IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AWKA JUDICIAL DIVISION
HOLDEN AT AWKA
BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD
DATE: MARCH 27, 2023 SUIT NO: NICN/AWK/44/2016
BETWEEN
Mrs. Ebele Obioma Nwosu - Claimant
AND
1. Federal Polytechnic, Oko
2. Rector, Federal Polytechnic, Oko - Defendants
REPRESENTATION
J.R. Nduka, Esq with M.E. Ndubuisi, Esq for the claimant.
C.J.S. Azoro, Esq with A.P. Otasowie (Miss) for the defendants.
JUDGMENT
INTRODUCTION
1. By a complaint dated and filed on 22 December 2016 accompanied with the amended statement of claim, statement on oath of the witness (as re-sworn), list and copies of Exhibits, the claimant prayed for:
a) A declaration that the acts of the Defendants in unilaterally terminating the contract of employment between the claimant and the 1st Defendant constitutes a breach of the contract between the claimant and the 1st Defendant.
b) A declaration that the acts of the Defendants in unilaterally withholding the claimant’s emoluments over the period the claimant served the 1st Defendant constitutes indebtedness by the 1st Defendant to the claimant
c) A declaration that the claimant is entitled to be paid by the 1st defendant all the indebtedness of the 1st defendant to the claimant.
d) A declaration that the claimant is entitled to work for the 1st defendant until the period the claimant attains the age of 65 years or in the alternative to be paid the said salary up to the time the claimant attains the age of 65 years.
e) Special damages in the sum of ₦5,398,679.58 (Five Million, Three Hundred and Ninety Eight Thousand Six Hundred and Seventy Nine Naira Fifty Eight Kobo consisting of:
(i) Net arrears of salary underpayments ₦3,811.991.58 (Three Million, Eight Hundred and Eleven Thousand Nine Hundred and Ninety One Naira Fifty Eight Kobo.
(ii) Unpaid salary for the period July 2015 to September 2016 in the sum of ₦1,586,688 (One Million Five Hundred and Eighty Six Thousand Six Hundred and Eighty Eight Naira)
(iii) 20% Interest upon the above sums of money referred to above until the final liquidation of the indebtedness to the claimant.
f) ₦7,000,000.00 (Seven Million Naira) being general damages for the Defendants’ breach of contract.
2. The defendants entered formal appearance and filed their further amended statement of defence and re-sworn witness statement on oath by order of Court made on 14 October 2020. To this, the claimant filed her amended reply to defendants’ further amended statement of defence dated 3 March 2022. At the trial, the claimant testified on her own behalf as CW and tendered Exhibits CW1/1 to CW1/18 while Mrs Gladys Anene, former Deputy Rector (Academics) of the 1st defendant Polytechnic testified as DW and tendered Exhibits DW1 to DW18. At the close of trial, parties filed and served their respective written addresses, the defendants’ final written address is dated 15 September 2022 and filed on 5 October 2022, while the claimant’s is dated and filed on 10 January 2023.
THE CASE BEFORE THE COURT
3. The case of the claimant is that the 1st defendant through an internal and external advertisement, advertised vacancies for employment of teachers into her Staff Schools; that claimant was among persons invited for and interviewed for the vacancies advertised; that the claimant was duly incorporated as a staff of the 1st defendant along with other staff of the 1st defendant, which included but was not limited to confirmation of appointment, issuance of Identity card with serial number covering the entire staff of the 1st defendant, participation in every administrative staff exercise such as data capturing, submission and usage by the 1st defendant for internal and external processes, commencement of pension saving scheme with the National Pension Commission (PENCOM) among others. That the National Pension Scheme Operation required that a deduction of 7.5% of each staff salary is made monthly while the Federal Government contribute (sic) 7.5% equivalent of the staff’s salary to make the 15% Pension Saving Scheme of the Staff. That the alerts received by each staff of the 1st defendant including the claimant and her colleagues revealed gross disparity in the amount paid to the claimant as salary and the amount reflected as 15% of her salary by the PENCOM Managers; that this development stirred series of questions and search for credible answers from the claimant and her Colleagues to the management of 1st defendants (sic); that situation hatched letters and protests by the claimant and her colleagues against the 1st defendant and her Managers. To the claimant, the 1st defendant resorted to withholding the salary of the claimant and her colleagues; that by a letter dated 2 August 2010, the 1st defendant contrary to the contract of employment issued by her to the claimant terminated the appointment the (sic) claimant, reversed same on 10 August 2010. That the 1st defendant issued another letter and unilaterally terminated the appointment of the claimant on 14 June 2016 and backdated same to 3 May 2016 paid a month salary out of the 10 months arrears owed. That this developments (sic) gave rise to the cause of action.
4. To the defendants, claimant was not a statutory employee of the 1st defendant but was merely employed as a staff (i.e. teacher) at the Polytechnic Staff Schools which were private institutions set up by 1st defendant to provide quality and affordable education for children of staff of the 1st defendant; that claimant’s employment had no statutory flavour; that 1st defendant was established by the Federal Government to provide polytechnic education and cannot run any other academic programme; that the Federal Government was in no way involved in the setting up and management of the staff schools. That claimant’s employment was regulated by her contract of employment which stipulated the mode of termination of the employment by either party; that claimant’s employment was terminated in accordance with the stipulated terms; that claimant’s employment is not pensionable as clarified by PENCOM. That the pension remittances to the Retirement Savings Account (RSA) of staff of the staff schools were in error because their pay slips were submitted to their Pension Fund Administrators (PFA) and/or their names were submitted in the nominal roll of regular staff of the 1st defendant.
5. That claimant was paid her full salaries from the date she was employed till date of termination of her employment; that defendants never admitted or acknowledged any indebtedness to the claimant; that the claimant is not entitled to the same salaries received by staff of the 1st defendant. That the regular staff of the 1st defendant are paid by the Federal Government, while the staff of the Polytechnic staff schools were paid from the internally generated revenue and private schools account of the 1st defendant; that the budget of the staff schools is not part of the annual budget of the 1st defendant which verified (sic) and approved by the Federal Government and passed into law by the National Assembly as part of the annual budget of the Federal Government. That the Federal Government had even clarified the position of the staff schools as private institutions to be funded by the respective entities that established them.
THE SUBMISSIONS OF THE DEFENDANTS
6. The defendants submitted three issues for determination:
(1) Whether Exhibits CW12, CW13, CW14 and CW15 ought to be discountenances/expunged as inadmissible evidence
(2) Whether the defendants were in breach of the contract of employment between the claimant and the 1st defendant when they terminated the claimant’s employment.
(3) Whether the defendants are in any way indebted to the claimant or otherwise liable to the claimant in special and/or general damages.
7. Regarding issue (1), the defendants argued that during the course of her evidence-in-chief on 2 March 2020, the claimant as CW tendered several documents, including a letter dated 6 October 2010 addressed to the Chairman of the 1st defendant’s Governing Council titled: “Polytechnic Staff Schools Oko Chronicle Off”; a letter dated 20 November 2013 addressed to the 2nd defendant titled: “Save our souls”; a letter purportedly dated 16-12-2015. “An Appeal for Rescue from the Most Impudent and Sacrilegious Rape of All Times, From the Maltreated Staff of Federal Polytechnic Oko”; and a letter dated 4 January 2016 titled: “An Appeal to the Honourable Minister of Education, for Rescue from the Most Impudent and Sacrilegious Rape of All Times, from the Maltreated Staff of Federal Polytechnic Oko.” That the said letters listed above were tentatively admitted in evidence and marked as Exhibits CW12, CW13, CW14 and CW15.
8. That Exhibit CW12 is a photocopy of a letter which was not signed by whoever authored it; that Exhibit CW13 is a photocopy which was mutilated and was also not signed by all the persons who purportedly authored same; that Exhibit CW14 is the photocopy of a letter which was mutilated and was also not signed by all the persons who purportedly authored same. That in the case of Lawrence v. Olugbemi & ors (2018) LPELR- 45966 (CA) 1 at 60 – 61, the Court of Appeal Ibadan Judicial Division, per Baba, JCA restated the law as follows:
“It is settled law that an assigned document command no judicial value, it is a worthless piece of paper which cannot benefit anybody that seeks to rely on such a document. For the document to be relied upon it must be signed by the officials of the respondent who must be unambiguously disclosed. See Omega Bank v. OBC (2005) 1 SCNJ 150, (2005) 8 NWLR (Pt. 928) 547; Adeleke v. Anike (2006) 16 NWLR (Pt. 1004) 131.”
That in the case of Omega Bank (Nig) Plc v. OBC Ltd (2005) 8 NWLR (Pt. 928) 547, the Supreme Court, per Tobi, JSC stated the law as follows:
“It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it.”
In the circumstance, the defendants submitted that Exhibits CW12 CW13, CW14 and CW15are worthless documents that have no evidential value and are not admissible in evidence. That in the case of Royork Nig Ltd v. AG & CJ Sokoto State & Anor (2017) LPELR–42506 (CA), the Court of Appeal, Sokoto Judicial Division, per Shuaibu, JCA restated the position of the law in the following words: “Where a trial Court inadvertently admits inadmissible evidence, the trial Court is under a duty to expunge it in the Course of its Judgment and not to act on it.” In the circumstance, the defendants prayed the Court to discountenance the said documents and expunge same.
9. On issue (2), the defendants submitted that parties are agreed that the contract of employment between the claimant and the 1st defendant was terminated vide the 1st defendant’s letter dated 3 May 2016 which was tendered in evidence by both the claimant and the defendants and marked as Exhibit CW9 and Exhibit DW17 citing paragraph 24of the claimant’s Statement of Claim and paragraph 14 of the Amended Statement of Defence; citing also paragraph 28 of the Amended and Re- Sworn written statement on oath of Mrs. Gladys Anene, the defendants’ sole witness. That the contension of the claimant vide paragraphs 22, 28 and 34 (d) of her statement of claim, is that her employment is pensionable with statutory flavor and that she is entitled to remain in service until she attains 65 years of age and in the alternative to be paid her salaries calculated till the date she is to attain 65 years of age; and that the termination of her employment vide Exhibit CW19 and Exhibit DW17 is unlawful. That conversely, the defendants, vide paragraphs 1, 3, 4, 5, 6, 7, 8, 10, 12, 14 and 16 of their amended statement of defence, contended that the claimant’s employment as a staff of the Polytechnic Staff Schools and not a statutory staff of the 1st defendant itself had no statutory flavor and was not pensionable; and that the said employment was properly terminated in accordance with the stipulated terms thereof.
10. That the law remains trite that the status of an employment is determined by recourse to the contents of the letter of employment or appointment; that this is because the mere fact that the employer is a corporation or institution established or created by a statute does not ipso facto make all its employments or appointments clothed with statutory flavour, citing Ujam v. IMT (2007) 2 NWLR (Pt. 1019) 470 at 490. That it is not enough to merely prove that the employer is a creation of statute, there must be proof that the employment is directly governed or regulated by that statute, especially in matters of discipline; citing Idoniboye Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589 at 631 where the Supreme Court held as follows: “Before an employment can have statutory flavor, the statute must expressly make it so. Otherwise, the employment will have to be treated on the basis of the common law principle of master and servant. For an employment to have statutory flavour, the employer must be a body set up by the statute and the establishing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline.”
11. To the defendants, the legal burden is on the claimant who alleged wrongful termination of her employment by the defendants to show by the terms and conditions of her contract of employment that the category of her employment was one which was provided for and protected by the provisions of the Federal Polytechnics Act which established the 1st defendant or some statutory regulation made under the said Act before it can be said to be clothed with statutory flavor, WAEC v. Oshionebo (2006) 12 NWLR (Pt. 994) 258. That it is undeniable that the bedrock of the claimant’s contract of employment is her letter of employment dated 31 January 2003 which was tendered in evidence and marked as Exhibit CW3 and Exhibit DW3; that the said letter contains the exact terms of the claimant’s contract of employment; that the said letter did not offer the claimant any employment as statutory staff of the 1st defendant as a Polytechnic. That instead, the said letter merely offered the claimant an employment “as Master III on GL 08 Step 4 in the Polytechnic Staff Secondary School” which is a private institution though established by the 1st defendant; that this position is further clarified by Exhibit DW10 which is a letter from the Anambra State Ministry of Education granting approval to the 1st defendant to establish the staff school, as well as Exhibits DW8, DW9 and DW11 being the letters from the National Salaries, Income and Wages Commission, the Ministry of Education, and the National Board for Technical Education (NBTE) on the status of the staff schools as private institutions. That Exhibits DW11 (which itself references Exhibits DW8 and DW9) undeniably applies to the claimant’s employment.
12. The defendants went on that the claimant’s letter of employment never stated that the claimant’s employment is pensionable, a position which was further confirmed by Exhibit DW12 which is the letter from National Pension Commission as well as Exhibit CW16 which is the 1st defendant’s letter to the State Security Service all to the effect that claimant is not an employee of the Federal Government and her employment was not pensionable as that of regular staff of the Polytechnic. That the claimant’s employment letter did not also prescribe that claimant must remain in service until she attains 65 years or any age whatsoever, rather the said letter of employment expressly stated that, “Either party may terminate this appointment by a month notice in writing or by payment of one-month salary in lieu of notice.” That claimant’s employment was terminated vide the letter marked as Exhibit CW9 and CW17; that the said letter stated that the claimant’s employment was terminated with immediate effect and that claimant was to be paid one month salary in lieu of notice, which is consistent with the prescription in claimant’s employment letter; that claimant having accepted employment on the basis of the terms as contained in her employment letter is bound thereby and cannot resile therefrom. UBA Plc v. Emmanuel Aderewaju Soares (2012) 11 NWLR (Pt. 1312) 571; AG Rivers State v. AG Akwa- Ibom State (2011) 29 WRN 1 at 161-162.
13. That a further point must be made on the issue of the claimant’s appointment; that the 1st defendant is a creation of statute i.e. the Federal Polytechnic Act; that in Section 2(1) of the Federal Polytechnic Act, the statutory functions of the 1st defendant are clearly defined as follows:
2. Functions of each Polytechnic.
(1) The functions of each Polytechnic shall be:
(a) To provide full time or part time courses of instruction and training:
(i) in technology, applied science, commerce and management and
(ii) in such other fields of applied learning relevant to the needs of the development of Nigeria in the area of industrial and agricultural production and distribution and for research in the development and adaptation of techniques as the Council may from time to time determine.
(b) to arrange conferences, seminars and such groups relative to the fields of learning specified in paragraph (a) of this subsection (1)
(c) to perform such other functions as in the opinion of the Council may serve to promote the objectives of the Polytechnic.
14. That from a calm perusal of the above provision, it is clear that 1st defendant can only run academic programs in the fields of technology, applied science, commerce, management, as well as industrial and agricultural production and distribution; that it has no powers to run academic programs in other areas of tertiary education; not to even talk of nursery, primary or secondary education. Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 523 where the Supreme Court held thus: “A corporation which is created by or under statute cannot do anything at all unless authorized expressly or impliedly by the statute or instruments defining its powers. Nze v. NPA (1997) 11 NWLR (Pt. 528) 210 at 221. That in the instant case, since the running of nursery, primary and secondary education programs do not fall within the statutory functions of the 1st defendant, the 1st defendant lacks powers to employ the claimant or any other persons whatsoever as staff to undertake such functions. The defendants then prayed the Court to hold that the claimant’s employment in the Polytechnic Staff School had no statutory flavor, was not pensionable as that of regular staff of the Polytechnic, and claimant was not entitled to remain in service until she attains 65 years or be paid salaries calculated till the date she is to attain 65 years of age, rather the said employment was that of ordinary master and servant relationship and was terminated by giving one month’s notice or paying one month’s salary in lieu of notice, and the said employment was properly terminated vide letter marked as Exhibit CW9 and Exhibit DW7.
15. For Issue (3), the defendants argued that in paragraphs 15, 16, 29, 30, 32, 34 (b) 34 (c) and 34 (e) of her statement of claim, as well as in paragraphs 19, 20, 33, 34, 36, 38 (b), 38 (c) and 38 (e) of her witness statement on oath sworn on 22 December 2016, the claimant contended that the defendants unilaterally withheld parts of the salaries paid to her by the Federal Government for the period covering August 2006 – June 2015 as well as from May 2016 – June 2016; that the defendants withheld the entire salaries paid to her by the Federal Government for the period covering July 2015 – April 2016 as well as July 2016 – September 2016 and did not pay her any salaries whatsoever during this period. That conversely, the defendants in paragraphs 10, 11, 12, 16, 18 and 19 of their amended statement of defence, as well as in paragraphs 14, 15, 16, 20, 22, 23 and 25 of the amended and re-sworn witness statement on oath of Mrs Gladys Anene sworn on 2 March 2020, insisted that the claimant was not a staff of the Federal Government and was not being paid by the Federal Government; that rather the claimant was a staff of the Polytechnic staff school which was private institution established by the 1st defendant and was being paid from the private schools account and the internally generated revenue of the 1st defendant. That the defendants further contend that they never withheld any part of the claimant’s salaries but rather paid the claimant from the time of her employment till her employment was terminated.
16. To the defendants, the position of the law in civil causes is that the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove, the standard of proof required being proof on a preponderance of evidence and balance of probabilities. Longe v. FBN (2006) 3 NWLR (Pt. 967) 228; Daodu v. NNPC (1998) 2 NWLR (Pt. 538) 355, Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; Braimah v. Abasi (1998) 13 NWLR (Pt. 581); Alhaji Otaru & Sons Ltd v. Idris (1999) NWLR (Pt. 606) 330; Itauma v. Akpe–Ime (2000) 7 SC (Pt. 11) 24. That in the instant case, the claimant who had alleged that the Federal Government of Nigeria was paying her salaries through the defendants but that the defendants always withheld part of the said salaries and for several months did not pay her any salaries at all had the burden to establish this fact; that the claimant did not produce anything to prove her assertion that the Federal Government pays her any salaries as a regular staff of the 1st defendant; that as a matter of fact, the claimant based her claims on the purported pension remittances by PENCOM to her Retirement Savings Account (RSA) with First Guarantee Pension Limited which according to the claimant, showed that her salary as paid by the Federal Government is higher than the actual amount she receives from the 1st defendant.
17. The defendants went on that the claimant did not disclose before the Court how she arrived at the figures she propounded in her statement of claim and witness statement on oath as her “salary as paid by the Federal Government”; that perhaps the claimant desired that this Court descend into the arena to embark on a journey of mathematical speculation as to how the said figures were derived. That Exhibits DW8, DW9 and DW11, being the letters from the National Salaries, Income and Wages Commission, the Ministry of Education and the National Board for Technical Education (NBTE) clearly showed that the claimant was not an employee of the Federal Government and the Federal Government did not pay her any salaries, rather she was an employee of the Polytechnic Staff School which was a private institution established and funded by the 1st defendant; that Exhibit DW12 which is the letter from National Pension Commission as well as Exhibit DW16 which is the 1st defendant’s letter to the State Security Service showed that the pension remittances to the claimant’s RSA were made in error which PENCOM promised to recall; that the said erroneous pension remittances cannot be relied on by the claimant as proof of the alleged salary payments by the Federal Government.
18. The defendants continued that in a bid to substantiate her assertion that the defendants underpaid her and also withheld her salaries during the period of her employment, claimant tendered her purported statement of account with Oko Microfinance Bank Ltd for the period covering 7 November 2002 – 7 November 2014 as Exhibit CW17 and her purported statement of account for the period covering 1 November 2014 – 10 March 2022 as Exhibit CW19; that indeed, the document tendered as Exhibit CW19 was never frontloaded with any of the pleadings filed by the claimant and was admitted in evidence despite the stiff opposition by defendants’ Counsel to its admissibility. That a calm perusal of the said Exhibit CW19 shows that it is incomplete with missing pages; that even at that Exhibit CW19 does not support the case of the claimant in that whereas the claimant in paragraph 15 of her statement of claim, as well as in paragraph 19 of her witness statement on oath sworn on 22 December 2016 insisted that she was not paid any salary for April 2016 and July 2016, Exhibit CW19 showed that the claimant was actually paid her salaries for the said period. That whereas the claimant in her said statement of claim and witness statement on oath admitted that she was paid salary for June 2016, Exhibit CW19 does not contain any such record.
19. That in a bid to avoid the consequences of these errors, the claimant, in paragraph 1(5) of her Amended Reply to Defendant’s Amended Statement of Defence consequential to the Defendant’s Amendment as well as paragraph 4 (h) of her Witness Statement on oath sworn on 23 November 2020, stated that the bank entries in Exhibit CW17 and Exhibit CW19 were replete with discrepancies in dates and figures caused by human errors, late postings, etc. To the defendants however, the claimant who is not a staff of the bank and was not in a position to know how the entries were made failed to produce any officer of the bank to point out the said discrepancies and state the correct position; that this feeble explanation by the claimant is clearly insufficient to confer any evidential weight on a document as serious as a bank statement in the absence of the banker who authored the said document.
20. That moreover, the claimant had frontloaded a different document purporting to be her statement of account from the same Oko Microfinance Bank Ltd for the period covering 1 March 2014 – 9 December 2016 as part of her Amended Reply to Defendants’ Amended Statement of Defence consequential to the Defendants’ Amendment; that the bank entries in the document are at variance and inconsistent with the entries in Exhibit CW19 for some dates; that whereas, for example, Exhibit CW19 does not contain any entry for 27 June 2016 (a date falling within the period covered by the said statement), the frontloaded statement of account which claimant did not tender showed that the claimant was paid her June 2016 salary on 27 June 2016. That as a matter of fact, Exhibit CW19 does not have any entry showing that any transaction occurred on the claimant’s account after 20 June 2016 despite the fact that the said statement purports to cover the period up till 30 March 2022; that on the contrary, the frontloaded statement of account which claimant did not tender has 10 entries of transactions on the said account after 20 June 2016.
21. That in the case of Lawrence v. Olugbemi & ors (2018) LPELR–45966 (CA), 1 at 54–57, the Court of Appeal, per Tsammani, JCA while considering the provisions of Section 167 (d) of the Evidence Act, 2011 held thus:
“The provision permits the Court to presume that evidence which could be produced by a person and is not so produced by that person but with held by him would go against that person who withholds it. However, for the presumption to apply, the Court must be satisfied that: (a) The evidence exists; (b) It could be produced; (c) It has not been produced; and (d) It has been withheld by that person who could produce it.
As stated above, all those conditions must be shown to co–exist before the presumption under Section 167 (d) of the Evidence Act, 2011 can be applied (Emphasis Supplied).
22. That in the instant case, the claimant satisfied all the conditions for the applicability of the presumption in Section 167 (d) of the Evidence Act 2011 against her. Musa & ors v. Yerima & Anor (1997) 7 NWLR (Pt. 511) 27; Jallco Ltd & anor v. Owoniboys Tech. Services Ltd (1995) 4 NWLR (Pt. 391) 534. That claimant frontloaded her said statement of account from Oko Micro finance Bank Ltd for the period covering 1 March 2014 - 9 December 2016 as part of her Amended Reply to defendants' Amended statement of Defence consequential to the Defendants' Amendment; that this shows that the said document was in existence and could be produced by the claimant; that the claimant however, failed to tender the said document in evidence but rather chose to withhold/suppress same. The defendants then prayed the Court to apply the presumption in Section 167(d) of the Evidence Act 2011 against the claimant.
23. The defendants proceeded that despite the fact that the claimant suppressed her said statement of account from Oko Microfinance Bank Ltd for the period covering 1 March 20014 - 9 December 2016 which she had frontloaded in her Amended Reply to Defendants' Amended Statement of Defence consequential to the Defendants' Amendment and refused to tender same in evidence, this Court has powers to make use of the said document which now forms part of the Court's record in this suit for the purposes of determining the case presented before the Court. Section 122 (2) (m) of the Evidence Act 2011; AG Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575 at 603; NNPC v. Tijani (2006) 17 NWLR (Pt. 1007) 29; Fumudoh v. Abora (1991) 9 NWLR (Pt. 214) 210; Onagoruwa v. Adeniyi (1993) 5 NWLR (Pt. 293) 317. That in the circumstances the instant case, particularly in view of the admitted errors in Exhibit CW17 and Exhibit CW19 and further, the inconsistencies established between Exhibit CW19 and the claimant's purported statement of account for the period covering 1 March 2014 - 9 December 2016 as frontloaded by the claimant as part of her Amended Reply to Defendants’ Amended Statement of Defence consequential to the Defendants’ Amendment, the defendants submits that the claimant has failed to produce any reliable evidence to show that the defendants underpaid her and withheld her salaries, and to further hold that the claimant was paid her salaries through the period of her employment including the required one-month salary in lieu of notice when the employment was terminated.
24. That considering that the claimant failed to prove that the defendants breached her contract of employment when they terminated the said employment, and further considering the fact that the defendant underpaid her and withheld her salaries during the period of her employment, it is most humbly submitted by the defendants that they cannot be held liable to the claimant in special and/or general damages.
25. In summation, the defendants prayed that considering the totality of the pleadings and evidence adduced in this case, as well as the arguments herein canvassed, it is submitted that the case is frivolous and lacking in merit; and as such, the Court is urged to dismiss this suit with substantial costs in the interest of justice.
THE SUBMISSIONS OF THE CLAIMANT
26. On her part, the claimant submitted five issues for determination, namely:
a) Whether claimant's employment with the 1st defendant can be said to be imbued with statutory flavor.
b) Whether the statutory flavor of the claimant's employment can be waived by the 1st defendant's claim of error and motions for correction.
c) Whether the 1st defendant's termination of the claimant's appointment breached the contract of claimant's employment.
d) Whether the claimant has proved special or general damages against the defendants.
e) Whether Exhibits CW12, CW13, CW14 and CW15 are admissible in evidence.
27. On issues (1), whether claimant's employment with 1st defendant can be said to be imbued with statutory flavor, the claimant submits that it is; that the claimant is only required to show that two ingredients coexist namely: (a) the employer must be a body set up by statute; and (b) the stabilizing statute must make express provisions regulating the employment of the staff of the category of the employee concerned especially in matters of discipline. NIMASA v. Odey (2013) LPELR-21402 (CA) Pp 39-41 paras. E-D. That there is no dispute that the Federal Polytechnic Oko is a body set up by statute; that the claimant, by Exhibit CW1 showed that it was the Federal Polytechnic Oko that advertised for employment; that the salary was HATISS (Harmonized Tertiary Institution Salary Structure) which is a salary scale applicable to polytechnic staff. That Exhibit CW3 showed that it was the Federal Polytechnic Oko that offered employment to the claimant; that Exhibit CW6 showed that her employment as a staff of the Federal Polytechnic Oko was confirmed; that Exhibit CW7 showed that she is clearly identified by the polytechnic as a member of staff whose department is Federal Polytechnic Staff School, Oko; that Exhibit CW8 showed that the claimant, at all times material, was made a participant in the Pension Funds Scheme of the Federal Polytechnic Oko; that Exhibit CW18 showed that she paid tax as a staff of Federal Polytechnic posted to the staff school as a department of Federal Polytechnic Oko.
28. The claimant continued that her Data was captured and transmitted to the Federal Government for dealings with the 1st defendant; that this fact was not contested by the defendants; that all Polytechnic staff had the same identity card with the claimant; that claimants serial number tallies with the serial number of the list of all the Polytechnic staff; that the defendants failed to produce the list of all her staff, as the application for same was refused. That 7.5% of claimant's salary had been collated for the PENCOM retirement savings in line with the Federal Government practice for all her staff; that the defendants' Exhibit DW3 is an admission that the claimant's employment was controlled by 2 rules namely: (i) the Regulations in force or which the management may stipulate from time to time, and (ii) the NBTE regulations. That the forgoing prove beyond doubt that the claimant is an employee of Federal Polytechnic Oko not just the staff school; that the staff school which is now being portrayed as having an independently existing entity is not so both de jure and de facto.
29. The claimant went on that the functions of the polytechnic is clearly set out in section 2 of the Federal Polytechnic Act; that it provides that:
1) The functions of each polytechnic shall be:
a) To provide full time or part time courses of instruction and training.
i. In technology, applied science, commerce and management, and
ii. in such other orders of applied learning relevant to the needs of the development of Nigeria in the area of industrial and agricultural production and distribution and for research in the development and adaptation of techniques as the Council may from time to time determine
b) To arrange conferences, seminars and study groups relative to the field of learning specified in paragraph (a) of this subsection (1);
c) To perform such other functions as in the opinion of the Council may serve to promote the objectives of the Polytechnic.
30. It is submitted by the claimant that the provisions above is (sic) wide enough to encompass various departments including a School Department; that it is in this light that the Polytechnic ran (sic) the staff school as a Department in the Polytechnic, included everything about staff school in their Budget, forwarded same to the Federal Ministry of Education who released to them the budgeted sums; that to turn around in Exhibits DW9 and DW10 made in 2016 to repudiate the Exhibits CW3, CW6, CW7, CW8, CW18 all made years before the 2016 documents is absurd at the very least. That it is therefore without doubt that the Federal Polytechnic Oko employed the claimant and that the power to employ was derived from statute.
31. On the issue of the establishing statute making provisions regulating the employment of the staff of the category of the employee concerned, the claimant submitted that Exhibit CW3 especially incorporated: (i) The Regulations in force or which the Management may stipulate from time to time, (ii) The NBTE regulations guiding appointment into Federal Polytechnic Staff Schools nationwide are applicable. That the said Regulations in force and the NBTE regulations are in the custody of the defendants; that it was not produced by them. That by virtue of Section 167 (d) of the Evidence Act, it is presumed that had defendants produced it, it would have been against them. That the claimant sought by way of interrogatories the production of the Annual Budget Proposal of the 1st defendant; that the defendants refused to comply with the provision of the Rules of Court to provide answers to the interrogatories; that a motion to compel production of the answers to the interrogatories was opposed; that at the end of the day, the claimant's effort to place the documents before the Court failed because the defendants do (sic) not want it seen. That again by virtue of Section 167 (d) of the Evidence Act, it is presumed that had they produced it (sic), it would have validated what the claimant is saying. The claimant therefore submitted that the fact of being employed by the 1st defendant and the employment being regulated as aforesaid shows that the claimant's employment enjoys statutory flavour.
32. Regarding issue (2), whether the statutory flavour of the claimant's employment can be waived by the 1st defendant's claim of error and motion for correction, the claimant argued that she has by Exhibits CW1, CW2, CW3, CW4, CW5, CW6, CW7, and CW18 shown that she is a staff of Federal Polytechnic, Oko; that the defendants sought by Exhibit DW8 and DW9 to distance themselves from the obligation they legally created; that as aforesaid, the claimant's salary was built into the annual budget of the Polytechnic; that the claimant demanded a copy of this budget but was denied; that the claimant's demand for discovery and interrogatories by motion was opposed and therefore denied, that the defendant in the final analysis did not produce the budget; that same went for staff list. That it is self led law that the effect of withholding an evidence under Section 149 (d) and section 137 (c) of the Evidence Act (Now Evidence Act Section 169 (d)) is that it would be presumed that if produced, it would be unfavorable to the person who withhold it. Ogwuru v. Cooperative Bank of Eastern Nigeria Ltd (1994) 8 NWLR (Pt. 365) 685 at 700; Ambari & anor v. Saraki & ors (2008) LPELR-4182 (CA).
33. To the claimant, her data was captured and transmitted to the Federal Government for dealings with the 1st defendant; that the defendants did not contest this fact; that all polytechnic staff had the same identity card with the claimant; that claimant's serial number tallies with the serial number of the list of all the polytechnic staff; that the defendants failed to produce the list of all her staff and application for same by claimant was refused; that 7.5% of claimant's salary had been collated for the PENCOM retirement savings in line with Federal Government practice for all her staff. On whether the claimant's appointment as a staff of the 1st defendant can be said to a (sic) mistake; and who was paying the counterpart PENCOM 7.5% of the claimant's retirement savings scheme, the claimant argued that the Federal Government in recognition of claimant as staff of the 1st defendant paid the counterpart 7.5% into the Claimant's Account; that the defendants' Exhibit DW5 paragraph 2 is a clear admission that claimant was employed as a staff of the 1st defendant but was from Exhibit CW10 “ordered" to see herself as staff of the Polytechnic Staff School.
34. It is the claimant's contention that the 1st defendant prepared documents in anticipation of this suit going by Exhibits DW7, DW8, DW9, DW10, DW12; that glaringly Exhibit DW12 dated 2 March 2016 is both inadmissible being a documentary hearsay evidence and is also lacking in probative value; that it is so because it was directly addressed to Mrs Gladys Anene, DW on record, in response to her letter said to have been written on 1 March 2016; that this certainly reveals more than meets the eyes. That assuming but without conceding that Exhibit DW8 dated 27 August 2014 was the position of the Federal Government, it came long after the claimant's appointment had been confirmed.
35. That the NBTE which is the body the defendants claim is responsible for regulation of the claimant's appointment is a National Body and a creation of statute; that the documents defining the terms of this purported regulation is in the custody of the defendants; that it is trite that the Court may presume the existence of certain fact "when a document creating an obligation is in the hands of the obligor, the obligatory has been discharged. Evidence Act Section 167 (b). That the defendants claimed that claimants (sic) employment was to be regulated by the NBTE regulations; that the said regulation was never pleaded nor produced by the defendants; that it is the law that the Court may presume the existence of certain facts if evidence which could be and is not produced, would if produced would be unfavourable to the person who produce it. Evidence Act Sec 167 (d). The claimant submitted that the failure of the defendants to produce the NBTE regulations as regard the claimant's employment status is fatal to their case, and claimant urged the Court to so hold.
36. For issue (3), whether the 1st defendants' termination of the claimant's appointment breached the contract of the claimant's employment, the claimant has shown by Exhibits CW3, CW6, CW7, CW8 and CW18 that she was duly employed by the 1st defendant; that the defendants on the other hand by Exhibit DW9 sought to distance themselves from the obligations created in favour of the claimant; that they further seek to rely on Exhibits DW10 and DW12 to explain away the effects of Exhibit CW3, CW6, CW7, CW8 and CW18. That as shown in issue no 1 above, the claimant's employment by the 1st defendant enjoys statutory flavour; that the termination of claimant's appointment must therefore be preceded by the procedure laid down in the Rules governing the employment with a cogent reason and not at the whims and caprices of the defendants; that the 1st defendants (sic) move to unlawfully terminate the claimants (sic) appointment is unlawful. That the defendants went to absurd level to create documents in support of their case e.g. Sample Staff Employment Document was inserted into Exhibit DW1 as opposed to CW1; that Exhibit DW12 dated 2 March 2016 was directly addressed to "Mrs Gladys Anene” the sole defence witness on record, in response to her letter said to have been written on 1 March 2016 to an office at Abuja; that this certainly undisguised invention of documents or at best a focused effort to deal with the claimant and associates. That the claimant therefore is entitled to have the employment running until properly terminated.
37. The claimant continued that the defendants by their Exhibit DW3 claimed that the claimant's employment was based on 2 rules, i.e. (i) The Regulations in force or which the management may stipulate from time to time; and (ii), the NBTE Regulations. That the onus is on the defendants to produce them to the Court and then show the regulation under which the claimant (sic) appointment was terminated; that neither of these regulations were pleaded nor exhibited by the defendants. That Section 167 (d) and (e) of the Evidence Act provides that the Court shall presumptions in such circumstances as this; that assuming (but without conceding) that the employment of the claimant is regulated only by paragraph 3 of Exhibit CW3 alone, the termination would be proper if and only if the claimant was paid one month salary in lieu of notice; that this was not the case. Exhibit CW19.
38. On issue (4), whether the claimant has proved special or general damages against the defendants, the claimant argued that she has shown by Exhibit CW3, CW6, CW7, CW8 and CW18 that she was duly employed by the 1st defendant; that as shown in issue (2) above, her employment by the 1st defendant has statutory flavour; that the termination of her appointment must be preceded by a cogent reason and not at the whims and caprices of the defendants; that the 1st defendant's move to unlawfully terminate the claimant's appointment is unlawful (sic); that the claimant is entitled to have the employment running until properly terminated. The claimant went on that by Exhibit CW19, S/N 41, dated 24 Feb (sic) 2016, the 1st defendant paid the claimant's salary for June 2016, and by implication owed arrear of salary; that she has suffered untold hardship occasioned by the defendants tampering with her monthly salary and the arrears of salary owed her.
39. The claimant added that she has incurred general damages as a result of the defendants unlawful termination of her appointment as a staff; that the defendants capitalized upon the fact that there was an entry for payment of what is called "July 2016 salary" to claim that the claimant was duly paid off; that unfortunately defendants ignore (sic) that they are the ones who control the narrative (sic) on payment of salaries into that account; that defendants ignore (sic) that all the payments into that account were made in arrears such that January 2015 payment was made on 9 April 2015 and February 2015 salary was paid on 20 May 2015 leaving out the salaries for the other months; that the presumed July 2016 was paid on 24 March 2016. It is submitted by the claimant that the defendants have the onus to show that they paid the said salary since there is no dispute that the said salaries are paid through a third party; that it is not enough to rush and pay the purported July salary when the others are not paid.
40. By issue (5), as to whether Exhibit CW12, CW13, CW14 and CW15 are admissible in evidence, it is the claimant's contention that Section 5 of the Evidence Act provides that what governs admissibility is relevancy; that Exhibits CW12, CW13, CW14 and CW15 are all documents authored by the aggrieved colleagues of the within named claimant who gathered and initiated series of search for attention and justice from the oppressive activities of the defendants. That the claimant along with her colleagues signed Exhibit CW14 and claimant's name and signature is reflected in serial number 12; that it is note-worthy to acknowledge the link between Exhibits CW12, CW13 and CW15 to the facts in issue and indeed the entire cause and effect of action in this suit. That after several complaints by the aggrieved staff of the 1st defendants (sic) in the staff school inclusive of the claimant, the 1st defendant authored and sent Exhibit CW10 on 2 August 2010 titled: Appointment of Consultant for the Polytechnic Staff School; that this was closely followed by the issuance of Exhibit CW11 dated 10 August 2010; that the aggrieved staff of the defendant (sic) in the 1st defendant's staff school threatened by the moves of the defendants agreed and authored Exhibits CW12 dated 6 October 2010 to register their grievances serially followed by Exhibits CW13, CW14 and CW15. To the claimant, Exhibits CW12, CW13, CW14 and CW15 are relevant because they are "facts" which are the occasion, cause or effects, immediate or otherwise, of relevant facts, or facts in issue, on which constitute the state of things under which the transactions that led to this suit occurred. That the sequence of the exhibits shows that they are relevant. That substantial justice is to be upheld above technicalities. The claimant then urged the Court to admit Exhibits CW12, CW13, CW14 and CW15.
41. In conclusion, the claimant urged the Court to give judgment in favour of the claimant by granting her reliefs.
DEFENDANTS’ REPLY ON POINTS OF LAW
42. Firstly, it is the defendants’ argument that while presenting arguments under issue 1 at page 3 (paragraph 5 – 9) of her final address, claimant argued that the 1st defendant is a creation of the Federal Polytechnic Act and that Section 2 of that Act is wide enough to entitle the 1st defendant to run various departments, including the staff school as a department in the Polytechnic; that this argument is most misconceived and the defendants prayed the Court to reject same. The defendants cited Agwalogu & ors v. Tura Int’l Ltd & ors (2017) LPELR–42284 (CA) and Imoh v. Imoh (2021) LPELR–52459 (CA) on the words in a statute and the Court’s jurisdiction to interpret the law as enacted by the Legislature.
43. That in the instant case, the Staff School offers only nursery, primary and secondary education. Exhibits CW1, CW2 and CW3 when read together provides proof of that fact; that Nursery, Primary and Secondary School education cannot by any stretch of interpretation come under the meaning of Section 2 (1) of the Federal Polytechnic Act.
44. Paragraphs 2.4, 2.5 and 2.6 of the defendants’ reply on points of law dwell further on Exhibits CW1, CW2 and CW3 on Polytechnic Staff School; the background to the issuance of Exhibits DW8, DW9 and DW11 and the burden of proof of the status of claimant’s employment and Section 167 (d) of the Evidence Act 2011 all tantamount to a rehash of defendants arguments in their final written address.
COURT’S DECISION
45. I have given due consideration to all the processes and submissions of the parties. The sum total of the defendants’ final written address as narrated especially in paragraphs 2.3, 4.5, 4.6, 4.7, 4.9 and 5.0 indicates that claimant failed to prove that she was employed as a regular staff of the 1st defendant and was being paid salaries by the Federal Government; that claimant was employed as a teacher in the Polytechnic Staff School which was a private institution established and funded by the 1st defendant; that claimant failed to prove that her employment was pensionable and had any statutory flavour; that the defendants breached her contract of employment when they terminated the said employment. By Awusa v. Nigerian Army (2018) LPELR- 44577 (SC), “A reply brief is filed when issues of law or arguments raised in the Respondent’s brief call for a reply. It deals with new points. Thus, a reply brief is limited to finding answers to questions raised in the Respondent’s brief, which the Appellant has not addressed or dealt with in the main brief. See Ikine & ors v. Edjerode & ors (2001) LPELR – 1479 (SC) and Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466 SC wherein Tobi, JSC aptly observed as follows – “A reply brief, as the name implies, is a reply to the Respondent’s brief. A reply brief is filed when an issue of law or arguments raised in the Respondent’s brief call for a reply. A reply brief should deal with only new points arising from the Respondent’s brief. In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna of error in the Appellant’s brief.” The legal arguments in defendants’ reply on points of law, as I stated in paragraph 44 of this judgment above, being a rehash of defendants’ arguments in their final written address is accordingly discountenanced. I so hold.
46. The defendants called to question, the admissibility of Exhibits CW1/12, CW1/13, CW1/14 and CW1/15 tendered in evidence by CW on 2 March 2020. To the defendants, Exhibit CW1/12 is a photocopy of a letter which was not signed by whoever authored same; that Exhibit CW1/13 dated 20 November 2013 is a photocopy of a letter which was mutilated and also was not signed by all the persons who purportedly authored same; that Exhibit CW1/14 dated 16 December 2015 is a photocopy of a letter which was mutilated and was also not signed by all the persons who purportedly authored same; that Exhibit CW1/15 dated 04/01/2016 is the photocopy of a letter which was not signed by whoever authored same; that the law is settled per Lawrence v. Olugbemi & ors (2018) LPELR – 45966 (CA) 1 at 60 – 61 that an unsigned document command no judicial value; that it is a worthless piece of paper which cannot benefit anybody that seeks to rely on such a document; that for the document to be relied upon, it must be signed by the officials of the respondent who must be unambiguously disclosed. See also Omega Bank (Nig) Plc v. OBC Ltd (2005) 8 NWLR (Pt. 928) 547; Badan – Lungu v. Zarewa (2013) LPELR–20726 (CA); G. S. & D. Ind. Ltd v. NAFDAC (2012) 5 NWLR (Pt. 1294) 511 at 538, Uzu v. Ogbu (2012) LPELR – 9775 (CA); Royork Nig. Ltd v. AG & C.J Sokoto State & anor (2017) LPELR – 42506 (CA). In the circumstance, the defendants prayed the Court to discountenance the said documents and expunge same.
47. In reaction to the defendants’ submissions on Exhibits CW1/12, CW1/13, CW1/14 and CW1/15, it is the claimant’s contention that all the documents are authored by the aggrieved colleagues of the claimant; that the said exhibits are “facts” which are the occasion, cause or effects which constitute the state of things under which the transactions that led to this suit occurred; that substantial justice is to be upheld above technicalities. The claimant then urged the Court to admit Exhibits CW1/12, CW1/13, CW1/14 and CW1/15.
48. On the purpose of tendering exhibits, the law as stated in Akarat v. Yabracks (2021) LPELR–53567 (CA) per Sankey, JCA is that “As has been held, exhibits are not tendered and admitted in Court for the fun of it. They are for a purpose, that is to assist in the full and proper determination of all the issues arising in the case before the Court. In addition, since they form a part of the Record of Proceedings of the Court in respect of the case, they must be examined, scrutinized and assessed for the just determination of the case. See Olaiya v. Lawal (2019) LPELR–48205 (CA) 21– 22; Bida v. Abubakar (2011) 5 NWLR (1239) 130; Lamidi v. State (2016) LPELR–41320 (CA) 47–48; Buba v. State (1992) 1 NWLR (Pt. 215) 1@17 per Mukhtar, JCA (as he then was); Ayinde v. Salawu (1989) 3 NWLR (Pt. 109) 297 at 314 – 315. The importance of an exhibit tendered in evidence in Court cannot be over-emphasized in adjudication. An exhibit denotes a document, record or other tangible objects formally introduced as evidence in Court. See University of Calabar v. Effiong (2019) LPELR–47976 (CA) 33 – 34 C-E per Ogbuinya, JCA; Lucky v. State (2016) 13 NWLR (Pt. 1528) 128.” In this Court, the practice is that documents frontloaded are deemed admitted, although arguments as to admissibility and evidential value of the documents are generally reserved for the final written address. After all, the rule is that a document wrongly admitted can still be expunged at the point of judgment or even on appeal. See Mr. Francis Owoade & 1 or v. Unity Bank Nigeria Plc unreported Suit No. NICN/LA/224/2016, the judgment of which was delivered per Kanyip, J. (now PNICN) on June 6, 2017; Akinduro v. Akaya (2007) 15 NWLR (Pt. 1057) 338, Enwerem v. Abubakar & anor (2016) LPELR-40369 (CA) and Okafor v. Okpala (1995) 1 NWLR (Pt. 374) 749 at 758. Moreover, by Ntuks v. NPA (2007) LPELR-2076 (SC); (2007) 13 NWLR (Pt. 1050) 392; (2007) 5-6 SC 1, even “where a document is wrongly admitted in evidence, its wrong admission per se is not sufficient to vitiate the judgment.” It is on the basis of these authorities that the Court admitted Exhibit CW1/19 for consideration and determination of its evidential value or otherwise; and this, notwithstanding Section 167 (d) of the Evidence Act 2011. See also Section 12 (2) (b) of the National Industrial Court (NIC) Act, 2006.
49. Exhibit CW1/12 dated 6 October 2010 and titled “Polytechnic Staff Schools Oko Chronicle Off” is a letter from The Polytechnic Staff Schools Oko. The addressee is the Chairman, Federal Polytechnic Oko Governing Council through the Rector and the Registrar of The Polytechnic Oko. Paragraph 18 of the claimant’s statement of claim (supported by paragraph 22 of claimant’s statement on oath dated 22 December 2016) states that when the defendants refused and or neglected to address the issue (of withholding claimant’s monthly emoluments), the claimant along with her colleagues wrote a letter titled “POLYTECHNIC STAFF SCHOOLS OKO CHRONICLE OFF” which was addressed to the Chairman Federal Polytechnic, Oko Governing Council through the Rector and Registrar dated 6 October 2010.
50. On whether an unsigned document may be admitted in evidence, the Supreme Court held in Ashakacem Plc v. Asharatul Mubashshurun Investment Limited (2019) LPELR–46541 (SC) per Peter–Odili, JSC thus:
“The appellant is urging this Court to discountenance Exhibit L because it was unsigned but the appellant did not take up the findings of the Lower Court which stated that this case is of peculiar circumstance that cannot be ignored. The point has to be made that the requirement of signature is made by the law to determine its origin and authenticity with regard to its maker and so where certain situations exist an unsigned document could be admissible as in this instance where oral evidence clarifying the document and its authorship as in the case at hand thereby rendering such an unsigned document admissible. This unusual but allowable exception to the general rule was well explained in this Court in the case of Awolaja & ors v. Seatrade GBV (2002) LPELR-651 per Ayoola, JSC as follows: “A signed document though valuable as putting it beyond peradventure what terms the parties have agreed to is not essential to the existence of a contract of affreightment … Clearly the parties are agreed on the said Exhibit L and that it emanated from the appellant and so the current posture on the said Exhibit L by the appellant is strange and so the Court below had its findings well supported by evidence and for effect I shall quote excerpts therefrom thus:- “Counsel to the appellant submitted that the lower Court ought not to have relied on Exhibit L because the email was unsigned. This argument, with respect, cannot hold water in the circumstances of this case because the purchasing manager of the appellant at the time, Dahiru Alhassan, one of the addressee on the email and who testified as the witness of the appellant, confirmed under cross examination, the origin and authenticity of the email and of attachment to it. He stated: “… Exhibit L is dated 12/5/2008. Exhibit L was copied to me and in the figures in the attachment of Exhibit L 6.384.469 litres according to dipping. I agree that Exhibit L is confirming Exhibit F”. The finding of the Court of Appeal on the point is unassailable and I am at one with it.”
51. The defendants had argued in paragraphs 4.2 and 4.3 of their final written address that Exhibits CW1/13 and CW1/14 were mutilated; that by Badan-Lungu v. Zarewa (2013) LPELR-20726 (CA), “… a doctored, altered or mutilated document is not credible and is not worthy of any probative value.” The defendants however, did not tell this Court how Exhibits CW1/13 and CW1/14 were doctored, altered or mutilated, thus leaving it all to conjecture without oral or other evidence. See First Bank of Nigeria Plc v. Nwokolo (2021) LPELR- 55480 (CA). And by Law and West Africa Nigeria Ltd v. Nigerian Breweries Plc (2018) LPELR- 49358 (CA), it is not enough to make a statement without proof. By law, the burden is on one to prove the point raised since he is the one alleging. See further Akinbade & anor v. Babatunde & ors (2017) LPELR-43463 (SC); Dasuki v. FRN & ors (2018) LPELR-43897 (SC) 13.
52. Having considered Exhibits CW1/12, CW1/13, CW1/14 and CW1/15 against the arguments put forward by the defendants and the authorities of Ashakacem Plc (supra) and Awolaja & ors (supra), it is my conclusion that the said exhibits have evidential value and as such will be accorded due consideration in the determination of the matters before the Court in this suit. I accordingly discountenance the submissions of the defendants on the said exhibits.
53. The claimant argued that Exhibits DW7, DW8, DW9, DW10. DW12 prepared by the defendants in anticipation of this suit are inadmissible, same being documentary hearsay evidence and lacking in probative value. Exhibit DW7 is 1st defendant’s letter dated 15 February 2016 titled: “Closure of School: A Notification.” Exhibit DW8 is a letter from National Salaries and Wages Commission dated 27 August 2014; Exhibit DW9 is a letter from Federal Ministry of Education dated 15 February 2016; Exhibit DW10 is a letter from NBTE dated 1st March 2016; and Exhibit DW12 is a letter from PENCOM dated 2 March 2016. The defendants had argued in their final written address that Exhibits DW8, DW9, DW11 and DW12 were letters from the National Salaries, Income and Wages Commission, the Ministry of Education, the NBTE and the National Pension Commission respectively. To the defendants, the erroneous pension remittances to the claimant cannot be relied on by the claimant as proof of the alleged salary payment by the Federal Government. In A.I.D. Nigeria Limited & anor v. Salisu & ors (2002) LPELR-57056 (CA), the Court of Appeal held per Tukur, JCA that: “It is indeed correct to state that the law frowns on the creation or manufacture of documents during the course or in anticipation of litigation. Section 83 (3) of the Evidence Act 2011 which prohibits reliance on such evidence provides thus: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any facts which the statement might tend to establish.” A cursory look at the above provision reveals that what is prohibited by statute is the creation or manufacture by a person of a document during or in anticipation of litigation; it does not prohibit the application for the production of a public document by a party to officials of government acting in the normal course of their duty, which in the absence of any cogent evidence to the contrary, would be taken as proper…” There is no doubt that DW (Mrs. Gladys Anene) is not the maker of Exhibits DW7, DW8, DW9, DW10, DW11, DW12; rather, she is, in my humble view, she is an official of government (1st defendant) acting in the normal course of her duty and as such the above stated principle of law will not, in my humble view, apply to render the exhibits inadmissible. I so hold. See Olomo v. Ape (2015) 14 NWLR (Pt. 1478 at 46 page 60 paras. G-H and Lumatron Nigeria Limited & anor v. First City Monument Bank Plc (2016) LPELR-41409 CA.
54. Regarding issue (a) on whether the claimant’s employment with the 1st defendant can be said to be imbued with statutory flavor, the claimant averred in paragraphs 4, 5, 6, 7, 8, 9, 12, and 22 (supported by claimant’s statement on oath dated 2 December 2016) thus:
4. Internal and external advertisement as regards vacancies in the polytechnic staff schools (Nursery, Primary and Secondary) was published by the 1st defendant on the 3rd of September 2002. The claimant pleads the internal and external advertisement dated 3rd September, 2002.
5. Invitation for the interview to the above named internal and external advertisement placed by the school was given to the claimant dated the 3rd of October, 2002 and the claimant was in attendance. The claimant pleads the invitation for the interview dated 3rd October, 2002 given to her by the 1st defendant.
6. The claimant successfully went through the interview and was successful.
7. Following the said successful interview the 1st defendant by a letter of 31st January 2003 given to the claimant entered into a contract of employment with the claimant. The claimant pleads the letter of 31st January 2003.
8. By the terms of the said contract of employment, the claimant’s contract with the 1st defendant was to serve as Master III.
9. Consequently, the claimant accepted the offer of employment and was posted to the Polytechnic Staff Secondary School, Oko belonging to the 1st defendant.
… … … …
12. In 2006, the claimant received notification of retirement Savings Account PIN Number (Personal Identification Number) and since then the claimant has been receiving both text message alerts and hard copies of pension alerts from the National Pension Commission (PENCOM) which was issued to her by First Guarantee Pension Limited.
22. The claimant states that by the nature of her contract of employment, her position with the 1st defendant is a pensionable position with statutory flavor.
55. In reaction to the claimant’s averments, the defendants’ contention in paragraphs 3, 5, 6, 9 and 12 of their amended statement of defence (supported by paragraphs 7, 9, 10, 13 and 16 of the defendants’ amended and re-sworn written statement on oath of DW (Mrs. Gladys Anene) is that the Polytechnic Staff Schools were set up as private institutions established primarily to provide quality and affordable education for the children of the staff of the Polytechnic; that the claimant was only employed as a teacher of the Polytechnic Staff Schools and the advertisement of vacancies, invitation for interviews, appointment letters, confirmation letters, promotion letters, identity cards, the statutory existence and character of the Polytechnic and the issuance of uniform Federal Polytechnic Service Numbers neither added to nor detracted from the status of claimant as staff of the Polytechnic Staff Schools. That the claimant’s employment was not with statutory flavour as no statute provides for and regulates the employment of the claimant; that the claimant’s employment was regulated by her contract of employment which among other things stipulated the mode of termination of the employment by either party and the claimant’s employment was terminated in accordance with the stipulated terms.
56. The law is settled that unless an employee’s employment is governed by statute or regulation that can be properly called a statutory or subsidiary legislation providing for procedure for the removal or dismissal of an employee, such an appointment cannot be said to be an appointment with statutory flavour. See Engr. E.O. Awala v. NITEL Plc (2019) 10 SCM 19 at 40… per Okoro JSC; and Comptroller-General of Customs & ors v. Comptroller Abdullahi Gusau (2017) 18 NWLR (Part 1598) 35 at 388 E-H per M.D. Mohammed, JSC who said:-
“The law on the point must be restated thus: where a statute clearly provided for the employment and discipline including an employee’s retirement and even dismissal, the employment must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent with the statute prescribe is null and void.” (Emphasis the Judex). See further Central Bank of Nigeria v. Ohiku (2020) LPELR-51274 (CA).
The claimant in this suit did not indicate by which statute her contract of employment was governed or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance, the claimant has not shown how her employment is vested with a legal status higher than the ordinary employer/employee relationship. As claimant’s conditions for appointment or determination of her appointment are not governed by the preconditions of an enabling statute, it is my conclusion that her appointment is not one with statutory flavour. I so hold.
57. On whether the defendants were in breach of the contract of employment between the claimant and the 1st defendant when they terminated the claimant’s employment, it is the contention of the claimant by paragraphs 22, 28 and 34 (d) of her statement of claim (supported by paragraphs 26, 32 and 38 (d) of claimant’s statement on oath) that her employment is pensionable with statutory flavour and she is entitled to work for the 1st defendant until the period she attains the age of 65 years or in the alternative, to be paid the said salary up to the time that she attains the age of 65 years. On the contrary, the defendants urged the Court to hold that the claimant’s employment was duly and rightly terminated in accordance with the stipulated terms; that the first termination letter dated 2 August 2010 was withdrawn via the letter dated 10 August 2010 by the defendants; that the defendants never backdated the letter dated 3 May 2016 terminating the appointment of the claimant.
58. There is no gainsaying that pension right is one that an employee has and must enjoy if proved. Case law authorities abound on this point. For instance, by Momodu v. NULGE (1994) 8 NWLR (Pt. 362) 336 CA, a pension is an accrued right of an employee, be the right in money or other consideration on retiring from the services of his employer and satisfying the condition for payment of the said pension. It is a right which cannot be unilaterally taken away by the employer. NEPA v. Adeyemi (2007) 3 NWLR (Pt. 1021) 315 on its part held that entitlement to pension and gratuity is a vested right; and whether an employee is eligible for pension and gratuity can be decided only by reference to the conditions of service. By RSCE v. Omubo (1992) 8 NWLR (Pt. 260) 456, in a pensionable employment the employee’s right to pension ripens in the year of his retirement; until then that right is only contingent upon attaining his age of retirement.
59. By the explanatory note and section 1(1) of the Pension Act, the Pension Act deals with civilian employees in the public service of the Federation, as such the pension and gratuity grantable is to “any person on his retirement from the public service of the Federation…” Section 24 of the Pension Act then defines “public service” or “service” to mean “service under the government of the Federation in a civil capacity or such other service in an organization specified in Schedule 2 to this Act or such other organization as the minister from time to time by an 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 regulations made thereunder.” Section 24 goes on to provide that “qualifying service” means service in the public service or any approved service which may be taken into account in determining whether an office is eligible by length of service for a pension or gratuity. Now, pursuant to Section 15 (2), in the Second Schedule to the Pension Act, organisations declared as public service under the Act are then listed. Federal Government is listed as well as Federal Government agencies, institutions and corporations. State Government or State institutions, agencies and corporations are not so listed. Section 15 (1) of the Pensions Act on its part talks of transfer of service from the civil service to a civil service of a state or voluntary agency teaching service within the Federation to vice versa. The instant case is not one of transfer of service by the claimant as to make the Pension Act Cap 346 applicable to her case.
60. The product of all of these provisions is that case law authorities abound in holding that the Pensions Act Cap 346 LFN applies only to employees in the public service of the Federation. For instance, Ukelele v. FBN Plc (2011) LPELR-3869 (CA) held thus:
Section 3 (2) (b) and (c) of the Pension Act Cap 346 LFN 1990 is not applicable to this case which is between respondent (bank) and the appellant (clerk). The Pension Act applies to employees in the public service of the Federation…
Psychiatric Hospital Management Board v. Ejitagha (2000) 11 NWLR (Pt. 667) 154; (2000) 6 SC (Pt. II) 1 on its part held thus:
The mere fact that a person is said to be in public office does not ipso facto entitle him to pension or bring his service under the Pension Act so as to subject his appointment to the provisions of S. 4 (2) of the Act. The second schedule to the Act lists the organizations and establishments declared as a public service under the Act. There are over one hundred of such Federal Government parastatals listed in the Second Schedule. The Psychiatric Hospital Management Board (respondent) is not there…
And by Abdullahi v. Military Administrator, Kaduna State & ors (2009) LPELR-27 (SC); (2009) 15 NWLR (Pt. 1165) 417 SC:
Which of the Pensions statute is applicable? Is it the Pensions Act as contended by appellant or the Pensions and Gratuities Law of Kaduna State? The applicable statute, in my view, is the Pension and Gratuities Law, Cap III, Laws of Kaduna State 1991…
What is clear and evident from all of these authorities is that the Pensions Act Cap 346 LFN 1990 is not an all-comers law. It applies only to employees of the “public service of the Federation,” a term that does not include “public service of a state” if section 318 (1) of the 1999 Constitution defining both terms is anything to go by. The claimant in the instant case is not an employee of the public service of the Federation but that of Federal Polytechnic Oko Staff Secondary School and so cannot claim the benefit of Cap 346 LFN 1990. As it is therefore, it is my holding that the claimant is before this Court under the wrong law.
61. Even if this was not the case, and the claimant is appropriately before this Court under the right law, there is the issue whether the claimant has made out her case. Under Section 4 of the Pensions Act Cap 346 LFN 1990, “termination” in relation to an officer’s service means termination of service by retirement or withdrawal. Given this definition, therefore, the termination of the claimant’s employment by the 1st defendant would mean termination of service by retirement or withdrawal. However, Achimugu v. Minister of FCT (1998) NWLR (Pt. 574) 467 held that by virtue of Sections 3 (2) (a) and (b) and 4 (2) of the Pension Act, for a public servant to qualify for pension he/she must have been in the service for 15 years and aged 45 years at the time of his/her retirement.
62. On the whole, and for the reasons given, it is my holding that the claimant as per the Pension Act Cap 346 LFN 1990 is claiming under the wrong law and as such has not successfully made out her case. The Pension Act Cap 346 LFN 1990 is not applicable to the claimant. This being so, I cannot grant her claims. They fail and are hereby dismissed.
63. Relief (e) is a claim for special damages in the sum of ₦7, 538, 958. 69 consisting of the following:
(i) Net arrears of salary underpayment ₦3, 811, 911.58.
(ii)Unpaid salary for the period July 2015 to September 2015 (excluding May and June 2016) in the sum of ₦1, 586, 688.00.
(iii) 15% Pencom contributions from August 2006 to September 2016 in the sum of ₦2, 140, 279.11.
(iv) 20% interest upon the above sums of money referred to above until the final liquidation of the indebtedness to the claimant.
(v) ₦7million being general damages for the defendants breach of contract.
64. The claim for special damages is governed by special rules. In Onyiorah v. Onyiorah & anor (2019) LPELR-49096 (SC) the Supreme Court held per Rhodes-Vivour, JSC that: “special damages must be specially pleaded and strictly proved by the claimant. To succeed in a claim for special damages the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. The claimant must satisfy the Court as to how the sum claimed as special damages was quantified.” And this Court has in countless cases stressed these rules as they pertain to monetary claims in labour relations. In NNPC v. Clifco Nigeria Ltd (2011) LPELR-2022 (SC), the Supreme Court stressed thus:
… Special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as in the case with general damages. They are exceptional and so must be claimed specially and proved strictly…
… Evidence ought to be led before an award for special damages is granted. To succeed in a claim for special damages it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and so there is no room for inference by the Court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the Court.
65. And then in 7UP Bottling Company Plc v. Augustus (2012) LPELR-20873 (CA), the Court of Appeal per Aba Aji, JCA (now JSC) held thus:
The claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded. See Taylor v. Ogheneovo (supra); Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; A.G. Leventis Ltd v. Akpu (2002) 1 NWLR (Pt. 747) 182; Garba v. Kur (2003) 11 NWLR (Pt. 831) 280; Osuji v. Isiocha (10989) 3 NWLR (Pt. 111) 623; Otaru & sons Ltd v. Iris (1999) 6 NWLR (Pt. 606) 330. The Respondent has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these item.
66. Given these principles, this Court in Mr. Mohammed Dungus & ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39 held that the rule is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employer and his/her employee. This Court in same case went on to hold thus:
“I must emphasize here that throughout their written address, the claimants made no attempt whatsoever to indicate to the Court the exact provisions of the documents they frontloaded that grants them the entitlement they claim. Merely frontloading a document and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right is not sufficient. Counsel should not expect that it is the Court that will shop for the relevant article that substantiates the claim of his/her client. This is very bad advocacy and cases can be lost just on that score.”
67. And in Mr. Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, this Court held thus:
In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.
See also Stephen Ayaogu & 16 ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017 and Lijoka Olaniyi Dennis & 1677 ors v. First Franchise Service Ltd & anor (2019) 2 NICLR 27-96.
68. In fact, Mr. Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc (2015) LPELR-2463 (CA) specially cautions against the reliance on an oral contract as proof of such entitlement.
69. The sum of it is that in labour relations, two things must be proved in monetary claims: the entitlement to the monetary claim, and how the quantum of the monetary claim was arrived at. In the instant case, the question is whether the claimant has proved the net arrears of salary underpayments and unpaid salaries.
70. On proof of salary underpayments the claimant sought reliance on paragraph 15 of her statement of claim (complimented by paragraph 19 of her statement on oath dated 22 December 2016) in which she narrated the emoluments due to her by way of salary the claimant is entitled to have received. The total amount due to the claimant based on the arrears of underpayment going by the net pay of ₦8, 523, 984.58 and salary received of ₦4, 711, 993 is ₦3, 811, 991.58. By Exhibit CW1/19 (claimant’s account statement with Oko Microfinance Bank Limited for the period 1 November 2014 to 30 May 2022), the claimant showed how much the 1st defendant paid her as salary and by Exhibit CW1/8 (Notification of claimant’s retirement savings account PIN number) showed that she had access to how much the 7.5% the Federal Government paid into her RSA. To the claimant, Exhibit CW1/19 showed the 1st defendant’s irregularity with the payment of her monthly salary; that by S/N 41 dated 24 February 2016 the 1st defendant paid the claimant’s salary of ₦48, 601.00 for June 2015 and by implication owed claimant arrears of salary.
71. The claimant made mention of the emoluments due to her by way of salary. The claimant did not place the instrument by which her emoluments were stated. The claimant did not tender any pay slip to show what her gross or basic salary was. Aside the offer of appointment to the claimant as Master III on GL08 Step 4 in the Polytechnic Staff Secondary School, Exhibit CW1/3 dated 31 January 2003 did not state her salary. While Exhibit CW1/19 actually covered the period 22 November 2014 to 20 June 2016 (and not 1st November 2014), the claimant’s pleadings in paragraph 15 on her emoluments date back to 2006. The pleadings and the evidence must sing the same song; and if they choose to dance, they must dance to the same music. The law is that pleadings not backed up by evidence is abandoned and evidence without the backing of the pleadings comes to no issue. See Maisamari Bit Bit & anor v. Ngi Sarkin Kudu & ors (2021) LPELR-55267 (CA). See also Addy v. Unimaid (2022) LPELR-57186 (CA); Igbinovia v. GLO (2021) LPELR-54592 (CA); Union Bank of Nigeria Plc v. Koleoso (2019) LPELR-47970 (CA). Relief (e) is a claim for special damages. And by Onyiorah v. Onyiorah & anor (2019) LPELR-49096 (SC) special damages, as I stated before, have to be pleaded and proved. This must be so for they (special damages) are damages of the type that the law would not infer from the nature of the act. As they do not flow in the ordinary course, being exceptional in their character, they must be claimed specially and proved strictly. See Ekennia v. Nkpakara & ors (1997) 5 SCNJ 70, 90; Badmus & anor v. Abegunde (1999) 7 SCNJ 96. Where items of special damages are not specified and strictly proved as in the instant case, recovery of same will not be granted. Nwanji v. Coastal Services (Nig) Ltd (2004) LPELR-2106 (SC).” This means that relief (e) fails and so cannot be granted. It is accordingly dismissed.
72. The claimant’s claim in reliefs (a), (b), (c) and (d) are for declaratory reliefs, while reliefs (e) and (f) are for special damages and general damages respectively. The rule is that “the Court does not make a declaration just because the parties to the litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument not merely after admission by the parties. There are no declarations without arguments, that is quite plain.” See Akaninwo & ors v. Nsirim & ors (2008) LPELR-321 (SC); (2008) 9 NWLR (Pt. 1093) 439. In any event, aside from reliefs (e) and (f) wherein the claimant seeks ₦5, 398, 676.58 as special damages and ₦7 million as general damages respectively from the 1st defendant, in seeking declarations for unilateral termination, withholding of emoluments, entitlement to be paid all indebtedness and to work until the claimant attains the age of 65 or in the alternative to be paid salary up to the age of 65 years, the claimant did not ask for any accompanying order in that regard. In other words, even if this Court were to grant the four declaratory reliefs and the salaries and indebtedness sought in reliefs (e) to (f), the declarations will merely be in vain as the claimant did not seek any order in their regards. This is because, a declaration merely declares the right of the parties and is dormant beyond that; without more, it has no force of execution. See Albion Const. Ltd v. Rao Invest. & Pro. Ltd (1992) 1 NWLR (Pt. 219) at 511-622; Govt of Gongola State v. Tukur (1989) 4 NWLR (Pt. 117) 592; Construzioni v. NPA (1972) 12 SC 107 and Akunnia v. AG Anambra State (1992) 1 NWLR (Pt. 215) 75.
73. The failure of the claimant to prove reliefs (a) to (e) means that the claim for general damages must accordingly fail. I so hold.
74. In all, and for the reasons given, the claimant has not proved her case. It accordingly fails and is hereby dismissed.
75. Judgment is entered accordingly. I make no order as to cost.
Hon. Justice J.I. Targema, PhD