IN THE NATIONAL INDUSTRAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA
DATED: 18TH MAY 2019 SUIT NO: NICN/ABJ/342/2019
CLIFFORD EZEOZUE ………………………… CLAIMANT
1. NIGERIA CUSTOMS
2. PENSION TRANSITIONAL ARRANGMENT …………………. DEFENDANTS DIRECTORATE
IKECHUKWU EZECHUKWU (JNR) for the Claimant
REMIJUS CHIKE OBIORAH for the 2nd Defendant
No Representation for the 1st Defendant
1. The Claimant/Applicant instituted this action via Originating Summons filed on 14th November, 2019 supported by a 21 paragraph affidavit deposed to by Clifford Ezeozue, against the Defendants/Respondents praying this Honorable court for the determination of the following questions and reliefs:
1) WHETHER the 1st Defendant, having accepted the Judgment of Lagos State High Court sitting in Ikeja in Suit No. ID/1461/90 between Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services, has power to pick and choose which of the terms of the judgment it could obey.
2) WHETHER, having accepted the judgment of High Court of Lagos State sitting in Ikeja in Suit No. ID/1461/90 between Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services, the 1st Defendant can either by itself or through any of its organs vary the judgment and order of the said High Court of Lagos State without subsequent order of the said court or superior (Appellate Court) court to the detriment of the Claimant.
3) WHETHER the 1st Defendant is not bound to obey and implement to the letter, the judgment of the Lagos State High Court aforementioned in full/whole having regards to the order made with respect to the Claimants promotions, allowances, arrears of salaries and allowances etc.
4) WHETHER, having regard to the extant judgment of the High Court of Lagos State aforementioned, the Claimant is not entitled to his pensions calculated on the basis of the rank of Assistant Comptroller of Customs on grade Level UPSS13 with effect from 1/3/93 when he was reinstated by the order of court.
Upon determination of the aforementioned questions, the Claimants sought the following reliefs:
5) A DECLARATION that the Defendants are bound by the judgment of the High Court of Lagos State sitting in Ikeja in Suit No. ID/1461/90 without power to pick and choose which of its terms that it will obey and which not to obey.
6) A DECLARATION that save for an order of court, the Defendants, particularly the 1st Defendant, by itself or through any of its organs cannot vary the judgment of the said Lagos State High Court in Suit No. ID/1461/90 to the detriment of the Claimant.
7) A DECLARATION that the Claimant, having regard to the judgment aforementioned, is entitled to all his promotions and other entitlements with effect from the date of his ineffective purported dismissal on the 3 day of January 1975.
8) A DECLARATION that at the time of the Claimants compulsory and premature retirement on April 1994, his rank was or ought to be that of Assistant Comptroller of Customs in grade level UPSS13
9) A DECLARATION that the claimant is entitled to all his arrears of allowances, salaries and other entitlements as ordered by the court in the aforementioned judgment and that such arrears, allowances etc. ought to and should be referenced to his correct rank.
10) A DECLARATION that the Claimant is entitled to the stipulation that his correct service record be remitted to the 2nd Respondent by the 1st Respondent to the effect that his rank upon retirement was or ought to be UPSS13 as Assistant Comptroller of Customs or any such enhanced salary level as Assistant Comptroller of Customs are entitled to the 2nd Defendant.
11) A DECLARATION that the continued underpayment of the Claimants Pension by the Defendants is wrong and unlawful.
12) AN ORDER of this Hon. Court directing the 1st Defendant to remit to the 2nd Defendant the complainant’s correct record of service reflecting his correct rank and grade level for proper computation of his pension and allowances.
13) AN ORDER, in the event that the 1st Defendant fails, refuses or neglects to make available to the 2nd Defendant the correct record of service of the Claimant, directing the 2nd Defendant to calculate the Claimants Pension or other allowances relating thereto on the bases of UPSS13 Salary grade level.
14) AN ORDER directing the Defendants to pay to the Claimant all the arrears of the balance of short payment of his pension with effect from date of his premature retirement on April 1994 based on salary grade level UPSS13 or any other such enhanced salary level as are entitled to by Assistant Comptroller of Customs at all times material to this Suit.
15) AN ORDER directing the 1st Defendant to pay to the Claimant all his allowances, salaries etc. during and after the period of his interdictment in the terms ordered by the Court.
2. Learned Counsel to the Claimant submitted that by the provisions of our 1999 Constitution as amended “The Judicial Powers of the Federation shall be vested in the Courts to which this Section relates”. And that by Subsection 5 (e) of Section 6 of the Constitution, the Lagos State High Court is one of the Courts to which Section 6 of the 1999 Constitution relates. Claimant’s Counsel argued that the purported decision of the Junior Staff Committee has the effect of nullifying or varying the Judgment of the High Court as to the Claimants entitlements including arrears of salaries, allowances, promotions etc. Amechi vs. INEC (2008) 5 NWL (pt. 1080) 227 at GITTO Const. (Nig.) Ltd vs. INNOVATE AND COMPANY (2015) LPELR 25725 (CA). Furthermore, that as decided by our Courts, no party has the power to pick and choose which of the orders of Court it could obey. Senator Ali Modu Sherriff & Ors vs. PDP & Ors.
3. 2nd Defendant filed a 22 paragraph COUNTER AFFIDAVIT on 22nd January, 2020 deposed to by Akinjide Akomolafe.
4. Learned Counsel to the Defendant submitted that the cause of action are the facts or combination of facts that gives a person the right to seek judicial redress or relief against another; and that the Cause of action is the heart of the complaint and without an adequately stated cause of action, the Claimant’s case against the 2nd Defendant should be dismissed. That the only alternative will be for this Honourable Court to strike out the name of the 2nd Defendant from the Suit as presently constituted. Defence Counsel further argued that it is not sufficient merely to state that certain events occurred that entitled the Claimant to relief. Again, that a cause of action can arise from an act, a failure to perform a legal obligation, a breach of duty or invasion of a right. SHELL B-P Vs. ONASANYU (1976) 1 ALL N.L.R (PT 1) 425. It is Defence Counsel’s submission that where no claim has been made against a party or where there is no reasonable cause of action against a party, one of the major options will be dismiss the suit or strike out the name of that Party. He submitted that a cause of action is an aggregate or a bundle of facts which in law gives the plaintiff a substantive right to make the claim for the relief or remedy being sought against a particular or named Defendant. And that it is a determinant of the jurisdiction of a court and consequently the absence of the cause of action robs the court of jurisdiction to entertain the action. That the defect is therefore fundamental and fatal. CHILKIED SECURITY SERVICES AND DOG FARMS LIMITED Vs. SCHLUMBERGER NIGERIA LIMITED AND ANOR  15 N.W.LR. (PART 1642) at PAGE 245 Ratio 12; ABUBAKAR Vs. BEBEJI OIL AND ALLIED PRODUCTION LTD AND ORS (2007) LPELR — SC. 1101 2001; ALHAJI USMAN DANTATA Vs. MOUKTAR MOHAMMAD (2000) 7 NWLR (PART 664) PAGE 176.
5. Defence Counsel posited that this Honourable Court has powers under the law to grant this application to strike out the name of the 2nd Defendant from this suit for wrongful joinder. Order 13 Rule 14 (2) of the Rules of this Court; ECO BANK NIGERIA PLC Vs. METU & ORS (2012) LPELR —20846 (CA). Counsel to the Defendant maintained that the main reason for the necessity in making a person a party to an action in court is so that he should be bound by the result of the action in the judgment of the court. CHIEF REX KOLA OLAWOYE V. ENGINEER RAPHAEL JIMOH & ORS (2013) LPELR — 20344 (SC). He submitted further that you do not need to be a party on record in any judicial proceeding in order to be bound by the decision of the court at the end of the day. ARIOLE V. NWACHUKWU & ORS (2014) LPELR — 24374 (CA).
6. On the 24th February 2020 the parties in this suit adopted and adumbrated their respective processes and this matter was adjourned for this ruling.
7. Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this judgment and specific mention would be made to them where the need arises. I shall proceed to determine the questions the Claimant set down for determination but before I proceed with these questions I am required in law to make a finding with respect to the jurisdictional issue raised by the defendant that this suit lacks a reasonable cause of action against the Defendants and that the court should strike out the Defendants name from this suit.
8. Jurisdiction is a threshold matter, it is fundamental and once raised it ought to be determined. A.C.N V. INEC (2013) 13 NWLR (PT. 1370) 161 @ 171 ; - where it was held that “the issue of jurisdiction is very fundamental as it affects the very foundation of the entire proceeding of the court”. (P. 208, para. F) The Court continued that “The jurisdiction of all courts is constitutional and any exercise outside that conferred by the law is of no effect. (P. 208, para. G). And “…To insist on a court to assume jurisdiction where there is none amounts to an exercise in futility. (P. 208, para. G). it was also held that“; - Where a statute has identified a court and donated to it an exclusive jurisdiction over a particular cause of action, the jurisdiction of other courts not similarly mentioned would appear to have been ousted.” See S.C.C. (NIG.) LTD. V. SEDI (2013)1 NWLR (PT. 1335) 231
9. It is pertinent to restate at the trite legal position pronounced in. That it has now become legally customary through long practice to determine the issue of jurisdiction of court on the reliefs sought by the claimant, in the writ of summons and statement of claim. See also in OLORUNTOBA-OJU V. ABDUL-RAHEEM 2009) LPELR-2596(SC), (2009) 13 NWLR (PT. 1157) 83 S C. That it has now become legally customary through long practice to determine the issue of jurisdiction of court on the reliefs. sought by the claimant, in the writ of summons and statement of claim. See also ADEYEMI V. OPEYORI (1976) 9 - 10 SC PAGE 31FELIX ONUORAH V. KADUNA REFINING PETROCHEMICAL CO. LTD (2005) ALL FWLR PT. 256 PAGE 1356 AT PAGE 1364. ALHAJI IBRAHIM ABDULHAMID V. TOTAL AKAR & 1 OR (2006) 5 SCNJ PAGE 45 AT PAGE 54. C.G.G (NIG) LTD V. OGU (2005) 8 NWLR PAGE 927 PAGE 366 and ADELUSOLA V. AKINDE (2004) 12 NWLR PT. 887 PAGE 295 AT PAGE 312
10. In the instant case the Claimant seeks legal pronouncement as to his rights and the obligation of the defendant under the Judgment of Lagos State High Court sitting in Ikeja in Suit No. ID/1461/90 between Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services, delivered on the 29th November 1991, and particularly his entitlement to promotion and whether or not his pension ought not to be adjusted in line with his anticipated promotion.
11. The Jurisdiction of this Court for now has been claimed by Section 254 C (1) of the 1999 Constitution (as amended) and Section 7 of the National Industrial Court 2006 which provide as follows.
(1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the condition of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;
(b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;
(c) relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matters Connected therewith or related thereto;
(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine;
(e) relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom;
(f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;
(g) relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;
(h) relating to, connected with or pertaining to the application or interpretation of international labour standards;
(i) connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;
(j) relating to the determination of any question as to the interpretation and application of any-
(i) collective agreement;
(ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute;
(iii) award or judgment of the Court :
(iv) term of settlement of any trade dispute;
(v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement;
(vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour industrial relations or work place;
(vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof;
(k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant he any part of the Federation and matters incidental thereto;
(l) relating to-
(1) appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith ;
(ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and
(iii) such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly;
(m) relating to or connected with the registration of collective agreements.
(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.
(3) The National Industrial Court may establish an Alternative Dispute Resolutions Centre within the Court premises on matters which jurisdiction is conferred on the court by this Constitution or any Act or Law:
Provided that nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal or commission, administrative body, or board of inquiry in respect of any matter, but the National Industrial Court has jurisdiction to entertain or any other matter as may be prescribed by an Act of the National Assembly or any Law in force in any part of the Federation.
(4) The National Industrial Court shall have and exercise jurisdiction and powers to entertain any application for the enforcement of the award, decision, ruling or order made by any arbitral tribunal or commission, administrative body, or board of inquiry relating to, connected with, arising from or pertaining to any matter of which the National Industrial Court has the jurisdiction to entertain.
(5) The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law,
(6) Notwithstanding anything to the contrary in this Constitution, appeal shall lie from the decision of the National Industrial Court from matters in sub-section 5 of this section to the Court of Appeal as of right.
Under Section 7 (1) (b) of the National Industrial Court Act 2006,
“relating to the grant of any order to restrain any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action;
13. Now, Section 2541(k) provides that the NICN shall have exclusive jurisdiction in respect of (k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;
14. By Section 254, C(1) K this court has exclusive jurisdiction with respect to payment or non-payment of pensions, I hold therefore that the claimants Claim is squarely before the court with requisite jurisdiction. the 2nd Defendant raised issues with respect to Cause of action
15. Now the claimant, had instituted this action against the 1st defendants, his employers from where he was compulsorily retired and the 2nd Defendants, the body responsible for payment of Pensions and from whom he received pension. The Claimant continued that he had written to the 2nd defendants complaining of under payment of his pension and the 2nd /defendants had replied that they had calculated his pension based on the record forward to them from his employers, the 1st defendant.
16. The 2nd defendants have asked that they be struck out arguing that the Claimant’s case against the 2nd Defendant should be dismissed as it is not sufficient merely to state that certain events occurred that entitled the Claimant to relief. the defendant argued that a cause of action arises from an act, a failure to perform a legal obligation, a breach of duty or invasion of a right and they, the 2nd defendant contends in conclusion that as no claim has been made against them, and in law a cause of action is an aggregate or a bundle of facts which in law gives the plaintiff a substantive right to make the claim for the relief or remedy being sought against a particular or named Defendant, this lack of substantive relief against a particular Defendant, ie, the 2nd defendant this court is robbed of jurisdiction and consequently the absence of the cause of action is a fundamental and fatal defect.
17. The Claimant did not file any response to the 2nd Defendants processes.
18. The position of the law as regard Cause of action and the reasonableness thereof was stated in the case of OBUN v. OBANLIKU LOCAL GOVT COUNCIL & ORS. (2017) LPELR-43804(CA) where the Court of Appeal held that; - "A cause of action means a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a plaintiff to a remedy against a defendant. It consists of every fact, which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. That is, the fact or combination of facts which gave rise to a right to sue. It is a cause for action in the Courts to determine disputed matters. See EGBE VS ADEFARASIN (1985) 1 NWLR (PT 3) 549, THOMAS vs. OLUFOSOYE (1986) 1 NWLR (PT 18) 689 and DANTATA VS MOHAMMED (2000) 7 NWLR (PT 664) 176. Per Joseph Olubunmi Kayode Oyewole, J.C.A (Pp. 7-8, paras. D-A)
19. Also in OKOLI & ORS v. ONWUGBUFOR (2018) LPELR-46660(CA) The Court of Appeal determined that "...the law is that a consideration of whether or not a Claimant's claim discloses a reasonable cause of action against a Defendant the only pertinent document to be scrutinized is the Statement of Claim. See Tika Tore Press v. Umar (Supra) @ p. 107." Per Biobele Abraham Georgewill, J.C.A (Pp. 39-40, paras. F-A) The appellant Court continued to make the following determination "... What then in law is a cause of action and when is a cause of action said to be reasonable? A cause of action is a situation or state of facts that entitles a party to maintain an action in Court. The state of facts may be (i); a primary right of the claimant actually violated by the defendant, or (ii); the threatened violation of such right, which violation the claimant is entitled to restrain or prevent, as in actions or suits for injunctions, or (iii); it may be that there are doubts as to some duty or right or the right beclouded by some apparent adverse claim or right, which the claimant is entitled to have cleared up that he may safely perform his duty or enjoy his property. A cause of action is thus defined as the entire set of facts or circumstances giving rise to an enforceable claim. See Savage V. Uwaechia (1972) 3 SC 213. See also Ogoh V. Enpee Industries Ltd (2004) 17 NWLR (Pt. 903) 449; United Bank for Africa Plc. V. BTL Industries Ltd (2004) 18 NWLR (Pt. 904) 180; Adesina V. Ojo (2012) 10 NWLR (PT 1309) 562; Akilu V. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 @ p. 169; Gbadehan V. Kiladejo (2012) 16 NWLR (Pt. 326) 399; Alhaji Abudu W. Akibu Vs. Oduntan (2000) 10 WRN 48; Omin III V. The Governor, Cross River State (2007) 41 WRN 158 @ pp. 186 - 187. In Shell Petroleum Development Company Nigeria Ltd. Vs. Nwawka (2003) 1 S. C. (Pt. II) 127 @ p. 138, the Supreme Court per Ayoola, JSC, held inter alia thus: "Facts do not by themselves constitute a cause of action. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligation of the defendant. It must then go on to set out facts constituting infraction of plaintiff's legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks….s." And in Yusuf V. Akindipe (2000) 8 NWLR (Pt. 669) @ p. 376, the Supreme Court per Ogwuegbu, JSC., had succinctly stated what would amount to a reasonable cause of action inter alia thus: "A reasonable cause of action means a cause of action with some reasonable chance of success when only the allegations in the pleadings (statement of claim) are considered. So long as the statement of claim discloses some cause of action or raises some question fit to be decided by a Judge as in this case. The mere fact that the case is weak and not likely to succeed, is no ground for striking it out or dismissing it." Also, in Shell B.P. Petroleum Development Co. Ltd V. Onasanya (1976) 6 S.C 89 @ p. 94, the Supreme Court had laid down the following guide when it held inter alia thus: "The question that follows is: Looking at the facts pleaded by the Plaintiff in support of its claim, can it be said that the case at all events has no reasonable chance of success? It needs to be said here that the proposition that a Plaintiff has no reasonable cause of action can only be made upon an examination of the facts pleaded in the statement of claim. It has nothing to do with the nature of the defence which the Defendant may have to the Plaintiffs claim. The Court must therefore confine itself only to the averments in the statement of claim in assessment of whether or not the Plaintiff has a reasonable cause of action." Now, for a Court to consider and determine whether or not a claim discloses reasonable cause of action and terminating a suit if does not and thus driving the Claimant away from the judgment sit even without a hearing of his claims on the merit that it’s not a tea party. It is a decision to be reached very seriously in the light of the law and the facts as put forward in the pleadings of the Claimant and thus such a decision must never be reached lightly. The claim must be really bad in point of law and the facts to merit such a treatment. In Tika-Tore Press Ltd V. Umar (Supra), this Court had succinctly opined inter alia: "For a statement of claim to be said to disclose no cause of action, it must be such as nobody can understand what claim he is required to meet. The case stated in it must be unsustainable or unarguable or it is incontestably bad." In NBC Plc. V. Ezeifo (2001) 12 NWLR (Pt. 726) 11 @ pp. 28-29, this Court per Oduyemi JCA had held inter alia thus: "Where the statement of claim discloses no cause of action and if the Court is satisfied that no amendment, however ingenious will cure the defect, the statement of claim will be struck out and the action dismissed. Where no question as to the civil rights and obligations of the Plaintiff is raised in the statement of claim for determination, the statement of claim will be struck out and the action dismissed." Now, by Order 15 Rules 18(1) of the High Court of Lagos State (Civil Procedure) Rules, 2012, it is provided that the Judge may at any stage of the proceedings order to be struck out or amend any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that it discloses no reasonable cause of action or defense as the case may be. Thus, in law for an action to subsist against a party, the action as constituted, must disclose a reasonable cause of action and in deciding whether or not pleadings disclose a reasonable cause of action, what is important is only the averments in the plaintiff's pleadings which should be examined to see if they disclose some cause of action or raise some questions fit to be decided by a judge. See Dada Ors V. Ogunsanya & Anor (1992) Vol. 23 NSCC (Pt. 1) 569 @ p. 575. See also Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Shell B.P. Petroleum Development Company of Nigeria & 5 Ors. V. M. S. Onasanya (1976) All NLR 338 @ p. 340.
20. From the foregoing position of the law and the claimants averments I am satisfied that the claimant has established that there may be some doubts as to his pension entitlements beclouded by some apparent adverse claim or right, which the claimant is entitled to have cleared up that the 2nd defendant may safely perform its duty to enable the Claimant enjoy his property i.e. pension. As per OKOLI & ORS v. ONWUGBUFOR (Supra). Bearing in mind that a cause of action has been defined as the entire set of facts or circumstances giving rise to an enforceable claim which sets out the legal rights of the Claimant and the obligation of the Defendant I find that in the instant case the claimant has disclosed sufficient cause of action that raises a question fit to be decided by a Judge
21. Furthermore it is the law that;- “A party is said to be a proper party though not interested in the claim of the plaintiffs, is nonetheless made a party for some good reason” ADEBAYO v. ANL & ANOR. (2015) 52 NLLR (PT. 175) 374 NIC @ 377. GREEN v. GREEN (1987) NWLR (PT. 61) 481 and that “the blue litmus test for the determination of who may be a necessary party to a suit is predicated on whether the judgment will affect the party ; and one of the reasons which makes it necessary to make a particular person a party to an action is that he will be bound by the result of the action and to put to an end to parallel litigations”. GASSOL v. TUTARE (2013) 14 NWLR (PT. 1374) 221 @ 231 S.C. (P. 249, PARAS. C-E)
22. I find that the 2nd Defendant is a proper party to this matter. See AJALA & ANOR v. GINIKANWA & ORS. (2018) LPELR-44469(CA) and that the Claimant has disclosed sufficient cause of action against the Defendants for this matter to be determined with the parties as instituted by the Claimant, I find there is no merit to the 2nd Defendants argument in the circumstances of this case, this court is fully seized with jurisdiction, the claimant has established a cause of action being the underpayment of his pension by the 2nd defendants and his cause of action arose after he had received the 2nd defendants in a letter dated 21st March 2019 wherein the 2nd Defendant stated that they computed the claimant’s pension with the record of service they received from the 1st defendant and when the claimant wrote to the 1st defendant 14th May 2015 to rectify his records and the 1st defendant failed, refused to reply. I hold. and I resolve this issue in favour of the claimant.
23. Now to the merit of the Claimant case, as was stated above the Claimant had instituted this action against the 1st defendants, his employers from where he was compulsorily retired and the 2nd Defendants , the body responsible for payment of Pensions and from whom he received pension asking the Court for the determination of 4 four questions. the 1st defendant neither entered appearance nor did they file any process in response to the Originating Summons in this suit, despite having been duly served the Originating Processes and Hearing Notices. The Court proceeded with the matter in line with the provisions of Order 9 rule 5.
24. The fact that the defendants did not defend this action or call any evidence, technically, means therefore, that this case approximates as one that is undefended but in this case the defendant had ample the opportunity to defend this action but chose not to, in this regard
25. This however, does not mean an automatic victory for the Claimant because he must succeed on the strength of his own case and not rely on the weakness of the defendants case or the fact that there is no defence placed before the court. BENJAMIN BILLE Vs. MULTILINKS LTD. NICN/LA/175/2011 (unreported) delivered 6th July 2012. The absence of evidence by the defence does not exonerate the claimant the burden or proof placed on him. See SECTION 131(1) and (2) Evidence act 2011, OGUNYADE Vs. OSHUNKEYE  15 NWLR (Pt. 1057). The claimant must adduce evidence worthy of belief as evidence does not become credible merely because it is unchallenged. AKALONU Vs. OMOKARO 8NWLR (Pt.821) 190. Uncontroverted evidence does not in any way take way the duty imposed on the claimant to prove his case in accordance with the minimum evidence rule. In A.G. OSUN STATE Vs. NLC (OSUN STATE COUNCIL) & 2 ORS (unreported) NICN/LA/275/2012 delivered 19th December 2012 this court held as follows;-
“Order 9 of the National Industrial Court Rules 2017 enjoins a party served with a complaint and accompanying originating processes and who intends to file a defence process as provided therein. Order 9(4) therefore recognizes the right of a defendant not to defend an action filed against him or her. And by order 19 rule 2 where the defendant is absent at the trial and no good reason is shown for the absence, the claimant may prove his/ her case as far as the burden of proof lies on him upon her. This Rule, of course accords with the minima evidential requirement, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgement just because the other party did not adduce evidence before the trial court as held in LAWRENCE AZENABOR Vs. BAYEREO UNOVERSITY KANO  25 NLLR (PT. 70) CA at 69 and OGUNYADE Vs. OSUNKEYE supra at 247”
26. Mindful of this position of law I shall now proceed to deal with the merits of this case in order to determine whether the minimum evidentiary value/burden of proof has been met I shall need to look at the case before the court against the reliefs sought by the Claimant The rule of thumb in evaluating the claimants evidence is as follows;- “The law is that the facts elicited from the evidence of the plaintiff should so preponderate in favour of the claims that the court should on balance decide in his favour'' Per PATS-ACHOLONU, J.S.C in OBASI BROTHERS MERCHANT COMPANY LTD. Vs. MERCHANT BANK OF AFRICA SECURITIES LTD.(2005) LPELR-2153(SC) (P. 9, paras. A-B).
27. The Claimant raised 4 questions for determination ; -
1. WHETHER the 1st Defendant, having accepted the Judgment of Lagos State High Court sitting in Ikeja in Suit No. ID/1461/90 between Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services, has power to pick and choose which of the terms of the judgment it could obey.
2. WHETHER, having accepted the judgment of High Court of Lagos State sitting in Ikeja in Suit No. ID/1461/90 between Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services, the 1st Defendant can either by itself or through any of its organs vary the judgment and order of the said High Court of Lagos State without subsequent order of the said court or superior (Appellate Court) court to the detriment of the Claimant.
3. WHETHER the 1st Defendant is not bound to obey and implement to the letter, the judgment of the Lagos State High Court aforementioned in full/whole having regards to the order made with respect to the Claimants promotions, allowances, arrears of salaries and allowances etc.
4. WHETHER, having regard to the extant judgment of the High Court of Lagos State aforementioned, the Claimant is not entitled to his pensions calculated on the basis of the rank of Assistant Comptroller of Customs on grade Level UPSS13 with effect from 1/3/93 when he was reinstated by the order of court.
28. With regards to reliefs 1, 2, and 3 the claimant is seeking a legal pronouncement as to the limits and obligations of the 1st Defendants with respect to the Judgment of Lagos State High Court sitting in Ikeja in Suit No. ID/1461/90 between Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services, delivered on the 29th November 1991.
29. It is not in doubt that this Court, the National Industrial Court can enforce the Judgement of another Court See Suit No NICN ABJ/85/2011 Unreported MR. MGBODIULE CHROTTIAN ANAYO Vs. THE CHAIRMAN FEREAL CIVIL SERVICE COMMISSION delivered on the 5th June 2012. where this court looked at Sections 105, 107, 108 and 112 of the of the Sherriff and Civil Processes Act LFN 2004 as well as Section 287(3) of the 1999 Constitution(as amended) and came to the conclusion that this court can enforce it own as well as the judgment of other courts of record.
30. The Black’s Law Dictionary 10th Edition defined Judgement (2) as ‘A court’s final determination of the rights and obligations of parties in a case;- and the 21st Century Oxford dictionary Revised edition 1997, simply defines a Judgement as a decision of a judge in the case of IGUNBOR V. AFOLABI (2001) NWLR (PT.723)148 it was held that; - “ A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. The Apex Court also held that "An order or a judgment of court, ………………….., remains legally binding and valid until set aside by due process of law. Per Katsina-Alu, J.S.C. (Pp. 18-19, paras. G-A) A.G. in ANAMBRA STATE V. A.G., FED. (2005) 9 NWLR (PT.931)572
31. In interpreting a document or judgement, the document or judgement must be read as a whole and interpreted in that light with effort being made to achieve harmony among the parts. MBANI V. BOSI (2006) 5 SC (PT. 111) 54.
32. Looking at the Certified true copy of the Judgement of Suit No. ID/1461/90 between Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services, delivered on 29th November 1991 and forwarded to this Court I am satisfied that the decision of the court in Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services, is that the Court had ordered the reinstatement of the Claimant and others and declared that the plaintiffs were still in the service of the Defendants, and the purported dismissal of 3rd January 1975 was null and void and that the plaintiffs be reinstated forthwith into their positions taking into considerations their promotions and other benefits.
33. The position of the law is that a judgement only binds the parties thereto, See A.G. FEDERATION Vs, ANPP (2003) 182@1211 paras B-D Every judgement is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgement itself to be the ground on which it was based OKONJI NGWO & ORS v. RAPHAEL MONYE & ORS (1970) LPELR-1991(SC) and in MADAM ABUSATU AGBOGUNLERI V. MR. JOHN DEPO & ORS (2008) LPELR-243(SC) is a decision given by a court of competent jurisdiction and remains binding on parties to it The decision in suit 10/199/81 of 29th November 1991 must remain binding, on parties to it until set aside i.e. Suit No. ID/1461/90 between Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services, delivered on 29th November, 1991.Iit was also held in NOEKOER v. EXECUTIVE GOVERNOR OF PLATEAU STATE & ORS “It is well settled law, that the judgment of a competent Court subsists and remains binding until it is set aside on appeal. That is not the position in this instant case since the judgment of the trial Court was never set aside. See OJO AJAO & Ors Vs OPOOLA ALAO & Ors  NWLR (pt.45) 802; AMIDA & Ors Vs TAIYE OSHOBOJA (1984)768 at 76/77; ROSSEK v. ACB Ltd (1993)10 SCNJ 20 or  NWLR (Pt. 312) 382; EZEOKAFOR vs EZEILO (1990) 9 NWLR (619) 513; GOMWALK Vs MILAD PLATEAU STATE (1998) 7 NWLR (Pt.558) 413." Per Sanusi, J.S.C. (Pp. 11-12, Paras. E-B); from the foregoing I can state without hesitation that the judgment of a Court and in this case the Lagos State High Court in Suit No. ID/1461/90 between Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services, and Binding has been described in the Online Legal Dictionary Lexico Powered by OXFORD on 05 /05/2020 “2256 00hr “ as involving an obligation that cannot be broken”
34. From the foregoing I can answer questions 1 and 2 in the affirmative. Reliefs 1 and 2 therefore succeed and are consequently granted.
35. With regards to question 3 and 4 Whether, having regard to the extant judgment of the High Court of Lagos State aforementioned, is the Claimant not entitled to his pensions calculated on the basis of the rank of Assistant Controller of Customs on grade Level UPSS 13 with effect from 1/3/93 when he was reinstated by the order of court.
The claimant is asking the court to make a determination as to whether or not he is entitled to be promoted to the Post of Assistant Controller of Customs and in like manner being so entitled should he not be paid his pension and should his pension not be calculated on the basis of an Assistant Controller of Customs.
The case before the Court is that the order for the claimant reinstatement was made on the 29th November 1991 after being wrongfully dismissed on 3rd January 1975, the Claimant was Compulsorily retired. The Claimant claim rest on the point that but for his wrongful dismissal he would have progressed to the rank of Assistant controller. It is pertinent at this stage to point out that the Claimant is not challenging his compulsorily retirement but the fact that he was not properly placed following the verdict in in Suit No. ID/1461/90 between Clifford Ezeozue & 2 Ors Vs. Customs, Immigrations and Prisons Services.
More to the point, the Court had ordered and I quote; - “…I declare that the plaintiffs are still in the service of the Defendants, and the purported dismissal of 3rd January 1975 in Exhibits 1, 5, and 8 are ineffective, null and viod and that the plaintiffs be reinstated forthwith into their positions taking into considerations their promotions and other benefits.
36. I find that during the claimants employment promotions were governed by Section 7: Rule 020701 - Rule 020708 of the Public Service Rules 1990 which provides for the various stages and conditions for promotion in the Public Service, Rule 020701 givers approval power for promotion of GL.07 - 14 to the Ministry/Extra- Ministerial Office and sets out the minimum number of years that an officer must spend in a post before being considered eligible for promotion and states that Promotions shall be made strictly on the basis of competitive merit from amongst all eligible candidates: and that in assessing the merit of officers, their records of performance or efficiency in lower grades, their potential for promotion, Seniority and a generally satisfactory record of conduct shall be considered. Rule 20702 – provides the appropriate Procedure to be taken which includes compiling a list of all eligible candidates to be considered; on the basis of the job requirement or set of criteria established for the post, e.g. qualification/experience, age, training, performance, etc. Rule 020703 — provides for the appropriate committee to interview, consider and recommend the officers to be examined as to the suitability which culminated in an offer of promotion to existing vacancies.
37. Rule 020704 — sets out the effective date of all promotions. Rule 020705 – provides that Permanent Secretaries/Heads of Extra- Ministerial Offices shall fill the junior vacancies on posts on GL. 06 and below on the recommendation of the Junior Post another Staff Committee. Rule 020706 – provides that Officers on approved Leave of Absence, Secondment, approved Leave with Pay, Special Assignment, etc., shall not be granted notional promotion. Such officers shall sit for promotion interviews/examinations at designated centres nearest to them and Rule 020707 – deals with officers who have passed the compulsory examination /interview for said promotion.
38. The Supreme Court had on the question of whether the court will grant relief of promotion to employee, in the case of Abenga V B.S.J.S. C. 137 held that promotion is neither automatic nor as of right, and as such, the appellant’s relief for promotion failed, even though the appeal was unanimously allowed. R.D. Muhammad JCA in delivering the lead judgement
39. The position of the law is that Promotion is neither automatic nor a right; it is a privilege. See ABENGA V. BENUE STATE JUDICIAL SERVICE COMMISSION  14 NWLR (PT. 1000) 610. Accordingly, it will be invidious for the Court to foist on an employer a person who should occupy a particular position. See SHELL PET. DEV. CO. V. NWAKA  10 NWLR (PT. 720) 64. The only exception is where the denial of promotion is vindictive, mala fide, and so qualifies as unfair labour practice. See MRS. ABDULRAHAMAN YETUNDE MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR  35 NLLR (PT. 103) 40 NIC.
40. What all that regulation and case law means is that the promotion of an employee is never taken for granted, being neither automatic, a right or by efflux of time. there are set down criterion on which the promotion of a public servant must be based. in the instant in an every case where a court grants a reinstatement and an order that the claimant shall not be deprived of his due promotion etc, does not mean that the claimant would walk back into his former office and instantly be upgraded to the post he would have been had he remained in active service and successfully undergone all the due promotion exercises. I am also aware that vacancies and federal character al come into play in considering candidates. I hold that the conditionalities must have been fulfilled.
41. The Court is not readily disposed to interfere in the promotion of staff or to determine which member of staff should occupy a particular or any particular position in an employer’s establishment that would be invidious See SHELL PET. DEV. CO. V. NWAKA [supra]
42. The claimant in this suit was reinstated in 1992 and compulsorily retired in 1995, within the intervening years the claimant would have been expected to sit for the required promotion exam, fulfilled all the annual performance evaluation forms reports for all the missing years and would have passed the promotional exam or interview as the case may be.
43. It is only in a situation where the claimant has shown the court that there was a promotional exercise within the years he was in office to which he was qualified or he had passed and the claimant was denied promotion that this court can step in and make the necessary orders See MRS. ABDULRAHAMAN YETUNDE MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD & ANOR [supra].in fact the claimant has not presented to this court any evidence as to his position when he was dismissed, the scheme of service of the organization or any evidence as to how many grade levels(How many promotional exercises) he would be expected to undergo to be at the rank of Assistant Controller and the number of year of interval between each post for this court to make the determination as to the existence of an entitlement or not.
44. In the instant case the Claimant has not satisfied this court that his circumstances amount to an unfair labour practice for this court to go against the age long legal precept of non- interference in promotions
45. In the light to the above I answer questions 3 and 4 in the negative and as such I am unable to grant reliefs 3 - 11, these reliefs therefore fails.
46. For avoidance of doubt the claimant case only succeeded in reliefs 1 and 2.
1) IT IS HEREBY DECLARED that the Defendants are bound by the judgment of the High Court of Lagos State sitting in Ikeja in Suit No. ID/1461/90 without power to pick and choose which of its terms that it will obey and which not to obey.
2) IT IS HEREBY DECLARED that save for an order of court, the Defendants, particularly the 1st Defendant, by itself or through any of its organs cannot vary the judgment of the said Lagos State High Court in Suit No. ID/1461/90 to the detriment of the Claimant.
47. This is the Court’s judgement and it is hereby entered accordingly.
HON. JUSTICE E.N. AGBAKOBA