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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Wednesday 19th February, 2014 SUIT NO: NICN/ABJ/279/2013 Between: Obinna Edwin Nnanna Claimant AND Federal Civil Service Commission and 2 Others Defendants REPRESENTATION Parties absent; Adaeze Ezere Miss for the claimant; No. legal representation for the defendants, JUDGMENT By an originating summons dated and filed on the 17th of October 2013, the claimant in this suit seeks for the determination by this court the following question Whether the claimant is in law /or by virtue of his reinstatement as contained in the 1st defendants letter with ref. No. FC. 4029/S.9/C5/51 dated 22nd November, 2011 entitled to all his entitlements including his foreign service allowances (FSA), Children foreign service allowances (CFSA) and the consolidated foreign service allowances which includes spouse allowances from January 2006 to September 2011 which allowances ought to have been paid to him during the aforesaid period of June 2006 to September, 2011 if not for his (claimant) dismissal in 2005? Upon the determination of the above question, the claimant is therefore seeking the following reliefs from this court; (a) A declaration that the claimant is entitled in law /or by virtue of his reinstatement as contained in the 1st defendants letter with Ref. No. FC. 40 29/ S.9/C 5/51 dated 22nd November, 2011 to all his entitlement including his foreign service allowance (FSA), children foreign service allowance (CFSA) and the consolidated foreign service allowance which include spouse allowances from January 2006 to September 2011 which allowances ought to have been paid to him during the aforesaid period of June 2006 to September 2011 if not for his dismissal in 2005 (b) An order compelling the defendants to pay the claimant the sum of (USD $418.006) Four hundred and Eighteen thousand, Dollas six cent being the total of his foreign service Allowance (FSA), children foreign service allowance (CFSA) and the consolidated foreign service allowance which include spouse allowance that accrued to him from January 2006 to September 2011. (c) Ten percent (10%) of the judgment sum till when the entire judgment sum is finally liquidated. The summons is supported by a three paragraph affidavit (all sub paragraphs inclusive), seven exhibits and a written address. The claimants counsel withdrew relief three of the claimant prayers in the originating summons. In the said written address by the claimant counsel, Mr. S. C. Peters submitted that the claimant had complied with order 3 rule 5 (A) of the 2012 practice direction of this court and as such there was no need for oral evidence in the determination of the question and reliefs sought in this summons. Consequently counsel raised a sole issue for determination by the court: Whether the claimant is in law and /or by virtue of his reinstatement as contained in the 1st defendant’s letter with ref. No. FC. 4029/S.9/C5/51 dated 22nd November 2011 entitled to all his entitlements including his foreign service allowance FSA, children foreign service allowance CFSA and the consolidated foreign service allowances which includes spouse allowances from January 2006 to September 2011 which allowances ought to have been paid to him during the aforesaid period of June 2006 to September 2011 if not for his claimant (dismissal) in 2005? It is the contention of Mr. S.C. Peters counsel to the claimant that the legal pedestal and foundation of the claimant in ventilating his grievances in this case lies in the subtraction of exhibit D attached to the affidavit in support of this originating summon. This exhibit ‘D’ is the letter from the discipline and appeals section of the 1st defendant reinstating the claimant after his initial dismissal from service. Counsel urged the court to give effect to this exhibit D which has unambiguously manifested the intention of the maker of the document. He contended further that where such intentions are clear in documents, interpretations to be given to it must be that of an ordinary meaning. Counsel call in aid the cases of Obomhense Vs. Erhahon 1993 7 NWLR Pt. 303 22 at PP 43-44 Ogbonna Vs. A.G. Imo State 1992 2 SCNJ 26 at P. 61 Counsel posited further that the consequence of exhibit D in this case should be fully explored with a view to bringing it into reality as doing otherwise may be leaning on the side of sentiments and speculations which has no place in our jurisprudence. Counsel cited the case of Ezeugo Vs.Ohanyere 1978 NSCC 457 Counsel further urged the court to give full effect to the reinstatement as contained in exhibit ‘D’ and restore the claimant to the status quo ante i.e the position he was before his employment was terminated in 2005. Counsel cited the cases of Shitta-bey Vs. The Federal Public Service Commission 1981 NSCC 32 ; Olaniyan Vs. University of Lagos 1985 2 NWLR Pt. 9 555 at 684. It is the submission of Mr. Peter that the court should reinstate the claimant to the exact position in which he was before his removal by revoking the act of dismissal and restoring the payment of wages and entitlements for the intervening period. Counsel referred this court to the cases of Gov. of Lagos State Vs. Ojukwu 1996 I NWLR Pt. 18 621 at 645 engineering enterprises contractor co. Vs. AG. Kaduna State 1987 I NSCC 601 at 632 Alade Vs. Alic Nig Ltd 2010 19 NWLR Pt. 1226 111 at 131 Counsel urged the court not to indulge the state or its agencies but to compel them to respect their own intentions, declarations and actions as contained in exhibit ‘D’ as the defendants are in that context bound to pay all the entitlements of the claimants. Counsel cited the cases of Chinyere Margaret Stitch Vs. A.G. Federal 1986 2 NSCC 1389 at 1404. A.G Rivers Vs. A.g Akwa Ibom State 2011 8 NWLR Pt. 1248 31 at 148. Counsel finally urged the court to determine the sole issue in favour of the claimant and grant his prayers. In her response, Mr. Aja F.A, Counsel to the 1st defendant conceded to all the prayers and reliefs of the claimant except leg three of the relief which borders on payment of 10% interest on the judgment sum. The basis of this exception by Mrs. Aja is that interest on Judgment sum cannot be part of the entitlement of the claimant. Counsel to the 2nd defendant MR. D.J. Bature, Assistant Director Ministry of Foreign affairs aligned himself with the submission of Mrs. Aja counsel to the 1st defendant and further submitted that the claimant was not suppose to be dismissed in the first instance and conceded entirely that the claimants salaries and allowances should be paid to him from 2005 when he was wrongly dismissed from service. Counsel to the 3rd defendant Mr. E.O. Oyaigbeuwen who holds the brief of Mr. Abiola Ademola has no opposition in view of the position taken by the 1st and 2nd defendants counsel. I have carefully gone through the originating summons, the supporting affidavit and the written address of the claimant and the various submission of all the counsel in this case. I must commend the legal maturity of the counsel in this matter particular the defendants counsel who have truly demonstrated the spirit of ministers in the temple of justice. The legal issue that calls for determination is the legal status of the claimant in terms of his employment against the background of all the exhibits in this case particularly exhibit ‘D’ The claimant was employed as an external affairs officer grade VIII in the public service of the Federation of Nigeria on the 1st of July 1981 and rose to the position of Assistant Director (Foreign Service officer Grade II) on GL 15. In the course of his employment he was posted to Belgium and while in the foreign service in Brussels, he was suddenly dismissed with effect from 9th of June 2005 as contained in a letter handed over to him by the Nigerian Ambassador to Belgium on the 28th of December 2005. Upon the protest and complaint of the claimant and after an out of court settlement on a suit instituted by him, he was reinstated through a letter dated the 22nd of November, 2011. This suit at the Federal High Court which did not culminate into a term of settlement to be entered and pronounced as judgment of the court eventually led to this suit as presently constituted. The defendant has no counter affidavit to the claimant’s depositions. Consequently I have no option than to regard the content of claimant’s affidavit as unchallenged and uncontroverted or unassailable. Paragraph 2 (q) of the claimants supporting affidavit to the originating summons says 2(9) That presently the defendants are indebted to me in the total sum of four hundred and eighteen thousand dollars six cent (USD $ 418.006 ) being the total sum of my accumulated consolidated foreign service allowance (FSA/CFSA) that accrued to me upon my reinstatement by the 1st defendant’s letter with Ref. No. FC. 4029/S.9/C5/51 dated 22nd November, 2011 which the defendants have not paid to me till now though the defendants are not at all disputing that I am entitled to the said allowances as at the effective date of my reinstatement to wit, 9th June 2005, till the date of my retirement which is September 2011. 2(u) That the defendants have in piecemeal paid me all my other accrued allowances upon my reinstatement except the four Hundred and Eighteen thousand dollars six cent (USD& 418,006) being the total sum of my accumulated and consolidated foreign service allowances ( FSA/CFSA) that accrued to me upon my reinstatement by the 1st defendant’s letter with Ref. No. FC. 40 29/2.9/C5/51 dated 22nd November 2011. The letter of reinstatement dated the 22nd of November 2011 signed by one M.A. Abdallah (exhibit D) addressed to the claimant in paragraph 2 thereof states; “The commission has therefore approved your reinstatement into the service and payment of all your entitlements with effect from 9th June 2005” Paragraph 2 of the letter of dismissal dated 9th June 2005 (exhibit c) addressed to the claimant and signed by one Mr. CC Ezenwa states. “The commission therefore dismissed you from the service with effect from 9th June 2005” Since the claimant was due and has retired in September 2011, it therefore follows that his outstanding allowances, salaries and entitlement during the intervening period occasioned by his dismissal should be paid to him. The question for determination therefore in this originating summon is answered in the affirmative consequently judgment is entered in this suit as follows; (1) The claimant is entitled to all his entitlements, allowances and salaries including his Foreign Service allowances (FSA), Children foreign service allowances and the consolidated foreign service allowances (CFSA) and the consolidated foreign service allowances including spouse allowances from January 2006 to September 2011. (2) The sum of four hundred and eighteen thousand dollars six cent USD & 418,006 being the claimants total sum of money due to him from the defendants representing various allowances covering January 2006 to September 2011 should be paid forthwith. Leg three of the claim is accordingly struck out having been withdrawn by the claimant. I make no order as to cost. ---------------------------- - Hon. Justice P.O Lifu JP. Judge