BACK

NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

 

5TH DAY OF AUGUST, 2024                                                               

SUIT NO. NICN/CA/50/2021

BETWEEN:

MR. JOSEPH UDUMO ………………………………………………………………………………… CLAIMANT

AND

1.    GOVERNMENT OF CROSS RIVER STATE                                     

2.    ATTORNEY-GENERAL OF CROSS RIVER STATE  …………………………………  DEFENDANTS

      JUDGMENT.

1.      The claimant in this suit is a retiree, who was employed and served in pensionable service of the 1st defendant from 1982 to 2018. The claimant retired after attainment of 60 years of age in accordance with sections 3.21, 21.6 and 12.12.1(iii) of the college of health technology staff handbook and conditions of service, which provides that non-academic principal officers, registrar and bursar of the college shall retire on attaining the mandatory retirement age of 60 years, irrespective of number of years in service. The claimant was born on 1st June 1958 and attained 60 years on 1/6/2018.

2.      The claimant started his career in the public service of Cross River State as a master grade ii on salary grade level 07 step 2, on 1/9/1982 by a letter dated 5/9/1982. The appointment was confirmed by letter dated 28/9/1984, but wrongly dated 28/9/1994, captioned ‘confirmation of teaching appointment made to be with effect 1/9/1984.

3.      Vide letter dated 6/11/1991, the claimant was again offered a temporary appointment by the defendant in the polytechnic Calabar, which was later renamed ‘Cross River State University of Technology. The University now renamed and known as ‘University of Cross River State’’. By another letter dated 1/9/1993, the claimant was appointed as Accountant ii with effect from 18/11/1991. The claimant was due his hard-work given permanent appointment as per letter with reference; TPC/R/S/109. The claimant permanent appointment was confirmed vide letter dated 29/3/1994, with reference TPC/P/CON/SNR/114/25.

4.      The claimant was vide letter dated 28/5/2007, appointed as the Bursar of the College of Health Technology on salary grade level HATISS 14 step 09. The appointment was confirmed with effect from 1/6/2007 by letter dated 6/7/2009. The confirmation was done without prejudice to claimant’s previous service with government of Cross River State, the 1st defendant in this case. The claimant was vide letter reference MHCT/ADM/448/VOL.II/231 dated 18/10/2011, was informed of his migration from CONTISS 14 to CONTISS 15 notionally with effect from 1/1/2009 but with financial benefits from 2/10/2011. Vide the letter dated 13/2/2012, reference no. CRUTECH/REG/SE/SM/VOL.1/075/68, the Cross River University of Technology (former Polytechnic Calabar) forwarded the claimant’s record of services to the College of Health Technology for further necessary action. Vide letter dated 14/6/2012, reference no. GO/ES/CR/CP/53710/43, the defendants gave approval for the merging of the claimant’s service for the purpose of payment of pension rights. Which means claimant’s pension service start from National Youth Service Corps’ to the date of retirement of the claimant from service. The claimant was given approval for retirement from pensionable service with effect from 1/6/2018. In a letter dated 13/12/2018, the Accountant General conveyed approval to sub-treasury for payment of claimant’s gratuity and accordingly gave authority to the sub-treasury to effect the payment to the claimant of the sum of N6,652,221.98 being annual pension allowance and N24,945,832.44 being gratuity due to and owed the claimant upon his retirement from the public service of Cross River State with effect from 31/5/2018. The Accountant General further requested sub-treasury to arrange recovery of a debt of N38,794.00  only from the claimant being the balance of HOS computer which was given to the claimant by the office of the Head of Service, but for which claimant had not completed payment before his retirement from service.

5.      The defendants subsequently commenced the payment of claimant’s pension allowance of the sum of N554,351.83 per month with effect from June, 2018. However, they have to date not paid gratuity. The claimant was paid pension allowance for 14 months only i.e up to July, 2019, that is total sum of N1,663,055.49. When defendants resumed payment of claimant’s pension due in November, 2019, they did not pay the arrears for the Months of August to October, 2019, they also altered the allowance to the disadvantage by paying grossly reduced sum of N238,392.00 only every month. The defendants have been short paying the claimant by a sum of N315,959.83 every month from November, 2019.as at the time of filing this suit claimant had been short paid for 25 months amounting to the sum of N7,898,995.75, with likelihood of this sums increasing every subsequent month, if defendants fails to immediately correct the error.

6.      The alteration of claimant’s pension was without prior notification and has despite several repeated request, refused to offer any explanation to the claimant for the reduction in payment of his pension. The defendants have not only refused to pay claimant his correct pension allowance, but have also withheld the payment to him of his gratuity in the sum of N24,945,832.44. The claimant had written letter of demanding payment of gratuity and balance of his pension, but claimant treated his letter of demand with levity and contempt in that they never replied the letter nor paid the gratuity and arrears and balance of claimant’s pension allowance.

7.      Vide paragraph 27 of the amended statement of facts, the claimant instituted this suit against the defendants praying for:-

1.      The sum of N24,945,832.44 (TWENTY-FOUR MILLION, NINE HUNDRED AND FORTY-FIVE THOUSAND, EIGHT HUNDRED AND THIRTY-TWO NAIRA, FORTY-FOUR KOBO) only being claimant’s gratuity as already computed by the defendants, pending payment.

2.      The sum of N1,663,055.49 (ONE MILLION, SIX HUNDRED AND SIXTY-THREE THOUSAND, FIFTY-FIVE NAIRA, FORTY-NINE KOBO) being the claimant’s pension allowance which the defendants omitted to pay him in the months of August, September, and October, 2019.

3.      The sum of N315,959.83 (THREE HUNDRED AND FIFTEEN THOUSAND, NINE HUNDRED AND FIFTY-NINE NAIRA, EIGHTY-THREE KOBO) for every month beginning from the month of November, 2019 to the date of judgment in this action, and afterwards to the date of the satisfaction of the judgment, being the short-payment on the claimant’s pension allowance since November, 2019, when the defendants began paying the claimant the sum of N238,392.00 monthly instead of N554,351.83 which they had earlier computed and began paying the claimant as his monthly pension allowance.

4.      The sum of N3,000,000.00 (THREE MILLION NAIRA) cost of this action for legal services rendered by claimant’s solicitors (Okoi Eteng & Co.) in favour of the claimant due to the conduct of the defendants.

5.      Interest at the rate of 10% per annum from June, 2018 till the date of judgment and thereafter 10% per annum until the entire judgment debt is completely liquidated.

8.      Upon receipt of the amended originating processes commencing this suit, the defendants filed statement of defence and counter claim. An amended statement of defence with a counter claim was filed by the defendants wherein they counterclaim against the claimant as follows:

1.      A Declaration that the Claimant ceased to be a Bursar of the College of Health Technology, Calabar in 2016 when the Governing Council of the College of Health Technology, Calabar relieved the Claimant of his appointment and other Principal Officers who were found to have stayed in office beyond the prescribed term.

2.      A Declaration that the computation of the Claimant’s pension and gratuity based on his rank as Bursar upon retirement in 2018 and on an amount above what the Claimant earned as salary before retirement as conveyed in the Authority for Payment of Pension/Gratuity/Annual Allowance issued by the Office of the Accountant General to the Claimant dated 13th December, 2018 was issued in error.

3.      A Declaration that the pension amount to which the Claimant is entitled as monthly pension is N251,302.40 (Two Hundred and Fifty One Thousand, Three hundred and Two Naira, Forty Kobo).

4.      An order directing the Claimant to refund to the Defendants/Counter-Claimants the sum of N303,229.43 (Three Hundred and Three Thousand Two Hundred and Twenty Nine Naira, Forty Three Kobo) only being the difference between the sum of N554,531.83 (Five Hundred and Fifty Four Thousand, Five Hundred and Thirty One Naira, Eighty Three Kobo) paid to the Claimant/Defendant to Counter-Claim in the month of January, 2019 and the Claimant/Defendant to Counter-Claim actual monthly pension allowance of N251,302.40 (Two Hundred and Fifty One Thousand, Three Hundred and Two Naira, Forty Kobo).

5.      An order directing the Claimant to refund to the Defendants/Counter-Claimants the sum of N519,865.56 x 6 amounting to N3,119,193.36 (Three Million, One Hundred and Nineteen Thousand, One Hundred and Ninety Three Naira, Thirty Six Kobo) only being the difference between the sum of N771,167.96 paid to the Claimant for the Months of February, March, April, May, June and July, 2019 and the Claimant’s actual monthly pension allowance of N251,302.40 (Two Hundred and Fifty One Thousand, Three Hundred and Two Naira, Forty Kobo).

6.      The sum of N30,000,000.00 as general damages.

7.      Interest on the judgment sum at the rate of 10% per annum from the date of judgment until the entire judgment sum is liquidated.

9.      For the defendant the claimant is a retiree who worked in the pensionable service of the 1st defendant from 1981 to 2018. According to the defendants the claimant was appointed Bursar and confirmed by the defendants. According to the defendants the claimant upon retirement in 2018 was enrolled into the state pension payroll in July, 2018.

10.  The appointment of the claimant to the position of Bursar was for a fixed term of 4 years subject to maximum of two terms only. The claimant was appointed Bursar in May, 2007 and ceased to be a Bursar of the College of Health Technology in May, 2011 and if he was seeing reappointment and was successful (which was not the case), his tenure as Bursar would have expired in May, 2015. The claimant took advantage of absence of Governing council of the college at the time his term of 4 years expired in May, 2011 and continued to occupy the position of Bursar even after his term as prescribed in the college law and the staff handbook and condition of service of the college of Health Technology had expired. When governing council of the college was inaugurated in 2016, the council relieved the claimant of his appointment and other principal officers who were found to have stayed in office beyond the prescribed term. Upon termination of his appointment as Bursar, the claimant reverted back to the position he was and/or ought to have been before his appointment as Bursar.

11.  The computation of claimant’s gratuity and pension emoluments amounting to N24,945,832.44 and N6,652,221.98, respectively was done in error. As the claimant’s annual salary between October, 2016 and June, 2018, when he retired from service was N4,699,399.32, while his monthly earnings was N391,616.61 based on 70% CONTISS 2 salary structure. The pension amount due to the claimant as at July, 2018 when he was enrolled on the state pension payroll was N251,302.40 only and same was paid to him for the months of July, August and September, 2018, respectively. It is the case of the defendants that due to computation error, the claimant was paid the sum of N279,224.89 as pension for the months of October – December, 2018 respectively. The defendant aver that the computation error persisted, and the claimant was paid the sum of N554,531.83 as pension in the month of January, 2019. The computation error reached its peak and the claimant was paid the sum of N771,167.96 as pension for the months of February, March, April, May, June and July, 2019.

12.  The defendants averred that due to the computation error, the governor of Cross River State observed that the wage bill of the state was over bloated in 2019 and the implementation of the college of Health Technology CONPACASS/CONTEDISS salary structure was identified as responsible. This led to the governor faulting the process and directing that the salary structure be reversed to 70% CONTISS 2 salary structure in July, 2019. A verification exercise was conducted and all verified pensioners were returned to the state pension payroll and paid correct pension amount. Upon rectification of the errors in the payroll, the claimant’s pension stood at N240,000.00 only and same was paid to the claimant from the month of November, 2019. The claimant having retired in June, 2018 when the college of health technology salary structure was 70% of CONTISS 2, the amounts clamed as pension and gratuity by the claimant is not the accurate figure to which the claimant is entitled. The authority for payment of pension/gratuity/annul allowance issued by office of the Accountant General to the claimant dated 13/12/2018 was issued in error. The 1st defendant due to paucity of fund has not been able to pay gratuity to its retired civil/public servants since year 2014. In October 2021, organised labour embarked on strike demand payments of gratuity owed retirees of the state. To resolve the industrial dispute with organised labour the government reached an agreement in November, 2021. The agreement was that gratuity will be paid according to the period of retirement from service. i.e gratuities will be paid beginning from the year 2014 till all the retires are paid. The claimant’s gratuity was not withheld he will be paid when the turn of retirees who retired in 2018 comes, he will be paid, after proper computation has been done to determine the actual sum the claimant is entitled to as gratuity, when actual computation is done.

AMENDED REPLY TO STATEMENT OF DEFENCE AND DEFENCE TO COUNTER CLAIM.

13.  In reply the claimant denied that the appointment to the position of Bursar in the College of Health Technology is for a fixed term of 4 years subject to a maximum of two terms only. As his appointment as Bursar in the College of Health  Technology, Calabar, was not subject to provision of staff handbook and conditions of service 2017. The staff handbook was not up to the claimant’s retirement from service, approved by His Excellency the Governor and had not become operational as to affect his entitlements at retirement. The unapproved staff handbook and conditions of service 2017, did not have the retrospective effect of causing the termination of his appointment as Bursar of the College of either in 2011 or 2015. For strange reason, no provision in the said unapproved staff handbook and conditions of service specifically provided for the termination of the appointments of principal officers of the college who had before 2017, served on their respective position for more than eight years. The claimant avers that since his appointment as Bursar of the college in 2007 and up to the date of his retirement in 2018, there was no year in which there was no governing council of the college as to justify or substantiate the defendants’ allegation that the claimant took advantage of the absence of such council. The claimant avers that his appointment as Bursar subsisted until his retirement in 2018 and in line with the college of health technology law and staff handbook and condition of service 2010 already pleaded in paragraph 1 of the statement of facts. The said staff handbook and conditions of service was approved by the governor on the 18/8/2010 upon letters written by head of service and commissioner for health respectively dated 23/7/2010 and 29/7/2010.

14.  The purported termination of claimant’s appointment in 2016 after inauguration of a governing council of the college on ground of having served in the position of bursar for eight years was illegal, null and void for which reason he remained in the position and was paid salary as such until his retirement in 2018.

15.  The claimant denied that computation of his gratuity and pension emoluments amounting to N24,945,832.44 and N6,652,221,98, respectively was done in error.

16.  The claimant avers that on 21/9/2017 vide the minutes of His Excellency, the Deputy Governor on a letter addressed to him by the college of health technology and titled ‘RE: REQUEST FOR APPROVAL OF COLLEGE OF HEALTH TECHNOLOGY HARMONIZED SALARY STRUCTURE CONPCCASS/CONTEDISS salary structure for both academic and non-academic staff of the college with effect from 1/1/2018, which was before the claimant’s retirement.

17.  Vide letter dated 13/4/2018, Governor’s approval of Harmonized salary structure with a request to implement the same with effect from January, 2018. By the implementation the claimant’s salary, just as that of the Registrar, was with effect from 1/1/2018, N773,747.40 not N391,616.81, as alleged by the defendants. Also, the claimant’s correct pension allowance, on the basis of his salary at retirement, is N554,351.83 and not N251,302.40 as alleged by the defendants.

18.  The claimant avers that the amounts of N6,652,221.98 and N24,945,832.44 computed by the defendants and stated on their letter with reference AG/PEN/24B/VOL.1/001, dated 13/12/2018 as his pension and gratuity respectively, are correct due and payable to him. The said computation was not in any way in error. The claimant maintained that he ceased to be Bursar of the College of Health Technology, Calabar, in 2018 when he retired, and not in 2016, as erroneously asserted by the defendants. The claimant asserts that the correct computation of his gratuity and pension allowance is as contained in the letter by the Accountant General with reference AG/PEN/24B/VOL1/001, dated the 13/12/2018, addressed to the sub-treasurer, Sub-Treasury, Calabar already pleaded in the statement of facts. The claim of the defendants on error on computation is intended only to deny him his due entitlement.

19.  By July, 2019, when the governor allegedly directed that the CONPCASS/CONTEDISS salary structure be reversed to 70% the claimant was already a pensioner and was not paid on a salary structure but on a pension structure which could only be adjusted in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and not by the whims of a governor. The claimant denies that the governor directed that his pension allowance be reduced by reason of the governor observing that the wage bills of the state were over bloated. As the claimant has no hand in whatsoever in the wage bill being over bloated as to entitle the defendants to adjust the claimant’s pension allowance by a reduction of same. When the claimant discovered that the defendants have reduced his pension allowance he wrote them several letters to offer explanation for their action but they ignored his requests, only to come to court to claim that they acted on the directive of the governor. The defendants’ claim of paucity of funds is admission of their indebtedness to the claimant of the amounts claimed in the complaint.

   THE SUBMISSION OF THE DEFENDANTS:

20.  In oral adumbration before the court Isaac A, Ashindoriating, Esq; Senior State Counsel ii, Ministry of Justice, appearing for the defendants adopted the defendants’ final written address franked by him as his argument. Counsel urged the court to dismiss the clam of the claimant and grant the counter claim. In the final written address twin issues were formulated for determination. They are:-

1.      Whether from the evidence, facts and circumstances of this case the claimant is entitled to all the reliefs sought in this suit.

2.      Whether from the facts, and evidence in this case, the defendants/counter-claimants have proved their entitlement to the reliefs claimed in their counter-claim.

ARGUMENT.

21.  Counsel started by objecting to the admissibility of exhibits G, H, J, K, U, V, W, X and Y. counsel submitted that the defendants have indicated that they would object to the admissibility of these documents. The ground of objection is that these documents are public documents which by virtue of section 102 of the Evidence Act, 2011 as amended, all these documents are uncertified.

22.  By the provisions of section 89(e) and (f) and section 90(1) (c)photocopies are  of the Evidence Act, 2011, as amended, the only admissible secondary evidence of a public document is certified true copy. Counsel supported his submission with the case of Araka v Egbue (2003) LPELR-532(SC), Onwuzurike v Edoziem & Ors (2016) LPELR-26056(SC). In this case exhibits G, H, J, K, U, V, W, X and Y, are uncertified secondary copies of public document and are inadmissible in evidence. Counsel urged the court to uphold the objection on admissibility and expunged the documents from the record of the court.

23.  Issue 1: Whether from the evidence, facts and circumstances of this case the claimant is entitled to all the reliefs sought in this suit. In arguing issue 1, counsel submitted that it is elementary principle of law that the party who approaches the court to enter judgment in his favour on the basis of facts asserted owes and bears the burden of proving those facts to the satisfaction of the court and on the preponderance of evidence. In support of this contention counsel relied on the case of Dickson & Anor v Assamudo (20113) LPELR-20416(CA).

24.  On relief 4 of paragraph 27 of the amended statement of facts claiming the sum of N3,000,000.00 by its nature is a claim for special damages and the law is trite claim for special damages must be specially pleaded, and strictly proved before they can be awarded. Counsel relied on the case of NURT & ORS. v First Continental Insurance Co. Ltd (2019) LPELR-48005(CA)

25.  It is submission of counsel that the claimant failed to place the material particulars of how the professional fees claimed were expended and that mere tendering of the payment receipt exhibit T without the taxed bill of charges of the solicitor particularising the items of charges and sum charged per item, evidence in proof of the payment and of the mode of payment, the receipt issued and other evidence in proof of the bill and payment, does not pass for specific pleading and strict proof. Nwaji v Coastal Services ltd (2004) 18 (Pt.ii) NSCQR 895 at 906. Counsel further submitted the defendants are not party to the agreement to pay the said sum. The Supreme Court has said solicitor fess are unusual claim and difficult to accept in this country. Counsel further relied on Michael v Access bank (2017) LPELR-41981(CA), Guiness Nig. Plvc v Nwoke (2000) 15 NWLR (Pt.689) 135 @ 159.

26.  On 10% interest counsel submitted being pre judgment must be specifically pleaded and proved before it can be granted. On this submission reliance was placed on the case of Idakula v Richadu (2001) FWLR (Pt.14) 2439 @ 2450. It is submitted looking at the pleading and evidence there are no facts based on which interest is claimed or showing claimant’s entitlement to interest. The claimant having not led any evidence on interest is deemed to have abandoned the claim. To support his submission counsel relied on the case of Omodele Ashabieye & 2 Ors v Alhaji Risikatu Lapade & Anor.(2011) 11 NWLR (Pt.1259) 505 @ 534.

27.  Counsel in view of his submission urged the court to resolve issue 1 in favour of the defendant.

28.  Issue 2: Whether from the facts, and evidence in this case, the defendants/counter-claimants have proved their entitlement to the reliefs claimed in their counter-claim.

29.  Counsel submitted that the burden of proof of the counter claim is discharged on preponderance of evidence or on balance of probability. To support this submission counsel relied on sections 131, 132 and 133 of the Evidence Act, 2011, as amended. Counsel specifically commend section 134 of the Evidence Act, 2011, as amended.

30.  Counsel further submitted that it has been established by credible compelling evidence that the claimant/defendant to counter claim was paid the sum of N771,167.96 for the months of February to July, 2019, as shown in exhibit D8 and admitted by the claimant under cross examination on 9/11/2023, an amount above the sum of N554,351.83, which the claimant claim is his pension and in excess of the sum of N251,302.40, the pension the claimant was paid in July, 2018 as shown in exhibit D5. Counsel urged the court to resolve issue 2, in favour of the counter claim.

31.  In concluding his submission counsel urged the court to dismiss the claim of the claimant and grant the counter claim.

        THE SUBMISSION OF THE CLAIMANT.

32.  D. D. Ujong, Esq; counsel for the claimant holding brief of Oki Eteng, Esq; adopted the final written address of the claimant as his argument and urged the court to grant the claim of the claimant and dismiss the counter claim for lacking in merit. In the final written address a single issue was formulated for determination, to wit:

Whether having regards to the evidence before the Court, the Claimant is entitled to the reliefs claimed.

33.  In arguing the sole issue counsel submitted that the issue ought to be resolved in the affirmative and in favour of the claimant because, the claimant has tendered credible and cogent evidence, documentary as well as oral, in proof of his pleadings, in line with the legal principle and the provisions of the Evidence Act that whoever asserts the affirmative of the existence of a fact must proof its existence. The claimant proved the twin issues of his entitlement to the gratuity and pension and how he came by the sums claimed.

34.  Counsel drew the attention of the court to the fact that the defendants have in paragraphs 3 and 4 of their statement of defence and counterclaim and paragraphs 4 and 5 of the written statement on oath of Mr. John A. Nandi, the Deputy Registrar of the College of Health Technology, Calabar who is also the defendants’ sole witness, admitted the material part of the claimant’s case, particularly paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10, 1, 12, 13 and 14 of the claimant’s statement of claim. And, on this, counsel submitted that it is trite and settled law that what is admitted needs no further proof. See Biezan Exclusive Guest House Limited v. Union Homes Savings & Loans Ltd. ((2011) 7 NWLR (Pt. 1246) 246 at 285, paras. C-D per Awotoye, JCA.

35.  Counsel also submitted that the defendants’ witness, under cross-examination by claimant’s counsel, made further admissions which give credence and support to the claimant’s case, and on facts already pleaded by the claimant. Counsel submitted that the law is trite that evidence elicited during cross-examination is potent when the facts supporting such evidence have been pleaded by the party that seeks to rely on it, as in our instant case. In our instant case, the claimant copiously pleaded in paragraphs 15, 16, 17, 18 and 23 of the amended statement of facts that he is entitled to gratuity and pension in the sums of N24,945,832.44 and N6,652,221.98 as computed by the Office of Accountant-General and stated in the letter dated 13th December, 2018 (EXHIBIT “M”). And, when the defendants pleaded in paragraph 13 of their statement of defence and counterclaim that the computation of the claimant’s gratuity and pension emoluments amounting to N24,945,832.44 and N6,652,221.98 was done in error, the claimant responded by filing  an amended reply to statement of defence and defence to counterclaim as well as the claimant’s amended additional written statement on oath in which he stated in paragraphs 9 and 11 respectively that the amounts computed by the defendants and stated in their letter of 13th December, 2018, are his gratuity and pension respectively and that the said computation is not in any way in error.

36.  It is submission of counsel that the claimant having pleaded fact of the correctness of exhibit ‘M’ is entitled to take benefit of the evidence elicited from the defendants witness under cross examination. In support of this contention counsel relied on the case of Makon Engineering & Technical Services Ltd. v. Nwokedinkor (2020) 5 NWLR (Pt. 1716) 187. In Eva Anike Akomolafe & Anor. V. Guardian Press Limited (Printers) & Ors. (2010) LPELR-366(SC), the erudite Law Lord Onnoghen, JSC (as he then was), CJN emeritus, held thus:

“... It is settled law that evidence elicited from a party or his witness(es) under cross examination which goes to support the case or defence of the party cross examining, constitutes evidence in support of the case or defence of that party, if at the end of the day, he relies on the evidence elicited from the cross examination in establishing his case or defence...”

37.  Counsel further submitted that apart from these admissions of the defendants, they also failed to lead credible and cogent evidence in prove of their counterclaim. For example, the defendants did not produce or tender any documentary evidence to prove their claim that the claimant is not entitled to the amounts stated in exhibit “M”. They did not show that the Accountant-General recomputed the amounts stated in exhibit “M”.

38.  It is submitted that the law in civil cases is that, the proof of a case is on the party who asserts a fact and that the standard of proof is on the preponderance of evidence or on the balance of probabilities. In support of this submission counsel relied on the cases of Mrs. Rosemary Onwusor vs. Yahi Maina & Ors. (2021) Legalpedia (CA) 11919; Longe vs. CBN (2006)3 NWLR (Pt. 967) 228; Itauma  vs. Akpa-Ime (2000) 7 SC (Pt. II) 24. Counsel submitted that in the instant case, the Claimant has discharged this burden.

39.  Counsel posited that the duty of this Honourable Court at this stage of the case is to examine the claims of the parties in line with the evidence adduced, to see who between the parties has been able to prove the claims sought in this case.

40.  According to counsel from the facts, even as admitted by the defendants, there is no dispute that the claimant was employed and worked in the pensionable service of the 1st defendant, from 1982 to 2018 when he retired at the mandatory retirement age of 60 years of age, in accordance with sections 3.21.21.6 and 12.2.1(iii) of College of Health Technology Staff Handbook and Conditions of Service which provides that non-academic principal officers (Registrar and Bursar) of the College of Health Technology shall compulsorily retire on attaining the mandatory retirement age of 60 years, irrespective of number of years in service.

41.  Counsel also submitted that there is no dispute that following the defendants’ approval of the claimant’s retirement in 2018, they issued exhibit “M”, the letter of Authority For Payment of Pension/Gratuity/ Annual Allowance dated 13th December, 2018 written by the Office of the Accountant-General Pensions and Gratuities Section addressed to the Sub-Treasurer, Sub-Treasury, Calabar to pay the claimant’s gratuity and pension to him. There is also no dispute that after the defendants commenced payment of the pension to the claimant in line with exhibit “M”, they, in the months of August to September, 2019 refused to pay him the pension, amounting to the sum of N1,663,055.49. Also, by the time in November, 2019 when the defendants resumed payment of the pension, they had altered and or reduced it to the detriment of the claimant and without notice or recourse to him, by the sum of N315,959.83. Therefore, from the month of November, 2019 to date, a period of 53 months as at the end of March, 2024, the defendants have owed the claimant the sum of N16,745,870.99, being the short-payment on pension allowance for the 53 months. Counsel continued his submission that there is also no dispute that the defendants have not paid the claimant his gratuity in the sum of N24,945,832.44.

42.  Counsel submitted when these three heads of the defendants’ indebtedness to the claimant are added together, the total indebtedness on the gratuity and arrears of pension stands at N43,354,758.92 (Forty-three Million, Three Hundred and Fifty-Four Thousand, Ninety-two Kobo), excluding interest on the debt.

43.  The claimant also claims in this action, the sum of N3,000,000.00 (Three Million Naira) cost of this action for legal services rendered by claimant’s solicitors (Okoi Eteng & Co.) in favour of the claimant due to the conduct of the defendants as well as interest at the rate of 10% per annum from June, 2018 till the date of judgment and thereafter 10% per annum until the entire judgment debt is completely liquidated.

44.  On the claim for the sum of N3,000,000.00 cost of this action for legal services rendered to the claimant by his lawyers, counsel submitted that it is trite law that a successful party is entitled to be indemnified for costs of litigation which includes charges incurred by the parties in the prosecution of their cases. It is akin to claim for special damages. Once the solicitor’s fees are pleaded and the amount is not unreasonable and it is provable, usually by receipt, such a claim can be maintainable in favour of the claimant. This was the decision of the Court of Appeal in the case of Naude v. Simon (2014) All FWLR (Pt. 753) 1878 at 1905, paras. A-B. See also International Offshore Construction Ltd & 3 Ors. V. Shoreline Liftboats Nig. Ltd (2003) 16 NWLR (Pt. 845) 157 at 179.

45.  In the case of Lonestar Drilling Nig. Ltd v. New Genesis Executive Security Ltd (2011) LPELR-4437(CA) page 11, the Court held by Ejembi Eko, JCA thus:

“It is abundantly clear from the foregoing that costs fall into two broad species, namely the necessary expenses in the proceedings made by a party and costs in terms of the litigant’s “time and effort in coming to court”. The former category includes filing fees, and solicitor’s fees. This category belongs to the realm akin to special damages. They are easily ascertainable by producing for instance receipts. That is why the Rules classify them as expenses. The other category which the Rules allowed the litigant to be compensated for is the litigant’s “time and effort in coming to court”. The court, under this category usually takes into account the number of appearances of the litigant, and his counsel in court.”   

46.  Counsel submitted that having regard to the above-cited cases, it is no more in doubt that damages for cost, which include pocket expenses, if reasonably incurred are usually paid by courts if properly pleaded and proved. In our instant case, while in paragraphs 22 and 24 of the statement of facts and 23 and 25 of his written statement on oath the claimant chronicled the many efforts he made to avoid going to court on this matter, in paragraph 26 of the statement of facts and 27 of his written statement on oath he pleaded and testified on the lawyer’s letter of acknowledgement of receipt of payment of a part of the professional fees charged for prosecuting this case. The said letter of acknowledgment was admitted in evidence and marked as Exhibit “T”.

47.  On the pre-judgment interest, counsel submitted that in quite a number of cases, Nigerian courts, including the Supreme Court, have held that a court can award pre-judgment interest to a successful party even where such party did not plead or adduce evidence to prove his entitlement to pre-judgment interest. The reasoning of those lines of cases is that interest on the outstanding sum naturally accrues from the failure to pay the sum over a period of time, thereby depriving the aggrieved party of the use and enjoyment of the sum involved. See Nigerian Ports Authority v. Aminu Ibrahim & Co. & Anor (2018) LPELR-44464(SC). In its judgment, the Supreme  Court reiterated the general principle of law regarding pre-judgment interest to the effect that a party who is claiming pre-judgment interest must plead and prove  his/her entitlement to such interest which must be based on either statute, contract between the parties, mercantile custom or on principle of equity. The Supreme Court, however, further held that a court can still grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party, even in a situation where such party did not plead or prove  his/her entitlement to pre-judgment interest. According to the Court, a party’s entitlement to pre-judgment interest naturally accrues from the failure or refusal to pay the amount involved over a long period of time, thereby depriving the party from the use of and or enjoyment of his/her money. In the cases where the court awarded pre-judgment interest, only 10% per annum interest was awarded.

48.  Counsel submitted that when 10 per cent per annum pre-judgment interest of 4 years since 2018 is applied to the debt of N43,354,758.92, the total indebtedness due to the claimant from the defendants will stand at N60,696,662.48 (Sixty Million, Six Hundred and Ninety-six Thousand, Six Hundred and Sixty-two Naira, Forty-eight Kobo).

49.  In concluding his submission counsel submitted on behalf of the claimant that, on the basis of the evidence tendered before this Honourable Court, he has proved his entitlement to all the reliefs claimed in this action. On the part of the defendants/counterclaimants, however, they have woefully failed to prove their counter-claim. Worse still, the basis of the counterclaim was removed by the evidence of their witness under cross-examination.

50.  On the first relief sought in the counterclaim, the defendants/counterclaimants’ witness, DW1 not only admitted that he is aware that the claimant was paid salary as Bursar up to June, 2018 when he retired, but that there is no law which limited the claimant’s employment to 4 years and maximum of 2 terms. Moreover, the claimant has in paragraphs 4 and 5 of the amended reply to statement of defence and defence to counterclaim as well as paragraphs 6 and 7 of the claimant’s additional written statement on oath, stated that the purported termination of his appointment in 2016 after a Governing Council of the College was inaugurated on the ground of having served in the position of Bursar for eight (8) years, was illegal, null and void, for which reason he remained in the position and was paid salary as such until his retirement in 2018. The claimant also made reference to a letter dated 16th August, 2016, written by the 2nd defendant herein and addressed to the Chairman of the Governing Council, College of Health Technology, Calabar, (EXHIBIT “W”, wherein the defendants conceded the fact that the said termination was illegal, null and void.

51.  On the 2nd, 3rd, 4th, and 5th reliefs sought on the counterclaim, the defendants/counterclaimants’ witness (DW1) dealt them a deadly blow, indeed, an own goal, when upon the claimant’s counsel showing him a copy of exhibit “M” under cross examination, he stated categorically that the computation of the claimant’s entitlement in exhibit ‘M” is not in error.

52.  The defendants/counterclaimants having failed to prove their claim on the 1st to 5th reliefs claimed cannot be entitled to the claim for damages and interest in the 6th and 7th reliefs of the counterclaim. Counsel urged the court to accordingly enter judgment in favour of the claimant in terms of the reliefs claimed.

    COURT’S DECISION:

53.  I have considered the processes filed in this case, the evidence led at the trial and the written and oral submission of counsel for the parties.

54.  To my mind this is a straight forward case wherein the claimant is complaining that upon his retirement from service, the defendants begun payment of his pension for 14 months and suddenly stopped without any explanation and when payment of the claimant’s pension by the defendants was resumed the months skipped were not paid. The claimant complained, but, no response from the defendants. Even when the payment resumed the defendants short paid the claimant on monthly basis up to date. Thus, why the claimant instituted this suit to recover his arrears of unpaid pension, shortfall and his gratuity which the defendants have failed to pay despite his complaint.

55.  In their reaction to the claimant’s suit, the defendants attributed the stoppage of payment of the claimant’s pension to discovery of computation error. It is the case of the defendants that between October, 2016 and June, 2018 when the claimant retired from service his annual salary was N4,699,399.32, while his monthly salary earnings was N391,616.61. The defendants further stated as at July, 2018 when claimant was enrolled on state pension payroll was N251,302.40 only and same was paid to him for the months of July, August and September. But, due to computation error he was paid NN279,224.89 as pension for the months of October – December, 2018, respectively. The computation error persisted and the claimant was paid the sum of N554,531.83 as pension for the month of February, March, April, May, June and July, 2019. The defendants are also counter-claiming for refund of alleged overpayment made to the claimant’s pension by the defendants, as a result of computation error.

56.  In his response, the claimant has debunked the defendants’ claim of any error in computation of his pension and gratuity. He further stated that approval was given for implementation of harmonized salary structure with effect from 1/1.2018 and his salary was N773,747.40 and not N391,616.61, as alleged by the defendants. He also stated that his correct pension allowance is N554,351.83 and not N251,302.40 as alleged by the defendants. His pension and gratuity as per exhibit M dated 13/12/2018 are correct due and payable to him. The claimant also stated that as at July, 2019, when the Governor directed that the CONPCASS/CONTEDISS salary structure used to compute his pension and gratuity, be reversed to 70% CONTISS 2 salary structure, he was already a pensioner and not paid on a salary structure but on a pension structure which could only be adjusted in accordance with the provisions of the constitution and not on whims an caprices of the governor.

57.  Before delving into the determination of the claim and counter claim before the court, I shall endeavour to thrash out the objection of counsel for the defendants to the admissibility of exhibits G, H, J, K, U, V, W, X and Y. According to counsel these exhibits are photo copies of public documents that require certification and having not been certified counsel urged the court to expunge them from the record of the court.

58.  It is clear apart from exhibit G all the other documents being objected to are photo copies and by virtue of section 102 they are public documents as they are documents forming the acts or records of public officers; the admissibility of such are therefore regulated by Section 91(a) of the Evidence Act, which requires proof by certified true copies. See the cases of Witt & Busch Ltd. v. Godwill & Trust Inv. Ltd. (2004) 8 NWLR (Pt.874) 174 at 203 and Lambert v. Nigerian Navy (2006) 7 NWLR (Pt.980) 514 at 545-546, Tabik Investment limited v GTB Plc (2011) NWLR (Pt.1276) 240.

59.  It is also the law that the court has the power to expunge them from its record as exhibits, or discountenance same in its judgment. See the case of Okafor v. Okpala (1995) 1 NWLR (Pt. 374) 749 at 758 per Achike J.C.A. (as he then was) where this Court said: 

a.       "It is a matter of common sense and good practice, for a trial judge who had wrongly admitted certain evidence and on further consideration of the controversial evidence to expunge it in limine from the record where he is properly addressed on the issue, if he is satisfied that such evidence was erroneously admitted." 

60.  See also Abdullahi v. Mili. Administrator of Kaduna State (2004) 5 NWLR (Pt.866) 232 at 250. Similarly in Eghobamien v. Federal Mortgage Bank Nig. (2002) 17 NWLR (Pt.797) 488 at P. 500, the Apex Court per Mohammed J.S.C. opined thus: 

a.       "I do not have to repeat the clear provision of the law that a Court of law can only determine an issue on legally admissible evidence. Courts have no discretion to act on evidence made inadmissible by the express provision of a statute even with the consent of the parties". 

61.  Also in the case of I.B.W.A. vs. Imano Ltd. (2001) 3 SCNJ 160 at 177 Iguh J.S.C. reiterated the same point and said: 

a.       "It cannot be over-emphasized that a Court of law is expected in all proceedings between it to admit and act only on legal evidence. Accordingly where a trial Court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So, too if a document is unlawfully received in evidence in the trial Court, an Appellate Court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence". 

62.  See also Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65 at 119 on the same principle of law as enunciated.

63.  However, I wish to point out here that the general provision regarding admissibility is not absolute, as the law in certain situation has permitted this court being a specialized court to in deserving cases depart from the provisions of the evidence Act in the interest of justice. See section 12(2)(b) of the National Industrial Court Act, 2006.

64.  As pointed out there is no contest that the document being objected to are photocopies of public documents, but a cursory look at the exhibits will show that these documents are documents belonging to the defendants and there is nowhere the authenticity of the documents was questioned, in view of this interest of justice is very much in place to make the court not to expunged them from its record.

65.  Having disposed of the preliminary objection I shall now turn to substantive claim of the claimant and the counterclaim of the defendants/claimants to counterclaim.

66.  The main grouse of the claimant is that he served the defendants from 1981 to 2018 and retired from service after attainment of 60 years of age on salary CONTISS 15 notionally with effect from 1/1/2009 but with financial benefits from 2/10/2011, as per exhibit I. The claimant exit the pensionable services of the defendants with effect from 1/6/2018 as approved vide letter dated 11/10/2018 exhibit L. Consequent upon approval of claimant’s retirement, the Accountant General computed claimants entitlement and conveyed approval to sub-treasurer for payment of claimant’s gratuity and accordingly gave authority to the sub-treasury to effect the payment to the claimant of the sum of N6,652,221.98 being annual pension allowance and N24,945,832.44 being gratuity due to and owed the claimant upon his retirement from the public service of Cross River State with effect from 31/5/2018. See exhibit M. The defendants subsequently commenced the payment of claimant’s pension allowance of the sum of N554,351.83 per month with effect from June, 2018. However, they have to date not paid gratuity. The claimant was paid pension allowance for 14 months only i.e up to July, 2019, that is total sum of N1,663,055.49. When defendants resumed payment of claimant’s pension due in November, 2019, they did not pay the arrears for the Months of August to October, 2019, they also altered the allowance to the disadvantage by paying grossly reduced sum of N238,392.00 only every month. The defendants have been short paying the claimant by a sum of N315,959.83 every month from November, 2019. As at the time of filing this suit claimant had been short paid for 25 months amounting to the sum of N7,898,995.75, with likelihood of this sums increasing every subsequent month, if defendants fails to immediately correct the error.

67.  The defendants have not only refused to pay claimant his correct pension allowance, but have also withheld the payment to him of his gratuity in the sum of N24,945,832.44. The claimant had written letters demanding payment of his gratuity and balance of his pension, but, the defendants have treated the claimant’s demands with levity and contempt in that they never replied the letters nor paid the gratuity and arrears and balance of claimant’s pension allowance.

68.  The defendants in their reaction denied the claim of the claimant in respect of pension, but, they admitted not paying the claimant his gratuity. The defendants attributed the stoppage of payment of claimant’s pension to computation error, as per exhibit M issued on 13/12/2018, by the Accountant General. As the claimant’s annual salary between October, 2016 and June, 2018, when he retired from service was N4,699,399.32, while his monthly earnings was N391,616.61 based on 70% CONTISS 2 salary structure. The pension amount due to the claimant as at July, 2018 when he was enrolled on the state pension payroll was N251,302.40 only and same was paid to him for the months of July, August and September, 2018, respectively. It is the case of the defendants that due to computation error, the claimant was paid the sum of N279,224.89 as pension for the months of October – December, 2018 respectively. The defendant aver that the computation error persisted, and the claimant was paid the sum of N554,531.83 as pension in the month of January, 2019. The computation error reached its peak and the claimant was paid the sum of N771,167.96 as pension for the months of February, Match, April, May, June and July, 2019. The none payment of claimant’s gratuity was stated to be due to paucity of funds. The claimant filed reply and debunked the defendants claim to error on computation and paucity of funds.

69.  I have considered the evidence adduced by the parties in support of their respective position. The law is well settled that he who asserts must prove and upon such proof the onus shift and vice versa until all the issues are resolved. In this case the claimant has the onus to prove his claim and the defendants to prove their counter claim.

70.  It has been established by a long line of decided cases that the burden of proof in civil cases like the case at hand rests always on he who asserts. Therefore, the burden is on the Claimant in the instant case to prove that he is entitled to the reliefs being sought. It is when the Claimant has adduced sufficient cogent, credible and admissible evidence establishing his claim that the burden shift to the Defendants. This is because the Burden of proof in civil cases or matters is not static and may shift in the course of proceedings in a case, depending on the state of pleadings at various stages, the initial evidential Burden of introducing evidence to prove a claim to a legal right or liability based on the assertions of facts upon which right or liability is claimed, is placed on the Claimant and until it is satisfactorily discharged on the balance of probabilities or preponderance of evidence as required under section 134 of the Evidence Act 2011, it does not shift pursuant to section 133(1) of the Act. Therefore, the Claimant bore the initial evidential Burden of proving the facts he asserted and on which he based his claim, if judgment is to be entered in his favour. See Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410; Agu v. Nnaji (2002) 18 NWLR (Pt. 798) 103; Onwuama v. Ezeokoli (2002) 5 NWLR (Pt.760) 353; Oyovbiare v. Omamurhonu (1999) 10 NWLR (Pt. 621) 23; Ike v. Ugboaja(1993) 6 NWLR (Pt.301) 539; Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799; G. & T. (Inv.) Ltd. v. Witt & Bush Ltd. (2011) 8 NWLR (Pt. 1250) 500; UTC Nigeria Ltd. v. Phillips (2012) 6 NWLR (Pt. 1295) 136; Ikogu v. L.P.D.C. (2009) 17 NWLR (Pt. 1171); Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548; U.B.N. Plc v. Ravih Abdul & Co. Ltd (2019) 3 NWLR (Pt. 1659) 203.

71.  What emerges from the above cited cases is that burden of proof in civil cases is of two types. The first which is termed legal burden is the ability of a Claimant asserting positively to establish and prove the entire or reasonable portion of his case before a court of law that can give judgment in his favour. This is always constantly on the Claimant. The other type is related to particular facts or issues which a party claims exist. It is this Burden of proof that oscillates from one party to the other. While the first type of Burden of proof is called legal Burden or the Burden of establishing a case, the second one is called evidential Burden. See Ogwule Ankpa Agatu Co-operative Group Farming Society v. Nigeria Agricultural and Cooperative Bank (1999) 2 NWLR (Pt.590) 234.

72.  The defendants’ defence to the claimant’s claim is predicated on alleged error in computation in support of this the defendants tendered exhibits D1, D2, D4, D5, D6, D7, D8 and D9. Exhibits D1, D2 and D4, are evidence that claimant’s monthly salary while in service and his last pay stood at N391,616.61 per month. The counsel for the defendants has argued that since pension is computed based on last pay, pension will not be more than last salary. The claimant under cross examination agreed that pension should not be more than salary.

73.  Exhibits D5, D6, D7, D8 and D9, were tendered by the defendants in proof of the claim that there was error in the computation. However, DW1 the only witness called by the defendants under cross examination stated that the computation was correct. However, I note that DW1 was not the person who did the computation and is not a staff of the office of the Accountant General that did the computation. In the circumstances the evidence of DW1 is not capable of establishing error or correctness of computation. As per exhibit M which was the basis on which defendants commenced payment of pension to the claimant.

74.  The claimant on his part has insisted that there was no error in computation placing reliance on exhibit M. However, the claimant has not denied exhibits D5, D6, D7, D8 and D9, tendered by the defendants to support their claim of computation error. The claimant’s response to exhibits D5, D6, D7 D8 and D9, is to the effect that the salary structure the defendants are relying to claim error in computation of claimant’s pension and gratuity is not the correct salary structure used in computation of claimant’s pension and gratuity as per exhibit M. The claimant insisted that the salary structure applicable to his computation was the one approved by the Deputy Governor i.e. CONPCASS/CONTEDISS that took effect from 1/1/2018, while he was in service and not 70% CONTISS 2 salary structure as the defendants are alleging.

75.  By the averment contained in paragraph 18 of the defendants’ amended statement of defence and counter claim, the defendants seems to have agreed that the computation of claimant’s pension and gratuity was done based on CONPCASS/CONTEDISS salary structure and not 70% CONTISS 2 salary structure. In fact by their evidence the implementation of the salary structure which was used in computation of claimant’s pension and gratuity was blamed for being responsible for huge bills and bloating of salary, as discovered by the Governor of the State. Consequently, the Governor directed and ordered reverting back to 70 CONTISS 2, Salary structure. In the circumstances the defendants cannot claim error in the computation done by the Accountant General as per exhibit M, simply because of existence of 70% CONTISS 2 salary structure, which was in operation on 1/1/2018, before the retirement of the claimant from the service of the defendants.

76.  It is clear to me from the facts and evidence before the court that the area of disagreement between the claimant and the defendant is in respect of the appropriate salary structure for the purpose of computation of the claimant’s pension and gratuity. The Accountant General seems to have used the CONPCASS/CONTEDISS salary structure in computation of claimant’s pension and gratuity. While the defendants are saying the appropriate salary structure should have been that of 70% CONTISS 2 salary structure.

77.  The reason given by the defendants in support of their position is that the computation of claimant’s pension and gratuity, as per exhibit M, was made in error, as the claimant’s pension is not supposed to be more than last salary of the claimant. They further stated that due to the computation error, the governor of Cross River State observed that the wage bill of the state was over bloated in 2019 and this was attributed to the implementation of the college of Health Technology CONPACASS/CONTEDISS salary structure was identified as responsible. This led to the governor faulting the process and directing that the salary structure be reversed to 70% CONTISS 2 salary structure in July, 2019. A verification exercise was conducted and all verified pensioners were returned to the state pension payroll and paid correct pension amount.

78.  It is clear to me that the purported error on computation of claimant’s pension and gratuity, was not an error, the reason being that the computation was made based on approved salary structure which took effect from 1/1/2018 and not the salary structure the defendants used in paying the claimant’s salary while in service.

79.  Furthermore, the reason given, that the Governor of the State discovered huge over bloated salary in 2019 due to implementation of CONPACASS/CONTEDISS salary structure is not tenable, since the defendants have not refuted or denied giving approval of the implementation of the said salary structure with effect from 1/1/2018. I am also of the view that given the provisions of section 210 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, pension is vested right that cannot be altered at will. The Governor does not have any vires to on his own decide to reduce or alter the claimant’s vest right as granted to him by the Constitution. For any reduction or alteration to be made to claimant’s pension it has to be backed up the law for such a decision to be valid in the eye of the law. For proper appreciation section 210 of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides:-

(1)  Subject to the provisions of subsection (2) of this section, the right of a person in the public service of a State to receive pension or gratuity shall be regulated by law.

(2)  Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section, shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct.

(3)  Pensions shall be reviewed every five years or together with any State civil service salary reviews, whichever is earlier.

(4)  Pensions in respect of service in the public service of a State shall not be taxed.

80.  It is clear from the above provisions of the constitution that the purpose of the provision of section 210 of the Constitution is to ensure guaranteeing payment of pension and gratuity of public servants so as to emancipate retirees from the vagaries of contractual agreements between employers and employees. It is also to ensure that pension right is not left at the discretion of public bodies.

81.  I need to iterate here that the right of an employee to payment of pension and gratuity is a right guaranteed by the Constitution. Thus, why the constitution has deprecated alteration or reduction of pension of retired employees, the Governor has no vires to order or direct reduction of claimant’s pension simply because in his opinion it has caused bloating of wage bills for the state. The directive by the governor to reverse the salary structure based on which claimant’s computation of pension and gratuity as per exhibit M was made, should not in any way affect the claimant’s pension and gratuity, as such directive or order run afoul of the provision of section 210 of the Constitution as amended. Furthermore, such a directive or order can only be effective or applicable to existing employees of the defendants and not retirees like the claimant in this case.

82.  In the absence of any law authorising the Governor to reduce the claimant’s pension, I hereby found the directive or order of the Governor for altering claimant’s pension as illegal, null and void. Therefore, I found the authority for payment of pension/gratuity/annul allowance issued by office of the Accountant General to the claimant dated 13/12/2018, exhibit M, as duly issued and was not issued in error as claimed by the defendants.

83.  However, despite the finding that there is no error in the computation of claimant’s pension as per exhibit M, the claimant has not been able to establish what he is exactly entitled to as his monthly pension. The claimant merely asserted that the defendants started paying him the sum of N554,351.83 per month with effect from June, 2018, this is doubtful in view of exhibit D5 the pay slip with which clamant was paid the sum of N248,789.38 as his net pay for July, 2018 pension. The failure by the claimant to tender his pay slip or Bank statement of account to establish that he was actually paid the sum of N554,351.83 per month with effect from June, 2018, as his pension, is fatal to the claimant’s claim for arrears of pension for the skipped months of August, September and October, 2019. This is more so when exhibit D5 did show that he was not paid the amount he claimed to have been paid.

84.  It is clear from the foregoing that the claimant has not been able to establish entitlement to claim of shortfall on payment of his pension to entitle him to refund. This is because claim on shortfall being monetary claim is a special damages claim which by law the claimant must specially plead, particularise and strictly proved, and the law on this is replete. See NNPC Vs CLIFCO NIG LTD (2011) 4 MJSC 142, NEKA BBB MANUFACTURING CO. LTD VS AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt.1) 32, UTA VS GOLFIC Securities Nig. Ltd & Ors (2022) LPELR - 57079 CA; Ajigbotosho Vs RCC (2018) LPELR - 44774 (SC), Egypt Air Ltd Vs Ibrahim (2021) LPELR - 55882 (CA) and LUTC (Nig) PLC Vs Samuel Peters (2022) 57289 (SC), where the Supreme Court said: "Ordinarily, the law is clear that special damages must not only be specifically pleaded, they must be strictly proved by credible evidence of particular losses. See Luke N. Onyiorah Vs. Bendict C. Onyiorah & Anor (2019) LPELR 49096 (SC), Okafor & Ors Vs. Obiwo & Anor (1978) LPELR - 2413 (SC)." Per ARIWOOLA, JSC (as he then was now CJN) (P. 12, paras. E-F).

85.  The claimant in his attempt to prove entitlement to shortfall relied on exhibits N, O, P, Q, R and S, these exhibits are not capable of proving entitlement to shortfalls, being letters of demands they can only establish a demand made but not proof of what was demanded. Also exhibits D5, D6, D8 and D9, which the claimant has not denied, have casted doubt on the actual amount which the defendants have short paid the claimant as his pension. In the circumstances the shortfall being claim for special damages that need to be specially pleaded particularized and strictly proved have not been established by the claimant. The claimant having failed to strictly prove his claim for shortfall as required by law is not entitled to be granted his claim on shortfall.

86.  Both the claimant and the defendants have in their pleadings alluded to existence of terms and conditions of service as well as laws, governing the relationship of the claimant and the defendants, but none of them has tendered the terms and conditions of service and the law they have alluded to thereby depriving the court of the opportunity to appropriately decide their claims on payment of pension shortfall.

87.  Though, the claimant has tendered exhibit A, this exhibit has no evidential value as it is an incomplete document. The failure of claimant to tender complete staff handbook has rendered exhibit A impotent incapable of any proof as it lacked evidential value.

88.  I now turn to claim on gratuity, the claimant has averred that since his retirement and commencement of payment of his pension, the defendants have failed to pay him his gratuity as per exhibit M. The defendants in response have stated that it was due to paucity of fund thus why claimant was not paid and they stated in addition error in computation. However, they have not tendered any new computation made to correct the purported error. In the circumstances, from their pleading the defendants are deemed to have admitted the clam of the claimant the law is settled what was admitted need no proof. As Facts deposed to by a party and admitted by an opponent require no further proof from the party who made the deposition. The admitted facts are deemed established. What is admitted needs no proof. An admission is the strongest form of proof. Thus, what is admitted does not require a further proof. See Okparaeke v. Egbuonu (1941) 7 WACA 53; Ugbomor v. Hadomeh (1997) 9 NWLR (Pt. 520) 307; Daramola v. A.-G., Ondo State (2000) 7 NWLR (Pt. 665) 440; [Jolasun v. Bamgboye (2010) 19 NWLR (Pt. 1225) 285; Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 562; A.P.C. v. I.N.E.C.  (2015) 8 NWLR (Pt. 1462) 531.

89.  From all I have been saying above, the claimant has been able to only prove that he was not paid his gratuity and this fact was admitted by the defendants. Therefore, the claimant is entitled to be paid his gratuity as shown by exhibit M, in the sum of N24,945,832.44 (Twenty Four Million, Nine Hundred and Forty Five Thousand, Eight Hundred and Thirty Two Naira, Forty Four kobo), only being his gratuity as computed by the Accountant General as shown in exhibit M. The defendants cannot now claim any error when such error has not been proved.

90.  The claimant though entitled to be paid his pension for the months skipped, he has not been able to prove to the court what is the exact actual amount that he is entitled to be paid as his pension per months. The claimant’s failure to adduce credible evidence to establish that his monthly pension is the sum of N554,351.83, as he claimed is fatal to his case. I am strengthened in my view by the fact that vide exhibit D5 the claimant was not paid the sum N554,351.83, which he claimed was paid to him as his pension. Therefore, the claimant has not proved entitlement to the sum of N1,663,055.49 (One Million,  Six Hundred and Sixty Three Thousand, Fifty Five Naira, Forty Nine Kobo), as his pension which the defendants omitted to pay him in the months of August, September, and October, 2019. The claimant omission to tender or adduced credible evidence to show that his salary he was actually paid was the sum N554,351.83, before the stoppage of payment by the defendants. Exhibits D6, D7, D8 and D9, are also not of any assistance as these exhibits did not show consistency in the payment of different sums as shown by the exhibits.

91.  On cost of legal services is not part of the claimant’s cause of action is not grantable.

92.  For interest the claimant has not adduced any evidence to show his entitlement to interest, or agreement on payment of interest. In the circumstance, the claimant has not proved entitlement to any interest same is hereby refused.

       DECISION ON COUNTER CLAIM:

93.  The law is well settled that counter claim is a cross-action with separate pleadings, judgment and costs, and not merely a defence to the claimant’s claim. It is an independent action that is not part of the original action, although for convenience they are tried together. In such trials, parties in the original action swap places - the defendant assumes the position of claimant, and the claimant assumes that of defendant. Thus, a counter-claim is a weapon of defence that allows a defendant to enforce a claim against the claimant, as effectually as an independent action. But a counter-claim cannot be inconsistent with the claimant's claim in the sense that it cannot erect a totally different case from that of the claimant. See Okonkwo v. C.C.B. (Nig.) Plc (2003) 8 NWLR (Pt.822) 347; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29: S.C.

94.  From the reliefs being sought in the counter claim, the defendants/claimants to counter claim are seeking for declarations and other orders for payment or refund of money and interest. The evidence to support a claim for declaration can be oral or documentary. See GE Int’l Operations (Nig.) Ltd. v. Q-Oil and Gas Services Ltd. (2016) 10 NWLR (Pt. 1520) 304; Okon v. Asumogha (2019) LPELR-47593. However, the court would not make declarations or grant declaratory reliefs unless such reliefs have been proven by evidence by the party seeking such relief, regardless of whether or not the party on the other side has adduced evidence or not. Declaratory relief should be granted only in circumstances in which the court is of the opinion that the party seeking it, is, when all facts are taken into consideration, fully entitled to the exercise of the court’s discretion in his favour. See Alao v. Akano(2005) 11 NWLR (Pt. 935) 160; N.N.P.C. v. Evwori(2007) All FWLR (Pt. 369) 1343; C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493.

95.  In the case at hand, the defendants counter claimants in proof of their counter claim have stated that the claimant’s appointment was for a period of four years renewable for another four years. According to the defendants counter claimants the claimant’s appointment as Bursar was terminated and he reverted back to his position before appointment as a Bursar.

96.  I have thoroughly considered the evidence adduced by the counter claimants there is nothing in proof of claim that the clamant/defendant to counter claim was appointed as Bursar for a period of four years, as the defendants/claimants to counter claim have not adduced any evidence to establish that the claimant appointment as Bursar was a tenured appointment. The claimant has not tendered the condition of service or employee Handbook that pegged claimant’s tenure to four years. There was also no letter of employment tendered before the court to show that claimant’s appointment as Bursar was for four years as alleged by the defendants/counter claimants. To the contrary the pay slips tendered by defendants/counter claimants in evidence exhibits D5, D6, D7 D8 and D9 all shows that the claimant retired from service as a Bursar and the computation for his pension must therefore be that of Bursar.

97.  In view of the foregoing, there is no cogent evidence adduced before me by the defendants/counter claimants for the court to declare that the Claimant/defendant to counter claim ceased to be Bursar of the College of Health Technology, Calabar in 2016. The defendants/counter claimants who have the burden of proof of their counter clam have not even tendered the purported letter of termination which made the claimant/defendant to counter claim to have reverted back to his position before appointment as a bursar. In the absence of the letter of termination from the Governing Council of the College of Health Technology, Calabar, relieving the Claimant/defendant to counter claim of his appointment as Bursar, this court cannot grant the declaration sought as per relief 1 of the counter claim, when even exhibits D5, D6, D7, D8 and D9, tendered in evidence by the defendants/counter claimants have shown that the claimant/defendant to counter claim retired from service as Bursar.

98.  The defendants/counter claimants have also stated that the computation of claimant’s pension and gratuity was made in error as the computation was based on CONPACASS/CONTEDISS salary structure and not 70% CONTISS 2 salary structure. Thus why the Governor directed and ordered reversal of the computation in July, 2019. A verification exercise was conducted and all verified pensioners were returned to the state pension payroll and paid correct pension amount. I have earlier in the main judgment in this suit found that there was no error as the computation of claimant’s pension and gratuity was done in line with approved salary structure and not on the one in which the Governor ordered to be reverted to. This finding remains extant and it applies to the counter claim.

99.  Having found the computation of claimant’s pension and gratuity, as per exhibit M, to be correct, the defendants/counter claimants are also not entitled to reliefs 2, 3, 4 and 5.

100.                     For relief 6, which is for general damages is not grantable as it is dependent of grant of reliefs 1, 2, 3, 4, and 5, these reliefs having been failed, relief 6 must also fail for lacing in merit.

101.                     Relief 7, is for interest, this is granted at the discretion of the court.

102.                     From all I have been saying above the claimant has succeeded partially in his claims. While the defendants/counter claimants have not succeeded in proof of their case. In the circumstances, I hereby ordered as follows:-

a.       The clamant is entitled to his unpaid gratuity in the sum of N24,945,832.44 (Twenty Four Million, Nine Hundred and Forty Five Thousand, Eight Hundred and Thirty Two Naira, Forty Four kobo), only as per computation contained in exhibit M.

b.      The defendants are hereby ordered to pay the claimant the sum of N24,945,832.44 (Twenty Four Million, Nine Hundred and Forty Five Thousand, Eight Hundred and Thirty Two Naira, Forty Four kobo), only as his gratuity as per computation of the Accountant General as contained in exhibit M.

c.       All the other reliefs sought by the claimant failed and are hereby refused due to lack of proof.

d.      The defendants/counter claimants have woefully failed to prove entitlement to any of the reliefs sought. The counter claim is hereby dismissed for lacking in merit.

e.       All the monetary sums awarded as per this judgment must be paid within 30 days from the date of this judgment failing which interest at the rate 10% per annum shall apply.

103.                     I make no order as to cost. Parties to bear their respective costs.

104.                     Judgment is hereby entered accordingly.

 

 

 

Sanusi Kado,

Judge.

REPRESENTATION.

D. D. Ujong, Esq; for the claimant holding brief of Okoi Eteng, Esq;

Isaac A. Ashindoritiang, Senior State Counsel 2, Ministry of Justice for the defendants.