IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

                                         HOLDEN IN ABUJA

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

DATE: 20TH JANUARY 2023                        SUIT NO: NICN/ABJ/36/2012

 

BETWEEN

BARR. TALIB S. RAJI   ………………………………………. CLAIMANT                                               

 

AND

1. HON. MINISTER FEDERAL MINISTRY OF EDUCATION...DEFENDANTS

2. FEDERAL MINISTRY OF EDUCATION

3. CHAIRMAN OF COUNCIL NATIONAL MATHIMATICAL.

CENTRE ABUJA.

4. THE DIRECTOR GENERAL NMC ABUJA

5. NATIONAL MATHEMATICAL CENTRE ABUJA

6. THE FEDERAL ATTORNEY GENERAL AND MINISTER OF JUSTICE

 

REPRESENATION

 C.C. Agidi Esq with Daniel Idiong Esq, Mary Omoifo-Egbeyon for Claimant.

E.W. Ikpi Assistant Chief State Counsel, Federal Ministry of Justice for the 1st and 2nd defendants.

 Peter Oche Ofikwu Esq with him are Jacob Obande Ajene Esq and Christiana Uwaya for 3rd -5th Defendants.

 

 

          JUDGMENT

1.      This case is one with a very long history having originally started from the Federal High Court and then back to this Court in the year 2012. My learned brother Judge delivered a Ruling in respect of the preliminary objection raised to the jurisdiction of this Court on the 1st day of March, 2019 and dismissed this case for being statute barred. The said Ruling was a subject of an Appeal before the Court of Appeal Abuja in appeal number CA/A/CV/813/2020. The Court of Appeal on the 30th day of September, 2021 delivered its judgment and found merit in the Appeal holding that this Court has the requisite jurisdiction to try this case. Thus, the matter was reverted back to this Court for trial on the merit. Hence this action before this Court.

 

2.      By a General Form of Complaint dated 7th day of May 2012, the Claimant prayed this Court for the grant of the following reliefs against the defendants;

a.       A declaration that the claimant is entitled to be paid pension and gratuity after his retirement from the service of the 5th defendant on the 18th February 1998.

 

b.       A declaration that the claimant is entitled to his salaries from the 5th defendant between October 1996 and February 1998.

 

c.        An Order directing the defendants to pay the claimant his pensions and gratuity with effect from February 1998.

 

d.       An Order directing the defendants to pay the claimant his salaries of Nine Thousand One Hundred and Thirty-Seven Naira Fifty-Nine Kobo (9, 137.59) per month for 17 months with effect from October 1996 to February 1998 totaling One Hundred and Fifty-Five Thousand Three Hundred and Thirty Nine Naira Three Kobo (155, 339.03).

 

e.       An Order directing the defendants to pay the claimant the sum of Eight Thousand Six Hundred and Seventy-Seven Naira Twenty Kobo (8, 677.20k) being his two years leave bonus allowances for the year 1996 and 1997.

 

f.         General damages of Five Million Naira (5, 000, 000.00).

 

g.       Cost of this action assessed at Five Hundred Thousand Naira (500,000.00).

 

 

3.      It is the claimant’s case vide his statement of facts and witness statement on oath that he is a retired employee of the 5th defendant appointed as under Secretary by Usman Danfodio University Teaching Hospital and was later appointed as Assistant Director of Administration and subsequently transferred his service to the 5th defendant. That he was purportedly dismissed by the 5th defendant vide a letter dated 7th day of October 1996 wherein he protested and appealed to the 1st and 2nd defendants, consequent upon which the 5th defendant after obtaining approval of the 1st and 2nd defendants wrote him converting or substituting his dismissal with retirement. Thereafter, the 5th defendant wrote him that the only retirement benefit that could be paid to him immediately is the sum of Forty-Five Thousand Eight Hundred Eighteen Naira only being motor vehicle repair bills, medical bills and transportation of personal effects bills approval of which was given via a letter dated 30th day of December 1998 stating clearly in the said letter that the pension and gratuity would be properly determined later. Continuing, he stated that after waiting for his retirement benefits without any positive result, he wrote a letter to the 4th defendant applying for same, after waiting without any response, he wrote another letter to the 5th defendant in respect of the same subject matter yet, no reply. Furthermore, the 3rd defendant constituted a committee to look into the issue of his retirement benefits, they sat but however disagreed over the effective date of his retirement. He thereafter wrote the 3rd defendant stating categorically that he received the said letter on the 18th day of February 1998 thus it cannot have retrospective effect and that he had spent well over ten years in service to entitled him to pension after retirement. That despite all his correspondence and personal visit to the 5th defendant, the defendant refused to pay him all his entitlement as contained in his claim which has caused him untold hardship as he has to over strained himself to feed the members of his family.

 

4.      The 1st and 2nd defendants in response equally filed their statement of defence on the 6th day of August 2012 and subsequently amended on the 11th day of March 2015, averred that the decision to substitute the claimant’s dismissal with retirement only affect claimant’s mode of leaving the service of the 5th defendant and not the date of dismissal. They equally stated that the 5th defendant’s letter to the claimant dated 18th day of February 1998 was only conveying the decision of 1st & 2nd defendants and nothing more noting that if they wanted the said dismissal date to be different it would have been specified in line with Section 030601 of the Public Service Rule 2008. They concluded by stating that they are not liable in any way to the claimant or to pay the claimant his purported retirement benefit.

 

5.      The 3rd -5th defendants in their response filed their joint statement of defence filed on the 7th day of June 2012, amended on the 14th day of May 2018 and subsequently amended their joint statement of defence on the 4th day of February 2022 wherein they stated that the claimant was in the employment of the 5th defendant until his dismissal on the 7th day of October 1996 and his dismissal later substituted with retirement purely on humanitarian ground vide a letter dated 9th day of September 1997. That though the content of the letter says retirement the claimant did not serve up to the period that would have entitled him to retirement benefits which is ten years and above. It is also their averment that the employment of the claimant is shrouded with lots of secrecy which reveals that he worked with Ahmadu Bello University Teaching and Nasarawa Polytechnic and that they are not aware of any transfer of service. That the claimant was informed in clear terms vide the letter of dismissal that his pension and gratuity is a matter for the Federal Ministry of Establishment and Management Services to determine, but the claimant failed to explore the said channel, noting that the claimant as a retired worker is expected to go through clearance to ascertain that he is not owing his employers or not in possession of any properties belonging to his employer. They further contended that the claimant is not entitled to the reliefs contained therein as he cannot bring the present suit against the 3rd -5th defendants as the claim is statute barred having not being brought within 90 days prescribed by Section 2(a) of Public Officers Protection Law 2004 Laws of the Federation. In conclusion, 3rd-5th defendants contended that the claimant’s claim is unmeritorious, vexatious, academic and constitutes an abuse of process of this Court and urged the Court to dismiss same with substantial cost.

 

6.      On the 25th day of May 2022 claimant opened his case and testified for himself by adopting his written statement on oath and additional statement in this case as his oral evidence. Documents marked and admitted as Exhibits T-T11 were admitted through him. He was subsequently crossed examined by learned counsel on behalf of 3rd -5th defendants after which claimant closed his case. On the 26th day of July 2022 3rd -5th defendants opened their case and called one Ezewanyi Azobuike Armstrong who testified as DW, he tendered documents admitted and marked as Exhibit E & E1. He was subsequently crossed examined by learned counsel to the claimant. Afterwards the 3rd -5th defendants closed their case. The matter was subsequently adjourned for adoption of final written addresses.

 

7.      On the 9th day of August 2022 learned counsel on behalf of the 1st and 2nd defendants filed their final written address in this case wherein he distilled the following issues for determination to wit

i.                    In view of the facts and circumstances of this case, whether or not the effective due date of the claimant’s retirement was 7th of October 1996 the date the claimant was dismissed from the services of the 5th defendant?

 

ii.                 In view of the facts and circumstances of this case whether or not the claimant is entitled to retirement benefits having not fulfilled any of the condition’s precedent laid down by the Pension Act of 1990 to be entitled to retirement benefits?

 

iii.              In view of the facts and circumstances of this case whether or not the claimant is entitled to 17 months salaries with effect from October 1996 to February 1998 when the 1st defendant never nullified the claimant’s dismissal of 7th of October 1996 but only substituted same with retirement?

 

 

8.      On issue one, it is learned counsel’s submission that the effective due date of the claimant’s retirement was 7th day of October 1996 being the date the 5th defendant dismissed the claimant from its services, and not 18th February 1998 as claimed by the claimant. He cited in support Section 030408 and 030407 of Public Service Rules 2008. That the claimant appealed his dismissal to the 1st and 2nd defendants and without nullifying the dismissal the 1st defendant approved substitution of the claimant’s dismissal with retirement solely on humanitarian grounds. It is counsel’s submission that the dismissal was merely substituted with retirement and nothing more and the meaning of ‘substitute’ is clear. He cited in support the following cases; Ejiofor Apeh & Ors v. Peoples Democratic Party (PDP) & Ors [2017] LPELR-42035 (SC); Peretu & Ors v. Gariga & Ors [2012] LPELR-15534 (SC). He equally submitted that since the 1st defendant did not nullify the claimant’s dismissal of 7th October 1996 or expressly state anything to the contrary, the date of dismissal remains the effective due date of claimant’s retirement and that if the agrees with the above-mentioned date it means that the claimant spent nine years and not ten years as provided by Section 3 (1) (a) of Pension Act.

 

9.      On issue two learned submitted that the claimant is not entitled to retirement benefits having not fulfilled conditions precedent or served for 10 years as provided by the Pension Act of 1990 and that Pension Act 1990 was the law in force when the cause of action in this case arose on the 18th day of February 1998. He cited in support of his assertion the case of Aremo II v. Adekanye [2004] 19 NSCQLR Page 272 @ 274 ratio 4; Adesina v. Ojo [2012] 10 NWLR (Pt.1309) 552 @ 562 and Goldmark (Nig.) Ltd. v. Ibafon Co. Ltd [2012] 10 NWLR (Pt 1308)291 @ Page 291 @ Page 302 ratio 5. That assuming without conceding that the claimant is qualified to be paid pension and gratuity, it is the submission of learned counsel that the claimant having failed to plead or show that he has attained the statutory age retirement of 45 years which is equally a condition precedent to be entitled to payment pension as provided by Section 3 (6) of the Pension Act 1990. It is the further submission of learned counsel that the Court must give effect to mandatory provisions of the law. He cited in support of his assertion the following cases; Inakoju & Ors v. Adeleke & Ors. [2007] LPELR-1510 (SC); Calabar Central Co-operative Thrift & Credit Socienty Ltd & Ors v. Ekpo [2008] LPELR-825(SC) and; Ugboji v. State [2017] LPELR-43427(SC). It is submitted further that it is the duty of the Court to ensure that the condition precedent in a law is fulfilled. He relied on the case of Inakoju & Ors v. Adeleke & Ors, supra. It was thus submitted that Claimant having failed to fulfill the mandatory condition precedent under the Pension Act, 1990 is not entitled to pension and gratuity.

 

10.  On issue three, learned counsel submitted that Claimant is not entitled to 17 months salaries from October 1996 to February 1998 because the dismissal was never nullified but substituted. It was his submission that from the 7th October, 1996 when Claimant was dismissed, he ceased to be an employee of the 5th defendant and even stopped work which was equally confirmed under cross examination. He submitted further that the only circumstance that would make Claimant entitled to salaries as claimed is if his dismissal was nullified. He referred the Court to the case of Iderima v. Rivers State Civil Service Commission[2005] LPELR-1420)(SC). According to counsel in his submission Claimant in his statement of claim did not plead how or show that his dismissal was nullified before the approval of his retirement. In conclusion, it was submitted that based on these submissions, Claimant is not entitled to 17 months salaries as claimed and as such his case lacks merit and liable to be dismissed. He urged the Court to so hold.

 

11. On 16th day of August, 2022, learned counsel on behalf of the 3rd to 5th defendants filed his final written address wherein he formulated the following issues for the determination;

 

i.                    Whether Claimant is entitled to retirement benefits, having not put in services up to ten years being the conditions laid down by the Pension Act of 1990 to be entitled to retirement benefits.

ii.                 Whether or not the Claimant is entitled to 17 months salaries with effect from October 1996 to February, 1998, when he did not render services to the 3rd to 5th defendants.

 

12. Learned counsel argued both issues together. He submitted that the by virtue of Section (sic) 030408 of the Public Service Rules, 2008 and Claimant’s dismissal he stopped working and has forfeited all claims to retiring benefits. He referred the Court to Section 030407 of the Public Service Rules. It is counsel’s submission that that it is deducible from the letter dated 9th September, 1997 marked Exhibit T4 along with the 5th defendant’s letter of 18th February, 1998 as reproduced that Claimant’s dismissal was merely substituted with retirement and nothing more and the meaning of ‘substitute’ is clear. He cited in support the following cases; Ejiofor Apeh & Ors v. Peoples Democratic Party (PDP) & Ors,supra ; Peretu & Ors v. Gariga & Ors, supra. Further in his submission, learned counsel maintained that the claim of Claimant that the effective date of his retirement was 18th February, 1998 which was the date on 5th defendant’s letter conveying the substitution of the dismissal with retirement to claimant is misconceived. He submitted further that the only instance where Claimant’s retirement can take effect from 18th February, 1998 is if Claimant’s dismissal was nullified.

 

13.  It is part of learned counsel’s submission that Pension Act 1990 was the law in force when the cause of action in this case arose on the 18th day of February 1998. He relied in support the case of Aremo II v. Adekanye, supra; Adesina v. Ojo, supra and Goldmark (Nig.) Ltd. v. Ibafon Co. Ltd, supra. In his submission, learned counsel maintained that condition precedent to be entitled to payment pension as provided by Section 3 of the Pension Act 1990.  He submitted that Claimant from the evidence before the Court started out his career  in the public service in the service Usman Dan Fodio University , Sokoto on the 17th June, 1987 and was employed by the 5th defendant vide letter dated 29th May, 1992. It was part of his submission that the effective date of his retirement is 7th October, 1996 as there is no evidence of his transfer of service. He urged the Court to expunge Exhibits T10 and T11 as they were not existence before  the filing of this suit because if they existed Claimant would have pleaded and frontloaded them along with other exhibits and because they were produced during the pendency of this action.

 

14. Counsel continued in his submission that by virtue of  Section 020503 of the Public Service Rules, transfers from one senior post to another or from one calss to another within the Federal public service require the prior approval of the Federal Civil Service Commission. He submitted that Claimant failed woefully to show the Court how his services were transferred from Usman Dan Fodio University Teaching Hospital to 5th defendant and that Exhibits T10 and T11 were issued several years after Claimant stopped working and cannot be evidence of transfer. It was submitted further by learned counsel that assuming but without conceding that claimant was even entitled to be paid under Section 3(1) of the Pension Act, having failed to show he has attained the statutory age requirement of 45 years which is a compulsory requirement, he is not entitled to be paid. It is the further submission of learned counsel that the Court must give effect to mandatory provisions of the law. In support of his assertion, learned counsel relied on the following cases; Inakoju & Ors v. Adeleke & Ors,supra ; Calabar Central Co-operative Thrift & Credit Society Ltd & Ors v. Ekpo, supra and; Ugboji v. State, supra. It is submitted further that it is the duty of the Court to ensure that the condition precedent in a law is fulfilled. He relied on the case of Inakoju & Ors v. Adeleke & Ors, supra.  Part of learned counsel’s submission is that from the 7th October, 1996 when Claimant was dismissed, he ceased to be an employee of the 5th defendant and even stopped work which was equally confirmed under cross examination. He submitted further that the only circumstance that would make Claimant entitled to salaries as claimed is if his dismissal was nullified. He referred the Court to the case of Iderima v. Rivers State Civil Service Commission [2005] LPELR-1420(SC).

 

15.  It is also the submission of learned counsel that the burden of proof is on the party who alleges a fact. He relied on Section 135(1) of the Evidence Act, 1990. According to leaned counsel in his submission, Claimant failed woefully to prove that he is entitled to pension and gratuity and also salaries for 17 months especially where he admitted under cross examination that he did not render services to the 5th defendant. In conclusion, learned counsel submitted that Claimant is not entitled to pension and gratuity and salaries and has also brought a stale claim which is caught up by the provisions of Section 2(a) of Public Officers Protection Act and liable to be dismissed.

 

16. On the 19th day of August, 2022, learned counsel on behalf of Claimant filed his final written address which was adopted vide a letter dated 18th August, 2022 and filed 19th August, 2022. Therein he formulated a sole issue for the determination of this case to wit; whether the Claimant has proved his case on the preponderance of evidence to be entitled to the reliefs sought.

 

17. On issue one, learned counsel submitted that the burden of proof lies on claimant and which burden is discharged on the balance of probability. He relied on Section 134 of the Evidence Act and the case of Sakati v. Bako & Anor [2015] LPELR-24739(SC). He submitted that parties in this case are ad idem on certain areas in this case listed therein. Going further, learned counsel formulated three sub-issues for determination thus;

i.                    Whether the Claimant’s initial and first employment as Under Secretary on 11th June, 1987 by Usman Dan Fodio University Teaching Hospital, Sokoto, on pensionable appointment was transferred to the 5th Defendant?

ii.                 Whether the Claimant’s date of retirement is supposed to be calculated from the date of 18th February, 1998 when  he was issued the letter converting and substituting his dismissal with retirement?

iii.              Whether the Claimant served for a cumulative period of 10 years to be entitled to pension in line with Pension Act, 1990.

 

18.  On sub issue one, learned counsel submitted that Claimant by credible evidence has been able to show that his previous service was transferred to the 5th defendant when he tendered exhibit T10. He submitted further that by the content of the said exhibit T10, claimant was released to the 5th defendant with effect from 31st July, 1992. He submitted that transfer of service is usually undertaken between two employers and by the provisions of Rule 020502 of the Public Service Rules, the only business of the employee is for the employee who is the applicant to meet up with the requirement of transfer. According to learned counsel, Exhibit T10 clearly confirmed that Claimant was transferred to the 5th defendant. He submitted that Exhibit T11 is also instructive and which exhibit was not challenged by the defendant. It was thus submitted by counsel while relying on the case of Military Gov Lagos State & Ors v. Adeyiga & Ors [2012] LPELR-7836 (SC) that evidence not challenged or controverted should be relied on by the Court.

 

19. On the second sub issue, learned counsel submitted that from the facts and evidence before the Court Claimant was first employed in a pensionable employment by the Usman Dan Fodio University Teaching Hospital and his service was subsequently transferred to the 5th defendant. He submitted that Exhibit T4 clearly used the two words; ‘substitute’ and ‘conversion’. According to learned counsel the commencement date of Exhibit T4 is the date which it was received. It was further submitted by learned counsel that the law is clear that letters of this nature take effect from the date it is received. He relied on Section 306 of the 1999 Constitution (as amended) and the case of Sunday v. Olugbenga & Ors [2008] LPELR-4995(CA). He submitted that Exhibit T4 did not state the commencement date of the said retirement and the law is clear that where there is no commencement date in a document, the commencement date shall be when the document was signed by the officer appointed in that regard. He relied on the case of APC v. INEC & Ors [2014] LPELR-24036(SC). He equally relied on Rule 03048 of the Public Service Rules. As a result, it is the submission of learned counsel that the effective date of Claimant’s retirement was when exhibit T4 was issued and which is 18th February, 1998. He urged the Court to so hold.

 

20. On sub issue three, it was submitted by learned counsel on behalf of Claimant that the 5th defendant agreed vide paragraph 10 of their joint statement of defence that the condition for payment of pension under the Pension Act, 1990 which was the applicable Pension Act at that time was service for 10 years.  It was submitted further that the 5th defendant vide Exhibit T5 had approved the payment of some of Claimant’s entitlement and informed him that his pension and gratuity would be properly determined and as such cannot approbate and reprobate. He referred the Court to the case of Komolafe v. NNPC [2021] LPELR-55792(CA). Thus, counsel submitted that claimant has proven his case to be entitled to the reliefs sought. He relied on Sections 131, 132, 133 and 134 of the Evidence Act. He urged the Court to discountenance the arguments of learned counsel on behalf of the 1st and 2nd defendants in his issue two distilled for determination as same is misconceived.

 

21. Learned counsel submitted that the 3rd-5th defendants counsel’s argument in paragraphs 1.6 to 1.7 of the final address that exhibit T4 did not nullify the dismissal is misconceived.  He submitted that exhibit T4 which was made after Claimant had written exhibit T3 clearly nullified the purported dismissal and to argue otherwise would mean that one is saying claimant still stands dismissed.  It was submitted by him that in the absence of any commencement date on exhibit T4 it is deemed to take effect on the day it was signed. He referred the Court to the decision of the Court per Muhammad JSC in the case of APC v. INEC, supra. According to learned counsel, it would be preposterous to accord exhibit T4 with a retrospective effect when same was not stated therein as the law is clear that words used in a document must be given their plain and ordinary meaning. He cited in support the case of Nwobike v. FRN [2021] LPELR-56670(SC). He urged the Court to discountenance the submissions of learned counsel on behalf of 3rd-5th defendants.

 

22. It was submitted that the objections of learned counsel on behalf of the 3rd to 5th defendants to exhibits T10 and T11 on the basis of Section 83(3) of the Evidence Act is misconceived. He submitted that these Exhibits are certified true copies of the original. It was submitted further that Usman Dan Fodio University Teaching Hospital who issued the exhibits are not interested parties. He commended to the Court the decision in U.T.C. (Nig) Plc v. Lawal [2013]LPELR-23002(SC). He submitted also that exhibits T10 and T11 are not the transfer of service documents but a confirmation to show that a transfer of service was indeed done.

 

23. The further submission of counsel is that learned counsel on behalf of the 3rd to 5th defendants who argued that the procedure for transfer of service was not fulfilled failed to enumerate the procedure that was breached. He submitted that there is presumption of regularity in favour of exhibits T10 and T11. He relied on Section 168 of the Evidence Act and the case of Torri v. National Park Service of Nigeria [2011] LPELR-8142(SC).  It was counsel’s submission that the burden to rebut this presumption is on the 3rd to 5th defendants which they have not discharged. He relied on the case of CPC v. INEC & Ors [2011] LPELR-8257(SC). In conclusion, learned counsel submitted that Claimant has discharged the burden on him to be entitled to the reliefs sought.

 

24. Learned counsel on behalf of the 1st and 2nd defendants filed a Reply brief and same was adopted by a letter filed on the 7th day of September, 2022. Learned counsel submitted that the submission of learned counsel on behalf of Claimant in paragraph 2.13 of his final written address while relying on Section 306 of the 1999 Constitution and the case of Sunday v. Olugbenga, supra is misconceived as those authorities relates to when an employer receives the notice of resignation from an employee which is different from retirement. He relied on the case of WAEC v. Oshionebo [2006] LPELR-7739(CA). He submitted that Claimant in this case did not resign from service as his counsel tried to portray. Rather his dismissal was substituted with retirement which makes the date of the dismissal the effective date of the substituted retirement.

 

25. Learned counsel also stated in his submission that the facts of the case of APC v. INEC, supra relied on by Claimant’s counsel as regard the commencement date of a letter is clearly distinguishable from the facts of this case. He submitted that while exhibit E which was the document considered in the case of APC v. INEC, supra could be considered in isolation, exhibit T4 can not be considered in isolation of the letter of dismissal which it was to substitute. Thus, to determine the effective date of exhibit T4, the letter of dismissal that is exhibit T2 has to be taken into cognizance.

 

26. In the same vein, learned counsel on behalf of the 3rd to 5th defendants filed his Reply brief on the 20th day of October, 2022 and same was adopted vide letter filed same date.  Learned counsel submitted in response to paragraph 2.2 of the Claimant’s final written address that declaratory reliefs are only granted where credible evidence is led in their support. He cited in support the following cases; CPC v. INEC, supra; Matanami & Ors v, Dada & Anor [2013] LPELR-19929 (SC); Chukwuma v. Shell Petroleum Development Company of Nigeria 1993] LPELR-864; Anyanwu v. Mandilas [2007] SCNJ 388. It was thus submitted that Claimant by the facts and evidence in this case has not justified the grant of declaratory reliefs sought.

 

27. Learned counsel submitted that Exhibits T3 and T4 constitutes the written contract upon which the question whether Claimant is entitled to reliefs sought can be answered. He commended to the Court, the case of UBN Plc v. Ajabule [2012]All FWLR (Pt 611)1413@1438, Paras B-C. He submitted that exhibits T5 and T7 will aid the Court in the interpretation of exhibit T4 and they clearly show that Claimant was making claim for refund of expenses and payments of retirement benefits. He submitted that exhibits T3 and T4 never created a right to payment of salary. He submitted that exhibit T4 was written in response to exhibit T3. It was further submitted by learned counsel that the strenuous efforts of claimant’s counsel to build on the dates of exhibit T4 is of no avail. He relied on the case of Achimugu v. Minister of FCT [1998]11NWLR (Pt 574)467@479, Paras A-C; 470, ratio 3. He urged the Court to resolve the above issue against Claimant.

 

28. After an indepth consideration of the Originating processes filed together with the accompanying processes, the amended statement of defence, the Reply to the amended statement of defence, the Exhibits relied on by parties and the final written addresses of parties, it is my respectful view that the issues that would best determine this case are as follows;

1.  Whether Claimant’s action is statute barred

2.  Whether Claimant’s retirement takes effect from the date of dismissal or otherwise?

3.  Whether the years of service of Claimant with his previous employer should be taken into cognizance in his record of service with the 5th defendant

4.  Whether Claimant is entitled to pension and gratuities?

 

29. On issue one, the 3rd-5th defendants vide paragraph 21 of the amended statement of defence averred that Claimant’s action is statute-barred having not been brought within the 90 days prescribed by Section 2 (a) of the Public Officers Protection Act, 2004, Laws of the Federation. Claimant in response vide paragraph 11 of the Reply to statement of defence averred that claims for pension and gratuity constitute an exception to Public Officers Protection Act and as such grantable and that the issue has been settled by the Court of Appeal in an appeal emanating from this case and the Supreme Court in other cases. The above facts averred in the amended statement of defence of the 3rd-5th defendants were equally alluded to in paragraphs 1.8-1.9 of the final written address on behalf of the 3rd-5th defendants. Courts have held in a number of cases that parties to a civil suit only plead facts and not evidence or law resulting from the facts. See Toyota Motor Company Corporation v. Subaya Metalware (Nig) Ltd & Anor [2017] LPELR-45368(CA)1@36-37, Para F; Nwanji v. Coastal Services Nig Ltd [2004]] LPELR-2106(SC)1@22, Para A. The jurisdictional issue raised by the defendants constitutes a challenge to the competence of this suit. However, the pertinent question at this stage is whether such jurisdictional issue raised is even competent considering the facts of this case and its chequred history ensconced at the outset of this judgment. Although Claimant did not tender a copy of the said decision of the Court of Appeal in an appeal emanating from this case which he referred to, however, the Court is guided by the standing principle of law that the Court has power to take judicial notice of its record and as such can look into its file and use any document to resolve any issue in contention in the interest of justice. See Ganiyu & Ors v. Otegbola & Ors [2020] LPELR-49752(CA)1@13-15, Para C; Garuba & Ors v. Omokhodion & Ors [2011] LPELR-1309(SC)1@33, Para D. At page 537 of the Record is a letter dated 14th day of October, 2021 and filed on the 15th day of October, 2021 which intimated the President of this Court of the decision of the Court of Appeal in this matter and equally forwarded a copy of the said decision of the Court of Appeal.  I have gone through the copy of the decision of the Court of Appeal delivered in this matter on the 30th day of September, 2021 as contained at pages 539-568 of the Record of this Court and I find that the decision was clearly long before the amendment of statement of defence. It is equally clear from that decision that the issue whether Claimant’s action for pension and gratuity as presently constituted is caught up by the provisions of the Public Officers’ Protection Act has already been dealt with and resolved by the Court of Appeal in favour of the Claimant who was the appellant therein and that was why this matter was sent back for retrial.

 

30. The Courts have settled that there is estoppel against the defendants as it affects the issues already decided between parties. The apex Court in Fadiora & Anor. Gbadebo & Anor (1978) LPELR-1224(SC) held thus:  “There is however, a second kind of estoppel inter parties and this usually occurs where an issue has earlier on been adjudicated upon by the Court of competent jurisdiction and the same issues comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, "issues estoppel" arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue has with certainty and solemnity been determined against him…Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.”  [Emphasis mine]. See also these cases; Orioye & Ors v. Abina & Anor [2019] LPELR-47864(CA)1@30-38, Para D; Amazu & Ors v. Ire & Ors [2017] LPELR-42784(CA)1@29-30, Para F. The point must be made that the preconditions for the application of issue estoppel are the same as those for estoppel generally. See the case of Bamgbegbin & Ors v. Oriare & Ors [2009] LPELR-733(SC)1@43, Para B. All these preconditions exist in this case. It is thus apparent that the point of law that was raised in the pleadings of the defendants is incompetent for offending the rule of issue estoppel, same having been finally decided upon by the Court of Appeal, It is in the light of this that I hereby dismiss the objection raised by P.O. Ofikwu Esq on jurisdiction.

 

31. On issue two, let me start by saying that Claimant in this case sought the grant of declaratory reliefs. It is the law that a declaratory relief will only be granted when credible evidence has been led by the person seeking the declaratory relief. The person seeking the declaratory relief must plead and prove his claim for the declaratory relief. Such declaratory relief will not be granted even on admission by the defendant. See the following cases; case of Achir & Anor v. Chabo & Ors [2019] LPELR-48763 (CA)26-28, Para A; Oyetola v. Adeleke & Ors [2019] LPELR-47545 (CA); Okonkwo v. Okonkwo [2010] LPELR-9357(SC)34. Thus, claimant must rely on the strength of his own case and not on the weakness of the defendants. However, that does not preclude him from relying on the aspects of the defendants’ case which support his own.

 

32. It is clear from the facts of this case and the evidence on record that Claimant was initially dismissed from the services of the 5th defendant vide a letter of dismissal dated 7th October, 1996 that is Exhibit T2 which was later substituted with retirement pursuant to a letter dated 9th September, 1997 and was communicated to Claimant by a letter dated 18th day of February, 1998 going by the contents of Exhibit T4. According to Claimant his retirement takes effect from 18th day of February, 1998 when his dismissal was converted to retirement, while the 3rd to 5th defendants maintained otherwise. According to the defendants, Claimant’s retirement takes effect from the date of dismissal that is 7th October, 1996. Thus, the main issue here is when was the effective date of the Claimant’s retirement from the 5th defendant? In answering this billion-dollar question, I will draw copious insight from the decision of the Court of Appeal in the case of Eyesan v. N.N.P.C [2012] LPELR-19667(CA)1@29-31, Para C where the Court while considering a similar issue per Bage JCA (As he then was) held thus; “The issue at stake here is when the benefits/entitlements of the Appellant accrue, 27/4/1990 or 1/9/2005. The trial Court in its judgment on page 385 of the record of proceedings stated as follows: - "The only real issue here is when did the plaintiff's retirement from Nigerian National Petroleum Corporation take effect? The fact that is not in issue is that the plaintiff initially had his employment with the defendant terminated in 1990. It was followed upon by several correspondences between the partner and representations made on behalf of the plaintiff to the defendant that the previous termination of the plaintiff appointment was converted to retirement effective, as it could only be from the date of the previous termination. The simple reason why it could not be effective from any point in time thereafter is simply because the plaintiff was disengaged from services; that his employment had ceased and he was no longer part of the Nigeria National Petroleum corporation establishment. This Court is in agreement with the trial Court on this point, which is also in line with the Supreme Court's decision in Jumbo V. Petroleum Equalization Fund (Management Board) & 2 Ors (2005) 4 FWLR 2335 (cited by counsel to the Respondent). The Supreme Court at page 2350 stated that:- "The appellant was an employee of the 1st respondent. On 28th July 1988, his appointment was terminated. He considered his termination unlawful. He therefore brought a suit at the Federal High Court Abuja. Continuing at page 2355, the Supreme Court stated that:- "On 23/3/99, a letter from the office  of the secretary to the  Federal Government dismissing five public servants of whom the plaintiff/appellant was one. The first question that arises is - what is the status of the plaintiff's relationship with the 1st defendant following his termination vide letter dated 28/7/98? It seems to me that when an employer brings the contract of employment to an end by terminating it, the employee ceases to be in his employment and his subsisting rights, if any are to make a claim for the terminal benefits as provided in the contract of employment. See Chukwumah v. Shell Petroleum (1993) 4 NWLR (pt. 287) 512. The employee could not at his own option keep alive a contract of employment, which has been determined by the employer. At page 23-57 the Court conclude that:- "With respect to the two Courts below, I think that they missed the essential point of the dispute." "Termination" or "Dismissal" of an employee by the employers translates into bringing the employment to an end ... The two Courts below should have seen that the latter dismissal of plaintiff/appellant was irrelevant and diversionary following his earlier termination." Going by the principles established by the Supreme Court in Jumbo's case (supra), this Court cannot but agree with the trial Court's position that the conversion of the termination of Appellant by the Respondent to retirement was only gratuitous, and as provided for, takes effect from 27/4/1990.” [Emphasis mine]. It is clear from the above captured succinct decision of the Court of Appeal Per Bage JCA (As he then was) JSC (Rtd), in Eyesan’s case supra that where an employee’s employment was initially terminated and subsequently the termination was on gratuitous ground converted to retirement, the effective date of retirement would be the first date when the initial termination was communicated to him and not when the conversion to retirement was made. Besides, in this case from the tenor of the documents that made up Exhibit T4, particularly the letter dated 9th September, 1997, it was stated that the substitution was made on humanitarian ground which makes same gratuitous. It is equally clear from the tenor of the letters that it is the dismissal that is being substituted with the retirement. Both dismissal and retirement have the effect of bringing an employment to an end. See the case of Ekeagwu v. Nigerian Army [2006] LPELR-7641(CA)1@10-11, Para C. In fact, as far as I am concerned Claimant was no longer in the services of the 5th defendant from the 7th day of October, 1996 when he was dismissed and this is not in contention, the only difference is that the dismissal has been substituted with retirement. The only logical conclusion going by the decision in the case of Eyesan v. NNPC, supra and the tenor of the letters is that the retirement will take effect from the date the initial dismissal was made which was 7th October, 1996. This admits no ambiguity, in that whether or not the Claimant’s employment was determined by dismissal or retirement, the Claimant on the 7th of October, 1996 ceases to be an employee of the 5th defendant. What the later letter of conversion did was merely to change the nature of the cessation of his employment from that of dismissal to retirement, which has to date back to when the employment was determined and not when the letter of conversion was written. Thus, issue two is resolved against the Claimant.

 

33.  In view of the above, Claimant cannot be claiming salaries or leave bonus from the defendants from October, 1996 to February 1998 as he did because he is deemed to have retired from 7th October, 1996.  Besides, the law is clear that a person is not entitled to salaries for work not done. See the following case; Nwafor v. Anambra State Education Commission& Ors [2017] LPELR-42026(CA)1@32, Para A; Spring Bank Plc v Babatunde [2012] 5 NWLR (Pt 1292) 83@101, Paras C-D and; Olatubosun v. NISER [1988] 3 NWLR (Pt. 80) 25@55-56. The only instance in which an employee who did not work during the relevant period can claim salaries is if his employment is with statutory flavor and the termination of his employment was nullified thereby leading to reinstatement and a consequential order for payment of salaries. Although Claimant’s employment in this case is with statutory flavor, he did not challenge his retirement and as such he stands retired on the 7th day of October, 1996. He has ceased to be an employee of the 5th defendant since then and as such cannot claim salaries and allowances for a period which he is no longer in employment.  Thus, Claimant’s reliefs ii, iii and iv fail.

 

34. Next is issue three, parties in this case are at logger heads as to whether Claimant’s previous years in the service of Usman Dan Fodio would be reckoned in the calculation of the years of service of the Claimant with the 5th defendant for the purposes of calculation of his pension. According to Claimant by paragraphs 9-11 of the statement of claim he joined a pensionable service in the services of the Usman Dan Fodio University on the 11th June 1987 and rose to the position of Director of Administration and subsequently transferred his service to the 5th Defendant as Secretary to the 5th defendant on 29th May, 1991. The 3rd -5th defendants contended vide paragraphs 7 and 8 of the amended statement of defence on page 600 of the records that Claimant’s previous years of service before joining the 5th defendant was shrouded in secrecy and that Claimant was employed on the 29th May, 1992 as Secretary and that they are not aware of any transfer of service.  Claimant in response vide paragraphs 3 and 4 of the Reply to the amended statement of defence responded that he joined the services of the Usman Dan Fodio University in 1987 and his previous years of service were not shrouded in secrecy as alleged and that in view of the persistent denial of the status of transfer of his service, he obtained evidence of same forwarded to the 5th defendant by the Usman Dan Fodio University vide a letter. The said letter is herein as Exhibit T10.

 

35. Let me at this stage address the objection of counsel on behalf of the 3rd - 5th defendants to Exhibit T10 in paragraph 1.22 of the final written address that these exhibits were not in existence before the filing of this suit because if they were Claimant should have frontloaded it along with other exhibits. He submitted further that the exhibits were even produced during the pendency of this suit and as such not admissible. The law is settled beyond argument that the law for determining a cause of action is the law in force when the cause of action arose and not the law in force when the jurisdiction of the Court is invoked. See the cases of Zubair v. Kolawole [2019]LPELR-46928(SC)1@19, Para A and; Obiuweubi v. C.B.N [2011]7 NWLR (Pt 1247)465; [2011]LPELR-2185(SC)1@24-25,Para G. In my own respectful view, Claimant’s cause of action in this case arose when he applied to be paid his pension after the substitution of his dismissal with retirement and he was refused by the 5th defendant which in my view was when exhibit T5 was written when the 5th defendant by the content of that letter, informed Claimant in response to his application for the refund of expenses and payment of retirement benefits. Therein he was specifically told in paragraph 3 of the letter that condonation of service is done by the Federal Ministry of Establishment and Management Services and that he is advised to take the matter up with the Ministry after which final entitlement that is pension and gratuity would be properly determined. Exhibit T5 is dated 30th day of December, 1998 which in the absence of any other contrary evidence is presumably the day claimant became aware of same. Accordingly, that was the day the cause of action arose.

 

36. The point must be made that for the provision of Section 91(3) of the defunct Evidence Act, 1990, which was the law in force when this cause of action arose and which is a clone of the provision of Section 83(3) of the extant Evidence Act, 2011, to avail a party who raises objection to admissibility of a document, twin conditions must be satisfied to wit: the document must be made by a person interested and; during the pendency or anticipation of a proceeding. Thus, if a document is made during the lifetime of a proceeding by one who is a disinterested party, it cannot be caught in the mire of this provision. See the following cases; Ugwu v. Ararume [2007] 12 NWLR (Pt. 1048) 367; Owie v. Ighiwi [2005] 5 NWLR (Pt.917) 184. I have taken a closer look at Exhibit T10 and I find that the document is dated 23rd April, 2009 while the other letter therein is dated 23/4/2010 and this action was filed in the year 2012. Thus, it cannot be said that the exhibit was made during the pendency of this action. Let us even assume learned counsel is even referring to the first date the action was filed before the Federal High Court, I have gone through the file of this Court and find the record of the case before the Federal High Court and it is clear as crystal from the originating process therein that the said action was instituted in August 2010. Both letters have been made before then. As such, it cannot even be said that it was made during the pendency of the action at the Federal High Court. Again, can one say that the authority of the Usman Dan Fodio University from whom the documents making up exhibit T10 originated is an interested party in this case. The answer is obviously in the negative as the University has no interest in the outcome of this case. The letters making up exhibit T10 as such was not entrapped by the provision of Section 91(3) of the repealed Evidence Act and so is an admissible document. Thus, the objection is discountenanced.

 

37. Be that as it may, I have gone through the exhibits in this case with particular attention to exhibit T10. It is clear from the contents of Exhibit T10 that Claimant actually did a transfer of service from the Usman Dan Fodio University. In fact, the second letter dated 23/4/2010 is part of Exhibit T10 clearly shows that the Usman Dan Fodio University Authority has had previous discussion with a Board member of the 5th defendant one Alh. A. Garba Gummi over the matter and it was even confirmed therein that the documents relating to Claimant’s transfer of service which were sent to the 5th defendant were authentic. In fact, the said Usman A. Garba Gummi was even the one that received the document including Claimant’s record of service and Last pay Certificate (LPC) presumably on behalf of the 5th defendant. The document attached to the letter dated 23rd April, 2009 shows that Claimant has been released on transfer to the 5th defendant since 31/7/1992. The 3rd-5th defendants who would want this Court by their pleadings to believe that Claimant contrary to his assertion did not transfer his service did not support same by any evidence or place any evidence before the Court to dislodge exhibit T10. DW alluded to the fact that the transfer of service was not in claimant’s file in paragraph 7 of his written statement on oath but the said file or records of documents in it has not been brought before this Court. Claimant on his own part has discharged the burden on him by showing that he was actually released on transfer of service to the 5th defendant. The onus has shifted to the defendants to disprove same which they have failed to do by credible evidence.

 

38. The 5th defendant in this case has not denied knowing Alh. Usman A. Garba Gumi who was referred to in one of the letters in Exhibit T10 or denied the existence or receipt of the two letters making up exhibit T10. The law is clear that where documentary evidence supports oral evidence, it makes oral evidence more credible. See Odutola & Ors v. Mabogunje & Ors [2013] LPELR-19909(SC)1@28, Para B; Alhaji Mukaila Kotun & Ors v. Mrs Adeola Olasewere & Ors [2010] 1 NWLR (Pt. 1175) 411@437 and; Ndayako v. Mohammed [2006] 17 NWLR (Pt. 1009) 655. Allied to the above is the principle enunciated by the Courts that documentary evidence is the best evidence and oral evidence will never be allowed to discredit clear contents of a document. See the following case; Rangaza v. Microplastic Co Ltd [2013] LPELR-(CA)1@22, Para C and Egharevba v. Osagie [2009] LPELR-1044(SC)1@39, Para C. It is in the light of the above that I find that Exhibit T10 has made the testimony of Claimant in paragraph 6 of his additional witness statement on oath more credible. Also, that the ipse dixit of DW in paragraph 7 of his written statement on oath sworn on 4th February, 2022 at page 606 of the record that the defendant could not find any transfer of service is of no evidential value as it contradicts contents of the letters in Exhibit T10 which show otherwise. The law is equally sacrosanct that pleadings must be supported by evidence. See the case of Mamman & Ors v. Tukura & Ors [2021] LPELR-53297CA; Nwokorobia v. Nwogu [2009] LPELR-2127(SC)1@22-23, Para F. It is in the light of the above that I find that Claimant by the documentary evidence before the Court has been able to satisfy the Court that there was a transfer of his service from the Usman Dan Fodio University to the 5th defendant. Accordingly, I am of the view that the years of service of Claimant in the Usman Dan Fodio University must be computed as part of his years of service in the 5th defendant. Thus, question three is resolved in favour of the Claimant.

 

39. Now going to issue four, let me first address the submission of learned counsel on behalf of the 3rd to 5th defendants in several paragraphs of the final written address wherein counsel submitted that Claimant is not entitled to pension and made copious reference to the provisions of the Public Service Rules. With due respect to learned counsel on behalf of the defendants the applicable Rules to Claimant’s case was the Civil Service Rules which was in force when the Retirement took place and which in my respectful view is not the 2008 Public Service Rules but 1974 Civil Service Rules. This equally takes care of the misconceptions in the final written addresses of the Claimant and that of the 1st and 2nd defendants wherein counsel on their behalf kept referring this Court to the provisions of the Public Service Rules, 2008. The applicable Rules will be the Rules in force when Claimant was still in service and not the Public Service Rules, 2008 which was constantly referred to in the written addresses of parties.

 

40. That being said let me say that Section 159 (1) of the 1979 Constitution of the Federal Republic of Nigeria (hereafter referred to as the 1979 Constitution) which was the law in force at the relevant time of this suit provides that the right of a person in the public service of the Federation to receive pension or gratuity shall be regulated by law. Subsection (2) goes further to provide that any benefits to which a person is entitled in accordance with or under such law as is referred to in subsection (1) shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including code of conduct.  Section 277 of the 1979 Constitution has defined the public service and public servants to include "staff of any educational institution established or financed principally by the Government of the Federation.”

 

41. In my respectful view Claimant's status is to be accepted as that of a public servant and accordingly governed either by the Civil Service Rules 1974 as amended or by the provisions of Section 9 of the National Mathematical Centre Act, 1988, later in Laws of Federation 1990. It provides thus;

9. (1) Service in the Centre shall be approved service for the purposes of the Pensions Act.

(2) Officers and other persons employed in the Centre shall be entitled to pensions, gratuities and other retirement benefits as are prescribed in the Act, so however that nothing in this Act shall prevent the appointment of a person to any office on terms which preclude the grant of a pension, gratuity or other retirement benefit, in respect of that office.

(3) For the purposes of the application of the provisions of the Pensions Act, any power exercisable thereunder by a Minister or other authority of the Government of the Federation, other than the power to make regulations under section 23 thereof, is hereby vested in and shall be exercisable by the Council and not by any other person or authority.

42. By the provisions of Pension Act Cap 346, 1990 which is the applicable pension law going by the facts of this case (hereinafter referred to as Pension Act) particularly, Section 24, public service is defined as follows: “24.  In this Act, unless the context otherwise  requires, "public service" or "service" means service  under the Government of the Federation in a civil capacity or such other service in any organization specified in Schedule to this Act or such other organization as the minister may from time to time,  by order, determine to be Civil Service for the purposes of this Act and service under any superannuation scheme in respect of which there is a reciprocal arrangement for the acceptance of service as qualifying service under this Act or any  regulation made thereunder.” There is no gainsaying that pension is an accrued right of an employee, which should not be denied after satisfying the conditions for payment of the pension under the relevant law. Pension right is a right that cannot be unilaterally taken away by the employer and which right is contingent upon attaining the retirement age or relevant years of service. See the following cases; NEPA v. Adeyemi [2007]3 NWLR (Pt 1021)315; Momodu v. NULGE [1994] 8 NWLR (Pt 362)336 and; RSCE v. Omubo [1992]8 NWLR (Pt 260)456. Claimant is a confirmed public servant holding a pensionable permanent appointment who should not be denied pension if shown to be entitled under the relevant Pension Act. The pertinent question to be asked at this stage is whether or not Claimant is entitled to pension under the Pension Act.

 

43. Before answering that question, I will like to first address the submission of learned counsel on behalf of 3rd-5th defendants in paragraph 1.21 of his final written address that Section 3(1)(a) of the Pension Act, 1990 tends to suit the Claimant’s retirement except that Claimant only served for four years and not 10 years as provided in Section 3(1) (a) of the Pension Act. Let me say with due respect to counsel that his position cannot be correct as Section 3(1) (a) of the Pension Act clearly deals with entitlement to pension on voluntary retirement after qualifying service of 10 years up till 31st March, 1977 and fifteen years as from 1st April, 1977. Claimant in this case did not voluntarily retire as provided under that provision learned counsel is relying on. Rather he was compulsorily retired by the Minister pursuant to Exhibit T4. In addressing the issue of the relevant provision of the Pension Act that is applicable to Claimant’s case, I will first consider the provision of Section 24 which provides that termination in relation to an officer’s service means termination of service by retirement or withdrawal. Going by the above definition the retirement of Claimant is itself a form of termination. By this provision where a person has attained the age of 45 years he may be retired by the Minister at any time provided three months’ notice is given.  Section 3 (1)(b) of the Pension Act provides that no pension or gratuity shall be granted under the Act to any officer except on his retirement from the public service on compulsory retirement under the provisions of Section 4 of the Act. By the provisions of Section 4(2) of the Pension Act, the Minister may require an officer to retire from the service at any time after he has attained the age of 45 years subject to three months’ notice in writing of such requirement to be given. By the provisions of Section 3(2)(a) and (b) an officer who has retired pursuant to subsection (1) shall only be entitled to gratuity if he has completed 10 years and shall be entitled to pension if he has served not less than 15 years in service. By the combined effect of Sections 3(1)(b), (2)(a) and (b) and 4(2) of the Pension Act, a person who has been retired by the Minister and has attained the age of 45 years shall be entitled to both pension and gratuity if he has attained 15 years in service and is at least 45 years of age. In fact, in the case of Achimugu v. Minister of FCT, supra, the Court was of the opinion that by the provisions of Section 3 (2) (a) and (b) and 4 (2) of the Pension Act, for a public officer to qualify for pension must have been in service for 15 years and has attained 45 years of age.

 

44. From the peculiar facts of this case, Claimant’s dismissal was converted to retirement by the Minister as seen in Exhibit T4 and by Exhibit T10 claimant’s date of birth is 16th June 1950 which means that he was already 45 years when he was retired. Although the requirement of 3 months’ notice of retirement was already overtaken by the peculiar circumstances leading to his retirement. However, one fact stands sure and which is to the effect that the combination of his years of service in both Usman Dan Fodio University and the 5th defendant is not up to 10 years which would ordinarily qualify him for gratuity and also falls short of the 15 years of service requirement for pension. A perusal of Exhibit T10 clearly shows that Claimant joined the services of Usman Dan Fodio University in the year 1987 while he is deemed retired from the 5th defendant on the 7th October, 1996, the import of which is that the Claimant spent 9 years in service and thus, not qualified for gratuity and pension. Sadly, the Court does not give in to sentiments or emotions and the law must be interpreted strictly. It is in the light of the above and all reasoned supra that I find that Claimant’s case particularly reliefs (i), (iii) fail.

 

45. Reliefs vi and vii are ancillary reliefs which take their lives from reliefs i to v. The law is settled beyond controversy that where main claims fail, the incidental or ancillary reliefs must also fail. See the cases of; McDonald Scientific Emporium Ltd v. Access Bank [2021] LPELR-53301(CA)1@29, Para E; Odulaja v.  Wema Bank & Ors [2014] LPELR-23822(CA)1@13-14, Para F; Akinduro v. Alaya [2007] 15 NWLR (Pt. 1057) 312. The principle finds expression in the Latin maxim: Accessorium seguitur principale - an accessory thing goes with the principal to which it is incidental to. Thus, the incidental reliefs vi and vii which are appendages to the main reliefs fail.

 

46. It is in consequence of all the above that I find that Claimant has failed to prove his case, accordingly, Claimant’s case is hereby dismissed.

 

47. Before I conclude this judgment, I need to reiterate the cardinal principle that counsel are ministers in the temple of justice and should therefore ensure that they put in the best of their ability in conducting a case. I have observed learned counsel on behalf of the 3-5th defendants in his submissions in final written address merely cloned or reproduced the submissions of counsel on behalf of the 1st-2nd defendants without industry. In fact, he copied the submissions including the cases and all other authorities referred to by the learned counsel on behalf of the 1st-2nd defendants. In the performance of his duty as an advocate, a counsel has an abiding duty to bring out his best in advocacy and this he can do by doing an independent and original address and not a copy and paste like learned counsel did in his submission. It is sheer laziness and lack of industry on the part of learned counsel for the 3rd-5th defendants who is an Officer of the Court to reproduce the submissions of learned counsel for the 1st and 2nd defendants without independent work on his part. He did not even deem it fit to embellish the submission with other cases other than the ones relied on in the final written address of the 1stand 2nd defendants. This Court was prepared to have excellent resources or materials upon which it can consider the position of the 3rd - 5th defendants, but counsel did not do so. This is a disservice to the cause of justice and should be discouraged.

 

48. No order as to costs.

 

49. Judgment is accordingly entered.

 

 

                                                                             Hon. Justice Oyebiola O. Oyewumi

                                                                                         Presiding Judge.