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NICN - JUDGMENT


 

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

 

BEFORE HIS LORDSHIP: HON.JUSTICE E. D. SUBILIM

 

 

DATE 24TH JULY, 2025                                            

SUIT NO: NICN/ABJ/336/2024

 

BETWEEN:

 

DR. FEMI ZACCHAEUS OGUNLADE                        -            CLAIMANT                         

 

AND

 

  1. CORPORATE AFFAIRS COMMISSION
  2.  REGISTRAR GENERALCORPORATE                    DEFENDANTS

 AFFAIRS COMMISSION

            

 

REPRESENTATION:

Femi Adedeji Esq., for Claimant

S. T. Momoh Esq., with Asma’u Ahmed Esq., for Defendants

 

 

JUDGMENT

 

  1. The Claimant commenced this matter on the 13th day of September, 2024 when he took out a Complaint and the accompanying processes against the Defendants. The Claimant’s claims against the Defendants are as contained in his Statement of Material Facts to wit:

 

  1. An Order of this Honourable Court compelling the Defendants to pay to the Claimant his promotion arrears of salary from 1st January, 2022 to 19th December, 2022 in the sum of N5,771,081.54k (Five Million, Seven Hundred and Seventy-one Thousand, Eighty-One Naira and Fifty-four Kobo) based on the 1st Defendant's Conditions of service and the Public Service Rules.

 

  1. An order of this Honourable Court compelling the Defendants to pay to the Claimant the arrears of his gratuity in the sum of N13,797,440.16k (Thirteen Million, Seven Hundred and Ninety-Seven Thousand, Four Hundred and Forty Naira and sixteen kobo) based on his promotion from the rank of Principal Manager to an Assistant Director.

 

  1. An order of this Honourable Court directing the Defendants to pay the Claimant's arrears of pension in the sum of N550,000 (Five Hundred and Fifty Thousand Naira) to his Pension Administrator (FCMB Pensions).

 

  1. A sum of N50,000,000.00 (Fifty Million Naira) general damages for the wilful refusal to pay the aforesaid benefits by the 1st and 2nd Defendants and for injury suffered by the Claimant.

 

  1. The sum of N10,000,000.00 (Ten Million) being the cost of prosecuting this suit against the Defendants.

 

  1. AND for such further orders as this honorable Court may deem fit to make in the circumstance.

 

  1. Upon service on the Defendants, the Defendants filed their Statement of Defence on the 4th day of November, 2024 but deemed properly filed and served vide an order of this Court on the 11th day of November, 2024.

                       

CLAIMANT’S CASE

 

  1. The Claimant’s case is that he was a staff of the 1st Defendant and joined the service of the 1st Defendant on 2nd April, 2007 as a Deputy Manager. Thereafter his employment was confirmed as a permanent staff of the 1st Defendant in 2008, with the right to be entitled to all benefits accruable to staff of the 1st Defendant. He was at different times promoted to the ranks of Senior Manager, Principal Manager and Assistant Director in the 1st Defendant and that following his satisfactory performance in the 2021 evaluation, he was found eligible and participated in the promotion exercise which consequently resulted in his promotion to the rank of Assistant Director with effect from 1st January, 2022 but his promotion letter was not issued to him until he exited the Defendant. That having confirmed that colleagues who exited the 1st Defendant and subsequently promoted were paid theirs arears of emolument covering the period for which they were promoted before exiting the Defendant, he forwarded letters of demand (Exhibits FEM 11 and FEM 12) to the Defendants requesting for payment of his arrears of promotion and other benefits covering 1st January, 2022 until the 19th December, 2022 when he resigned; which request was without any response from the 1st Defendant hence this suit.

 

 

 

 

DEFENDANTS’ CASE

 

  1. The Defendants in their response entered a conditional appearance in this case and filed their Statement of Defence dated 4th day of November 2024, though belated, but regularized. It is the case of the 1st Defendant that they commenced the process of promotion exercise in November 2021 when it conducted an examination. The promotion exercise is a process of commencing or ranging from compilation of list of eligible candidates, to writing of promotional examination, release of results, to conduct of oral interview for staff going into the Executive cadre and those already in the Executive cadre. For there to be a valid promotion, a staff must be eligible at all stages of the process. It is the equally the averment of the Defendant that before the completion of the processes, Claimant had voluntarily resigned and his decision was not as a result of the 1st Defendant’s inability or failure to conclude the promotion exercise as same is subject to the approval from Board or Parent Ministry, the Federal Ministry of Industry, Trade and Investment. According to the Defendants while the Claimant voluntarily resigned the 1st Defendant did not give a definite period of time within which the process of the 2021 promotion exercise would be concluded and that Claimant’s sole and voluntary decision to resign was not a fault of the Defendants. The Defendant also aver that oral interview is a mandatory requirement for promotion of Senior Officers from the rank of Principal Manager to Directorate cadre and the Claimant knew that all Principal Managers who were promoted to Assistant Director had hitherto attended that interview before they were promoted. That the Claimant became privy to the details of the oral interview as a result of remaining on the 1st Defendant’s social platform for disseminating information to its staff/officers even when he was no longer a staff reiterating that the Claimant attended the interview in error and was equally issued promotion letter in error having voluntarily resigned from the 1st Defendant, he has relinquished his right to participate in the said oral interview which he wrongly attended and was erroneously interviewed. Furthermore, that the Claimant having resigned from the 1st Defendant and paid entitlement as a Principal Manager which he accepted is not entitled to any purported differentials in salaries and pension or other emoluments. That the Claimant is only entitled to arears and gratuity for the position he held when he resigned which is Principal Manager which he has been fully paid. It is the averment of the Defendant that Claimant did not attain the position of Assistant Director to be entitled to be paid any sum with regards to the said position. Thus, there is no obligation on the Defendants to remit the purported arears of pension contribution to the Claimant’s Pension Fund Administrator since there is nothing to remit. The Defendants state that they are not in breach of the Public Service Rules, the 1st Defendant’s condition of service or any law. They urge the Court to dismiss the Claimant’s suit with substantial cost for being disgusting, speculative, vexatious and irritating.

 

COMMENCEMENT OF HEARING

 

  1. On the 5th day of December, 2024 Claimant opened his case, testified on oath as CW1 by adopting his written depositions as his oral evidence in this case. Exhibits Femi 1-20 were tendered through him. He was subsequently cross-examined by learned Counsel on behalf of the Defendants. On the 9th day of April, 2025 one Haruna Halilu testified as DW1 for the Defendants by adopting his witness statement on oath as his evidence. DW1 was cross examined by learned Counsel on behalf of Claimant and subsequently discharged and the case of the defence was closed and the matter adjourned for adoption of Final Written Addresses.

 

DEFENDANTS’ WRITTEN SUBMISION

 

  1. On the 28th day of April 2025, learned Counsel for the Defendants filed their final written address wherein Counsel on behalf of the Defendants distilled lone issue for the determination of this Court viz;

Whether the Claimant, having resigned from the employment of the 1st defendant over 13 months before his promotion to the position of Assistant Director was approved, is entitled to be paid the salary and other benefits for the position of Assistant Director.   

 

  1. On the sole issue Counsel posited that it is pertinent to state that for a Claimant in a suit to succeed, he must discharge the burden of proof placed on him. The term burden of proof has three meaning, i.e. the persuasive burden (this is the burden of proof as a matter of law and pleadings, the evidential burden and the burden of establishing the admissibility of evidence.  He placed reliance on the case of Kala v. Potiskum [1998] 3 NWLR (PT. 540) 1 (S.C). He went on to state that in Civil proceedings/cases, the burden of proof as provided by Section 133 of the Evidence Act, 2011 is on the party who will fail if no evidence is given on either side. He cited in support of his assertion the case of Oyovbiare v. Omamurhomu [1999] 10 NWLR (Pt.621)23 @ Page 34 Paras F- G; Tewogbade v. Akande [1968] NMLR 404 at 408 and Ewo V. Ani [2004] 3 NWLR (Pt. 861) 611 @ 630-631 Paras F-G. Counsel further submitted that the burden of proof does not shift from the Plaintiff to the Defendant until the former has discharged the onus placed on him which is on the preponderance of evidence or balance of probability. It is settled law that parties in civil suit must prove their cases on the preponderance of evidence.  It is after the Plaintiff might have discharge this burden in accordance with the principle of law that the said burden will shift to the Defendant. However, where a Plaintiff fails to discharge this burden, then, the Defendant needs not prove any fact and the party alleging cannot rely on the weakness of the opponent’s case, particularly in Declaratory actions.

 

  1. According learned Counsel it is an established position of law that civil matters are determined on the preponderance of evidence and balance of probability. He referred the Court to the case of Elias v. Omo-Bare [1982] 5 S.C. p.25 and Odulaja v. Haddad [1973] 11 S.C.  357 and Section 137 of the Evidence Act. That the law is trite that he who asserts a fact has the burden to prove it. This is an ancient common law rule, ei qui affirmat non ei qui negat incumbit founded on considerations of good sense that, he who invokes the hand of the law should be the first to prove his case. By the section, the burden of proof is not static, rather, it fluctuates between the parties. Section 137(1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side. In other words, the onus is on the party who would fail if no evidence is given in the case. By Section 137(2); the second burden goes the adverse party. Under Section 137(3), where there are conflicting presumptions, the case is the same as if there were conflicting evidence. He iterated that it is trite law that a Plaintiff must prove his case via credible evidence of his witnesses and is not at liberty in law to make a case or rely on the weakness of his opponent in order to succeed.  See the cases of Agbi V. Ogbeh [2006] 11 NWLR (Pt. 990) 65 (SC); Alhaji Otaru & Sons Ltd. V. Idris [1999] 6 NWLR (Pt. 606) 330 @ 342 Paras A-B (SC); Atane v. Amu [1970] 10 SC 237 @ 243-244(SC); Imam v. Sherif [2005] 5 NWLR (Pt. 914) 80 @ 186-187 Paras H-B. In the instant case the Claimant’s brought the instant action against the Defendants on the bases that the Claimant, having been promoted by the 1st Defendant on the 30th day of January 2024, albeit, after the Claimant had voluntarily resigned from the services of the 1st Defendant on the 19th of December, 2022, is entitled to be paid promotion arrears of salary due to him upon his purported promotion to Assistant Director on CASS 3/3, despite the fact that at the date of the said Promotion which was on the 30th of January 2024 the Claimant was no longer in the service of the 1st Defendant. Also, Counsel posited that It is worthy of note that this piece of evidence as led by the Defendants showing the conditions precedent to a valid promotion by 1st Defendant were uncontroverted by the Claimant neither was it disparaged in the course of cross examination. Consequently, the Law is trite that a Court is bound to rely on Credible evidence before it where such evidence is uncontroverted. He cited in support of his assertion the case of Unanowo v. Union Bank [2018] LPELR-47307(CA) (Pp. 62-63 Paras. D); Bagga v. Wulargai & Anor [2023] LPELR-59957(CA) (Pp. 34 Paras. B); Boye Industries Ltd v. Sowemimo (2021) LPELR 58510(SC), O.A.N and Overseas Agency Nigeria Limited Vs Bronwen Energy Trading Company Ltd [2022] LPELR 57306(SC). 

 

  1. Counsel therefore submitted that in the instant case the fact that the Claimant did not participate in all the stages preceding Promotion while a staff of the 1st Defendant is uncontroverted before this Court. He urge this Court to place reliance on this uncontroverted fact. Continuing, Counsel contended that the law is trite that tendering of a letter of resignation by an employee effectively and automatically put to an end the employment on the date indicated in the resignation Letter. Hence the employee can no longer be subject to the terms and conditions of the employment, including control by the employer or enjoyment of privileges or rights available in the employment. He placed reliance on the case of WAEC v. Oshionebo [2006] LPELR-7739(CA)  (PP. 11-12) Paras. D.  In furtherance to the above, tendering of a letter or resignation carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. While giving notice of retirement carries with it the right to be paid a pension or gratuity; but it does not confer the right to withdraw from the service immediately and automatically. He referred the Court to the following cases; Benson v. Onitiri [1960] 5 ES.C. 69; Osu v. PA.N. Ltd. [2001] 13 NWLR (Pt.731) 627; Yesufu v. Gov. of Edo State & Ors. [2001] 13 NWLR (Pt.731) 517 and Dogara v. PDP & Ors [2024] LPELR-61810(CA)  (PP. 23 PARAS. D). The implication of the above position of law is that once a Letter of resignation is tendered by an employee as in the instant case, same automatically brings the employment contract to an end. Hence the conditions of service will no longer be applicable to the employee.

 

  1. Again, it is the position of Counsel that, this Court was faced with similar case bordering the same set of facts as the instant on the case of Olumide Abayomi Ologe V. Corporate Affairs Commission & Anor (Unreported) Suit No. NICN/ABJ/375/2024 delivered on the 12th day of March, 2025. Per His lordship, Hon. Justice O. Y. ANUWE) wherein the Court held that at the time the Claimant resigned, his position was Principal Manager and he resigned from the employment in that position. Thus, effective from 20th December 2022, the claimant ceased to be an employee of the 1st Defendant, It went further to reiterate that it is the law that tendering a letter of resignation by an employee effectively and automatically puts an end to the employment on the date indicated in the resignation letter and the employee can no longer be subject to the terms and conditions of the employment, including control by the employer or enjoyment of privileges or rights available in the employment. He placed reliance on the case of WAEC v. Oshionebo [2006] 12 NWLR [Pt. 994] 258 at 272; ADEFEMI vs. ABEGUNDE [2004] 15 NWLR [Pt. 895] 1 @ 28 and Abekhe v. Alpha Merchant Bank Plc [2017] FWLR [Pt. 914] 971 @ 1002. Counsel urge this Court to adopt the position in Olumide Abayomi Ologe V. Corporate Affairs Commission & Anor (Supra) and to dismiss the instant suit with substantial cost, as the Claimant’s Claim is tantamount to the Claimant seeking the blessings of this Court to reap from where he did not sow having failed to by any dint of evidence established by credible evidence that he is entitled to the reliefs sought.

                                                                                                                                                        CLAIMANT’S WRITTEN SUBMISSION

 

  1. On the 14th day of May 2025, learned Counsel for the Claimant filed his final written address wherein Counsel on behalf of the Claimant formulated three issues for the determination of this Court viz;

 

  1. Whether the Claimant is entitled to be paid the arrears of his salary and terminal benefits/emoluments based on the rank of Assistant Director of the 1st Defendant (as promoted), in view of the promotion letter effective from 1st January, 2022 until the 19th December 2022 when his employment was determined. 

 

  1. Whether the Claimant has discharged the burden of proof on him and is   entitled to the reliefs sought, as endorsed on the Complaint based on his accrued rights before his exit from the 1st Defendant’s employment. 

 

  1. Whether the Defendants are bound by the terms of the letter of promotion issued to the Claimant and should be estopped from acting contrary to the subsisting letter of promotion, same having not been validly withdrawn.

 

  1. Taking issue one and two together, it is the position of Counsel that Claimant is entitled to be paid arrears of salary and terminal benefits/emoluments computed on the basis of his duly conferred promotion to the rank of Assistant Director with effect from 1st January 2022 until when he exited the Defendants on the 19th December 2022.  It is equally his submission that promotion in the civil/public service is a formal act, regulated by statute, rules, or administrative guidelines, and once conferred on an employee, it vests in the officer all rights and privileges attached to the new position. That once a promotion is made and communicated, it takes effect from the date stated in the letter, regardless of whether the financial benefits are delayed administratively. That in the instant case, the Claimant’s promotion letter clearly states that the effective date of promotion as 1st January 2022, which the date has not been varied, withdrawn, or reversed by the Defendant or any competent authority. Therefore, by the combined operation of law and administrative consistency, the Claimant is entitled to all financial entitlements accruable to the rank of Assistant Director from that date until he exited the Defendant on the 19th of December, 2022. He placed reliance on the case of Comptroller- General of Customs & Ors v. Gusau [2017] LPELR 42081 (SC); Olaniyan V. University of Lagos [1985] 2 NWLR (Pt.9) 599 at 612.  and Nigeria Airways Ltd v. Gbajumo [1992] 5 NWLR (Pt. 244) 735. It is the contention of Counsel that the Claimant, upon receipt of the promotion letter effective from 1st January 2022, acquired a legitimate expectation that he would enjoy not only the title but the full financial and terminal benefits attached to the rank of Assistant Director thus, the principle of legitimate expectation, rooted in administrative law, dictates that where a public authority makes a representation or promise, and an individual relies on it, the authority is estopped from acting contrary to that representation without justification. He cited in support of his assertion the case of A.G Kaduna State V. Hassan [1985] 2 NWLR (Pt. 8) 483.  He also submitted that promotion in public service is not a ceremonial act as it carries with it substantive benefits. To promote an officer and then withhold or deny the financial benefits thereof renders the promotion hollow and legally ineffective. It defeats the essence of career progression and violates principles of fairness and equity. He cited in support of his position the case of Adewumi V. Nigeria Eagle Flour Mills [2014] LPELR-22557(CA).  Counsel reiterated that the Defendants, having neither issued a countermanding directive nor formally withheld the promotion, and having failed to expressly dispute the Claimant’s entitlements in line with the promotion, is deemed by law to have accepted it. He supplied in support of his assertion the case of F.C.D.A. v. Sule [1994] 3 NWLR (Pt. 332) 257 @ 281 and Okonkwo v. CCB (Nig) Plc [1997] 6 NWLR (Pt. 507) 48. Similarly, refusal of the Defendant to pay the Claimant’s full entitlements, while having received the benefit of his service at a higher rank, amounts to unjust enrichment. The Defendants cannot retain the labour and status output of an Assistant Director from January to December 2022 without compensating the Claimant accordingly. The Court had warned against public institutions exploiting employees under the guise of bureaucratic delay. Where terminal benefits or pensions are computed, they must be calculated based on the last substantive rank held by the officer. He relied on the case of Oyo State v. Alhaji Apapa [2008] 11 NWLR (Pt. 1098) 584 @ 598. 

 

  1. It is the position of Counsel that the Claimant, having been duly promoted to the rank of Assistant Director with effect from 1st January has a vested and enforceable right to all corresponding arrears of salary and terminal benefits attached to that rank. The failure or refusal of the Defendant to pay these entitlements is unlawful, unjust, and contrary to the principles of fair labour practices. We urge this Court to so hold and affirm that Claimant is entitled to be paid his outstanding salaries, emoluments and terminal benefits based on his promotion to the rank of Assistant Director, effective from 1st January 2022 of 19th December 2022 the Defendants having failed to justify the illegal withholding of the Claimant’s entitlements. Counsel posited that it is important to mention that the Claimant followed due process and the procedure laid down in the 1st Defendant’s Conditions of Service to exit the 1st Defendant. He is therefore entitled to be paid all the accrued arrears of his salary, pension and gratuity, having worked and rendered service to the 1st Defendant until his resignation on 19th December, 2022. The Claimant was promoted as Assistant Director, which he had duly earned for service rendered while in the 1st Defendant’s employment. He placed reliance on the case of Petroleum Training Insitute v. Iyeke Matthew & Ors [2012] FWLR(Pt.623) 1949. Regarding the word accrue Counsel referred that Court to Sasegbon’s Judicial Dictionary of Nigerian Law, vol.1 page 141 and the case of Victor v FUTA (2015)4 NWLR (Pt.1448)1 @58; Lucky Ewere Obianke v. Dana Airlines Limited, unreported Suit N0 NICN/ABJ/14/2024 delivered on 28th November,2024 and that section 020904 of the Public Service Rules,2021, specifically provides for what a public servant who resigns his appointment would forfeit which does not include the forfeiture of the arrears of pension and gratuity and salary for work already done while in service, since these are not included as part of the claims an officer can forfeit upon resignation. The law is trite that ‘where there is express mention of certain things, then anything not mentioned is excluded’, as encapsulated in the legal maxim Expressio facit Cessare Tactitum. He placed reliance on the case of Lagos University Teaching Hospital & MB v. Adewole [1998] 5 NWLR (Pt.550) 406 at 422. Counsel therefore submitted that the Defendants cannot withhold the arrears of salary, gratuity and pension of the (1st January, 2022 to 19th December 2022) and deserved to be paid Claimant to his disadvantage because the Claimant worked for the 1st Defendants for the period. 

 

  1. On issue three Counsel submitted that the Defendants are bound by the content of the letter of promotion issued to the Claimant, which took effect from 1st January,2022 and cannot lawfully act in a manner contrary to that letter, since it is valid, subsisting, and unrevoked as the law is trite that a written administrative act, such as a promotion letter, once issued and communicated to the recipient, creates enforceable rights, unless the letter is subsequently withdrawn in accordance with due process. In the instant case, the Claimant’s promotion letter has neither been withdrawn nor modified, and therefore remains binding on the Defendants. he cited in support of his position the case of Comptroller-General of Customs & Ors v. Gusau [2017] LPELR-42081(SC). It is the contention of learned Counsel that having formally promoted the Claimant and allowed him to act or be regarded in that capacity, the Defendant cannot now be heard to act inconsistently with the terms of the said letter without first withdrawing it lawfully. This Court is enjoined to give effect to the principle that public authorities must act fairly, consistently, and within the bounds of their own representations. The Defendants, are estopped from withdrawing from the promotion due to the doctrine of estoppel by conduct, which is well rooted in our jurisprudence. He placed reliance on the case of Oduvwani v. Ishola [2014] LPELR-23167(CA). That the Public Service Rules, as well as the principles of administrative fairness, require that before any alteration or withdrawal of a promotion can be effected, due process must be followed including notification, justification, and in some cases disciplinary procedure. The absence of such renders any contrary action void. He cited in support of his assertion the case of Unilorin v. Adesina [2010] 9 NWLR (Pt. 1199) 331. Counsel submitted that the letter of promotion constitutes a binding contractual agreement between the 1st Defendant and the Claimant. Once the promotion letter was issued and accepted by the Claimant, it created a legally enforceable right to all the benefits and responsibilities attached to that position. He placed reliance on the case of UNION BANK OF NIGERIA v. AMARU [2001] 7 NWLR (Pt. 712) 72. He equally stated that the Defendants cannot unilaterally alter the terms of the promotion or act contrary to it without breaching the contractual terms and the principles of fair dealing noting that it is a well-established principle of administrative law that public authorities, including the Defendants, must adhere to consistency in their actions, especially in employment matters. The Claimant’s promotion was made public, and the Defendants, having allowed the Claimant to serve in that capacity, cannot now act inconsistently by denying the Claimant the benefits attached to the promotion. He placed reliance on the case of Oyo State Government V. Adekunle [2001] 14 NWLR (Pt. 733) 292.  Having promoted the Claimant to serve in the position of Assistant Director, the 1st Defendant is estopped from reversing or acting contrary to the terms of the promotion letter.

 

  1. According to learned Counsel promotion confers not only a title but also vested rights, including salary adjustments, and entitlement to benefits. The Claimant’s promotion to Assistant Director granted him such vested rights from the date of the promotion, and it is a well-established principle that rights once vested cannot be arbitrarily revoked and that Claimant’s legitimate expectations that the terms of the promotion letter will be upheld is a further basis on which the Defendants are bound. He cited in support of his position the case of Nigeria Airways Ltd V. Gbajumo [1992] 5 NWLR (Pt. 244) 735; AG Federation V. Abubakar [2007] 4 NWLR (Pt. 1025) 355 and Ashakacem Plc v. Asharatul Mubashshurun Investment Ltd [2019] LPELR-46541(SC) (Pp. 14-16 Paras. D-D).

 

  1. There is no evidence before the Court that the Claimant was involved in fraud or deceit to make him ineligible to participate in all stages of the examination, thereby making exhibit 9 to be in error. Also, all the documents tendered by the Claimants and admitted by the court are unchallenged by the Defendants. The Defendants cannot therefore refuse to act on their official documents as the principle of equity requires that public authorities, including the Defendants, act fairly and justly. Thus to allow the Defendants to act contrary to its own promotion letter without withdrawing it legally would undermine the very principles of fairness and good administration. He referred the Court to the case of Egbe v. Adefarasin [1985] 1 NWLR (Pt. 3) 549.  That it is therefore against public policy for public authorities to act in a manner that undermines the trust of employees in the integrity of promotion decisions. If employees are made to believe that a promotion can be easily revoked or ignored, it undermines the entire process of promotion in the public service and encourages administrative uncertainty. He placed reliance on the case of F.C.D.A v. Sule [1994] 3 NWLR (Pt. 332) 257 and submitted that the Defendants must be held to the terms of the promotion letter and cannot act in a manner that undermines public trust in the administrative process. Consequently, he urge the Court to discountenance the case of Olumide Abayomi Ologe v. Corporate Affairs Commission and Anor(Unreported) suit N0 NICN/ABJ/375/2024 cited by the Defendants in their final written address and note that there are distinguishing features in the two cases which are that the Defendants in this case did not tender any withdrawal letter unlike Olumide Ologe’s case. No withdrawal letter is before my Lord in this instant case. More so, the documentary evidence tendered and admitted in this case which the Defendants did not object to, are not the same with Ologe’s case which was by way of Originating summons. Importantly, Olumide Ologe’s case is a persuasive authority (currently on appeal) which the Court is not bound to follow. On what the Court should do where a decision of court of coordinate jurisdiction is cited, Counsel referred to the case of Arugu & Ors v. Rivers State Independent Electoral Commission & Ors [2010] LPELR-9086(CA) where the court held that: "Suit Numbers PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 are judgments of a High Court which has co-ordinate jurisdiction with the Court below in the appeal. It is trite law these decisions are of persuasive authority to the Court below. He referred to the case of Obeya V. Sowade [1969] NNLR 17; 1969 (1) NMLR 112 and Police Authority for Hudders Field v. Watson [1947] KB 842 @ 848. If the learned trial Judge agrees with the decisions in the judgments, he is right, to follow them. On the other hand, if he disagrees with the said decisions, he also would be right to arrive at a different decision. I do agree that a decision of a Judge of concurrent or co-ordinate jurisdiction cannot be binding as between them.’ He urges this Court to discountenance the decision of court in the said Ologe’s case based on the above distinguished features. In conclusion it is the position of Counsel that Claimant has by his evidence and avalanche of documentary evidence admitted by this court discharged the burden placed on him and therefore entitled to remedies for rights violated by the Defendants.  He placed reliance on the case of Fidelity Bank Plc v Olarewaju [2025] 4 NWLR (Pt. 1981) 127 @ 152 Central Bank of Nigeria & Ors v Okojie [2015] 14 NWLR) Pt.1479) p 231 at 263 and Mekwunye v Emirates Airlines [2019] LPELR 46553(SC)1 @ 67 and urged this Court to use its judicial discretion while relying   on  Exhibits FEM 15 and FEM 18 and grant the relief sought by the Claimant   on the cost of litigation and equally grant all the reliefs sought by the Claimant, based on the unassailable evidence placed before this Court.

              

DEFENDANT REPLY ON POINTS OF LAW

 

  1. On the 23rd day of May 2025 the Defendants filed their reply on point of law to the Claimant’s final written address where the Claimant argues that he is entitled to arrears of salary and benefits associated with a purported promotion to Assistant Director, as per Exhibit FEM 9, relying on authorities such as Comptroller-General of Customs v. Gusau [2017] LPELR-42081(SC) to assert that a valid promotion entitles one to the benefits of the position from its effective date. However, the Defendant contends that this position is fundamentally flawed due to the unique facts of the case. Counsel went on to state that the Claimant voluntarily resigned his employment with the Defendant on December 19, 2022, and the resignation was accepted on January 12, 2023. The Defendant argues that since the promotion letter was issued after the resignation, it is legally ineffective and void. Therefore, the Claimant cannot claim rights or benefits arising from it. The Defendant cites several authorities to support this, including WAEC v. Oshionebo [2006] LPELR-7739(CA) (Pp.11-12 Paras.D) and Sanusi v. INEC [2023] LPELR-61261(CA) (PP.30-31 Paras. F), both of which affirm that a resignation becomes effective once received by the employer and terminates the employment relationship.

 

  1. The Defendants’ Counsel also challenges the Claimant’s reliance on the doctrine of estoppel, arguing that it is inapplicable where the underlying act (in this case, the issuance of the promotion letter) is void ab initio. Citing Macfoy v. UAC, the Defendant maintains that no legal right can arise from an invalid act. Furthermore, the cited cases by the Claimant, such as AG Kaduna State v. Hassan [1985] 2 NWLR (Pt.8) 483 and FCDA v. Sule [1994] 3 NWLR (PT.332) 257 @ 281 are said to be either irrelevant or distinguishable from the present facts. Additionally, the Defendant notes that the Claimant never functioned in the promoted role and did not accrue any entitlements before his resignation. As such, his claim for benefits is untenable. The Defendant concludes that the promotion letter was issued in error, has no legal effect, and cannot confer any rights on the Claimant. Therefore, the Claimant's entire argument should be dismissed, and the Court is urged to do so with substantial costs

 

COURT’S DECISION

 

  1. I have gone through the processes filed by the Claimant and the Defendants and I have come to the conclusion that the issues that will determine the justice of this case are:

 

  1. Whether the Claimant can still benefit an accrued promotion due to him after resignation from the employment of the 1st defendant.
  2. Whether claimant has proven his case on the balance of probabilities to deserve judgment in this suit. 

 

  1. In Nimanteks Assoc Ltd & Anor v Marco Construction Co Ltd & Others [1991] 2 NWLR [Pt. 174] 411, it was held that:

 

“ … … …  plaintiff who commences an action in a court of law must prove that action in order to have judgment in his favour. This is the first law; the first order in the realm of proof. There is the second one and it is more generally put: a party who makes an assertion must prove it.” 

 

See Olusesi v. Oyelusi and Others [1986] 3 N.W.L.R. (Pt.31) 634; Chukwudi and Another v. Unachuku (1979) 3 C.A. 114.

 

  1. There is a distinction between burden of proof and evidential burden. Burden of proof of a case, which is an inflexible rule, rests on the Claimant in civil matters and evidential burden places the onus of proof on one making a specific assertion over a particular point essential to his stand on the matter, regardless of whether the person making the assertion is the Defendant. By virtue of Section 133 of the Evidence Act, the burden of proof lies on the party who asserts a fact to prove the existence of same, while the standard required is on a preponderance of evidence, and this burden lies on the Claimant.

 

  1. In the instant case the Claimant’s brought the instant action against the Defendants on the bases that Claimant was entitled to arrears of emoluments due to him having been promoted by the 1st Defendant on the 30th day of January 2024 after the Claimant had voluntarily resigned from the services of the 1st Defendant on the 19th of December, 2022. The Claimant is arguing that he is entitled to be paid promotion arrears of salary due to him upon his purported promotion to Assistant Director on CASS 3/3, despite the fact that at the date of the release of the said Promotion which was on the 30th of January 2024 the Claimant was no longer in the service of the 1st Defendant.

 

  1. There is no dispute as to the fact that Claimant was an employee of the 1st Defendant and rose to become a Principal Manager with the 1st Defendant before he exited on 19/12/2022. In Syke Bank Plc v Adegun [2024] LPELR – 62219 (SC), page 38-39, E-A, the Supreme Court held thus;

“An employment contract is premised on an agreement between a person or body, “employer” who seeks to retain the services of another, “employee” effectively putting the employee under their payroll. Like every contractual relationship, any of the parties can decide to bring this relationship to an end at any time…”

 

  1. In the case at hand, the claimant tendered in this court his letter of resignation and acknowledgement which are admitted and marked as Exhibits FEM 7 and 8 respectively. 

In helping us to understand the meaning of the word resignation the Court in the case of Dogara V. PDP & Ors [2024] LPELR-61810(CA) (PP. 23 PARAS. D) held thus:

"To resign on the other hand, is to give up, to relinquish ownership of and or to quit a position. The word "resignation" is defined in Black's Law Dictionary, Ninth Edition, page 1424 to mean the act or an instance of surrendering or relinquishing an office, right or claim. Thus, it is a formal notification of relinquishing from an office or position." 

 

  1. The law is that a notice of resignation is effective not from the date of the letter, nor from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent. Tendering of a letter of resignation carries with it the right to leave the service automatically subject to his paying any of his indebtedness to his employer. While giving notice of retirement carries with it the right to be paid a pension or gratuity; but it does not confer the right to withdraw from the service immediately and automatically. See Osu v. PA.N. Ltd. [2001] 13 NWLR (Pt.731) 627 and (3) Yesufu v. Gov. of Edo State & Ors. (2001) 13 NWLR (Pt.731) 517. In the case at hand claimant paid 3 months’ basic salary in lieu of notice to the 1st defendant to give effect to his resignation. In the case of Ibrahim v. Abdallah [2019] 17 NWLR (Pt. 1701) 293 @ 315 the Supreme Court did not mince words in restating this position of the law in the following words:

A notice of resignation is effective, not from the date of the letter or from the date of the acceptance, but from the date the letter is received by the employer or his agent. Thus, resignation dates from the date notice is received… There is absolute power to resign and no discretion to refuse to accept notice of resignation.

 

  1. The crux of the case of the claimant is that after 13 months of resignation 1st defendant served the claimant with a letter of promotion dated January 30, 2024 and herein marked as Exhibit FEM 9. Based on this, claimant now claim the areas of his promotion, gratuity and pension as an Assistant Director for the accrued period before his exit. The Defendants in their Defense to the claim of the Claimant led evidence to the effect that the promotion exercise that gave birth to the promotion of the claimant commences from compilation of list of eligible candidates; to writing of promotional examination; release of results and to conduct of oral interview. Defendant argued that for there to be a valid promotion of claimant, the claimant must successfully follow through all the stages and processes of the promotion exercise. And in the case of the claimant, he did not complete the process by attending the interview before qualifying for the promotion. 
  2. For the avoidance of doubt, it will be of interest to reproduce the body of the letter of promotion. The excerpt of the letter read thus:

 

 LETTER OF PROMOTION

 

“I am pleased to inform you that following the concluded 2021 Appraisal Exercise, The Honourable Minister of Industry, Trade and Investment has approved your promotion from Principal Manager on CASS 4/6 to Assistant Director on CASS 3/3 with effect from 1st January, 2022.

It is hoped that you will reflect this positive development in your output and commitment to duty.”

 

  1. It is trite law that he who asserts must prove. Documentary evidence is held to be the hanger upon which oral evidence can be verified. In the case of Cameroon Airlines v. Otutuizu [2011] LPELR- 827 (SC) the Court held that documentary evidence always serves as a hanger from which to assess oral testimony. Also, in the case of Kindley v. M G of Gongola State [1988] 2 NIWLR (P 77) 473 the Court resolved the argument where there is oral as well as documentary evidence. It was held as follows:

 

"The legal proposition that where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony is a sound one.”

 

  1. In the case at hand while defendants argued that the claimants did not finish the process, the content of Exhibit FEM 9 is not giving to any condition. I find that the argument that the promotion was subject to a condition as asserted by the defendants is not credible in the light of Exhibit FEM 9. The credibility of documentary evidence over oral evidence which would require that a witness be put through oath and examinations for the court to deduce the truth in his testimony is not in doubt. Contents of a document on the other hand speaks for itself. See Amobi V. Ogidi Union Nigeria [2023] 1 NWLR (PT. 1864) 153SC; Yonwuren V. Modern Signs Ltd. (2021) 14 NWLR (PT. 1795) 122 CA. It therefore follows that documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are even more reliable and authentic than words from the vocal cord of man because they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages. The documents often bear eloquent testimony to what happened. See the case of Aniki v. Idowu [2006] 9 NWLR (Pt. 984) 47. I therefore find that the letter of promotion issued to claimant was conclusive of its content and not conditional as argued by counsel to defendants.

 

  1. Coming to the question whether Claimant can take or benefit from his promotion after his resignation from the employment of the 1st Defendant, the law is that an employee cannot benefit from a promotion after resignation from employment. Resignation terminates the employment contract, severing the employee's legal relationship with the employer. Once an employee resigns, they no longer have a legitimate expectation of benefits, including promotions, as these are tied to active employment status.

 

  1. Our Courts have consistently held that once an employee resigns, they forfeit rights tied to continued employment, such as promotions or associated benefits, unless there is evidence of a contractual or statutory entitlement. In Ojo v. University of Ilorin [2015] JELR 52033 (CA), the Court emphasized that employment benefits are contingent on an active employment relationship. It therefore follows that, the fact that the process of promotion started while an employee was still in service does not automatically entitle him to benefit from the promotion after resignation. However, if the promotion was formalized and the employee resigned before its implementation, courts may consider whether the employee was entitled to benefits accrued up to the point of resignation. Also, in the case of Okongwu v. Nigerian National Petroleum Corporation [1989] 4 NWLR (Pt 115) 296 the Court upheld claims for benefits earned during service but not paid due to administrative delays.

 

  1. In the case of Zarewa v Falgore [2020] LPELR-508070(CA) 63 it was held that the law is settled that a letter of resignation of an employee takes effect from the date it is delivered to and received by an employer or its agent. The fact of the 2nd respondent, in that case, being credited with salary after the effective date of his resignation did not change the fact of his resignation. He had no control over the process of crediting his account with the salary which was entirely the act of the University which cannot be visited on the 2nd Respondent and cannot serve to revive what had come to an end.

 

  1. In the case of Osho v Adeleye [2023] LPELR-5997(SC), it was held that:

"...where a person has taken steps, he is required by law to take, in this case submit his letter of resignation, the refusal, failure or neglect of the relevant officials to do their part, in this case stop the payment of his salary cannot be visited on him."

 

  1. Now in the instant case the Claimant having done all that it takes to be promoted but due to bureaucratic bottleneck the promotion was delayed and only to be released 13 months after, I find and hold that the carelessness of the 1st Defendant cannot be visited on the Claimant. I am indeed appalled to hear from the only defence witness testifying under cross examination that the same colleagues of the claimant who exited with claimant and also promoted at the same time were paid arrears of their promotion, gratuity and pension. This indeed is detestable and an unfair labour practice especially when Defendants fail to proffer reasons why claimant should not be paid his promotion arears. I can see that there is evidence before this court to the effect that claimant’s promotion letter was withdrawn even if it was issued in error as alleged by DW1. For the avoidance of doubt let me reproduce part of the evidence of DW1 under cross examination where he stated thus:

 

“I know Ude Agama and Tama Ibrahim. They participated in the 2022 promotion exercise and their names was on the list of the illegible candidates with that of the claimant. They were issued letter of promotion like the claimant and also retired while claimant voluntarily resigned. The duo also ceases to be employees of 1st defendant. The 1st defendant have paid their arrears of promotion. The 1st defendant refused to pay claimant because claimant voluntarily resign thereby forfeiting all benefits accruable to him. The question of relinquishment is implied by the act of resignation.”

 

  1. This evidence was elicited during cross examination and was not challenged nor contradicted in any way. This piece of evidence further goes to disprove and discredit the line of defence put up by the Defendants that Claimant was not entitled to the entitlements simply because he could not complete the process. The law is trite that a Court is at liberty to accept and act on unchallenged and uncontroverted evidence. See Okafor v. Okafor [2014] LPELR-23561(CA). Given the jurisdiction and power of this Court to, when adjudicating, apply international best practices in labour and the Treaties, Conventions, Recommendations and Protocols on labour ratified by Nigeria, as well as over unfair labour practices under section 254C(l )(f) and (h), and (2) of the 1999 Constitution, and section 7( 6) of the NIC Act 2006, I find that the Defendants refusal and failure to pay Claimant his entitlements for the accrued period when Claimant was in service covered by the letter of promotion, Exhibit FEM 9,  constitutes and unfair labour practice. On this ground I find and hold that giving the evidence before this court, claimant can still benefit from his accrued promotion due to him after resignation from the employment of the 1st Defendant within the time he remains in service before exiting. Accordingly, I hereby find that claimant is entitle to promotion arrears of salary from 1st January, 2022 to 19th December, 2022. This I so hold. 

 

  1. Having answered the first issue in the affirmative I will now consider whether Claimant has proven his case to be entitle to judgment. A close look at reliefs (a), (b), and (c) shows that these are claims for special damages. In labour jurisprudence, the burden of proof is on the Claimant who claims monetary sums to prove not only the entitlement to the sums, but how he came by the quantum of the sums; and proof of entitlement is often by reference to instrument or document that grants it, not the oral testimony of the Claimant except corroborated by some other credible evidence. See Suraju Rufai v. BPE & ors Unreported Suit No. NICN/LA/18/2013 delivered on 4/06/2018 and Mr. Mohammed Dungus & Ors v. ENL Consortium Ltd [2015] 60 NWLR (Pt.208) 39. In the case at hand the Claimant claimed specific amounts in the first 3 reliefs and these needed to be specially proved. In paragraph 18 of the Statement of facts, Claimant pleaded 1st Defendant scale of salary but this was never tendered. No instrument or document to justify the figures put up by the Claimant to justify the sums claimed of salary arears, gratuity and pension. Courts, I must say at this point, are not carpenters to fix or repair the flaws of litigants as this is not an irregularity. See James Onyewuke v. Modu Sule [2011] LPELR-9084 (CA).

 

  1. In view of the want of proof of how the figures of the promotion areas were arrived at in reliefs (a), (b), and (c); these reliefs are hereby refused only as to the sum and alternatively an order is hereby granted for the Defendants and the Chief Registrar of this court, as referee, in line with Order 29 Rule 7 and Order 22 Rule 3 of the rules of this court, to compute the quantum using the 1st Defendant’s manuals and pay Claimant his arears of promotion, gratuity and pension from 1st January, 2022 to 19th December, 2022 only.

 

  1. Relief (d) is a claim for the sum of ?50, 000, 000.00 as general damages by the Claimant. I am mindful that general damages cover all losses which are not capable of exact qualification. It includes all non-financial loses (past and future). Items of general damages need not and should not be specially pleaded, but some evidence of such damages is required. The Courts have held that there is no fixed rule by which to assess general damages. The matter is therefore, at the discretion of the Court to award a fair and reasonable compensation having regard to the circumstances of the particular loss. See Okuneye v. Lagos City Council [1973] 2 CCHCJ Page 38, Mobil Oil Nig Ltd V Akinfosile [1969] NWLR (Pt 11) 112, A.G Oyo State V Fairlakes Hotels Ltd (No. 2) [1989] 5 NWLR (Pt 121) 355. I have observed the experiences the Claimant seems to have pass through despite the fact that he is a successful legal practitioner. The way and manner the Defendants handled the case of the Claimant leaves much to be desired. In view of this I hereby award the sum of ?7, 000, 000.00 in favour of the Claimant as general damages.

 

  1. The cost of prosecuting this case is assessed at ?300, 000.00.

 

  1. Judgment is hereby entered.

 

 

 

                                              ……………………………

                          Hon. Justice E. D. Subilim

                                                                                                        JUDGE