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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><b><u><span style="font-family: "Comic Sans MS";mso-ansi-language:EN-US">Representation</span></u></b><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US">:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:10.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US">E. N. Ichie with K.O. Ahamba for the Claimant<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height: normal"><span style="font-size:10.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US">N. C. Ohakwe for the Defendant</span><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-ansi-language:EN-US"><o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:2.5in;margin-bottom:.0001pt;text-align:justify;text-indent:.5in; line-height:normal"><b><u><span style="font-size:8.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US"> </span></u></b></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:2.5in;margin-bottom:.0001pt;text-align:justify;text-indent:.5in; line-height:normal"><b><u><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US">JUDGMENT</span></u></b><b><span style="font-size:12.0pt;font-family: "Comic Sans MS";mso-ansi-language:EN-US"><o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">The Claimant instituted this action with a Complaint on 18th February 2013. The claim of the Claimant was subsequently amended in his further amended statement of facts to seek the following reliefs: <o:p></o:p></span></p> <ol style="margin-top:0in" start="1" type="1"> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo1"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE">A declaration that the Federal Circular No. HME/FME/216/VOL.1/18 of 21<sup>st</sup> November, 2000 signed by the Honourable Minster of Education is applicable to the Claimant in his retirement from the Federal Polytechnic Nekede.<o:p></o:p></span></li> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo1"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE">A declaration that the Claimant’s retirement date is 26<sup>th</sup> August, 2006 as contained in the Defendant’s letter dated 10<sup>th</sup> February, 2006 to that effect and not 26<sup>th</sup> August 2001.<o:p></o:p></span></li> <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-list:l1 level1 lfo1"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language: EN-US;mso-bidi-language:HE">An order of court on the Defendant to readjust the retirement benefits due and payable to the Claimant to the appropriate figures as follows:<o:p></o:p></span></li> </ol> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">Gratuity: <s>N</s>4,950,535.27 (Four Million, Nine Hundred and Fifty Thousand, Five Hundred and Thirty-Five Naira, Twenty-Seven Kobo) annual up to October 2011.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">Pension: <s>N</s>1,342,503.04 (One Million, Three Hundred and Forty-Two Thousand, Five Hundred and Three Naira, Four Kobo) i.e. <s>N</s>111,875.25 per month from September 2006 to December 2007.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">4.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">A declaration that the Claimant is entitled to all pension adjustments due and payable to a retired Chief Lecturer which has occurred since August 2006 till date in the calculation of the Claimant’s payable pension.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">5.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">A declaration that the Claimant’s monthly pension is <s>N</s>135,648.44 and not <s>N</s>74,467.30 from January 2008 when the pension adjustments took effect.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">6.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">An order of court on the Defendant to pay to the Claimant the total sum of unpaid retirement benefit amounting to <s>N</s>4,950,535.27 (gratuity) + <s>N</s>4,539,222.78 (pension) totaling <s>N</s>9, 489,758.05<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">7.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Five Hundred and Eighty Thousand, Four Hundred and Sixty-One Naira, Thirty-Six Kobo (<s>N</s>580.461.36) being award after verification exercise at Alvan Ikoku College of Education withheld by the Defendant.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l1 level1 lfo1"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">8.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Two million, Five Hundred Thousand Naira (<s>N</s>2,5,00,000.00) being general damages for breach of contract of employment.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">The complaint was filed along with the Statement of Facts (which was later amended), Claimant’s List of Witnesses, Sworn Deposition of Claimant’s witness, Claimant’s List of Documents and Copies of Documents to be relied on. These originating processes were served on the Defendant. The Defendant filed a Statement of Defence and other accompanying processes deemed properly filed on 10/10/2013. The Claimant filed a Reply on Points of Law on 29/1/2014. Hearing commenced on 8/4/2014. The Claimant testified as CW1 and tendered the following documents in evidence:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA1- Transfer of service letter of the claimant dated 13/8/1986<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA2- Ahmadu Bello University letter of appointment dated 10/4/1974<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">3.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA3-Record of service of the claimant at Ahmadu Bello University dated 13/8/1986<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">4.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA4- Statutory Declaration of Age deposed to 24/6/1975<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">5.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA5 – Claimant’s Baptismal Card from Sacred Heart Parish Nguru, Diocese of Owerri<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">6.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA6- Notice of Retirement from Service dated 10/2/2006<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">7.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA7- Notice of Statutory Retirement dated 9/5/2006<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">8.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA8- certified copy of the Federal Ministry of Education’s letter Ref no. HME/FME/216/VOL.1/18 dated 21/11/2000<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">9.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA 9- MEMO dated 9/9/2008<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">10.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA10- claimant’s letter dated 30/9/2009<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">11.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA11-Claimant’s letter dated 17/1/2011<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">12.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA 12- the Defendant’s Offer of Contract Appointment to the claimant dated 26/5/2006<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">13.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA 13- the Defendant’s Renewal of the claimant’s Contract Appointment dated 31/7/2008<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">14.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA 14- Letter of the claimant’s Contract Appointment dated 6/7/2009<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">15.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA15-Defendant’s MEMO dated 20/3/2006<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; line-height:normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family: "Comic Sans MS";mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">16.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA 16- Defendant’s letter dated 5/6/2012<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">17.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA 17- Claimant Solicitor’s letter dated 26/7/2012<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">18.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA18- claimant’s August 2006 Pay slip<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">19.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA 19-Federal Ministry of Education’s Circular DHE/POLY.53/C.2/IV/57 dated 16/6/2010<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l6 level1 lfo11"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">20.</span><!--[endif]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA20- Federal Government Official Gazette of 28/8/2009<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.25in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">Amanze Honourine Nneka(Mrs)testified as the DW1 and tendered the following documents in evidence, as follows:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l5 level1 lfo10"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit D1- Staff personal Data Form certified on 3/3/2016<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l5 level1 lfo10"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit D2- Staff Record Sheet certified on 3/3/2016<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l5 level1 lfo10"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS"; mso-bidi-font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language: HE">3.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit D3- Federal Ministry of Education’s Circular SAF.36/S.514/I/119 dated 27/7/2007<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l5 level1 lfo10"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE">4.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit D4-National Pension Commission Letter dated 20/11/2007<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Hearing ended on 21/6/2016. Both parties were ordered to file their final written addresses. The defendant’s counsel filed his address on 19/7/2016. Counsel for the Claimant filed his address on 16/10/2016. The defence counsel filed a Reply on Points of Law on 12/10/2016. Parties’ counsels adopted their final written addresses on 25/10/2016. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">In the Defendant’s counsel’s final address, two issues were formulated for determination, as follows:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l0 level1 lfo8"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language: HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Whether the Defendant was justified in law in holding the Claimant as having retired on</span><span lang="EN-GB" style="font-size:12.0pt;font-family:"Comic Sans MS""> 26/8/2001 and computing his pension and entitlement therefrom.</span><span style="font-size: 12.0pt;font-family:"Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US; mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l0 level1 lfo8"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-fareast-font-family:"Comic Sans MS";mso-bidi-font-family: "Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language: HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span lang="EN-GB" style="font-size:12.0pt; font-family:"Comic Sans MS"">Whether the Federal Circular no. HME/FME/216/Vol.1/18 of 21/11/2000 or any other federal circular overrides the provisions of a statute or decree.</span><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US; mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">With respect to issue one, counsel submitted that the statutory age of retirement of a public servant is clearly provided by section 4(1) of the Pension Act, which reads thus:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE">“every officer shall retire upon attaining the age of sixty years, so however that for officers retiring on or before 31<sup>st</sup> March 1977, the compulsory retiring age shall be fifty-five years.”<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">It is counsel’s submission that the preceding statutory provision mandatorily requires public servants in the civil service of the Federation and federal institutions to retire when they attain 60 years of age. Counsel further posited that the “mandatoriness” of Section 4 of the Pension Act is imputed from the word “shall”, which denotes a direction, compulsion or mandate; gives no room for discretion, and in whatever way it is used, there has to be a fulfillment. See <b>NATIONAL ASSEMBLY vs. CCI LTD (2008) 5 NWLR (Pt. 1081) 519</b>. Again, counsel argued that the Defendant is indisputably a Federal Government Institution, whose staff are covered by Section 4 of the Pension Act, and by the two documents (Staff Personnel Data (Exhibit D1) and Staff record sheet (Exhibit D2), which the Defendant used in determining the Claimant’s age when he joined its service, the Claimant was above retirement age when Exhibit CA6 (Notice of Retirement) was issued. Counsel argued further that though Exhibit CA6 was contrary to Section 4 of the Pension Act, the extant law at that time, Exhibit CA6 cannot override the provisions of Section 4 of the Pension Act.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Furthermore, counsel contended that the Defendant issued Exhibit CA6 ignorantly presuming the Claimant was ripe for retirement on attainment of 65 years, rather than 60 years as provided for by the relevant statute. It is counsel’s contention that on the assumption that the Defendant omitted to apply the extant law regulating the retirement of its officers, such omissions cannot make the claimant entitled to the benefits claimed because the provisions of a statute cannot be waived under any form. At this juncture, counsel cited the case of <b>OLUFEAGBA vs. ABDULRAHEEM (2009) 18 NWLR (Pt. 1173) 384 at 438-9</b> where it was held inter alia thus:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE">“the provisions of a statute or the Constitution cannot be waived as no one is permitted to contract out or waive a rule of public or constitutional policy…parties cannot by conduct or consent alter the Constitution or a statute…”<o:p></o:p></span></i></b></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">See also the cases of <b>MANAKAYA vs. MANAKAYA (2001) 16 NWLR (Pt. 738) 203</b> and <b>OLANIYAN vs. UNILAG (1985) 2 NWLR (Pt. 9) 599</b>. Similarly, counsel submitted that the Defendant cannot by consent; alter or waive Section 4 of the Pension Act and that the Claimant who ought to have retired at 60 years cannot by Exhibit CA6, alter the statutory retirement age of Federal Institutions’ officers fixed by law. Counsel contended further that the Claimant by arithmetical calculation ought to retire in 2001 going by his record of service; Exhibit CA6 ought not to have set a retirement age inconsistent with statute. Also, counsel argued that the Claimant was paid for the period he overworked, and the issues in this case arose from the Claimant’s attempt to alter the age he declared when entering into the Defendant’s employment. Counsel is of the view that the Claimant cannot be allowed to benefit from his misrepresentation. He urged the court to hold that the Claimant was required by law to retire on attaining 60 years of age.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Regarding issue two, counsel posited that the Claimant’s pleadings and evidence presented to the court placed much reliance on the Circular of the Federal Minister of Education conveying the Federal Executive Council’s approval of 65 years retirement age applicable to academic staff of Federal Polytechnics and Colleges of Education (Exhibit CA8). It is counsel’s opinion that Exhibit CA8 cannot override the provisions of Section 4 of the Pension Act because circulars are administrative documents by which instructions are disseminated, they lack statutory authority and have no legal effect. See <b>MAIDERIBE vs. F.R.N (2004) All FWLR (Pt. 717) 725 at 738-9</b>. Similarly, counsel submitted that any increment of the retirement age of public officers in Federal Polytechnics and Colleges of Education may only be achieved by an Act of the National Assembly, which was done in the Retirement Age of Staff of Polytechnics and Colleges of Education (Harmonization) Act 2012; years after the Claimant retired. Learned Counsel for the Claimant contended that the Claimant’s pension and gratuity are to be computed based on the Chief Lecturer’s salary as at August 2001, when the law required the Claimant to retire at age 60. Also, counsel argued that Exhibits D3 and D4, which are the Federal Ministry of Education’s circular of 27/7/2007, and National Pension Commission’s circular of 20/11/2007 respectively; shows that the retirement age of public officers in Federal Polytechnics and Colleges of Education in 2007 was 60 years or 35 years of service, whichever comes first. Counsel contended further that the Claimant cannot be allowed to benefit from the Defendant’s omission (based on the Claimant’s misrepresentation) in notifying the Claimant about his retirement on the attainment of 60 years. Counsel urged the court to dismiss the Claimant’s case with costs for being speculative, vexatious and lacking in merit.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;mso-bidi-font-size: 8.0pt;font-family:"Comic Sans MS";mso-font-width:105%;mso-ansi-language:EN-US; mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">In the Claimant counsel’s final address, four issues were formulated for determination, which are:<o:p></o:p></span></p> <p class="MsoListParagraphCxSpFirst" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l9 level1 lfo9"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">1.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Whether the calculation of Claimant’s retirement benefits of 60 years of age by the bursar was proper in the face of Exhibits CA6, CA7, CA8, CA19 and CA20.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l9 level1 lfo9"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">2.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Where issue (1) is resolved in the negative, whether the Claimant is not entitled to be paid his retirement entitlements based on 65 years of age in 2006.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpMiddle" style="margin-bottom:0in;margin-bottom: .0001pt;mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height: normal;mso-list:l9 level1 lfo9"><!--[if !supportLists]--><span style="font-size: 12.0pt;font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">3.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> Whether a circular published in 2007 can apply retrospectively to a person who retired in 2006.<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" style="margin-bottom:0in;margin-bottom:.0001pt; mso-add-space:auto;text-align:justify;text-indent:-.25in;line-height:normal; mso-list:l9 level1 lfo9"><!--[if !supportLists]--><span style="font-size:12.0pt; font-family:"Times New Roman","serif";mso-fareast-font-family:"Times New Roman"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">4.<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: "Times New Roman";"> </span></span><!--[endif]--><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Whether Exhibit D3 can lawfully override and nullify Exhibits CA8, CA19, and CA20. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Issues 1 and 2 were considered together, in respect of which Counsel submitted that the Pension Reform Act 2004 repealed the Pension Act 1990 referred to by the Defence Counsel. Counsel referred the court to <b>ABUBAKAR vs. B.O. & A.P LTD (2007) 18 NWLR (Pt. 1066) 319 at 355</b>, where the Supreme Court held that when an Act is repealed, it is taken as though it never existed, except where the actions which were commenced, executed or concluded at the time the Act was in existence. According to Counsel, the Claimant could not have been legally retired, and was not retired based on the Pension Act 1990 in 2006 when retirement notice was issued to the Claimant. Counsel submitted further that the Defendant counsel’s reliance on the Pension Act 1990 in defence of this suit is pointless because at the time the claimant was retired in 2006; the mandatory age of 60 years provided by the Pension Act 1990 was no longer applicable to the Claimant. Also, counsel argued that Exhibit CA 20, the Federal Gazette of the Public Service Rules (subsequently PSR), which provides in its paragraph 020810(iii) as follows:<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;line-height:normal"><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE">“the provision of (i) and (ii) of this Rules is without prejudice to prevailing requirements for judicial officers and Academic Staff of University and other tertiary institutions who retire at 70 and 65 years respectively.”</span></i></b><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">It is counsel’s argument that the DW1’s admission under cross-examination that the Defendant worked with the PSR (“gazetted” in Exhibit CA20), was contrary to the bursar’s act in back-dating the Claimant’s retirement date in calculating the Claimant’s retirement benefits, retiring him at 60 years in disobedience of the PSR. More so, counsel submitted that Exhibit D3 is not a circular or part of the PSR but a private letter to one Nnamdi Onyechi, which was certified by an official in whose custody the original was not and referenced a circular no. SAF.36/S.514/1/119 dated 27/7/2007 (which was not tendered in court). According to counsel, it was ultra vires the bursar of the Defendant to act contrary to Government Notice, which qualifies as law, in Exhibit CA8 “gazetted” in Exhibit C20. Similarly, counsel contended that the Claimant was retired properly in 2006 as required by the PSR, which has not been abrogated by any appropriate authority. Counsel urged the court to hold that Exhibit D3 has no basis in law, and expunge it from its records because it is inadmissible but wrongly admitted into evidence. See <b>MCC vs. AZUBUIKE (1990) 3 NWLR (Pt. 136) 74 at 84</b>. Further, counsel submitted that the provisions of paragraph 02810 of the PSR (2008 edition) quoted earlier, applied to the Claimant’s retirement in 2006; owing to the fact that stated in the preamble of the PSR of 2000, the Rules are enjoined to be read “in conjunction with Circular instructions and Gazette Notices on or after 1<sup>st</sup> January 2000”. Counsel asserted that this preamble was signed by the Head of Service of the Federation, an office in the presidency, making the Federal Service Rules constitutionally or statutorily flavoured. See Section 171(1),(2)&(6) of the Constitution. It is counsel’s opinion that pursuant to the preamble referred to above the Federal Executive Council (subsequently FEC) on 15/11/2000, made the Rules communicated by Exhibit CA8; which automatically became part of the Federal PSR and both need to be read in conjunction with it. Also, counsel contended that it was in this state of being read in conjunction with the ministerial instruction that the Claimant was retired, and while the FEC’s decision was published in the 2008 edition of the PSR, it was already in force as at 15/11/2000, earlier in time to 2006. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Furthermore, counsel submitted that consistent with these directives, the Defendant’s Registrar issued the Claimant with the retirement notice and ultra vires the bursar’s powers to disregard an existing circular, as provided in the PSR and proceed to calculate the Claimant’s benefits based on 60 years. The court was urged by counsel to hold that the bursar’s actions are illegal. Counsel argued that his position is strengthened by the fact that the Defendant has failed to withdraw the retirement notice issued to the Claimant, the Registrar’s retirement of the Claimant at age 65 is valid and subsisting as it was consistent with the existing Federal Public Rules, Federal Government Circulars and Notices. It is counsel’s submission that the onus is on the Defendant to produce before this court, evidence of the source of the overriding powers applied by the bursar, an onus which was not discharged. It is counsel’s argument that the Claimant in proof of his case, tendered his payslip which recognized the Claimant as chief lecturer in the Defendant’s employment, which carried salary Grade Level HATISS 14 Step 9, consistent with Exhibit CA7 (Notice of Statutory Retirement) that was disregarded by the Bursar. Again, counsel submitted that the Defendant did not attempt to join issues on the arbitrary reduction of the Claimant’s basic salary and other allowances in computation of the Claimant’s pension and gratuity. According to Counsel, the law on this point is that where the Claimant’s evidence is not controverted, it is open to the court to act on such unchallenged evidence. See <b>A.G OYO STATE vs. FAIRLAKES HOTEL (1989) 5 NWLR (Pt. 121) 255 at 282 and OWNERS M/V GONGOLA HOPE vs. S.C. (NIG) LTD (2007) 15 NWLR (Pt. 1056) 189 at 215-6</b>.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">Similarly, counsel submitted that in the extant case, the Defendant did not deny the facts averred to in Paragraphs 21-27 of the statement of facts, pertaining to the computation of salaries, emoluments, gratuity and pension. It is counsel’s submission that the only denial proffered by the Defendant is that the figures averred by the Claimant was exaggerated, which amounts to an ineffective denial of the Claimant’s material allegations. Also, counsel submitted that such facts not specifically denied are deemed admitted. See <b>AKINJOLA vs. SOLANO (1986) 2 NWLR (Pt. 24) 598 at 623</b>. Counsel urged the court to resolves issues 1 and 2 in favour of the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">With respect to issues 3 and 4, counsel argued that Exhibit D3 relied on by the Defendant’s counsel contains wrong information about the position in the PSR 2000; and Exhibit D3 cannot introduce a letter to supersede Exhibit CA8. Also, counsel argued any evidence of the introduced document in Exhibit D3 is illegal evidence and inapplicable to any proceeding according to Section 125 of the Evidence Act. More so, counsel submitted that there is no evidence on record that the FEC’s directive of 15/11/2000 was revoked or reversed before the Claimant’s retirement. Also, counsel contended that Exhibit D3 cannot abrogate the FEC’s decision of 15/11/2000, represented by Exhibit CA8, implemented in the Claimant’s retirement in 2006. It is counsel’s submission that the FEC is a body of Ministers appointed by the President of Nigeria under Section 147(1) of the 1999 Constitution (as amended), and the author of Exhibit CA8 is the Minister assigned the administration of the Ministry of Education; and gratuity and pension are matters which according to Section 173(1) of the 1999 Constitution (as amended), any person entitled to them “shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law”.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">In counsel’s view, there is no law in Nigeria which entitles the administrative Head of a Government parastatal to override a directly communicated decision of the FEC. Counsel argued that Exhibit CA19 which is dated 16/6/2010, indicated that the prevailing requirement for the Claimant and people in his category was 65 years, consistent with Exhibit CA8. Again, counsel contended that the Defendant’s witness who admitted that the PSR was applied to the Claimant’s retirement, invariably indicates that the expression “without prejudice to prevailing requirements for judicial officers and academic staff” can only mean that these categories of staff who already retire at 70 and 65 years are exempted from the 60 years in paragraphs (i) and (ii) of Exhibit CA20. Counsel submitted that Exhibit B3 did not override Exhibits CA6 and CA7. According to counsel, the Defendant is estopped from denying its act of retiring the Claimant at age 65 in 2006 according to Section 169 of the Evidence Act 2011. It is counsel’s further submission, that any evidence on record to the effect of denial by the Defendant of the retirement is illegal, and should be expunged as inadmissible. Counsel urged the court to resolve issues 3 and 4 in favour of the Claimant. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE">In the Defendant Counsel’s Reply on Points of Law, Counsel submitted that the claimant counsel’s is mistaken as to the identity of Exhibit D3 received into evidence by the court, which is a circular and not a letter as claimed by the counsel for the claimant. Also, counsel argued that relevancy is one of the conditions governing the admissibility of a document. See <b>OKONJI vs. NJOKANMA (1994) 14 NWLR (Pt. 638) 250 at 266</b>. It is counsel’s further argument that Exhibit D3 was not objected to by the Claimant’s counsel at the time it was being tendered, and he did not give notice that any objections will be raised at the stage of final address, thus Exhibit D3 cannot be impugned for being inadmissible and wrongly admitted. See <b>IBORI vs. AGBI (2004) 6 NWLR (Pt. 868) 78 at 136</b>. Counsel urged the court to disregard the objections relating to Exhibit D3. Again, counsel contended that there is no basis for the Claimant counsel’s reliance on Exhibit C20 which was published in 2008. It is the further contention that all references and reliance on Exhibit C20 by the Claimant’s counsel is misconceived because Exhibit CA20 cannot apply retrospectively to the Claimant. The court was urged by counsel not to rely on Exhibit CA20 and dismiss the Claimant’s case as lacking in merit. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:4.0pt;font-family:"Comic Sans MS"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:2.0in;margin-bottom:.0001pt;text-align:justify;text-indent:.5in; line-height:normal"><b><u><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-font-width:105%; mso-ansi-language:EN-US;mso-bidi-language:HE">COURT’s DECISION<o:p></o:p></span></u></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">Having looked at the submissions of the learned counsels to the parties in their final written addresses let me now consider the case. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The facts of the Claimant’s case, as narrated in the further amended statement of facts and in his depositions adopted as his evidence in this matter, is as follows. He was initially employed by the Ahmadu Bello University, Zaria in 1974 but by a letter dated 13<sup>th</sup> August 1986, his service was transferred to the College of Technology, Owerri, which is now Federal Polytechnic, Nekede, the Defendant in this action. When his service was transferred to the Defendant, his service records in ABU Zaria, which include his employment letter, record of service, statutory declaration of age and summary of church history, were also transferred to the Defendant. He worked in the Defendant’s employment for a period of 20 years and 7 months from 1/1/1986 to 26/8/2006 and rose to become a Chief Lecturer within the period. In a letter dated 10/2/2006, he was given notice of retirement from the service of the Defendant with effect from 26/8/2006 which the Defendant stated would be the date he attains the age of 65 years. In a notice dated 9/5/2006, the Registrar of the Defendant informed the Bursar of the Defendant that the retirement date of the Claimant was 26/8/2006. The Claimant averred that although he accepted the retirement, the said date on which he was retired by the Defendant was wrong. This was because the Defendant erroneously entered 1941 as the year he was born instead of 26/8/1945 which is his correct date of birth. The Defendant however retired him on 26/8/2006 based on the mistake that he would be 65 years of age calculated from 1941. At the bursary however, the Bursar unilaterally reduced the Claimant’s retirement age to 60 years and backdated the retirement to 26/8/2001. His retirement benefits was, as a result, computed on the basis of retirement at 60 years on 26/8/2001. The Bursar claimed that the Claimant had attained retirement age before the Federal Circular which increased the retirement age of polytechnic lectures to 65 years. The Claimant contended that even if he was due for retirement in 2001, the said circular dated 21/11/2000 is applicable to him because it pre-dates the alleged retirement date of 2001. By the circular of 21/11/2000, he was entitled to retire at the age of 65 years. The position of the Bursar regarding the Claimant’s retirement age is not supported by his service records which include his declaration of age sworn in 1975. The Claimant also averred that he was in the service of the Defendant up to August 2006. Supposing his actual birth date is 26/8/1941 as claimed by the Defendant, the date he was retired on 26/8/2006 was the date he attained 65 years of age. The Claimant said this was even a premature retirement because, if calculated from his actual date of birth of 26/8/1945, his date of retirement at 65 years would have been on 26/8/2010. He protested the erroneous date of birth and requested for it to be corrected in letters he wrote to the Bursar, Rector and the Chairman of Council dated 9/9/2008, 30/10/2009 and 17/1/2011 respectively. Notwithstanding the error in his date of birth, he accepted the retirement and entered into contract service with the Defendant with effect from 27/8/2006. After his retirement in August 2006, the defendant, by a letter dated 26/8/2006, retained him on contract basis which was not a formal employment under the Public Service Rules or the Statute of the Defendant. The contract employment was approved by the Council of the Defendant in its meeting held on 8<sup>th</sup> and 9<sup>th</sup> March 2006. This contract was not in 2001 but in August 2006 after he had duly retired from service. The Claimant contended that the Bursar had no authority to convert his formal service between 2001 and 2006 to contract service as the retirement notice dated 10/2/2006 was never withdrawn by the Defendant. The Defendant eventually responded to his protests in a letter dated 5<sup>th</sup> June 2012 where it was stated that the Claimant duly retired from service on 26/8/2001. The Claimant averred that this position of the Defendant is at variance with the Public Service Rules and wrongful. The Defendant relied on circular dated 27<sup>th</sup> July 2007 in its insistence that the Claimant retired on 26/8/2001. The Claimant contended that the 2007 circular is not applicable to him as it was issued after his retirement and it cannot be applied retrospectively to his employment. The Claimant further stated that he suffered monetary losses when the Defendant backdated his retirement date. The Claimant proceeded to illustrate and compute the said monetary losses. He averred further that the sum of <s>N</s>580,461.36, which the National Pension Commission awarded to him through the Defendant following a pension verification exercise held at Alvan Ikoku College of Education in 2008, has not been paid to him by the Defendant. He also averred that he spent the sum of <s>N</s>2,500,000.00 in pursuing payment of the shortfalls of his entitlements.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">When the Claimant was cross examined by counsel to the Defendant, he told the court that he supplied 26/8/1941 as his date of birth to the Defendant when he supplied his personal data at the time of his acceptance of employment. This date of birth was stated only in the documents he submitted on 1/1/1986. Subsequent documents carry his date of birth of 26/8/1945. He knows that the Defendant retired him based on the age he supplied when he started work. It was the retirement notice that brought to his notice the fact that his age has been backdated to 1941 but he is not disputing the 1941 date of birth used in his retirement. He accepted 1941 as his date of birth but his grouse is that he is being paid pension and gratuity based on 27 years instead of 32 years<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The facts put forward by the Defendant in defence of the suit are as pleaded in the statement of defence and as contained in the evidence of DW1. It is the Defendant’s case that the declaration of age and baptismal card relied on by the Claimant are false because in a staff personal data form completed by the Claimant on 1/1/1986 when he resumed in the Defendant’s employment and another one he completed later on, he supplied his date of birth in both forms to be 26/8/1941. The Defendant relied on this information in computing the Claimant’s time of retirement. The record of service of the Claimant with ABU Zaria is different from the record of service of the Claimant with the Defendant. The Claimant worked in the Defendant’s employment from 1/1/1986 to 26/8/2006 but his full time employment was from 1/1/1986 to 26/8/2001. Although the Defendant issued the notice of retirement but at the time, the retirement age of staff of the Defendant was 60 years as prescribed in the law governing employment in the Defendant. Determination of age of retirement of staff of polytechnic is fixed by statute. The act of retiring the Claimant at the age of 65 years was not based on erroneous date of birth. Retiring the Claimant when he reached 65 years does not preclude the Defendant from computing the Claimant’s pensionable years of service on the basis of the then prevailing 60 years statutory retirement age of staff of the Defendant. The circulars of 21/11/2000 and 8/3/2007 were not valid because they were never gazetted nor incorporated into the Federal Polytechnic Service Rules contrary to Section 14 of Federal Polytechnics Act. Even then, the wrong clarification in these circulars was corrected in another circular of 27/7/2007 where it was restated that the retirement age for academic staff of polytechnic remained 60 years of age. The Claimant was retired from service when he attained 60 years of age on 26/8/2001 pursuant to the Federal Polytechnics Act, Section 14 of Public Service Rules 2000 and Pensions Act 1990. The service rendered by the Claimant beyond 26/8/2001 was unscheduled, different from the Claimant’s original employment and does not attract pension and gratuity. By a circular from PENCOM dated 20/11/2007, it made it clear that officers whose 60<sup>th</sup> birthday fell between the transitory period of 2004 to 2007 to the new scheme stood retired at 60 years of age under the 1990 Pension Act.</span><span lang="EN-GB" style="font-size: 12.0pt;font-family:"Comic Sans MS""> The Claimant retired as a Chief Lecturer and his entitlements were calculated on the basis of Chief Lecturer’s salary of August 2001 and not on Principal Lecturer’s salary of August 2001. When the Chief Lecturers salary was elevated to contendiss 15, all the Chief Lecturers had transited to the contributory pension scheme thus officers who were 60 years as at July 2007 were not part of the transition. The Claimant is not entitled to any of his claims because the calculation of the Claimant is wrong as they are based on wrong salary scale.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size:4.0pt;font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">Under Cross examination, DW1 stated that the Defendant gave the Claimant notice of retirement in 2006. From the date of birth of the Claimant to the time he was retired in 2006 was 65 years. The Claimant was 60 years in 2001. No retirement notice was issued to him in 2001. The retirement of the Claimant at 65 years of age in 2006 was consistent with Exhibit CA8 circular released in 2000. In the Claimant’s retirement letter, he was retired on attaining 65 years of age and there is no other letter withdrawing the retirement letter. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">In my assessment of this case, the issue involved is simple. The contention of the parties is this: the Claimant said by a circular dated 21/11/2000, which is in evidence as Exhibit CA8, he was entitled to retire at the age of 65 years and he was actually retired on 26/8/2006 when he attained 65 years vide Exhibit CA6. According to the Claimant, the Defendant however, in computing his retirement benefits, backdated his retirement to 2001 which act has affected his gratuity and pension payments. The Defendant admitted that the Claimant was retired on 26/8/2006 vide Exhibit CA6 but contended that by the provisions of the Public Service Rules 2000 and the Pensions Act 1990, the Claimant ought to have retired statutorily on 26/8/2001 when he attained 60 years of age and as a result, his retirement was taken back to that date. In brief, while the Claimant said he retired in 2006 when he attained 65 years of age, the Defendant said the Claimant’s retirement was in 2001 when he attained 60 years of age. Having identified what the dispute in this case is, I shall adopt only the 1<sup>st</sup> issue formulated for determination by the Defendant’s counsel in resolving this matter. The issue is: <b><i>Whether the defendant was justified by law in holding the claimant as having retired on 26/8/2001 and computing his pension and entitlements there from</i></b>. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant’s retirement</span><span lang="EN-GB" style="font-size:12.0pt;font-family:"Comic Sans MS""> letter is in evidence as </span><span style="font-size:12.0pt;font-family:"Comic Sans MS"; mso-ansi-language:EN-US;mso-bidi-language:HE">Exhibit CA6 dated 10/2/2006. It is stated in the 1<sup>st</sup> paragraph as follows:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size:12.0pt; font-family:"Comic Sans MS";mso-ansi-language:EN-US;mso-bidi-language:HE"> <b><i><u>“NOTICE OF RETIREMENT FROM SERVICE<o:p></o:p></u></i></b></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span style="font-size:12.0pt;font-family:"Comic Sans MS";mso-ansi-language:EN-US; mso-bidi-language:HE">Records available in our office show that you will attain Sixty-Five (65) years of age on 26<sup>th</sup> August 2006. Going by adopted regulation as it affects teaching staff, you are expected to retire statutorily from service of the Federal Polytechnic on that date.”<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">From the above content of Exhibit CA6, the Claimant was statutorily retired from the service of the Defendant on 26/8/2006 being the date he attained 65 years of age. Obviously, the Claimant was retired from the service of the Defendant on the basis of having attained 65 years of age on 26/8/2006. As seen from the case of the parties, what the Defendant did after the Claimant has been retired pursuant to the notice in Exhibit CA6 was to backdate the Claimant’s retirement date to 26/8/2001 on the ground that he was expected to have retired on that date. In determining the issue in this case, the first task is to find out which is the retirement age applicable to the Claimant. That is, at what age is the Claimant to retire from service?<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">It is not in doubt that statutory age of retirement of civil servants is provided by statute or in the PSR which itself is categorised as a statute. The counsels to the parties are in terms in this regards in their written addresses. In the case of the Claimant, however, he has placed the weight of his case on the circular of </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">21<sup>st</sup> November 2000</span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">, Exhibit CA8, which he said entitles him to retire at 65 years of age. I shall come to this position of the Claimant shortly. But first, let me examine the Defendant’s contention that the Pension Act 1990 was applicable to the Claimant’s retirement. In paragraphs 10, 15 and 19 of the statement of defence, the Defendant pleaded that the matter of retirement of staff of the Defendant is provided by statute and that the Claimant was retired on 26/8/2001 when he attained 60 years of age under the combined provisions of the Federal Polytechnics Act 1990, the PSR 2000 and the Pension Act 1990. The Defendant’s counsel cited Section 4 (1) of the Pension Act 1990 and submitted in this regard that it was the applicable statute when the Claimant reached 60 years of age on 26/8/2001 and he was expected to retire compulsorily on that date. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Pensions Act 1990 was repealed in 2004 by the Pension Reform Act 2004. That is to say the Pensions Act 1990 was in operation and effective until it was repealed in 2004. It provides as follows in Section 4:<o:p></o:p></span></p> <p class="MsoNoSpacing" style="margin-left:.5in;text-align:justify"><b><i><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">“Every officer shall retire upon attaining the age of sixty years so however that for officers retiring on or before 31<sup>st</sup> March 1977, the compulsory retirement age shall be fifty-five years.”<o:p></o:p></span></i></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">I observe that the Defendant’s counsel said, in his written address, that Section 4 (1) of the Pension Act 1990 is the same provision with Section 4 (1) of the Pension Reform Act 2004. I do not know where the Defendant’s counsel got the idea if he had read both Acts. The Pension Reform Act 2004, whether in its Section 4 or any other Section for that matter, does not have similar provision with Section 4 of the Pension Act 1990. The above provision of the Pension Act 1990 regulated retirement of officers in the civil service and was applicable to civil servants until 2004 when the Act was repealed. By the provision, civil servants who attain the age of 60 years up to 2004 have to retire statutorily from service. The Claimant’s counsel argued that the Pension Act 1990 cannot apply to the Claimant because it had been repealed when the retirement notice was issued to the Claimant in 2006. In view of this contention, to know whether the retirement age in the Pension Act 1990 applied to the Claimant’s retirement, we have to know the age of the Claimant up to the time of the repeal of the Act in 2004.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The date of birth of the Claimant is a contested issue in this case. In fact, I can say that it is a major cause of the dispute in this action. The Claimant averred that the date on which he was retired by the Defendant was wrong because the Defendant erroneously entered 26/8/1941 as the year he was born instead of 26/8/1945 which is his correct date of birth. His service record transferred to the Defendant from ABU Zaria, includes a statutory declaration of age sworn in 1975 and summary of church history which shows his date of birth as 26/8/1945. The Defendant however retired him on 26/8/2006 based on the mistake that he would be 65 years of age from 1941 and this was a premature retirement because, if calculated from his actual date of birth of 26/8/1945, his date of retirement at 65 years would have been on 26/8/2010. The Claimant also averred that he protested the erroneous date of birth and requested for it to be corrected in letters he wrote to the Bursar, Rector and the Chairman of Council dated 9/9/2008, 30/10/2009 and 17/1/2011 respectively. In the statement of defence, the Defendant averred that when the Claimant resumed in the Defendant’s employment on 1/1/1986, he completed two staff personal data forms at separate times and in both forms, the Claimant supplied his date of birth to be 26/8/1941. These forms are Exhibits D1 and D2 in evidence. The Defendant said this was the date of birth used by the Defendant in computing the Claimant’s time of retirement. The Defendant also averred that the record of service of the Claimant with ABU Zaria is different from the record of service of the Claimant with the Defendant. When the Claimant was cross examined, he admitted that he supplied 26/8/1941 as his date of birth to the Defendant when he supplied his personal data at the time of his acceptance of the employment. Although the Claimant further said this date of birth was stated only in the documents he submitted to the Defendant on 1/1/1986, he did also accept 1941 as his date of birth as he is not disputing the 1941 date of birth used in his retirement. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">What I piece together from these pieces of evidence is that among the Claimant’s service records transferred from ABU Zaria were statutory declaration of age sworn in 1975 and summary of church history which contains the Claimant’s date of birth as 26/8/1945, but when he resumed in the Defendant’s employment on 1/1/1986, he indicated 26/8/1941 in the personal data form as his date of birth. </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">Exhibit D1 is a staff personal data form filled by the Claimant on resumption with the Defendant on 1/1/1986. He stated his date of birth as 26/8/1941 and his age as 45 years. In Exhibit D2, Staff Record Sheet filled by the Claimant whilst in the Defendant’s employment, the Claimant stated his date of birth as 26<sup>th</sup> August 1941. </span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">It is thus clear that it was the Claimant who supplied 1941 to the Defendant in the information he submitted to the Defendant as his date of birth. </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">In Exhibit CA7, a letter dated 9/5/2006 from the office of Senior Staff Personnel to the Bursar of the Defendant on the Claimant’s retirement for purposes of computing his retirement benefits, it was stated that the Claimant’s date of birth was 26/8/1941. It is obvious that the </span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">26/8/1941 date of birth the Claimant supplied to the Defendant in Exhibits D1 and D2 forms was the date of birth the Defendant eventually used in computing the Claimant’s retirement. I now wonder how the Claimant can be heard to allege that the Defendant was in error to have used that date in retiring him. In light of the Claimant’s date of birth contained in the service record transferred from ABU Zaria and the information he gave to the Defendant in exhibits D1 and D2, it is obvious that the Claimant submitted two different dates of birth to the Defendant. The Claimant averred that he protested the error in his date of birth in letters dated 9/9/2008, 30/10/2009 and 17/1/2011 to the Bursar, Rector and the Chairman of Council of the Defendant. These letters were admitted as Exhibits CA9, CA10 and CA11 in evidence. I find that the protests were after he had left the Defendant’s employment and the effect of his indiscretion with regards to his date of birth had already taken toll. By his evidence under cross examination, the Claimant knew that he completed Exhibit D1 since 1/1/1986 and the date of birth he stated there was 1941. The Claimant did not tell this court what effort he made after that date to have the date changed. Exhibit D2 is another form he filled later on where he also indicated the same date of birth. These records were with the Defendant but the Claimant never took steps to correct the information until the information was used to retire him. In my view, the Claimant’s protests in Exhibits CA9, CA10 and CA11 were too late in the day.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant caused his problems when he was not consistent with stating his date of birth. I must say that inconsistency in date of birth is attended with serious consequences in the civil service. Therefore, I do not believe that the use of 1941 as the Claimant’s date of birth by the Defendant was an error. The Defendant is permitted in the circumstance to choose to work with the date of birth the Claimant submitted to it when he came into the Defendant’s employment. In any case, the Claimant has said he has no problem with being retired on the basis of the date of birth he supplied to the Defendant. See his averments in Paragraphs 10 and 19 of the further amended statement of facts. He, in fact, accepted his retirement on the basis of his date of birth of 26/8/1941. This averment put the dispute about the Claimant’s date of birth to rest. Accordingly, the date of birth of the Claimant in the record of the Defendant and which is to be considered in resolving the issue at hand is 26/8/1941. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">Now, 1941 to 2004 when the Pension Act 1990 was repealed was a period of 63 years. That is to say the Claimant was 60 years of age on 26/8/2001 which period the Pension Act 1990 was still in effect. I find that the provision of the Pension Act 1990 was still applicable when the Claimant reached 60 years in 2001. By Section 4 (1) of the Act, the Claimant was expected to retire compulsorily on 26/8/2001 when he attained 60 years of age. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">In relief 1, the Claimant sought a declaration that the Federal Circular No.HME/FME/216/VOL.1/18 of 21<sup>st</sup> November, 2000 signed by the Honourable Minster of Education is applicable to the Claimant in his retirement from the Federal Polytechnic, Nekede. </span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">As I have said earlier, the basis of the Claimant’s contention that he was entitled to retire at 65 years of age was the circular dated 21/11/2000 which document is in evidence as Exhibit CA8. It is on the strength of that circular that the Claimant found his claims in this action. The Claimant averred in paragraph 16 of the further amended statement of facts that he was entitled to retire at the age of 65 going by Exhibit CA8 circular and in paragraph 12 thereof, he contended that the circular pre-dates 26/8/2001 having been made in 2000, hence the extension of retirement age in the circular to 65 years applied to him. Exhibit CA8 is a letter from the </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">Federal Ministry of Education signed by the Minister at the time, Prof. Tunde Adeniran, informing the Executive Secretary, National Board for Technical Education that the Federal Executive Council, at its meeting of 15/11/2000, approved that 65 years retirement age is applicable to academic staff of Federal Polytechnics and colleges of Education. The purport of the letter or circular, as the Claimant refers to it, was to increase the retirement age of staff of Federal Polytechnics and Colleges of Education to 65 years. This of course, was done in view of the prevailing 60 years retirement age under the Pension Act 1990. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant, in his very confident reliance on the circular in Exhibit CA8, failed to show to this court that the Pension Act was at any time amended to incorporate the content of the circular. I have mentioned it earlier that the provision of Section 4 of the Pension Act 1990 is no longer in the Pension Reform Act 2004. That is to say, up to 2006 when the Claimant received Exhibit CA6, the issue of increasing retirement age of staff of Federal Polytechnics and Colleges of Education to 65 years was not covered by statute. That leaves me to wonder whether such a mere letter or circular in Exhibit CA8 can amend an express provision of an Act. I do not think so. </span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The said circular was released when the Pension Act 1990 was in effect. The content of the letter clearly conflicted with the provision of the Act. In that situation, in 2001 when the Claimant ought to have retired, no valid effect or performance could be ascribed to the circular because it was then a void circular. Furthermore, it is trite that </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">circulars are mere administrative documents for disseminating instructions in Government Organizations. They have no statutory authority on their own and have no legal effect whatsoever unless they are shown to have been issued under an Order, Act, Law or Statute. See <b>MAIDERIBE vs. F.R.N (2014) All FWLR (Pt. 717) 725 at 739</b>. On the face of Exhibit CA8, it is not shown to have been issued under an Order, Act, Law or Statute. The claimant has also not given evidence to this effect. Therefore, Exhibit CA8 does not have any legal effect or statutory authority. This is the same document the Claimant found his case. Since the circular had no effect at the time in 2001 when the Claimant was to retire under the Pension Act 1990 having attained 60 years of age, there was nothing that legally prevented the Claimant from retiring or be retired compulsorily on 26/8/2001.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant’s counsel has made reference to Rule 020810 (iii) of the PSR <u>2008</u> Edition, which is Exhibit C20 in evidence, and argued that the provision which allows academic staff of universities and tertiary institutions to retire at 65 years includes and covers staff of the Defendant. Let me say it at once that the PSR 2008 is not applicable to this case. The events in this matter did not happen beyond August 2006. Therefore, PSR made in 2008 cannot be considered retrospectively. In the result of all the forgoing, I find nothing to support the Claimant’s case that he was entitled to retire at 65 years of age.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 4pt; font-family: "Comic Sans MS";"> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">The Claimant attained 60 years of age on 26/8/2001 and by the provision of the applicable Pension Act at the time, the Claimant was to retire statutorily from service on that day. It is however clear that he was not retired on that day. He was eventually retired on 26/8/2006. The Claimant’s relief 2 is seeking a </span><span style="font-size: 12pt; font-family: "Comic Sans MS";">declaration that his retirement date is 26<sup>th</sup> August, 2006 as contained in Exhibit CA6 and not 26<sup>th</sup> August 2001. </span><span lang="EN-GB" style="font-size: 12pt; font-family: "Comic Sans MS";">This is where the pertinent question, which is the issue I have been trying to resolve in this suit, comes to play. Whether the Defendants can take the Claimant’s retirement back to 2001? The Defendant, whether by inadvertence or omission, left the Claimant in its employment without retiring him on 26/8/2001 contrary to the provision of a statute. It is trite that the provisions of statute are mandatory. Parties cannot by consent or acquiescence or conduct</span><span lang="EN-GB" style="font-size:12.0pt;font-family:"Comic Sans MS""> or consent alter or nullify the provisions of a statute. See <b>OLUFEAGBA vs. ABDUL-RAHEEM (2009) 18 NWLR (Pt.1173) 384</b>; <b>OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599</b>. It is also trite that where a statute directs a time for doing an act or provides how the act is to be done, it cannot be done otherwise. See <b>INYANG vs. EBONG (2002) FWLR (Pt.125) 703 at 744; F.G.N vs. ZEBRA ENERGY LTD (2002) FWLR (Pt. 142) 154 at 180</b>. In that vein, notwithstanding that the notice of retirement was issued to the Claimant to retire on 26/8/2006, I do not think that will prevent the provision of a statute under which the act was to be done from being deemed to have been done under the Act. Like I said, the Claimant ought to have retired in 2001. There was no basis at all for him to remain in the employment beyond 2001. It must be said that the period he spent in the employment beyond 2001 were unlawful. It is for these reasons the Defendant is justified in law to consider the Claimant to have retired on 26/8/2001. The Claimant did also contend that the retirement letter, Exhibit CA6, was never withdrawn. I do not think that is a necessary issue in the present circumstance. From the facts narrated by the Claimant, the Defendant’s conduct and correspondence have clearly indicated to the Claimant that his retirement has been considered from 2001. Therefore, the fact that the Defendant did not withdraw Exhibit CA6 is unnecessary. <o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size:12.0pt;font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size:12.0pt;font-family:"Comic Sans MS"">Reliefs (C) to (F) sought by the Claimant are computations of his retirement benefits which ought to accrue to him had his retirement be left at 65 years of age and the retirement date be left at 26/8/2006. Since it is my view in this case that the Defendant’s treatment of the Claimant’s retirement to be on 26/8/2001 cannot be tampered with as the Claimant ought to have statutorily retired 26/8/2001, these reliefs cannot be granted. Besides the lack of merit, giving effect to these reliefs is to allow the Claimant to benefit from an invalid and unlawful act. Reliefs (g) and (h) have not been proved to satisfaction. I shall dismiss them.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size:4.0pt;font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size:12.0pt;font-family:"Comic Sans MS"">Without wasting any more time on this matter, I find and hold that the Claimant’s case has no merit. The case is dismissed. No order as to cost.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size:4.0pt;font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size:12.0pt;font-family:"Comic Sans MS"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size:12.0pt;font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size:12.0pt;font-family:"Comic Sans MS""> </span></p> <p class="MsoNoSpacing" style="text-align:justify"><b><span lang="EN-GB" style="font-size:13.0pt;font-family:"Comic Sans MS"">Hon. Justice O. Y. Anuwe<o:p></o:p></span></b></p> <p class="MsoNoSpacing" style="text-align:justify"><span lang="EN-GB" style="font-size:12.0pt;font-family:"Comic Sans MS"">Judge<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"; mso-font-width:105%;mso-ansi-language:EN-US;mso-bidi-language:HE"> </span></p>