Dr. Kester K. Nebo -VS- The Managing Director Enugu State Printing and Publishing Corporation (ESPPC) & 5 ORS- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

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

DATE: TUESDAY MARCH 21, 2023 SUIT NO: NICN/EN/53/2020

BETWEEN:

DR. KESTER K. NEBO…………………………………………................CLAIMANT

AND

1. THE MANAGING DIRECTOR ENUGU

STATE PRINTING AND PUBLISHING

CORPORATION (ESPPC)

2. GOVERNMENT OF ENUGU STATE OF

NIGERIA

3. ENUGU STATE PRINTING AND PUBLISHING

CORPORATION (ESPPC) DEFENDANTS

4. HIS EXCELLENCY GOVERNOR OF ENUGU

STATE

5. COMMISSIONER FOR JUSTICE AND

ATTORNEY-GENERAL, ENUGU STATE

6. COMMISSIONER FOR INFORMATION

ENUGU STATE

APPEARANCES:

1. CHIEF C.P. AGU – FOR THE CLAIMANT.

2. I.I. EZE WITH C.C. OKEKE (MRS.) – FOR THE DEFENDANTS.

JUDGMENT

INTRODUCTION

COMPLAINT commenced this suit December 09, 2020. This was accompanied with Statement of Facts [SF]. The reliefs claimed in paragraph 29 of the SF are listed hereunder:

i. A Declaration by the Honourable Court that it was unlawful for the Defendants not to pay full pensions of Fifty One Thousand Three Hundred Naira monthly due to the Claimant despite availability of funds at the disposal of the Defendants;

ii. A Declaration that the prolonged nonpayment of the Claimant’s retirement entitlements by the Defendants is a violation of the Claimant’s human right to life, source of livelihood and dignity and must be restrained with heavy and exemplary cost for their insensitivity and impunity;

iii. Order of Honourable Court mandating Defendants jointly and severally to pay the claim of Nine Million, Six Hundred and Thirty Two Thousand, One Hundred Naira (N9,632,100) and subsequent increase as is due for other pensioners in the state only to Claimant via his named First Bank Nigeria Plc Account No. 200151949;

iv. Order of the Honourable Court for the Defendants to pay interest of 10% annually to the Claimant on the aforesaid gratuity, pension and salary arrears from September 2013 to the date of delivery of judgment and final payment of aforesaid claims to the Claimant;

v. Order of Honourable Court on the 1^st, the 2^nd, the 3^rd, the 4^th and 5^th Defendants to hence forth pay full monthly pensions of Fifty One Thousand, Three Hundred Naira (N51,300) only to the Claimant without short falls;

vi. Order of Perpetual Injunction restraining Defendants, their agents, privies, successors-in-office or whomsoever and or by whatever manner from harming, threatening or causing disadvantage or discrimination, reprisal, impunity, etc. on the claimant for bringing this constitutional process for the rule of law before this Honourable Court as Defendants are very powerful politicians.

vii. N10, 000,000.00 (Ten Million Naira) being special and general damages for incapacitation and dehumanization of the claimant.

Against the above, the defendants filed Further Amended Statement of Defence [FASD] on June 30, 2022, to which the claimant replied, by Reply to Defendants’ Statement of Defence [RDSD] filed March 11, 2021 and, Further Statement of Facts [FSF] filed April 5, 2022. Those are the pleadings filed. The judgment moves to summary of the pleadings.

STORIES TOLD BY THE PARTIES

A: Claimant’s Story

The claimant pleaded that; he is now virtually impaired but retired on GL 16/7 as Director of Administration of the Enugu State Printing and Publishing Corporation [ESPPC] in 2013 and, has not been paid his gratuity, full pension and salary shortfalls till date, despite several demand notices to that effect. He pleaded that, he was being paid merely N13,000 monthly pension in spite of the fact that, the defendants have not employed staff to replace the retired staff and, are still receiving the original subventions, while the Enugu State Government had been receiving allocation on monthly basis and even bailout of N14.2 Billion and others from the Federal Government [FG], in addition to the Internally Generated Revenue [IGR] and yet, refused to pay the claimant. The claimant pleaded further that, the Enugu State Government owned the 3^rd defendant. The claimant further pleaded that, despite not paying him as pensioner, the 2^nd&4^th defendant siphoned millions monthly as security votes and that, by failure to pay his entitlements, they dehumanized him and made him disable; exposing him and his family to acute poverty, starvation, frustration and death. He pleaded that; he was deprived medical attention as a result.

The claimant pleaded the monetary assistances from the NBA, Enugu Branch and the Chairman Enugu State Pensioners rendered to him on account of his abject poverty. He pleaded that; these denials have incapacitated him and rendered him incapable of practising law and engaging in any viable private work. Accordingly, the claimant claimed the reliefs earlier reproduced above. In addition to the foregoing story, the claimant has further story in his FSF. In it, the claimant stated that, in 2018, he approached the MD and, he gave him the two charts which contain the names of all the staff of the 3^rd defendant and their entitlements, wherein his name was No. 48 & 76 on the two lists. He pleaded further that, the PS Finance conducted verification exercise and a printout was issued to him, which put his entitlement at N51,300.00 but that, he is being paid N13,000 less N130.00 pension union deduction, which gives rise to the outstanding balance of N38,300. He pleaded further that, he applied for CTC of the current payment schedule but the 1^st defendant refused to give him and instead, criticized the charts attached with the application in the letter dated April 01, 2022. That being the end of the claimant’s story, I move to the defendants’ counter-story.

B: Defendants’ Counter-Story

Through the defendants’ joint FASD, they told their counter-story. They counterpleaded that, certificate of service is not a document that could establish entitlement to pension/gratuity and that; it even breached the Public Service Rules [PSR] Rules 020902, 020903 & 020904. They counter-pleaded that, there was no record that the claimant presented himself for documentation, as pensioner and that, he was not paid the amount of pension he was entitled to. They counterpleaded that, the sources of the 3^rd defendant’s revenue are provided in S. 26(1) of the ESPPC Law and that, the 2^nd defendant has no legal responsibility to fund the 3^rd defendant, as it is a self-sustaining corporation and that, because, it has not generated enough funds over the years, it has not been able to fund the claimant’s pension and gratuity.

The defendants only admitted that, the 6^th defendant is the supervisory officer of the 3^rd defendant. They also counterpleaded that, they did not know anything about the document captioned “Statement of Outstanding Salaries, Allowances and Pension” and the other document titled “ESPPC Pension Arrears as at December 2015”, as they are fakes, and did not emanate from the defendants. They further counterpleaded that, the claimant personally forged these documents and abused his former position as the Director of Administration to use the names of the staff and inflated the figures of their terminal benefits. They gave the particulars of forgery. The defendants counterpleaded paragraph 6 of the claimant’s FSF by saying, the claimant never applied for the information on his record but that, the defendants should certify the two documents they did not produce. The defendants counterpleaded that, the suit disclosed no reasonable cause of action and that, the office of the governor could not be sued. They finally counterpleaded that; the claimant is not entitled to all the reliefs claimed. That is the end of the defendants counter-story. I move to the claimant’s rebuttal in the RSD.

C: The Claimant’s Rebuttal

The claimant’s RDSD filed March 11, 2021 replied that, claimant retired in 2013 at age 60. He replied that, the Enugu State Public Service Rules [PSR] was not retrospective, as it became operative in 2014 and therefore, his Certificate of Service is valid and that, until invited as a retiree, he could not go for clearance and that, he went for clearance when he and other retirees were accordingly invited, which led to the printout issued him and that, his documentation was fully done and that, it was after this that, the reduced pension of N13,000 being paid him, was approved by the MD. He replied that, in 08/02/2021, he and other retirees went for clearance in which the PS Finance was in attendance and, he was cleared and sent for computer capture and Internet posting and then, issued with a printout. He replied that, he had never refused an invitation for clearance. He replied that, the charts were actually produced by the Accounts Department but deliberately unsigned, for fear of the 2^nd and 4^th defendants, who did not want to hear about the retirees’ entitlements. He replied that, it was only the administration of Chime that paid the full retirement benefits of retirees. He replied that, the defendants deliberately suppressed information, by failing to use the claimant’s file in their possession to draft their defence and that, he did not cast any aspersion on the defendants, as he only stated the obvious. He replied that, since he retired in 2013, he is yet to receive his gratuity, full pension and salary shortfalls, despite repeated demands, which made him and his family to starve till date. That ends summary of the RDSD, and the pleadings. The judgment moves to summary of the proceedings.

SUMMARY OF PROCEEDINGS

The case first came up February 24, 2021. It came up next July 14, 2021 and next, December 01, 2021, on which date, it was adjourned for definite hearing, which could not go on. It subsequently came up next February 22, 2022. The defence motion for amendment of the SD was granted. Thereafter, the case opened with the claimant as CW1. The claimant referred to his Written Statements on Oath [WSOs] made 09/12/2020 and 11/03/2021. It was adjourned at this juncture on account of the claimant. The matter came up next March 01, 2022 and, the claimant adopted his WSOs earlier referred. The claimant’s counsel secured another adjournment at this juncture. The case came up next March 15, 2022 and Exhibits C1-C10 were admitted. Yet another adjournment was secured at the claimant’s instance. It could not go on April 05, 2022 at the claimant’s instance yet. On June 01, 2022, the claimant’s motion filed April 05, 2022 was granted. The case was subsequently adjourned.

The matter came up next July 05, 2022 and, the defendants’ application to regularise their FASD was granted. Thereafter, the claimant adopted his FWSO made 05/04/2022. Exhibits C11 & C12 were admitted and the claimant closed his testimony-in-chief, while the case proceeded to Cross-Examination [XX].

Under XX, CW1 admitted he signed letters written as director when they were relevant. CW1 dodged to answer the question: whether he signed letters written by him as director and said, he would send the daft to the Managing Director [MD] and would not know what happened thereafter but that, the final letter would have the name and signature of the MD. He answered that, he would treat unsigned and undated document without the author’s name as genuine, once the information it carries is correct. To the question that, the 3^rd defendant determined his conditions of service like salary and others, he said, it was just agent of the Enugu State Government under the direct control of both the Ministries of Information and Finance and that, the 3^rd defendant is a non-profit organisation that publishes for the government only and, would not publish anything against government. CW1 agreed he was not a member of the IGR Team and the RMAFC in the presidency but that; he was in touch with their functions and that, the RMAFC doled out billions to states every month and published these. The XX was brought to an end without re-examination. Thereafter, the case was adjourned for defence.

It came up for defence October 19, 2022. Defence opened with one Chukwudi Agudiegwu, who testified as DW1. He said he was the Director of Finance of the 3^rd defendant and that, he swore to three WSOs on 09/02/2021; 11/01/2022 and 30/06/2022 and adopted them. Exhibit D1 was admitted and the DW1 was surrendered for XX.

Under XX, DW1 agreed that, all other accountants, in the 3^rd defendant were from Ministry of Finance and that, the claimant had retired. He said he was posted to the 3^rd defendant in August 2019 and that; all the pieces of information in his WSO were passed to him. He admitted that, the claimant had not been paid his gratuity since 2013 but that, he was not aware claimant had not been paid his pension within same period. He insisted that, the claimant did not present himself for documentation and that, he could not remember seeing the claimant’s name in the list by the Ministry of Finance. To the question that, since he deposed that, the claimant did not do documentation, how has the claimant been paid his pension, he replied that, he met a table of how pension was paid when he came in as accountant and followed suit but said he did not tender the table because, he was not informed to bring it. He said he was not aware of the claimant’s certificate, to the question that, the certificate was reviewed downward from GL 16/7 but that, he was aware that, the status of the staff of the 3^rd defendant was changed by 2001 gazette, which made the 3^rd defendant a fully owned Enugu State property. He admitted that, the Enugu State House of Assembly approves the budget for the 3^rd defendant, while the Ministry of Finance audits its accounts.

DW1 said he was however not aware that, the Ministries of Finance and Information promote the staff of the 3^rd defendant. He admitted that, verification was done in 2021 for all retirees. To the question that, since February 2021, the 3^rd defendant took no further step to pay its retirees, DW1 said, this is not peculiar to the 3^rd defendant but to all Government retirees because, since then, Government appointed a team of accountants to verify the retirees in Enugu State and that, they were waiting for Government but that, he has no evidence of the fact that government actually set up the panel. The XX came to an end at this point without re-examination, while the case was adjourned for adoption of Final Written Addresses [FWAs]. It came up on January 17, 2023 for adoption and the claimant’s motion to regularise filed 13/01/23 was granted and, the adoption was further adjourned.

It finally came up for adoption on January 25, 2023. I.I. EZE with C.C. OKEKE (MRS.) adopted the defendants’ FWA and Reply On Points of Law [RPL]. Thereafter, CHIEF C.P. AGU adopted the claimant’s FWA. Thereafter, the case was adjourned to February 15, 2023 for judgment. But judgment was not ready on this date, and for that reason, it was adjourned off record sine die. When it became ready, date was communicated to the erudite counsel to the parties. That being about the proceedings, the judgment moves to summary of the FWAs.

SUMMARY OF THE FWAs

A: Defendants’ FWA

JANE U. EZENWUKA franked the defendants’ FWA. Erudite counsel franked two issues:

A. Whether from the evidence placed before the Court, the claimant proved his case and is entitled to the reliefs sought by him. [sic]

B. Whether this suit discloses reasonable cause of action against the 1^st, 2^nd, 4^th, and 6^th defendants. [sic]

Arguing issue a, the erudite counsel submitted that, the gists of the claimant’s grievances are as stated in paragraphs 29 and 30 of the SF and that, in proof thereof, the claimant tendered Exhibits C2 & C5, which did not measure up to the essential ingredients of the claims, as the claimant failed to prove that, his monthly pension was N51,300, while the defendants paid him N13,000 monthly. The erudite counsel urged the Court to disregard Exhibit C5 because; the persons, whose names appeared on it, did not sign it. The erudite counsel submitted further that, Exhibit C2 did not prove that, the defendants paid claimant the sum of N13,000 monthly pension and that, this was more so because, on 6^th November 2019, the sum of N12,870.00 was paid against the sum of N13,000 paid in September and October and, the claimant did not satisfactorily explain the discrepancy, as the claimant did not explain why the purported pension union dues were not deducted for the previous months and cited S. 131 of the Evidence Act to show that, the burden of proof was on the claimant. The erudite counsel consequently urged the Court to disregard Exhibit C2, as there was no nexus between it and the defendants and, to hold that the purported monthly payment of N13,000 was a fluke.

The erudite counsel argued that, it was wrong for the claimant, who laid claim to 87 months arrears of pension from September 2013-November 2020 to tender just three months bank statement covering only September 01-November 30, 2019. The erudite counsel raised the poser that, it leaves doubt, as to whether the months left out were not paid in full. Erudite counsel submitted that, since Exhibit C2 was best evidence, oral evidence could not vary it and cited Ugharevba v. Osagie (2009) 12 SC (Pt. 111) 123. Erudite counsel submitted that, the defendants were home and dry to take advantage of the weaknesses in the claimant’s case and cited Ibero v. Ume-Ohana (1993) 2 SCNJ 156 and thus, the defendants brought out the inadequacies in the pleadings and evidence of the claimant and, consequently urged the Court to dismiss the claim for N3,332,100.00. The erudite counsel thereafter moved to the issue of shortfalls in salaries.

Erudite counsel argued that, the claimant failed to lead evidence on how he arrived at the N2,200,000 salary shortfall from 2004-2013, as he did not give evidence of his monthly salary and how much he actually received for the alleged period; and submitted that, for this reason, it is impossible to know the alleged shortfall. He submitted that, in civil cases, the burden of proof is on the person who pleads a cause and cited E.D. Tsokwa & Sons Company Ltd v. UBN Ltd (1996) 12 SCNJ 445 and S. 131 of the Evidence Act. Erudite counsel therefore urged the Court to hold that, the claimant failed to prove the alleged shortfall and moved to the issue of unpaid gratuity.

Erudite counsel argued that, the claimant tendered Exhibits C5 & C12 in respect of the gratuity of N4,100,000.00 and submitted that, both documents were unhelpful to the claimant, as there was material contradiction between the two on the amount of gratuity without explanation from the claimant. He submitted that, no finding of fact could be made on the contradictory evidence and cited Wachukwu & Anor v. Onwunwanne & Anor (2011) 5 SC (Pt. 1) 168. The erudite counsel submitted that, apart from the contradiction, none of the exhibits supported the N4,100,000 being claimed as gratuity and therefore, there is no credible evidence to prove the sum claimed as gratuity. The erudite counsel urged the Court not to attach any weight to both Exhibits C5 & C12, as they were hotly contested at trial as forged and, unsigned document by their purported makers, and cited Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) 458 at 568-569 and Omega Bank Plc v. OBC Ltd (2005) 8 NWLR (Pt. 928) 547 at 581 to the effect that, unsigned document has no weight and is not admissible in evidence. Erudite counsel finally urged the Court to hold that, the claimant failed to prove entitlement to the alleged gratuity of N4,100,000. That ended arguments on issue a. The erudite counsel moved to issue b.

Under issue b, which is on the absence of reasonable cause of action against the 1^st, 2^nd, 4^th-6^th defendants, the erudite counsel argued that, the 3^rd defendant, being duly incorporated, the claimant has no right to sue them, as they have no legal duty to finance the 3^rd defendant, while the 1^st and 5^th defendants are no more than agents of disclosed principal. Erudite counsel cited S. 38 of the Constitution, to the effect that, the 4^th defendant has immunity against suit, while the 6^th defendant is not a legal personality. He argued that, the 3^rd defendant has, over the years, not generated enough revenue to meet its obligations. He cited Ayodele James V. Mid-Motors Nig. Co. v. GBN Line (1985) NSCC 933 and Osigwe v. PML & Ors (2009) 1-2 SC (Pt. 1) 80 on the effect of corporate personality of the 3^rd defendant and that, only principal of disclosed agent could be sued.

Erudite counsel submitted that, since the 1^st defendant was not proved to have acted outside its authority, he could not be sued, thus; no reasonable cause of action was disclosed against him ditto: the 2^nd defendant, as there was no specific allegation made against it. Erudite counsel also argued that, the suit disclosed no reasonable cause of action against the 3^rd defendant because, the 3^rd defendant has not generated enough profits over the years to shoulder its financial liabilities and, as such, cannot be compelled to perform magic. Erudite counsel argued too that, all the allegations of sources of revenues to the 3^rd defendant were not proved. Erudite counsel argued that, equally, no single allegation was made against the 5^th defendant; and that, even though, the 5^th defendant, as the Chief Law Officer of the Enugu State, is suable as nominal party, but the suit could exist without his being joined, as the 3^rd defendant is a corporation with legal personality. Erudite counsel submitted that, the 6^th defendant, not being a legal personality could not be sued and there was also no cause of action pleaded against him. On the whole, the erudite counsel submitted that, the suit disclosed no reasonable cause of action against all the defendants.

The erudite counsel finally urged the Court to dismiss the case. The judgment moves to summary of the claimant’s FWA.

B: The Claimant’s FWA

CHIEF C.P. AGU franked the claimant’s FWA and submitted two issues for the Court to determine the case, to wit:

1. Whether this suit discloses reasonable cause of action against the 1^st, 2^nd, 4^th, 5^th and 6^th defendants?

2. Whether from the evidence placed before the court, the claimant proved his case and is entitled to the reliefs sought by him?

In arguing issue 1, which is on reasonable cause of action, the erudite counsel argued that, contrary to the assertion of the defence counsel, the case disclosed reasonable cause of action against the named defendants because, the facts pleaded showed infractions of the claimant’s rights by the defendants. He argued that, by the Enugu State House Assembly’s incorporation of the 3^rd defendant in 2001, it transmuted from Star Printing and Publishing Company Ltd to Enugu State Printing and Publishing Corporation and by this fact, fully became Enugu State’s property and, the mouthpiece of the 2^nd and 4^th defendants, to render social services without profits. To buttress this, the erudite counsel argued that, the State Assembly makes yearly budgetary allocation to it, to pay pension and gratuity and that, the 1^st defendant is the agent of the 2^nd and 4^th defendants, whose appointment was made vide the 6^th defendant’s recommendation, who heads the supervisory ministry. He submitted that, by this virtue, the 2^nd and 4^th defendants run the day-to-day activities of the 3^rd defendant through the 1^st defendant.

He submitted that, the sum of N13,000 less N130 is paid to the claimant monthly, as pension thus, withholding the balance sum of N38,329. He submitted that, the 5^th defendant failed in its duty to advise the defendants and ignored the pre-action notice [Exhibit C8 and the demand notices Exhibit C6]. The erudite counsel surmised that, arising from the foregoing the claimant disclosed reasonable cause of action against all the defendants. The erudite counsel thereafter moved to issue 2.

Under issue 2, which is whether the claimant proved his case, the erudite counsel argued that, contrary to the assertion, the claimant proved his case and, is entitled to the reliefs sought. Erudite counsel cited SS. 121, 133(a) and 143 of the Evidence Act on how and when facts are deemed proved. Erudite counsel argued that, the claimant proved his case by reliance on Exhibits C1-C5 and the case of NPF v. Kiribien [Unreported NICN/ABJ/170 delivered December 03, 2019] on how to prove entitlement to arrears of salaries and terminal benefits. He also cited 7UP Bottling Compnay Plc v. Augustus (2012) LPELR-20873 (CA) to the effect that, claims for terminal benefits are special damages and, submitted that, Exhibit C5 referred to the claimant’s salary scale with an annual salary of N653,400 and the Staff Verification Printout [Exhibit C2], which specified the pension payment information, showing that, the claimant was entitled to gross pension of N51,329.20 and was only being paid N12,870, excluding union dues of N130 and that, this was paid from source into the claimant’s account as attested by Exhibit C1.

The erudite counsel argued that, the 3^rd defendant’s name on Exhibit C1 was abbreviated to EPPC. The erudite counsel argued that, Exhibit C12 showed that, the claimant was listed as No. 76 with benefit standing at N7,122,233.90 at April 2017 and that, the essence of Exhibits C1, C2, C5 & C12 was to prove the claimant’s entitlement to the reliefs sought. He argued that, the entitlement of 84 months stated in the pleadings was at December 2020, when the suit was filed and that, since then, it had increased to 109 months, which made it N4,174,700 and, still counting. He argued that, the claimant fell ill in 2015 and pleaded with the defendants to pay part of his entitlements to enable him treat himself and they refused. Erudite counsel cited Exhibits C6 and C9 and, submitted that, as a result, the claimant became virtually impaired, diabetic, hypertensive and a host of other diseases, as complications, including mental torture and pains. Erudite counsel argued that, the claimant had been made to become pauper and to lose dignity while his family life had been destroyed such that, the NBA had had to come to his rescue financially. The erudite counsel argued that, the refusal to pay the claimant amounts to breach of SS. 33, 34 & 37 of the Constitution. He submitted that, for these reasons, the Court must find the defendants liable.

The erudite counsel argued that, the defendant had not shown, by a shred of evidence that, the claimant is not entitled to the reliefs claimed, after the claimant had satisfied the initial burden on him. The erudite counsel argued that, this is more so, since they are the sole custodians of the claimant’s pension documents, and they failed to produce the documents in their possession to contradict the claimant. The erudite counsel argued that, the withholding of these documents, signifies that, had they been produced, they would have been unfavourable to them and cited Onujuba v. Obienu (1991) 4 NWLR (Pt. 183) 16 SC. The erudite counsel argued that, Exhibit D1 did not relieve the defendants of their duty of paying their liabilities, besides the fact that, it relates to 2012 when claimant was still in service and not now. He submitted that, this shows that, they are being economical with truth. He argued further that; rather than assist the defendants, Exhibit D1 actually supports the claimant’s case, by the admissions therein contained. He argued that, the name of the claimant as director and that of Odo as the MD, as reflected in Exhibit C12 as pensioners, were confirmed.

Erudite counsel submitted that, if the defendant had produced their current financial statement from 2013 to date, the Court would have seen the true truism of the claimant’s claims. The erudite counsel submitted that, all the authorities cited by the defence are inapplicable. Erudite counsel urged the Court to hold that, the defendants are jointly and severally liable. Thus, ended the claimant’s FWA. The judgment moves to the Reply on Points of Law [RPL].

C: Defendants’ RPL

M.U. EMENIKE franked the defendants’ RPL. The erudite counsel argued that, the claimant’s submissions at paragraphs 4.1.7-4.1.10 are fresh pieces of evidence cloaked as address, as they were neither pleaded nor contained in the claimant’s WSO. The erudite counsel submitted that, FWA address could not substitute for evidence. The erudite counsel therefore urged the Court to expunge the arguments. Erudite counsel replied that, the submissions on paragraph 4.1.13 are speculative and should be ignored, as the claimant did not show how he came to know that, the 5^th defendant failed to advise the defendants. He submitted that, the refusal of a client to follow lawyer’s advice is not a reason to sue the lawyer. Erudite counsel argued that, after the expunction, the claimant’s issue No. 1 falls flat.

Erudite counsel replied that, paragraph 4.1.11 is another piece of evidence through the backdoor and, an attempt to amend the claimant’s pleadings and reliefs sought. The erudite counsel replied that, the submissions in paragraphs 4.2.12, 4.2.13 and 4.2.18 on the claimant’s health are misconceived in the absence of medical certificate, whereas, the claimant, who is said to suffer from the worst terminal diseases, including virtual impairment attends court alone without assistance, showing the deceit. Erudite counsel submitted that, emotion has no place in law and urged the Court to discountenance these submissions. The erudite counsel finally urged the Court to dismiss the suit. That ends the FWAs. The judgment moves to its decision.

But before then, it is necessary to say, I have carefully read all the pertinent processes, as is evident in my summaries above and digested them. I have taken quality time to look at some of the important authorities cited and to research further authorities that would enable the decision to be persuasive and cathartic. I have also taken note of the demeanours of the witnesses. I am aware that, I did not summarise the WSOs of the witnesses but I have carefully summarised the evidence under XX. This is because, the WSOs are the exact copies of the parties’ pleadings, which I have carefully earlier summarised above. But I have read them and would make references to them wherever necessary. Off to the Court’s decision I go.

COURT’S DECISION AND THE RATIONES DECIDENDI

I adopt the two issues formulated by the erudite claimant’s counsel. They are more relevant to the facts of the case and better captured the two illogical issues formulated by the erudite defence counsel. They are:

1. Whether the suit discloses reasonable cause of action against the defendants?

2. If the answer to 1 above is yes: whether the claimant proved his case to be entitled to the reliefs sought?

I take them seriatim. In arguing issue 1, which the defence formulated illogically as issue 2, in the formulation of the issue, the defendants left out the 3^rd defendant, but eventually argued that, no reasonable cause of action was also made against the 3^rd defendant because, it did not make profit, to the knowledge of the claimant, to be able to meet its independent financial liabilities. In essence, it means, the defendants argued that, no reasonable cause of action was made against all the defendants. As pleaded and, as the evidence on record suggests and, as argued by the erudite claimant’s counsel, and conceded by the erudite defence, the 3^rd defendant, which was originally fully incorporated as a limited liability company, was taken over by the Enugu State Government, via a law passed by the Enugu State House of Assembly in 2001 and, its status and that of its staff transformed to that of public service/public servants – see p. 37 of Proceedings File for DW1’s answer under XX and, paragraph 5 of the SF for the pleading on the transmutation of the 3^rd defendant.

In effect, it means both the 3^rd defendant and its staff became public service and public servants respectively. From the above, it is clear, the 3^rd defendant is no longer a limited liability company, but an institution established directly by the law of Enugu State House of Assembly to perform government public functions. It and its staff now fall under the category of public services/officers listed under S. 318 of the Constitution – at public service of a State – (e): staff of any statutory corporation established by Law of a House of Assembly. The Court of Appeal has clarified how to determine whether a corporation is government agent in NIPOST & Anor v. Mokwenye (2014) LPELR-24491 (CA) 9-11 and F-AOlubukola & Anor v. AGF (2016) LPELR-41451 (CA) 34, B-D to the effect that, incorporation is immaterial in the determination, but the actual functions and practice of the entity. If it carries out solely government functions, whether or incorporated, it is government agency. Evidence abounds in the instant case, apart from S. 318 of the Constitution that, the 3^rd defendant publishes only for the Enugu State Government and, is not allowed to publish to make profits; and that, its principal staff are appointed and seconded by the Enugu State Government and that, the Ministry of Information directly supervises it, as a parastatal under it. In effect, the 3^rd defendant has no independence as a corporation has.

The claimant had pleaded the positions and functions of each of the defendants in the allegations relative to this suit. It is trite that, where issue of reasonable cause of action is raised, courts only examine the claimants’ originating processes to determine it and that, in doing that, courts are not at that stage concerned with the weaknesses in the claimants’ cases or whether they would or not be able to prove their claims. The litmus test is: as the claims stand, are they capable of being tried with any chances of success, were they not defended? If the answer is yes, the cases resonate reasonable cause of action – Fidelity Bank Plc v. Marcity Chemical Industrial Ltd & Ors (2022) LPELR-56866 (SC) 28-29, D-B. I found, as narrated above, that, there is nexus between all the defendants and the causes of action, as pleaded. Following the lead of the Supreme Court above, I therefore hold that, there is reasonable cause of action against all the defendants, more particularly so that, the case had actually gone on trial before the issue was belatedly raised. I now look at the issue of the 6^th defendant, not being a juristic personality.

Following the authority of Carlen Nigeria Limited v. University of Jos & Anor (1994) LPELR-832 (SC) 25-32, F-C, 31-32, F-C, wherein the Supreme Court reviewed the law on juristic personality and, was of the view that, notwithstanding that, a statute had created a body and nominated its juristic organ, any of its organs or bodies or anybody acting on its behalf, even though, not specifically imbued with juristic personality, could be sued eo nomine, aside or along with the very juristic body donated for it by statute, in as much as the body, organ or person is conferred with functions and duties that could infringe the rights of persons – see Access Bank Plc v. Agege Local Government & Anor (2016) LPELR-40491 (CA) 29, D-E. I therefore uphold the joinder of the 6^th defendant as necessary and proper. Proper parties are those against whom the decisions of courts could logically and naturally be enforced against, either in their official or private capacities. The 6^th defendant is such a person in his official capacity, especially in contempt proceedings for disobedience to the Court’s decision, in the event that, the case goes against the defendants – Gassol v. Tutare & Ors (2013) LPELR-20232 (SC) 29, E-G.

The erudite defendants’ counsel had conceded that, the AG [5^th defendant] could be sued as a nominal party. We need not waste time on that. The AG was sued as the Chief Law Officer in order that, by this, he might be more alive to his responsibility to properly advise the government on the causes of action, if he shares the view of the claimant and, otherwise, if he did not. In circumstances, as in this case, it is necessary to join the AG because of the technicalities involved with enforcement of judgments against government, if the decision, per chance, goes against the defendants – see CBN v. Interstella Communications Ltd & Ors (2017) LPELR-43940 (SC) 124-126, C-A. I therefore hold that, the AG is a necessary and proper party in the suit. Lastly, I look at the issue of the Governor not being suable. I state straight away that, the Governor was not sued in his personal capacity to warrant his coming to court or being personally compellable to come to court but officially as a nominal party. This is perfectly in order and not covered by the doctrine of absolute immunity of the Governor against suits – see Governor Ekiti State & Ors v. Olubunmo & Ors (2016) LPELR-48040 (SC), in which the Governor was lawfully sued in his official capacity and no one complained. In view of the foregoing, it follows that; issue 1 is resolved in favour of the claimant and against the defendants. The suit disclosed reasonable cause of action against all the defendants. The defendants’ arguments that, the suit disclosed no reasonable cause of action lack merits and are liable to be dismissed. They are accordingly hereby dismissed. The decision moves to issue 2.

Issue 2 deals with whether the claimant proved his case and therefore entitled to the reliefs sought. Firstly: what is required to be proved in a suit on failure to pay pension and gratuity or underpayment of same? From Aharanwa v. Peoples Bank of Nigeria Ltd & Anor (2018) LPELR-43985 (CA) 30-31, A-D it is clear that, in a claim for pension and gratuity or shortfall in the payment, the claimant ought to plead what his salary and grade level were and the amount paid and the amount of the shortfall. What is the evidence in line with the above authority? The claimant tendered Exhibits C1, C2, C3, C5 & C12. Exhibit C1 is bank statement, which covers September 01-November 30, 2021, showing that, the 3^rd defendant [ESPPC] paid the claimant N12,870.00, by way of remittances on October 13, 2021 for September 2021 and November 12, 2021 for October 2021. The defendants have attacked this pieces of evidence that, it did not show categorically that, the 3^rd defendant was the payer – see paragraph 4.1.12 of the FWA.

Though, I noticed that, the defence counsel referred to Exhibit C2, as the bank statement, whereas, it is Enugu Civil Service Staff Verification Printout in the Exhibit C2 with me. I also noticed too, September 05, 2019 and October 03, 2019 quoted did not reflect in the Exhibits C1 and C2 actually admitted in evidence. I wonder the documents counsel relied on for his address! Be that as it may, I do not know the basis of the bizarre argument. ESPPC is the acronym for the 3^rd defendant, which the claimant had used in the suit from the very beginning – see the name of the 3^rd defendant in the originating processes and its acronym. That argument lacks merits and is accordingly dismissed.

The defendants have made another argument that; the claimant ought to have tendered all the bank statements from the beginning in 2013 to date to show that, he had not been paid the full pensions for the period for which he did not tender bank statement. Firstly, what the claimant pleaded about his pension is negative assertion that, he was not paid his full pension since retirement, but instead, he was being paid mutilated part and tendered the bank statement from September 2021 to November 2021 to show the receipt of the N13,000 less N130 deducted upfront for pension union – see paragraph 22 of RDSD, which gives the balance of N12,870 received monthly. In a situation like this, it is the duty of the defendants, if they plead the positive assertion of paying the correct pension at any material point, to show evidence of such payment and, not the claimant, who asserted the negative that, his pension was mutilated from the beginning till date – see Omorogba & Ors v. Governor of Lagos State & Ors (2018) LPELR-49866 (CA) 19, E and especially, Bolou v. Federal College of Education, Obudu & Anor (2019) LPELR-47465 (CA) 22-24, C, where the Court of Appeal succinctly stated the law thus:

“On the failure to pay three months salary in lieu of notice as stated in the letter of termination, the burden was on the party who asserts the affirmative as required by Section [sic] 131 and 132 of the Evidence Act. The Appellant’s negative assertion does not place any burden to prove so. See WUNLA VS. UCHE (2010) 2 NWLR (PT 1179) 582 AT 586. The Respondents were duty bound to show that they actually paid the said sum or if there was an offset in view of the directive given to the Appellant to make a refund to the 1^st Respondent, how it was offset. There was no such evidence before the trial Court…It is settled law that where a Respondent fails to react to an issue he is deemed to have admitted it…I can see at pages 85 [sic] of the record of appeal some amount as tabulated by the Advances Office against some outgoing staff. If the Respondents did an offset against the three months salary, they should have said so and supported it by evidence. However, there was no such evidence before the Court outside the mere ipsi dixit of DW1.”

The claimant has proved as much of the negative assertion that falls on him that, his pension has been mutilated to N13,000 monthly, by tendering Exhibit C1. To show that the defendants do not even know what their defence should be in this case, they pleaded in paragraph 12(iv) of the FASD thus:

“That to the knowledge of the claimant, the 3^rd defendant has over the years not generated enough funds/revenue to meet its statutory duties and obligations, including payment of claimant’s pensions and gratuity. The defendants hereby plead audited account of the 3^rd defendant.”

Clearly, the implication of the above pleading from the defendants is clear, full and unequivocal admission of liabilities that, the claimant was not paid his pensions and gratuity at all. What is admitted needs no further proof – Ndukwe v. The LPDC & Ors (2007) LPELR-1978 (SC) 64, C-D. The claimant is even honest enough to say, he was being paid N13,000 monthly pension from inception till date, which was not even necessary in the first instance, being negative assertion, and in the second instance, being that, the defendant admitted full liability without limitation. The knowledge and documents that the claimant had been paid his pension and gratuity or part thereof are peculiarly within the possession of the defendants and, they ought to produce them in proof of their assertion and not to start asking the claimant to plead and prove how he was not paid his full pension from inception till date and, his gratuity till date – AG Rivers State v. Amam (2021) LPELR-56320 (CA) 60, A-C. It is sufficient if the claimant merely pleaded the date from which his cause of action of not being paid his pension and gratuity began. Where the defendants failed to produce evidence to contradict these, they are attended with the evidential consequence that, were these documents produced, the documents would have confirmed the claimant’s story and negative their contrary assertions - Ogbonna & Anor v. Ogbuji & Ors (2013) LPELR-21945 (CA) 23, A-D.

The claimant also tendered in proof of his case, the Certificate of Service [Exhibit C3], which is on the letterhead of the 3^rd defendant and it showed that, the claimant began his service on 9/7/1992 and ended it on 15/9/2013. The defendants have pleaded that; it is invalid because, it is in breach of the PSR 020902, 020903 & 020904. The defendants, who have pleaded in paragraph 12(1) of the FASD that: “the 3^rd defendant is a self sustaining corporation with power to borrow funds, generate revenue and invest such funds for the purposes of carrying out its functions” could not turn round to say, the same 3^rd defendant is subject to the PSR, which governs civil servants and, which would mean, it is not independent as pleaded. The aggregation of the defendants pleading as quoted above is that, the 3^rd defendant is a corporation that is totally independent of the public service.

The pleading, at one hand that the 3^rd defendant is an independent corporation and, at the other hand that, it is subject to the PSR, amounts to blowing hot and cold on the same issue, which the law does not permit – Eyiboh v. Mujaddadi & Ors (2021) LPELR-67110 (SC) 58, B-C. A party must be consistent in the case being made to enjoy the attention of the court – Comptroller-General of Custom & Ors v. Gusau (2017) LPELR-42081 (SC) 17, D. It cannot be a public dependent agency of government at one breadth and at another totally independent corporation. These pieces of substantial and directly contradictory evidence renders the whole pieces of evidence on the status of the 3^rd defendant, from the defendants, liable to be disbelieved – Damo v. The State (2016) LPELR-40239 (CA) 14-15, C-B.

Besides, the defendants, who claimed that the PSR made the Certificate of Service invalid failed to plead, why and how and, the law is that, irrespective of the PSR being a subsidiary legislation, once a case is based on breach of its provisions, those provisions and how they were breached, must be pleaded to sustain the infringements pleaded – Ikuma v. Civil Service Commission Benue State & Ors (2012) LPELR-8621 (CA) 18-19, 23-24 and Suleiman v. Civil Service Commission of Ondo State & Ors (2015) LPELR-41796 (CA) 21-22, A. Though, the cases applied the rationes decidendi in issue to claimants, nevertheless, they apply by logic to defendants, where they make a defence out of the PSR, on which the claimant did not build his case, on the basis of the law that, he who asserts proves. In any case, I do not see how the Certificate of Service, which the 3^rd defendant issued to its retired staff, would breach the PSR, assuming the PSR is applicable to the claimant.

The claimant tendered Exhibit C2 [Staff Verification Printout], the authenticity of which DW1 had attempted to deny under XX, by saying, he could not see the name of the claimant in the verification document with the Ministry of Finance. But he failed to tender any verification document done by the Ministry of Finance and the 3^rd defendant other than the one tendered by the claimant. With the unshaken evidence of the CW1 under XX on this issue, there is no doubt that, the Exhibit C2 was authentic and that, the DW1 was lying on oath to the Court. To induce belief in any reasonable tribunal in a case in which the defendants had pleaded clearly that, the 3^rd defendant did not pay the claimant’s pension and gratuity because, it did not make profits and went on to tender Exhibit D1, which at p. 17 shows that, the 3^rd defendant had been making losses since 2008 to 2012, is to show the verification the defendants made that showed different results than as contained in Exhibit C2.

The defendants left out the audit reports for 2013 to date, which would have shown the 3^rd defendant’s state of affairs relative to the claimant’s retirement and, did not also tender the table the DW1 admitted he met at the 3^rd defendant and, had been using to pay the claimant’s pension to show that, what he paid is different to what the claimant pleaded and proved or to dispute any document the claimant tendered. The defendants did not call those that purportedly did the data capturing or show his own version of the verification sheet, to show that, the claimant’s name is not there. Yet, the name of the official who captured the claimant in the verification the claimant tendered is clearly written there, as Nzekwu John and, it carried the letterhead of the Enugu Civil Service Staff Verification Printout. I therefore have no reason to doubt it and, I accordingly take cognisance of it.

On Exhibit C2, the claimant’s pension amount is put at N51,329.20 which corresponds with the figure pleaded at paragraphs 3 & 28(a) of the SF and 3 & 4 of the FSF and, gave evidence accordingly. Let me state that, the state of facts at existence determines what needs to be proved. Here, the 3^rd defendant has commenced payment of the claimant’s pension, albeit mutilated, and the claimant has shown why and how this was mutilated. I take judicial notice that, pension is paid monthly besides the fact that, paragraph 28(a) of the SF showed clearly that, the N51,300 is monthly pension. The erudite defence counsel has argued too that, the figure pleaded and the total amount are now different from the one presented in the claimant’s erudite counsel’s address and that, address is not a substitute for evidence. I think this is mere splitting hairs. From the pleadings and evidence before the Court, it is clear that, the claimant is complaining about monthly deductions in his pension from the inception in 2013 till date. Pension is a monthly continuing cause of action which would only terminate at the termination of the claimant’s existence on earth – CBN v. Amao & Ors (2010) 16 NWLR (Pt. 1219) 295-296, A-E.

In paragraph 28(a) the claimant pleaded 87 months. That is clear to any reasonable person that, it meant 87 months at the time the pleading was drafted and did not stop the continuance of liability till date, as held in CBN v. Amao [supra]. Though, I concede that, it is totally inelegant for counsel not to carefully plead that, the claimant was claiming till date, but this is very obvious more so, when the defendants have admitted that, the 3^rd defendant did not pay the pension and gratuity from inception till date. Even the figure claimed by the claimant’s counsel in the FWA, which the defence counsel is complaining about, can no longer be correct in view of the period that has elapsed since the case was adjourned for judgment, in view of the continuance nature of the pension and its mutilated monthly payments.

The pension is a liquidated sum demand, with the known arithmetical shortfall basis of N38,300, which just requires mere arithmetic multiplications of N38,300 from September 2013 to the date the judgment of the Court is complied with – WEMA Securities and Finance Plc v. Nigeria Agricultural Insurance Co. Ltd (2015) LPELR-24833 (SC) 75, D-F and G.M.O. Nworah & Sons Company Ltd v. Akputa (2010) LPELR-1296 (SC) 8-9, A-C. Hence, the argument that, the claimant’s counsel gave evidence is not correct. He could do the calculation to the date he did and state the obvious reason for it, as permissible with liquidated money demands and by judicial notice that, pension is continual cause of action on monthly basis. By all these, I feel certain that, the claimant has proved his entitlement to the monthly pension of N51,300 monthly, the mutilation to N13,000 monthly and therefore, the arrears of N38,300 monthly till judgment is complied with. And I accordingly grant the claimant the arrears of mutilated pension of N38,300 from September 2013 till the date they are paid and, thereafter, the full monthly pension till death and, the benefit of any subsequent increment of pension. I now move to the issue of the gratuity. At paragraph 28(c), the claimant had pleaded the sum of N4,100,000 as his gratuity. He gave evidence to that effect in his 1^st WSO of December 09, 2020 at paragraph 29(c) thereof. Gratuity is lump sum payment at the end of service – Intels (Nig) Ltd & Ors v. Bassey (2011) LPELR-4326 (CA) 13-14, D-A.

One peculiar fact of this case is that, the claimant pleaded and tendered documents to show what his gratuity has been calculated to be. The defendants clearly admitted the indebtedness of the pensions and gratuity in paragraph 12(iv) of the FASD [supra]. I need to repeat this verbatim once again:

The defendants, who have admitted owing the claimant pensions and gratuity cannot turn round, to start making case about the exact amount of the gratuity owed the claimant, by attacking the documents submitted by the claimant, without pleading and stating clearly what exactly they owed the claimant and the basis of arriving at the sum admittedly owed and without tendering any contrary document. The principle of law with regard to indebtedness is as stated in First City Monument Bank Plc v. Rophine Nigeria Limited & Anor (2017) LPELR-42704 (CA) 10-12, E-B:

“…Once a debt is admitted it must be given effect regardless of any excuse or technicality thrown in to derail the process. The position of law is settled that the burden is on the debtor to show that he paid off the amount against him if he denies indebtedness. Mere denial of indebtedness is untenable in law, a defendant must state why he is not indebted in full or in part…”

The above ratio decidendi is correct beyond reproach because, it is an extension of the law that, the debtor has the primary duty to calculate and seek out his creditor and pay him the debt, without promptings, as at when due – National Bank (Nigeria) Limited & Anor v. Shoyoye & Anor (1977) LPELR-1948 (SC) 16, A-D. Hence, in the first instance, it is the defendants’ duty to sum up the pension arrears and the gratuity and seek out the claimant and pay him his pension arrears and the gratuity. In the instant case, the defendants have tendered Exhibit D1 to support that the 3^rd defendant was not in a position to meet its financial obligations because; it has not made profit since eons. In doing this, the defendant left out the relevant year, which is 2013 that, the claimant became entitled to the pension and gratuity till date and, also failed to state the exact gratuity the claimant is entitled to, but began to cavil at the contradictions in the documents tendered by the claimant to support his right to gratuity and the fact that, these documents were not signed. Going by the authority of First City Monument Bank Plc v. Rophine Nigeria Limited & Anor [supra] as supported by the Supreme Court in National Bank (Nigeria) Limited & Anor v. Shoyoye & Anor [supra], the cavil of the defendants cannot stand in the way of payment of the claimant’s pensions and gratuity, which the defendants have admitted they owed.

It is the defendants’ duty to calculate and pay the claimant his arrears of pensions and gratuity. It would be unconscionable to encourage the defendants in their nefarious and wicked behaviour to deny the claimant entitlement to his arrears of pensions and gratuity without just cause. Let me state clearly that, even were it feasible, under the erstwhile common law regime, to go away with such odious and insensitive dishonesty, it is no longer possible in view of the provisions of the Constitution in S. 254C-(1)(f), which eschew all forms of unfair labour practices in employment relations in Nigeria. It is totally unconscionable and smacks of sheer insensitivity and dishonesty of the highest order for government, which is expected to lay good example in probity and accountability, to seek to rely on a fraudulent defence scheme that promotes dishonesty, to deny a citizen his rightful pension and gratuity. The NIC is a court of living equity, by virtue of SS. 13&15 of the National Industrial Court Act [NICA] and would not admit of the law being used as instrument of injustice or fraud by any of the parties. That is what S. 254C-(1)(f) of the Constitution, which forbids unfair labour practices, envisioned.

Yes, I have examined the Exhibits C12 and C5 that the defendants attacked with virulence. Firstly, Exhibit C5 has no relevance to the gratuity but only to the pension. This is another instance of ascribing to an exhibit what it does not contain. I wonder the source of this strange conduct! And it is correct with regard to the pension, when 12 divides the annual gross salary stated therein, it gives the net monthly salary claimed, plus the obvious tax deductible at source. It is only Exhibit C12 made up of three separate documents joined together by the incorporative essence of the first of the three, which is relevant to the issue of gratuity. The erudite defence counsel had further attacked it on the basis that, the alleged authors did not sign it and for this reason, it had no evidential value and must be discarded. Let me state that, the law is that, it is not in all cases that unsigned documents become useless for purposes of evidence. The correct law is as stated in Akinremi & Anor v. Suleiman & Ors (2022) LPELR-56903 (CA) 64, A-D:

“It is the pleadings or depositions and claims of a party that would determine the use to which evidence, including documents, can be put to at trial. Thus, if the pleading or deposition of a party shows that a document given to him or handed over by him was unsigned, then such an unsigned document is admissible in proof of what is alleged by the party. It is therefore, not in every circumstances that an unsigned document is useless or worthless or inadmissible.”

The Supreme Court confirmed that, there truly are exceptions to the general rule that, unsigned documents are useless, in Ashakacem Plc v. Aharatul Mubashshurun Investment Limited (2019) LPELR-46541 (SC) 27-29, C-E. Now, the claimant pleaded at paragraph 18 of the RDSD thus:

“The claimant states that the chart of entitlements of the claimant and other retires was produced by the Accounts Department and deliberately not signed for fear of the 2^nd and 4^th defendants who never wanted to know about liabilities of retirees.”

The claimant gave evidence to this effect in paragraph 19 of his 2^nd WSO. He also further pleaded in paragraphs 1&2 of the FSF thus:

“1. The claimant states that in 2018, he approached the then Managing Director of Enugu State Printing and Publishing Corporation (ESPPC), Mr. Crescent Odo for details of the claimant’s entitlements which include the gratuity, pension arrears, and arrears of unpaid salaries when the claimant was still in service. He gave the claimant two (2) charts which reflected the names of all the staff of ESPPC both the then serving, serving and retired including the name of the then managing director.

2. The claimant avers that the charts resonate with the claim of entitlements in this suit. The claimant’s name is reflected in numbers 48 and 76 of the said charts respectively.”

The claimant also testified to these facts in paragraphs 1 and 2 of his 3^rd WSO. The DW1 who is caviling at these documents did not tender the correct one in their possession to show that, these ones are fake and forged by the claimant. And this omission becomes more poignant, when it is realised that, the defendants have the duty in the denial of quantum of debts to plead and prove the exact amounts owed; and this they did not do. They preferred to be playing hide-and-seek with the claimant and the court. This is besides the fact that, the claimant gave the name of the MD that gave him the documents and stated clearly that, the 3^rd defendant’s Accounts Department actually prepared them, but did not sign them, for fear of the 2^nd and 4^th defendants, who did not want to hear anything about debts. The DW1 could not give evidence of to contradict these facts, as he was not the named MD and was not in the Accounts Department of the 3^rd defendant when these documents were allegedly produced.

Though, I take cognisance that, any employee could give evidence for a corporation, but that does not mean the court would apportion value to such evidence, where allegations of a personal character are made, which could only be personally denied by the persons named, as in the instant case – Emokpae v. Pan Ocean Corporation of Nigeria Limited & Anor (2022) LPELR-57607 (CA) 43-44, B-A. Hence, the evidence of the DW1 denying the personal allegations made against a third party not called as a witness and, for which he was not in a position to know, is pure lie without weight and worthless, though admissible in law. Based on the above, the fact that the documents were not sign or dated is immaterial. To accede to the demands of the defence here is to encourage them in their irresponsible chicanery against citizens of this great country. No responsible Court would assist a government to achieve such odious purpose. It is against public policy and fairness as forbidden in labour relations by S. 254C-(1)(f) of the Constitution.

Though, I noticed that the complaints of the defendants on Exhibit C12, as reflected in Exhibit C11, are actually that, the Exhibit C12 did not reflect the department that prepared it and the name of the authors, but these are nonetheless transmutable to complaints against signature, which they argued in their FWA, as the whole essence is about the authenticity of the Exhibit C12, as pleaded in paragraphs 25-31 of the FASD and, the same principles of law, as recited above, would be applicable to the weight to put on them. The documents admit of oral evidence to fill the vacuums, as to why they were not signed and dated or as to why the author’s name[s] or department was not reflected, in line with the exceptions recognised in the two authorities cited above. I therefore take full cognisance of them and hold, for the upteempth time that, they were correctly admitted and have the necessary weight. I now propose to examine the issue of the contradictions alleged in the documents. I have carefully examined the first of the two charts [Statements of Outstanding Salaries, Allowances and Pension]. The claimant had pleaded and given evidence that; his name was No. 76 therein.

I have examined it carefully and found that; column 5 was the total of columns 3 & 4. Column 5 is headed sub-total. Column 6 is the gratuity owed, while column 7 is the cumulative total or supposed to be the cumulative total of columns 5 & 6, but the arithmetic addition of columns 5 & 6 did not yield the figure in column 7. It yielded N5,400,093.6. The claim of N4,100,000 gratuity was therefore not proved. What was proved is N1,393,863.60 as gratuity [Column 6]. A court is at liberty to award less than pleaded, once correctly proved – see Achoru v. Decagon Investment Limited & Anor (2014) LPELR-24143 (CA) 19, E-F. The claimant only needs minimal proof here in which the defence had admitted owing the gratuity and refused to state how much it was and was playing hide-and-seek with the claimant and the Court, they cannot therefore challenge any evidence produced by the claimant, as the authorities earlier cited had shown. This is in line with equity and fairness as dictated by S. 254C-(1)(f) of the Constitution.

On the basis of the foregoing, I therefore award the sum of N1,393,863.60 [One Million, Three Hundred and Ninety-Three Thousand, Eight Hundred and Sixty-Three Naira, Sixty Kobo only] as the claimant’s gratuity. I now move to the issue of arrears of salaries. I keenly observed that, the defendants did not specifically admit owing the arrears of salaries in paragraph 12(iv) of the FASD. The implication is that, when construed with paragraph 1 of the FASD, the defendants denied owing arrears of salaries. Apart from this, the claimant did not plead his grade level[s] within the time envisaged and did not plead how much was his salary[ies] and the exact shortfalls. He did not plead the months for which the arrears were owed, the beginning month and the terminal months of the arrears. These are the things that would enable the Court to check up the correctness of the total figure claimed. So, it would appear that, the evidence led is at variance with the pleadings or did not have pleadings to anchor it and, accordingly goes to no issue – see Yahaya & Anor v. Dankwanbo & Anor (2016) LPELR-48364 (SC) 66, B-E and I so hold. In essence, the claimant did not prove entitlement to arrears of salaries. That aspect of his case is accordingly dismissed. I now move to the issue of N10M damages claimed for various forms of hardships.

The defendants have argued that, the hardships pleaded and, for which evidence was led, were attempts to whip up sentiments. I think that argument is crass insensitivity to the plights of the claimant, who, as a public retiree, is willfully denied his pensions and gratuity without just cause. After all, the defendants did not deny the windfalls from the federal government, as they only pleaded irrelevances to the issues raised in paragraphs 10-13 of the claimant’s SF, in their paragraph 12 of the FASD and, cross-examined the claimant along the same irrelevant lines, querying his authority to know and, argued in their FWA, for the expunction of the paragraphs. All these are tantamount to admission of the windfalls and deliberate refusal to pay off the state’s debts to its public servants. The mere defence of this case is aggravated injury to the claimant, apart from the wickedness demonstrated in the hide-and-seek the defendants embarked upon to further deny the claimant his constitutional rights. This is similar to justification in defamation, which grounds aggravated damages, if unproved. Clearly, the defendants failed woefully to prove their defences and have thus; added insults to the injuries already caused the claimant, by their crass insensitivity.

Let me state that, right to pension and gratuity is constitutional right in Nigeria – see Ajao v. The PS, Ministry of Economic Development (2016) LPELR-41407 (CA) 15-16, D-E. Such right cannot therefore, be treated as a trash. To treat it as trash is to treat the Constitution as trash. To infringe constitutional provisions relating to pension and gratuity with egregious impunity, is tantamount to egregious violation of fundamental constitutional employment rights, which warrants punitive damages by virtue of S. 254C-(1)(f) of the Constitution and SS. 13, 14, 15 and 19(d) of the NICA and, ILO’s punitive and deterrent recommendations on infractions of fundamental employment rights, without the need for proof of mental agonies – Xavier Beaudonnet ed., International Labour Law and Domestic Law: A training manual for judges, lawyers and legal educators (Turin, International Training Centre of the ILO, 1^st edition, 2010) at 157 and Adindu & Ors v. Wabara (2014) LPELR-22861 (CA) 46-47, D-A. It is like libel, which is actionable per se without the need to prove damages, which flow logically, and when justified by the defence, without being able to sustain the justification, attracts punitive and aggravated damages. Egregious infringement of constitutional rights and the continued justification of the infringement, as in the instant case, warrant punitive and exemplary damages.

The mental agonies, degradation of the claimant and subjection to ridicule, poverty and diseases, are inferentially presumed. One without means of livelihood at old age, whose cause of poverty is not his fault but the deliberate wickedness of the employers, in this unfortunate instance, the Government of Enugu State, is clearly exposed to various diseases without the need to prove these. This is because, at old age, judicial notice is taken that, the body begins to wane and exposed to the ravages of all diseases except, one takes good cares buoyed up by access to good diets, hospital and drugs. These are notorious course of human existence known to all reasonable adults. I do not feel any sensible person would deny these facts of human life; as the defendants attempted to deny in their insensitive defence. The additional fact of unhappiness created by the wicked cheating meted on the claimant definitely conspires, without the need to proof that he is exposed to high blood pressure and the like by reason of despondency and severe lack of access to the basic necessities of life. Even, a slave, who, of yore, had worked diligently for his master all his life, deserved better treatment in his old age than what the Enugu State Government has subjected the claimant to!

Besides, I am of the firm view that, the claimant actually proved mental agonies and deprivations, except to an unconscionable mind. I observed during the trial that, the claimant could not read his documents and they had to be read aloud to him, for him to identify them – see p. 12, lines 20-28 of Proceedings File. Virtual impairment, which the claimant pleaded, does not mean total blindness. I observed too during trial that, the claimant has emaciated grossly, which is a sign of old age and bad diets. It is also self-evident that, someone denied his pensions and gratuity at his old age cannot be said not to have suffered mental agonies, apart from heartless deprivations of means of livelihood at his old age. If the defendants want to disprove these, they ought to produce ample pieces of evidence to show clearly that, since the claimant retired, he has been living in great affluence, with heavy inflows of regular revenues to his accounts from heaven or that, he stole sufficient moneys from government without being recovered, to be able to live in affluence thereafter; and since they did not do any of these, it does not lie in their wicked mouths to deny that the claimant suffered the diseases and deprivations outlined in his pleadings and evidence. They should keep their wicked mouths shut and cover their faces in shame!

I now proceed to look at how the world treats the issue of mental agonies, harassments and psychological traumas, as a result of breaches of employment rights. In the ILO, “Judgment 121: Twentieth Ordinary Session of the Administrative Tribunal of the League of Nations, 1968”[1], involving Agarwala v. United Nations Food and Agricultural Organization [FAO], the Tribunal held, and I quote:

“By the letters of 8 and 9 June 1966 the complainant was relieved of his duties and in effect forbidden to call at his office. The nature of this act, which is clearly a suspension from duty, is not altered by the fact that some ten days later a duty of nominal character was proposed for him. The organization has therefore committed a breach of contract by suspending the complainant otherwise than in accordance with the Staff Regulations. Since his emoluments have been fully paid, he has suffered no material damage, but he has suffered moral damage. He is entitled to compensation for the distress caused by the abrupt way in which he was treated, tantamount in its form to summary dismissal, and for the injury done to his reputation and to his prospects of obtaining other employment. The Tribunal fixes this compensation at 6,000 dollars.”

Another international example is Harmon v. State, reviewed in Luth Levush, “Israel: National Labor Court Quintuples Compensation in Occupational Harassment Case”[2]. Levush reported the Nazareth Regional Labour Court of Israel [RLC] in the following words:

“The regional court rejected the appellant’s claim for reinstatement at his job but awarded him compensation in the amount of 60,000 new Israeli shekels (NIS) (about US$17,166) ‘for harassment or compensation for mental anguish.’ The court held that there were exceptional circumstances that justified this relief even though it was not explicitly requested…Although no legislation on the topic has been adopted yet, Israeli labor courts have addressed occupational harassment within the framework of existing law, basing their decisions on the obligations of good faith and fairness to which each employer is obligated as an integral part of the employment contract.”

On appeal to the Israeli National Labour Court [NLC], equivalence of the Nigerian National Industrial Court [NIC], Levush reported that, the NLC held in September 6, 2022 that:

“[i]n our case, the employer is the State of Israel, that is, a clearly public body whose obligations of good faith and fairness are elevated…’…

The NLC concluded that the compensation to the appellant in the circumstances of the case should be set at NIS300,000 (about US$85,168), reflecting the NLC’s conviction that the circumstances of the case were particularly grave and justified significant relief. The NLC explained that the compensation was mainly for the nonpecuniary [sic] component of the case, but also took into account the economic consequences of retirement and the need to establish a deterrence to similar behaviour in the future.”[3]

The first of the two international decisions cited, was given in 1968: that is, 55 years ago, by the Administrative Tribunal of the UN, a world body, which makes its decision enjoy universal currency and, the second, by the Israeli Labour Court. In both, it is observed that, the claimants did not specifically plead and ask for damages for mental agonies [distress] but the two courts suo motu awarded damages for mental agonies and, the damages were humungous. The Israeli NLC’s awarded compensation was equivalent to whopping N68,134,400 [Sixty-Eight Million, One Hundred and Thirty-Four Thousand, Four Hundred Naira only] in today’s currency conversion at the conservative estimates of N800 per dollar! The UN Tribunal’s $6,000 in 1968 is probably, in value, more than the $85,168 of 2022 awarded by the Israeli NLC in 2022. These showed that, the international best practices in this area of the law, is to award punitive and deterrent damages to dissuade such future egregious behaviour from employers of labour, especially when this involves government that is expected to lead by example. The Israeli case shows that, the damages must be higher if the employer is a government department that is responsible for such insensitive treatment of employees. The Agarwala’s case too, is against an international organisation composing membership of the nations of the modern world, which was expected to uphold the dignity of human beings and employers, and make sure they were not subjected to inhuman treatments. I do not think I need cite any further authority.

In addition, the conducts of the defendants in this case violates ILO C95, which forbids unilateral reduction or withholding of salaries: pensions being an extension of salary rights – see Joseph Obasi Imo v. The Incorporated Trustees of the Seventh Day Adventist Church & Ors [Unreported NICN/ABK/03/2021 – Delivered Jan. 10, 2023], in which this Court held:

“I take cognisance of the evidence of DW1 under XX that, the pension has since been reduced to N74,000 from the N96,800. I noticed that this is not part of the case brought to Court, as the claimant and the defendants did not plead this in their pleadings. It is therefore evidence at variance with pleadings. But for the sake of clarity and completeness, pursuant to S. 14 of the National Industrial Court Act [NICA], I point out now that, it is against ILO Protection of Wages Convention, 1949 No. 95 [ILO C95], particularly Article 8(2) thereof, to unilaterally reduce wages, by extension pension, without prior consultation with the victim of the reduction. Pension is an extension of wages, since it is derivative of payment for works done in the past and is therefore earned, as extension of wages, only deferred to retirement – see Albert DeRoode, “Pensions as Wages” The American Economic Review, Vol. 3, No. 2 (Jun., 1913), pp. 287-295 at https://www.jstor.org/stable/1827954 [accessed Jan. 10, 2023] and Nigeria Bank for Commerce and Industry v. Ogbemi & Anor (2012) LPELR-14354 (CA) 28-35, E-A. The ILO C95 is therefore applicable to the issue of pension when it comes to pension reduction. The reduction muted by DW1 under XX is breach of contract and is therefore illegal, as it is clear that the claimant is not into the picture. So, the claimant is entitled to his full monthly pension till date. – P. 19, para. 3.”

Besides, let me observe on one strange trend of this case. The claimant pleaded and gave evidence corroborated by the DW1 under XX that, the House of Assembly approves the 3^rd defendant’s budget yearly, since the 3^rd defendant was taken over by the Enugu State Government. The claimant gave evidence too that, the 3^rd defendant, since the takeover, publishes solely for the Government of Enugu State and does not take outside jobs and that, it is a non-profit making institution; meaning the Government of Enugu State is not paying it directly for works done for it. This piece of evidence was not challenged in any form by the defence. In fact, they corroborated it when they pleaded that the 3^rd defendant has not been making profits since eons. How can it make profits when it does not engage in commercial printing and publications. This means the 3^rd defendant is run by subventions from the Enugu State Government. Claimant gave evidence too, that, the principal staff of the 3^rd defendant are appointed and deployed by the 6^th defendant and the Ministry of Finance and that; the 3^rd defendant is controlled fully by the 6^th defendant. And I found that, the DW1, who is the Accountant of the 3^rd defendant, was deployed from the Ministry of Finance and, there is evidence admitted by the DW1 that, all the previous accountants of the 3^rd defendants were deployed from the Ministry of Finance.

The defence counsel cited the provisions of some statutes that, he claimed made the 3^rd defendant independent, with independent sources of revenues. I do not need to examine the provisions of the cited statutes to determine that, the 3^rd defendant had no source of independent revenues in the face of avalanche of evidence that, the 3^rd defendant submit to and defends its budget estimates before the Enugu State House of Assembly yearly, like all other government departments and is being run and controlled by the 6^th defendant as a department under him and the Ministry of Finance. It means clearly that, it does not generate any revenue and the other defendants cannot begin to cavil that, it has a duty to generate its revenues, which they made it impossible for it to generate, and had for that reason, being giving it subventions like all other civil service ministerial departments. In effect, if there is any inability to meet the 3^rd defendant’s financial obligations, it is the creation of the other defendants; and they are therefore squarely liable to answer the obligations.

With the further evidence from the DW1 under XX that, the retired staff of the 3^rd defendant were amongst the retired staff of the Government of Enugu State that were submitted for verification and that, the 4^th defendant thereafter ordered audit report of the verification, which since then, the result had not been released, as the reason for the non-payment of their terminal benefits, it is clear that, the 3^rd defendant is entirely an agency of the Government of Enugu State and had no independent existence or sources of finance in line with NIPOST & Anor v. Mokwenye [supra] and Olubukola & Anor v. AGF [supra]. The implication of this holding is that, the 2^nd, 4^th and 5^th-6^th defendants are merely using the 3^rd defendant as a conduit pipe or smokescreen to fleece hapless employees, by making it to recruit staff, whose salaries, and terminal benefits would not be paid, under the guise that, the staff should hold the 3^rd defendant responsible because, by law, it is an independent employer, who is solely responsible for the employment of its staff and the payment of their entitlements. This is a classical case of triangular employment. And it is pathetic that the Government of Enugu State, would condescend to such abysmal level of fraudulent practices to employ such underhand measures to fleece hapless workers of their hard-earned employment benefits – see the ILO in “91^st Session of the International Labour Conference 2003”, christened: ‘Report V: The scope of employment relationship’[4]. This is totally unfair against the spirits of S. 254C-(1)(f) of the Constitution, and must be remedied accordingly in line with international best practices and SS. 13-19 of the NICA.

Triangular employment conundrum is a devise employed to dodge the incidences of normal employment relations with the sole aims of making it impossible at the appropriate times, usually at the terminals of such employments, for the employees to get their terminal benefits or, in the case of accidents, make it impossible for the employees to know the persons to hold responsible as the employers, thereby making the employees lose their rightful claims in both cases or whenever the issue of any employment claims arise[5]. The international best practices in this area of the law is to bypass the strictures of the doctrine of privity, which the defendants actually raised obliquely and also, to ignore the actual contractual documents, for the real practice in the employment relations on ground and, usually to hold all the parties involved in the fraudulent scheme accountable to the hapless employees, where there are no statutory provisions dealing directly with the incidences of triangular employments or, to find the real employer amongst the several and, hold it responsible[6].

Statutes have generally followed this pattern in most nations that have enacted statutes to deal with the situation[7]. Nigeria has no statutory provisions yet, on triangular employment problems and must therefore rely on case law and international best practices to remedy the ugly situation in line with S. 254C-(1)(f) of the Constitution. The UK Supreme Court, followed suit, in similar situation, as discussed in the ILO literature cited above, in the case of Autoclenze Limited v. Belcher & Ors[8], and held all the defendants involved in the triangular employment scam liable to the claimant in the case.

The law is that, the courts will not allow an unconscionable party to use the instrumentality of a statute to perpetrate injustice or fraud – Chieke v. Olusoga & Anor (1997) LPELR-845 (SC) 16-17, D. Hence, the defence based on the statute cited by the defence counsel, as making the 3^rd defendant an independent corporation with independent sources of revenues, which the evidence shows it is not, is axiomatically of no avail in the circumstances of this case. It is therefore dismissed pronto.

Further more, by virtue of the provisions of S. 254C-(1)(f) of the Constitution, which says the NIC must eschew unfair labour practices and enthrone international best practices in its adjudications of labour disputes and, SS. 13 and 15 of the NICA, which makes the NIC a court of living equity, distinct from the ossified equity inherited from Common Law, and in virtue of the powers conferred on the NIC by SS. 14 & 19(d) of the NICA and the international best practices imbued by S. 254C-(1)(f) of the Constitution, I hold all the defendants jointly and severally liable for the judgment debts already granted and, award the full punitive and deterrent damages of N10,000,000 [Ten Million Naira] against the defendants jointly and severally. Since the claimant did not prove how he became entitled to pre-judgment interest and, I am not aware of any statute that prescribes such, on failure to pay terminal benefit debts or their mutilation, I refuse relief (iv) in part. I only grant post-judgment interest of 10% per annum on the judgment sums from date of the judgment till paid. I refuse to grant the claimant cost of prosecution of this case because; the claimant and his counsel were responsible for a lot of delays in its prosecution.

Before I round up on issue 2, let it be stated clearly that, it is not a defence that, because, a corporate employer did not make profits, it is absolved of its financial responsibilities. If a corporation, assuming the 3^rd defendant is one, cannot make profits to settle its financial obligations, it is not for that reason absolved of its financial obligations, as the creditors have rights to levy executions of judgments against its properties. The 2^nd and 4^th defendants cannot therefore hide under the canopy of corporate personality of the 3^rd defendant to use it as a front to practice triangular employment scam, which is contrary to S. 254C-(1)(f) of the Constitution. They must either fold up the 3^rd defendant and pay off its debts or allow it to run profitably to meet its financial obligations or, fund it properly to enable it meet its financial obligations, especially the payment of the staff entitlements. In the interim, having found that, the other defendants operated the 3^rd defendant, as a smokescreen for triangular employment scam and, much more, as found earlier, the judgment herein is executable against the 3^rd defendant and the other defendants jointly and severally. And I so hold.

In any case, the finding is that, the 3^rd defendant is not even a corporation, but pure agency of the 2^nd and 4^th defendants because; the 2^nd and 4^th defendants did not allow the 3^rd defendant to run as a corporation. If there is any law that makes it an independent corporation, the 2^nd and 4^th defendants have been observing the law in contemptuous breach and, must therefore be held responsible for the 3^rd defendant’s liabilities, which they created, by not allowing it to run as an independent corporation to generate its revenues and make profits to meet its financial obligations. Hence, issue 2 is resolved substantially in favour of the claimant and against the defendant. The case must therefore come to an end, being the last issue.

CONCLUSION

Having resolved issue 1 fully in favour of the claimant and issue 2 substantially in his favour too, I must now specify clearly the reliefs granted to the claimants. The claimant is accordingly granted:

1. Reliefs (i), (ii), (v), (vi) & (vii) in full as claimed.

2. Relief (iii) to the extent of N1,393,863.60 [One Million, Three Hundred and Ninety-Three Thousand, Eight Hundred and Sixty-Three Naira, Sixty Kobo Only] as gratuity and, the arrears of shortfalls of pension, as claimed – monthly N38,300 [Thirty-Eight Thousand Naira] only – from September 2013 till the date the decision is fully complied with and, thereafter, the full pension of N51,300 [Fifty-One Thousand, Three Hundred Naira Only] till the claimant’s death and, the claimant must also enjoy any subsequent increases to pensions, as all other pensioners.

3. Relief (iv) is granted to the extent that, 10% post-judgment simple interest per annum is granted only from the date of the decision till fully complied with.

4. The decision takes immediate effect and begins to attract the 10% post-judgment simple interest rate per annum granted abovein, till fully liquidated.

That ends the decision. The decision is hereby accordingly entered today Tuesday the 21^st day of March 2023 under my hand, being the presiding judge.

……………………………

HON. JUSTICE Oluwakayode Ojo AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

[1] [Updated last July 7, 2000] at www.ilo.org [accessed Dec. 8, 2022].

[2] [Posted Nov. 29, 2022] at www.loc.gov [accessed Dec. 8, 2022].

[3] Ibid.

[4] At https://www.ilo.org [First published 2003] [accessed Feb. 22, 2023.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] [2011] UKSC 41 at https://www.supremecourt.uk [accessed Feb. 24, 2023].