Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date:4TH JUNE, 2014 Suit No. NICN/ABJ/172/2012 BETWEEN ALHAJI SANI HARUNA CLAIMANT AND THE COUNCIL OF THE FEDERAL DEFENDANT POLYTECHNIC, BIDA REPRESENTATION Chris Ugbogu Esq for the Claimant. S. M. Zhigun Esq for the Defendant. JUDGMENT This is a transferred case from the Federal High Court, Minna to National Industrial Court, wherein the claimant by way of originating summons raised the following questions for the determination of the court:- 1. Whether having regard to the express and unambiguous provisions of the staff Manual and Scheme of Service of the Federal Polytechnic, Bida, which was made pursuant to the provisions of Section 25 of the Federal Polytechnic Act, CAP F17, Laws of the Federation of Nigeria, 2004; relating to the payment of staff salaries and allowances, is the plaintiff not entitled to the full payment of all his accumulated salaries and allowances upon his compulsory retirement from the services of the Polytechnic with effect from the 18th day of August, 2009? Upon the determination of the above question, the plaintiff shall claim the following reliefs against the defendant, to wit:- 2. A declaration that under the Staff Manual and Scheme of Service of the Federal Polytechnic, Bida which was made pursuant to the provision of Section 25 of the Federal Polytechnics Act, CAP F17, Laws of the Federation of Nigeria, 2004; the plaintiff is legally entitled to be paid the sun of N5,858,278.00 (Five Million Eight Hundred and Fifty-eight Thousand Two Hundred and Seventy-eight Naira) by the Federal Polytechnic, Bida being his accumulated salaries and allowances from the month of February, 2007 to the month of August, 2009 when he was compulsorily retired from the services of the Polytechnic. 3. A declaration that the refusal or failure of the Federal Polytechnic, Bida to pay the said accumulated salaries and allowances to the Plaintiff, is unlawful, oppressive, contrary to public policy and also amounts to a willful violation of the terms of the statutory contract of employment that was entered into between the plaintiff and the Federal Polytechnic, Bida. 4. An Order directing the Federal Polytechnic, Bida to pay the said sum of N5,858,278.00 (Five Million Eight Hundred and Fifty-eight Thousand Two Hundred and Seventy-eight Naira) to the plaintiff forthwith. 5. The sum of N2,000,000.00 (Two Million Naira) as general damages for the willful refusal or failure of the Federal Polytechnic, Bida to pay the said sum of N5,858,278.00 (Five Million Eight Hundred and Fifty-eight Thousand Two Hundred and Seventy-eight Naira) to the Plaintiff as at when due. 6. Cost of this action which shall be asserted upon the determination of this suit. In support of the originating summons are affidavit in support sworn to by Alhaji Sani Haruna the Plaintiff in this suit, list of witnesses and list of documents to be relied upon and the witness statement on Oath. The defendant’s counsel formulated the following three issues for the court’s determination:- 1. Whether or not the claimant signed Exhibit N8 and if so whether or not he is not bound by the terms therein. 2. Whether or not the claimant in the light of Exhibit N8; is not estopped from demanding payment of his arrears of salary between the months of February, 2007 to August, 2009? 3. AND OR whether or not on the face of Exhibit N8 the claimant has not waived his right to demand for the arrears of his salary for period between February, 2007 to August, 2009. On issue 1 formulated is whether or not the claimant signed Exhibit N8 and if so whether or not he is not bound by the terms therein. Counsel submitted that the above issue is necessary because Exhibit N8 is the back bone of the defendant’s defence to the claimant claim. In course of trial of this suit, the claimant denied being one of the makers or signatory to Exhibit N8. Even though, the court admitted Exhibit N8 in evidence, the court must be convinced that the claimant is a signatory to Exhibit N8 as the weight to be attached to the said exhibit by the court will be paramount in determining the totality of this case. Counsel argued that Exhibit N8 is a document dated 12th February, 2010 addressed to the Rector of the defendant wherein eight names/people appended signatures to the document including the claimant. The claimant is the first signatory in Exhibit N8. The vital poser is whether the signature in Exhibit N8 made against the claimant’s name is not his signature. During the hearing of this case on 23rd May, 2013 when the claimant testified, he admitted during cross examination to be the signatory to the following documents; a. An affidavit sworn at the Federal High Court Minna dated 17th day of April, 2012; b. An Affidavit sworn to a the Registry of National Industrial Court, Abuja dated 17th day of July, 2012; c. His written statement of Oath sworn to at the Registry of National Industrial Court, Abuja dated 14th day of December, 2012. d. His Additional written statement filed at the Registry of National Court, Abuja dated 18th day of April, 2012. Counsel then contended that all the above mentioned affidavits are in the record or file of this court. It is a recognized principle of law that the court has inherent power to look at documents in its file. From the above submissions and cited authorities, he urged this Honourable Court to:- (i) Look at the document mentioned at paragraph 3.6 above from the court file. (ii) Compare the claimant’s signature on the said documents with that of Exhibit N8. (iii) Hold that that the signature signed against the claimant’s name in Exhibit N8 is his signature. (iv) Give Exhibit N8 a full evidence value. Counsel finally urged the court on this issue to resolve the issue in favour of the defendant. On issue 2 Whether or not the claimant in the light of Exhibit N8; is not estopped from demanding payment of his arrears of salary between the months of February 2007 to August 2009. The defence of the defendant in this case is that the claimant having induced the defendant to post date his retirement period to commenced in the year 2009 and by a written document undertook not to demand payment of arrears of salaries (Exhibit N8) cannot now reverse to seek an order of the court for the payment of the said salaries. He submitted that the claimant having undertaken not to demand arrears of his salaries as aforesaid is binding on him by virtue of that undertaking (Exhibit N8) voluntarily signed by him. In the case of UBA PLC V ALIMIS NIGERIA LTD (2008) 42 WRN 85 R3, the court held that “A party who signs a document is bound by the terms therein unless he alleges non est factum, mistake, mispresentation or the like in contention Counsel said the claimant signed Exhibit N8 and did not plead any of the exception thereto and should therefore be bound by the terms therein. That in this case at hand, the claimant having voluntarily signed Exhibit N8, cannot by the doctrine of estoppel demand the payment of arrears of his salaries. It is based upon Exhibit N8 that the bursary department of the defednant’s bursary estopped the salary of the claimant by minutes in Exhibit N6. During the hearing of the case, the claimant testified before the court during cross examination that his work was not left undone in his absence from office. It follows therefore that the salary which would have been paid to him was paid to another person who performed the job he would have performed. In the case of PRINCE SEGUN SAMUEL SAIKI V OLURUNTOBA BAMIDELE SIMON & ORS (2011) 37 WRN 170 R2, the court of Appeal held that …. “If a man either in express terms or by conduct, makes a representation to another of the existence of a state of facts which he intends to be acted upon …. In the belief of the existence of such a state of facts ….to damage of he who so belief and so act, the first is estopped from denying the existence of such a state of facts …” Furthermore counsel referred to the Blacks Law Dictionary 6th Edition at page 551 defines Estoppel as thus “Estoppel means that party is prevented by his own acts from claiming a right to detriment of other party who was entitled to rely on such conduct and has acted accordingly”. Counsel then said in this case at hand, the defendant relied honestly in Exhibit N8 addressed to it by the claimant. It was based on the content of Exhibit N8 addressed to it by the claimant. It was based on the content of Exhibit N8 that the defendant wrote various letters such as Exhibits PW8 & PW9, intimating the Pension Commission that the retirement date of the claimant be made to be effective from August, 18th, 2009 instead of 9th February, 2007 as was initially communicated to the claimant in Exhibit PW2. It is clear that while the defendant keeps his promise, the claimant by the institution of this case, is out to blackmail the defendant by denying the existence of Exhibit N8. He submitted with respect that the claimant who honourably wrote and signed Exhibit N8 has the obligation to follow the path of honour by given effect to same. He urged the court to estop the claimant from denying the existence of Exhibit N8 which he voluntarily made. Issue No. 3 Whether or not on the face of Exhibit N8 the claimant has not waived his right to demand for the arrears of his salary for period between February 2007 and August 2009. Counsel submitted that assuming though not conceding that the reversion of the claimant’s dismissal to retirement takes effect on the 18th August, 2009 as contended by him; has the claimant not waived his right by virtue of Exhibit N8? Counsel referred to Section 2.21 of the Staff Manual and Schemes of Service which is the bases for the contract between the claimant and the defendant provides as follows: “payment of salary will cease from the date the officer resigns, withdraws his services; is dismissed, terminated, retired, dies or expiration of contract”. He then submitted with respect that the above quoted provision of the Staff Manual and Scheme of Service is directory and not mandatory. In the case of ODU’A INVESTMENT CO LTD V JOSEPH TAIWO TALABI (1997) 52 LRCN 2107 AT PAGE 2183 while quoting the Ration in ARIORI V ELEMO (1983) 1 SC 13, the court held as thus: “It is the law here in Nigeria as well as in England that if the object of a statute is not one of general policy, or if the thing which is not one being done will benefit only a particular person or class of persons, then the provisions of the statute are directory and not mandatory”. Counsel also referred to the provision of Section 2.21 of the Staff Manual and Scheme of Service (i.e. Exhibit PW II) is for the benefit of the claimant or employees of the defendant alone rather than the general public. The Supreme Court held at Ratio 5 page 211 in that case that “the law appears to be that a person who is suit juris can waive a right centered upon himself by statute where the right is for his sole benefit and the state has no interest”. That in this case at hand, the salary is for the benefit of the claimant alone. By Exhibit N8, he had waived his right since he had undertaken that he would not at all demand for his salary. The Supreme Court defined “waiver” in the case of ODU’A INVESTMENT CO LTD (SUPRA) at Ratio 10 Pg 2112 as thus “By way of general definition, waiver is the intentional and voluntary surrender or relinquishment of a known privilege and or right; it therefore, implies a dispensation or abandonment by the party waiving or a right or privilege which, at his option he could have insisted upon”. The court went further to say that “A person who is entitled to the benefit of a statutory provision may waive it and allow the transaction to proceed as though the provision did not exist”. The Black’s Law Dictionary, 5th edition defines waiver as “the intentional or voluntary relinquishing statement of a known right, the renunciation, repudiation, abandonment or surrender or some claim, right, privilege or opportunity to take advantage of some defect, irregularity of wrong”. In the case of ABACHA V EKE –SPIFF (2010) S 14 WRN 1 Ratio 19 Page 15 the Supreme Court of Nigeria held that “The concept of waiver, is that a person who under no legal liability and having full knowledge of his right or interest, intentionally decide to give them or some of them up, cannot be heard to complain that he was not permitted to exercised such rights or that he has been denied the enjoyment of those rights”. Counsel submitted that from the clear and unambiqious wordings of Exhibit N8 voluntarily signed by the claimant, it can be easily inferred that the claimant has intentionally and voluntarily relinquished his right to demand salaries of arrears from February 2007 – August 2009 and which act constitute a waiver. See also the case of ALHAJI YAKUBU OLATEJU V COMMISSIONER OF LAND & HOUSING KWARA STATE (2011) 12 WRN 36 R AND ALHAJI SENATOR AYINLA OLAMADA V MR. OLANIYI MUSTAPHA & ORS (2010) 40 WRN 46 RATIO 5 AT PG. 51. Counsel submitted that in case at hand, the claimant having voluntarily signed Exhibit N8 has waived his right to claim his arrears of salaries. He urged the court to resolve this issue in favour of the defendant. Conclusion He urged the court to dismiss the claims of the claimant with substantial cost. The learned counsel for the claimant raised the following five issue for determination:- 1. Whether upon an objective and impartial consideration of the contents of Exhibit PW3, which clearly and unambiguously states the true, correct and effective retirement date of the claimant from the services of the defendant to be the 18th day of August, 2009, can it be said that the said Exhibit PW3 was written by the defendant based on the contents of Exhibit N8? 2. Whether in view of the contents of Exhibit PW7 and PW10, can it be said that the claimant’s name was actually removed from the defendant’s staff payroll as contended by the defendant so as to deprive the claimant of his accumulated salaries and allowances as computed in Exhibit PW4? 3. Whether having regard to the entire facts and circumstances of this case, can it be said that, the defendant has effectively discharged the evidential burden of proving that Exhibit N8 was actually made by the claimant? 4. Whether there is anything on the face of Exhibit N8 to show that the author(s) thereof actually wrote the same for the purpose of enjoying the benefits of consolidated Tertiary Educational Institutions Salary Structure (CONTEDISS) instead of what they were ordinarily entitled to under the consolidated Tertiary Institutions Salaries Structure (CONTISS) as contended by the defendant? 5. Whether under the provisions of paragraphs 2.20 and 2.21 of the Staff Manual and Scheme of Service of the Federal Polytechnic, Bida, the claimant who was retired from the services of the Polytechnic on the 18th day of August, 2009 on the directive of the defendant is entitled to be paid his accumulated salaries and allowances up to the 18th day of August, 2009? Issue No. 1. 1. Whether upon an objective and impartial consideration of the contents of Exhibit PW3, which clearly and unambiguously states the true, correct and effective retirement date of the claimant from the services of the defendant to be the 18th day of August, 2009, can it be said that the said Exhibit PW3 was written by the defendant based on the contents of Exhibit N8? The learned counsel for the claimant referred to a letter written by the defendant to the claimant, titled, RE: RETIRMENT OF APPOINTMENT, dated the 9th day of November, 2009 wherein the defendant clearly and unambiguously informed the claimant that the claimant’s retirement from the services of the defendant took effect from the 18th day of August, 2009. The claimant has clearly and coherently explained the reason why Exhibit PW3 was written to him by the Registrar of the defendant. See paragraphs 12 to 15 of the claimant’s statement of facts dated the 13th day of December, 2012 and paragraphs 12 to 15 of the claimant’s written statement on Oath dated the 14th day of December, 2012. The claimant’s averment in this regard is to the effect that after his purported dismissal from the services of the defendant had been converted to retirement by the defendant at the 16th regular meeting of the defendant which was held on the 18th day of August, 2009 the defendant’s Registrar wrote a letter to him titled: RETIREMENT OF APPOINTMENT, dated the 9th day of November, 2009 notifying him about the claimant’s retirement from the services of the defendant took effect from the 9th day of February, 2007. See Exhibit PW2. The claimant further averred that upon the receipt of Exhibit PW2 from the defendant’s Registrar he promptly protested to the Registrar concerning the erroneous or wrong date which the Registrar had stated therein to be the effective date of his retirement from the services of the defendant and which valid and reasonable protest, prompted the Registrar to write Exhibit PW3 to him, wherein his correct and actual date of retirement from the services of the defendant was clearly and unambiguously stated by the defendant’s Registrar to be the 18th day of August, 2009 which is the vary day when the decision to convert his dismissal from the services of the defendant to retirement was actually made by the defendant. On the other hand, the defendant’s contention as to why Exhibit PW3 was written by the defendant’s Registrar to the claimant is to the effect that the same was written based on or pursuant to the representation which the claimant purportedly made to the defendant’s Rector vide Exhibit N8, titled LETTER OF UNDERTAKING, dated the 12th day of February, 2010. The defendant tried to bolster its said contention by stating that prior to when Exhibit N8 was allegedly written by the claimant and others, the defendant’s Rector, had written a letter to the Director General of the National Pension Commission titled: “Forwarding the list of Retired Staff for Verification” and dated the 20th day of January, 2010 wherein the Rector notified the National Pension Commission that the claimant’s retirement from the services of the defendant took effect form the 9th day of February, 2007. That letter with the purported list of staff referred to therein, were admitted in evidence and marked as Exhibits N10 and N10A respectively despite the objection that was raised admissibility by the claimant’s counsel. It should be noted here, that there is nowhere in the entire Exhibit N10 where the defendant’s Rector who is the author of the said Exhibit N10, specifically or expressly state that the claimant’s retirement’s retirement from the services of the defendant took effect form the 9th day of February, 2007. Also worthy of note at this juncture in relation to Exhibits N10 and N10A respectfully, is the fact that while the defendant’s Rector specifically and expressly made reference to “the list” of retired/resigned staff of the defendant and which staff are supposed to be twelve (12) in number as stated in Exhibit N10 dated 20th January, 2010 the list that was purportedly prepared and attached to Exhibit N10 i.e. Exhibit N10A and which was signed and dated the 3rd day of February, 2010 contains the names of only six ex-staff of the defendant. In other words, Exhibits N10 and N10A were written on two different dates i.e. 20th January, 2010 and 3rd February, 2010 respectively and they also made reference to two different and conflicting numbers of staff i.e. twelve and six respectively, when the two documents are supposed to contain uniform coherent and complementary information, if the documents were actually made in the ordinary course of running the affairs of the defendant. Furthermore, it is also note-worthy here that after the defendant’s Registrar had written exhibit PW3 to the claimant in the month of November 2009 as aforesaid all other letters that were subsequently written by the defendant concerning the claimant’s effective date of retirement from the services of the defendant, clearly and unambiguously stated the retirement date to be the 18th day of August, 2009. See Exhibits PW9 and PW10 respectively. What is more, even Exhibit PW7 dated the 15th day of February, 2012 which was written by the National Pension Commission to the claimant, clearly shows that the claimant’s records with the Commission also reveal that that the claimant’s retirement date from the services of the defendant is the 18th day of August, 2009 which was the last date the claimant’s pension’s account was closed. See paragraph 2 of Exhibit PW7. Counsel said it is also interesting to note here that in the defendant’s further attempt to urge that Exhibit PW3 was written by the defendant’s Registrar, based on the contents of Exhibit N8, the defendant also tendered a purported handwritten memorandum dated the 16th day of February, 2010 which was written on the letter handed paper or printed sheet of paper, bearing the name of “INTEGRATED HEALTH CARE LIMTIED” and which purported handwritten memorandum was also admitted in evidence and marked as Exhibit N9, despite the objection that was raised to its admissibility by the claimant’s counsel. It should be noted here that the author of Exhibit N9, made reference to some letters were attached to a copy of the said handwritten memorandum dated the 16th day of February, 2010 which was attached to the defendant’s statement of defence that was filed in this suit as mandatory required by the Rules of this Honourable Court. See Order 9 Rule 1 (c) of the National Industrial Court Rules 2007. Counsel said if the court takes a look at the copies of documents which were attached to the defendant’s statement of defence, the court will discover that no such letters were actually annexed or attached to the said handwritten memorandum that was attached to the defendant’s statement of defence. It should also be noted here that it was only at the hearing of this suit i.e. on the day when DW1 testified and some documents were tendered through him that a purported certified true copy of the said handwritten memorandum together with a purported certified true copy of the claimant’s letter of retirement dated the 9th day of November, 2009 were also tendered through the witness and the two documents were admitted in evidence and marked as Exhibits N9 and N9A respectively despite the objection that was raised to their admissibility by the claimant’s counsel. Counsel said that there is no neux whatsoever between the purported Exhibit N8 and Exhibit PW3 respectively. In other word, our efforts at highlighting the said facts is to prove to the court that Exhibit PW3 was not written by the defendant’s Registrar based on or pursuant to the contents of Exhibit N8 as being contended by the defendant in this case. The fact is that Exhibit PW3 has nothing to do with Exhibit N8 can be established from the following points to wit:- (a). Exhibit PW3 being a written document, no oral evidence is admissible to either contradict, add to, subtract from, modify or alter its contents. See Section 128(1) of the Evidence Act, 2011. My lord the wordings or contents of Exhibit PW3 are clear, simple and straight forward. There is no ambiguity whatever in Exhibit PW3. There is nowhere in Exhibit PW3, where the author thereof i.e the defendant’s Registrar, made any reference to the purported Exhibit N8 as the basis or reason for writing Exhibit PW3. The only letter which the author of Exhibit PW3 made reference to in the said letter is the defendant’s letter with reference No. FPB/SPF/C/712 dated October 7, 2009. Curiously, the defendant did not plead or tender in evidence, its letter dated October 7, 2009. Without any doubt, there is only one valid or logical reason, why the defendant failed to plead or tender the said letter in evidence in this case. The contents of the said letter would definitely be unfavourable to the defendant’s contention in this case, hence, the willful decision of the defendant to withhold the said letter from the eyes of this Honourable Court. See Section 167 (d) of the Evidence Act, 2011. See also the case of OPARAJI V OHANU (2001) FWLR (PT. 43) 385 AT 401 – 402 PARAS G – C. We respectively urge your lordship to so hold. (b). Exhibit PW3 is dated the 9th day of November, 2009 while the purported Exhibit N8 is dated the 12th day of February, 2010. This clearly shows that Exhibit PW3 was written long before Exhibit N8 was purportedly or allegedly written by the claimant. In other words, Exhibit PW3 predates Exhibit N8. What then is the basis of the defendant’s contention that Exhibit PW3 was written by the defendant to the claimant after Exhibit N8 had been allegedly written by the claimant? It is the counsel submission that in the normal course of official communication where one letter is said to be a reply or a response to another letter the reply or response must have or bear a date, which is latter in time than the first letter. In the instant case, the reverse appears to be the case. Exhibit PW3 which the defendant is contending to be a response to Exhibit N8, was written long before Exhibit N8 was allegedly made or written by the claimant. This is next to impossibility. He urged the court to hold that, it is practically and legally impossible for Exhibit PW3 to have been written as a response to Exhibit N8 which was not yet in existence as at the date when Exhibit PW3 was written by the defendant to the claimant. It is the counsel submission that both Exhibit N9 and N9A respectively cannot also avail the defendant in this case. This is so because the defendant has not offered any explanation as to why Exhibit N9, a purported official communication of the defendant was made or written on the letter headed paper or printed sheet of paper bearing the name of “INTEGRATED HEALTH CARE LIMITED”. We therefore respectfully urge your lordship to hold that the origin of Exhibit N9 is most doubtful and suspicious and no court of law can rely or make use of any document that is of doubtful origin. The defendant has also not offered any explanation as to why it failed or neglect to plead or tender in evidence, the so-called “letters” that were purportedly attached to Exhibit N9 by the author thereof. As already stated in paragraph 4.06 above, the defendant did not attach copies of the so-called letters that were mentioned in Exhibit N9 to the defendant’s statement of defence filed in this suit and having failed to attach copies of the said letters as required by the Rules of this Honourable Court, the defendant cannot therefore, tender the same through the back door and that was one of the grounds on which we had earlier on objected to the admissibility of Exhibits N9 and N9A respectively. Exhibit N9A was never pleaded by the defendant. It is therefore, irrelevant and inadmissible in evidence. The only document which the defendant pleaded in paragraph 16 of its statement of defence, is “a copy of the Rector’s memo to the Registrar dated 16th February, 2012”. What then is the basis for tendering and admitting Exhibits N9 and N9A in evidence in this case, when the document which was pleaded by the defendant in paragraph 16 of its statement of defence is different from what was eventually tendered and admitted as Exhibits N9 and N9A? Counsel therefore urged the court to also discountenance the said Exhibits N9 and N9A as they are of no moment or not in any way helpful to the defendant’s contention in this case. Counsel urged the court to completely discountenance Exhibits N9, N9A, N10 and N10A respectfully as they go to no issue in this case. This Honourable Court cannot rely and act on these Exhibits. They are not the documents that were pleaded by the defendant in its statement of defence. The defendant is bound by its pleadings and the law is that evidence which is at variance with pleadings goes to no issue. Such evidence cannot be admitted and if wrongly admitted, this Honourable Court as the trial court is at liberty to discountenance such inadmissible evidence in its Judgment, even if the inadmissible evidence was admitted without any objection. But in the instant case, their admissibility was vehemently opposed to by the claimant’s counsel. This is so because the court is only entitled or empowered to rely and act on legally admissible evidence. See the case of:- i. ALHAJI AHMED GARBA BICHI & ORS V ALHAJI IBRAHIM SHEKARAU (2009) ALL FWLR (PT. 500) 682 AT 704 PARA D. . ii. OMEGA BANK NIG. LTD V O. B. C. LTD (2005) ALL FWLR (PT. 249) 1964 AT 1990 PARA F. iii. NEPA V CHIEF ETIM INAMETI (2002) FWLR (PT. 130) 1695 AT 1722 PARA B. iv. SHANU & ANOR V AFRIBANK NIGERIA PLC (2003) FWLR (PT. 136) 823 AT 852 PARAS F – G, where the Supreme Court held inter alia, that:- …. in a trial by a Judge sitting alone, if inadmissible evidence has been received whether with or without objection, it is the duty of the Judge to reject it when giving Judgment and if he has not done so it will be rejected on appeal. Furthermore, counsel submitted that apart from Exhibit PW3 which clearly and unambiguously stated the retirement date of the claimant from the services of the defendant to be the 18th day of August, 2009, there are other letters written by the defendant to corroborate that fact. See Exhibits PW8 and PW9. See also paragraph 2 of Exhibit PW7 which clearly shows that the 18th day of August, 2009 was the last day the claimant’s pension account with the National Pension Commission was closed. In sum counsel urged the court to answer issue No 1 in the negative and to hold that Exhibit PW3 was not written by the defendant to the claimant based on the contents of Exhibit N8 or any other Exhibit at all. He urged the court to hold that having regard to the clear and unambiguous contents of Exhibit PW3, the claimant’s retirement from the services of the defendant took effect from the 18th day of August, 2009. Issue No. 2 Whether in view of the contents of Exhibits PW7 and PW10, can it be said that the claimant’s name was actually removed form the defendant’s staff payroll as contended by the defendant so as to deprive the claimant of his accumulated salaries and allowances as computed in Exhibit PW4? With regard to issue 2, counsel referred to paragraph 17 of the defendant’s statement of defence, the defendant averred that the claimant’s salary was stopped and his name removed from the defendant’s payroll by the defendant’s Bursary Department as soon as the Bursary Department received a copy of the claimant’s letter of dismissal dated the 9th day of February, 2007. See also paragraph 17 of the written statement on Oath of Mallam Mohammed Baba Ndada dated the 28th day January, 2013. However, in the course of proving his claims against the defendant in this suit, the claimant pleaded and tendered in evidence, Exhibits PW7 and PW10 respectively in order to show that the defendant’s contention in this regard, is totally untrue and incorrect. Exhibit PW7, is a letter written to the claimant by the National Pension Commission, wherein the claimant was notified about his total pension contributions and entitlement. On the other hand, Exhibit PW10, contains the claimant’s monthly salary pay slips for the months of July and August, 2009 as duly prepared by the Bursary Department of the defendant. In Exhibit PW7, the National Pension Commission stated in clear terms, that the claimant’s monthly pension contribution ended on the 18th day of August, 2009. This clearly means that the defendant as the employer of the claimant duly remitted the claimant’s monthly pension contribution to the National Pension Commission up to the 18th day of August, 2009 when the claimant eventually retired from the services of the defendant. This fact as contained in Exhibit PW7 was never denied by the defendant in this case. Apart from Exhibit PW7, the claimant also pleaded and tendered in evidence, Exhibit PW10 which contains the claimant’s salary pay slips for the months of July and August, 2009 as duly and correctly prepared by the Bursary Department of the Defendant. It should also be noted here that the defendant did not in any way deny the authorship of these salary pay slips that were prepared by the Bursary Department of the defendant in the name and in favour of the claimant. It is trite law that any averment in pleadings that is not expressly denied, is deemed to be admitted by the adverse or opposing party. He urged the court to so hold in respect of the claimant’s averments relating to both Exhibits PW7 and PW10 in this case. Counsel said that if it is true, as being contended by the defendant in this case, that the claimant’s salary was actually stopped and his name duly removed from the defendant’s payroll, where then was the defendant getting the money that it was remitting to the National Pension Commission on monthly basis, up to the 18th day of August, 2009 when the claimant effectively retired from the services of the defendant? Furthermore, why was the Bursary Department of the defendant still preparing the salary pay slips of the claimant up to the 18th day of August, 2009 as evidence by Exhibit PW10? These are valid and cogent questions begging for answers in this case and which questions, the defendant has woefully failed or neglected to provide any answer. The defendant having failed or neglected to provide answers to the above mentioned questions, we hereby respectfully urge your lordship to rely and act on the averments in paragraph 8 of the claimant’s reply to the defendant’s statement of defence and paragraph 8 of the claimant’s reply to the defendant’s statement of defence and paragraph 10 of the claimant’s additional written statement on Oath that is attached to the claimant’s salary was never stopped and the claimant’s name removed from the defendant’s pay roll by the Bursary Department of the defendant as unfoundedly alleged by the defendant in this case. Furthermore, counsel urged the court to hold that the claimant’s accumulated salaries and allowances for the month of February 2007 to the month of August 2009 as computed by the claimant vide Exhibit PW4 and in conformity with the relevant Federal Government approved salary schemes, namely Consolidated Tertiary Institutions Salaries Structure (CONTISS) and the Consolidated Tertiary Educational Institutions Salary Structure (CONTEDISS) respectively which are applicable to the defendant (see Exhibits accumulated salaries and allowances for the said period of time, since the defendant has woefully failed or neglect to come out with a computation that is in any different from or is at variance with the contents of Exhibit PW4. In sum counsel urged the court to answer No.2 in the negative and to hold that the claimant’s salary was never stopped and his name removed from the defendant’s payroll by the Bursary Department of the defendant and the claimant is therefore duly entitled to be paid by the defendant, the sum of N5,512,021.00 (Five Million Five Hundred and Twelve Thousand and Twenty-one Naira) Only being the claimant’s accumulated basic salaries and allowances from the month of February 2007 to the month of August 2009 when the claimant was retired from the services of the defendant. Issue No. 3 Which is whether having regard to the entitle facts and circumstances of this case, can it be said that the defendant has effectively discharged the evidential burden of proving that Exhibit N8 was actually made by the claimant? The learned counsel of the claimant submitted that in an attempt to prove that Exhibit N8 was allegedly made or written by the claimant, the defendant pleaded a copy of an agreement/undertaking dated 12th February, 2010 in paragraph 15 of its statement of defence. Counsel further submitted that Mohammed Baba Ndena also statement in paragraph 15 of his witness statement on Oath that he will tender a copy of the said agreement/undertaking dated 12th February, 2010 at the hearing of the suit. That at the hearing of the suit the defendant tendered a copy “of the said agreement/undertaking dated 12th February, 2010 which the defendant pleaded as aforesaid and marks Exhibit PW1 which Mallam Mohammed Baba Ndena is said to be Exhibit N8 titled: LETTER OF UNDERTAKING which the defendant claimed by the claimant and other ex-staff of the defendant. The claimant further contended that the document which the defendant pleaded in its statement of defence titled: Agreement/Undertaking is clearly different from and can never be the same document titled: letter of Undertaking. He contended that the document is totally irrelevant to this case in so far as it was not the document that was expressly pleaded by the defendant in the statement of defence. The court therefore ought to discountenance Exhibit N8. Furthermore, the claimant submitted that claimant clearly and forcefully denied the authorship and knowledge of the said letter of undertaking and also under cross examination. That having joined issues on the authorship of the said letter it is incumbent on the defendant to plead an adduce sufficient and credible evidence to establish the fact that the said letter was actually written by the claimant. Counsel relied on Sections 131 and 133 of the Evidence Act, 2011 that this the defendant has failed to prove. The claimant further submitted that the defendant did not plead or tender any other document(s) or called an expert witness to show that the signature on the said Exhibit N8 is the claimant signature. Claimant further submitted that the defendant placed heavy reliance on affidavit and written statement on Oath in their final written address to say that the claimant signature on this document is similar to the one on these documents and wherein he urged the court to carryout the comparison of these signatures outside the court. The said affidavits and written statement on Oath which were referred to by the defendant’s counsel under cross examination and which where not tender evidence in this case are totally irrelevant and unhelpful to the court in determining the authorship of Exhibit N8. This is because the law is trite that such documents are dumped in the court, or merely referred to in person without any oral evidence of a witness to explain their essence or contents are valueless and unhelpful to the proceedings, in that the document were merely shown to the claimant under cross examination and were not tender in evidence in this case. Counsel relied on Section 101(2) of the Evidence Act. 2011 that the proof of or comparison of the signatures or writings must be done in the open court. Claimant also relied on the cases of Chima V Ezea (2009) All FWLR (Pt. 470) 659 at 748 and NA UMBA V NAHHUCHE (2010) All FWLR (Pt. 506) 1963 at 1974 to 1975 paras F – C, AMACHREE V GOODHEAD (2009) ALL FWLR (461) 911 AT PAGE 940 PARAS C –G, TERAB V LAWAN (1992) 3 NWLR (PT. 321) 569 AND THE QUEEN V WILCOX (1961) ANLR (VOL. 1) 658 AT 660 PARA 4 – 661 PARAS 1 – 3. That having regard to the above numerous judicial authorities of both the Court of Appeal and the Supreme Court the court should not embark on the examination of documents outside the court room. Claimant therefore urged the court to refuse the defendant’s counsel’s invitation to compare the claimant’s signature on the said affidavits and written statement on Oath with the signature on Exhibit N8. The claimant therefore urged the court to answer issue no. 3 in the negative and hold that the defendant has fully failed to proof that Exhibit N8 was actually made or written by the claimant. Issue No. 4 Whether there is anything on the facts of Exhibit N8 to show that the author(s) thereof actually wrote the same for the purpose of enjoying the benefits of Consolidated Tertiary Educational Institution Salary Structure (CONTEDISS) instead of what they were ordinarily entitled to under the Consolidated Tertiary Institutions Salaries Structure (CONTISS) as contended by the defendant? On this issue counsel submitted that according to the defendant Exhibit N8, is an agreement/undertaking that was allegedly made or written by the claimant and other ex-employees of the defendant for the purpose of enjoying the benefits of the Consolidated Tertiary Educational Institutions Salary Structure (CONTEDISS) instead of what they were ordinarily entitled to under the Consolidated Tertiary Institutions Salaries Structure (CONTISS). See paragraphs 12, 13, 14 and 15 of the defendant’s statement of defence and paragraphs 12, 13, 14 and 15 of the written statement on Oath of Mallam Mohammed Baba Ndana. Counsel submitted that this assertion by the defendant is not only untrue and unsubstantiated but the same is also clearly contrary to public policy. In the instant case, the claimant has clearly and vehemently denied the authorship and knowledge of the said Exhibit N8 and the defendant has also failed to prove that the said Exhibit was actually made or written by the claimant. See our submissions under our issue no. 3 above. My lord it is our respectful submission that even if Exhibit N8 was actually written by the claimant which is denied there is nothing in the said Exhibit N8 to suggest or to show that the same was written by the authors thereof for the purpose of enjoying the benefits of the Consolidated Tertiary Educational Institutions Salary Structure (CONTEDISS) instead of what they were ordinarily entitled to under the Consolidated Tertiary Institutions Salaries Structure (CONTISS). He submitted it is manifest from the contents of Exhibit N8 that the authors thereof did not mention any type or form of salary scheme or structure in the said letter. No mention was made of either CONTEDISS or CONTISS in Exhibit N8. It is not legally permissible to read into a document what is not contained therein and that is exactly what the defendant wants this Honourable Court to do with Exhibit N8 by urging the court to read into or add to or to modify the contents thereof. The contention of the defendant in this regard clearly violates the provision of Section 128(1) of the Evidence Act 2011. He urged the court to hold that there is nothing in Exhibit N8 to show that it was made or written by the authors for the purpose of enjoying the benefits of the Consolidated Tertiary Educational Institutions Salary Structure (CONTEDISS) instead of what they were ordinarily entitled to under the Consolidated Tertiary Institutions Salaries Structure (CONTISS). It is the counsel further submission that the defendant’s assertion in this respect to the effect that it was the defendant’s Rector who permitted or suggested to the claimant to write Exhibit N8 so as to enable the claimant enjoy the benefits of the Consolidated Tertiary Educational Institutions Salary Structure (CONTEDISS) instead of what he was ordinarily entitled to under the Consolidated Tertiary Institutions Salary Structure (CONTISS) (which is vehemently denied by the claimant) is also contrary to Public policy. This is so, because how can a public servant like the defendant’s Rector, agree to post date the retirement date of the claimant for the sole purpose of earning a higher pension benefits than he was ordinarily entitled to? In this a credible story? And if it is, it not contrary to public policy for the defendant’s Rector to have willfully or consciously acceded to an arrangement that would unjustly enrich the claimant at the expense of the National Treasury? He urged the court to discountenance the defendant’s assertion in this regard and to hold that the said assertion is clearly contrary to Public Policy which this Honourable Court cannot believe or act upon. Issue No. 5 Whether under the provisions of paragraphs 2.20 and 2.21 of the Staff Manual and Scheme of Service of the defendant (Exhibit PW11) the claimant, who was retired from the services of the defendant on the 18th day of August, 2009 on the directive of the defendant, is entitled to be paid his accumulated salaries and allowances up to the 18th day of August, 2009? Counsel submitted that from the contents of Exhibits PW3, PW7, PW8 and PW9 it is very glaring and indisputable that the claimant’s retirement from the services of the defendant took effect from the 18th day of August, 2009. Counsel submitted that the combined effect of the express and unambiguous provisions of paragraphs 2.20 and 2.21 of the Staff Manual and Scheme of Service of the defendant (Exhibit PW11) is that the claimant is legally entitled to all his salaries and allowances due to him up to the 18th day of August, 2009 when he was so retired. That the right of the claimant to continue to earn salaries and allowances from the defendant came to an end or ceased form that date i.e. the 18th day of August, 2009. For ease of reference, he reproduced the provisions of paragraphs 2.20 and 2.21 of the Staff Manual and Scheme of Service of the Federal Polytechnic, Bida. On first appointment, salaries will be payable from the date on which the officer assumes duty. Payment of salary will cease from the date the officer resigns, withdraws his service, is dismissed, terminated, retired, dies, or on expiration of contract (Underlining for emphasis). Counsel said that a community reading of the above mentioned provisions of the Staff Manual and Scheme of Service of the defendant which are clear and unambiguous, clearly shows that an officer or employee of the Polytechnic (the defendant herein) has the right to start earning salaries from the very first day the officer or employee assumes duty and that right which he continues to enjoy in the course of his employment can only cease to exist or come to an end from the date the officer or employee either resigns or withdraws his service or is dismissed or when his appointment is terminated or when he is retired or dies or when his contract of employment expires. He then submitted that in the instant case, the claimant’s right to continue to enjoy his salaries from the defendant came to an end on the 18th day of August, 2009 when he was retired from the services of the defendant. However, the claimant is legally entitled to access and enjoy all his salaries and allowances due to him before the 18th day of August, 2009 when he was retired by the defendant. This therefore forms the legal basis of the instant claimant’s suit against the defendant. In arguing this issue, counsel inviting the court to make a pronouncement on the effect and purport of the express and unambiguous provisions of paragraphs 2.20 and 2.21 of the Staff Manual and Scheme of Service of the defendant relating to the right of the claimant to earn his salaries and allowances up to the date of his retirement from the services of the defendant. In other words, counsel inviting the court to interpret and apply the provisions of paragraphs 2.20 and 2.21 of the Staff Manual and Scheme of Service of the Federal Polytechnic, Bida, vis-à-vis the claimant’s right to earn his salaries and allowances up to the date of his retirement from the services of the defendant. That the facts on which the claimant’s claims are premised in this case have been summarized in paragraphs 2.01 to 2.02 of this address. He submitted that it is not in doubt that the words used in drafting the above mentioned paragraphs of the Staff Manual and Scheme of service of the defendant relating to the right of the claimant to earn his salaries and allowances up to date of his retirement from the services of the defendant. In other words, counsel inviting the court to interpret and apply the provisions of paragraphs 2.20 and 2.21 of the Staff Manual and Scheme of the Federal Polytechnic, Bid avis-a-vis the claimant’s right to earn his salaries and allowances up to the date of his retirement from the services of the defendant. That the facts on which the claimant’s claims are premised in this case, have been summarized in paragraphs 2.01 and 2.02 of this address. He submitted that it is not in doubt, that the words used in drafting the above mentioned paragraphs of the Staff Manual and Scheme of Service of the defendant are very clear, simple and unambiguous. He urged the court to interpret the words used in the said Staff Manual Scheme of Service by giving them their plain, ordinary and grammatical meaning and for the court to hold that in accordance with the spirit and letter of the above mentioned paragraphs of the said Staff Manual and Scheme of Service, the claimant is legally entitled to be paid all his accumulated salaries and allowances by the defendant up to the 18th day of August, 2009 when the claimant was retired from the services of the defendant. See the case of Balogun V Agbara Estates Limited (2008) ALL FWLR (Pt. 438) 388 at 405 Para D. He further submitted that the Staff Manual and Scheme of Service of the defendant is a Regulation or Manual made by the defendant pursuant to the provisions of Section 25 of the Federal Polytechnics Act, CAP F17, Laws of the Federation of Nigeria, 2004. Therefore, the said Manual and Scheme of Service has or enjoys statutory flavour and which makes it totally binding on the defendant. The defendant must obey the contents of he said Manual and Scheme of Service to the later. We respectfully urge your lordship to so hold. In the case of Atamah V Ebosele (2009) ALL FWLR (Pt. 473) 1385 at 1401 Para B, the Court of Appeal held as follows:- Laws and regulations are meant to be obeyed and they should be obeyed to the letter. He also submitted that the defendant has no justifiable reason(s) whatsoever for refusing or failing to pay the claimant his outstanding accumulated salaries and allowances amounting to N5,512,021.00 (Five million Five Hundred and Twelve Thousand and Twenty-one Naira) Only for the months of February 2007 to August 2009 when the self-same defendant had duly deducted his monthly pension contributions from his salaries for the same period of February 2007 to August 2009 and remitted the same to the National Pension Commission for onward transmission to the claimant’s Pension Fund Administrator. Exhibit PW7 clearly shows that the claimant’s monthly pension contributions were paid by the defendant up to the 18th day of August, 2009. That this fact was duly acknowledged by the National Pension Commission in paragraph 2 of the said Exhibit PW7. Without any doubt, the payment of the claimant’s monthly pension contributions up to the 18th day of August, 2009 was made by the defendant from the claimant’s monthly salaries for the period of February, 2007 to August 2009. That this is so because it is the employer under Section 11 (5) (a) and (b) of the Pension Reform Act. Cap P4, Laws of the Federation of Nigeria, 2004 that has the right to deduct at source, the monthly pension contribution of an employee and to remit the same together with the employer’s contribution to the Pension Fund Custodian within seven working days from the day the employee is paid his salary. It is the counsel submission that the defendant having deducted the claimant’s monthly pension contributions from the claimant’s monthly salaries for the period of February 2007 to August 2009 and duly remitted the same to the Pension Fund Custodian as reflected in the said Exhibit PW7, the defendant, has no reason whatsoever, for refusing or failing to pay the balance of the claimant’s accumulated salaries and allowances for that same period of time to the claimant. It is his further submission that the payment of the claimant’s monthly pension contributions for the period of February, 2007 to August,2009 by the defendant as aforesaid clearly reveals the fact that, the claimant was duly entitled to his monthly salaries and allowances for that same period of time. See Exhibit PW10, that was prepared by the Bursary Department of the defendant and which contains the details of the claimant’s salaries and allowances for the month of July and August, 2009. If it were not so, the question is, what was the source of the claimant’s monthly Pension contributions that were remitted to the claimant‘s Pension Fund Custodian by the defendant for that same period of time? Counsel urged the court to hold that the claimant’s monthly Pension contributions that were remitted to the claimant’s Pension Fund Custodian by the defendant were deducted from the claimant’s legitimate monthly salaries for the months of February, 2007 to August, 2009. Finally, he urged the court to hold that the claimant is entitled to be paid by the defendant, the sum of N5,512,021.00 (Five Million Five Hundred and Twelve Thousand Twenty- one Naira) being the outstanding accumulated salaries and allowances of the claimant after the deduction of his monthly pension contributions from his monthly salaries for the months of February, 2007 to August, 2009. Counsel further said that the defendant is also liable to pay damages to the claimant for the defendant’s willful refusal or failure to pay the claimant’s salaries and allowances to him as at when due. The willful refusal or failure of the defendant to pay the claimant’s salaries and allowances as aforesaid has caused the claimant, untold hardship, inconveniences, psychological trauma and deprivation. See paragraph 25 and 26 of the claimant’s statement of facts and the claimant’s written statement on Oath dated the 14th day of December, 2012 respectively. We respectfully urge your lordship to so hold. Furthermore, counsel urged the court to discountenance the defendant’s counsel’s submission to the effect that the claimant has waived his right to demand for the payment of the said sum of N5,512,021.00 (Five Million Five Hundred and Twelve Thousand and Twenty-one Naira) from the defendant in view of the contents of Exhibit N8 is totally irrelevant to this case because it is not the document that was pleaded by the defendant that was eventually tendered by the defendant and admitted in evidence as Exhibit N8. He contended above, that since the claimant has clearly and convincingly denied the authorship and knowledge of the said Exhibit N8, it is incumbent upon the defendant to prove that Exhibit N8 was actually made or written by the claimant and which evidential burden the defendant could not discharge in this case. It id also his submission herein before that Exhibit PW3 which clearly states the retirement date of the claimant to be the 18th day of August, 2009 was not based on Exhibit N8. Counsel submitted that having regard to the foregoing legal arguments on the effect of Exhibit N8 in this case there is no way that the claimant can be said to have waived his right to demand for the said sum of N5,512,021.00 (Five Million Five Hundred and Twelve Thousand and Twenty-one Naira) from the defendant when the said Exhibit N8 is of no moment to this case. Counsel urged the court to so hold. In conclusion, counsel urged the court to grant the entire claimant’s reliefs as claimed in this suit, based on the foregoing facts and legal submission. In this address we have submitted on behalf of the claimant as follows:- a. That Exhibit PW3 was not written by the defendant to the claimant based on or pursuant to Exhibit N8 which the defendant unfoundedly alleged was written by the claimant and other ex-employees of the defendant. b. That Exhibits PW3, PW7, PW8 and PW9 clearly and unambiguously stated that the claimant retired from the services of the defendant with effect from the 18th day of August, 2009. c. That Exhibit N8 is irrelevant to this case and therefore goes to no issue because the document which the defendant pleaded was not the one that was eventually tendered by the defendant and which was admitted in evidence as Exhibit N8 in this case. d. That the defendant could not discharged the evidential burden placed on her by law for the purpose of proving that Exhibit N8 was actually written or made by the claimant. e. That the claimant’s signature on the affidavit and written statements on Oath which was shown to the claimant by the defendant’s counsel under cross-examination and which affidavits and written statements on Oath that were neither tendered nor admitted as Exhibits in this case, cannot be used or relied upon by this Honourable Court as the basis for determining the authorship of Exhibit N8. In order words, this Honourable Court is not permitted or allowed by law to compare the claimant’s signature on the said affidavit and written statements on Oath with the signature on Exhibit N8 which the defendant claimed belongs to the claimant outside the court room, when such comparison was not carried out in the open court as required under Section 101(2) of the Evidence Act 2011. To do so outside the court room, this Honourable Court would inadvertently be carrying out an investigation and enquiry which is not part of the court’s adjudicatory power. f. That having regard to the contents of Exhibits PW7 and PW10 respectfully, it can be seen clearly, that the claimant’s name was not actually removed from the defendant’s staff payroll so as to deprive the claimant of his accumulated salaries and allowances as computed in exhibit PW4, contrary to the erroneous and unfounded contention of the defendant in this regard. g. That there is nothing on the face of Exhibit N8 to show that the author(s) thereof actually wrote the same for the purpose of enjoying the benefits of Consolidated Tertiary Educational Institutions Salary Structure (CONTEDISS) instead of what they were ordinarily entitled to under the Consolidated Tertiary Institutions Salaries Structure (CONTISS) contrary to the erroneous and unfounded contention of the defendant in this regard and that the defendant’s contention on this point is also contrary to public policy. h. That under the provisions of paragraphs 2.20 and 2.21 of the Staff Manual and Scheme of Service of the Federal Polytechnic, Bida (Exhibit PW11) the claimant who was retired from the services of the defendant on the 18th day of August, 2009 on the directive of the defendant, is entitled to be paid his accumulated salaries and allowances up to the 18th day of August, 2009. And that the claimant cannot be said to have waived his right to demand for the payment of his accumulated salaries and allowances based on Exhibit N8 which the defendant could not prove by credible and coherent evidence was actually written by the claimant and which document the claimant has also robustly and firmly argued that he does not know anything about and is therefore of no moment to this case. Having carefully considered the submissions of counsel in this case, the issue for the court to decide is:- Whether the claimant has successfully and satisfactorily made out a case against the defendant, as to entitle him to the accumulated salaries and allowances from the month of February, 2007 when he was dismissed to the month of August, 2009 when his dismissal was converted to retirement. In brief, the facts of the case are that the claimant was one of the eight former employees of the Polytechnic involved in a fraud during the students registration exercise in 2005 – 2006 academic sessions. The disciplinary committee found them culpable and they were dismissed by the Governing Council of Federal Polytechnic, Bida on 9th February, 2007. The claimant and other dismissed officials appealed to the Governing Council to review the matter and convert the dismissal to retirement which was rejected. By a letter dated 23rd May, 2009, five of the dismissed former employees of the Polytechnic including the claimant appealed to the newly constituted Governing Council to review the earlier disciplinary action taken against them and to review the decision of the defunct Governing Council by converting their dismissal to the retirement. The new Governing Council mandated the Management to look into the case again and make recommendation on the issue of the dismissed officials. At the 61st Regular Meeting of the Governing Council held on August 18, 2009. The Council reconsidered the case of the dismissed officials based on the recommendation of the Management, and converted the dismissal of the officials to retirement. In communicating the decision of the Council to the dismissed officials inclusive the claimant two letters were issued. The first letter Exhibit PW2 dated 9th November, 2009 stated that by the decision of the Governing Council the dismissal had been reverted to retirement with effect from February 9th , 2007. While the 2nd letter Exhibit PW3 stated that the retirement was from 18th August, 2009. The claim of the claimant is that he should be paid his accumulated salaries and allowances amounting to N5,858,278.00 (Five Million Eight Hundred and Fifty-eight Thousand Two Hundred and Seventy-eight Naira) Only being salaries and allowances covering the period 7th February, 2007 to 18th August, 2009 when his dismissal was converted to retirement. The position of the defendant is that the claimant is not entitled to any arrears of salaries and allowances from the Polytechnic, stating that the claimant and seven other ex-employees of the defendant wrote a letter of undertaking Exhibit N8 voluntarily signed by them undertook not to demand for their arrears of salaries. That having signed Exhibit N8 the letter of undertaking he is estopped from denying the letter and claiming for arrears of salaries and allowances from 2007 to 2009. The contention of the defendant is that the claimant being one of the signatories of Exhibit N8 voluntarily signed he undertook not to demand for his arrears of salaries. He is therefore, estopped from denying the letter of undertaking and claiming for arrears of salaries and allowances from 2007 to 2009. By being one of the signatories of Exhibit N8 he has waived his right to claim his arrears of salaries. The defendant contended that the date of retirement was shifted to 18th August, 2009 and not 7th February, 2007 as earlier stated in the 1st letter Exhibit PW2 is to enable the dismissed officials enjoy the new salary structure for the Polytechnic. That based on the letter of undertaken Exhibit N8 by which they undertook not to demand for arrears of salaries they are estopped from claiming same. The question here is whether the claimant based on the facts of this case can really claim for his arrears of salaries and allowances from 7th February, 2007 when he was dismissed for the service of the defendant to August 18th , 2009 when the council magnanimously converted the dismissal to retirement. The claimant contention is that the defendant had converted his dismissal to retirement at the 61st Regular Meeting of the Governing Council held on the 18th August, 2009, through a letter written to him Titled: RETIREMENT OF APPOINTEMNT dated 9th November, 2009, notifying him about the conversion but that the Registrar erroneously or wrongly stated that the retirement took effect from 9th day of February, 2007. But that he promptly protected to the Registrar who wrote Exhibit PW3 wherein the correct and actual date of retirement was stated. Another question that must also be answered is what was the decision of the Council on the plea of dismissed officers. This is provided for in paragraph F of the minutes of the 61st Regular Meeting of the Governing Council of the Federal Polytechnic, Bida. (f) Plea from former staff Disciplined by Council. In line with the directive by Council at the 60th Regular Meeting held June 16th , 2009, Management considered the plea from some former staff disciplined by Council in June 2006 and February, 2007 and reiterated its earlier plea that the ex-staff concerned by on compassionate ground considered for retirement (if they had served the required number of years in service) or get their appointments terminated instead of the earlier dismissal. From the wordings of minutes in paragraph F it is clear that the Council did not direct that the retirement should be from 18th August, 2009. The Council in my view magnanimously converted dismissal to retirement as demanded by the dismissed officials and no more. All that happened after was done by the Registrar and the Rector. The court cannot read into the minutes what was not written there. I also perused the recommendation of the Managements to the Council at paragraph 3.0 states:- Management Recommendations Management at its meeting on Monday, August 10, 2009 reviewed the submissions from the former staff on the above reports and agreed to recommend as follows to the Council for consideration and approval. 3.2 That the previous prayer of the Management that the staff concerned dismissed be converted to retirement if they have served the required number of years and if not, should get their appointments terminated, should kindly be looked into for approval. The wordings are clear the Management recommendation also did not recommend that the dismissal be converted to retirement from 18th August, 2009. It is my view that the Rector and the Registrar took unilateral decisions inserting dates not given by the council. The letter of plea from the dismissed staff including the claimant dated 29th May, 2009 pleaded was simply for a review of the dismissal slammed on them by the old Governing Council and no more. For ease of reference the letter is reproduced under:- The letter is dated 29th May, 2009 titled: The letter of plea for review of disciplinary action taking against us written whereby the claimant and four former staff of the Polytechnic, plea was for a review of the dismissal slammed on them by the old Governing Council. They did not specify which the date of the retirement should take effect 18th August, 2009 and the council also did not state that the retirement should be from 18th August, 2009 when the decision to convert the dismissal to retirement was taken. The argument of the claimant that he complained to the Registrar who then wrote Exhibit PW3 to correct the actual date of retirement as 18th August, 2009, has not been substantiated by him producing credible evidence on how he came about or knew the date the council decided the retirement should take effect. He was surely not a member of the Governing council or that of the Management team that made the recommendation. The position of the defendant is that the claimant was one of the signatories to Exhibit N8, dated 12th February, 2010 addressed to the Rector, upon which the Rector agreed to write Exhibit PW3 based on Exhibit N8 to enable the claimant and others enjoy the new approved salaries scheme structure the Consolidated Tertiary Educational Institutions Salary Structure (CONTEDISS) to me is of no moment. The claimant countered this position contending that Exhibit PW3 is a written document, that no oral evidence is admissible to contradict, add to or substract, or modify or alter the content. To the claimant Exhibit PW3 is dated 9th November, 2009 while the purported Exhibit N8 is dated 12th February, 2010. That this shows that Exhibit PW3 was written long before Exhibit N8 was purportedly or allegedly written by the claimant. That it is impossible for Exhibit PW3 to have written as a response to Exhibit N8 which was not yet in existence as at the date when Exhibit PW3 was written by the defendant to the claimant. It is my view that the only body that can take a decision as to whether the claimant can be paid his salaries from 9th February, 2007 to 18th August, 2009 is the Governing Council of the Federal Polytechnic, Bida. They took the decision to magnanimously converted the dismissal to retirement and this is the only body that can decide on the effective date of the retirement and not the court. The court cannot also say that the claimant enjoy is salaries and allowances from the period of 9th February, 2007 to 18th August, 2009. It is my view that the decision rests with the Governing council and not with the Rector, the Registrar of Federal Polytechnic, Bida or that of the court. The claimant has to go back to the Governing council and get the approval to enjoy the sum he is requesting for. This is not a decision of the court nullifying the dismissal of the claimant to enable the court compel the defendant to pay for the period of dismissal. For the reasons given above, the claimant claims fails and is hereby dismissed. Judgment is entered accordingly. _______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE