IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
SUIT NO NICN/MKD/61/2019
BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN
DATE: 23rd November, 2023
BETWEEN
Mr. FABIAN AMEH OCHIGBO Claimant
AND
1. ATTORNEY GENERAL OF BENUE STATE
2. BENUE STATE GOVERNMENT
3. BENUE STATE POLYTECHNIC Defendants
4. BENUE STATE PENSION BOARD
JUDGMENT
The claimants in this action commenced this suit by a complaint filed on the 26/8/2019. With the leave of court granted on the 31/3/2022, the claimants filed an amended complaint dated and filed on the 22/6/2022. The claimants also filed a motion for summary judgment dated 14/9/2023 but filed on the 18/9/2023. The motion which is brought pursuant to Order 16 Rule 1 and 5 (2) and Order 17 Rule 1 of the NICN Civil Procedure Rules 2017, seeks the following orders:
1. AN ORDER of the Honourable Court entering final Judgment in favour of
the claimant as per the General Form of Complaint and the Statement of
Claim in the sum of Fifteen Million One Hundred and Twenty
Two Thousand Five Hundred and Nine Naira (N15,122,509.00k) only
being the total of the retirement benefits form of October, 2012.
2. AN ORDER of the Honourable Court entering final judgment in favour of
the claimant as per the general form of complaint and statement of claim in
the sum of Four Million Three Hundred and Twenty Six Thousand Two
Naira (4,326,002.00K) only being the total of the retirement benefits form
of October, 2012.
3. AN ORDER of the Honourable Court entering final, judgment in favour of
the claimant in the sum of Seven Million Four Hundred and Ninety Four
Thousand Seven Hundred and Ninety-Eight Naira Fifty Seven kobo (N7,
494,798, 57K) only being the total arrears of the claimants accumulated
monthly pension of Three Hundred and Fifty Six Thousand Eight Hundred
and Ninety Five Naira Seventeen kobo (N356, 895, 17k) only from 1st
March, 2018 to November, 2019.
The grounds upon which the application is brought are :
1. Claims are for the Claimant’s post-employment benefits (Gratuity/Pension) and accumulated monthly pension arrears that the Defendants refused and neglected to pay to the Claimant.
2. That upon the Claimant’s retirement from service, the Defendants have no reason to withhold or refuse to pay the Claimant’s lawful benefits.
3. That it is illegal for the Defendants not to pay the Claimant’s post-employment benefits and monthly pension allowance.
The motion is supported by a 21 paragraphs affidavit deposed to by the claimant. Attached to the affidavit are Exhibits A, B, C, D, E and F. The claimant counsel also filed a written address in support of this application for summary judgment. The defendants did not file any response to this application. At the hearing of the application the defendants counsel informed the court that he was leaving the application to the discretion of the court. Also at the hearing of the application the claimant counsel applied to withdraw prayer No 2 on the motion paper. That prayer is hereby struck out.
In the 1st prayer on the motion paper, the claimant seeks an order entering final judgment in the sum of N15,122, 509.00k being the claimant computed gratuity upon retirement from the service of the Benue State Polytechnic. In proof of this entitlement the claimant tendered exhibit A, the letter of appointment, exhibit B, the confirmation of appointment, exhibit C, the notice of appointment as registrar. The claimant voluntarily retired as Registrar from the serviced of the 3rd defendant effective from the 31/7/2012. The retirement was approved in exhibit D2. The defendants computed the retirement benefits of the claimant in exhibit E to be in the sum of N16, 222, 509.00k as gratuity and a further sum of N4,326,002.00k as yearly pension. In paragraph 10 of the affidavit in support of this application the claimant stated that since his retirement from the service of the 3rd defendant he has received the sum of N1,100,000.00k as part payment of his gratuity leaving the balance claimed in this application. The defendants did not challenge this averment. This court is therefore bound to accept and act on this averment as being the truth of the fact of payment of gratuity to the claimant. See the case of Josuah Guting V. Tunyang Davwang [2013] LPELR-21921 (CA). I am satisfied that the claimant has been able to proof his entitlement to the sum claimed as the balance of the claimant gratuity. Accordingly, Judgment is entered in the sum of N15,122, 509.00k in favour of the claimant against the 2nd defendant, being the balance of the claimant computed gratuity as contained in exhibit E to this application.
The claimant also claims the sum of (N7,494,798, 57K) only being the total arrears of the claimants accumulated monthly pension. In exhibit E, the claimant computed pension was shown to be in the sum of N4,326,002.00k. In paragraph 11 of the affidavit in support of this application, the claimant stated that his monthly pension is N356,895.17k He stated that from March, 2018 to November, 2019 his gratuity has not been paid. The claimant tendered his Unity bank statement of account No. 0007480858 in proof of this claim. I have carefully examined the statement in exhibit E. From the entries it is clear that the claimant has been receiving his pension up to June 2020. It can therefore not be correct that the claimant has not receive pension from march 2018 up to November 2019. This suit was filed in August 2019 to claim the arrears of unpaid pension. Entries in the account show that the pension for August, 2019 was paid on the 12/7/2022. Thereafter the 3rd defendant has continued to pay up to 10 arrears of the claimant pension. There can therefore be no claim in pension for the period the claimant is seeking an order of payment in this application. The claim for pension is claim in special damages, the claim must be strictly proved. The failure of a party to proof his entitlement before the court is that the claim must fail and is liable to be dismissed. In the case of Adebiyi V. Chief Registrar, High Court of Justice Kwara State [2017] LPELR-45672 (CA) the Court of Appeal held. ‘The burden id generally on the claimant who seek relief to proof that in law and in fact that he is entitled to same. The monetary claim of the appellant is specific they must be pleaded and evidence led in their support. They must be strictly proved which would then justify the amount claimed.’
See also the case of Kosile V. Folarin [1989] NWLR (pt. 107) at 1. The Supreme Court per Obaseki JSC. held ‘What is required of proof of special damages is that the person claiming should establish his entitlement to the type of damages by credible evidence that would convince the judge that he is entitle to the award under the head’.
On the strength of the above cited authorities and the evidence considered above it is the findings of this court that the claimant has failed to discharge the burden of proof on the claim of pension in this application. The claim of the sum of N7,494,798, 57K as arears of pension fails, it is refused and accordingly dismissed.
On the whole this action succeeds in part. Judgment is hereby entered in favour of the claimant in the following terms:
1. The 2nd defendant shall pay to the claimant the sum of N15,122, 509.00k being the balance of the claimant computed gratuity upon the retirement from the service of the 3rd defendant
2. The sum hereby awarded shall be paid by instalments. The 1st instalment of N4,000,000 naira shall be paid on or before the 30/12//2023. Thereafter the 2nd defendant shall continue to pay the sum of N2,000,000 monthly until the judgment debt is fully liquidated.
Parties are to bear their respective cost of the action.
Judgment is hereby entered.
----------------------------------------------------
Hon. Justice (Dr.) I. J. Essien
(Presiding Judge)
REPRESENTATION:
A. C. Attah Esq. for the claimants.
J. A. Okwe Esq. for the defendants.