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REPRESENTATION PETER BERBIA for the claimant PATRICK EKURI with CHRIS ONUGBA for the 1st defendant ANGELA OBI for the 2nd defendant JUDGEMENT The Claimant instituted this suit vide Amended Complaint filed on 13th November, 2015 against the defendants jointly and severally, accompanied by the Statement of Facts, Written depositions of witness, List of Witnesses, List of Documents to be relied upon. WHEREOF THE CLAIMANT CLAIMS AS FOLLOWS: A declaration that the purported Quit Notice issued by the 1st Defendant is inconsistent with the contract of service between the Claimant and the Defendants and therefore IPSO FACTO, invalid, illegal, null and void and of no effect. An order directing the 1st Defendant to process and pay to the Claimant all unpaid allowances, underpaid allowances for the period between 2009 and 2014. An order for injunction restraining the Defendants from evicting the claimant from his apartment, until all his terminal benefits, unpaid allowances and underpaid salaries have been paid to him. Cost of litigation of N5,000,000.00 (Five million Naira) IN THE ALTERNATIVE General damages of N50,000,000.00 (Fifty Million Naira) to the Claimant for premature eviction from the 1st defendant’s quarters, the embarrassment, shame and inconvenience that would be caused by the actions of the Defendants, if the Claimant must vacate his apartment. On the record the Claimant’s Case is that the Claimant is a retired Senior Lecturer who taught in the Department of Technical Education and was retired in 2008 but thereafter, was engaged as contract staff in the same year. While awaiting the approval of the then Governor Liyel Imoke, he received his administrative approval from the 1st defendant to commence work immediately as his first two years contract service, in line with the University scheme of service. At the expiration of 2 years in 2010, his offer of contract appointment was received on 29th September, 2010 expressly referring to an application made in 2008. The purport of the reference being that the approval was retrospective as contemplated in the scheme of service. The claimant’s 1st application for a renewal was made on 10th July, 2011 in compliance with Chapter 2:6:4 of the scheme of service requiring a renewal application only after the first two years, the claimant was given 3 consecutive renewals between 2011 and 2013. Before the last contract expired on 30th September, 2014, the 1st defendant issued a 3 month Notice of non-renewal of contract of appointment dated 12th June, 2014, followed by a 3 month Notice to vacate tagged “Renovation of Staff Quarters†dated 2nd September, 2014. While contending that these letters were in violation of service of the University, claimant proceeded to seek redress in Court. STATEMENT OF DEFENCE filed on March 2nd, 2016. 2nd defendant admitted paragraph 4 of the Statement of Facts to the extent that the 1st defendant is an educational institution owned and sustained by the Cross River State Government through subvention allocated to it through the 2nd defendant. Denying paragraph 8 of the Statement of Fact, 2nd defendant averred that it is within the powers of the 1st defendant to hire and fore contract staff and not within the powers of the 2nd defendant to so do. 2nd defendant stated that they are not liable for the claims of the claimants as the claimant was a staff of the 1st defendant in the Department of Technical Education until his retirement in 2008. WHEREOF, the 2nd defendant urged the Honorable Court to dismiss this case as there is no cause of action against the 2nd defendant. The 1st Defendants filed their statement of defence on 5th May 2015 wherein they stated that the claimant had been paid all his entitlements that had anything to do with the 1st defendant. And that the claimant had been a contract staff since 2009 and that his contract was not yearly renewable. The 1st defendant’s case is that they had on the 14th June 2014 by way of letter of the same date notified that claimant that his then current contract would not be renewed. The 1st defendant deny ever serving the claimant a notice to Quit rather they maintain that the claimant, was given a Notice of Renovation of the Staff Quarters, following the Cross River State Government’s desire to improve the living conditions of its staff. Pleading that the renovation was in phased stages and that in refusing to relocate the claimant had delayed the planned renovations. The 1st defendant took stock with the non-pleading of the conditions of service by the claimant urging the court to dismiss the claimant’s suit. The defendants pleaded that contract staff are usually downgraded in placement excepting Professors and that there was never a time that 1st defendant agreed to correct the claimant’s level. The defendant maintain that the claimant is not entitled to any of the reliefs sought and further urged the court to refuse the claimant dismiss the suit as frivolous and wanting in merit. At the trial the claimant testified as CW, adopted his written statement on oath which was marked as Exhibit C and tendered four (4) other exhibits During examination in chief, CW testified that he felt unjustly treated to be asked to quit his residence when his entitlement were still unpaid, under cross examination the claimant further testified that he was 74 years old and that the provisions of the handbook that limited the age for contract staff to 70 does not apply to him as his department Technical Education was a special one with a dearth of personnel he even went on to testify that in his department they had lecturers who were even older, almost 80. With regard to the Notice to Renovation of Staff quarters Exhibit C1, the claimant testified that he saw no difference between the contents of C1 and a Notice to quit, and that he answered in the negative to the questions whether he was served with a Notice of Owners Intention to Recover Possession to a Writ of Possession. With regard to the letter of Non-renewal the claimant testified that he did not accept that it terminated his contract appointment arguing that his termination was subject to Council ratification. The defendants called two witnesses, the Legal Officer Special Duties Gift Asien who testified as DW1, adopted her statement on oath which was marked Exhibit D1 and went on to tender thirteen (13) other exhibits. Under cross examination DW1 testified that under contract after retirement the contract staff are usually given a step lower that their step while in service, that the claimant was no longer in their employ as at the expiration of the contract he ceases to be 1st defendant staff. With regards to D9 and D12, DW was unable to say whether these exhibits relate to correction of the claimants level stating that they could well have been written to satisfy National University Council (NUC). She further testified that she had not been paid her earned allowances and that there is an entitlement to a claim of unpaid earned allowances. She further testified that contract staff were permitted to stay in the staff accommodation. And that the conditions of service expressly provides that staff should vacate the premises when their entitlements have been paid. The 2nd defendants called the second defence witness Christopher Abia, the Director of Administration Ministry of Education Calabar, testified as DW2, adopted his witness statement on oath which was marked Exhibit D15, under cross examination by the claimant’s counsel he testified that his organization does not oversee the 1st defendant but that it is by law empowered to do all things so provided for in the act and they observe the 1st defendants and do not make recommendation on or to them. Under cross examination by the 1st defendant DW2 testified that “persons employed in the past had both Federal and State Government Share of their pension.†At the end of trial, parties were directed to file their final written addresses in line with the rules in this court. The 1st DEFENDANTS’ FINAL WRITTEN ADDRESS was filed on 20th September, 2016. With the ISSUE: Whether the claimant has proved his case to be entitled to judgment. 1st Defendant Learned Counsel, Chris Onugba Esq., pointed out that the question that begs an answer is:†whether the claimant has power to refuse to vacate the official quarters to enable the 1st defendant carryout renovations?†he submitted that parties are bound by their pleadings. GENEVA v. AFRIBANK (NIG.) LTD. (2013) ALL FWLR (PT. 702) 1652 @ 1678. Learned Counsel to the 1st Defendant, argued that the Court will not read into the document what was not contemplated and that all that was contemplated in the handbook is that amount and emoluments to be paid employers who are employees of the State Government. Furthermore, that an employee who has retired must vacate official premises as soon as all his gratuity has been paid by his employer and that the claimant is not an employee of the Federal Government. OBIKOYA v. WEMA BANK LTD. (1991) 7 NWLR (PT. 201) 119 @ 129, per Tobi, JCA (as he then was). He submitted that a party must establish facts in his pleadings by leafing credible evidence. But that in the instant case, claimant in paragraph 17 of the claim reeled a litany of non-payment of salaries to him without leading evidence on any, and not proving same. MOTOH v. MOTOH (2011) ALL FWLR (PT. 504) 73 @ 116 F-G, per Aboki, JCA. Learned Counsel to the 1st Defendant pointed out that claimant in paragraph 17 (e ) testified that he had been paid State pension but did not show when he was so paid, will he now have the court make such order?. AREMU v. CHUKWU (2011) ALL FWLR (PT. 598) 876 @ 896, per Salawu, JCA; AFRICAN CONTINENTAL SEAWAY LTD. v. NIGERIAN DREDGING POND & GENERAL WORKS LTD. (1977) 5 SC 235. He submitted that a party who prays the Court for reliefs must prove same and that all the unpaid salaries, including the prayers are reliefs prayed for. That they must be proved and not by mere speculation. ADEBEST TELECOM (NIG.) LTD. v. UBN (2011) ALL FWLR (PT. 557) 783 @ 797, per Denton-West, JCA; ODOM v. PDP (2013) ALL FWLR (PT. 698) 972 @ 989, per Fasanmi, JCA. The FINAL ADDRESS OF 2ND DEFENDANT dated and filed on 21st September, 2016. With the ISSUE: Whether from the totality of evidence before the Court there is any cause of action against the 2nd defendant. Learned Counsel Angela Obi (Mrs.) Senior State Counsel, Ministry of Justice, argued that there is no cause of action disclosed against the 2nd defendant and relied on the following cases for the definition of cause of action. ADEKOYA v. FEDERAL HOUSING AUTHORITY (2008) ALL FWLR 1452 @ 1453 HOLDING 1; STERLING PLANTATION & PROCESSING CO. LTD. v. CHIEF SOLOMON AKOTEYON AGBOSU & ORS. (2013) LPELR-22146 (CA). He submitted that the cause of action gives the claimant the right to sue and claim damages consequent to the wrongful act. IDACHABA v. ILONA (2008) ALL FWLR (PT. 1747 @ 1749. The FINAL ADDRESS OF THE CLAIMANT was filed on 21st September, 2016. With one ISSUE: Whether the purported termination of contract appointment by the issuance of 3 months’ notice of non-renewal of contract appointment and further 3 months to vacate quarters, simplicita, without more, was regular, lawful and/or sustainable having regards to the CRUTECH Staff Handbook and conditions of service? Learned Counsel to Claimant, Peter O. Bebie Esq., contended that assuming Exhibit C11 emanated from the University Council, the claimant was not given 2 months’ notice specified in Chapter 2:6:8 neither did the 1st defendant pay to the claimant the 2 months’ salary in the alternative. The 1st defendant rather issued a 6 months’ notice in two instalments as shown in Exhibit C1, C11. PATRICK ZHDEEH v. RIVERS STATE CIVIL SERVICE COMMISSION (2007) 14 WRN 89, per Mohammed, JSC. He submitted that the issuance of Exhibits C1 and C11 was not only premature, the 1st defendant having not paid the claimant all his gratuity and other unpaid entitlements, but also not procedural, having not complied with the terms and conditions regulating the employment. GOVERNOR OF EKITI STATE v. OJO & ORS. (2007) 16 WRN 62, per Abdullahi, JCA. Claimant Counsel contended that the proof of evidence of unpaid allowances and other entitlements leaves the 1st defendant with the burden to work out the figures which are within their own knowledge. That the official records of the 1st defendant cannot be accessible to the claimant, they being official documents of the institution. Furthermore, that the existence and authenticity of the various claims have been proved. COURT’S DECISION I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant has proved entitlement to the reliefs he sought in this suit. For avoidance of doubt the reliefs sought by the claimant are thus: A declaration that the purported Quit Notice issued by the 1st Defendant is inconsistent with the contract of service between the Claimant and the Defendants and therefore IPSO FACTO, invalid, illegal, null and void and of no effect. An order directing the 1st Defendant to process and pay to the Claimant all unpaid allowances, underpaid allowances for the period between 2009 and 2014. An order for injunction restraining the Defendants from evicting the claimant from his apartment, until all his terminal benefits, unpaid allowances and underpaid salaries have been paid to him. Cost of litigation of N5,000,000.00 (Five million Naira) With regard to relief 1 that the court make a declaratory order that the purported Quit Notice issued by the 1st Defendant is inconsistent with the contract of service between them and therefore IPSO FACTO, invalid, illegal, null, void, of no effect. This court is empowered by Sections 16, 17, 18 and 19 of the National Industrial Court Act 2006 in regard to Declaratory Reliefs. Specifically Section 19(b) 16 of the National Industrial Court (NIC) Act 2006, which empowers the court to grant declaratory orders BARRISTER EDET OKON ESSANG V. AKWA IBOM STATE GOVERNMENT & 3 ORS. [2015] 55 N.L.L.R PT.186 1- 164 @ pg. 93 Also in ABAJE Vs. OFILI (1986) LPELR SC it was held that “a declaration is a discretionary remedy which is generally exercised with caution. For a declaration to be made the plaintiff must establish that he is entitled to the relief claimed, it should be lawful, constitutional and equitable for the Court to grant. Enter 2 from Ipad (outbox 24/11) The claimant is asking the court to make a declaration based on Exhibit C as the purported Notice to quit. Exhibit C1, Reproduced below, CRUTECH/REG/SA/VOL.1/144 September, 2014 Mr. P.O. Bekomson House D Staff Quarters Calabar Campus Calabar. RENOVATION OF STAFF QUARTERS The Cross River State Government has approved a phased renovation of CRUTECH staff quarters. To carry out this Government directive, Management has grouped these houses into four categories, A-D. Your house falls in category A, and the renovation exercise of all houses in this category will commence in 3 months time. Consequently, you are hereby given 3 months from the date of this letter to vacate your house to pave the way for the renovation. Please, bear with us as this exercise is for the good of all occupants of CRUTECH quarters. We count on your understanding. Emmanuel Ikpi Registrar. The defendant have argued that Exhibit C1 does not amount to a notice to quit while the claimant maintains that Exhibit C1 to him is the same as a Notice to Quit. A notice to quit is a process serve between a landlord and tenant which determines the tenancy agreement, See A. P. LTD Vs. OWODUNNI [1991] LPELR 213 SC “it is settled that a notice to quit to be effective ought to determine a tenancy at the end of the current term of the tenancy. Looking at Exhibit C1, I do not find the ingredients of a Notice to quit, neither has the claimant put before the court any tenancy arrangement to which a notice to quit would apply, the case of the claimant before this court is that the claimant is entitled to his accommodation by virtue of his employment. that being the case the premises which he inhabited would not be subject to the recovery of premises procedure in isolation of his employment rules. What all this means is that the claimant has not provided satisfactory evidence to warrant the grant of the discretionary right of declaration. As the claimant has not brought to the court a Notice to quit by any standard the reliefs sought in relation to a Notice to quit cannot be granted as there is no satisfactory Notice to quit before the court. reliefs 1 and 4 therefore fail and cannot be granted. Relief 2 for an order that the 1st Defendant to process and pay to the Claimant all unpaid allowances, underpaid allowances for the period between 2009 and 2014. The defendants have rightly maintained that the claimant led no evidence as to what he was being owed as allowance arguing that a party who prays the Court for reliefs must prove same and that all the unpaid salaries, including the prayers are reliefs prayed for must be proved and not by mere speculation. While the claimant argued that the proof or evidence of unpaid allowances and other entitlements are within the knowledge of the 1st defendant and that the official records of the 1st defendant are not accessible to the claimant, being official documents of the institution. At the trial DW1 testified that she had not been paid her earned allowances and that the situation could ground a claim of unpaid allowances for the claimant. I am aware of the legal pronouncement that salaries and allowances are required to be specifically pleaded and proved as per LUTH & MB Vs. ADEWOLE [1996] 7 NWLR (Pt. 463) 701. However the recent pronouncement of the Supreme Court in EZE & ORS. v. GOVERNOR OF ABIA STATE & ORS. (2015) 53 NLLR (PT. 179) 299 CA @ 313 that where there is no evidence led to establish the sums due to the claimant as salaries and allowances no specific sum can be ordered by the court. In the circumstance that court can only order that the defendants pay the claimant all unpaid allowances, EZE & ORS. v. GOVERNOR OF ABIA STATE & ORS. Supra Relief 3 is for an order for injunction restraining the Defendants from evicting the claimant until all his terminal benefits, unpaid allowances and underpaid salaries are paid to him. BY virtue of Section 16 of the National Industrial Court (NIC) Act 2006, this Court has the power to grant an injunction in all cases in which it appears to the Court to be just or convenient so to do; and any such order may be made either unconditionally or on such term and conditions as the Court thinks just. The defendants in court had argued that they had paid the claimant all he was entitled to from them as gratuity (being the State Government share) and that any remainder would be Federal Government share, and that is not the 1st defendants responsibility to pay this Federal Government Share. DW2 testified that in the past employees of the state government were entitled to both federal and state share of gratuity. It is in evidence that the claimant worked with the 1st defendant and was a state government employee. the law of traverse requires that a person refuting a pleading make a clear statement responding to the pleading totally repudiating the statement in fact “ an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, a traverse that the defendant denies a named paragraph of the statement of claim but shall at the trial require the plaintiff to strictly prove the averments contained therein, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. SEE EL-TIJANI V. SAIDU [1993] 1 NWLR (PT. 268) 246; JACOBSON ENGINEERING LTD V. UBA LTD [1993] 3 NWLR (PT. 183) 586; LEWIS & PEAT (NRI) LTD V. AKHIMIEN [1976] 1 ALL NLR (PT. 1) 460; UBA LTD V. EDET [1993] 4 NWLR (PT. 287) 288; OHIARI V. AKABEZE [1992] 2 NWLR (PT. 221) 1; LSDPC V. BANIRE [1992] 5 NWLR (PT. 243) 620; DIKWA V. MODU [1993] 3 NWLR (PT. 280) 170; The defendants while admitting that the claimant was entitled to a “Federal share†made no effort to inform the court how the claimant was to come about this federal share particularly as throughout his working career life the claimant was a state government worker. What this means is that the claimant would, without more, be required to source his Federal share entitlement through the 1st defendant. I find. From the foregoing I find that the claimant is entitled to remain in the official residence until all his gratuity is paid. The wordings of exhibit C3 are quiet clear the words “all gratuity†As of today all his gratuity has not been paid and hence the provision of clause 10.2.9 of Exhibit C3 have not been met. Relief 3 therefore succeeds. Relief 4 is for N5,000,000.00 (Five million Naira) as Cost of litigation of this suit yet the claimant led no evidence as to how he arrived at the sum of N5 million or what ingredients make up this amount to enable the court make a just determination of same, the claimant has failed to prove his cost of N5million and hence this sum cannot be granted, this reliefs fails. For avoidance of doubt the claimants claim succeeds but only thus far; The defendant shall pay to the claimant all due and outstanding allowances and remuneration due to the claimants accordingly. The defendant are hereby restrained form evicting the claimant from his residential accommodation until three months after the full payment of all the claimants due gratuity which includes Federal Share. Cost of this suit is put at 100,000.00 payable by the defendant to the claimant within 60 days thereafter the sun of 10% will accrue as interest until liquidation. This is the court’s Judgement and it’s hereby entered accordingly. …………........................... Ho. Justice E. N. Agbakoba Judge