IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISON

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP: HON. JUSTICE S. A. YELWA.....JUDGE

THIS MONDAY 5TH DAY OF OCTOBER, 2026

SUIT NO: NICN/LA/19/2024

 

BETWEEN:

MR. OMAIDE EMMANUEL.……………………………….CLAIMANT   

AND

1.         THE NIGERIAN CORRECTIONAL SERVICE

2.        CIVIL DEFENCE, CORRECTIONS,                      DEFENDANTS

3.        FIRE AND IMMIGRATION SERVICES BOARD

 

 

JUDGMENT

 

This action is commenced by a general form of complaint dated and filed 1st day of February, 2024, wherein the claimant sought from this court against the defendant the following reliefs:

  I.            A declaration that the compulsory or forceful retirement of the Claimant by the 1st Defendant through a letter is unlawful, null and void as it was based on a criterion that never existed.

II.            An Order reinstating the Claimant as a Controller of the Nigerian Correctional Service and directing an accelerated promotion of the Claimant to the rank of an Assistant Controller-General or any rank he would have attained if the Defendants had not forcefully or compulsorily retired him.

III.            The sum of ?10,000,000.00 (Ten Million Naira) only being general damages against the Defendants for the trauma and psychological torture suffered by the Claimant as a result of the unlawful act of the Defendants.

IV.            The sum of ?5,000,000.00 (Five Million Naira) only being cost of all legal services and actions taken by the Claimant from 2023 till date.

V.            The sum of ?2,500,000.00 (Two Million, Five Hundred Thousand Naira Only) for legal fees.

VI.            Interest at the rate of 15% per annum until final liquidation of the judgment sum.

VII.            The sum of ?300,000.00 (Three Hundred Thousand Naira only) as cost of filing and incidental expenses.

In response, the 1st Defendant entered a conditional appearance on the 5th day of April, 2024 and filed Statement of Defence together with the accompanying processes on the same date, while the 2nd Defendant on the other hand entered conditional appearance on the 6th day of May, 2024 and filed Statement of Defence together with the accompanying processes on the same date and processes were dated 2nd of May, 2024.

 

CASE OF THE CLAIMANT

 

The Claimant’s case is that he is a serving Controller and officer of the Nigerian Correctional Service (1st Defendant), having joined the service, then known as the Nigerian Prison Service, on 31 August 1990 as an Assistant Superintendent of Prison I.

He stated that he was born on 31 December 1965 and was 25 years old when recruited. Claimant relies on his National Identification Number (NIN) Slip, sworn declaration of age dated 21 June 1992, Letter of Appointment, IPPIS Capturing Form and PENCOM Certificate as evidence of his date of birth. According to Claimant, his proper retirement date is therefore 31 August 2025.

The Claimant maintained that his appointment was issued by the 2nd Defendant, which supervises the 1st Defendant, and that his Letter of Appointment confirms his appointment date as 31 August 1990. Claimant stated that he served meritoriously for over 33 years, without disciplinary issues, and rose through various positions to the rank of Controller, having successfully completed the required statutory courses and held several administrative, operational and command positions.

On 23 March 2023, Claimant averred that he was invited before a seven-member committee constituted by the 1st Defendant to investigate an alleged discrepancy in his official records concerning his date of birth. The panel allegedly claimed that one of his records showed 31 December 1962, instead of 31 December 1965, but did not provide the disputed document to him. The Claimant presented his age declaration, NIN Slip, Letter of Appointment, IPPIS Capturing Form and PENCOM Certificate to establish that his correct date of birth was 31 December 1965. Claimant stated that none of these documents was controverted before the panel.

However, several months later, by a letter dated 3 November 2023, the Claimant was directed to collect a retirement letter. He contended that his compulsory retirement was unlawful and premature because he was not invited before the Senior Staff Disciplinary Committee or the 2nd Defendant and was not given an opportunity to respond to the allegations concerning his date of birth. He further stated that the 2nd Defendant had been dissolved and had not been reconstituted when the retirement letter was issued.

The Claimant therefore alleges that the Defendants retired him compulsorily before his legitimate retirement date, without following due process, and that the decision was influenced by discriminatory consideration of his age. He maintained that his terms and conditions of service did not permit his premature retirement and that, based on his appointment and service records, he was entitled to remain in service until 31 August 2025.

In essence, the Claimant challenges his compulsory retirement as premature, unlawful and procedurally improper, principally on the grounds that his correct date of birth is 31 December 1965, his retirement date was 31 August 2025, and he was not afforded a fair opportunity to respond to the alleged discrepancy before his retirement.

 

TRIAL

Trial commenced on 3rd day of December, 2024, wherein CW1 adopted his witness statement on oath deposed to on the 1st day of February, 2024 and his further witness statement on oath sworn to on the 8th day of October, 2024, and tendered the following documents in evidence, which were marked and admitted as the following exhibits;

 

1.       A Certificate Accompanying Computer Generated Evidence in compliance with Section 84(4) of the Evidence Act, 2011 -(Exhibit C1).

2.     Original copy of his Letter of Appointment- (Exhibit C2).

3.     National Identification Number Slip (NINS) obtained in 2019-(Exhibit C3).

4.     Invitation Letter dated March 23, 2023- (Exhibit C4).

5.     Age Declaration dated June 21, 1992 -(Exhibit C5).

6.     IPPIS Enrolment Slip dated October 9, 2017 (Exhibit C6).

7.     PENCOM Certificate (Exhibit C7).

8.     Claimant Letter dated November 10, 2023 (Exhibit C8)

9.     Claimant Solicitors Letter dated January 18, 2024 (Exhibit C9)

10.  Staff Nominal Roll of December, 2014 (Exhibit C10a); Staff Nominal Roll of February, 2015 (Exhibit C10b); Staff Nominal Roll of December, 2018 (Exhibit C10c); Staff Nominal Roll of February, 2019 (Exhibit C10d); Staff Nominal Roll of January, 2023 (Exhibit C10e)

11.     Claimant’s Pay Slip for January, 2022 (Exhibit C11)

12.  Claimant BVN document (Exhibit C12)

13.  Claimant International Passport (Exhibit C13)

14.  Claimant’s Personnel Record Form for 2017 Manpower Budget (Exhibit C14)

15.  Claimant’s Personnel Emolument Record, (2017 Authentic) (Exhibit C15)

16.  Compassionate Appeal For the Reversal of Unlawful Retirement From Service (Exhibit C16)

17.  Solicitor’s receipt dated 16th day of January, 2024 (Exhibit C17).

CW1 was then crossed examined by learned counsel to the 1st and 2nd defendants, and there was no reexamination. The case of the claimant was then closed, and the matter was adjourned to 4th day of December, 2024 for Defence.

On the said 4th of December, 2024, the 1st and 2nd Defendants were not in court and were also not represented but sent a letter seeking for an adjournment. The Claimant did not oppose the request and the matter was adjourned to 10th day of March, 2025 for Definite Defence and hearing notice to be issued.

On the 10th day of March, 2025 the Defendants were absent again after hearing notice was served on them, The Claimant counsel moved the court to foreclose the right of the 1st and 2nd Defendants to open their Defence. The Court accordingly, foreclosed the right of the 1st and 2nd Defendants to open their defence and adjourned the matter for adoption of final written addresses.

The 1st and 2nd Defendants did not file their final written address.

 

CLAIMANT’S FINAL WRITTEN ADDRESS

Claimant’s final written address is dated and file 28th March, 2025, wherein counsel formulated the following issues for determination to wit;

1.       Whether on the preponderance of evidence the Claimant has discharged the burden of proof that will entitle him to the reliefs sought in this suit?

 

2.     Whether, having failed to adduce any evidence in their defence, the Defendants have any basis upon which to justify their actions against the Claimant?

 

Learned counsel submitted on issue one; Whether on the preponderance of evidence the Claimant has discharged the burden of proof that will entitle him to the reliefs sought in this suit?

Counsel submitted that the law is settled that in the determination of employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the court the terms and conditions of his employment that provides for his rights and obligations. Counsel referred the Court to the case of Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 673, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. It is also the law that whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist in accordance with Section 131 (1) & (2) of the Evidence Act 2011. counsel relied on the case of Calabar Co-operative Ltd v Ekpo [2008] 1-2 SC 229 at 255.

Counsel contended that it is the position of law that the standard of proof in civil cases, save for a few exceptions, is on the balance of probabilities. This simply requires a party to persuade the Court that his version of facts is more probable than that of his opponents. See EDEANI NWAVU & ORS V CHIEF PATRICK OKOYE & ORS (2008) 18 NWLR (PT. 1118) 29.

Counsel further submitted that the Claimant has placed before the Honourable Court a Certificate accompanying Computer Generated Evidence in compliance with Section 84(4) of the Evidence Act, 2011 (Exhibit C1); original copy of his Letter of Appointment (Exhibit C2); National Identification Number Slip (NINS) obtained in 2019 (Exhibit C3); Invitation Letter dated March 23, 2023 (Exhibit C4); Age Declaration dated June 21, 1992 (Exhibit C5); IPPIS Enrolment Slip dated October 9, 2017 (Exhibit C6); PENCOM Certificate (Exhibit C7); Claimant Letter dated November 10, 2023 (Exhibit C8); Claimant Solicitors Letter dated January 18, 2024 (Exhibit C9); Staff Nominal Roll of December, 2014 (Exhibit C10a); Staff Nominal Roll of February, 2015 (Exhibit C10b); Staff Nominal Roll of December, 2018 (Exhibit C10c); Staff Nominal Roll of February, 2019 (Exhibit C10d); Staff Nominal Roll of January, 2023 (Exhibit C10e); Claimant’s Pay Slip for January, 2022 (Exhibit C11); Claimant BVN document (Exhibit C12); Claimant International Passport (Exhibit C13); Claimant’s Personnel Record Form for 2017 Manpower Budget (Exhibit C14); Claimant’s Personnel Emolument Record, (2017 Authentic) (Exhibit C15); Compassionate Appeal For the Reversal of Unlawful Retirement From Service (Exhibit C16); Solicitor’s receipt dated 16th day of January, 2024 (Exhibit C17).

It is the submission that Claimant is a Public Servant and that his employment is governed by the Public Service Rules. Counsel cited the case of GUSAU v. COMPTROLLER GENRAL OF CUSTOMS & ORS (2014) LPELR – 23367 (CA) where the court held that Chapter 2, Section 8 and paragraphs 020810 (1) of the Public Service Rules, the compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier.

Counsel maintained that this is the gravamen of the Claimant’s complaint before the court. The provision referred to prescribes the age of a public servant’s mandatory retirement age in service which is either 35 years in service or 60 years by age whichever comes first.

Learned counsel submitted that the Claimant’s appointment letter dated 31st day of August, 1990 was from the Defendants and all the evidence before the Honourable as to the date of birth of the Claimant confirms that the Claimant was born on the 31st day of December, 1965.

 

Counsel further submitted that it is on this premise that the actions of the Defendants by compulsorily and forcefully retiring the Claimant before his retirement age as provided under the Public Service Rules was callous, unfair, illegal and amounts to unfair labour practice.

Counsel contended that on the reverse side of the scale, the Claimant having brought his claim of unlawful retirement against the Defendants put forward detailed, convincing and plausible account on how he was compulsorily retired before his retirement age and tendered several documents in substantiation of this claim; including documents showing that he was born on the 31st day of December, 1965 and that going by his documents and the date he was enlisted into service with the Defendants, his retirement age will be on 31st day August, 2025.

 

Counsel maintained that the Defendants failed to provide any reason for the Claimant’s compulsory retirement and did not comply with the known procedure before taking action. Thus amounts to a breach of the Claimant’s employment rights.

Learned counsel submitted on issue two; Whether, having failed to adduce any evidence in their defence, the Defendants have any basis upon which to justify their actions against the Claimant?

Counsel submitted that the law is trite that where a party fails to call evidence in proof of its case, the court is bound to accept the unchallenged evidence of the opposing party, provided it is credible and uncontradicted. 

Counsel further submitted also that the law is well settled that where one of the parties calls no evidence on an issue before the court, the evidence called by his adversary ought normally to be accepted as the truth unless it is of such a nature and quality that no reasonable tribunal will accept it. In other words, the onus of proof in a case or an issue in which one of the parties calls no evidence at all is discharged on a minimal of proof. Counsel relied on the cases of: DURU V. NWOSU (1989) 4 NWLR (PT.113) P.24 AT P.55, PARAS. G - H; BURAIMOH V. BAMGBOSE (1980) 3 NWLR (PT.109) P.352; OLUJINLE V. BELLO ADEAGBO (1988) 2 NWLR (PT.75) P. 238 AND NWABUOKU V. OTTIH (1961) ANLR P.507."

 

It is the submission of counsel that the law presumes, and correctly for that matter, that a person who comes into a litigation should have a case to state, a case that will give him judgment. The case is made at the stage of the pleadings, be he a plaintiff or a defendant. While a plaintiff states his case in the statement of claim, a defendant states his case by way of defence in a statement of defence. If, at the hearing, the defendant decides not to give evidence to vindicate the statement of defence, the court is entitled to hold that the evidence of the plaintiff is unchallenged.

Counsel referred the Court to the case of ASAFA FOOD FACTORY LTD V ALRAINE (NIG) LTD (2002) NWLR 12 (PT. 781) 353

It is the contention of counsel that where a party, which in this instant case the Defendants, failed to lead evidence in support of their pleading despite been given ample opportunity to do so. The effect of their failure to lead evidence in support of their pleadings is that such pleadings together with all frontloaded processes will be deemed abandoned by the court as pleadings in themselves do not count as evidence.  Counsel relied on the case of RAJCO INT'L LTD v. LE CAVALIER MOTELS &RESTAURANTS LTD & ORSCITATION: (2016) LPELR-40082 (CA)

Counsel maintained that it follows therefore that pleadings do not constitute evidence and where such pleading is not supported by evidence either oral or documentary; it is deemed to have been abandoned. Counsel cited the cases of NEWBREED ORGANSATION LTD v. ERHOMOSELE (2006) 5 NWLR (PT 974) 499; EZEANALI v. ATTAH (2004) 2 SCNJ 200.

 

It is the submission of counsel that the Defendants’ pleadings in this case is unsupported by evidence, it is therefore deemed to have been abandoned together with all the accompanying documents, and so, the Defendants having failed to lead any evidence in this case in addition to having abandoned their pleadings have left their side of this imaginary scale bare, empty and weightless.

Learned counsel submitted that the Claimant has by adducing cogent and compelling evidence before the Honourable Court, established the proof of all of his claim against the Defendants, and that the Defendants have failed to offer any evidence in rebuttal despite been given ample opportunity by this Honourable Court. Counsel further submitted that it is clear that the Claimant has adduced credible and unchallenged evidence in support of his claims and in the absence of any justification from the Defendants who failed to lead evidence in defence of their action, the only reasonable conclusion is that the Claimant was wrongfully retired before his statutory retirement age. Having established that the Claimant was wrongfully retired and that the Defendants have no defence to this claim, the Claimant is entitled to the reliefs sought, including full payment of his salaries till date and benefits that would have accrued had he not been unlawfully retired.

 

DECISION OF THE COURT

I have considered the processes filed, the evidence adduced and final submissions of counsel for the Claimant. This is a case that is rated as an undefended one. The effect of a party’s failure to defend a claim against him/her is that he/she is presumed to have admitted the case made out against him/her by the other party; and of course, a trial court has little or no choice than to accept the un-controverted, unchallenged and un-contradicted case placed before it by the Claimant. See Ifeta v. Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt. 983) 585, Consolidated Res Ltd v. Abofar Ventures Nig. [2007] 6 NWLR (Pt 1030) 221, Okolie v. Marinho [2006] 15 NWLR (Pt 1002) 316. However, this principles of law, does not mean automatic victory for the Claimant because he must succeed on the strength of his case and not rely on the fact that there is no defence before the Court. The absence of a defence does not exonerate the Claimant of the evidential burden of proof placed on him in Section 131 (1) & (2) Evidence Act 2011, see also Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt 1057) 218.

The grouse of the Claimant’s case in a nutshell is that he challenges his compulsory retirement as premature, unlawful and procedurally improper, principally on the grounds that his correct date of birth is 31 December 1965, his retirement date was 31 August 2025, and he was not afforded a fair opportunity to respond to the alleged discrepancy before his retirement.

It is imperative to note that where a Defendant fails to lead evidence, the Claimant’s credible evidence may be accepted. I have no doubt in the Claimant’s evidence which I consider very coherent, consistent, and supported by documentary exhibits. Having carefully considered the pleadings, the evidence led by the Claimant, the exhibits tendered and admitted in evidence, and the final written address of learned counsel for the Claimant, the issue that calls for determination is:

Whether having regard to the evidence before the Court, the Claimant has established his entitlement to the reliefs sought.

 

The law is settled that in the determination of the employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the Court the terms and conditions of his employment that provides for his rights and obligations. See Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 673, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. It is also the law that he who asserts must also prove, section 131 (1) and (2) of the Evidence Act 2011, Uwah v. Akpabio [2014] 7 NWLR (Pt. 1407) 489. The Claimant has placed before the Court the following documents in proof of his case; Certificate accompanying Computer Generated Evidence in compliance with Section 84(4) of the Evidence Act, 2011 (Exhibit C1); original copy of his Letter of Appointment (Exhibit C2); National Identification Number Slip (NINS) obtained in 2019 (Exhibit C3); Invitation Letter dated March 23, 2023 (Exhibit C4); Age Declaration dated June 21, 1992 (Exhibit C5); IPPIS Enrolment Slip dated October 9, 2017 (Exhibit C6); PENCOM Certificate (Exhibit C7); Claimant Letter dated November 10, 2023 (Exhibit C8); Claimant Solicitors Letter dated January 18, 2024 (Exhibit C9); Staff Nominal Roll of December, 2014 (Exhibit C10a); Staff Nominal Roll of February, 2015 (Exhibit C10b); Staff Nominal Roll of December, 2018 (Exhibit C10c); Staff Nominal Roll of February, 2019 (Exhibit C10d); Staff Nominal Roll of January, 2023 (Exhibit C10e); Claimant’s Pay Slip for January, 2022 (Exhibit C11); Claimant BVN document (Exhibit C12); Claimant International Passport (Exhibit C13); Claimant’s Personnel Record Form for 2017 Manpower Budget (Exhibit C14); Claimant’s Personnel Emolument Record, (2017 Authentic) (Exhibit C15); Compassionate Appeal For the Reversal of Unlawful Retirement From Service (Exhibit C16); Solicitor’s receipt dated 16th day of January, 2024 (Exhibit C17).

 

It is settled law that the burden of proof in a civil action rest upon the party who asserts the existence of a fact. By sections 131 and 132 of the Evidence Act 2011, the Claimant bears the initial burden of establishing the facts upon which his claim is founded. The burden, however, is discharged on a balance of probabilities.

In an action challenging compulsory retirement from a public service employment, the Claimant must establish the terms governing his employment and demonstrate that the retirement was contrary to those terms or the applicable statutory provisions.

Under the regulations in the Public Service Rules, specifically Rule 020810 provides that a public officer must retire from service upon attaining the age of 60 years or thirty-five (35) years in service whichever is earlier. The Claimant at the material time was a public officer. The Public Service Rules (PSR) regulate the conditions of service of Federal Public Servants. They invest the public servant over whom they prevail a legal status, which places their employment over and above the common law relationship of master and servant; and introduces in such employment relationship, the vires element of administrative law. See Comptroller-General of Customs v. Gusau [2017] 18 NWLR 353 at 385 paras A-G; P.H.C.N Plc v. Offoelo [2013] 4 NWLR (Pt. 1344) 380, Iderima v. RSCSC [2005] 16 NWLR (Pt. 951) 378, Shitta-Bey v Federal Public Service Commission [1981] 1 SC 26 at 35, Stephen Imuzei Akhiojemi & Anor v. Administrative Staff College of Nigeria & Anor [2014] 43 NLLR (Pt. 135) 240. The Public Service Rules have been made pursuant to the powers conferred by the 1999 Constitution (as amended) and have constitutional force. They are a bye-law of the Constitution; and have been made with the main object and intention of protecting officers, particularly those holding pensionable appointment in the Public Service of the Federation. The Claimant’s appointment is therefore one with statutory flavor.

I have examined the evidence of CW1 and the documentary exhibits placed before the Court. The Claimant tendered his Letter of Appointment, Age Declaration, National Identification Number Slip, IPPIS Enrolment Slip, PENCOM Certificate, personnel records and other official documents. These documents were admitted in evidence and were not challenged by any evidence from the Defendants.

The Defendants filed Statements of Defence but, having been given opportunity to present their defence, failed and/or refused to call evidence. Their right to defend the action was consequently foreclosed. It is trite that pleadings, without evidence in support thereof, do not constitute evidence. The effect of the Defendants failure to defend this action is that it is presumed to have admitted the case made against it by the Claimant as the facts are not contested. A trial court has little or no choice than to accept the unchallenged and un-controverted case placed before it by the Claimant. See Ifeta v Shell Petroleum Development Corporation of Nigeria Ltd [2006] Vol.6, MJSC 123, Consolidated Res Ltd v Abofar Ventures Nig. [2007] 6 NWLR (Pt 1030) 221, Okolie v Marinho [2006] 15 NWLR (Pt 1002) 316.

The consequence, however, is not that the Claimant automatically succeeds. The Claimant must still succeed on the strength of the evidence before the Court. The Court is not entitled to grant a relief merely because the Defendant did not defend the action.

The Claimant's evidence is that he was appointed into the Nigerian Prison Service, now Nigerian Correctional Service, on 31 August 1990 and that his date of birth is 31 December 1965. Exhibit C2, the Claimant's Letter of Appointment, establishes the date of his appointment as 31 August 1990. The Claimant also tendered Exhibits C3, C5, C6, C7, C12, C13, C14 and C15 in support of his date of birth and service history.

 

The evidence before the Court establishes, on the balance of probabilities, that the Claimant's date of birth is 31 December 1965. More importantly, his evidence is that he entered the service on 31 August 1990. Thus, he would attain 35 years of pensionable service on 31 August 2025. He would attain the age of 60 years on 31 December 2025.

The applicable Public Service Rules provide that the compulsory/ mandatory retirement age for officers in the Public Service is 60 years or 35 years of pensionable service, whichever is earlier. The Rule further provides that an officer shall not be allowed to remain in service after attaining either of those thresholds.

 

The Defendants have not placed before the Court any evidence establishing a lawful basis upon which the Claimant could be compulsorily retired in November 2023, when on the evidence before the Court he had neither attained 60 years nor completed 35 years of pensionable service.

I therefore find that the Claimant has established that his purported compulsory retirement before 31 August 2025 was premature and contrary to the applicable conditions governing his employment. I hold that the Claimant’s retirement with effect from when he had not attained the mandatory retirement age of 60 years or spent 35 years in service is in violation of Public Service Rule 020810. The Claimant’s retirement is unlawful, unconstitutional, null and void and of no effect, his employment being one with statutory flavor. It is hereby set aside. See P.H.C.N Plc v. Offoelo [2013] 4 NWLR (Pt. 1344) 380 at 409 paras B-D, Comptroller-General of Customs v. Gusau [2017] 18 NWLR 353 at 385 paras. A-G.

The Claimant also testified that he was invited by a seven-member committee to explain an alleged discrepancy concerning his date of birth. He stated that he supplied documents showing his date of birth as 31 December 1965, but that the Defendants subsequently retired him without giving him a further opportunity to answer the allegation before the appropriate disciplinary authority.

The Defendants offered no evidence to establish the alleged discrepancy, the document upon which the allegation was founded, or the legal basis for retiring the Claimant on that ground. The Court cannot speculate as to what the Defendants might have proved had they called evidence. The case must be determined on the evidence actually before the Court.

Furthermore, where an employment is regulated by statute and applicable regulations, the employer must comply with the prescribed procedure before taking an action which affects the employee's legal status. The Public Service Rules have been judicially recognised as conferring statutory flavour on employment regulated by them.

 

In the circumstances, the purported compulsory retirement of the Claimant cannot stand.

The Claimant’s reliefs are determined as follows;

Relief 1- A Declaration that the compulsory or forceful retirement of the Claimant by the 1st Defendant through a letter is unlawful, null and void as it was based on a criterion that never existed.

The burden of proof in establishing declaratory reliefs to the satisfaction of the Court is heavy in the sense that such declaratory reliefs are not granted even on admission of the Defendant where the Claimant fails to establish his entitlement to the declaration by his own evidence. In other words, a declaration cannot be made on admission, or in default of pleadings by the Defendant. The Claimant has to succeed on the strength of his own case only if the Court is satisfied by evidence, and not on the weakness of the Defendant’s case. See Dumez v Nwakhoba (2008) 18 NWLR (Pt 1119) 361 at 373-374, GE International Operations Nig Ltd v Q Oil & Gas Services Ltd [2016] 10 NWLR (Pt 1520) 304.

I have found that the Claimant had not attained either 60 years of age or 35 years of pensionable service when he was purportedly retired in November 2023. I therefore find merit in Relief 1. Relief 1 succeeds and is hereby granted.

 

Relief 2 – An Order reinstating the Claimant as a Controller of the Nigerian Correctional Service and directing an accelerated promotion of the Claimant to the rank of an Assistant Controller-General or any rank he would have attained if the Defendants had not forcefully or compulsorily retired him.  

 

Having found that the purported retirement was unlawful and void, the legal consequence is that the Claimant's employment did not lawfully come to an end by reason of that retirement. In an employment with statutory flavour, reinstatement is an appropriate remedy where the termination or retirement is found to be unlawful.

Although the Claimant did not specifically formulate a separate monetary relief for arrears of salary in the seven reliefs reproduced before the Court, the legal consequence of setting aside an unlawful retirement in an employment with statutory flavour is that the Claimant is treated as having remained in service until lawful retirement.

The Court therefore considers it appropriate to declare that the Claimant is entitled to his salaries, allowances and other employment benefits which accrued from the date of the purported retirement until 31 August 2025, being the date on which, on the evidence before the Court, he completed 35 years of pensionable service.

 

The Claimant attained the mandatory age of retirement of 60 years on 31 August 2025 during the pendency of this suit and therefore cannot be reinstated into the service after his rightful retirement age has elapsed. It is hereby ordered that the retirement of the Claimant as Assistant Director shall be with effect from31 August 2025. see Shitta-Bey v Federal Public Service Commission [1981] 1 SC 40, Idoniboye-Obu v NNPC [2003] 2 NWLR (Pt 805) 589; PHCN Plc v. Offoelo [2013] 4 NWLR (Pt 1344) 380.

The 1st Defendant is ordered to pay the Claimant’s salaries and allowances from 3 November 2023 to 31 August 2025.

However, the Court will not order an automatic promotion to the office of Assistant Controller-General merely because the Claimant was prematurely retired. Promotion ordinarily depends upon satisfaction of prescribed conditions, availability of vacancy, seniority, merit, requisite courses and approval by the competent authority. The Court cannot substitute itself for the statutory appointing or promoting authority where the evidence does not establish that the Claimant was automatically entitled to the particular rank.

Accordingly, it is hereby ordered that the retirement of the Claimant as Assistant Director shall be with effect from 31 August 2025. 

The prayer for accelerated promotion to Assistant Controller-General or any particular rank is refused.

 

Reliefs 3- The sum of ?10,000,000.00 (Ten Million Naira) only being general damages against the Defendants for the trauma and psychological torture suffered by the Claimant as a result of the unlawful act of the Defendants.

The claim for general damages cannot be granted merely on the assertion that the Claimant suffered trauma as a result of the premature retirement. The Claimant did not place sufficient independent evidence before the Court establishing a compensable injury warranting an award of N10,000,000.00.

More importantly, where reinstatement and the consequential payment of salaries and benefits are granted in an employment with statutory flavour, the Claimant is restored to the position he would have occupied had the unlawful act not occurred. An award of substantial general damages in addition may amount to double compensation. The courts have consistently recognised this principle.

Accordingly, Relief 3 fails and is refused.

 

Reliefs 4 and 5 will be taken together.

Reliefs 4 – The sum of ?5,000,000.00 (Five Million Naira) only being cost of all legal services and actions taken by the Claimant from 2023 till date.

Relief 5- The sum of ?2,500,000.00 (Two Million, Five Hundred Thousand Naira Only) for legal fees.

With respect to Reliefs 4 and 5, the Claimant seeks reimbursement of solicitor's fees and other legal expenses. It is settled that solicitor's fees incurred in prosecuting an action are not ordinarily recoverable as damages for breach of contract.

The bill of charges is not in evidence. The decisions of the appellate Courts is that it is unethical and an affront to public policy for a litigant to pass the burden of his legal fees to his opponent, see Guinness Nigeria Plc v Nwoke [2000] 15 NWLR (Pt 689) 135. Furthermore, a claim for Solicitors fees which does not form a part of the cause of action is not one that can be granted, see DHL International Ltd v Eze Uzoamaka (2020) 16 NWLR (Pt 1751) 4459, Ibe v Bonum Nig Ltd (2019) LPELR 46452, Michael v Access Bank (2017) LPELR 42981.

Such expenses fall within the jurisdiction of the Court to award as costs where appropriate.

The Claimant's claim for N5,000,000.00 Five Million Naira) and N2,500,000.00 (Two Million Five Hundred Naira) as legal fees is therefore refused. Reliefs 4 and 5 fail and are refused.

 

Relief 6 – Interest at the rate of 15% per annum until final liquidation of the judgment sum.

The power of the National Industrial Court to award post-judgment interest is discretionary. Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 permits the Court to order interest on a judgment sum and the applicable rate shall not be less than 10% per annum.

In the circumstances of this case, where the principal relief is substantially declaratory and the monetary entitlement is consequential upon the Claimant's Relief 2, I consider it appropriate to order that any monetary sum found due and payable pursuant to this judgment, if not paid within 30 days from the date of judgment, shall thereafter attract interest at the rate of 10% per annum until fully liquidated.

 

Relief 7- The sum of ?300,000.00 (Three Hundred Thousand Naira only) as cost of filing and incidental expenses.

Costs follow the event but are discretionary. The Claimant has substantially succeeded in establishing that his premature retirement was unlawful. I therefore consider it appropriate to award reasonable costs in his favour.

The sum of N300,000.00 claimed as filing and incidental expenses is not, strictly speaking, an item of damages requiring proof in the same manner as a substantive claim. It is more appropriately treated as costs of the action.

I accordingly award the Claimant N300,000.00 (Three Hundred Thousand Naira only) as costs of this action.

 

On the whole, the Claimant has adduced credible evidence worthy of belief in proof of his claims. He has succeeded on the strength of his case.  For all the reasons given above, I hereby declare and make the following Orders:

 

1.       That the purported compulsory retirement of the Claimant by the 1st Defendant in November 2023, before the Claimant attained 60 years of age or completed 35 years of pensionable service, whichever was earlier, was unlawful, premature, null and void and of no effect. The letter of compulsory retirement issued to the Claimant is hereby set aside.

 

2.     The Claimant is reinstated into the service of the Nigerian Correctional Service to the rank/position he held immediately before the purported compulsory retirement, with all rights, privileges, seniority and benefits attached thereto, from November, 2023 to 31st August, 2025.

The Claimant shall be treated as having remained in the service of the 1st Defendant notwithstanding the purported retirement, and shall be entitled to his salaries, allowances and other accruing employment benefits from the date of the purported retirement until 31 August 2025, subject to computation by the Defendants in accordance with his applicable salary structure and service records.

The prayer for accelerated promotion to the rank of Assistant Controller-General or any particular rank is refused, the Court not having sufficient evidence to determine that the Claimant was automatically entitled to such promotion.

 

3.     The claim for N10,000,000.00 general damages is refused.

4.     The claims for N5,000,000.00 and

5.     N2,500,000.00 respectively as legal fees are refused.

 

6.     The judgment sum found payable to the Claimant pursuant to this judgment shall be paid within 30 days from the date of this judgment, failing which the outstanding judgment sum shall attract interest at the rate of 10% per annum until fully liquidated.

7.     The Defendants shall pay the Claimant the sum of N300,000.00 (Three Hundred Naira only) as costs of this action.

 

For the avoidance of doubt, the Claimant's entitlement to remain in service cannot extend beyond 31 August 2025, being the date on which, on the evidence before the Court, he completed 35 years of pensionable service.

 

Judgment is entered accordingly.

….……………………………

HON. JUSTICE S. A. YELWA

JUDGE

 

Appearances

Cornelius Abiakwe        --       --       --       for the Claimant

No Appearance             --       --       --       for the Defendants