IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT-HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT-HARCOURT
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE F. I. KOLA-OLALERE
Date: November 18, 2020
Suit No: NICN/PH/44/2018
Mr. Deede W. Baede ---------------------- Claimant
1. Rivers State Civil Service
2. Head of Service, Rivers State --------------------- Defendants
3. The Hon. Commissioner, Rivers
State Ministry of Culture & Tourism
K.L. Nwinee for the Claimant
No Counsel for the Defendants
1. On April 4, 2018 the claimant filed this complaint against the defendants seeking for the following reliefs:
i. A Declaration that the purported act of the Defendants vide their letter dated 15th May, 2017 to slight and alter the Claimant’s natural and statutory date of birth from 28/12/1958 to 28/12/1957 in total disregard of his Statutory Declaration of Age and other vital particulars in their possession by virtue of his contractual relationship thereof is unlawful, wrongful, illegal, ultra vires, null and void against the rules of natural justice and of none effect whatsoever.
ii. A Declaration that the purported act of the Defendants to deliberately stop and retire the Claimant from the employ of the Rivers State Civil Service with effect from 28/12/2017 on ground of age instead of 28/12/2018 vide their letter dated 15th day of May, 2017 contrary to his sworn Declaration of Age of 28/12/1958 and Rule 020810-1 of the Public Service Rules, 2008 is unlawful, wrongful, illegal, ultra vires, null and void against the rules of natural justice and of none effect whatsoever.
iii. A Declaration that the nauseating letter of 13th March, 2018 mandating the Claimant to vacate office within seven days for pursuing a legitimate claim is unlawful, ultra vires, null and void against the statute regulating the service contract of the Claimant.
iv. An Order setting aside the Defendants letter dated 15th day of May, 2017 purporting to stop the salary payment of and retire the Claimant from the employ of the Rivers State Civil Service with effect from 28/12/2017.
v. An Order of injunction restraining the Defendants or their agents from stopping the salary payment of and or retiring the Claimant from the employ of the Rivers State Civil Service until his due compulsory retirement age of 28th day of December, 2018 evidenced by his Statutory Declaration of Age and guaranteed by Rule 020810-1 of the Public Service Rules, 2008.
vi. An Order re-instating the Claimant’s employment with the Rivers State Civil Service forthwith and restoring to him all other rights perquisites and entitlements of his grade/office or in the alternative.
vii. An Order of payment to the Claimant, the total of all remunerations due to him up till date and including 28th day of December, 2018.
viii. An Order directing the Defendants to pay the Claimant 10% interest after judgment on his net salary of N276,961.41k per month spreading through twelve calendar months (i.e. January 2018 – December 2018) until every outstanding salary is finally liquidated.
ix. An Order compelling the Defendants to pay to the Claimant the sum of N20,000,000.00 (Twenty Million Naira) only as special damages for wrongfully withholding the monies and salaries of the Claimant and thereby causing untoward financial and emotional anguish to the Claimant and N5,000,000.00 (Five Million Naira) only as general damages respectively as a result of untold hardship, loss, pain and distress the Claimant underwent as he was wrongfully retired.
x. The sum of N1,000,000.00 (One Million Naira) only as cost of the action.
Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendants did not enter appearance through its counsel neither did they file any process before this court. This notwithstanding; two State Counsel from Rivers State Ministry of Justice appeared for the defendants; they are Femi Idowu and I. R. Mbah. Femi Idowu appeared for the defendants on March 15, 2019; October 9, 2019 & January 29, 2020 while Mrs. I. R. Mbah appeared for the defendants on May 23, 2019 even though they did not enter appearance for the defendants.
2. CLAIMANT’S CASE AS PLEADED
The case of the Claimant from his pleadings is that he was employed by the Rivers State Government on November 1, 1987 as an Accountant and that he was specifically deployed to the Rivers State Council for Arts and Culture. After his confirmation, he had series of promotions as a result of his diligent and commitment duties. He continued that he was appointed as the Acting Executive Director of the Rivers State Council for Arts and Culture and that he was in that capacity till he filed this case in this Court. The claimant further averred that in an attempt to correct the inadvertent computation of his natural and statutory date of birth by the defendants, the defendants wrongly ascribed his date of birth as December 28, 1957 instead of December 28, 1958; and abruptly terminated his employment with the defendants.
3. During the trial, the claimant gave evidence as CW.1 and was discharged from the witness box on May 23, 2019 without being cross examined by the Defendants after several adjournments for them to cross examine him but to no avail. Thereafter, the Court granted several adjournments to enable the defendants enter appearance and defend this case; also to no avail. In line with the provisions of Order 38 Rules 2 (3) & (4) of the NICN (Civil Procedure) Rules, 2017; the Court closed the case of the defendants and directed counsel to the parties to file their final written addresses. Again, counsel to the claimant complied while counsel to the defendants failed to enter appearance neither did they file any process before the court.
4. CLAIMANT’S WRITTEN ARGUMENTS
In the claimant’s Final Written Address, his counsel formulated these issues for determination of this Court:
i. Whether in the event of the failure of the Defendants to defend or show intention to defend this suit, the Claimant can be entitled to judgment.
ii. Whether the purported retirement of the Claimant from the employ of the Rivers State Civil Service by the Defendants is lawful, regular and in accordance with the mandatory retirement age.
iii. Whether from the facts and circumstances of this case as well as the evidence adduced, the Claimant is entitled to the reliefs sought.
5. Arguing issue one; counsel submitted that it is trite that where a Claimant fully satisfies all the conditions precedent for a court to be seized of the requisite jurisdiction to hear and determine an action, such a Claimant is entitled to judgment of the Court upon proving his case. He went on that despite all the hearing notices issued to the Defendants; they made no effort whatsoever to cross examine CW1 and or to defend this case. Counsel submitted that the Claimant having proved his case without any challenge or contradiction from the Defendants, he is entitled to judgment of this Court on the merit without any hesitation in line with Order 38 Rule 2 (1) (3) & (4) of the Rules of this Court; citing also Bello v. I.N.E.C.  8 NWLR (Pt. 1196) 342 @ 369 R. 26.
6. Arguing issue two of whether the purported retirement of the Claimant from the employ of the Rivers State Civil Service by the Defendants is lawful, regular and in accordance with the mandatory retirement age; counsel submitted that the retirement of the Claimant from the employment or service of the Rivers State Civil Service by the Defendants on 28/12/2017 is unlawful, irregular and contrary to the mandatory retirement age stipulated by Rule 020810 (1) of the Public Service Rules, 2008 which says: “The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier”. Counsel referred the court to Exhibits “C1”, “C4”, “C5”, “C7”, “C8”, “C9”, “C11” and paragraphs 4, 5, 7, 10, 11, 12, 14 and 17 of the Deposition of CW1. He submitted that the Defendants completely acted ultra vires of their powers and without recourse to any known rule of Public Civil Service, which regulates the service contract of the Claimant; when they caused Exhibit “C10” to be issued on 13/3/2018 and forcefully ejected the Claimant out of office on 21/3/2018.
7. Counsel further submitted that it is trite law that where unchallenged or un-contradicted evidence by a plaintiff/claimant establishes his claim in terms of his writ of summons/complaint and that evidence is not rebutted by the defendant; the claimant is entitled to judgment and the trial court has a duty to enter judgment in his favour, citing Lanre Adeyemi v. Lan & Baker (Nig.) Ltd.  7 NWLR (Pt. 663) 33 @ 47, paragraphs A-C; Nwabuoku v. Ottih  2 SCNLR 232; Imana v. Robinson  4 & 4 SC 1 and Nigerian Maritime Services Ltd. v. Afolabi  2 SC 79. Counsel noted that the employment of the claimant with the defendant is governed by statutory flavour. However, the Defendants completely failed to comply with the laid down procedure presented by the relevant statute regulating his service contract in the determination of his employment with the Rivers State Civil Service; referring to Rules 020808, 020809 and 020810 of the Public Service Rules, 2008. Counsel also rely on Comptroller-General of Customs v. Comptroller Abdulahi B. Gusau  8 NWLR (Pt. 1598) 353 @ 367-369, RR. 21 – 25 and Longe v. First Bank of Nigeria Plc.  6 NWLR (Pt. 1189) 1 @ 12 & 13 RR. 18 – 20.
8. Arguing issue three of whether the Claimant is entitled to the reliefs sought, counsel referred the Court to Exhibits “C1” to “C11” and submitted that it is the law that a declaratory relief is not granted on the basis of admission but on credible evidence on record. He continued that in the instant case, there is credible evidence, which was not challenged at all by the Defendants. To this end, counsel submitted that all the Exhibits before the court are cogent and credible evidence adduced by the Claimant and that they entitled him to all the reliefs sought; citing Spring Bank Plc. v. Adekunle  1 NWLR (Pt. 1229) 581 @ 584 R 2 OR P. 592 paragraphs G-H; Agbu v. Civil Service Commission Nasarawa State  1 NWLR (Pt. 1229) 544 @ 549, R. 4. Counsel urged the Court to grant all the reliefs of the claimant.
9. COURT’S DECISION
I have gone through the facts of the case and the arguments of the claimant’s counsel in his final written address. From these, I am of the considered view that the followings are to be resolved by the Court on this case:
i. Whether or not the retirement of the Claimant from the employ of the Rivers State Civil Service by the Defendants is lawful, regular and in accordance with the mandatory retirement age provision.
ii. Whether or not the Claimant is entitled to: his salaries, general damages and to cost of this action.
10. By way of making decisions on some preliminary issues in respect of this matter, it is worthy of note that the counsel to the defendants in this case did not enter appearance neither did they file any defence process before this court throughout this proceedings; notwithstanding that two Rivers State Counsel appeared for the defendants four times in this case. These State Counsel are: Femi Idowu from Rivers State Ministry of Justice; he appeared on March 15, 2019; October 19, 2019 and January 29, 2020 while Mrs. I. R. Mba also from Rivers State Ministry of Justice appeared separately for the defendants on May 29, 2019. The Court allowed the claimant to proceed with his case bearing in mind the provision of Order 38 Rule 2 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. The claimant gave his evidence as C.W.1 on November 28, 2018 and adjourned to January 30, 2019 for cross examination. On March 15, 2019 Femi Idowu appeared and confirmed that he had not entered appearance because he was coming into the case for the first time; the Court obliged him another adjournment to enable him do the needful.
11. Even though counsel from Rivers State Ministry of Justice appeared for the defendants four times in this case, neither of them enter appearance, file any defence process nor cross examine the claimant on the evidence in chief he gave on November 28, 2018. All together, the Court granted nine adjournments to enable the defendants enter appearance and defend this case but they did not avail themselves these opportunities. Pages 1 to 21 of the proceedings’ file on this case contain all the stated adjournments and the reasons for same. Order 38 Rule 2 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 States that:
Where a cause fixed for hearing is called and the Claimant appears in Court but the Defendant is absent in Court and has not filed any defence to the claim in accordance with these Rules, the Claimant shall be entitled to judgment as far as he can prove his case.
12. In proofing this case; the claimant testified by adopting his written statement on oath. He also frontloaded and tendered Eleven documents in evidence as Exhibits as listed and frontloaded at pages 24 to 89 of the Court’s record. Exhibit C.5 in this case is titled “Protest Against Wrongful Computation of Date of Birth”. It is dated February 21, 2017; authored by the claimant and addressed to the Head of Service, Rivers State Government, Port-Harcourt. In paragraph 4 of this Exhibit, the claimant complained to his employer that his date of birth was inadvertently computed as December 28, 1956 instead of December 28, 1958. In paragraph 5 of Exhibit C.5, the claimant continued that his retirement year was 2018 by age or in year 2022 by years of service. The claimant supported this protest with copies of his Statutory Declaration of Age of 1982, which he states that he gave to the defendants when he was employed in 1987 and his letter of employment of October 14, 1987. These two documents are Exhibits C.4 and C.1 respectively in this case and they are at pages 26 and 32 of the record.
13. Exhibit C.4 is the Statutory Declaration of Age of the claimant and it is at page 32 of the record. It was sworn to at the Chief Magistrate Court Registry Bori on April 16, 1982. Paragraph 2 of this Exhibit states that the claimant, Deede Waribor Baede was born on December 28, 1958 at Baen in Bori Local Government Area of Rivers State. Furthermore, in the claimant’s identification card at page 51 of the record, his date of birth is stated as 28-12-1958. A copy of the Data page of the claimant’s International Passport issued on July 19, 2011 states that the claimant’s date of birth is December 28, 1958; see page 52 of the record. Again on the copy of the Verification Data of the BVN number of the claimant at page 53 of the record, his date of birth is stated as 28/12/1958. All these three documents are attached to Exhibit C.7 at page 40 titled “Re: Reinstatement” dated August 28, 2017 from the claimant to the second defendant, the Head of Service, Rivers State Civil Service.
14. However, in paragraph 1 of Exhibit C.6 titled: “Reinstatement” and dated May 15, 2017; the defendants conveyed to the claimant, their approval of December 28, 1957 as his date of birth based on his protest letter, Exhibit C.5. No reason is stated in Exhibit C.6 for chosen December 28, 1957 as the claimant’s date of birth instead of December 28, 1958 he requested for and backed up with his Statutory Declaration of Age in Exhibit C.5. The defendants did not deny receiving Exhibit C.4 from the claimant as evidence of his age when he was appointed or employed. They also did not deny receiving Exhibit C.7 together with all the attached documents. In the absence of any reason at all for unilaterally changing the date of birth of the claimant from December 28, 1958 to December 28, 1957 by the defendants; I hold that it is illegal for the defendants so change the claimant’s date of birth as they did in this case. Consequently and based on the contents of Exhibit C.4, the claimant’s identification card, the claimant’s International Passport and the Verification Data on the claimant’s BVN number; a copy each of which is attached to Exhibit C.7 before the Court; I further hold that the date of birth of the claimant is December 28, 1958.
15. By his evidence before the court, the claimant substantiates that he was employed by the Rivers State Government on November 1, 1987 and that prior to that date; he had done his Statutory Declaration of Age in 1982. He went on to prove that he gave his said Statutory Declaration of Age to the Rivers State Government (his employer) as the evidence of his age when he was employed by them in 1987. The Claimant confirms that based on the wrong stated date of his birth, the defendants abruptly determined his employment and compulsorily retired him via Exhibit C.6. He continued that through their letter, Exhibit C.10 before the Court; the defendants also directed the claimant to vacate his office.
16. In paragraph 3 of Exhibit C.6 at page 39 of the record, the defendants inform the claimant to note that his statutory retirement is with effect from December 28, 2017. By paragraph 4 of this exhibit, copies of the exhibit were stated to be endorsed to the Chairman, Civil Service Commission, Permanent Secretary, Establishments, Training and Pension Bureau, the Accountant-General, Ministry of finance, the State Auditor General, Senior Special Assistant – ICT and the Computer Unit and to the Office of the Head of Service for their information and necessary actions.
17. To the claimant and his counsel; his retirement from service of the Rivers State Civil Service on December 28, 2017 is unlawful, irregular and contrary to the mandatory retirement age stipulated in Rule 020810 (1) of the Public Service Rules, 2008. This Rule provides that:
The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service, whichever is earlier.
In section 197 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, three State Executive Bodies are to be established for each state of the Federation. They are: the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission. It is pursuant of this provision and the provision of section 206 of the Constitution of the FRN, 1999 (As Amended) that Rivers State Civil Service Commission was created. Section 204 of the Constitution of the FRN, 1999 (As Amended) allows each of these bodies to make Rules to regulate its own procedure or to confer powers or impose duties on any officer or authority for the purpose of discharging its functions. Therefore, I find and hold that the Public Service Rules, 2008 were made pursuant to section 204 of the Constitution of FRN, 1999 (As Amended).
18. In the case of NEPA v. Adesaaji  58 NLLR (Pt. 202) 498 CA 545-546, paragraphs B-C; per Adekeye JCA (as she then was) held that:
Where the conditions for appointment or the determination of a contract of service are governed by the pre-condition of an enabling statute or Decree, so that valid determination of appointment is predicated on satisfying such statutory provisions, such contract is one with statutory flavor.
19. Rule 020810 (1) of the Public Service Rules, 2008 makes it compulsory that before a civil servant or a Public Servant is compulsorily retired from service; he or she must be 60 of years or he or she must have put in 35 years of pensionable service, whichever is earlier. It is the finding of this Court that the Public Service Rules, 2008 were made pursuant to the Provision of the FRN, 1999 (As Amended). It the means that the provision of Rule 020810 (1) of the Public Service Rules, 2008 must be strictly complied with in determining the employment of the claimant by compulsory retirement. In other words, I hold that the employment of the claimant with Rivers State Civil Service was with statutory flavour as his employment cannot be determined by compulsory retirement without compliance with the provision of Rule 020810 (1) of the Public Service Rules, 2008.
20. Since the defendants did not defend this case despite the ample opportunity the Court gave them to do so; it means that there is no contradiction to the evidence of the claimant before the court and that the defendants are ready to abide by the decision of the Court on this case; I so find and hold. In this instance, this trial Court (NICN) has little or no choice but to accept the unchallenged and uncontroverted evidence placed before it by the claimant; in doing this, I rely on the decision in Monkom v. Odili  2 NWLR (Pt. 1179) page 419 at 442 paragraphs D-E per Omokiri JCA. Also Per Muhammad JSC of the Supreme Court in Kopek Construction Ltd v. Ekisola  3 NWLR (Pt. 1182) page 618 at 663, paragraph C-D, where it was held that the law is certain that where evidence before a trail court is unchallenged, it is the duty of the court to accept and act on it as it constitutes sufficient proof of a party’s claim in proper case. In the circumstances, I accept and I will act on the claimant’s evidence before the Court in the instant case.
21. At pages 26 and 27 of the record is the letter of Offer of Appointment of the claimant and it is dated October 14, 1987. See also paragraph 4 of the claimant’s Statement of Facts. In this letter, the defendants informed the Claimant that his employment was with effect from November 1, 1987. I have held above that it is illegal for the defendants to unilaterally change the claimant’s date of birth from December 28, 1958 to December 28, 1957 without any reason at all. I have further held above that the legal date of birth of the claimant is December 28, 1958 as supported by the content of Exhibit C.4 (his Declaration of Age) in this case. Going by the provision of Rule 020810 (1) of the Public Service Rules, 2008 that the compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service, whichever is earlier; I agree with the arguments of the claimant and I hold that from December 28, 1958 it was on December 28, 2018 that the claimant clocked 60 years of age and that he will be 35 years in service in year 2022 if 35 years is added to year 1987 when he resumed work with the Rivers State Civil Service.
22. In view of the facts that, it was the claimant’s age of 60 years that came first on December 28, 2018; I hold in addition that the retirement year of the claimant was 2018 when he clocked 60 years of age. Consequently, I hold that it is unlawful, wrongful, illegal, ultra vires, null and void of the defendants to retire the claimant compulsorily with effect from December 28, 2017 from Rivers State Civil Service as that action of the claimant’s employer was contrary to the Mandatory Retirement Age stated in Rule 020810 (1) of the Public Service Rules, 2008. The claimant’s employment that was compulsorily determined via Exhibit C.6 is accordingly set aside by this Court. Again I hold that the Compulsory retirement of the claimant took effect from December 28, 2018.
23. Whether the Claimant is entitled to: his salaries, general damages and to cost of this action.
I have held above that it was wrong and in fact illegal for the defendants to have compulsorily retired the claimant before he attained the age of 60 years as provided in Rule 020810 (1) of the Public Service Rules, 2008; which Rules were made in line with statutory provision of the Constitution of the FRN, 1999 (As Amended). In other words, the claimant’s employment was laced with statutory and so, it is mandatory that his employment is determined as stipulated in the Public Service Rules, 2008; if not the determination will be a nullity. In the circumstances, I hold that the determination of the claimant’s employment by compulsorily retiring him with effect from December 28, 2017 was a nullity. In the eye of the law, that determination never took place. Consequently, I hold that the claimant is entitled to his salary for the whole of January to December 28, 2018 when his compulsory retirement was to take effect. The last promotion letter of the claimant is at page 30 of the record and it is Exhibit 3(b) before the Court. Through this Exhibit, the claimant was promoted to the position of a Director (Archives) and placed on salary Grade Level 16 step 7 with effect from May 1, 2008; the exhibit is dated April 8, 2008. I hereby hold that the claimant is entitled to be paid his full salaries and allowances together with other entitlements on Grade Level 16 step 7 monthly from January to December 28, 2018 when his compulsory retirement from Rivers State Civil Service legally took effect.
24. Is the Claimant Entitled to General Damages?
In paragraph (i) of his endorsement on the complaint, the claimant is inter alia seeking for payment of
N5,000,000.00 only as general damages as a result of untold hardship, loss, pain and distress he went through as a result of the alteration of his date of birth by the defendants and for his wrongful retirement. In paragraph 18 of his pleadings and paragraph 18 of his written statement on oath, the claimant states that the Defendants’ deliberate computation and wrong ascription of another date of birth for him has not only adversely altered and affected all his official documentations and marred his official retirement age from the service of the Rivers State Government; but that it has also imputed a criminal character of perjury against him by reason of his Statutory Declaration of Age dated April 16, 1982 and in other relevant documents in law.
25. Is the Claimant entitled to N5,000.000.00 General Damages?
Without wasting much energy on this issue, I agree with the claimant’s argument that the illegal and unilateral alteration of his date of birth by the defendants has also presented him as a criminal who illegally declared a date of birth for himself thereby reduced his age, contrary to his original birth date; whereas, that is not the position in this instant case. In the circumstances, I find that in the eye of a reasonable man, the claimant’s reputation has been marred without any justification. Consequently, I hold that the claimant is entitled to be paid general damages by the defendants. I hereby order that the defendants are to pay the claimant the sum of N3,000,000.00 (Three Million Naira) only as general damages on this score.
26. Is the claimant entitled to N1,000,000.00 cost of this action?
In paragraph (j) as endorsed on his complaint, the claimant is seeking for payment of N1,000,000.00 as cost of this action. This cost is usually awarded against the party that lost in any action before the Court and it is at the discretion of the Court. Therefore, I hereby exercise my discretion on this issue in favour of the claimant and award the cost of N500,000.00 for the claimant and against the defendants in this case.
27. On the whole, I hereby declare, hold and order as follows:
i. I Declare that it is illegal and wrongful for the defendants to unilaterally alter the date of birth of the claimant without any reason.
ii. I Declare that the compulsory retirement of the claimant with effect from December 28, 2017 and his ejection from his office based on the compulsory retirement is null and void and of no effect whatsoever.
iii. I hold that the claimant’s date of birth is December 28, 1958.
iv. I hold that the claimant is entitled to his salaries and allowances together with all other perquisites on Grade level 16 step 7 from January to December 28, 2018 when his compulsory retirement legally took effect from.
v. I hold that the claimant is entitled to be paid the sum of N3,000.000.00 (Three Million Naira) only general damages as the said illegal alteration of his date of birth has imputed criminal character against him for no reason at all.
vi. I hold that the claimant is entitled to be paid the sum of N500,000.00 as cost of this proceedings by the defendants.
vii. The defendants are accordingly ordered to pay the judgment sum to the claimant within 30 days from today. Thereafter, the judgment sum will begin to attract interest of 10% per annum until the judgment sum is finally liquidated.
28. Judgment is entered accordingly.
Hon. Justice F. I. Kola-Olalere