IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE R.B.HAASTRUP
DATE: MARCH 17, 2016 SUIT NO. NICN/MKD/19/2013
James Ahungwa Agbange………………………………………..Claimant
1. The Government of Benue State
2. The Attorney-General, Benue State Defendants
Emmanuel Kakwagh, with T.M. Nule, for the claimant
C.M. Oji (Miss.), for the defendants
This is a transferred matter from the High Court of Justice of Benue State, Makurdi Judicial Division. This matter was referred to this court on 27th February 2013, following the court order dated 15th February 2013. The action is dated and filed the 21st September 2012, for the following reliefs against the defendants:
1. A declaration that having been employed by the 1st defendant with effect from 1/10/1975, the thirty five years period of service of the plaintiff (hereinafter referred to as claimant) expires with effect from 1/10/2010 as such the retirement of the claimant by the 1st defendant prior to this date is premature, wrong, illegal and of no effect whatsoever.
2. A declaration that having retired from service with effect from 1/10/2010, the plaintiff is entitled to be paid his salary up to the month of September 2010, his leave grant for the year 2010 as well as the full payment of his pension and gratuity with effect from the said 1/10/2010.
3. An order for the 1st defendant to pay the plaintiff the sum of N245, 291.00 being his net salary for the months of May, June, July, August and September 2010 (five months) which the 1st defendant withheld, at the rate of N49, 058.11 per month.
4. An order for the 1st defendant to pay the claimant the sum of N45, 795.18 as his leave grant for the year 2010 at the rate of 10% of his annual basic salary of N457, 951.8.
5. An order for the 1st defendant to pay the claimant the balance of N15, 965.62 per month with effect from the month of October, 2010 up to date, being the balance from the sum of N44, 839.62 the claimant is entitled to per month as pension at the rate of 80% of his gross pay of N672, 594.24, out of which amount the 1st defendant under pays the claimant only N28, 874.00.
6. An order for the 1st defendant to pay the claimant the sum of N2, 017, 782.72 as the claimant’s gratuity being 300% of the claimant’s gross pay of N672, 594.24.
7. N5, 000, 000.00 general damages for the inconveniences, trauma and cost occasioned the claimant by his purported retirement than the due date.
8. Such other reliefs as the curt may deem necessary to grant in the circumstances.
The defendant in reaction, entered appearance and filed processes in defence vide the motion filed on 29/10/2013; to which the claimant equally reacted to by his reply filed on 26th November 2013.
The case of the claimant from the statement of claim of 21st September 2012 is that he was a civil servant attached to the Benue State Bureau of establishment and Management services as a casual staff. His employment dates back to 1/12/1972. He was later employed as clerical assistant on permanent and pensionable employment on Grade Level 3 effective 1/10/1975, vide letter of 28/2/76, with his acceptance of same vide letter of 11/3/1976. Upon his confirmation he earned his promotion as a clerical officer grade level 4. His schedule was to fill and submit Aper Forms (Annual Performance and Evaluation Report and CSR (Confidential Staff Report), which he submitted up to 1989. The claimant in the course of his duties, mistakenly entered 1/12/1972, the date of his casual employment as his date of employment, instead of 1/10/1975 which is his date of permanent and pensionable employment. To claimant, the error was corrected in all other documents, and he maintained the correct date of his employment as 1/10/1975.
He went on that his due date of retirement is 1/10/2010 from his date of commencement of work on 1/10/1975 when he would have put in 35 years in service. That he was compulsorily retired by the approval letter of 1/12/2009 before his due date, when the defendant decided to use the 1/12/1972 as his date of employment, and the retirement was effective from 1/12/2007 which the claimant contested vide the letter dated 24/3/2010. His premature retirement was later reversed by the Civil Service Commission, which indicated his period of service to take effect from 1st October 1975, with the date of leaving the Government service as 1st October 2010, and a letter with certificate of service issued to that effect dated 3/12/2011. His record of service was then compiled and sent to the 1st defendant’s Bureau of pensions with recommendations for payment of his pension, gratuity and 5 months’ salary which was withheld by the 1st defendant. To the Bureau, the claimant’s retirement date was 1/12/2007 from his date of employment of 1/12/1972; that he had overstayed in office by two years and one month, and his retirement benefits were then computed based on his 2006 salary and 2007 retirement date. Based on the computation from the office of the Auditor General, the claimant was to be paid N1, 299, 348.00 as gratuity, but the sum of N1, 511, 344.00 was directed to be deducted from the amount for the period December 2007 to April 2010, which the defendant alleged the claimant had overstayed in office; thereby leaving the claimant with nothing to take home than being indebted to the defendant in the sum of N211, 996.00, which according to the defendant was a shortfall from the N1, 511, 344.00 payable to the defendant by the claimant.
He went on that at the time of his premature retirement, he was on Grade Level 14 and entitled to leave grant which was not paid to him, on grounds that he ought to have retired on 1/12/2007. To the claimant, his employment takes effect from 1/10/1974 and by 1/10/2010 he would have put in thirty five years in service; and ought to be paid his leave grant, salary and retirement benefits, which were either not paid by the 1st defendant or he was underpaid; hence this claim against the defendants. The claimant relied on the following documents tendered in evidence:
1. Agreement letter dated 11/3/1976 – Exhibit CW1A
2. Benue State Government Staff Identity Card No. 685, bearing James
A. Agbange – Exhibit CW1B
3. Approval of Retirement from Benue State Civil Service Commission dated 12/2/2010 – Exhibit CW1C
4. Certificate of Service of Mr. Agbange A. James dated 12/2/2010 Exhibit CW1D
5. Letter of complaint by claimant dated 24th March 2010 – Exhibit CW1E
6. Certificate of Service dated 27th July 2010 – Exhibit CW1F
7. Approval of retirement from Benue State Civil Service dated 3rd December 2011 – Exhibit CW1G
8. Certificate of service dated 3rd December 2011 – Exhibit CW1H
9. Computation for payment of retirement /death benefits – Exhibit CW1I
10. Benue State Government pay slip dated 5/12/2010 – Exhibit CW1J
The case of the defendants by their statement of defence filed on 29/10/2013 is that the claimant was a civil servant attached to the Benue State Bureau of Establishment and Management services under the office of the Head of Service of the 1st defendant. To the defendant the actual retirement date of the claimant was 1st December 2007 and not 1st October 2010 as claimed by the claimant. That the claimant was employed as a casual staff with effect from 1/12/1972 by the Ministry of Works, Divisional Engineer’s office Otukpo, and was on daily pay. The defendant stated that the claimant became absorbed into the permanent establishment following the Federal Ministry of Establishment circular no. B.56792/S.II/V/594 dated 1st May 1978; and the claimant as a casual staff by virtue of the circular became a clerical assistant with the ministry of works in Otukpo; and later offered a pensionable appointment dated 28/2/1976 to take effect from 1/10/1975. To defendant, the claimant was already working prior to 1/10/1975. The claimant was confirmed on 1/5/1979, which letter equally gave the date of claimant’s first appointment as 1/12/1972. That the claimant in 1975 decided to change his date of 1st appointment, which he had always maintained as 1/12/1972 to 1975. The defendant went on that by the letter written by claimant dated 11th December 1978 on application for staff recruitment, claimant stated he had worked for the Ministry of Works for six years; it then his first appointment could not have been 1975.
According to the defendants, the claimant backdated his year of 1st appointment to 1/10/1975 instead of 1/12/1972, which fact was unknown to the screening committee. To the defendants, for the purpose of retirement, the date of computation of period of service of a civil servant in Benue State is the date of 1st appointment. That although the civil service did approve the voluntary retirement of the claimant from service effective from 1/12/2007; the civil service commission did erroneously state the claimant’s year of retirement from service as 1/12/2010 instead of 1/12/2007, which was the claimant’s due date of retirement. To the defendant, the claimant was employed with effect from 1/12/1972 and not 1/10/1975, and ought to have retired on 1/12/2007. The defendant went on that the claimant is not entitled to the reliefs as claimed in paragraph 32 of his statement of claim, urging the court to dismiss same. The defendant then relied on the following documents in defence:
1. Letter of the claimant dated 11th December 1978, addressed to the Permanent Secretary Establishment & Training, Makurdi – Exhibit DWA
2. Circular Ref. No. B 56792/S.II/Vol.V/594 dated 1st May 1978 – Exhibit DWB
3. Confirmation of Appointment dated 24th June 1982 – Exhibit DWC
4. Offer of Permanent and Pensionable Appointment dated 28th February 1976 – Exhibit DWD
5. Confidential Staff Report of 1-1-76 to 31-12-1976 – Exhibit DWE
6. Confidential Staff Report of 1-1-81 to 31-12-1981 – Exhibit DWF
7. Benue State Teaching Service Board Confidential Staff Report of 1-1-89 to 31-12-89 – Exhibit DWG
8. Confidential Staff Report of 1-1-90 to 31-12-90 – Exhibit DWH
The trial in this suit commenced on 19th March 2015, and the claimant testified on his behalf as lone witness of the claimant (CW); and closed his case same date after his cross examination. There was however no re-examination taken.
The defendant on the other hand, opened her case for defence on 12th November 2015, with lone witness Mrs. Abakume Bibiana Doom, a staff of the Office of the Head of Service in Makurdi, who testified on behalf of the defendant as (DW). The defendant witness concluded evidence after cross examination, and case was closed same date. There was no re-examination of the DW.
Thereafter, counsel filed their final written addresses as directed by the court. The defendants’ final written address is dated 22nd January 2016 and filed 26th January 2016, with a lone issue framed for determination thus:
“Whether considering the totality of evidence adduced before the Honourable Court the claimant has proved his case on the balance of probabilities over that of the defendants in this suit.
Arguing the issue counsel submitted that the claimant was employed as a casual staff with the Ministry of works in Otukpo on daily pay as Clerical Assistant, before he was offered a pensionable employment on 28/2/1976 to take effect from 1/10/1975. By this, the claimant was already working prior to 1/10/1975, referring to Exhibit DWA. That the claimant had consistently retained the employment date of 1/12/1972, until 1990 when he changed his 1st appointment date to 1975, referring (Exhibit DWE – DWH). To counsel, by Exhibit DWA, the claimant had worked in 1978 as a Clerical Assistant for six (6) years with the Ministry of Works; as a result his date of 1st appointment could not have been 1975. That the claimant misrepresented facts, thereby causing the Civil Service Commission to erroneously state the claimants’ year of retirement from service as 1/10/2010 instead of 1/12/2007, which was the due date for his retirement. He went on that a contract of employment connotes a contract of service or apprenticeship, whether express or implied, which could be orally or in writing. It is not disputed that the claimant was employed by the defendant as a casual staff on 1st December 1972, referring to paragraphs 4 & 5 of the claimants’ statement of claim and Iyere vs. BFFM (2009) Vol. 37 NSCQLR @ 290. That this evidence remained unchallenged and the court must accept same, citing Egharevaba vs. Oosagie (2010) Vol.180 LRCN 75 @ 99 FK.
He continued that the confidential staff report forms of the claimant further confirms his first appointment date as 1/12/1972. That the onus of proof is on a party to adduce all evidence when presenting his case, as address cannot take the place of evidence. He continued that the claimant is bound to fail in his case for his failure to challenge or contradict Exhibits DWA – H. It is trite that burden of proof will lie on a party who fails in the case where no evidence is given, citing Nwavu & Ors vs. Okoye & Ors (2009) Vol. 170 LRCN @ 107, @ 132JJ & 133A, Egharevba vs. Osagie (Supra). To counsel, the claimant’s case cannot be couched as one of wrongful termination or retirement, particularly where a civil servant as in the present case has his appointment terminated in accordance with the Civil Service Rules. To counsel, the claimant in this case has no valid cause of action against the defendants. That the claimant was rightly retired having attained the mandatory 35 years required in service , citing Udegbunam vs. Federal Capital Development Authority (2003) FWLR (Pt. 165) @ 434, 443, Para. G.
He continued that the position of the law is that where an employer reties a public officer on grounds of attainment of mandatory 35 years of service, the burden is on such an employer to prove to the satisfaction of the court that such a retirement was done in accordance with the law, referring NEPA vs. Eboigbe (2009) 3 FWLR (Pt. 478) @ 5417 @ 5434 A-C. That the claimant in the instant case was duly retired in 2007, having attained the mandatory retirement 35 years in the service of Benue State Government since 1972. That the date of computation of the period of service of the claimant for the purpose of retirement is the date and year of 1st appointment and not when the claimant was issued a permanent and pensionable appointment letter. To counsel, the claimant’s voluntary retirement was approved by the Civil Service Commission effective 1/12/2007, that the later letter issued by the Civil Service Commission, with the claimant’s retirement date given as 1/12/2010 was issued in error. That this was what has necessitated the stoppage of the claimant’s salaries from April 2010 upon discovery by the defendants that the claimant had overstayed his period in service. As a result, the claimant is therefore not entitled to any of the reliefs as claimed against the defendants, as the claimant is unable to substantiate his claims’ by any evidence, and his claims is an attempt of gold digging. Counsel then urged the court to dismiss the claim in its entirety.
The claimant in reaction formulated the following three issues for the determination of this court, to wit:
1. Whether it is the Bureau of Pension of the 1st defendant or her Civil Service Commission, which has the power to determine issues of employment and the duration thereof.
2. Whether or not the claimant overstayed in the service of the 1st defendant.
3. Whether the claimant has proved his complaint as required by law to be entitled to judgement.
In his argument on 1ssue no. 1, counsel submitted that it is the 1st defendant’s Civil Service Commission only without any other body including the Bureau, that has the exclusive preserve over issues of employment and the duration thereof, referring the court to Chapter 2 section 1 Rule 21 Benue State Civil Service Rule, which counsel reproduced thus:
“Appointment to public offices in the Benue State Civil Services is made on the authority of the Benue State Civil Service Commission.”
Counsel then submitted that the DW under cross examination did admit that the claimant was retired from the service of the 1st defendant by the Civil Service Commission. He then urged the court to resolve this issue in favour of the claimant.
Regarding issue no. 2, counsel submitted that by Exhibits CW1A and DW1D of 28/2/1976 (offer of permanent and pensionable appointment), it is admitted by both parties that employment of persons in the service of the 1st defendant including the claimant, is evidenced by an appointment letter which shows the date among other things of nature of the employment/appointment That Exhibit DW1D, paragraphs 1 & 2 clearly states the nature of the claimant’s employment reproduced thus:
“I am directed to inform you that approval is hereby given to appoint Mr. James Agbange as Clerical Assistant at a salary of N900 per annum in scale GL. 03 with effect from 1/10/1975. I enclose herewith letter of offer of permanent and pensionable appointment in triplicate and I am to ask that the original and duplicate when duly completed by Mr. Agbange should be returned to me together with the documents mentioned in its sub-paragraph 2 (i) and 2 (ii) to enable me gazette his appointment.”
Counsel continued that Exhibits CW1B (staff identity card) and DWD (Offer of permanent and pensionable appointment) were tendered and admitted in evidence without objection by the defendants. To counsel, these exhibits establishes the facts regarding the date of employment of the claimant in the service of the 1st defendant as 1/10/1975 and not 1/10/1972. Furthermore, Exhibits CW1G (Approval of retirement from Benue State Civil Service) and Exhibit CW1H (Certificate of Service) further supports the claimant’s argument that the claimant’s effective date of employment in the service of the 1st defendant is 1/10/1975, with termination date ass 1/10/2010, when the claimant would have put in the mandatory 35 years in the service of the 1st defendant in line with Exhibits CW1A & CW1D. To counsel, Exhibit CW1G as stated therein supersedes any other letter relating to the claimant’s retirement. He went on that Exhibits DW1E, F, G and H relied upon by the defendants to the effect that the claimant’s employment date is 1/12/1972 cannot be used as a yardstick for claimant’s date of employment, that they were written seven years after the claimant’s employment, urging the court to so hold.
Counsel reiterated that the claimant has established the date of his employment by virtue of Exhibits CW1B (staff identity card), CW1A & DW1D (claimant’s appointment letter), and this require therefore, no further proof, referring section 123 Evidence Act, 2011. Counsel further referred the court to the notice of preliminary objection (paragraph 5. (a) of the affidavit in support) dated and filed before this court on 17/12/2013, which confirms the date of retirement of the claimant from service of the 1st defendant as 2010. That the court is entitled to look at same, as it forms part of the records of the court, citing Chief S.O. Agbereh & Ors vs. Dr. Anthony Mimra & Ors (2008) 2 NWLR (Pt. 1071) 378 @ 385. He concluded on this issue urging the court to hold that the claimant’s date of employment is 1/12/1975, with his due date of retirement as 1/10/2010.
Arguing issue no. 3, he submitted that the claimant has proved his case to be entitled to judgement against the defendants, having adduced evidence in support of his claims as per paragraphs 31 & 32 of his statement of claim, and 29 of his written deposition on oath. That by Exhibits DW1D, CW1G and CW1H, the claimant was employed in the service of the 1st defendant on 1/10/1975, to terminate on 1/10/2010, when he would have put in 5 years in service of the 1st defendant. He went on that the issue of date of claimant’s employment and duration has been finally laid to rest by Exhibits CW1G, DW1D and CW1G and CW1H; therefore the defendants cannot withhold the claimant’s salaries, leave grant for year 2010, pension and gratuity as per paragraph 32 of statement of claim, on ground that the claimant has overstayed in the service of the 1st defendant, urging the court to so hold.
In conclusion, counsel submitted that the claimant has proved his case against the defendants, having discharged the evidential burden placed on him by law to be entitled to judgement as per the reliefs sought in paragraph 32 of his statement of claim, urging the court to so hold.
No reply was filed on points of law.
From the issues formulated by the counsels in their addresses, the court has framed this lone issue: whether or not the claimant has proved his case to be entitled to judgement in this action. The main issue in dispute here is regarding the date of employment of the claimant, i.e. whether the period of employment of the claimant dates back to the period he was employed by the defendant as a casual staff effective 1/10/1972, with due date for retirement as 1/10/2007 or from the date of his letter of offer of appointment effective 1/10/1975, when his due date for retirement would then be 1/10/2010.
The case of the claimant is that his date of employment is as confirmed by the Civil Service Commission as 1/10/1975 with the terminal date of 1/10/2010. He relied particularly on Exhibits CW1B, CW1G, CW1H (claimant’s identity card, approval of his retirement from Benue State Civil Service, Certificate of Service and defendants’ Exhibit DW1D which is the letter of permanent pensionable appointment). These documents confirm date of claimant’s employment as 1/10/1975 and retirement date as 1/10/2010. This is what is now being contended by the defendants, to the effect that the claimant has overstayed in service, having misrepresented facts which caused the defendants to erroneously record his 1st appointment date as 1/10/1975 instead of 1/10/1972.
The defendants relied on the claimant’s confidential staff reports, for which the claimant had consistently maintained the 1st appointment date of 1/10/1972 but only later on in 1990 changed his appointment date to 1/10/1975. The defendants upon discovery that the claimant had overstayed in service, the defendants immediately stopped the payment of his salaries from April 2010. The grouse of the claimant is that his salaries, leave grants, gratuity were either paid or withheld with deductions made from his various entitlements paid, for the reason that he was indebted to the Government.
It is worrisome here that the same body or authority would be found issuing same documents with conflicting dates regarding the due date of retirement of the claimant from service. It is most absurd and unfortunate that such are allowed to thrive in the Civil Service. My reference here is to Exhibits CW1C and CW1G; these are both approvals of retirement from Benue State Civil Service, respectively dated 12/2/2010 and 3/12/2011 in respect of same person (claimant) in present case. The former letter seem to give the voluntary retirement date of the claimant with effect from 1/12/2007, which is the position maintained by the defendants; while the later gives 1/10/2010, which position is maintained by the claimant. Interestingly, paragraph 7 of the letter of 3/12/2011 (Exhibit CW1G) states thus: “This letter supersedes any other letter relating to the officer’s retirement, please.” This is what the claimant has relied solely upon to the effect that his termination date from service is effective 1/12/2010 and not 1/12/2007. In addition also, are the various certificates of service issued in favour of the claimant (Exhibits CW1D, CW1F and CW1H), with Exhibits CW1F & CW1H all bearing the date of 1st appointment of the claimant as 1/10/1975, which is contended by the defendants. The other certificate of service (Exhibit CW1D) bears the date of 1st appointment of the claimant as 1/12/1972, which is contended by the claimant.
Having thoroughly examined these documents in evidence, I think what ordinarily should be applicable, where such an ugly incidence as this arises, such as conflicting employment dates, the appropriate way of resolving this issue in my firm view is by recourse to the service records of the staff concerned. The claimant admitted under his cross examination that he had worked as a casual staff with Benue Plateau in 1972 before the creation of Benue State in 1976. By Exhibit DWA, which is a letter written by the claimant to the Permanent Secretary, Establishments & Training, Cabinet Office, Makurdi; titled “Application for recruitment of staff for training as clerical officer –Accounts”. In paragraph 2, the claimant stated that he had worked for 6 years in the Ministry of Works in Makurdi. The letter is dated 11th December 1978. If he had worked for 6 years prior to the date of this letter (Exhibit DWA), then it simply means his employment with the Civil Service dates back to 1972, which agrees with the defendants’ position here that the claimant’s 1st appointment date is 1/12/1972.
The claimant worked as “Clerical Assistant”; by that designation, he could not have been a casual staff within that period of time. Furthermore, regarding claimant’s confidential staff reports, i.e. Exhibits DWE, DWF, DWG and DWH, this shows the record of employment of the claimant. I find here that Exhibits DWE, DWF, DWG all bear 1/12/1972 as the date of 1st appointment of the claimant, while Exhibit DWH has the claimant’s date of 1st appointment as 1/10/1975 which was records for the period of 1/1/1990 to 31/12/1990. It is thus the inconsistencies in the last confidential staff report which gives room to doubting and disbelieving the evidence adduced by the claimant here; to the effect that his date of 1st appointment is 1/12/1975. As I do agree with the defendants’ counsel in his submission, that it is the date of 1st appointment that is applicable for the purpose of computation of retirement benefits and nothing more. I add that it is from the date of 1st appointment that one begins to count the due date of retirement; which may be the mandatory 35 years in service or 60 years of age, whichever comes first. For the claimant in the present case, if 35 years are added to the date of his 1st appointment which is 1972, it gives a total of 2007. It then means his due retirement year will be 2007, which is the position maintained by the defendant, which has thus necessitated the computation of the claimant’s retirement /death benefits vide Exhibit CW1I.
The evidence adduced by the claimant witness here is not worthy of belief or credit, as I find same as being so exaggerated and an affront to reason and intelligence; in my firm view no credibility ought to be accorded to it. The claimant witness in this case has contradicted himself by the conflicting documentary evidence adduced. It is settled law that such an evidence must be regarded as unreliable and must be rejected, as the court cannot safely rely on same. See Osadim vs. Taiwo (2010) 6 NWLR (Pt. 1189) 155 @ 180, Paras C-E, Adebayo vs. Ighodalo (1996) 5 NWLR (Pt. 450) 507 @ 516, Paras D-E, Fatunbi vs. Olanloye (2004) 12 NWLR (Pt. 887) 229 @ 247, Para C.
The position of the law is that it is the documentary evidence that is more reliable and used as a hanger to test the credibility of oral evidence. Since Exhibits DWA, DWE, DWF, DWG tendered by the defendants remain unchallenged and uncontradicted, they remain good and credible evidence which I find reliable in the circumstance for the purpose of resolving the issue in dispute as to the date of 1st appointment of the claimant in this action. See Okike vs. L.P.D.C. (2005) 15 NWLR (Pt. 949) Page 471. Exhibits DWE, DWF and DWG, and CW1C ( letter of approval of retirement from service and confidential staff reports of the claimant) have all disclosed convincingly the date of 1st appointment of the claimant, which remains 1st October 1972 with the due date of retirement from service as 1st December 2007; as I do so find and hold.
From the totality of evidence placed before this court, the claimant in this action has failed to prove his case by credible evidence. Since it is the claimant that asserts and desires this court to give judgement in his favour, he is expected to prove his case to satisfaction and will succeed or fail upon the quality of evidence he presented See Sections 131, 132 and 133 (1) of the Evidence Act 2011 (as amended). See also N.I.IA. vs. Anyafalu (2006) ALL FWLR (Pt. 325) 141 @ 162. The claimant’s evidence before this court is so unreliable to sustain his reliefs as claimed in paragraph 32 of his statement of claim. The reliefs therefore, fail in their entirety. The case in the circumstance is hereby dismissed.
Judgement is entered accordingly.
Hon. Justice R.B.Haastrup