IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTCE SANUSI KADO
12THDAY OF MARCH 2020 SUIT NO. NICN/ABJ/321/2016
LT COL. DUKUP BISE DAZANG …………………………………………………… CLAIMANT
1. THE NIGERIAN ARMY
2. CHIEF OF ARMY STAFF DEFENDANTS
3. NIGERIAN ARMY COUNCIL
1. The Claimant instituted this action by way of a complaint filed on 6th September, 2016 seeking the following reliefs:
1. A DECLARATION that the purported letter of retirement issued to the Claimant is unconstitutional, illegal, unlawful, null, void and ultra-vires the Respondent for failing to comply with the provisions of the Harmonized terms and conditions of service for officers 2012 (Revised) and other relevant laws.
2. AN ORDER of this Honourable Court setting aside the purported letter of Retirement dated 9th June, 2016 for failing to comply with the Harmonized terms and Conditions of service for officers 2012 (Revised) and other relevant laws.
3. An ORDER of this Honourable Court restraining the Respondents whether by themselves their agents or privies from giving or continuing to give effect to the purported letter of Retirement dated 9th June, 2016 issued to the Claimant.
4. An ORDER of this Honourable court directing the immediate reinstatement of the Claimant to the service of the respondents to the same rank and place of deployment he was when the purported letter of Retirement was issued.
5. AN ORDER of this honorable court directing the Respondents to pay to the Claimant, the sum of N310,582.00 (Three Hundred and Ten Thousand, Five Hundred and Eighty Two Naira) monthly from June 2016 till judgment is delivered in this suit
6. AN ORDER of this Honourable Court compelling the Respondent’s to pay the sum of N500,000,000.00 (Five Hundred Million Naira) only as general and aggravated damages for the unlawful and oppressive compulsory retirement and the consequent psychological and emotional trauma it occasioned the Claimant.
7. AN ORDER of this Honourable Court Directing the Respondents to tender an unreserved apology to be published in two national dailies.
8. ANY FURTHER OR OTHER ORDERS that this Honourable Court may deem fit to make in the circumstances.
2. The claimant in this suit testified in proof of his case as CL. After adopting his witness statement on oath, CL testified that he is a commissioned army officer of the defendants for 22years, 9 months and 13 days before he was compulsorily retired on the 9thJune, 2016 by the 3rd defendant. The Claimant brought a suit against the defendants claiming that his compulsory retirement is unconstitutional illegal, unlawful, null, void and ultra vires as their acts failed to comply with the provisions of the Harmonized terms and conditions of services for officers, 2012 (Revised), and other relevant laws. He urges this court to order directing the defendants to pay him the sum of N310,588.00 monthly from June 2016 till judgment is delivered in this suit, N500,000,000.00 general and aggravated damages and complied with publishing in two national dallies and reserved apology. CL tendered seven (7) documents in evidence and marked as exhibits CLA – CLG.
3. Under cross-examination CL testified that he was in court on the ground that his compulsory retirement was not in accordance with harmonized terms and .he was neither invited by any panel to consider of service for officers 2012 (Revised). He appeals against his compulsory retirement because he has not been told of any serious offences which he committed. That he is yet to be told of any serious offence, neither was he invited to appear before any panel before he was retired.
4. Upon receipt of the writ of summons, the defendants filed their statement of defence and contend that the suit of the claimant be dismissed for lack of merit filed alongside with the statement of defence was a preliminary objection contesting the jurisdiction of this court to hear and determine the matter, the court overruled the application assumed jurisdiction in this suit.
5. One Captain D. O. Ighodaro, testified in the defence of the defendants as DW. DW after adopting his witness statement on oath testified that the claimant was rightly retired by the defendant as they have right as employers of claimant to retire him from service.
6. Under cross-examination DW testified that he knows why claimant was compulsorily retired and it was because his services are no longer required.
THE SUBMISSION OF THE DEFENDANTS
7. A sole issue was distilled for determination;Whether by the provision of the Armed Forces Act, 2004 (as amended) the 1999 constitution (as amended) and Exhibits CLA i.e Harmonised terms and conditions of service for officers, 2012, the 3rd defendant’s act against the claimant was unconstitutional, illegal, unlawful, null, void and ultravires.
8. G. U. Akpobueze, Esq; counsel for the defendants in arguing the sole issue for determination referred to paragraphs 10 and 11 of part IV of the Armed Forces Act, 2004, on the function and powers of Army Council.
9. Counsel for the defendants also referred to chapter 9, part 1 paragraph 09.02 of Exhibit CLA, which makes provisions for Compulsory retirement of officer on disciplinary grounds ie serious offence(s). it is contended by counsel that an officer earmarked for compulsory retirement except in accordance with paragraph 09.02 (c) (4), (7) or (8) shall be called upon to retire voluntarily, failure of which he would be compulsorily retired. Once compulsorily retired, such officers shall no longer be considered for reversion to voluntary retirement.An officer called upon to retire, resign or to relinquish his commission shall if he so desired, appeal to Mr. President C-in-C through the CDS within 30 days to have his case reconsidered.
10. Counsel for the defendants contended that the 3rd defendant acted within its powers as provided in paragraph 09.02c (4) of the Exhibit CLA, they refer to the tendered Exhibits CLE1-4, CLF 1-5 which are appeal letters to Mr. President through the CDS. Counsel submitted that the combined provisions of paragraphs 9.02(d) &e of Exhibit CLA, the option of appeal to Mr. President is not available to the claimant., and that the Claimant was retired under paragraph 09.02 c (4) and under paragraphs 09.02 E,
11. It is the contention of counsel that throughout the gamut of the trial, there was no evidence from the claimant as to how the 3rd defendant acted unconstitutionally, illegal, unlawful and ultra vires in removing him, counsel contended that the case of Oloruntoba-oju v. Abdul-Raheem (2009)6 SCNJ @ 39 as per Adekeye JSC held that “ it is trite law that onus is on the claimant to prove that the termination of his employment is unlawful and to discharge this onus, they must prove that;
He is employees of the defendants
Place before the court the terms of the contract and conditions of their employment
Who can appoint and who can remove them
In what circumstances the appointment can be determined by the employer and the breach of the terms.
12. Counsel for the defendantssubmitted that it is not in doubt that the person who hires/appoint can also fire/remove, and that it is trite law that the employer may give reason or no reason at all before the employer can be removed provided the employer does not breach the terms, they refer to the case of Niger Benue Transport Co. Ltd V, Okeke (2008 ALL FWLR (pt 429) @ 508 paras B-D
13. Counsel further contended that no evidence was led on paragraph 14 of the claimant statement of facts as to the purported newspaper publication that said to have disparaged the claimant conduct and put him under psychological and emotional trauma, the claimant failed to tender the said newspaper as to enable the court ascertain its content and the extent to which it disparaged the person of the Claimant.
14. It is submitted that pleadings cannot constitute evidence and it is also the general rule that averment in pleadings on which no evidence is adduced are deemed to have been abandoned as mere averment without proof of facts pleaded except if such facts are admitted, they refer to the case of IFETA VS SPDC of NIG. LTD (2006) All FWLR pt 314-317) PARA G-A
15. Counsel argued that under paragraph 17(b) of the statement of facts of the Claimant’s claim, that the claimant on giving the prescribed notice or paid in lieu of notice and the defendant have the rights to terminate the contract before the end of the term, the damages to be awarded apart from other entitlements is limited to the amount which he would have earned over the period of notice he refers to the case of IFETA VS SPDC OF Nig. Ltd (supra) pp 328-329 paras h-b which says that compulsory retirement of the claimant is lawful and in accordance with the terms of his engagement, vide Exhibit CLA.
16. Counsel urged this Court to dismiss the claims of the Claimant in this suit for lacking merit and award N1,000,000.00 cost in favour of the defendant.
THE SUBMISSION OF THE CLAIMANT
17. Counsel for the claimant submitted that it is mutually agreed by both parties that the claimant is an employee and an officer of the Defendant, and it is equally agreed that both the claimant and the defendants employmentis regulated by the harmonized terms and conditions of service for officers 2012 (revised) and the Armed Forces Act. Cap A 20 Laws of the Federation.
18. It is the contention of counsel that section 23 of the Armed Forces Act provides for the appointment of officers including the claimant into the Armed Forces. To that extent and also the employment of the claimant is one that possesses statutory flavor. Counsel placed reliance on the case of ALHASSAN V AHMADU BELLO UNIVERSITY ZARIA (2011) 11 NWLR (PT. 1259)517, 466 g-h, where it was held that;
“the law is where the conditions for appointment or determination of a contract of service are governed by the provisions of a statute, such that valid determination or appointment is predicated on satisfying such statutory provisions, such contract is said to enjoy statutory protection.
19. Counsel submitted that the purported retirement of the claimant was done pursuant to paragraph09.02c(4) of Exhibit CLA, on ground of having committed serious offence(s), that both Exhibit CLA and the Armed Forces Act are silent as to the definition of serious offence, neither did it describe the conduct that amounts to serious offences.
20. It is the contention of counsel that the Armed Forces Act has ample provisions in Part X11, Section 45-114 of the Armed Forces Act for all the recognizable offences under Military law and pursuant to Exhibit CLA, and that the Claimant was compulsorily retired on the account of the commission of one or more of these offences. In section 123 of the Armed Forces Act, it is required that any allegation against an officer is proceeded against the officer, the allegation shall be reported, in the form of a charge, to the commanding officers of the accused and the commanding officer shall investigate the charge in the prescribed manner.
21. Counsel further referred to Section 126 of the Armed Forces Act which makes provisions for the statutory mandatory steps that ought to be taken by the Defendants when the punishment of an officer owing to the commission of any offence is required. It is submitted by counsel that the law is well settled that when a statute prescribes a mode for the performance of a duty, such prescribed mode must be complied with and any other mode adopted is illegal. In support of this contention counsel refers to the case of APAPA & ANOR V, INEC 7& 2 ORS (2012) 8 NWLR (PT 1303) 409, 431B, where the court held that;
It is trite that when a statute provides a procedure for performing a duty that procedure alone must be adopted otherwise the act will be a nullity.
22. Further reference was made to the of GALAUDU V KAMBA (2004) NWLR (Pt.895) 31 AT 35.
23. It is the contention of counsel that the defendants in their evidence have failed to show that they complied with the statutory provisions. It is the contention of counsel that the failure of the defendant to conduct any investigation into the allegations levelled against the claimant and invite the claimant to respond to those allegations constitute a gross violation of the provisions of section 36 of the 1999, Constitution, as amended. To buttress this point counsel relied on the case of BRIGGS V HARRY $ 2 ORS (2016) 9 NWLR (PART 1516)45 77H-78
24. Counsel also refers to the case of BABA V N.C.A.T.C (1991)5 NWLR (PART 192)388 @ 418-419, where the supreme court held thus;
“where some allegations have been made against an employee….. the employer is entitled to set up a panel to investigate the allegation. Such an investigating panel is not a court of trial, so it is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written, before it……………………………………………
25. Counsel further refers to the case of EZENWA V KATSINA STATE HEALTH SERVICES MANAGEMENT BOARD (2011) 9 NWLR (PART 1251)89, 126 F, WHERE THE COURT OF APPEAL held thus;
“that is to say that in the exercise of the power to dismiss an employee, the principal of fair hearing enshrined in section 36(1) of the constitution of the federal republic of Nigeria 1999…………….. apply to the appellant and the Respondent. Vested and accrued rights of an employee whose contract is regulated by law cannot be taken away without the observance of fair hearing principles. See OPEYEMI v COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE (1992) 2 SCNJ (PT.2) 266 at 278-279”
26. Counsel on the authority of the above cases submitted that the Claimant in this present case, wasnot aware of the allegations against him, the investigation against him was not offered the opportunity to defend himself of any allegations. Counsel again referred to the case of BRIGGS V HARRY (SUPRA) the court of Appeal per EKO, JCA held that:
“the procedure therein for discipline and removal or term inaction from service must be strictly followed, failing which such disciplinary measure, removal or termination of appointment form the public service would be a nullity. In such situation, an order for reinstatement is appropriate.’’
27. Reliance was also placed on the case of ALHASSAN V AHMADU BELLO UNIVERSITY, ZARIA (2011)11 NWLR (PT 1259)417, the court of Appeal per Orji – Abadua, JCA held that;
“once a fiding is made by a trial court that an employment has statutory flavor, and the termination was wrongly made and voidthe only inference of that finding, was that, the employment of the Appellant is deemed to be continuous. It would be as if there had never been a termination. An order of reinstatement will therefore be the only logical order to follow such finding.”
28. It is submitted by counsel that in paragraph 5&6 of the Defendants final written Address, the Defendants places reliance on OLORUNTOBA-OJU V ABDUL-RAHEEM (2009) 6 SCNJ at 39 in setting out the 4 conditions that must be satisfied for a claim of unlawful termination of employment to succeed, the defendant agree that the Claimant has satisfied 3 of the conditions but the defendant posited that the claimant failed to show the breach occasioned by the defendants compulsory retirement of the Claimant as an employer may give reason or no reason at all for the termination of an employees’ employment. Reliance was placed on Niger Benue Transport co. LTD V okeke (2008) ALL FWLR (pt.429). counselsubmitted that the case of Niger Benue Transport Co. Ltd (Supra) was cited out of context and is not applicable to the present case as the present case involves an employment with statutory flavor unlike that of the Niger Benue case.
29. It is also the contention of counsel that the law is certain that where an employer gives reason for the termination of an employee’s employment, such an employer is obliged to establish same, on this contention reliance was placed on the case of Institute of health Ahmadu Bello University Hospital Management Board V AGIP (2011) 12 NWLR (part 1260) 1 19F.
30. Counsel contended that the Defendants seems to suggest, by their written address that the claimant is challenging the powers of the Defendants to discipline him, but that is not the case. The claimant’s position is that such a power to discipline must be exercised within the ambit of the law and not arbitrarily. To support this contention counsel refers to the case of EZENWA V K.S.H.S.M.B (SUPRA)
31. It is further submitted that the claimant, in civil proceedings the standard of proof required by law from the claimant is not proof beyond reasonable doubt but proof based on a preponderance of probabilities. On this contention reliance was placed on the case of AYORINDE & 3 ORS V SOGUNRO & 6 ORS (2012)11 NWLR (PT 1312) 460, 482.
32. Counsel submitted that the position of law does not alter even where the claimant seeks declaratory reliefs as in the instant case, Additionally, they submitted that the burden of proof is not fixed but alternates between the claimant and the defendant, and that in the instant suit, where the claimant has made several allegations against the defendants, the burden of proving the falsehood of those allegations falls on the defendants, and unfortunately the only evidence led by the defendant in rebuttal are contained in paragraph 4 and 5 of the witness deposition on Oath and it only deal with the issues of section of 178 of the Armed Forces Act and the Pre-action Notice, there is no evidence from the defendant rebutting the germane issues raised by the Claimants. In support of this contention counsel call in the aid of the case of JUKOK INTERNATIONAL LIMITED V DIAMOND BANK PLC (2016)6 NWLR (PART 1507), 55 113G, where the Court of Appeal per Oredola, JCA held that:
“averments by the plaintiff if denied, it must be met with categoric, emphatic and frontal denial. Once such averments are not met in a clear, concise and direct manner, the defendant will be deemed to have admitted them……’’.
33. In concluding his submission counsel contended that the claimant has sufficiently proved all the conditions to sustain a claim for unlawful termination of employment and is entitled to the reliefs sought in this suit and urges the court to so hold.
34. I have carefully considered the entire processes fled in this suit. I have equally had the opportunity of perusing and listening to both the written and oral submissions of counsel for both sides.
35. From the facts of this suit, what this court is to determine is ‘whether the claimant has vide the evidence adduced before the court proved his entitlement to the reliefs being sought in the statement of facts.
36. The claimant had maintained that he is entitled to the reliefs being sought as his compulsory retirement was unconstitutional, illegal, unlawful, null and void and ultra vires as the acts failed to comply with the provisions of the harmonized terms and conditions of services for officers 2012 (Revised) and Armed forces act. He also claim to be entitled to payment of his monthly salary in the sum of N310,588.00 from June 2016 till judgment is delivered in this suit. Theclaimant is also claiming the sum of N500,000,000.00 general and aggravated damages.
37. By the rules governing pleadings, the claimant’s averment must be met by the defendants frontally and categorically. Once averments are not met directly, the defendant is taken to have admitted them. See Atuchukwu V Adindu (2012) 6 NWLR (Pt.1297) 534, Owosho V Dada (1984) 7 S 149. It is only facts, and not the evidence by which they are to be proved, that are required to be pleaded. See Owoeye V Oyinlola (2012) 6 NWLR (Pt.534, Ogbeide V Osula (2004) 12 NWLR (pt.866) 86.
38. Looking at the defendant’s averments contained in the amended statement of defence, it clearly and unambiguously shows that the defendants have admitted all the facts averred in the claimant’s statement of facts. Save paragraph 17 (1-17) of the statement of facts which contained the reliefs being sought from the court. The defendants also raised defence on point of law under section 178 of the Armed Forces Act. However, the defence on point of law was raised via notice of preliminary object and the court after taking argument on the issue, on 14/2/18 in a considered ruling overruled and objection and the matter proceeded to trial.
39. The counsel for the defendants in his final written address has contended while relying on paragraphs 10 and 11 of Part iv of the Armed Forces Act, which make provision on powers of the 3rd defendant and paragraph 9.02d(4) of chapter 9 of the Harminized terms and Conditions of Service 2012 (Revised), exhibit CLA, that the 3rd defendant has acted within its powers in compulsorily retiring the claimant as provided under paragraph 9.02 exhibit CLA. Counsel contended that the defendant having acted within powers conferred on 3rd defendant the claimant’s reliefs should be discountenanced.
40. It is to be noted that the claimant is not in anyway contesting the power of the 3rd defendant to exercise disciplinary control over the claimant. The case of the claimant is hinged on non-compliance with procedure for taking disciplinary action against the claimant and the denial of fair hearing.
41. The counsel for the defendants has contended that there was no evidence as to how the 3rd defendant acted unconstitutionally, illegal, unlawful and ultra vires. The claimant insisted that his enlistment into the Nigeria Army has made his employment to be one with statutory flavor.
42. Both the claimant and the defendants are agreed that the claimant’s employment is that with statutory flavor. The reason being that the claimant employment in the Nigeria Army is governed by the Armed Forces Ac and Harmonized Conditions of Service for Senior Officers 2012 (Revised). It is trite law that an employment is said to enjoy statutory flavor when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provision. In such circumstance the employee is invested with a legal status higher than the ordinary master/servant relationship. See Imolome V WAEC (1992)12 SC (pt.1) 82, University of Lagos V Olaniyan (1985) 1 SC (Reprint) 1999, Shita-Bey V Public Service Commission (1981) 1 SC 40. It is not in dispute that the claimant’s employment enjoy statutory flavor. In this kind of employment the law is well settled that the only way to terminate a contract of service with statutory flavor is to adhere strictly to the procedure laid down in the statute. See Bamgboye V University of Ilorin (1999) 6 SC (pt.ii) 72, Olatunbosun V NISER Council (1988) 6 SC 56, (1988) 3 NWLR (PT.80) 25, Longe v FBN Plc (2010) 6 NWLR (PT.1189) 3.
43. The claimant has pleaded and testified to the effect that he was enlisted into the Nigeria Army his letter of commission was tendered and admitted in evidence as exhibit CLB. By his commission his employment relationship with the defendants became regulated by the Harmonized Terms and Conditions of Service for Officers 2012 (Revised). See exhibit CLA. The claimant from his commission has served the defendants at different capacities. Sometime in 2015, the claimant was posted to the depot Nigeria Army as a staff Officer Grade 1 training and Operation. That he held this position till 9th June 2016 when he was compulsorily retired from service of the 1st defendant pursuant to the provisions of paragraph 09.02c(4) of the Harmonized Terms and Condition of Service for Officers 2012 (Revised). Exhibit CLC1-3 is the letter of compulsory retirement. The letter of compulsory retirement was served on the claimant on 22/6/2016 and he immediately wrote letter of appeal to the president of the Federal Republic of Nigeria, exhibit CLE1-4. A reminder was written to Mr. President as per exhibit CLF1-5. The claimant averred that he was not aware that he is under any investigation neither was he invited before any panel to answer any allegation. The Claimant brought a suit against the defendants claiming that his compulsory retirement is unconstitutional illegal, unlawful, null, void and ultra vires as their acts failed to comply with the provisions of the Harmonized terms and conditions of services for officers, 2012 (Revised), and other relevant laws. He urges this court to order directing the defendants to pay him the sum of N310,588.00 monthly from June 2016 till judgment is delivered in this suit, N500,000,000.00 general and aggravated damages and complied with publishing in two national dallies and reserved apology.
44. The counsel for the defendants in the final written address filed before the court placed reliance on functions and powers of the 3rd defendant as encapsulated in paragraphs 10 and 11 of part IV of the Armed Forces Act 2004 and chapter 9, part 1 paragraph 09.02 of exhibit CLA, contended that the compulsory retirement of the claimant was not unconstitutional, unlawful or illegal or ultra vires. The 3rd defendant acted within its powers as provided in paragraph 09.02 of exhibit CLA. It is also the contention of counsel for the defendants that the claimant has not discharged the burden of proof imposed on him by the law, as there was no evidence as to 3rd defendant acted unconstitutionally, illegal, unlawful and ultra vires in removing claimant. Counsel also relied on evidence of DW under-cross examination that the services of claimant are no longer required. The counsel for the defendants also contended he who hires/appoint can also fire/remove. Counsel relied on paragraph 09.02 on circumstances appointment can be determined by the employer and breach of the terms. It is trite law employer may give reason or no reason at all before the employer can be removed provided employer does not breach terms.
45. The submission of counsel for the defendant in the final written address seems to have deviated from the well-known principle of law on the purpose for which address of counsel is meant to serve. It is trite that address of counsel shall not serve as an avenue in which evidence not placed before the court should be smuggled in to make case for a party. There was nowhere in the pleading of the defendant where it was averred that the claimant was compulsorily retired because his services were no longer required by the defendants. Exhibit CLC1-3 clearly and unambiguously stated that the claimant was compulsorily retired from service on serious offences under paragraph 09.02c(4) of the Harmonized Terms and Conditions of Service for Senior Officers 2012 (Revised) exhibit CLA. With exhibit CLC1-3 the defendants are estopped from stating that the claimant was retired because his services are no longer required by the defendants. The evidence of DW under cross examination cannot changed a clear and unambiguous content of exhibit CWC1-3, which contained the reasons for retirement of the claimant The law is settled that evidence at variance with pleading goes to no issue and will be discountenanced. See Oluyede v Access Bank plc 2015 17 NWLR (Pt.1489) 596, Ohuchukwu v AG Rivers state 2012 6 NWLR (Pt.1295) 53, Umaffia V Ndem (1973) 12 SC 69, Emegokwe V Okadigbo (1973) 4 SC 113, shell BP V Abedi (1974) 1 SC 23.
46. It is to be noted that the law is well settled that the court will not compel an unwilling employer to retain any worker. Similarly an employer is not bound to give any reason for terminating the appointment of a servant where such employment is not one with statutory flavor. See Olarenwaju v Afribank plc 2001 7 SC (Pt.iii) 1; (2001) 13 NWLR (PT.731) 691, university of Lagos v Olaniyan supra ; Ativie V Kabel Metal Nig. Ltd (2008) 5-8 SC (Pt.ii) 47.Therefore, the rule of giving reason or no reason for determining employment does not apply to contract of employment with statutory flavor like the case at hand. In a contract with statutory flavor the appointing authority or the authority having the power to exercise disciplinary power over an employee must act within the ambit of the law otherwise any deviation will result in declaring the disciplinary action taken against such employee null and void.
47. The claimant has averred that he was not aware that he is under any investigation neither was he invited before any panel to answer any allegation. This means that he was never told of the allegations that led to his compulsory retirement nor was he given opportunity to defend or exculpate himself. The defendant never denied the assertion of the claimant that he was not aware of any allegation leveled against him nor was he invited before any panel to answer allegation. The defendant did not directly and frontally attack the averment of the claimant. The claimant’s averments are therefore deemed to have been admitted by the claimant. The law is settled that averment in pleading not denied are deemed admitted. See Atuchukwu v Adindu supra, Ogbeide v Osula (2004) 12 NWLR (Pt.866) 86. The assertion of DW that the claimant has failed to discharge burden of proof in that there was no evidence adduced to show unlawfulness and illegality of compulsory retirement was made in disregard of the claimant’s averment and evidence to the effect that he was not aware of any allegation of serious offence against him, neither was he called or invited to appear before any panel of investigation or confronted with allegation of serious offences. This evidence as noted earlier was never denied nor was it challenged by the defendants. The defendants cannot therefore be heard to assert that there was no evidence of unconstitutionality and illegality of compulsory retirement.
48. It is clear that the pleading of the defendants did not raise serious triable issue. In the circumstances, the only conclusion and inference to be drawn from the pleadings of the defendants is that they have admitted the claim of the claimant. SeeUnity Bank plc v Denclog ltd 2012 18 NWLR PT.1332 293 (SC), Oshodi V Eyifunmi (2000) 13 NWLR (Pt.684) 298, Honika Sawmill V Hoff (1994) 2 NWLR (Pt.326) 252, Akintola V Salano (1986) 2 NWLR (Pt.24) 598.
49. The defendants having failed to confront the claimant with the serious offences which the claimant was alleged to have committed that led to his compulsory retirement, they are in breach of the rights of the claimant to be informed of the allegations against him and giving him the opportunity to defend the allegations leveled against him. Therefore, the breach by the defendants of the doctrine of natural justice in the process of retiring the claimant from service has rendered the action of the defendants in retiring the claimant from service unconstitutional, illegal, unlawful and ultra vires the powers of the defendants. In the circumstance the claimant’s compulsory retirement as per exhibit CWC1-3, is hereby nullifiedand set aside and the defendants are hereby ordered to reinstate the claimant back to the service of the defendants with immediate effect.
50. In relief 5 the claimant is claiming monthly salary from June 2016 when he was retired till judgment is delivered. It is trite law that claims for salary is claim for special damages in which a claimant is required to prove strictly by cogent, compelling and credible evidence. Being claim for special damages the claimant is to particularize and proves the quantum. In attempt to prove this claim the claimant has averred that he is entitled to payment of N310,000 per month, exhibit CLG contained three pay slips for three months tendered in proof of the salary payment for the months of April, May and June 2016. A careful perusal of the three pay slips will show that there is gross pay and net pay and the amounts are not the same. The gross pay is the amount of money employee is entitled to before deduction of taxes. Net pay on the other hand represent amount of money employee take home after all deductions have been made. From the claim the claimant seems to be claiming gross pay which is not his take home pay. What the claimant should have claimed is the net pay. The gross pay for April and May is the sum of N310,582.00 and the Net pay is the sum N297,301.87 for each of the months of April and May, 2016, respectively. For the Month of June, 2016, the gross pay as shown on the pay slip is the sum of N335,800.92. While the Net pay is shown as the sum of N322,520.79.
51. The law is well settled that Special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with General damages. They are exceptional and so must be claimed specially and proved strictly. To succeed in a claim for special damages it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and so there is no room for inference by the court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the court. PerRhodes-Vivour, JSC in NNPC v. Clifco Nigeria Ltd  LPELR-2022(SC). In the case of 7UP Bottling Company Plc v. Augustus  LPELR-20873(CA), a more apposite case, puts the law in tis words:
The claims for gratuity, pension, housing fund, salary up to 24th October, 2002 are all special damages and must be strictly proved. That is, each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. It must be proved with credible evidence and without such proof no special damages can be awarded. See Taylor v. Ogheneovo (Supra); Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; A.G. Leventis Ltd v. Akpu (2002) 1 NWLR (Pt. 747) 182; Garba v. Kur (2003) 11 NWLR (Pt. 831) 280: Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Otaru and Sons Ltd v. Iris (1999) 6 NWLR (Pt. 606) 330. The claimant has not specifically and strictly proved same as contended as it is not by mentioning the items of special damages as did in the instant case. What about particularization as to the amount involved as gratuity, pension, housing fund, the salary, etc. The Court is not allowed to make its own estimate of these items.
52. This court has in plethora of cases laid down what a claimant must prove in other to be entitled to monetary claims in the nature of special damages. For instance, in Ineh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, this Court held thus:
…the rule is that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017. To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 and Mr. Mohammed Dungus & ors v. ENL Consortium Ltd  60 NLLR (Pt. 208) 39. And to prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits” as in the instant case, being monetary sums is a claim for special damages. See Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. Here, the law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd  LPELR-2022(SC) and Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors  LPELR-515(SC);  13 NWLR (Pt. 1159) 445 SC. All items of loss must be specified by the claimant before they may be proved and recovery granted. See Christopher U. Nwanji v. Coastal Services Nig. Ltd  LPELR-2106(SC);  11 NWLR (Pt. 885) 552;  18 NSCQR 895. Furthermore, the claimant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd  LPELR-614(SC);  NWLR (Pt. 66) 47;  All NLR 579;  9 - 11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Authority  LPELR-206(SC).
53. See also Stephen Ayaogu & 16 ors v. Mobil Producing Nigeria Unlimited & anor unreported Suit No. NICN/LA/38/2010, the judgment of which was delivered on 27th October 2017.
54. Theauthorities cited above clearly show that the claimant in the instant case must prove two things if he is to succeed: one, thathe has an entitlement to the sums he respectively claimed; and two, how they came about the quantum of the sums of money they respectively claim. In terms of the first requirement. With the nullification of the claimant’s employment, the employment has been as if there is no retirement and the claimant is still in service. This means he is entitled to his salaries. But, the claimant failed to prove to the court the exact quantum of the salary as the pay slips have different amount of money. In the circumstance claim for salary has not been proved and same is hereby refused.
55. On relief 6 N500,000,000.00 general and aggravated damages. The law is well settled that where court ordered reinstatement, claim for damages is not grantable, granting of such damages will amount to double compensation which the law frowns at. This claim is hereby refused.
56. On relief 7 which is seeking for an order directing defendants to tender unreserved apology to be published in two national dailies, the claimant has not tendered cogent, compelling and credible evidence in support of this claim. The claimant would have done justice if the alleged publication has been tendered in evidence before the court. Therefore, this claim failed and is hereby rejected and is hereby dismissed for lack of proof by cogent, compelling and credible evidence.
57. For avoidance of doubt the claimant succeed in some part of his claim as stated below:-
I. The compulsory retirement of the claimant from the services of the defendant is hereby declared null and void due to breach of the doctrine of natural justice.
II. The letter of compulsory retirement of the claimant is hereby set aside.
III. The defendants are hereby ordered to reinstate the claimant back to the service of the defendants with immediate effect.
IV. Cost of this suit is put at N300,000.00 (Three Hundred Thousand Naira) to be paid by the defendants to the claimant.
58. Judgment entered accordingly.
1. A. S. Egbo, Esq; for the claimant
2. F. U. Akpobueze. Esq for the Defendants.