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<p class="Body" style="text-align:justify;text-justify:inter-ideograph"><u><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">REPRESENTATION</span></u><u><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></u></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">Mohammed Adamu, with M. B. Inuwa and Olalekan Akanbi, for the claimant.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">B. E. A. Ekawon, for the defendant.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" align="center" style="text-align:center"><u><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">JUDGMENT</span></u><u><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></u></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">1. The claimant filed this action on 2nd July 2013 vide a Complaint accompanied by the statement of facts, list of witness, witness statement on oath, list of documents and copies of the documents. By the statement of facts, the claimant is claiming against the defendant the following reliefs –</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="margin-left:19.65pt;text-align:justify;text-justify:inter-ideograph; text-indent:-19.65pt;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-hansi-font-family:"Arial Unicode MS"">i)<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">A declaration that the refusal of the defendant to pay the claimant all his entitlements and to made (sic) his employment grade at par with his colleagues (i.e. Grade level 16) is illegal and unlawful.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="margin-left:19.65pt;text-align:justify;text-justify:inter-ideograph; text-indent:-19.65pt;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-hansi-font-family:"Arial Unicode MS"">ii)<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">An order of court restraining the defendant, it (sic) agents, privies whether by itself or otherwise from either dismissing or retiring the claimant except in accordance with due process of law.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="margin-left:19.65pt;text-align:justify;text-justify:inter-ideograph; text-indent:-19.65pt;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-hansi-font-family:"Arial Unicode MS"">iii)<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">An order of court directing and compelling the defendant to immediately pay the claimant all his entitlements from 6th June 2007 to 5th July 2011 and also approve his employment grades to be at par with his contemporaries on grade level 16.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="margin-left:19.65pt;text-align:justify;text-justify:inter-ideograph; text-indent:-19.65pt;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-hansi-font-family:"Arial Unicode MS"">iv)<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">General damages for breach of employment contract.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="margin-left:19.65pt;text-align:justify;text-justify:inter-ideograph; text-indent:-19.65pt;mso-list:l1 level1 lfo2"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-hansi-font-family:"Arial Unicode MS"">v)<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">And such order or further orders as the Honorable Court may deem fit to make in circumstances.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">2. The defendant entered formal appearance and then filed its defense processes i.e. statement of defence, list of witnesses, witness statement on oath, list of documents and copies of the documents. The claimant did not file any reply process in response to these defence processes. At the trial, the claimant testified on his own behalf as CW, while Mr Abdulmumini Suleiman, Assistant Postmaster General, testified for the defendant as DW. At the close of trial, parties were asked to file and service their respective written addresses. This they did. The defendant’s final written address is dated 10th October 2016 but filed on 12th October 2016. The claimant’s is dated and filed on 7th November 2016. The defendant’s reply on points of law is dated 14th December 2016 but filed on 24th January 2017.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">3. The case of the claimant is that he is a staff of the defendant on Grade Level (GL) 14, which should not be as he ought to be on GL 16 or above. That in the course of his employment with the defendant, he was unlawfully and prematurely retired from the service of the defendant. The claimant went on that after exhausting all the local available remedies including a petition to the House of Representatives, the House of Representatives recommended that all the lost entitlements of the claimant including promotions be restored to back to him. That this was communicated to the defendant by the Clerk of the National Assembly. That despite the directive from the House of Representatives, the defendant refused to abide by the instructions, and the Clerk of the National Assembly wrote another letter to the Secretary to the Govern men of the Federation (SGF) to convey compliance. That the defendant was still adamant; this led the SGF to write to the then Honourable Minister of Information and Communications to ensure compliance. That despite the intervention of the Honourable Minister of Information and Communications, the defendant was still reluctant to comply. That finally on 5th July 2011, the defendant recalled the claimant to his duty post but without his promotions to enable him be at par with colleagues as well as salaries and other entitlements for the periods in issue. In consequence, the claimant filed this suit claiming as the reliefs already enumerated.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">4. The case of the defendant is that while working at the defendant’s office at International mail Processing Centre (IMPC Air), Murtala Muhammed International Airport, Ikeja, Lagos, there was a case of fraud by the claimant. The fraud allegations against the claimant were: fraudulently inducing the defendant’s management to pay N4,427,400.00 to a clearing agent for services that were never rendered and for which the defendant ought not to have paid for given that the clearance of the items was duty free; fraudulent stealing of a contractor’s concrete mixer in NIPOST premises and converting the proceeds to personal use; and collecting double payment in the sum of N127,000.00 as duty tour alliance for one and the same assignment. That the allegations were investigated and found to be proved. After disciplinary procedure, the defendant’s Governing Board found the claimant culpable; and although it noted that the allegations merited dismissal from service, the claimant was retired instead on compassionate grounds. That the claimant, feeling dissatisfied, filed a petition at the House of Representatives instead of going to Court. The House of Representatives voted in favor of the claimant and asked that he be reinstated and paid all his lost entitlements including promotions. On receipt of the resolution of the House of representatives and the letter from the Honourable Minister of Information and Communications directing the defendant to comply with the resolution, the defendant wrote to the Minister explaining the full facts of the case. The Minister asked for all relevant documents, but a decision was made, the Minister was changed. That there was thereafter undue pressure and threats from the House of Representatives who even threatened to and did delay the passing of the defendant’s budget for the years 2010 and 2011 unless the claimant was reinstated. That the claimant was eventually reinstated with effect from 1st July 2011 as a result of all the pressures and threats. That on resumption, the claimant wrote to the defendant demanding for the payment of his arrears of salaries and promotions to GL 16; whereupon the defendant sought clarification from the Honourable Minister which in reply informed the defendant that the reinstatement of the claimant being on compassionate grounds was the best Government could do in the circumstance and that having been found guilty of fraud and theft, the claimant’s request could not be granted. To the defendant, given all of this, and the fact that promotion is not automatic, the claimant cannot be promoted, hence the claimant’s case should be dismissed.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">5. The defendant framed two key issues for the determination of the Court, namely:</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="margin-left:19.65pt;text-align:justify;text-justify:inter-ideograph; text-indent:-19.65pt;mso-list:l1 level1 lfo3"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-hansi-font-family:"Arial Unicode MS"">1)<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">Whether the unsigned resolution of the House of Representatives following an alleged vote as evidenced by the unsigned minutes of the sitting of the Committee on Public Petitions is binding on the Executive, The Ministry of Communication Technology and the defendant, and whether it has the force of law of a law court or is merely persuasive.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="margin-left:19.65pt;text-align:justify;text-justify:inter-ideograph; text-indent:-19.65pt;mso-list:l1 level1 lfo3"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-hansi-font-family:"Arial Unicode MS"">2)<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">Whether having regard to the conditions of service between the defendant and its employees: i) reinstatement of the claimant was a proper order to be made in the first instance; ii) the reinstatement of the claimant on compassionate ground entitles him to claim of arrears of salary and promotion for the period he did not work.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">6. Regarding issue 1), the defendant’s argument is that the unsigned resolution of the Committee on Public Petitions of the House of Representatives is not binding on the Executive, Ministry of Communication Technology and the defendant. That the resolution is merely persuasive and lacks the force of an order or decision of court of law. To the defendant, given the doctrine of separation of powers amongst the three arms of Government, the labour infraction complained of by the claimant against the defendant ought to have been taken to and adjudicated upon by the court. This the claimant did not do as he took his case to he House of Representatives. To worsen matters, that Exhibit C3, the minutes of the House of Representatives’ voice vote which produced the alleged resolution is unsigned. That an unsigned document, even if certified, is worthless and without any evidential value, referring to <i>Edilco (Nig.) Ltd v. UBA Ltd</i> [2000] FWLR (Pt. 21) 752, <i>Chukwuma Ogudu v. State</i> [2011] 48 NSXQR 37 at 409, <i>Enoch v. Fab-RCM Project International</i> [2014] 49 NLLR (Pt. 162) 375 and <i>Jinadu & ors v. Israel Esurombi-Aro & anor</i> [2009] 9 NWLR (Pt. 1145) 55. The defendant then urged the Court to hold that the vote by the Committee on Pubic Petitions of the House of Representatives being unsigned is of no evidential value and, therefore, worthless; and the alleged resolution and other directives, not being laws, are not binding on the Executive and the defendant, they being persuasive only.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">7. As for issue 2), the defendant submitted that the reinstatement itself was improper in the first instance and the claimant is not entitled to any arrears of salary and/or promotion. That the conditions of service (Exhibit C1), which is devoid of statutory flavour, governs the claimant’s case preceding his retirement. That by the combined effect of section 63(1) of, and paragraphs 1 and 5 of the Second Schedule to, the NIPOST Act Cap. N127 LFN 2004, since 1st July 1992 when NIPOST came into force, and the claimant accepted employment with the defendant under the Act, the claimant’s employment with the defendant began by operation of law; but by 1st January 2003 when the conditions of service came into being, it lacks statutory flavour and the relation between the defendant and claimant is merely one of master and servant. That the mere fact that the defendant is a creation of statute does not mean that the conditions of service of its employees must be resumed to be of any special character or confer the appointments or conditions of service with statutory flavour making an order of reinstatement possible. For what a contract with statutory flavour is, the claimant referred to <i>Idoniboye-Obu v. NNPC</i> [2003] 2 NWLR (Pt. 805) 589 at 631, <i>NITEL Plc v. Awala</i> [2002] NWLR (Pt. 753) 1 at 11, <i>Geidam v. NEPA</i> [2015] 60 NLLR 329 at 355 - 356, <i>UMTHMB v. Dawa</i> [2001] 16 NWLR (Pt. 739) 424 at 447, <i>NSITF Management Board v. Adebiyi</i> [1999] 13 NWLR (Pt. 633) - page not supplied, <i>Imoloani v. WAEC</i> [1992] 9 NWLR (Pt. 265) 303 at 317, <i>Fakuade v. OAUTH</i> [1993] 5 NWLR (Pt. 291) 47 at 57 - 58 and <i>Chukwuma v. Shell Petroleum</i> [1993] 4 NWLR (Pt. 289) 512 at 560. The defendant then stressed that the reinstatement of the claimant was on compassionate ground, which does not entitle the claimant to any claim for arrears of salary, promotions and other entitlements for the period he did not work. That whether or not the servant was unlawfully dismissed, the law is that he cannot claim his wages for services never rendered, citing <i>Spring Bank Plc v. Babatunde</i> [2013] 33 NLLR (Pt. 97) 524 at 547 and <i>Ogbeche v. FBN</i> [2013] 26 NLLR (Pt.110) 618 at 654 - 655.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">8. Additionally, the defendant submitted that promotion in the defendant is not automatic but subject to a number of factors such as a minimum period an officer can stay on a position before he qualifies for promotion (clause 3.10.1.1 in chapter 3 of Exhibit C1), proven excellent performance on assigned duties, passing prescribed examinations/interviews, possessing relevant academic and professional qualifications, seniority, availability of vacancy (clause 3.10.1.2 of Exhibit C1), having good record (clause 3.11.2.1 of Exhibit C1) and not having a disqualifying factor such as pending disciplinary issues. That since the claimant did not participate in any promotion examination and passing same as well as satisfying all other conditions, he cannot be promoted at all or to be at par with his colleagues. In any event, that the claimant failed to join the Ministry of Communication Technology, the supervisory Ministry in this case. The defendant concluded by urging that the case be dismissed.</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">9. The claimant on his part also framed two issues for the determination of the Court, namely:</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="margin-left:19.65pt;text-align:justify;text-justify:inter-ideograph; text-indent:-19.65pt;mso-list:l1 level1 lfo4"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-hansi-font-family:"Arial Unicode MS"">a)<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">Whether the actions of the defendant denying the claimant his salaries and other entitlements from 6th June 2007 to 5th July 2011 and other benefit till date does not amount to unfair labour practice.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="margin-left:19.65pt;text-align:justify;text-justify:inter-ideograph; text-indent:-19.65pt;mso-list:l1 level1 lfo4"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman";mso-hansi-font-family:"Arial Unicode MS"">b)<span style="font-stretch: normal; font-size: 7pt; font-family: 'Times New Roman';"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">Whether the claimant has proved his case to be entitled to judgment.</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">10. In regards to issue a), the claimant submitted that having to deny him his salary and other entitlement amounts to unfair labour practice thus offending section 254C(1)(f) of the 1999 Constitution and is in direct negation to the principles of international best practice in labour law. To the claimant, he is a senior staff of the defendant on GL 14, who was prematurely retired from service for no just cause having not served the defendant for 35 years or reached the age of 60 years. The claimant then referred to section 9 of the NIPOST Act No. 41 of 1992, which provides the mode of retirement from the service of the defendant. Also referred to is clause 9.3.1(a) of Exhibit GO1, which provides for compulsory retirement after attaining age 60 or putting in 35 years of service whichever comes first, or for proven decline in productivity or misconduct. That the claimant has not attained any of these conditions for retirement; nor did the defendant show to the Court any act of misconduct on the side of the claimant to warrant it retiring him prematurely. To the claimant, the defendant’s act in retiring him in the first place without reason outside the provisions of his employment contract was illegal and unlawful.</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">11. Citing clause 1.8.3 of Exhibit GO1, the claimant submitted that being on GL 14 means that the claimant is a middle management staff. That the issue of promotion is provided for in clauses 3.10, 3.10.1, 3.10.1.1, 3.10.1.2 and 3.10.1.3 of Exhibit GO1 under which it is stated that the minimum period an officer can stay on a position before he is mature for promotion is 2 years for GL 01 - 06 and 3 years for GL 07 - 14; and that promotion shall entirely be made on the basis of proven excellent performance on assigned duties and prescribed examinations, qualifications, seniority and availability vacancy. That the claimant has all these requirements (was even given Exhibit GO9 to attend promotion interview) but was denied promotion, having been on GL14 since 2003. To the claimant, it is trite learning that when one person has intentionally caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed to deny the truth of that thing, referring to section 169 of the Evidence Act 2011, <i>Oil Field Supply Centre v. Johnson</i> [1987] NSCC 725 and <i>Wilson v. Oslim</i> [1994] 9 NWLR (Pt. 366) 90 CA, and urging the Court to hold that this rule favours the claimant. The claimant proceeded to three of his colleagues who were on GL 14 but are now on GL 16, and another who was junior to him but is now on GL15 to buttress how he has been unfairly treated by the defendant. That the defendant, despite pleading culpability of the claimant, did not lead any evidence to prove same, urging the Court to note that pleadings without evidence goes to no issue, and citing <i>Ajao v. Ademola</i> [2005] NWLR (Pt. 913) 636; nor is counsel’s submission evidence, citing <i>Nig. Arab Bank Ltd v. Femi Kane Ltd</i> [1995] 4 NWLR (Pt. 387) 100 at 106.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">12. The claimant continued that the defendant’s justification for withholding the claimant’s salaries is simply because he was found guilty of a criminal offense and or there was pressure to reinstate him, hence no payment as a punishment. To the claimant, there is no labour that states that a worker’s salary should be withheld as a punishment for criminal office or for undue pressure. It is the submission of the claimant that the retirement letter (Exhibit GO10) did not state the reason(s) of the claimant’s premature retirement, and the letter of recall (Exhibit GO7) never stated that the claimant’s recall is on compassionate ground. Instead that the letter states that the period stayed out of service still forms part of his service years. That this points out to the facts that he is entitled to all his benefits under the law and equity, praying the Court to so hold.</span><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">13. On issue b) i.e. whether the claimant has proved his case, the claimant answered in the affirmative given the documents he tendered. That the defendant did not show any single documentary evidence to disprove the case of the claimant. That Exhibit GO1 is clear regarding compulsory retirement and any breach by one party, such party must bear the legal consequences. That the defendant has nothing to back its assertion as it cannot put something on nothing and expect it to stand, citing <i>UAC v. Mcfoy</i> [1961] 3 WLR 1405 at 1409. The claimant then went on to give a breakdown of the claimant’s unpaid salaries for the period July 2007 to June 2011 as well as the rent supplement of 2005 to 2010, all totaling N6,827,231.76.</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">14. In responding to the defendant’s submissions, the claimant urged the Court to note that the defendant did not really respond to the claimant’s case; and that the letter of allegation against the claimant was never addressed to him and the claimant never received a verdict of guilt not to talk of fraud or theft. The claimant proceeded to state that his appointment with the defendant is more than that of ordinary master and servant relationship coupled with the level of the claimant; and that Exhibit GO2, the retirement of the claimant, was made by the defendant on record hence the defendant is the proper party in this suit. On the issues of Exhibit C3, the minutes of the House of Representatives’ </span><span lang="FR" style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family:"Arial Unicode MS"; mso-ansi-language:FR">voice vote</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-font-family:"Arial Unicode MS"">, which produced the alleged resolution, being unsigned, and the House of Representative resolution being merely persuasive and lacking the force of law, the claimant was silent. The claimant, however, concluded that the defendant should be estopped from denying the claimant the payment of his entitlements as it is clear from the wordings of Exhibit GO7 the period the claimant stayed out of service still forms part of his service years. The claimant urged the Court to grant his prayers in their entirety.</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">15. In its reply on pints of law, the defendant submitted that all the submissions of the claimant are misconceived and the cases cited inapplicable. To start with, that the claimant does not seem to know the applicable contract of service that exists between the parties. That in the instant case, the contract of service is Exhibit GO1, which is the bedrock upon which an employee must base his claim, citing <i>Bagu v. Zenith Bank Plc</i> [2016] 64 NLLR 264 at 288, <i>Spinning and Dyeing Ltd v. Ajah</i> [2002] 13 NWLR (Pt. 686) 532 and <i>Fetuga v. Unibadan</i> [2000] 13 NWLR (Pt. 683) 118. That is erroneous for the claimant to assume that because the defendant is a creation of statute and he is on GL 14, his contractual relationship os one with statutory flavour, citing <i>Regt Trustees of the Planned Parenthood Federation of Nigeria & anor v. Shogbola</i> [2015] 62 NLLR (Pt. 216) 1. To the defendant, the law is that except for employment governed by statute, all employments are governed by the agreement entered into by the parties. That the claimant, having failed to prove that his employment is one with statutory flavour, cannot claim for salaries, promotion and other entitlements for the period he did not work or render service to the defendant. In any case, that wages is a reward for work done or services rendered, citing section 91 of the Labour Act, which defines wages. On the issue whether the defendant retired the claimant without a reason or on compassionate ground or not, the defendant submitted that being the master it can dispense with the services of the claimant for good or bad reason or for no reason at all, citing <i>Ziidech v. Rivers State Civil Service Commission</i> [2011] 24 NULLR (Pt. 67) 113 SC, <i>Olaniyan v. University of Lagos</i> [1985] 2 NWLR (Pt. 9) 599 at 612, <i>Nig. Oil Mills Ltd v. Daura</i> [1986] 8 NWLR (Pt. 784) 417 at 434 and <i>Shitta Bey v. FPSC</i> [1981] 1 SC 40 at 56. That the claimant did not merit a recall to duty in the first place, the defendant being compelled to do so by the House of Representatives. The defendant continued that the breakdown of the claimant's salaries contained in the final written address was neither pleaded nor given in evidence; no evidence was led in proof or any document or pay-slip exhibited or tendered. That cases are not decided in address but on credible evidence, citing <i>Ezeh v. UBN Plc</i> [2015] 61 NLLR (Pt. 212) 120. The defendant concluded by urging the Court to dismiss this suit with substantial cost.</span><span style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" align="center" style="text-align:center"><u><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">COURT’S DECISION</span></u><u><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></u></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">16. In considering the merit of this case, I need to clear a point or two. The defendant kept harping on the point that the claimant ought not to have been reinstated since his employment was without statutory flavour. The defendant even went into an excursion as to which employment has statutory flavour and which has not. Even in the reply on points of law, the defendant harped on the claimant needing to place before the Court the terms of his employment in order to prove the way and manner the said terms were breached by the defendant. The point to note here is that the claimant has been reinstated by the defendant, and the claimant has resumed at work. The claimant’s case before this Court is not one of reinstatement but what he is entitled to from the defendant as a result of the reinstatement. Having to harp on what the defendant should not have done (such as harping on the point that reinstatement of the claimant should/could not have been ordered) and citing cases (<i>Osakwe v. Nigeria Paper Mill Ltd</i> [2015] 61 NLLR 163) of the Supreme Court telling that it is wrong to order that an employee alleged to have committed an offence of dishonesty should be reinstated is idle as reinstatement is not what the claimant is paying for, the defendant having already conduced to that.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">17. The claimant, on his part, in the opening words of his submissions regarding issue a) submitted that the denial of salary and other entitlements by the defendant amounts to unfair labour practice, which offends section 245C(1)(f) of the 1999 Constitution and a negation to the principles of international best practice in labour. Section 254C(1)(f) grants jurisdiction on this Court over unfair labour practice or international best practices in labour. The section does not state what the properties of unfair labour practice and international best practices in labour are. For the claimant to, therefore, argue that an act of the defendant <i>offends</i> section 245C(1)(f) only means that the claimant does not understand the difference between jurisdiction being conferred by a provision of law and the properties or qualities of that which is actually needed to be proved regarding that over which the Court has jurisdiction to adjudicate. That this Court has jurisdiction over unfair labour practice and best international practice in labour is one thing, what is needed to effectuate and succeed in an action under unfair labour practice or best international practice in labour is certainly another. The point is that section 254C(1)(f) of the 1999 Constitution, in merely granting jurisdiction, did not state what is needed to succeed in an action over the items listed therein. It is accordingly wrong for the claimant to talk of section 254C(1)(f) of the 1999 Constitution being offended by the acts of the defendant in the manner done in his written address.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">18. The case of the claimant is that the defendant without justification retired him from service with immediate effect vide Exhibit GO2 dated 6th June 2007. After several representations to especially the House of Representatives, he was ultimately recalled back to duty with effect from 1st July 2011 vide Exhibit GO7 dated 5th July 2011, invariably pursuant to the resolution of the House of Representatives directing that he be so recalled and paid all his salaries and entitlements including promoting him so that he can be at par with his colleagues. However, while he was recalled, he was not paid his lost entitlements including promotion as to enable him be at par with his colleagues. He accordingly filed this suit praying <i>inter alia</i> for the arrears of his salary and allowances as well as promotion to enable him be at par with his peers. The document evidencing the resolution of the House of Representatives that the claimant be recalled and paid his lost entitlements including promotion is Exhibit GO3. It is titled, “House of Representatives Federal Republic of Nigeria Votes and Proceedings of Wednesday, 7 May, 2008”. The defendant argued against Exhibit GO3, submitting that it is unsigned (and so has no evidential value), and is not biding on the defendant, it being only persuasive.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">19. I need to resolve the issue as the evidential value of Exhibit GO3. The argument of the defendant here (an argument that the claimant was silent on) is that because it is not signed, Exhibit GO3 has no evidential value. In other words, it is worthless. There is no gainsaying that an unsigned document is worthless and has no evidential value. This rule, however, applies only where the document in issue ought to be signed. In <i>Nwancho v. Elem</i> [2004] All FWLR (Pt. 225) 107, <i>Aiki v. Idowu</i> [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47 and <i>Sarai v. Haruna</i></span><span lang="PT" style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS";mso-ansi-language:PT"> [2008] 23 WRN 130</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">, it was held that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. And by <i>Madam Jaratu Abeje & anor v. Madam Saratu Apeke</i> [2013] LPELR-20675(CA), though unsigned documents should attract little or no evidential weight or value, it is not everything in writing that goes under the rubric of “document” that will lose its evidential worth simply because it is not signed. Is Exhibit GO3 a document that ought to be signed? Alternatively put, is the requirement of signing one that extends to Exhibit GO3 in so much so that the fact that it is not signed automatically makes it evidentially worthless? I do not think so. Section 106 of the Evidence Act 2011 provides how certain public documents can be proved. The relevant provision for present purposes is section 106(b), which provides that “the proceeding of the Senate or of the House of Representatives [may be proved] by the minutes of that body or by published Acts or abstracts, or by copies purporting to be printed by-order of Government”. This provision does not suggest that the proceedings of the Senate or of the House of Representatives require signature for it to be valid and valuable so long as the minutes of such proceeding is printed by order of Government. Exhibit GO3 satisfies the requirements of section 106(b) of the Evidence Act 2011 and so has evidential value for purposes of this suit. I so find and hold.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">20. In any event, the very contents of Exhibit GO3 that the claimant relies on in this suit i.e. the resolution that he be recalled and paid all his lost entitlements including promotion so that he can be at par with his peers, are reflected in Exhibits D2, D3 and D5, exhibits that the defendant itself frontloaded and tendered in evidence. The point is that even if Exhibit GO3 is disregarded, it still does not take out the sting of the claimant’s case given other exhibits that reiterate the resolution of the House of Representatives. Arguments of the defendant as to Exhibit GO3 being worthless accordingly go to no issue and so are discountenanced for purposes of this judgment.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">21. The second issue raised by the defendant is that the House of Representatives resolution as per Exhibit GO3 is only persuasive and not binding on it as a Department of the Executive arm of Government. Once again, the claimant was silent on this issue, offering no submissions whatsoever. By section 4 of the 1999 Constitution, legislative power of the National Assembly or State House of Assembly is exercisable through law making, which legislative power, by section 4(8) of the Constitution, is subject to the jurisdiction of courts of law and of judicial tribunals established by law. Sections 58 and 59 of the 1999 Constitution go on to reinforce how this legislative power is to be exercised. The point is that it is the law making power of the legislature that is binding; for, except as may be otherwise provided by specific sections of the Constitution, resolutions are not binding. They remain advisory and persuasive as the defendant argued. Like I pointed out earlier, the claimant did not give any contrary view or authority on this issue. I accordingly agree with the defendant that the resolution of the House of Representatives as per Exhibit GO3 is persuasive and hence not binding on the defendant.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">22. The claimant’s case is founded on the fact of unfair labour practice by the defendant. There is no doubt that this Court has jurisdiction over unfair labour practice. See section 254C(1)(f) of the 1999 Constitution. But to succeed in a claim for unfair labour practice, the fact(s) of the unfair labour practice must be pleaded and proved. In </span><i><span lang="DE" style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS";mso-ansi-language:DE">James Adekunle Owulade</span></i><i><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS""> v. </span></i><i><span lang="IT" style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS";mso-ansi-language:IT">Nigeria Agip Oil Company Limited</span></i><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS""> unreported Suit No. NICN/LA/41/2012 the judgment of which was delivered on 12th July 2016, this Court held as follows:</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="margin-left:.5in;text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">…the spirit and letter of section 254C(1)(f) of the 1999 Constitution, as amended, and section 7(6) of the NIC Act 2006, as well as the intendment of same, is that they operate to create and set a standard as a benchmark against which labour and industrial relations in Nigeria are to be measured. Even when section 7(6) of the NIC Act 2006 declares that what amounts to good or international best practice in labour or industrial relations is a question of fact, it means that such a practice is not already codified in the conditions of service and would thus require to be pleaded and proved by the party alleging their existence. See </span><i><span lang="IT" style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family:"Arial Unicode MS"; mso-ansi-language:IT">Oyo State v. Alhaji Apapa & ors</span></i><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS""> [2008] 11 NLLR (Pt. 29) 284. Additionally…international best practices in labour or industrial relations are almost always mirrored in the light of the conduct of the employer; the actions (or inaction) of the employee are seldom, if ever, the subject of consideration in this regard.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">The very fact of unfair labour practice presupposes some sort of comparison within the workplace. When an employee asserts that an unfair labour practice has been meted out on him by an employer, in a sense, what such an employee is saying is that in comparison to others in the workplace, he has been unfairly treated by the employer. I think the claimant is aware of this and had it in mind for in paragraph 3.8 of his written address he enumerated the names of three of his colleagues (now on GL16) and another junior to him (now on GL15) to show how he has been unfairly treated by the defendant. The unfortunate thing is that the claimant did plead all of this; and the law is that judgment should not be given in favour of a party on facts which were not pleaded, or facts which are pleaded but not canvassed at the hearing. See <i>Shell BP Ltd v. Jacob Abedi & ors</i> [1974] LPELR-3044(SC); [1974] All NLR 1; [1974] 1 SC 16 and <i>Leo O. C. Obijuru v. I. M. Ozims</i></span><span lang="PT" style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS";mso-ansi-language:PT"> [1985] LPELR-2173(SC); [1985] NWLR (Pt. 6) 167</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-font-family:"Arial Unicode MS"">.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">23. Additionally, in paragraph 4.5 counsel to the claimant gave a breakdown of the unpaid salaries of the claimant as follows: 2007 (July to December at N58,711.50), 2008 (January to December at N1,174,235), 2009 (January to December at “N11,74.235”), 2010 (January to June at N58,711.75), 2010 (July to December at N900,464) and 2011 (January to June at N900,464). The claimant put the total of all this at N5,323,633.00. Also indicated as a claim by the counsel to the claimant is rent supplement for 2005 to 2010 at the sum of N1,500,000.00 (at 250,000 x 6 months = N1,500.000), which if added to N5,323,633.00 according to counsel to the claimant gives a total claim of N6,827,231.76. Additionally, in paragraph 4.6, counsel to the claimant prayed that the Court orders the payment of annual leave allowance of the claimant as he is entitled to same in the interest of justice. To start with, the truth is that N5,323,633.00 + N1,500.000.00 = N6,823,633.00 not N6,827,231.76 that counsel to the claimant gave. Secondly, this breakdown and the claim for leave allowance were not pleaded and specified as such by the claimant in the statement of facts and his evidence. This means that it is counsel to the claimant that is pleading and giving evidence in his written address. It is curious and ironic that the counsel to the claimant who in paragraphs 3.10 and 6.2 of his written address respectively contended that the submissions of counsel cannot be a substitute for evidence and cases are not decided on address but on credible evidence, is the one presently guilty of the same charge. I repeat: the law is that judgment should not be given in favour of a party on facts which were not pleaded, or facts which are pleaded but not canvassed at the hearing. See <i>Shell BP Ltd v. Jacob Abedi & ors</i>(<i>supra</i>) and <i>Leo O. C. Obijuru v. I. M. Ozims </i>(<i>supra</i>).</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">24. It is the claimant’s argument that Exhibit GO7, the letter of recall, states that the period stayed out of service still forms part of his service years. That this points out to the fact that he is entitled to all his benefits under the law and equity, praying the Court to so hold. The specific words of Exhibit GO7 in the second paragraph are: “Note that the period you stayed out of service forms part of your service years, while the outcome of the ministerial committee decision is being awaited”. In particular, what does the phrase, </span><span lang="DE" style="font-size:12.0pt;font-family: "Times New Roman","serif";mso-bidi-font-family:"Arial Unicode MS";mso-ansi-language: DE">“</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS"">Note that the period you stayed out of service forms part of your service years” mean? The claimant argues that it means that he is entitled to all his benefits under the law and equity. I do not agree with the claimant. To start with, the defendant was quite clear in recalling the claimant back to duty and equally clear that the claimant should await the outcome of the ministerial committee decision. When the outcome came (see Exhibit D8), it was clear that the claimant was offered only reinstatement, nothing more. So Exhibit GO7 cannot be that the claimant was told he is entitled to all his benefits under the law and equity. Even when the claimant appealed to the defendant, Exhibit GO8 was quite clear that he enjoys only reinstatement, nothing more. As it is, therefore, the reliance of the claimant on the resolution of the House of Representatives (Exhibit GO1) and the letter of recall (Exhibit GO7) as conferring an entitlement on him as to his lost entitlements including promotion is not sufficient proof of such an entitlement. I so find and hold.</span><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">25. There is another side to the phrase, </span><span lang="DE" style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-bidi-font-family:"Arial Unicode MS";mso-ansi-language:DE">“</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">Note that the period you stayed out of service forms part of your service years”. When the claimant was informed that he should note that the period he stayed out forms part of his service, what is meant is that for purposes of calculating his overall years of service pending actual retirement, that period will be added in the calculation. That phrase did not signify that the claimant will be paid for that period. See <i>Mr. David Aderemi Okediji v. The Governor of Oyo State & 2 ors</i> unreported Suit No. NICN/IB/111/2013 the judgment of which was delivered on 14th December 2016, where the claimant was allowed on terms to come back to work after over 3 years absence.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">26. The further argument of the claimant that he is entitled to an estoppel against the defendant holds no water. This is because, having not shown an entitlement, the defendant is at liberty to treat the resolution of the House of Representatives as it chooses, which is to reinstate the claimant but not pay him his lost entitlements including promotion. In labour relations, an employer reserves the right to mete out a lesser punishment on an employee. See <i>Lasisi v. Allied Bank (Nig.) Plc</i> [2002] 7 NWLR (Pt. 767) 542 CA and <i>Udegbunam v. FCDA</i> [2003] 10 NWLR (Pt. 829) 487. <i>A fortiori</i>, the employer in his/its discretion reserves the right to recall on terms a sacked employee, which is the case in the instant suit. See <i>Mr. David Aderemi Okediji v. The Governor of Oyo State & 2 ors</i> (<i>supra</i>).</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">27. The claimant argued that he is entitled to be promoted so as to be at par with his peers. I have indicated that the documents relied upon by the claimant as an entitlement for this claim do not grant such an entitlement. I only need to add here that in general, promotion is neither automatic nor a right; it is a privilege. See <i>Abenga v. Benue State Judicial Service Commission</i> [2006] 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 <i>Shell Pet. Dev. Co. v. Nwaka</i> [2001] 10 NWLR (Pt. 720) 64. The only exception is where the denial of promotion is vindictive, <i>mala fide</i>, and so qualifies as unfair labour practice. See <i>Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor</i></span><span lang="PT" style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-bidi-font-family:"Arial Unicode MS"; mso-ansi-language:PT"> [2013] 35 NLLR (Pt. 103) 40 NIC</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">. Unfortunately, the claimant did not make out a case for the application of this exception to instant suit. I so find and hold.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">28. On the whole, I do not see any merit whatsoever in the claimant’s case. It fails and is hereby dismissed.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS"">29. Judgment is entered accordingly. I make no order as to cost.</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-fareast-font-family:"Times New Roman""><o:p></o:p></span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" style="text-align:justify;text-justify:inter-ideograph"><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""> </span></p> <p class="Body" align="center" style="text-align:center"><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family:"Arial Unicode MS"">……………………………………</span><span style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family: "Times New Roman""><o:p></o:p></span></p> <p class="Body" align="center" style="text-align:center"><span lang="IT" style="font-size:12.0pt;font-family:"Times New Roman","serif";mso-bidi-font-family: "Arial Unicode MS";mso-ansi-language:IT">Hon. Justice B. B. Kanyip, PhD</span><o:p></o:p></p>