the rule of admission wherein Claimant has the nus to prove his case, he tendered his letter of appointment (Exhibit P) and letter of termination of appointment (Exhibit P2). A perusal of both letters leaves no one in doubt that Claimant’s averment in paragraph 1 of his amended statement of facts stands proved having not been successfully challenged by the defendant. I so find and hold.

 

29. It is also the claim of Claimant vide his amended complaint and amended statement of facts that he was appointed by the President as the Executive Secretary of the Defendant vide a letter dated 1^st August 2016 herein as Exhibit P. He also averred vide paragraph 5 of his statement of facts that prior to his appointment, the Governing Council of the defendant which has the general control of the defendant at its regular meeting on the 16^th January, 2014 approved an Exit package for retiring and or existing staff of the Defendant and Executive Secretary of the Defendant and the payment of a Consolidated Annualized Exit Package of salary of retiring and exiting Executive Secretary of the Defendant and which minutes of meeting is admitted and marked Exhibit P1. The defendant in response vide paragraph 3 of the consequential amended statement of defence denies Claimant’s averment in paragraphs 4 and 5 and puts him to the strictest proof. It states further in paragraph 4 that its Governing Council lacks the vires under the National Health Insurance Scheme Act, Cap N42, Laws of the Federation of Nigeria to set up any benefit and or payment categorization including the alleged Consolidated Annualized Package of Salary for retiring and Exiting Executive Secretary of the Defendant. Claimant in view of the above averment averred that by the said resolution his consolidated Annualized Exit Package is N65, 390,628.54 (Sixty-five Million, three hundred and ninety thousand, six hundred and twenty-eight naira, fifty-four kobo). It is trite that monetary claims are in the realms of special damages which must be specifically pleaded with distinct particularity and strictly proved. See the following cases; UBN Plc v. Nwankwo [2019]3NWLR (Pt 1660)474@486, Paras D-E, 487, Paras A-C; NBC Plc v. Ubani [2014]14NWLR (Pt 1398)421@475, Paras D-E. Proof of entitlement to same is often by reference to an instrument which grants same. See the following cases in which judgment was delivered by this Court; Habiibah Oyeghe v. Daar Communications (Unreported Suit No NICN/ABJ/37/2020, a judgment delivered on 26^th January, 2022; Declan Ukpo Agrinya & Anor v. Petroleum Equalization Fund Management Board, (Unreported Suit No NICN/ABJ/63/2020), a judgment delivered on 28^th June, 2021; Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt 208) 39. It is the contention of learned counsel for the defendant in his final written address that by a community reading of Sections 3(2), 6, 7, 8(4) of the NHIS Act, 2010 that the defendant’s Governing Council does not have the power to approve any Consolidated Annualized Exit Package for the Claimant and that whatever Claimant was entitled to would be as is determined by the Federal Government. Let me first state that contrary to the assertion of learned Counsel, the extant NHIS Act is contained in the Laws of the Federation as National Health Insurance Scheme Act, Cap N2, Laws of the Federation LFN, 2004(originally enacted as National Health Insurance Scheme Act 35, 1999). However, there is a Revised National Health Insurance Scheme Operational Guidelines of 2012. There is no such things as National Health Insurance Scheme Act, 2010.It is the duty of learned counsel to this Court to give full and correct particulars of the statutes and legislation he is citing to the Court for easy reference. See the case of Ugbah v. Ugbah &Ors [2008]LPELR-4832(CA)1@20-21, Para F. The Claimant also in response to the said submission of the defendant submitted  in  paragraphs 4.3 and 4.4 of his final written address that by the provisions of Section 1 of the NHIS Act, LFN, 2004 the functions and powers of the Governing Council includes but not limited to the powers to manage the defendant in accordance with the provisions of the Defendant Act and that there is no doubt that the Governing Council has the statutory powers to approve Exit Packages for the staff and the Executive Secretary. It is equally the contention of learned counsel on behalf of Claimant that Section 3 (2) of the Act which the defendant relies on is inapplicable to this case in that it refers to members of the Council of the Defendant and what the Claimant is seeking has nothing to do with his membership of the Council rather the Exit package and the reliefs sought by Claimant has to do with his statutory entitlements as an erstwhile Executive Secretary. It is expedient at this stage for me to consider the relevant provisions of the NHIS Act as it relates to the office of the Executive Secretary and the powers of the Governing Council of the Defendant to fix remuneration.

 

30. The office of the Executive Secretary was created by Section 8 of the NHIS Act which provides thus;

                        8.

(1)There shall be appointed by the President, on the recommendation of the Minister, an Executive Secretary.

(2)The Executive Secretary shall -

(a) be a person with relevant qualification and experience;

(b) be the chief executive and accounting officer of the Scheme;

(c) hold office - (i) for a period of five years in the first instance and may be re-appointed for a further term of five years and no more; and (ii) on such terms and conditions as may be specified in his letter of appointment.

 

(3)The Executive Secretary shall, subject to the general direction of the Council, be responsible for -

(a) the day-to-day administration of the Scheme;

(b) keeping the books and proper records of the proceedings of the Council;

(c) the administration of the secretariat of the Council; and

(d) the general direction and control of all other employees of the Scheme.

(4)The Council shall -

(a) appoint, for the Scheme, such number of directors and other employees as may, in the opinion of the Council, be required to assist the Council in the discharge of any of its functions under this Act; and

(b) pay to persons so appointed such remuneration (including allowances) as the Council may, after consultation with the Federal Civil Service Commission, determine.

31. It is trite that in the interpretation of clear and unambiguous statutory provisions, the words used are to be given their clear and ordinary meanings. See the following cases; Oloja v. Gov. Benue State [2022]3NWLR (Pt 1816)1@24,Paras C-E; N.U.P. v. I.N.E.C [2021]17 NWLR (Pt 1805)305@342, Paras F-H; Bayero v. Agundi [2021]16NWLR (Pt 1802)347@371, Paras D-E and; Abegunde v. O.S.H.A.[2015]8NWLR (Pt 1461)314@353, Paras D-F, 364, Paras E-H. The above provisions of the Section 8 are clear and require no special aid to understand and is to the effect that the Executive Secretary of the defendant which position Claimant occupied shall be appointed by the President on the recommendation of the Minster and shall perform the functions listed in that Section while the terms and conditions of his appointment is as is stated in the letter of appointment. Exhibit P is Claimant’s letter of appointment. Hereunder reproduced are the relevant portion of the said letter;

APPOINTMENT AS EXECUTIVE SECRETARY, NATIONAL      HEALTH INSURANCE SCHME

1.   I am pleased to inform you that the President of the Federal   Republic of Nigeria, Muhammadu Buhari, GCFR has approved your appointment as Executive Secretary, National Health Insurance Scheme (NHIS) for a period of five (5) years in line with Section 8(2)(c) of the National Health Insurance Scheme Act, 1999.

2. The appointment took effect from 25^th July, 2016 and your emoluments and other conditions of service are as provided under Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc) (Amendment)Act, 2008.

3.Please accept my congratulations and best wishes on your   appointment.

                                    Engineer Babachir David Lawal

                                    Secretary to the Government of the Federation.

 

32. By the provision of Section 24 of the Interpretation Act Cap. 123 LFN 2004, where a power to make an instrument which is conferred on the President by an enactment is exercisable in accordance with the advice of the President or a Minister, without prejudice to the exercise of the power by the President in person, any instrument made in exercise of that power may be executed under the hand of the Secretary to the Federal Government.  Thus, it means that the letter above though signed by the Secretary to the Government of the Federation is deemed to be made by the President in line with his powers under Section 8 of NHIS Act. Be that as it may, the law has become ensconced that documents legally speaking speaks for itself. See the cases of Eze v. APGA [2020] 3 NWLR (Pt 1712) 413 (SC); Ibrahim v. Abdallah [2019] 17 NWLR (Pt 1701) 293 @ 310, Para F; 316-317, Paras H-A and; Ikemefuna &Ors v. Ilondior& Ors [2018] LPELR-44840 (CA) 18, Para D. The content of the above letter is clear and to the effect that Claimant’s appointment was made by the President and that Claimant’s emoluments and other conditions of service are as provided under Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc) (Amendment)Act, 2008.

 

33. I bear in mind the position of learned counsel on behalf of Claimant vide paragraph 4.25 of the Claimant’s final written address that the powers of the Governing Council go beyond Section 8(4) of the NHIS Act. The question that agitates the mind of this Court at this stage is whether the Governing Council has the power to approve an exit package for Claimant outside those provided in his letter of employment. It is therefore expedient to consider the scope of the powers of the Governing Council under the NHIS Act. Section 7 of the NHIS Act provides thus as regards the powers of the Governing Council;

                        7.

The Council shall have power to -

(a) manage the Scheme in accordance with the provisions of this Act;

(b) determine the overall policies of the Scheme, including the financial and operative procedures of the Scheme;

(c) ensure the effective implementation of the policies and procedures of the Scheme;

(d) assess, from time to time, the research, consultancy and training programs relative to the Scheme;

(e) arrange for the financial and medical audit of the Zonal Health Insurance offices established under section 21 of this Act;

(f) set guidelines for effective co-operation with other organizations to promote the objectives of the scheme;

(g) co-ordinating quarterly returns from the Zonal Health Insurance Offices;

(h) ensuring public awareness about the Scheme;

(i) co-ordinating manpower training under the Scheme;

(j) carry out such other activities as are necessary and expedient for the purpose of achieving the objectives of the Scheme as set out in this Act.

34. It is the position of learned counsel for the Claimant in his final written address that by the provisions of Section 7(b) the Council is empowered to approve the annualized exiting package for the Executive Secretaries. It must be borne in mind that in the interpretation of statutory provisions, the statute must be read as a whole, it is wrong to isolate a particular provision. See the following cases; Umeano v. Anaekwe [2022]6NWLR (Pt 1827)509@532, Paras B-E; Orakul Resources Ltd v. N.C.C. [2022]6NWLR (Pt 1827)539@590, Paras E-G;Ogah v. Ikpeazu [2017]17NWLR (Pt 1594)299@350, Paras A-B; Skye Bank v. Iwu [2017]16NWLR (Pt 1590)24@138, Paras B-D. It was wrong of learned counsel to isolate a particular provision of Section 7 of the NHIS Act for him to submit that the Governing Council has power to approve the annualized exiting packages of the Executive Secretary. The power of the Council to determine the overall policies of the Scheme including financial and operative policies of the scheme cannot be read within the context of all the provisions of the NHIS Act to include powers to approve an annual exiting package for the Executive Secretary contrary to or which is at large with the one provided in his letter of appointment which is the basic determinant of the applicable terms and conditions of employment. It is equally clear from the provisions of Section 8(4) of the NHIS Act above that the powers of the Council to fix remuneration is limited to only those staff appointed by the Council one of which does not include the Executive Secretary who is to be appointed by the President.  See also Section 6(h) of the NHIS Act which equally provides that one of the functions of the Council is to fix remuneration and allowance of the staff of the scheme and not that of the claimant. In view of the above I am of the unwavering view that the Governing Council does not have powers to fix annualized exiting package for an Executive Secretary as contained in Category D of Exhibit P1 because the terms and conditions of service which includes remuneration are clearly provided by the NHIS Act to be those stated in the letter of appointment which obviously would be decided by the appointor not the Council. I am thus in agreement with the defendant that the Council acted ultra vires its powers to fix the said annual exiting package for an Executive Secretary. In the same vein, Learned Claimant’s Counsel tried in his final written address to differentiate between what Claimant is entitled to by virtue of Exhibit P and what he is entitled to by virtue of the Resolution which is Exhibit P1. I do not understand the distinction learned Counsel is trying to make. The Black’s Law Dictionary, Bryan A. Garner, 8^th Edition at page 563 defines emolument as “any advantage, profit, or gain received as a result of ones employment or ones holding of Office” The import of this is that the annualized package allegedly approved by the Council is an emolument contrary to the assertion of learned claimant’s counsel at paragraph 4.24 of his final written address that it is an additional benefit which is different from his emolument. This is so in view of the definition of emolument captured supra as evinced also in his letter of employment, which specifically stated that claimant’s emolument should be as provided under the certain Political Officeholders 2008 Act. Thus, any emolument that is given outside of the emolument provided for in his letter of appointment is bound to be nullified as same is contrary to his condition of service. Claimant in my view is a member of the Governing Council by his appointment in Exhibit P. He is not holding two different positions and cannot be laying claim to what is not contained in his letter of appointment. The letter of appointment is the bedrock on which claimant has founded his claims and he cannot in my view take anything not granted to him in his letter of appointment which has clearly stated what his emoluments are.

 

35. I do not lose sight of Exhibit P6 which contains a particular opinion by a legal practitioner as regards the power of the Council to approve the annualized Exit package to Executive Secretary. There is no doubt that the legal practitioner’s view expressed in Exhibit P6 is nothing more than his opinion which fact claimant admitted while under cross examination. The said legal practitioner no doubt qualifies as an expert though he was not called as a witness in this case. It is settled that before an expert opinion expressed in a document tendered as an Exhibit in Court can become part of the evidence which the trial Court can act upon, and in the absence of the writer as a witness, such opinion must be put to another expert in the same field who is a witness in the case for his confirmation. See Nteogwuile v. Otuo [2001]16NWLR (Pt 738)58@75, Paras D-F. The above was not done in respect of Exhibit P6. Besides an expert opinion is only necessary where the expert can provide to the Court scientific or other information of a technical nature that is likely to be outside the experience and knowledge of the Judge. Thus opinions of experts are only required in matters of technicality and not in matters in which the Judge has sufficient experience and knowledge. See Barewa Pharm Ltd v. F.R.N [2019]9NWLR (Pt 1677)331@351, Paras D-E (SC); Okorie v. State [2018]11NWLR (Pt 1629)1@22, Paras B; D. The issue at hand bothers on the interpretation of the provisions of the NHIS Act which is a matter in which the Court has sufficient understanding and knowledge and as such is not bound to accept the said expert opinion contained in Exhibit P6. Exhibit P6 is therefore discountenanced.

 

36. Noteworthy are the answers given by Claimant to the questions he was asked under an initial cross examination on the 21^st day of June, 2021 which has been adopted as part of Claimant’s cross examination on the 9^th day of December as follows;

Q: Do you confirm that your appointment was made by the President of Nigeria and not by the Governing Council

                        A: Yes it was made vide Exhibit P

                        Q: It stated your emoluments and other conditions of service

                        A: Yes

                        Q: You are a political appointee.

A: Yes and it is not the Governing Council that determines my emolument. I am an automatic Secretary and member of the Governing Council. My emoluments are determined by the Federal Government.

Q: The 2008 Act did not make provision for the allowances you are claiming.

A: It did not

Q: Exhibit P1, do you confirm that it was made on 16/1/14.

A: Yes

Q: Your letter of appointment did not make provision for the content of Exhibit P1

A: Yes it did not.

Q: Do you have any document to show that the proposal made in Exhibit P1 was sent to National Income and Wages Commission or approved by them?

A: I don’t have.

37. The law has remained well settled to the effect that where the evidence proffered at a party's instance, favors the opponent's case, that is tantamount to a solemn admission of the opponent's case, which is referred to as an admission against interest. In law, admission of facts against self-interest is not only admissible but is also perhaps the strongest form of evidence available to the adverse party in any suit between the parties. See the following cases; Offodile v. Offodile [2019]16NWLR (Pt 1698)189@211, Para F (SC); Onovo v. Mba [2014]14 NWLR (Pt 1427)391@424, Paras A-E; Oruruo v. Edeani [2014]LPELR-41084(CA)1@30-31, Para D. The apex Court in the case of Abdulrahman v. Thomas [2019]12 NWLR (Pt 1685)107@122, Paras C-E held that evidence elicited under cross examination that tends to be an admission against interest vis-a-vis pleaded facts or that explains ambiguity created by pleaded fact is related to fact in issue and therefore relevant and admissible. See also Akaninwo & Ors v. Nsirim & Ors [2008]LPELR-321(SC)1@75-76, Para E. There is no doubt that the above answers given by Claimant himself while under cross examination are in fact an admission against his own interest which would be taken as being in support of the case of the defendant especially if they are supported by other material evidence. In the case of Offodile v. Offodile, supra, particularly at page 211, Paras B-C;D-E, the Supreme Court emphatically stated that an admission against interest in order to be valid in favor of the adverse party, must not only vindicate or reflect the material evidence before the Court, it must also vindicate and reflect the legal position. See also the cases of Oshafunmi & Anor v. Adepoju & Anor [2014] LPELR-23073(CA)1@62, Para D and Odutola & Anor v. Papersack Nig Ltd [2006] LPELR-2259(SC)1@29-30, Para E. In the instant case Exhibit P which is Claimant’s letter of appointment established with certainty the appointor of the Claimant is the President and how the entitlements and emoluments of Claimant are to be determined which is different from the content of Exhibit P1 as admitted by him. The admission of Claimant under cross examination above must work against him since the evidence he presented himself correspond with his admission which are obviously against his interest. It is presumed that no person declares anything against himself except it is true. As such a party is entitled to rely on an admission against his opponent’s interest which supports his own case. See the case of Ipinlaiye II v. Olukotun [1996]6NWLR (Pt 453)148@165, Paras B-C (SC). I am therefore of the view that the defendant is entitled to rely on same as an admission against the interest of Claimant as learned Counsel did in paragraphs 6.19, 6.20, 6.21 ,6.22 and 6.23 of the final written address on behalf of the defendant. I so find and hold.

 

38.  I am also not blind to the submissions of learned counsel for Claimant in paragraph 4.19 to 4.20 of his final written address that the defendant failed to submit the contentious issue of the Resolution to arbitration. I have perused the whole of the pleadings of Claimant in this case and I cannot find anywhere where Claimant pleaded the issue of the non-submission of the contentious matter to arbitration by the defendant. I am in agreement with the position of learned defence Counsel in paragraph 2.36 of his Reply on the Points of law that Claimant cannot raise this at this stage. The law is well settled that parties including their counsel are bound by their pleadings and a party including his counsel cannot set up a case different from what has been set up in his pleadings. See the following cases; Okeke v. Nwigene [2022]3 NWLR (Pt 1817)313@356, Paras E-F; Okoko v. Dakolo [2006] LPELR-2461(SC)1@50, Para C; I am also in agreement with the position of learned defence Counsel that address no matter how beautiful cannot take the place of pleadings or evidence where there is none. See the following cases; Oyeyemi v. Owoeye [2017]12 NWLR (Pt 1580)364@403, Paras E-F, 404, Paras A-B, 417, Paras D-E and; Agbaruka v. F.B.N Ltd [2010]3NWLR (Pt 1182)465@485, Para G. In fact, the issue of the non-submission of the issue in contest to arbitration by the defendant being an issue of fact cannot properly be raised for the first time in the final written address as learned Claimant’s Counsel sought to do. See; Passco Intl Ltd v. Unity Bank Plc [2021]7NWLR (Pt 1775)224@252, Paras C-D, F-G.

 

39. Let me also use this opportunity to address the contention of Claimant that the said annualized exit package was paid to his predecessor who was later invited by the Economic and Financial Crimes Commission (EFCC) but was later exonerated by the EFCC. It is the contention of learned counsel for Claimant in his final written address that if Claimant predecessor was paid the said sum, there is no reason why Claimant should not be paid. From a perusal of the Exhibits in this case, it is clear that the payment of the said annualized package the subject matter of this action to Claimant’s predecessor was subject of an investigation by the EFCC. However, I must say that there is nothing before this Court to lend credence to the fact that the said Femi Thomas has been exonerated by the EFCC as alleged by Claimant in his amended statement of facts. In fact, Exhibits P5 and P14 clearly shows that the payment is subject of EFCC investigation and in fact the defendant even wrote to the EFCC as regards the investigation but there is nothing to show that investigation has been concluded not to talk of the said Femi Thomas being exonerated by EFCC as posited by Claimant.

 

40. It is equally Claimant’s averments vide paragraph 13 of his statement of facts that upon his retirement he is automatically and dramatically entitled to his severance gratuity in accordance with the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc) (Amendment) Act, 2008 (hereafter referred to as the 2008 Act). He averred further vide paragraph 14 of the statement of facts that his severance Gratuity in accordance with the 2008 Act is N5,777,595.00 which is 300% of his annual basic salary. The defendant in response vide paragraph 11 of the consequential statement of defence denies paragraphs 13 and 14 of the amended statement of facts and puts the Claimant to strictest proof. It averred further that Claimant is not automatically and dramatically entitled to any Exit package. It is worthy of note that the defendant vide paragraph 29 of its consequential statement of defence made a tacit admission of the above sum of N5,777,595.00 (which claimant claims as severance benefits) as the sum due to Claimant under the 2008 Act. It is trite that monetary claims are in the realms of special damages which must be specifically pleaded with distinct particularity and strictly proved. See the following cases; UBN Plc v. Nwankwo, supra; NBC Plc v. Ubani, supra; Abayomi v. Saap-Tech (Nig) Ltd, supra. Proof of entitlement to same is often by reference to an instrument which grants same. See the following cases in which judgment was delivered by this Court; Suraju Rufai v. Bureau of Public Enterprise & Ors Suit No NICN/LA/18/2013 delivered on the 4th day of June,2018; Mohammed Dungus & ors v. ENL Consortium Ltd, supra. Claimant in this case has tendered Exhibit P which is his letter of appointment. As reasoned supra, Exhibit P clearly provides that the emoluments and terms and conditions of appointment of the Claimant shall be in accordance with the 2008 Act. By the provisions of the 2008 Act particularly Part 1, Item A of the Schedule, the annual basic salary of an Executive Secretary, category of which Claimant belonged by virtue of Exhibit P is N1,925,865 exactly as specifically pleaded by Claimant. A further perusal of the said 2008 Act specifically in Part B of the Schedule, the Severance Gratuity of an Executive Secretary is 300% of the annual basic salary. As stated supra, the annual basic salary of an Executive Secretary is N1,925,865. Accordingly, 300% of the annual basic salary will be N5,777,595.00. I therefore find that Claimant has proven his entitlement to the sum of N5,777,595.00 claimed as severance gratuity. I so find and hold.

 

41. It is worthy of note that Claimant while under subsequent cross examination on the 9^th day of December, 2021 answered thus when asked if he is claiming two different severance gratuity;

Q; You said you are Claiming N5.7 Million as your statutory entitlement.

A: Yes

Q:  Confirm to the Court that you are now claiming double severance packages of N5.7 Million and N65.4 Million

A: Yes

In view of the above, it is clear that Claimant in the instant case wants to claim two different severance packages/allowances in respect of the same office. I wonder how this can be possible. He wants to claim the one allowed by his letter of appointment as provided in the statute and another which is not specifically statutorily provided for which is at large with his entitlement under the 2008 Act.

42. I think the principle of unjust enrichment should come to play here. The Supreme Court per Onnoghen JSC, CJN (Rtd) in the case of FBN Plc v. Ozokwere[2013]LPELR-21897(SC) 1@15, Para C defined unjust enrichment thus; “What then is “Unjust Enrichment” Black’s Law Dictionary, 8th Ed defines the term at pages 1573 - 1574 as follows: "1. The retention of a benefit conferred by another without offering compensation, in circumstance where compensation is reasonably expected- 2. A benefit obtained from another, not intended as a gift and not legally justifiable, for to which the beneficiary must make restitution or recompense. 3. The area of law dealing with unjustifiable benefits of this kind.” [Emphasis mine] There is no doubt from the above three definitions that what claimant in this case is seeking to do by claiming two different severance packages out of which one is statutorily justified but the other is not is nothing but unjust enrichment from an Office wherein he barely spent four years. I am afraid Claimant cannot be allowed by this Court to claim two different severance packages in respect of the same position. To do otherwise will amount to unjust enrichment. No Court of equity would accept such a situation. In the case of Eboni Finance and Securities Ltd v Wole - Ojo Technical Services Ltd [1996] 7 NWLR (Pt.461) 464@478 it was held by the Court that the doctrine of unjust enrichment is a specie of constructive trust which is an instrument which the Court of equity must employ to prevent undue enrichment. Equity will not allow such. To properly drive home the point I am trying to make, I will like to view it in the light of the opinion of Agim JCA in the case of Gov of Kogi State & Ors v. Ahmed & Ors [2019]LPELR-48367(CA)1@23-27, Para D thus; “The fact that elected pubic office holders and political appointees are paid huge amounts of money as monthly salaries and other forms of allowances while in office is common knowledge in Nigeria and is not reasonably open to question. It is also common knowledge that many of them after an office tenure of between 3 to 8 years become stupendously wealthy, exhibiting mind blowing opulence and splendor. Yet these office holders insist on being paid severance allowance for holding such offices. Meanwhile, career Civil Servants who have served this country or their States or Local Governments all their life can hardly collect their pensions and gratuity when retired. They are now being subjected to contributory pension schemes in which they contribute part of their monthly meager salaries that are always paid in arrears while in service to be able to earn pension and gratuity upon retirement. The political appointees and elected public office holders who do not work as long and as hard as the career Civil Servants quickly get paid huge severance allowances upon leaving office in addition to the huge wealth they acquired while holding such offices and without having been subjected to any contributory pension schemes…” [Emphasis mine]. Yet, claimant who is one of these political appointees is insisting on being paid another severance package distinct from the one allowed him by statute and his letter of appointment. This is nothing more than an unjust enrichment which this Court as a Court of equity will not help the Claimant to achieve. It is enough that the Claimant has been allowed a certain sum as his severance allowance under the 2008 Act and which this Court has found that he is entitled to. In view of the foregoing, I find while Claimant has proven his entitlement to the sum of N5,777, 595 claimed as statutory severance gratuity, he has not satisfied this Court of his entitlement to the sum of N65, 390,628.54 as annualized Exit package.

 

43.  In view of all that has been reasoned supra, I find that Claimant’s reliefs a-e, ‘g-i’, and ‘k’ succeed only to the extent that Claimant is entitled to the sum of N5, 777,595 claimed as severance gratuity in accordance with the 2008 Act. I will take reliefs ‘f, ‘j’, ‘l’ together with the counter claim for the obvious reason that the vehicles in respect of which those reliefs were sought are the subject of the counterclaim herein. I think it is neater to take those reliefs with the counterclaim.

 

44. Relief ‘m’ seeks the payment of 10 % interest on the monetary sums claimed by Claimant in this case prior to the date of judgment. By nature, the said relief is nothing more than a pre-judgment interest. The law is on a firma terra that pre judgment interest is one which is claimed by a claimant on a principal sum in a judgment at the pre-judgment interest rate from the date the cause of action accrued to the judgment date. See the case of Fouani Nig. Ltd v. Idoko [2020]2 NWLR (Pt 1709) 401@435-436, Paras G-C. As reasoned supra, Claimant has not justified his entitlement to the sum Claimed as part of his annualized exit package. He has only been able to justify his entitlement to the sum of N5,777,595 claimed as statutory severance package. Assuming Claimant has even been able to justify both sums claimed as annualized exit package and statutory severance package, the law is settled that prejudgment interest is only to be awarded where the facts that support its award are pleaded and evidence led to support. See the cases of Skymit Motors Ltd v. U.B.A Plc [2021]5 NWLR (Pt 1768)123@145, Paras F-A; N.P.A v. Aminu Ibrahim and Co [2018]11 NWLR (Pt 1632) 62@87-88, Paras F-A, 97-98, Paras F-A; Unity Bank Plc v. Raybam Eng Ltd [2018]12 NWLR (Pt 1633)214; N.B.C.I v. Dauphin (Nig) Ltd [2014]16 NWLR (Pt 1432)91@119, Para H,121, Paras A-B, 122, Paras B-C. It must equally be shown that parties have agreed on payment of interest in order to award an interest of this sort. See the case of Afribank v. Akara [2006] All FWLR (Pt 304)401; Eseigbe Engineering Co. Ltd v. Aikhomu &Anor [2018] LPELR-44516(CA)20-21, Para A. In the case of Julius Berger (Nig) Plc v. T.R.C.B Ltd [2019]5 NWLR (Pt 1665)219@257, Paras D-G, the Apex Court held that in in addition to the fact that pre-judgment interest must be pleaded and evidence led in support, the prevailing bank rate of interest and the date of commencement of calculation must be proved clearly by evidence. The claimant herein did not plead the fact that parties herein have agreed on payment of interest at the time they entered into the contractual arrangement between them. He equally did not lead any evidence in support of prejudgment interest or the prevailing bank rate or the date of commencement. In view of the foregoing, I find that relief ‘m’ fails in its entirety.

 

45. The Claimant equally claims the sum of N20,000,000 as general damages. The law is trite that where breach of contract has been established, nominal general damages will follow without need to specifically plead or prove the damages. See the cases of SPDC Ltd v. Nwabueze [2013] LPELR-21178 (CA) 33 and; Felix George &Company Ltd v. Afinotan & Ors [2014] LPELR-22982 (CA)52. It is well settled that once it has been found by a Court that a party is liable for breach of contract as in the instant case, award of general damages will follow and such damages need not be specifically pleaded as they are not in the nature of special damages. Claimant in this case has been able to show that he is entitled by statute to the sum of N5,777,595 as severance gratuity which was not paid to him. The defendant on its own part pleaded that the sum was not paid due to Claimant’s refusal to submit the defendant’s properties in his possession. However, there is no evidence that the defendant ever communicated this to Claimant that he had to return the properties in his possession before the sum would be paid to him as his statutory entitlement. In any case the payment of claimant’s severance benefit is statutory and not tied to the any condition, ditto the release of the alleged vehicles in his possession.  In fact, there is no evidence before me to show that the defendant ever intended to pay Claimant the said sum accruable to him by virtue of the Certain Political Office holders 2008 Act. By Article 12 (2) of ILO Convention No 95 of 1949, mandates payment of final settlement or entitlement due upon termination of appointment in accordance with National laws, which in this case is the 2008 Act. This Court by virtue of Section 254 C (1) (f) and (h) of the 1999 Constitution as altered, empowers this Court to apply international best practices and International labour Standards. It is in  the light of this that I find that failure of the defendant to pay the claimant his severance statutory entitlement upon termination of his appointment is in breach of his contract of appointment. Consequent upon which I hold that the Claimant is entitled to damages for the unreasonable withholding of his severance package since July 2019 till date. This is infact an unfair labour practices and constitutes a wrong meted out by the defendant against the claimant. The law is that where there is a wrong there must of a necessity be a corresponding remedy. It is in consequence of all said that I hereby exercise my power donated by Section 19(d) of the National Industrial Court Act, 2006 by awarding damages to the claimant in the sum of N3,851,730.00 as his two years annual basic salary as provided under Part 1 of the Schedule, Item A of the 2008 Act.

 

46.Relief ‘n’ is on cost of action. The law is long settled that a successful party is entitled to cost which he should not be denied except for good reasons. See the following cases; Cappa and Dalberto (Nig) Plc v. NDIC [2021]9 NWLR (Pt. 1780)1@ 14, Paras G-H; First Bank v. Orosanye [2019]LPELR-47205(CA)1@22-29, Para F; Aircom (Nig) Ltd v. Shobanjo & Anor [2019]LPELR-49252(CA)1@30,Para A.  In the case of Mekwunye v. Emirates Airlines [2019] LPELR-46553(SC)1@ 67-73, Para E, the apex Court Per Odili, J.S.C(Now Rtd); held that costs including cost of litigation is at the discretion of the Court once empowered by its Rules. Claimant in this case has not succeeded in the most part of his claim. However, he tendered Exhibit P8 which is the Bill of Charges. By virtue of Section 19(1) of the Legal Practitioner's Act, 2004 (LPA), "bill of charges" means any charges, whether by way of fees, disbursements, expenses or otherwise, in respect of anything done by a legal practitioner in his capacity as a legal practitioner. Claimant in this case has not succeeded in the most part of his case as stated supra. The award of cost of action is at the discretion of this Court. In view of the fact that Claimant has not succeeded in most part of his case, I am not inclined towards granting his relief for cost of action.

 

47. Now to issue three on the counterclaim, it is the contention of the defendant/counterclaimant in its counterclaim that the Claimant /defendant to counterclaim is still in possession of some of its properties which include five different cars and the sum of N1,241,160 (One Million, two hundred and forty-one thousand, one hundred and sixty naira) even after the termination of his appointment. The Claimant/defendant to counterclaim in his defence filed on the 15^th day of November, 2021 denies being in possession of the five vehicles. He averred categorically that the Toyota Land Cruiser V8, 2016 Model with Registration of Number 12Y 01 FG was given to him as his official vehicle while he was in office as the Executive Secretary of the defendant/counterclaimant and which vehicle was part of his Exit package as approved by the Governing Council at her 2^nd Regular Meeting held on 16^th January, 2014 in exercise of its statutory functions. He averred further that the remaining four vehicles namely; Toyota  Camry with Registration Number 12Y 02 FG; Toyota Prado SUV with Registration Number 12Y 06 FG; Toyota  Corolla with Registration Number 12Y 21 FG and Toyota Corolla with Registration Number 12Y 46 FG  are assigned to the Office of the Executive Secretary and are not in his possession but with the automobile Engineer of the defendant/counterclaimant and which Vehicles upon the intervention of the Independent Corrupt Practices Commission (hereafter referred to as ICPC) have been returned to the said ICPC. The Claimant/defendant to counter claim denies being in possession of the sum of N1,241,160 as claimed by counterclaimant. The law is firmly settled that a counter-claim though filed in the same suit and probably from the same transaction as that of the main suit is a separate and independent action from the main claim and as such must be proved by the counterclaimant. See the following cases; Kolade & Ors v. Ogundokun [2017] LPELR-48001(SC)1@,24-25, Para F; Oroha & Ors v. Adeniyi & Ors [2017] LPELR-41985(SC)1@11-13, Para E; Idurobo v. Ehiorobo [2017] LPELR-43594(CA)1@35-37, Para E and; Ogli Oko Memorial Farms Ltd & Anor v. NACB Ltd & Anor [2008] LPELR-2306(SC)1@16, Para B. It is a weapon of defence which enables a defendant in the main claim to maintain a claim against a claimant. Thus, same is governed by the same rule of pleadings as the original action.

 

48. In essence, just like it is with the main action, it is the duty of he who asserts to prove. Thus, the burden rest squarely on the counterclaimant to prove its case on the balance of probabilities. See the following cases; Tropical Culture Ltd & Anor v. Akinola [2020] LPELR-52214(CA)1@82-83, Para F; Anwadike & Anor v. Anwadike &Ors [2019] LPELR-46970(CA)1@50-52,Para F; Ulam & Ors v. Usman [2019]LPELR-48917(CA)1@15-16, Para F and; Ogiren v. Olufunmilayo & Ors [201]LPELR-24295(CA)1@24-25, Para A. Thus, it is the duty of the defendant/counterclaimant to prove its assertions in the counterclaim to the satisfaction of this Court before it can be entitled to judgment. Let me at this stage address the issue of the admissibility and weight to attach to the Exhibits tendered by the defendant/counterclaimant. In fact Counterclaimant in this case during trial on the 9^th day of December, 2021 sought to tender some documents in evidence some of which (particularly documents dated 11//2/2020; 20/12/2019 and receipt dated 3/6/17. the Claimant objected to during trial on the ground of being public documents which are uncertified urging the Court to reject same. However, the Court admitted them and marked them as Exhibit V-V4 but stated that the Claimant could address the Court on the weight to attach to any of them. Exhibits V-V4 are no doubt public documents being documents produced from the custody of the defendant which is a public body as part of its official record. See the following cases; Onwuzuruike v. Edoziem & Ors [2016]LPELR-26056(SC)1@8-9, Para E; Governor, Ekiti State  & Ors v. Olayemi [2014]LPELR-23477(CA)1@66, Para C. See also Section 102 of the Evidence Act, 2011. Exhibits V-V4 are no doubt secondary evidence being photocopies and not the original documents. The law is settled that the only admissible evidence of a public document is the certified true copy of the public document. See the following cases; Effiom & Anor v. Ekpe & Ors [2019]LPELR-48976(CA)1@32-34, Para A; MTN v. Mundra Ventures (Nig) Ltd [2016]LPELR-40343(CA)1@53-55, Para D; Aromolaran v. Agoro [2014]LPELR-24037(SC)1@51-54, Para C and Iteogu v. LPDC [2009]LPELR-1559(SC)1@16, Para B. The law is settled that a Court is under a duty to act only on an evidence which is admissible in law whether the opposing party objects or not. See the following cases; Benjamin v. Kalio [2018]15NWLR (Pt 1641)38@52, Paras B-C; Shittu v. Fashawe [2005]14NWLR (Pt 946)671 and; Daggash v. Bulama [2004]14NWLR (Pt 892)144@228, Para G. In view, of this, I discountenance Exhibits V-V4 in the assessment of evidence led for being uncertified public documents and are thus expunged from the records of the Court.

 

49. Claimant on his part has admitted that he is in possession of one of the vehicles and stated the where about of the other four vehicles in support of which he tendered and relied on Exhibits P1, P10 which is a handwritten note by one Abdullahi Mustapha who the Claimant claimed is the automobile Engineer of the defendant.  I am mindful of the answer given by DW while under cross examination on the 9^th day of December 2021 in respect of the vehicles thus;

Q: I put it to you that all the documents you mentioned in paragraph 38 of your sworn deposition are in possession of ICPC except Toyota Land cruiser V8 2016.

A: Yes

It is settled law that evidence elicited from a party’s witness under cross examination which goes on to support the case of the adverse party is just as potent as evidence elicited examination-in-chief and admissible in support of the case of such party. See the following cases; State v. Yahaya [2019]LPELR-47611(SC)1@40-41, Para D; Hassan & Anor v. I.N.EC. & Ors [2019]LPELR-49207(CA)16-17, Paras E-E; Akomolafe & Anor v. Guardian Press Ltd & Ors [2010]LPELR-366(SC)1@15-16, Para C. Thus, Claimant was right to rely on same as he did in paragraph 4.85 of the Claimant’s final written address. Thus, it is clear that the said vehicles except the one Claimant admitted to be in his possession in line with Exhibit P1 are in possession of ICPC. I cannot therefore find how Claimant can be ordered to return the four vehicles which have been shown not to be in his possession. This equally answers relief ‘l’ in the main action.

50. Now to the Toyota Land Cruiser V8 which Claimant admitted to be in his possession. It is Claimant’s contention that the Governing Council in line with its powers to formulate policies for the Scheme under Section 7(2) of the NHIS Act enabled him to retain his official vehicle as part of his exit package. I have earlier in this judgment stated that I am in agreement with the defendant that the Governing Council acted ultra vires its powers by fixing the said annualized Exit package for Claimant while not being his appointor and outside what the letter of appointment has given to him. I therefore do not find any reason why I should find that Claimant should retain the said Toyota Land Cruiser V8 in view of my earlier finding in this judgment. In sum I hold that Claimant is not entitled to the retention of the said Toyota Landcruiser V8 This equally answers relief ‘f’ in the main claim.

 

51. Let me address the issue of the alleged unretired advance in the sum of N1,241,160 (One Million, two hundred and forty-one thousand, one hundred and sixty naira) to be in possession of Claimant.  As stated supra in this judgment, the onus is always on the counterclaimant to prove his assertions of the balance of probabilities. The defendant who would want this Court to believe that Claimant is in possession of N1,241,160 failed to place any cogent or credible evidence before the Court. In fact DW admitted thus that there is no document to show the indebtedness of Claimant/defendant to counter-claim thus while under cross examination;

            Q: I put it to you that the Claimant is not indebted to the defendant in any way.

            A: I do not have any document to show.

As reasoned supra, evidence elicited from a party’s witness under cross examination which goes on to support the case of the adverse party is just as potent as evidence elicited examination-in-chief and admissible and can be relied upon in support of the case of such party. See the following cases; State v. Yahaya, supra; Hassan & Anor v. I.N.EC. & Ors, supra; Akomolafe & Anor v. Guardian Press Ltd & Ors, supra. Thus, Claimant was right to rely on same as he did in paragraph 4.89 of the final written address. Thus, I do not believe the assertion of the defendant/counterclaimant that Claimant/defendant to counterclaim is indebted to it in an unremitted advance sum of N1,241,160 (One Million, two hundred and forty-one thousand, one hundred and sixty naira).  In view of the above, and all reasoned supra, I find that the Counter claim succeeds only to the extent that Claimant is to return the Toyota Landcruiser V8 2016 Model with Registration of Number 12Y 01 FG which he has admitted to be in his possession. I so find and hold.

52. I cannot conclude this judgment without saying a word or more on the assertion of the defendant at paragraph 33 of the consequential amended statement of defence filed on the 9^th November, 2021 that the defendant shall contend that claimant has no locus standi to institute or maintain this action. I find that the defendant failed to canvass any argument in support of this averment either in its final written address or reply on points of law to the claimant’s final address. It is the law that where a party fails or refuses to advance any argument in support of objection or points of law raised is deemed to have abandoned same. It is in the light of this that I discountenance paragraph 33 of the consequential amended statement of defence as same is deemed abandoned by the defendant.  I so find and hold.

 

53. For the avoidance of doubt, I declare and order as follows;

1.      That the Claimant is entitled to be paid the sum of N5,777,595 as his severance gratuity.

2.      That the claimant is entitled to be paid the sum of N3,851,730.00 as general damages.

3.      That the defendant’s counter claims failed, except the return of the Toyota Land Cruiser V8, 2016 Model which is in possession of the claimant.

4.      That the judgment sum is to be complied with within 14 days of this judgment, failing which is to attract 10% interest per annum.   

                       

 

Judgment is accordingly entered.

 

 

                                                           

                                                                        Hon. Justice Oyebiola Oyewumi

                                                                                    Presiding Judge