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.