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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE BAUCHI JUDICIAL DIVISION

HOLDEN AT BAUCHI

BEFORE HIS LORDSHIP HON. JUSTICE MUSTAPHA TIJANI

FEBRUARY 12 , 2025                                        SUIT NO:NICN/BAU/22/2017

 

BETWEEN

MRS. LIATU DANIEL                                   ….……………. CLAIMANT

 

AND

 

ABUBAKAR TAFAWA BALEWA

UNIVERSITY TEACHING HOSPITAL BAUCHI ……DEFENDANT

 

REPRESENTATION:

M.A Tsuwa Esq. with Seerdon Dialam Esq. for the Claimant.

Rabiu Garba Esq for the Defendant.

 

INTRODUCTION

By Complaint and the accompanying originating processes dated and filed on December 4, 2017, the Claimant, Mrs. Liatu Daniel, instituted this suit against the Defendant, Abubakar Tafawa Balewa University Teaching Hospital (ATBUTH), Bauchi, seeking various reliefs, including declarations that her employment with the Defendant was a fresh appointment, not a secondment, and that her demotion and subsequent retirement were unlawful. Upon been served, the Defendant entered appearance and filed her defence processes on December 15, 2017.  By the leave of this Court, the Claimant amended her Complaint on 4th December 2018, and the Defendant also amended her Statement of Defence on December 4, 2019. The Claimant by the Amended Complaint and Statement of Facts, claims against the Defendant the following reliefs:

A.     A DECLARATION that the claim of the Defendant that the Claimant was seconded and/or absorption to it from Bauchi State Specialist Hospital is wrong, and unlawful, illegal and unfounded.

 

B.     A DECLARATION that the Claimant’s employment with the Defendant is a fresh appointment vide a letter dated 3rd September, 2010 issued to her and the said appointment is subsisting till date haven not reached the age of mandatory retirement of 65 years of age or 35 years of service.

 

C.     A DECLARATION that the Claimant’s demotion from Medical Laboratory Technician on CONHESS 7 step 4 to Chief Medical Laboratory Attendant on CONHESS 3 Step 5 in 2011 with her qualification at the time of appointment is wrong, illegal, unlawful and unfounded.

 

D.    A DECLARATION that the directive from the Defendant to the Claimant to proceed on retirement by 15th March, 2017 and the subsequent forceful retirement of the Claimant by the Defendant in March, 2017 is oppressive, wrong, illegal, null, void and of no legal effect whatsoever haven not reached the age of retirement consequent upon her appointment in 2010.

E.     AN ORDER DIRECTING the Defendant to pay to the Claimant the illegal deductions made from her salaries from February, 2011 to January 2016 in the total sum of N5, 086, 087. 49(Five Million Eighty Six Thousand and Eighty Seven Naira Forty Nine Kobo) only.

 

F.     AN ORDER DIRECTING the Defendant to pay to the Claimant her total Net Earnings in the sum of N153, 117. 1 per month from March, 2017 to December, 2017 (10 Months) and the sum of N157, 386.27 per month from January, 2018 to December, 2018 (12 Months) and the sum of N162, 655.44 per month from January, 2019 to date of Judgment.

 

G.     AN ORDER DIRECTING the Defendant to re-instate the Claimant with immediate effect to the grade level she would have been with her colleagues at the date of Judgment.

 

H.    AN ORDER DIRECTING the Defendant to pay to the Claimant the sum of N20, 000, 000 .00 (Twenty Million Naira) only being exemplary and general damages suffered for the ill-treatment meted on the Claimant by the Defendant form 2011 to date.

 

I.       THE SUM OF N1, 000, 000.00 (One Million Naira) only being Solicitor’s fees paid in prosecuting the case.

 

J.       Cost of the action as assessed by the court.

 

The matter proceeded to trial, with both parties presenting their cases and closing their evidence. The Claimant testified for herself and tendered the following documents which were admitted and marked as Exhibits C1-C24 respectively.

1. EXHIBIT ‘C 1’ - Letter of employment dated 3/9/2010.

2. EXHIBIT ‘C 2’ - Letter of conversion dated 8/2/2016.

3. EXHIBIT ‘C 3’ - Diploma certificate dated 12/12/2006.

4. EXHIBIT ‘C 4’ - HND Certificate dated 10/12/2008.

5. EXHIBIT ‘C 5’ - Bundle of pay slips in 2015.

6. EXHIBIT ‘C 6’ - Bundle of other 27 pay slips.

7. EXHIBIT ‘C 7’ - Claimant's statement of accounts with F.C.M.B original statement.

8. EXHIBIT ‘C 8’ - Bundle of 3 proceedings, license issued the claimant.

9. EXHIBIT ‘C 9’ - Letter of exclusion from the NYSC.

10. EXHIBIT ‘C 10’ - Notice of Correction of Appointment dated 24/6/2011.

11. EXHIBIT ‘C 11’ - Defendant circular titled List of Affected staff.

12. EXHIBIT ‘C 12’ - Bundle of letters exchanged between the claimants and the defendants

13. EXHIBIT ‘C 13’ - Defendant internal memo dated 16/2/2016.

14. EXHIBIT ‘C 14’ - Defendant's memo dated 6/4/2016.

15. EXHIBIT ‘C 15’ - Defendant's letter to the claimant date 10/11/2011.

16. EXHIBIT ‘C 16’ - IPPIS online registration evidence.

17. EXHIBIT ‘C 17’ - Bundle of letters exchanged between the claimants and the defendants on the account of the claimant's retirement.

18. EXHIBIT ‘C 18’ - Claimant application for transfer of service dated 22/7/2012 and another one dated 8/4/2016

19. EXHIBIT ‘C 19’ – Re-Approval for se condiment dated 19/4/2012 and the claimants reply dated 19/7/2012 and the last one dated 18/11/2014 from Bauchi state Hospital Management Board.

20. EXHIBIT ‘C 20’ - Claimant's letter to the defendant dated 1/6/2016.

21. EXHIBIT ‘C 21’ - Letter from the office of Head of Service Bauchi State dated 29/6/2011.

22. EXHIBIT ‘C 22’ - Claimants Solicitors letter request for certificate of document by Bauchi State Hospital Management Board

23. EXHIBIT ‘C 23’ - Defendant letter to the claimant dated 18/1/2017

24. EXHIBIT ‘C 24’ - Receipt for the payment of solicitors fee dated 10/4/2018 and 11/6/2018.

The Defendant called one witness (Usman Yakubu Suri), and also tendered 11 documents which were admitted in evidence and marked as EXHIBITS D1 - D11 to wit:

 

1.       EXHIBIT ‘D 1’ - Claimant letter of appointment dated 21/5/1982.

2.       EXHIBIT ‘D 2’ - Letter of permanent and pensionable appointment dated 6/1/1988.

3.       EXHIBIT ‘D 3’ - Evidence of official handing over of Bauchi Specialist Hospital dated 26/11/2010.

4.       EXHIBIT ‘D 4’ - Memorandum of understanding dated 25/11/2008.

5.       EXHIBIT ‘D 5’ - Notice of correction of appointment dated 24/6/2011.

6.       EXHIBIT ‘D 6’ - Claimant Bio-data form dated 20/10/2009.

7.       EXHIBIT ‘D 7’ - APERs Form for 2013 and 2014.

8.       EXHIBIT ‘D 8’ - Claimant's declaration of age dated 9/9/1981.

9.       EXHIBIT ‘D 9’ - Defendant letters to the claimant dated 4/11/2016, 16/12/2016 and 18/1/2017 on alteration of credentials.

10.  EXHIBIT ‘D 10’ - Letters of ratification and enrolment for pension.

EXHIBIT ‘D 11’ - Copies of letters of appointment, Notification for retirement and Approval for retirement for the claimant's colleagues

 

The Defendant failed to file its final written address within time, prompting the Claimant to file hers first while the Defendant file later and in response the Claimant filed a reply on point of law.

BRIEF STATEMENT OF FACTS

The facts pleaded by the Claimant are that the Claimant has been in the gainful employment of the Defendant by virtue of a letter of appointment dated September 3rd 2010. That the Claimant began working for the Defendant as Higher Medical Laboratory Technician and thereafter gradually rose to the position of Medical Laboratory Scientist. That from January 2011 to February 2016, the Claimant suffered unauthorised deductions from her monthly salary. The Claimant averred that shortly after attaining the rank of Medical Laboratory Scientist with the Defendant, the Claimant was served with a notice of retirement. That upon reaching Thirty-five (35) years of service the Claimant is due to retire on March 15th 2017. That the Claimant claims that her date of first appointment with the Defendant stands as September 3rd 2010. The Claimant averred that she had neither attained Thirty-five (35) years of service nor has she reached the age of Sixty-five being the age of compulsory retirement under Public Service Rules. That prior to this appointment, the Claimant was an employee of Bauchi State Specialist Hospital. That when the Defendant took over Bauchi State Specialist Hospital, the Claimant was offered a fresh appointment by the Defendant. The Claimant claims that after accepting the Defendant’s offer of appointment dated September 3rd 2010, the Claimant wrote a letter to Bauchi State Specialist Hospital for transfer of service to the Defendant and later withdrew same. The Claimant further averred that her employment with the Defendant is not on the basis of secondment or transfer of service. That the Claimant’s purported secondment and/or absorption from Bauchi State Specialist Hospital is wrong, and unlawful, illegal and unfounded..

The Defendant in reaction to the facts led by the Claimant averred that the Claimant had been a staff of Bauchi State Specialist Hospital since March 15th 1982 but was later absorbed by the Defendant on September 3rd 2010. That the Claimant was handed over to the Defendant upon the takeover of the Bauchi State Specialist Hospital by the Federal Government. That there were no applications for employment submitted by the Claimant and neither was the Claimant and other affected staff interviewed during the absorption process. That the Claimant’s absorption was made pursuant to a Memorandum of Understanding between the Defendant and Bauchi State Government. The Defendant averred that the Claimant was not a fresh employee. That the absorption of the Claimant and other staff of the said Bauchi Specialist Hospital was on basis of the Memorandum of Understanding between the Defendant and Bauchi State Government which sealed the absorption process. That the Claimant along with other staff of the then Bauchi State Specialist Hospital were handed over to the Defendant on basis of secondment. That the said secondment expired in September 2014 upon which the Claimant ought to have de-seconded or applied for transfer of service. The Defendant also averred that the Claimant’s date of birth by her service record remains June 6th 1965/66.

That the Claimant was mandatorily retired from service in accordance with the Public Service Rules of Nigeria having spent Thirty-five years in public service since March 15th 1982 being her purported date of first employment. That all other staff of the Defendant who were absorbed in the same manner as the Claimant were equally given appointment letters and all the said staff have already retired in 2017. The Defendant called a sole witness and tendered documents marked and admitted as Exhibits D1 to D11 respectively.

SUBMISSIONS OF THE CLAIMANT

The Claimant’s learned Counsel formulated a sole for determination in her Final Written Address, thus:

Whether by the tenor of the Claimant’s pleadings and the evidence on record before the Court, the Claimant has proved her case on the preponderance of evidence to warrant the grant of the reliefs she is seeking from this Court.

On the sole issue formulated, the learned counsel argued that civil suits are decided on the preponderance of evidence and balance of probabilities and relied on KWARRA VS. INNOCENT LAGI (2010) 7 EPR 523 @ 563.

Learned counsel argued that the Claimant abandoned her employment with the Bauchi State Specialist Hospital when she accepted the offer of fresh appointment from the Defendant on 3rd day of September, 2010. That based on this the Claimant’s said offer of employment (Exhibit C1) remains the only employment relationship between the Claimant and the Defendant. Learned counsel further argued that there is no evidence to substantiate that the Claimant was seconded from her initial employment with the Bauchi State Specialist Hospital.

Learned Counsel argued that it is the terms of the contract of employment of the parties that will govern the relationship between an employee and his/her master. Learned counsel relied on the case of W.A.P.C PLC Vs. ODUNIYI (2005) ALL F.W.L.R. (Part 264) 977 @ 984, PARAS. C & E-F.

Learned counsel argued that the Claimant’s employment offer letter with the Defendant clearly stated that same is to be governed by the Federal Public Service rules and not that of the State public service rules. In light of this, the Claimant’s employment with the Defendant has extinguished her employment contract with the Bauchi State Specialist Hospital.

Learned counsel submitted that the Claimant was not due for retirement with the Defendant since she was employed on 3rd September, 2010, having not served up to 35 years and having not attained 60 years of age. Learned counsel relied on Chapter Two Section 8 number 020810 of the Federal Government Public Service Rules 2009 edition.

Learned counsel also argued that the Claimant’s employment with the Defendant is not on basis of secondment. Learned Counsel argued that such service transferred or secondment of the officers on the grade level of the Claimant must be approved by the Civil Service Commission of the Federation and same is not the case in the instant case. Learned counsel relied on Chapter two Section 5 number 020502 of the Federal Government Public Service Rules 2009 edition.

Learned counsel thereafter submitted that only evidence before this court is to the effect that the Claimant is an employee of the Defendant on the basis of Exhibit C1. Learned counsel further argued that DW1 also testified under cross examination that the documents he tendered on the Defendant’s behalf does not show that the Claimant was on secondment.

Learned counsel thereafter urged the Court to resolve the Claimant’s sole issue in favour of the Claimant.

DEFENDANT’S SUBMISSIONS

The Defendant’s learned counsel before delving into the main arguments of its Final Written Address raised an objection to the Claimant’s Exhibits C5, C6, C7 and C24. The basis of their objection is that these documents were tendered without the requisite certificate under Section 84 of the Evidence Act, 2011. The Learned Counsel therefore urged the Court to hold these Exhibits as inadmissible and relied on the case of DICKSON VS SYLVA & ORS. (2016) LPELR – 41257 (SC).

Learned counsel further argued that this Court can only act on evidence that is admissible in law. And that this Court has the power to expunge any inadmissible evidence which was wrongly admitted during trial. Learned Counsel relied on OKPU VS TRUST BOND MORTGAGE BANK PLC (2021) LPELR – 54554 (CA).

Learned counsel also urge the Court to discountenance Exhibit C24 (Claimant’s Receipt for the payment of solicitor’s fees) on grounds that it was neither pleaded nor listed in the Claimant’s Complaint in the suit. Learned counsel therefore urged the court to discountenance this exhibit and relied on OKO VS NTAJI & ORS. (2014) LPELR – 24248 (CA) and ODOM & ORS v. PDP & ORS (2015) LPELR – 24351 (SC).

On the main Final Written Address, learned counsel formulated a fresh issue for determination as Issue One (1) and adopted the Claimant’s sole issue as Issue Two (2). Thus, the Defendant submitted Two (2) for determination in this suit. To wit:

1)    Whether the Claimant, without terminating or resigning her appointment with the Bauchi State Government as per EXHIBITS D1 & D2, can be validly considered as having a fresh appointment with the Defendant as per EXHIBIT C1 having regard to the entire facts and circumstances as well as the pleadings and evidence adduced in this suit?

2)    Whether by the tenor of the entire pleadings and evidence led in this suit, the Claimant is entitled to have judgment in terms of the reliefs sought in this suit? 

On Issue One (1), learned counsel argued that on the basis of Exhibit C18 (Claimant’s application for transfer of service) and additionally based on the contents of Exhibit C19 (Re-Approval for secondment from Bauchi State Hospital Management Board), the Claimant was issued a letter of secondment by the Bauchi State Government. Learned counsel therefore argues that it could be inferred that the Claimant withheld the letter of secondment by failing to plead same into evidence. As the letter would have acted against the Claimant’s case. On this basis, learned counsel submits that the presumption of withholding evidence under Section 167(d) of the Evidence Act, 2011 applies against the Claimant in this suit. Learned Counsel relied on EZE VS STATE OF LAGOS (2024) LPELR – 62819 (CA) and WETIFE VS IGP & ORS. (2024) LPELR – 62453 (CA).

Learned counsel further argued that when EXHIBITS D1, D2, C18, C19 & C20, and paragraphs 16, 21 and 24 of the testimony of DW 1 are considered and read together, it establishes that the Claimant’s appointment with the Bauchi state Government has neither been terminated nor has the Claimant resigned from that appointment. Learned counsel therefore submits that this       is fatal to the Claimant’s case and consequently urged the Court to invoke the provision of Section 167(d) of the Evidence Act, 2011 on the presumption of withholding evidence. Learned counsel further relied on EZE VS STATE OF LAGOS (supra); and WETIFE VS IGP & ORS. (supra).

Learned counsel further argued that the Claimant was absorbed by the Defendant from the Bauchi State Government in line with paragraph 3.2 of the Defendant’s Exhibit D4 (Memorandum of understanding dated 25/11/2008). Learned further contends that the Claimant’s date of first appointment in the public service stands as 15th March, 1982. It therefore follows that the Claimant’s retirement due date is 15th March, 2017, having attained the mandatory service of 35 years pursuant to Public Service Rules (PSR) 020810.

Learned counsel further contends that an employee seeking declaration that their termination or dismissal from employment is unlawful, the said employee ought to plead and prove their employment, the terms and conditions and how they were appointed. On this, learned counsel submitted that the Claimant having failed to establish same has gravely affected the Claimant’s case and urged the court to resolve Issue One (1) in the negative and in favour of the Defendant. Learned counsel relied on OKUSAMI VS A.G., LAGOS STATE (2015) 4 NWLR (Pt. 1449) P. 220, at P. 253.

On Issue Two (2), learned counsel contended that burden of proof rests on a party who desires any court to give judgment in his favour as to any legal right or liability dependent on the existence of facts which he asserts. Learned counsel contends further that the burden thereafter shifts to the person against whom judgment would be given if no more evidence were adduced as contained in Sections 131, 132 and 133 of the Evidence Act 2011 (as amended). Learned counsel relied on ADIGHIJE Vs NWAOGU (2010) 12 NWLR (Pt 1209) p. 419 at pp. 458 – 464 and C.P.C Vs I.N.E.C (2011) 18 NWLR (Pt 1279) p. 493 at p. 539-540.

Learned counsel argued that the Claimant stated in 2013 in her Civil Service Annual Performance Evaluation Report (APER) with the Defendant, that the Claimant’s date of first appointment to be 6th January 1988. However, in 2014, the Claimant stated 3rd September 2010 to be the date of the Claimant’s 1st appointment, additionally, that the Claimant’s date of birth is 30th December 1973. Learned counsel therefore contends that the Claimant cannot get the equitable reliefs being sought having come to equity with unclean hands. Learned counsel relied on JEGEDE & ANOR VS INEC & ORS (2021) LPELR – 55481 (SC).

Learned counsel further contended that where an employer wishes to terminate the services of an employee, all that is required is to afford the employee an opportunity of being heard before exercising his power of summary dismissal. Learned relied on YUSUF VS UNION BANK PLC (1996) 6 NWLR (Pt. 457) 632 and ARINZE VS FIRST BANK PLC (2000) 1 NWLR (Pt. 639) 78.

Learned counsel therefore contended that the Claimant was informed of her compulsory retirement via all relevant correspondences which were admitted as exhibits in this suit. The Claimant was therefore accordingly granted a fair hearing. Learned counsel relied on SAIBU VS KWARA STATE POLYTECHNIC, ILORIN (2008) LPELR – 4524 (CA).

On the whole, learned counsel urged the court to resolve all the issues against the Claimant and in favour of the Defendant.

 

CLAIMANT’S REPLY ON POINT OF LAW

The learned counsel in reply to the Defendant’s objection to Exhibits C5, C6, C7 and C24, contended that objections to admissibility of documents is normally made at the time of tendering the said documents in evidence and not later. Learned counsel relied on OGUNTAYO VS ADELAJA (2009) ALL FWLR (PART 495) 1626 @ 1665 PARA. A.

Learned counsel further argued that since the Defendant’s learned counsel stated they shall not be objecting to all the documents emanating from the Defendant, same cannot be allowed to object now at the point of address. And that these said documents were produced by the Defendants who issued same to the Claimant.

Learned counsel further contended that the intention of the law-maker on the application of Section 84 of the Evidence Act is that the party who had control of the computer from which the said electronic document is generated who intends to tender such a document in evidence, has the bounden duty to satisfy the condition stipulated in section 84 of the Evidence Act. Learned counsel therefore submitted that a party who did not produce the document sought to be tendered nor was in possession or control of the computer that produced such a document has no such duty of complying with the provisions of Section 84 of the Evidence Act.

Learned counsel therefore contended that Exhibits C5 and C6 which are bundles of pay slips issued to the Claimant by the Defendant, it would be out of place to expect the Claimant to know the working conditions of the devices at the time they were printed. That similarly Exhibit C7 (Claimant’s Statement of Account with FCMB) was equally not produced by the Claimant. That Exhibit C7 was issued by the bank and not the Claimant. Learned counsel also argued that the extant law is that bank account statements have been held not to constitute computer generated evidence. Therefore, Section 84 of the Evidence Act 2011 does not apply to Exhibit C7. Learned counsel relied on BUA INTERNATIONAL LIMITED VS SAIMA (NIG) LTD 2023 LPELR -59533 (CA).

Learned counsel contended that the Defendant counsel reliance on DICKSON VS SILVA & ORS (2016) LPELR 41257 SC and OKPU VS TRUST BOND MORTGAGE BANK PLC (2022) LPELR – 54554 CA and AHIWE & ANOR VS INEC & ORS 2024 LPELR 61674 SC are distinguishable from the facts of this case. Learned counsel argued that the above cited cases do not support the Defendant’s counsel submission in urging the court to reject the said Exhibit C5, C6, C7 and C24. That the documents objected to in those cases were produced by the witness who sought to tender the said exhibits in those cases. Consequently, the Defendant’s counsel submission is not well founded. Learned counsel therefore urged the court to discountenance the objections of the Defendant.

On objections raised against Exhibit C24, learned counsel argued in response to the Defendant that documents themselves are not pleaded but facts relating to documents are pleaded. Learned counsel relied on ARABAMBI VS ADVANCE BEVERAGES IND. LTD (2006) ALL FWLR (PART 295) 581 @ 604 PARAS. D – E.

Learned counsel further argued that paragraph 36 of the Claimant’s Amended Statement of Facts is sufficient to support the admissibility of Exhibit C24, the said paragraph having referred to the said receipt of G.E. Kaka & Co. Learned Counsel thereafter urged the Court to discountenance the objection of the Defendant to the admissibility of the said exhibits.

On the Claimant’s reply to the submissions in the Defendant’s Final Written Address, the Claimant’s learned Counsel contended that the said contention of the Defendant is disingenuous to argue that the Claimant withheld evidence pursuant to Section 167 (d) of the Evidence Act 2011. That the entirety of the Claimant’s case is predicated on the fact that the Claimant was offered a fresh appointment by the Defendant on 3rd of September, 2010. That it is not the duty of the Defendant to approve the Claimant’s secondment, and that the said letter dated 19th April, 2012 has no relevance to the Claimant. Learned counsel also argued, that the Claimant has in the Amended Statement of Facts given notice to the Defendant to produce the original of the said letter dated 19th April, 2012, that Section 167 (d) of the Evidence Act 2011 is therefore not applicable to the Claimant’s case. Learned Counsel therefore urged the court to discountenance the submissions of the Defendant.

The learned counsel also contended that the Defendant’s counsel submission that the Claimant having failed to account for the status of her earlier appointment with the Bauchi State Government has greatly affected the Claimant in this suit. Learned counsel contended that Defendant’s submission is highly misconceived, that the Claimant had categorically stated in her witness statement on oath as well her pleadings that the Claimant had abandoned her earlier employment with the Bauchi State Government.

Learned counsel thereafter submitted that the Claimant having proven her case is therefore entitled to all the reliefs sought in the amended Complaint and Statement of Facts.

Learned counsel also contended that the purported compulsory retirement of the Claimant which was argued to be part of disciplinary measures meted out against the Claimant are untrue and misconceived. Learned counsel contended that the Claimant has consistently maintained that her employment with the Defendant originated from her employment offer dated 3rd September, 2010. And that the conditions of service of her employment with the Defendant is governed by the Federal Public Service Rules.

Learned counsel thereafter argued that the requisite procedure for carrying out disciplinary measure if any under public service rules is spelled out in Chapter 3 of the Public Service Rules of the Federal Government 2009. That the said procedure if any were never initiated against the Claimant. Learned counsel thus contended that the Claimant’s employment with the Defendant is one that enjoys statutory flavor, the requirement of statute therefore ought to be complied with. Learned counsel relied on EZE VS SPRING BANK PLC (2012) ALL FWLR (Part 609) 1076 @ 1099 PARAS D-E.

Learned counsel further contended that an employment contract which enjoys statutory flavor cannot be terminated at the will of the employer and relied on OGIEVA VS IGBINEDION (2005) ALL FWLR (PT 260) 85 @ 102 PARAS E.

Learned counsel thereafter submitted that the Defendant’s purported attempt to compulsorily retire the Defendant without attaining the mandatory age of retirement at Sixty (60) or thirty-five 35 years of service is illegal, ultra vires the powers of the Defendant, null, void and of no effect whatsoever and same being contrary to the Federal Government Public Service Rules 2009.

On the whole, learned counsel submitted that the Claimant has proven her case on preponderance of evidence and balance of probabilities and urged the Court to grant all the reliefs sought in favour of the Claimant.

 

COURT’S DECISION

This matter revolves around a dispute as to the nature of the Claimant’s employment relationship with the Defendant. The Claimant asserts that her appointment with the Defendant was a fresh and distinct contract of employment, entitling her to the rights and benefits accruable under that relationship. Conversely, the Defendant contends that the Claimant was merely seconded to its organization by her original employer, [Bauchi State Teaching Hospital], and that no new employment contract was created. This Court is thus tasked with determining the true character of the Claimant’s engagement, guided by the evidence presented and the applicable principles of Nigerian employment law.

After due consideration of the processes and submissions of the parties, I start off with the preliminary issues raised by the learned Counsel to both parties in the respective written addresses.

The Claimant's Counsel asserts that during the tender of the Claimant’s documents as evidence, the Defendant’s Counsel indicated no objection to their admissibility. Consequently, it is argued that the Defendant is precluded from raising objections to these documents in the final written address, as objections must be raised at the time of tender, not subsequently. 

The Court’s record, however, reflects a critical distinction: when the documents were tendered, the Defendant’s Counsel did not state an absence of objection. Instead, he explicitly reserved the right to challenge the admissibility of the documents during the final address. Accordingly, the Claimant’s Counsel’s assertion is rejected as inconsistent with the court record. I so hold.

Furthermore, the authority cited by the Claimant’s Counsel does not establish a prohibition against raising objections to admissibility in final addresses. On the contrary, Order 15 Rule 4(1) of this Court’s extant procedural rules expressly permits objections to the admissibility of documents to be raised during final arguments. The Defendant’s reservation of her right to object was both valid and in compliance with the rules.  I so hold.

Having carefully reviewed the parties' arguments and procedural submissions, I turn first to the Claimant’s reply on points of law. As previously noted, this reply largely reiterates arguments already presented in the defendant’s final written address. It is critical to clarify that a reply on points of law serves a specific purpose: to address legal issues raised in the opposing party’s final address, not to reargue the case, introduce new arguments, or remedy deficiencies in the original submissions.  A reply on points of law is neither a platform to rehash earlier content nor an opportunity to refine or correct oversights in the initial written address. This principle is well-established in jurisprudence, as affirmed in Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). These authorities uniformly emphasize that such replies must strictly focus on rebutting or clarifying legal points, not amplifying or repairing prior arguments. 

Consequently, to the extent that the Claimant’s reply duplicates arguments already thoroughly addressed in its final written address, the Court will disregard those portions. Only submissions strictly confined to rebutting new points of law in the Defendant’s final address will be considered.

Learned Counsel to the Defendant objects to the admissibility of Exhibits C5, C6 and C7 (pay slips/bank statements) being electronic documents tendered without certification as required by section 84 (4) of the Evidence Act, 2011. The reaction of the Claimant’s learned Counsel is that   Exhibits C5, C6 (pay slips) and C7 (bank statement) were issued by the Defendant and FCMB, not generated by the Claimant. That the Defendant, having control of these records, cannot demand certification from the Claimant.

 

It is not in dispute that Exhibits C5, C6 and C7 were not produced by the Claimants computer. Under Section 84(4) of the Evidence Act, 2011, a party seeking to tender a computer-generated document is generally required to produce a certificate authenticating the document’s origin and the reliability of the computer system that produced it or to give an oral statement to that effect. However, the Court of Appeal in Stanbic IBTC Bank v. Longterm Global Capital Ltd & Ors (2021) LPELR-55601(CA) clarified that Section 84(4) does not bar a party from tendering electronic evidence merely because they lack control over the originating computer. The requirement for certification applies only to the producer/owner of the document. Requiring certification in such cases would impose an evidential impossibility, as the party cannot attest to the computer’s functionality or production process.

Exhibit C7 is a bank statement and as rightly argued by the Learned Counsel to the Claimant, it does not qualify as computer generated document on the authority of BUA International Limited v. SAIMA (supra).

For the reasons given, the objection to the admissibility of Exhibits C5,C6 & C7 is overruled. I so hold.

The Defendant objects to the admissibility of Exhibit C24 (two receipts from M.A. Tsuwa & Associates dated 10/4/2018 and 11/6/2018) on two grounds: 

1. The exhibit was neither pleaded nor listed in the Claimant’s pleadings. 

2.  Paragraph 36 of the Claimant’s amended Statement of Facts references payments to G.E. KAKA & CO, conflicting with Exhibit C24’s origin (M.A. Tsuwa & Associates).

The Defendant relies on Oko vs NTAJI & Ors. (2014) and Odom vs PDP (2015), which held that unpleaded documents or evidence conflicting with pleadings are inadmissible. The Claimant contention is that facts (not documents) must be pleaded, and the payment of legal fees was sufficiently pleaded in paragraph 36 of the amended statement of facts. The Claimant, however, cites Arabambi v. Advance Beverages (supra), where the Supreme Court clarified that documents need not be expressly pleaded so long as the facts underlying them are pleaded

Now, Paragraph 36 of the amended Statement of Facts explicitly pleads the fact of payment for legal services (“receipt of payment of professional fees”). While the pleadings reference G.E. KAKA & CO., the Claimant’s failure to list Exhibit C24 (from M.A. Tsuwa) is not fatal under Arabambi, as the factual basis for the payment was pleaded. Failure to frontload a document as required by procedural rules does not automatically render it inadmissible in evidence. Such failure is treated as an irregularity, not a bar to admissibility. For a document to be admissible, it must be related to pleaded facts; be relevant to the case; and be legally admissible. See INT Towers ltd v. Madugu (2024) LPELR-73370(CA).

The Defendant argues that the inconsistency between the pleaded entity (G.E. Kaka) and Exhibit C24 (M.A. Tsuwa) renders the evidence inadmissible under ODOM vs PDP. The Claimant explains this variance by asserting a change in legal representation, supported by CW1’s testimony.  The discrepancy between the pleaded entity (G.E. KAKA) and the exhibit’s origin (M.A. Tsuwa) raises concerns of procedural fairness goes to the weight to be attached not its admissibility. The objection regarding admissibility of Exhibit 24 is accordingly overruled. I so hold.

 I have carefully examined the filed processes, the evidence adduced and the submissions of learned Counsel for both parties in the respective written addresses.   The Claimant’s case revolves around the Claimant’s employment status, demotion, and alleged unlawful retirement by the Defendant. The Claimant seeks declarations and reliefs affirming her fresh appointment in 2010, challenging her demotion and retirement, and claiming damages. The Defendant disputes these assertions, contending that the Claimant was seconded from Bauchi State Government service and lawfully retired based on cumulative service years.

The central question for this Courts determination is whether, on the basis of the factual circumstances and evidentiary record presented, the Claimant’s engagement with the Defendant constitutes a new and independent employment arrangement rather than a continuation or extension of prior service through secondment.

By the provisions of Section 135 of the Evidence Act, Cap 112 Laws of the Federation, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist? It is therefore settled law that the burden of proof of the assertion is on the Claiamant who asserts. See; Akinreti vs. Jenyo (1986) 2 NWLR (pt 22) 305, Elias vs. Disu (1962) 1 SCNLR 361, Abiodun vs. Adehin (1962) 2 SCNLR 305, University Press Ltd. v. I.K. Martins (Nig) Ltd. (2000) 4 NWLR (pt 654) 584, Emeka vs. State (2001) 6 SC 227, Attorney General, Bayelsa State vs. Attorney General, Rivers State (2006) 12 SCM (pt 2) 1 at 21 - 22, (2007) 8 WRN 1 at 28."

Reliefs A, B, C & D are declaratory, the position of the law on proof of declaratory relief has been settled in plethora of judicial precedents to the effect that where a claimant seeks declaratory reliefs, the task of the claimant to discharge this onus of proof becomes quite heavy and more demanding in that the claimant cannot rely on the weakness or lack of defence or even admission by the Defendant. The claimant must succeed on the strength of his case based on the quality of the evidence adduced in proof of his pleading. See Okoye & Ors v Nwankwo (2014) LPELR – 23172 (SC), Zurmi v Okonkwo & Anor (2018) LPELR – 46964 (CA) and Akaninwo & Ors v Nsirim & Ors (2008) LPELR – 321 (SC).

 It is common sense and a trite position of the law that before issue of enforcement of terms and conditions of a contract of employment can arise, there must be in existence a valid and enforceable contract of employment upon which such right and obligation can derive. Therefore, the starting point is to answer the query as to what are the legal requirements and conditions for the formation of a valid and enforceable contract of employment?   

It is an elementary law of contract that the essential elements for a valid contract enforceable at law are offer, acceptance, intention to enter into legal relationship and consideration. See Ajayi Obey v Executive Secretary Family Planning Council of Nigeria (1975) 3 SC 1. In Ngun v Mobil Producing Nig Unltd (Supra), the penultimate court dilated thus:

“Employer and employee relationship exists where a worker is employed under a contract of employment, i.e. a contract of service. No one test as formulated by the Courts over the years for determining employment status of an employee is a complete answer to such questions. The Courts have held that the issue is one of fact and not of law. The learned authors of Osborne’s Concise Law Dictionary (supra) at page 103 have defined “Contract” as: “An agreement enforceable at law. An essential feature of contract is a promise by one party to another to do or forbear from doing certain specified acts. The offer of a promise becomes a promise and acceptance. Contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it.”… For a contract to come into existence there must be an offer even if made to the whole world. See Carlil vs. Carbolic Smoke Ball Co. (1891 – 4) All ER Rep 127 where Lindley L.J., held at pages 129 -130 that even in advertisement cases, “…The offer is to anybody who performs the conditions named in the advertisement anybody who does perform the conditions accepts the offer. I take it that if you look at this advertisement in point of law, it is an offer to pay E100 to anybody who will perform these conditions, and the performance of these conditions is the acceptance of the offer.” There must be an unqualified acceptance for the contract to be complete and become legally binding and enforceable. See UBA Ltd vs. Tejumola & Sons Ltd. (1988) 5 SCNJ 73…In questions of dispute as to whether there was an existing contract, the onus is on the party asserting to prove offer and acceptance.”

The Claimant asserts that her 2010 appointment with the Defendant was a fresh federal appointment, governed by Federal Public Service Rules, not a secondment from her prior role at Bauchi State Specialist Hospital. The Claimant relies on Exhibit C1 (Appointment letter dated 3 September 2010, specifying federal terms) in support of this assertion.  The Defendant’s contention is that the Claimant was absorbed from the State Specialist Hospital under a 2008 Memorandum of Understanding when the ATBUTH was established and that her service years (since 1982) triggered mandatory retirement in 2017 under Public Service Rule 020810 (35-year cap).

The contentions above underscores the importance of clarifying the boundaries between pensionable appointment and secondment in labour jurisprudence.

A pensionable appointment is a permanent employment arrangement where an employee is directly employed by an organization whereby the employee is entitle to pension benefit upon recruitment as specified in the relevant pension legislation. The employee enjoys full benefits, including gratuity, leave and other entitlements. The employment relationship is directly between the employee and the employer. On the other hand, Secondment is defined under Section 5 Rule 0239 of the Bauchi State Public Service Rule as a temporary arrangement where an employee is deployed to work for another organization for a specified period. Seconded employee is not entitle to pension benefits from the host organization as the employment relationship remains with the original employer. Secondment involves a tripartite agreement between the original employer, the host organization, and he employee.

Section 5 of the Bauchi State Public Service Regulation is in pari materia with Section 6 of the Katsina State Civil Servixe Rule 1997 which was interpreted by the Court of Appeal in Dalhatu v. AG Tastina State & Ors (2007) LPELR-8460(CA)  (Pp. 34-35 paras. A).

The Bauchi State Public Service Regulations under Section 5: Transfer and Secondment provide a detailed framework for the movement of public officers within and outside the Bauchi State Public Service. Below are the relevant provisions provisions:

SECTION 5        TRANSFER AND SECONDMENT

Definition

0238. "TRANSFER" is the permanent release of a public officer from one schedule service to another or from one class to another within the same Service.

0239. "SECONDMENT" means the temporary release of a public officer to the service of another Government or Body for a specified period.

(a) Inter-Service Transfer and Secondment.

(i)Transfer/Secondment of service of officers and staff between the Bauchi State Public Service and another schedule service are conducted through and subject to the approval of the Service Commission.

(ii)Application for Transfer/Secondment of Service to posts graded GL.01-06 in an Ministry,Extra-Ministerial Department and Agency in Bauchi State shall be determined by Permanent Secretary/Head of Ministry,Extra-Ministerial Department and Agency of the applicant's choice.

(iii)Application for Transfer/Secondment of service to posts graded GL.07 - 12 in any Ministry, Extra-Ministerial Department and Agency in Bauchi State shall be determined by Bauchi State Civil Service Commission only.

(iv) Applications for Transfer/Secondment of service to post graded GL.13 - 16 in any Ministry, Extra-Ministerial Department and Agency shall be conducted through the Head of Civil Service subject to the approval of the Service Commission.Confidential reports covering the last three years (or whole service if less than three years) of the officer's service shall be furnished.

(v)Secondment of a public officer to the service of another Government or approved body or recognized International Organization at his own request shall be for a mnaximum period of two years in the first instance after which the officer must apply for extension of one year, seek for transfer or return to his former post. All extensions must be approved by the Senior Management Committee and the Civil Service Commission through the Head of Civil Service. The total period of such secondment must not exceed three (3) years

(vi) If it is in the public interest to second a public officer to the service of another Government or approved body or recognized International Organization, the period of secondment shall not be limited and the officer shall continue to hold his substantive post and be entitled to increment and promotion and shall be treated as having been posted on special duty.

(vii) During the period of such Secondment, the benefiting Organization shall be responsible for the officer's personal emoluments.

Now, Section 5 (a) (v) is the relevant provision in this case. Secondment to Another Government or Body which can either be at the Officer's Request or in the public interest. In the first case, the initial secondment is for a maximum of two years and the the officer may apply for a one-year extension, seek a transfer, or return to their former post. Extensions require approval from the Senior Management Committee and the Civil Service Commission through the Head of Civil Service. The total secondment period must not exceed three years.

If the secondment is In the Public Interest, the secondment period is not limited.The officer retains his/her substantive post, is entitled to increments and promotions, and is treated as being on special duty.

The benefiting organization is responsible for the officer's personal emoluments during the secondment period.

Now, Exhibit C1 is the Claimant’s letter of employment, for ease of reference, I reproduce it hereunder:

“I am directed to offer you appointment as Higher Medical Lab Technician at the Abubakar Tafawa Balewa University Teaching Hospital, Bauchi on CONHESS 07 step 4 which is N1, 046, 896.00 per annum.

2.         your duties include the normal duties of the office and other duties your Head or Department might call upon you to perform your appointment, though pensionable, may be terminated at anytime by either the ATBUTH or yourself giving one month’s notice in writing.

3.         The appointment is conditional upon you having declared medically fit by an authorized healthcare provider and takes effect from the date you assume duty.

4.         I am to request you to inform this office in writing if you are prepared to accept this offer within two months of the date of this letter failing which the offer will lapse.

5.         Other conditions of your appointment will be in accordance with the detailed regulations guiding the conditions of the Federal Public Service.

6.         Congratulations.”

The agreement outlined in Exhibit C1 above is exclusively between the Claimant and the Defendant in this matter.

Contracts of employment like all other contracts their creation and termination are both subject to the general principles governing the law of contract. Hence where the contract of employment is in writing, the parties are bound by the express terms and conditions so stipulated. See Olaniyan & Ors v. Unilag & ANOR (1985) LPELR-2565(SC) (Pp. 133 paras. B).

It is also a well-established principle of law that when interpreting the relationship between the parties, a court must limit itself to the clear and unambiguous language of the agreement, deriving the rights and obligations solely from its terms. This principle is supported by the case of Fakuade v. O.A.T.H Complex Management Board (1993) LPELR-1233(SC), which emphasizes that where the intentions of the parties are explicitly stated in a contractual document, the court cannot look beyond that document or consider external materials that do not reflect the parties' expressed intentions. See also Nneji v. Zakhem Con. (Nig.) Ltd (2006) LPELR-2059(sc), Omega Bank (Nig.) Plc v. OBC Ltd. (2005) ALL FWLR (pt.249) 1965 at 1967 and Mr.Charles Mekwunye v. Mr.Christian Imoukhuede (2019) lpelr-48996(SC)  (Pp. 14-19 paras. E). In Federal Polytechnic Idah & Anor v. Egbeke (2019) LPELR-48727(CA)  (Pp. 35-41 paras. E), the Penultimate Court held thus:

"It is not in dispute that the respondent accepted the terms of his appointment in Exhibit A and resumed duty on the basis of the said terms of the appointment. The appellant having appointed the respondent on the terms in Exhibit A and the respondent having accepted the appointment and resumed duty on the basis of those terms, both sides had agreed to be bound by the terms in Exhibit A, which constitutes the contract between them. The trial Court rightly held that the letter of appointment, Exhibit A embodied the contract of employment between the appellants and the respondent and that it binds the parties who cannot go out of it in search of more favourable terms. This Court per Galunje JCA (now JSC) in Mbosoh v. JAMB (2008) LPELR - 4306 (CA) held that- "In determining disputes arising from the determination of a contract of employment, the Court must confine itself to the plain words and meaning which can be derived from the terms of the contract of service between the parties which provides for their rights and obligations. In this case it is the relevant conditions stated in the Appellants letter of appointment that must be construed and nothing else, as neither the Respondent nor the Appellant had any recourse to the Staff regulations or conditions of service as playing a role in the dispute between them."

A careful perusal of the Exhibit C1 reveals a fresh, direct appointment to a apensionable position at Abubakar Tafawa Balewa University Teaching Hospital (the Defendant herein) under the Federal Civil Service Framework. It establishes a new employer-employee relationship rather than a temporary or borrowed arrangement. The appointee (the Claimant herein) upon accepting the offer is legally considered as a new entrant into the Defendant’s workforce. The Defendant having employed the Claimant vide Exhibit C1 and the Claimant having accepted the offer of employment, it is too late in the day for the 1st Defendant to shy away from its responsibilities under the contract. I so hold.

The Defendant has canvassed the argument that the Claimant's appointment with the Defendant was a secondment and not a fresh appointment. However, the Defendant has failed to lead any credible evidence to substantiate this assertion. There is nothing before this Court to support the Defendant's contention other than the submissions made by the Defendant's counsel in the final address. It is trite law that arguments of counsel, no matter how persuasive, cannot take the place of legal proof. The burden of proof lies on the party making an assertion, and in this case, the Defendant has not discharged this burden. See Okuleye V. Adesanya & Anor. (2014) LPELR-23021(SC); Omisore Vs. Aregbesola & Ors (2015) LPELR-24803 (SC); Ucha Vs. Elechi (2012) All FWLR (Pt. 625) 237; Ishola V. Ajiboye (1998) 1 NWLR (Pt. 532) 71; Chukwujekwu Vs. Olalere(1992) 2 NWLR (pt. 221) 86.  

The Defendant's counsel, in a rather surprising turn, invited this Court to invoke the presumption of withholding evidence against the Claimant for not producing the letter of secondment. This argument is, with respect, untenable. If the Defendant seeks to establish that the Claimant's appointment was a secondment, the onus lies squarely on the Defendant to lead evidence in rebuttal of the Claimant's case, which clearly establishes a fresh appointment between the parties. The Defendant cannot shift this burden to the Claimant, nor can it rely on mere speculation or presumption to prove its case.

The Claimant, on the other hand, has provided compelling evidence to demonstrate that her appointment with the Defendant was indeed a fresh and pensionable appointment. Exhibits C5, C6, and C7 conclusively prove that the Claimant accepted the offer of a pensionable appointment made to her by the Defendant. These exhibits further corroborate the fact that the Defendant paid the Claimant's salary, which is consistent with the terms of a fresh appointment and not a secondment.

In light of the foregoing, this Court finds that the Defendant's contention that the Claimant's appointment was a secondment lacks merit and is unsupported by any credible evidence. The Claimant has satisfactorily proven her case, and the Defendant's failure to adduce evidence to the contrary is fatal to its defence. I so hold.

The Claimant presented evidence that unequivocally demonstrates that the Defendant offered the Claimant employment as a Higher Medical Lab Technician on CONHESS 07, Step 4, on September 3, 2010. The Claimant accepted this offer and began working. However, the Defendant later demoted the Claimant to the position of Chief Laboratory Attendant on CONHESS 3/5 on June 24, 2011, without adhering to due process. This demotion caused significant hardship to the Claimant. Furthermore, in 2017, the Defendant retired the Claimant from service based on an unfounded assumption that the Claimant had completed 35 years of service. This action was taken in complete disregard of the fact that the Claimant's employment was a fresh appointment that commenced in 2010 and was neither a transfer of service nor a secondment.

Even if it were assumed that the Claimant was seconded to the Defendant from the Bauchi State Specialist Hospital, the question arises: who, under the law, has the authority to promote and subsequently retire the Claimant from service? Certainly, it would not be the Defendant in this case.

In relief E, the Claimant seeks an order compelling the Defendant to pay the sum of N5,086,087.49 (Five Million, Eighty-Six Thousand, and Eighty-Seven Naira, Forty-Nine Kobo) as reimbursement for illegal deductions made from her salaries between February 2011 and January 2016. The amounts sought by the Claimant are in the realm of special damages. Special damages have been defined as those which are the actual, but not necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions. To be recoverable, the claim must flow directly and immediately from the breach and must be reasonable foreseeable. They must be specially pleaded with particularity and proved strictly with quality and credible evidence of such character as would suggest that the Claimant is entitled to the award. Myriads of judicial authorities exist on this point of law but suffices to cite the following: SPDC Ltd v Tiebo & Ors (2005) LPELR – 3203 (SC), Eneh v Ozor & Anor (2016) LPELR – 40830 (SC).

 Upon careful examination of the Claimant's statement of facts, I found no detailed breakdown of the alleged deductions, including the specific periods, amounts deducted, or the method used to calculate the total sum claimed. Consequently, it is my considered view that this relief has not been proven and is therefore not grantable. I so hold.

I have previously ruled that Exhibit C24 (the Payment Receipt for legal services) is admissible. However, the issue that remains is the weight to be assigned to it. It is a well-established legal principle that pleadings do not constitute evidence, and every fact pleaded must be substantiated by proof. In this case, the Claimant, at paragraph 36 of the amended statement of facts, pleaded that she had paid the sum of N1,000,000 to her lawyer for prosecuting this case and referenced a receipt from the law firm of G.E KAKA & Co. However, during the trial, the Claimant tendered a payment receipt for legal fees issued by the law firm of M.A. Tsuwa & Co. In my view, this discrepancy means that the receipt cannot be considered as proof of the averment made in paragraph 36 of the statement of facts. Consequently, Relief E is not grantable. I so hold.

In Skye Bank Plc v. Mr. Adedokun Olusegun Adegun (SC/406/2018), the Supreme Court, per Ogunwumiju J.S.C., emphasized the evolution of labour jurisprudence under the 3rd Alteration to the 1999 Constitution and Section 7(6) of the National Industrial Court Act, which mandates this Court to apply international best practices in labour relations. The Court rejected the outdated principle that wrongful termination only entitles an employee to one month's salary in lieu of notice, stressing that each case must be decided based on its unique facts. The Court referenced British Airways v. Makanjuola  (1993) 8 NWLR Pt. 311 Pg. 276 at 288 where two years' salary was awarded for wrongful termination involving unfounded allegations that damaged the employee's reputation and employability. Similarly, in Sky Bank’s case, the Respondent proved that the Appellant's wrongful dismissal caused significant reputational harm and diminished his ability to secure employment. The Court awarded the Respondent two years' salary and allowances as general damages, in addition to one month's salary in lieu of notice, as claimed. This decision reflects the shift towards compensating employees for damages beyond mere salary in lieu of notice, aligning with international best practices in labour relations.

This Court is fully aware that the Claimant’s employment carries statutory. However, by analogy, I believe it is appropriate to apply the aforementioned principle to this, particularly in the light of the Defendant’s conduct which offends international best practice in labour relations. I so hold.  

The conduct of the Defendant in maliciously and prematurely retiring the Claimant is not only reprehensible but also a blatant violation of the Claimant's employment rights. Such actions undermine the principles of fairness and justice in labour relations and warrant strong condemnation. On this note, I align this Court with the holding of the Supreme Court per Okoro, J.S.C., in Fanyam v. Gov. of Benue State & Ors (2022) LPELR-57035(SC) (Pp. 11-12, paras. E), where it was emphasized thus:

"It has to be noted that a public servant in the established pensionable cadre of the Federal or State Public Service has a legal status and ex hypothesis a right to remain in service until properly removed in accordance with the Civil Service Rules applicable to him. Alas, this is not the case here. See Federal Capital Development Authority v Naibi (1990) 3 NWLR (pt.138) 270, Shitta-Bey v Federal Public Service Commission (1981) 1 SC 40, Olaniyan v University of Lagos (1985) 2 NWLR (pt.9) 599."

In conclusion, and for all the reasons stated above, I find that the Claimant's case succeeds, except for reliefs E and I, which I held were not proven. Accordingly, the following declarations are made:

1.      The Claimant’s employment with the Defendant constitutes a fresh appointment, as evidenced by the letter dated September 3, 2010, issued to her. This appointment remains subsisting as the Claimant has not yet reached the mandatory retirement age of 65 years or completed 35 years of service.

2.       The Claimant’s demotion from Medical Laboratory Technician on CONHESS 07, Step 4, to Chief Medical Laboratory Attendant on CONHESS 03, Step 5, in 2011, given her qualifications at the time of appointment, was wrongful, illegal, unlawful, and without justification. 

3.     The Defendant’s directive to the Claimant to proceed on retirement by March 15, 2017, and the subsequent forceful retirement of the Claimant in March 2017, were oppressive, wrongful, illegal, null, void, and of no legal effect whatsoever, as the Claimant had not reached the retirement age, particularly in light of her appointment in 2010. 

 

I hereby make the following orders, all of which shall be complied with by the Defendant: 

1.     The Defendant shall reinstate the Claimant with immediate effect to the grade level she would have attained as of the date of this judgment, had the unlawful demotion and retirement not occurred

2.     The Defendant shall pay to the Claimant her total net earnings as follows: 

- The sum of N153, 117.10 per month from March 2017 to December 2017 (10 months); 

- The sum of N157, 386.27 per month from January 2018 to December 2018 (12 months); and 

- The sum of N162, 655.44 per month from January 2019 to the date of this judgment.

3.  The Defendant shall pay to the Claimant the sum of N10, 000,000.00 (Ten Million Naira) only as exemplary damages for the ill-treatment and injustice suffered by the Claimant from 2011 to date.

4.  The Defendant shall pay to the Claimant the sum of N1, 000,000.00 (One Million Naira) only as cost of filing and prosecuting this suit.

5.   Failure to pay any of the awarded sums shall attract an interest rate of 15% per annum until the full amounts are liquidated.

Judgment is entered accordingly.

 

                                            ………………………….

                               HON. JUSTICE MUSTAPHA TIJJANI