IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AWKA

BEFORE HIS LORDSHIP HON.JUSTICE J.I TARGEMA, Ph.D

 

DATE: MAY 28, 2025                                                  SUIT NO. NICN/AWK/23/2019

BETWEEN                                                                                                                         

Mrs Tegwolo Okungbo (nee Mujakperuo)

for the claimant Comptroller Mujakperuo

Nelson Eriomala now deceased                                             -                       Claimant

           

AND                                                                                                                          

1.     National Pension Commission.

2.     Pension Transitional Arrangement Directorate                    -                        Defendants                              

 

REPRESENTATION

Chief T.J. Onomigbo OON, SAN with Nkiru E. Dozie and Oluwabusayo O. Akinmejiwa of Thompson Okpoko and Partners for the claimant

Fred A. Okwesa for the 1st defendant.

 Remijus Chike Obiora for the 2nd defendant.

 

JUDGMENT

INTRODUCTION

1.     The claimant took out this action vide a complaint filed on 31 May 2019 together with the accompanying originating processes.  To this, and by respective orders of Court extending the time, the 1st and 2nd defendant entered appearance and filed their defence processes.  By order of Court granted on 26 September 2024, Mrs Tegwolo Okungbo (nee Mujakperuo) substituted her deceased husband Comptroller Mujakperuo Nelson Eriomala, as claimant.  The reliefs sought for by the claimant as per her statement of facts filed on 31 May 2019 are as follows:     

(i)               A declaration that the deductions from the claimant’s monthly pension from August 2017 by the 1st defendant acting either by itself and or through 2nd defendant is wrongful and unlawful.

(ii)            An order directing the defendants to compute and pay claimant’s emoluments based on HAPASS of 9th October 2003-2006, CONPASS 15% of January 2007 to June 2010 and 33% Compass of July 2010 till April 2019 and pay to claimant the sum of N17,318,662.39 (seventeen million, three hundred and eighteen thousand, six hundred and sixty two Naira, thirty nine kobo) being the short payment of claimant’s pension arising from the period of wrongful computation, or

An order directing the 1st and 2nd defendants to forthwith refund in full the wrongful and unlawful deductions from claimant’s monthly pension which amounts to N17,318,662.39 (seventeen million, three hundred and eighteen thousand, six hundred and sixty two Naira, thirty nine kobo) from April 2004 to April 2019.

(iii)          An order directing the defendants to pay to the claimant the sum of N1,392,554.52 (one million, three hundred and ninety two thousand, five hundred and fifty four Naira, fifty two kobo) being short payment of his gratuity.

(iv)          An order directing the defendants to pay to the claimant the sum of N583,134.46 (five hundred and eighty three thousand, one hundred and thirty four Naira, forty six kobo) being the severance allowance

(v)            Damages in the sum of N100,000,000.00 (one hundred million Naira) for the untold hardship and trauma suffered by the claimant as a result of the illegal deductions and short payments of his entitlements by the 1st defendant acting by itself and or through the 2nd defendant.

(vi)          The cost of instituting this suit.

 

2.     At the trial, the claimant testified on his own behalf as CW and tendered Exhibits CW1 to CW20/1, CW20/2 and CW20/3.  For the 1st defendant, Frank Akubue who works with the 1st defendant testified as DW1 and adopted his written deposition as his evidence but did not tender any document.  For the 2nd defendant, Akinjide Akomolafe, Assistant Chief Pension Officer on Grade Level 13 testified as DW2 and adopted his witness deposition. He tendered Exhibits PTAD 01, PTAD 02 and PTAD 03, all made by the 2nd defendant.

 

3.     At the close of trial and replacement of claimant with his wife, 1st defendant filed its final written address on 16 February 2023.  2nd defendant filed its final written address on 24 March 2023.  The claimant’s final written address was filed on 9 October 2023.

 

THE CASE BEFORE THE COURT

4.     To the claimant, he was employed as Collector of Customs Grade II salary scale level 08 and rose up to the rank of Comptroller, Nigerian Customs Service before his retirement on 24 March 2004 on grade Level 15 step 9 vide letter with Ref. No. NCSB/ABJ/AP & D/94/5.4/Vol XVIII dated 24 March 2004; that upon his retirement, he became entitled to the sum of N1,656,632.00 (one million, six hundred and fifty six thousand, six hundred and thirty two Naira) as total pensionable annual emolument and N138,052.66 (one hundred and thirty eight thousand, fifty two Naira, sixty six kobo) as monthly pension from April 2004 to 31st December 2006, a total period of 33 months as per National Salaries, Incomes and Wages Commission (The Commission) circular with Ref. No. SWC. 04/Vol. v/200 dated 9 October 2003 conveying the Harmonized Para-Military Salary Structure (HAPASS) as applicable in the period 1st October, 2003 to 31st December 2006.

 

5.     That by circular with Ref. No. SWC/S/04/S.306/1 dated 18 January 2007 the National Salaries, Incomes and Wages Commission introduced a new salary structure known as the consolidated Para-Military Salary Structure (CONPASS) with a 15% corresponding increase in pension with effect from 1ST January 2007; that claimant is entitled to the increase in pension which was confirmed by the commission’s circular with Ref. No. SWC/S/04/5.08/Vol. IV/207 dated 5 August 2010; that by the said 15% increase in pension, his monthly pension was supposed to rise from N138,052.66 to N158,7660.58 for the period 1st January 2007 to June 2010-a total period of 42 months.

 

6.     The claimant averred that it is his right to have his terminal entitlements properly computed based on the approved and extant circulars issued by the relevant body which in this case is National Salaries, Incomes and Wages Commission circular with Ref. No. SW/c.04/Vol. v/200 dated 9 October 2003 which dealt with HAPASS and circular with Ref. No. SWC/3/04/S 557/T/19/ dated 18 June 2015 which referred to CONPASS of 15% increase of 1st January 2007 to 30th June 2010 and CONPASS 53.37% dated 1st July 2010 to date.  That the proper pension entitlement of the claimant (going by the total pension short payment) is N17,318,662.39.

 

7.     The 1st defendant denied all the material statement of fact contained in the claimant’s statement of facts.  To 1st defendant, the Pension Reform Act 2004 introduced the contributory pension scheme for payment of retirement benefits of employees in the Federal Republic of Nigeria to whom the scheme applies, and it excludes existing retirees who retired before the Pension Reform of 2004 and those that had three or less years to retire from the promulgation of the Act in 2004; that the claimant who retired in 2004 is exempted from the contributory Pension Scheme established by the Pension Reform Act 2004,and claimant is therefore covered under the Defined Benefits Scheme.  That the Define Benefit Scheme is managed by the 2nd defendant – an extra – ministerial body under the Federal Ministry of Finance with its management team appointed by the Minister.  To 1st defendant, the defunct Customs, Immigration and Prisons Pension Office (CIPPO) did not rightly compute the claimant’s retirement benefits.

 

8.     To the 2nd defendant, the claimant is a retired Comptroller of the Nigeria Customs Service and now a pensioner under the defined Benefit Scheme under the 2nd defendant; that 2nd defendant inherited the whole data base of the then Customs Immigration Prisons Pension Department (CIPPO) who initially computed the claimant’s pension and gratuity using a salary structure unknown to the Federal Government; that subsequently when the 2nd defendant took over the payment of CIPPO pensioners, the 2nd defendant used the Federal Government approved salary structure provided by the National Salaries, Incomes and Wages Commission which is the Harmonized Public Service Salary Structure (HAPSS 2003); that what exists is the harmonization of monthly pension of 15% which took effect on 1 January 2007 and 33% which took effect on 1July 2010 and that these increases have been duly applied to the claimant as in Exhibit PTAD 01. That rather, a recovery process was set in motion to recover all excess payments vide Exhibit PTAD 03.

 

THE SUBMISSIONS OF THE 1ST DEFENDANT

9.     The 1st defendant submitted a sole issue for the consideration of the Court, that is:

Whether the claimant has proved his case against the 1st defendant to be entitled to judgment. To the 1st defendant, the claimant failed abysmally in his bid to prove his case against the 1st defendant and urged the Court to so hold.  To the 1st defendant, the law is trite that the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side, citing section 132 of the Evidence Act 2011 (as amended) and the case of Oyewole v. Oyekola (1999) 7 NWLR Part 612 page 560 at 564 paragraphs G-H.  That the law is also settled that a plaintiff must succeed on the strength of his own case and not on the weakness of a defendant’s case.  See Ohadugha v. Garba (2000) 14 NWLR Part 687 page 226 at para G-H.

 

10.                                                                                                It is further submitted by 1st defendant that the claimant has not made out a prima facie case against the 1st defendant to be entitled to judgment; that in Duru v. Nwosu (1989) 4 NWLR (part 113) page 24, the Supreme Court held that “…a trial judge ought always to start by considering the evidence led by the plaintiff to see whether he had led evidence on the material issue he needs to prove.  If he has not so led evidence, or if the evidence led by him is so patently unsatisfactory then he had not made out what is usually referred to as a prima facie case, in which case the trial judge does not have to consider the case of the defendant at all.”  That by the claimant’s own showing, the 1st defendant played only supervisory and regulatory roles concerning pension matters in Nigeria. 1st defendant made reference to paragraph 2 of the claimant’s statement of facts; that the claimant also admitted that upon his complaint to the 1st defendant against the alleged impropriety of the 2nd defendant, the 1st defendant in exercise of her said supervisory and regulatory roles authored Exhibit CW11. It is submitted by the 1st defendant that the 1st defendant dutifully discharged her obligations to the claimant as provided under section 23(h) of the Pension Reform Act, 2014 and the Court is urged to so hold.

 

11.                                                                                                The 1st defendant continued that the claimant further admitted under cross-examination that the 1st defendant is not indebted to him as she plays only supervisory role over the 2nd defendant; that moreover it is submitted that the claimant has no cause of action against the 1st defendant and 1st defendant urged the Court to so hold.

 

12.                                                                                                In conclusion, the 1st defendant urged the Court to dismiss this suit as it affects the 1st defendant.

 

THE SUBMISSIONS OF THE 2ND DEFENDANT

13.                                                                                                The 2nd defendant submitted two issues for the consideration of the Court that is:

(a) Whether the 2nd defendant rightly computed the claimant’s gratuity and pension using the Harmonized Paramilitary Salary Structure (HAPPAS) issued by the National Salaries, Income and Wages Commission (NISWC) on 1st October 2003.

(b)Whether by the extant laws and regulations, the 2nd defendant was right to have re-computed the claimant’s pension and placed him on his correct monthly pension, after deducting the excess payment made to him.

 

14.           On issue (a), the 2nd defendant submitted that the claimant had failed to disclose any reasonable cause of action in this suit; that the Pension Reform Act 2014, as amended, empowers the 2nd defendant under section 46 to determine and pay gratuity and pension to pensioners under the Defined Benefit Scheme which the claimant belongs. That the section states thus:

“The Federal Government Pension Transition Arrangements Directorates shall determine and cause to be paid gratuity and pension to the pensioners in the category of officers exempted under section 5(1) (b) of this Act and relevant applicable computations under the existing Pay-As-You-Go Pension Scheme of the Public Service of the Federation and Federal Capital Territory.”

 

15.           That section 5(2) further states thus:

“Any person who falls within the provisions of subsection (1) of this section shall continue to derive benefit under existing pension scheme in accordance with the formular provided for in the Second Schedule to this Act or under the provisions of enabling laws.”

 

16.           That section 45(e) of the Pension Reform Act, 2014 also stated that the 2nd defendant shall:

“Ascertain deficits in pension payments, if any, to existing pensioners or the categories of officers exempted under section 5(1) (2) of this Act, and carry out such other functions aimed at ensuring the welfare of pensioners as the Commission may, from time to time, direct.”

 

17.           The 2nd defendant went on that following from the above sections, the 2nd defendant is empowered to review and determine the accurate and correct pension to be paid to the pensioners in its payroll and this include the claimant.

 

18.           The 2nd defendant continued that due to the discrepancies caused by different inordinate activities in the management of pensions, the 2nd defendant was created to bring some sanity in the industry; that to achieve this, 2nd defendant embarked on Nation-wide verification exercise after the takeover of the management of pensioners from the defunct pension offices and also recomputed the pension of the pensioners to ensure that they are correctly paid and it was found that the claimant is earning pension above his correct monthly pension; that at paragraph 9 of the 2nd defendant’s witness statement on oath, it was stated that the claimant’s monthly pension was computed with circular unknown to law because the pension was not computed with the Federal Government circular approved for the computation of pension for the claimant and the claimant did not present any government circular showing total emolument used to arrive at the pension he was earning at the time.

 

19.           It is submitted by the 2nd defendant that the claimant’s deposition at paragraph 3 of his witness statement on oath where he stated that he is entitled to the sum of N1,656,632.00 as total pensionable emolument and N138,052.66 as monthly pension the claimant simply divided the total emolument he is claiming by twelve to arrive at his monthly pension, that this paragraph clearly show that the claimant do (sic) not understand the procedure and processes that is (sic) followed in computing pension and gratuity and the applicable percentage increases; that furthermore, the second schedule to the Pension Reform Act 2014 Contains the Approved Computation of the Retirement Benefit Formula for calculation of pension and gratuity in respect of Retirement Benefits vis – a – vis the length of service to determine the percentages to be used in computing his gratuity and pension.  That as stated at paragraph 10 of the 2nd defendant’s statement of defence, there is no salary structure called CONPASS 15% or 33% CONPASS as an officer still serving or you enjoy the corresponding 15% increase as a Pensioner.

 

 

20.           It is further submitted by the defendant that salary circulars are issued for serving officers of the Federal Government and the one subsisting at the claimant’s retirement is one to be used in computing his pension; that the Government in its wisdom adds certain percentage increase in pension wherever there is an increase in salary.  That the claimant retired on 24 March 2004 and the salary structure subsisting at the time of his retirement is Harmonized Paramilitary Salary Structure (HAPASS) with effect from 1st October 2003 and this Salary Structure was used to compute the claimant’s pension; that during the cross examination, the claimant was asked if it is possible for an officer to retire under two different Salary Structure, he answered in the negative.

 

21.           The 2nd defendant continued that the Federal Government issued Consolidated Paramilitary Salary Structure (CONPASS) with effect from 1ST January 2007 and added 15% increase to the already existing pensions and this 15% increases was effected on the claimant’s pension as stated in paragraph 10 of the 2nd defendant’s witness statement on oath and as seen in the attached Exhibit PTAD 01;that the Consolidated Paramilitary Salary Structure (CONPASS) is only applicable to those in service at the time when it was issued; that the claimant also captured this fact at paragraph 4 of his witness statement on oath where he stated thus: “By circular with Ref. No. SWC/S/04/S. 306/1 Dated 18 January 2007 the National Salaries, Income and Wages Commission introduced a new Salary Structure known as the Consolidated Para-military Salary Structure (CONPASS) with a 15% corresponding increase in pension with effect from 1st January, 2007.”  2nd defendant went on that the crux of the matter is that the claimant in another breath is claiming that his pension is to be computed with the Consolidated Para-Military Salary Structure (CONPASS issued with effect from 1st January 2007 instead of the 15% corresponding increase in pension; that there is also nowhere in the circular showing that the circular should take effect retrospectively.

 

22.           The 2nd defendant further stated in his witness statement on oath that on 1st July 2010, the Federal Government also increased pension with 33%; that this increase was effected in the claimant’s pension and a further increase of consequential adjustment effective 1st April 2019 have (sic) also been effected in the claimant’s pension without a Salary Structure Issued from the National Income, Salaries and Wages Commission (NISWC).

 

23.           It is also the contention of the 2nd defendant that a Salary Structure issued for the serving officers should not contain the categories of officers excluded in the Salaries Structure because it is applicable to all serving officers and not pensioners; that assuming without  conceding that the claimant should be migrated to the Consolidated Paramilitary Salary Structure (CONPASS) which was issued on 1st January 2007 when claimant is already earning pension, the implication is that all pensioners who are on the same grade level, with same step and same length of service before the issuance of the circular will all be migrated to the Consolidated Paramilitary Salary Structure (CONPASS) or any other Salary Structure issued while they are pensioners and will earn the same pension; that this is not the correct position.  That what the Government does is to approve a certain percentage increase in pension once there is a review in salary but not to migrate the pensioners to the new salary structure.

 

24.           That section 173 (3) of the 1999 Constitution states that:

           “Pensioners shall be reviewed every five years or together with any Federal Civil Service Salary reviews whichever is ealier.”

 

25.           That all the reviews in pension have never come with a Salary Structure; that it comes with percentage increase in pension.  That the claimant retired on 24 March 2004 and all the increases after his retirement have been effected in his monthly pension; that they are 15% which was an increase in pension when the Consolidated Paramilitary Salary Structure (CONPASS) was issued for serving officers of the paramilitary service; that also 33% increase in pension which took effect from 1st July 2010; and lastly the consequential adjustment which took effect from 1st April, 2019.

 

26.           The 2nd defendant referred the Court to a circular issued by the Commission (NISWC) dated 1st July 2010 titled Consolidated Paramilitary Salary Structure (CONPASS) with reference number SWC/S/04/VIII/307 tendered by the claimant wherein the claimant claimed that the circular should apply to him since there is nothing on the face of the circular that stated otherwise; that the explanation that precedes the Salary Structure clearly shows that the circular is only applicable to serving officers and not pensioners.  That paragraph 2 and 4 of the circular states thus:

           2 … It should be noted that rent allowance is not part of the consolidated salary, it is therefore payable at the rate contained in Annex 11, where an officer is not provided accommodation at government expenses.

4. This particular pay increase is granted on the condition that there shall be a noticeable improvement in the productivity and conduct of officers and men of the para-military service in service delivery to the public…”

 

27.           The 2nd defendant went on that by paragraphs 2 and 4 above, it is of the conclusion that government did not intend that the said circular applies to retired officers of the paramilitary service and that there is nothing on the face of the circular that states that it should take a retroactive effect.

 

28.           That the circular dated 10 January 2007 with reference number SWC/S/04/S. 306/1 titled:  Consolidated Para-military Salary Structure (CONPASS) also tendered by the claimant contained in paragraph 4 of the claimant’s witness statement on oath and also before the Court, the circular that introduced the salary structure particularly paragraph 2 shows that the Salary Structure was meant for the serving officer of the para-military offices (sic)

 

29.           The 2nd defendant also referred the Court to a circular dated 5th August 2010 issued by the National Salaries, Income and Wages Commission titled Review of Pension Rate with reference number SWC/S/04/S. 08/Vol. IV/207 tendered by the claimant at paragraph 4 of his statement on oath, paragraph B (2) of the Circulars states the pension increase granted to officers who retired between 1st October 2003 and 1st January 2007 which the claimant belong as he retired 24th March 2004, the pension increase of 15% is to be applied to pension of this group pensioner with effect from 1st January 2007 as stated in the Circular.  That the implication of the circular is that 15% increase will be added to the pension of the existing pensioners and not to compute the pension with CONPASS Salary Structure issued on the same date as wrongly claimed by the claimant.

 

30.           That the circular dated 26th September 2014 also issued by the National Salaries, Income and Wages Commission titled Review of Pension Rate in the Federal Public Service with reference number SWC/S/04/S. 542/26 tendered by the claimant at paragraph 5 of his statement on oath, the first paragraph states that:

The President, Commander-in-Chief of the Armed Force has approved an increase in the pension of retired Federal Public Servants under the old, non-contributory Federal Pension Scheme as a result of the salary increase of 53.37% in the Federal Public Service in 2009/2010.

That the old scheme as contained in the circular is referring to pensioners who retired before the advent of the contributory Pension Scheme; that any pensioner who retired on or before 30th June 2007m belong to the old scheme and as contained at page 2 of the circular; that the Federal Government increase (sic) their pension with 33% with effect from 1st July 2010; that this is contained at page 2 and number 3 of the scheme attached to the circular.

 

31.           To the 2nd defendant, the claimant retired 24th May 2004 on grade level 15 step 8 and the salary scheme in existence at the time of his retirement is Harmonized Paramilitary Salary Structure (HAPASS) issued by National Salaries Income and Wages Commission (NSIWC) attached as Exhibit PTAD 02 by the 2nd defendant; that the Correct Total Emolument used in the computation of the pension as contained in the salary structure as N1,104,031.00 and the percentage which is derived by length of service as contained in the formula provided in the second schedule of the Pension Reform Act 2014 as amended is 252% of the Total Emolument for gratuity and 58% for pension at the point of retirement before other pension increases.  That these variables were used in computing the claimant’s pension and 1st January 2007 the Federal Government in pension with 15%; that this was applied to claimant’s pension which was also effected in his pension as contained in the computation sheet marked as Exhibit PTAD 01 by the 2nd defendant; that by 1st April 2019, the Federal Government approved consequential adjustment in all existing pensioners monthly pension; that this was effected on the claimant’s pension and he is currently on monthly pension of N105,924.21.  It is submitted by the 2nd defendant that the claimant’s failure to challenge or cross examine the 2nd defendant’s witness on the testimony contained in paragraphs 10 to 12 of his written statement on oath is tantamount to admission.

 

32.           The 2nd defendant therefore urged the Court to dismiss the claim against the 2nd defendant for lacking in merit; that NBC Plc v. Ezeifo (2001) 12 NWLR (pt. 726) 11 at pp. 28-29 Held per Oduyemi, JCA inter alia that:

“Where the statement of claim discloses no cause of action and if the Court is satisfied that no amendment, however ingenious will cure the defect, the statement of claim will be struck out and the action dismissed.” 

The 2nd defendant urged this Court to so hold.

 

33.           Issue (2) is whether by the extant laws and regulations, the 2nd defendant was right to have re-computed the claimant’s pension and placed him on the correct monthly pension after deducting the excess payment made to him.  The 2nd defendant queried that can 2nd defendant ignore an error when discovered like in the instant case, considering its mandate as enshrined in the Pension Reform Act 2014.  It is submitted by the 2nd defendant that the answer to the above is an unequivocal No; that should the 2nd defendant do so, it would amount to a direct breach of its mandate as clearly stated in section 45 of the Pension Reform Act 2014; that it will amount to conspiracy to the Commission of the said error.  That under section 45 (e) and 46 of the Pension Reform Act 2014, the 2nd defendant is obliged to determine and cause to be paid gratuity and pension to Pensioners in accordance with the relevant and applicable computations under the existing pension scheme of the Public Service of the Federation.  That the consequence of section 45 (e) and 46 of the Pension Reform Act 2014 is that the 2nd defendant has powers to determine and cause to be paid, gratuity and pension to pensioners in accordance with the relevant and applicable circulars under the existing Pension Scheme of the Public Service of the Federation.

 

34.           To the 2nd defendant, the claimant claimed that the deductions from his monthly pension from August 2017 by the defendants is wrongful and unlawful; that in line with the said claim, it (sic) pleaded that the defendants wrongly and unlawful deducted money from his monthly pensions, which fact the 2nd defendant vehemently denied; that the 2nd defendant witness stated that it only placed the claimant on his correct monthly pension.  That in a case such as this, 2nd defendant submits that it is the claimant who seeks (sic) declaration that the defendant deducts (sic) from his monthly pension wrongly and unlawfully that has the onus to prove same; that where the plaintiff (sic) fails to discharge the onerous burden, there would be nothing indeed for the defendant to prove in rebuttal.  See section 131 of the Evidence Act 2011

“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

That in Jolayemi v. Alaoye (2004) 12 NWLR (pt. 887) page 332 @ 348 Hon. Justice Uwaifo JSC (as he then was) gives credence to the above thus:

“I realize that the defendant need not prove anything if the plaintiff has not succeeded in establishing his case at least prima facie.”

 

35.           To 2nd defendant, in describing what the party seeking a declaratory relief(s) must show, the Supreme Court held in the case of A.G Cross River v. A.G Federation (2012) 16 NWLR (pt. 1327) 425 as follows:

“In Dumez Nig vs. Nwakloba (2008) 18 NWLR (PT. 1119) 361 @ 373-374, this Court pronounced that the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendants where the plaintiff fails to establish his entitlements to the declaration by his own evidence.”

 

36.           That in the present case, the plaintiff (sic) who is seeking declaratory reliefs against the defendant failed woefully to satisfactorily discharge the burden on his (sic) to establish the facts upon which the Court will rely to grant her the reliefs; that hence the plaintiff (sic) is not entitled to the reliefs sought.

 

37.           To the 2nd defendant, the Harmonized Para-Military Salary Structure (HAPASS) attached to the Circular dated 16th September 2015 tendered by the 2nd defendant as Exhibit PTAD 02 with reference number SWC/04/S. 557/272 issued by the National Salaries, Income and Wages Co0mmission (NSIWC) is the applicable salary structure for the claimant before the 15% increase of 1st January 2007 and 33% of 1st July 2010 and the consequential adjustment that took effect in April 2019; that claimant’s correct monthly pension at retirement is N62,561.76 and will all the percentage increases his is on monthly pension, is N105,924.21.

 

38.           It is submitted that in re-computing the claimant’s pension, the 2nd defendant has acted within its powers under sections 45 and 46 of the Pension Reform Act, 2014 and the 2nd defendant urged this Court to so hold.  That public authority must act within the limits of its authority; that 2nd defendant has done that.  See Tijani Mustapha v. Federal Republic of Nigeria & anor (2018) 17 NWLR (pt. 1648) Ratio 10

 

39.           That it is trite law that where a legislation has provided for the doing of anything in a specific manner, nothing short of that specification will suffice in doing that thing provided for. IGP v. Mobile Producing (Nig) Unltd (2018) 14 NWLR (pt. 1639) 382 Ratio 1.  That the act here is for the 2nd defendant to determine and cause to be paid gratuity and pension to pensioners in accordance with the relevant salary structure under the existing Pension Scheme of the Public Service of the Federation; that this the 2nd defendant has done with respect to the claimant’s pension; that it will be wrong for the claimant to insist that the 2nd defendant should perpetuate error in paying something wrong.  That when the law directs that an act be done in particular way prescribed, such an act done otherwise is illegal.  Dr Olubukola Abubakar Saraki v. Federal Republic of Nigeria (2018) 16 NWLR (pt. 1646) 425 Ratio 35.

 

40.           2nd defendant went on that in the first instance, it is in its operations has recourse to the Repealed Acts and Pension Circulars from time immemorial; that while the Pension Decree 1979 and Pension Act LFN 1990 has (sic) since been repealed by the Pension Reform Act 2014, its provisions are still readily in application to pensioners who retired under them; that secondly, section 5(2) of the Pension Reform Act, 2014 states thus:

“Any person who falls within the provisions of subsection (1) of this section shall continue to derive benefit under existing pension scheme in accordance within the formula provided for the second schedule to this Act or under the provision of enabling laws.”

 

41.           That the second schedule to the Pension Reform Act 2014 contains the Approved computation of the Retirement Formula for the calculation of pensions and gratuity in respect of Retirement Benefit.  That the 2nd defendant is treasury funded and pays retirement benefit based on budgetary provision made; that it will be pure injustice for the 2nd defendant to see an apparent error and ignore it; that the question is: will the claimant have complained of the work of the 2nd defendant have raised his pension higher?  That there are some whose case is like that and if that was the case of the claimant, the 2nd defendant will not hesitate to implement the adjustment as appropriate; that 2nd defendant did not in any way reduce the monthly pension of the claimant; that 2nd defendant only gave the claimant his due in accordant (sic) with relevant circular applicable to claimant.

 

42.           That under section 173 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the right of a person in the public service of the Federation to receive pension or gratuity shall be regulated by law and any benefit to which a person is entitled in accordance with or under such law shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the code of conduct. That while in general, laws are perspective, they are retroactive where the law itself provides for retroactivity either expressly or impliedly, where the law is remedial in nature or curative. That the Pension Reform Act established the 2nd defendant as a bridge between the old and new pension scheme and a remedial and curative measure for the sustenance of pensioners under the old scheme known as Defined Benefit Scheme. That there is therefore nothing wrong to take remedial and curative measures to correct anomalies that bedeviled the pension industry in time past; that this cannot be said to be injurious in any way to the claimant or act tantamount to injustice to the claimant.

 

43.           In conclusion, the 2nd defendant stated that in view of the submission canvassed by the 2nd defendant and on the basis of the documents which the 2nd defendant has placed before this Court in the determination of this suit, 2nd defendant urged the Court to enter judgment in favour of the 2nd defendant by dismissing the claimant’s suit for lacking in merit, baseless and unfounded having failed to disclose a reasonable cause of action against the 2nd defendant; that the Court is urged to so hold.

 

THE SUBMISSIONS OF THE CLAIMANT

44.           The claimant submitted a sole issue for determination: whether claimant has made out his case for the reliefs claimed by him on his pleadings, having regards to the evidence adduced by the claimant and documents tendered in support of the case. The claimant’s complaint is that he was not paid his correct pension and entitlement and his pension was wrongly reduced. That it is trite law that where there is failure to conduct correct and precise computation of a pensioner’s entitlement, he will be entitled to bring an action to ensure adequate and proper computation. That in New Nigeria Development Company Limited v. Daniel Ugbagbe (2021) LPELR-56666 SC, the Supreme Court per Tijani Abubakar, JSC at p. 40, paras A-B stated:

“It is correct that where there is failure to conduct and precise computation of a person’s entitlement, he will be entitled to bring an action to ensure adequate and proper computation.”

 

45.           That section 210 of the 1999 Constitution entrenched the confidence and the good faith which a retiree expects from the Government either state or federal on the determination of his service, after years of labour, toil and faithful service; that an employer, be it Government of the Federation or its agency or a state government or any of its establishments or parastatals cannot under the Constitution of Nigeria and the Pensions Act deny a retiree his gratuity and terminal benefits.

46.           To the claimant, it is pertinent to make it clear at this point, that claimant is exempted from the contributory pension scheme as provided for in section 5(1) of the Pension Reform Act which provides as follows:

1.     “The categories of persons exempted from the contributory pension scheme are:

a.      Categories of persons mentioned in section 291 of the Constitution of the Federal Republic of Nigeria, 199 (as amended) including members of the Armed Forces, the intelligence and secret services of the federation;

b.     Any employee who is entitled to retirement benefits under any pension scheme existing before the 25th day of June, 2004 being the commencement of the Pension Reform Act, 2004 but as that date had 3 or less years to retire”

 

47.           That it is evidence that claimant retired in March 2004 and by subsection 5(1) (a) and (b) of the Pension Reform Act, claimant is exempted from the contributory scheme; that claimant’s unchallenged evidence in Court is that upon his retirement, he is entitled to a monthly pension of N211,151.58 pursuant to the National Salaries, Incomes and Wages Commission. See Circulars already admitted in evidence as Exhibits CW5, CW6, CW7 and CW19. These circulars regulate the payment of claimant’s pension and 1st and 2nd defendants are mandated to give effect to these circulars. That this was admitted by the defendants’ witness at the trial. That in New Nigeria development Company Limited v. Daniel Ugbagbe (2001) LEPLR-56666 SC, the Supreme Court state that:

“The pension Act is an Act of the National Assembly which is to regulate the retirement, gratuity and benefits of retirees of institutions approved to render public service. Under the Act, the Federal Government may regulate the procedure and authentication of the implementation of its mandate through Official Gazettes and circulars in that regards.”

 

48.           The claimant continued that his entitlement upon his retirement is not static but reviewed from time to time and in accordance with circulars of National Salaries Incomes and Wages Commission; that when there is an increase in the salary of persons in service, there is also an increase in the pension of the Pensioners including the claimant. That this position was affirmed by the claimant in paragraphs 3, 4, 5, 6 and 7 of the witness statement on oath filed on 31 May 2019. That claimant was not contradicted by the defendants even during cross-examination. That section 173(3) of the Constitution provides that:

“Pensions shall be reviewed every five years or together with any Federal Civil Service Salary reviews, whichever is ealier.”

Pensions like salaries are subject to review and pursuant to this constitutional provision, the Federal Government through its agency, the National Salaries, Incomes and Wages Commission published circulars increasing the pension of Pensioners like the claimant; that the wordings of these circulars admitted in evidence as CW5, CW6, CW7, CW18 and CW19 are clear; that claimant was not excluded from the operation of the circular.

 

49.           To the claimant, there was increase in his pension at every stage, that the Customs, Immigration and Prisons Pension Office (CIPPO) was obliged to give effect to this increase and increase claimant’s pension entitlement; that CIPPO did not effect the increase as stated in CW5, CW6 and CW7 but paid the claimant the sum of N111,531.68 as his monthly pension; that this underpayment from CIPPO was from a period of April 2004 to April 2017 until defendants took over from CIPPO. That after defendants took over from CIPPO, it paid the claimant the paltry sum of N28,419.40; that claimant in his evidence calculated the wrongful reduction of his pension and entitlement from April 2004 to April 2019 which amount to N17, 318,662.39 (Seventeen Million, Three Hundred and Eighteen Thousand, Six Hundred and Sixty Two Naira, Thirty Nine Kobo). That claimant is entitled to the refund of the said unlawful reduction; that claimant’s evidence on the points was not challenged or contradicted by the defendants during cross-examination. That this Court is entitled to accept the unchallenged and uncontradicted evidence of the claimant and act on it.

 

50.           That when defendants took over from CIPPO, they arbitrarily and without any reason or notice to the claimant, reduced claimant’s pension to N28,419.40 as against the sum of N111,531.68 CIPPO paid and was paying to the claimant. That when the claimant wrote to the defendants, they claimed that CIPPO overpaid the claimant. That it was at this stage that claimant noticed that he was not been paid his severance allowance in the sum of N83,134.46 and that he was underpaid; that claimant wrote to defendants asking them to pay him his severance allowance and to rectify the underpayment but they refused to bulge hence this suit.

 

51.           To the claimant, the law is trite that where there is failure to conduct correct and precise computation of a person’s entitlement, he will be entitled to bring an action to ensure adequate and proper compensation. That in New Nigeria Development Company Limited v. Daniel Ugbagbe (2021) LPELR-56666 (SC), the Supreme Court per Tijani Abubakar, JSC at p. 40 paras A-B stated:

 

“It is correct that where there is failure to conduct correct and precise computation of a person’s entitlement, he will be entitled to bring an action to ensure adequate proper computation.”

That claimant has shown the correct pension to which he is entitled; that he tendered in evidence, the circulars issued by the National Salaries, Income and Wages Commission by which his pension and severance allowance was computed; that he has discharged this burden of proof. That he has shown that he is entitled to the increment as stated in Exhibits CW5, CW6, CW7 and CW18; that the wordings of these circulars are clear and when they stated thus reproduced in pages 4, 5 and 6 of the written address.

 

52.           The claimant went on that it is settled law that where the words of a document are clear, the operative words in it should be given their simple and ordinary grammatical meaning. See Delak Nig. Limited v. Ompade (2007) LPELR-916 (SC). That the wordings of Exhibits CW5, CW6, CW7 and CW18 are clear; that these circulars did not exclude the claimant in its application. That it is not for the defendants to import strange interpretation into the circulars to exclude or to prevent the claimant from the enjoyment of increment in his pension emoluments.

 

53.           The claimant continued that in any case, the circulars were issued by the National Salary, Income and Wages Commission, an agency of the Federal Government which has the statutory power to do so and thus the said circulars have to be given effect without question; that what is more, defendants also relied on the said agency as the Body issuing out formula by which salaries and wages of public officials are computed. That the law is trite that when parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest details. See Amokeodo v. Inspector General of Police & ors (1991) LPELR-468 (SC). That in Popoola v. Attorney General of Kwara State (2011) All FWLR (Pt. 604), the Court of Appeal stated thus:

“The 1999 Constitution vide section 210 is to the effect that pension or gratuity shall never be withheld under any guise or condition that is not clearly stipulated.”

 

54.           It is submitted by the claimant that he has proved his case in Court and is entitled to the reliefs sought in his claim in that:

a)    The 2nd defendant did not deny that it made any deduction from the claimant’s pension

b)    Claimant has shown to Court that the said deductions from his pension by the 1st defendant and 2nd defendant were wrongfully and was not supported by any law, Gazette or circular issued by any of the appropriate authorities.

c)     The correct pension of the claimant is ?211,151.58 as stated in paragraph 13 of the witness statement on oath dated 30th May 2018 and not ?68,385.73 as 2nd defendant has been paying the claimant.

 

55.           The claimant went on that the 2nd defendant at paragraph 6.14 of its final written address argued that Pension Reform Act 2004 is retroactive in that it takes measures to correct anomalies that bedeviled the pension industry in the time past and it cannot be said to be injurious to the claimant; that this proposition by the 2nd defendant is misconceived in law. That the Pension Reform Act, 2004 is an act of the National Assembly; that it is well settled principle of law that an Act of National Assembly cannot be construed as having retroactive effect unless there are express words in the enactment showing such an intention; that this based on the presumption that the Legislature does not intend what is unjust. That statutes are construed as operating only in cases or on facts which came into existence after the statutes were passed unless a retroactive effect is expressly intended; that section 45(e) and 46 of the Pension Reform Act 2014 did not expressly state that Pension Reform Act will be retroactive and cause hardship to pensioners. That it was enacted relieve Pensioners of their sufferings; that the wordings of the Pension Reform Act as emphasized in this written address above, did not contemplate a retroactive effect; that it is trite that when words of statute are clear and unambiguous, they should be given their clear and ordinary meaning. See the case of UBN Ltd v. Sax (Nig.) Ltd (1994) LPELR-3390 (SC).

 

56.           That assuming but not conceding that the claimant was paid higher than what is required, paragraph 105(iii) of the Federal Government Financial Regulations provide that the accounting officer will be held liable not the claimant; that the said paragraph provides that:

The accounting officer shall be held personally and pecuniarily responsible for all wrong doings in his Ministry/Extra-Ministerial Department. Delegation of his duties or functions shall not absolute.

The claimant urged the Court to discountenance the argument and submission of defendants’ counsel in this case as same is not supported by facts and the law; that claimant has proved his case and is entitled to the reliefs sought.

 

 

Claimant’s Response to the Argument in 2nd Defendant’s Final Written Address

57.           To the claimant, the 2nd defendant at paragraph 4.5, 6.1, 6.2, 6.3, 6.4, 6.7 and 6.8 of its written address stated that the 2nd defendant is empowered to review and determine the accurate and correct pension to be paid to the pensioners in its payroll and this include the claimant; that this proposition is misconceived in law and facts; that the Federal Government through the National Salaries, Incomes and Wages Commission regulates and determines the pension of the claimant. That National Salaries, Incomes and Wages Commission Act established the National Salaries, Incomes and Wages Commission and section 3 of the said Act listed out the functions of the Commission which includes:

“…examine the current rate of retirement benefits and recommend appropriate mechanism for periodic review of retirement benefits.”

 

58.           That the Commission performs this function by issuing circulars from time to time which the Government implements; that 2nd defendant’s witness (DW2) during cross examination admitted that in computing of claimant’s pension, they relied on circulars issued by the National Salaries, Incomes and Wages Commission; that it is settled that in computing claimant’s pension, recourse has to be made to circulars issued by the National Salaries, Incomes and Wages Commission. That CIPPO was required to give effect to the circulars issued by the Commission and pay the claimant his due pension but it did not; that the lawmakers to cure this effect of inadequate pension paid to pensioners, established the 2nd defendant by the Pension Reform Act, 2014 and by section 45 set out the function of the 2nd defendant in section 45(e) stated to:

“ascertain deficits in pension payments, if any, to existing pensioners or the categories of officers exempted under section 5(1) (b) of this Act, and carry out such other functions aimed at ensuring the welfare of pensioners as the Commission may, from time to time direct; and.”

 

59.           The claimant went on that the 2nd defendant did not adhere to the provisions of this Act but chose to cause more hardship to the claimant by deducting his pension without any circular or relevant authority authorizing them to do so; that the combined effect of section 4b, 5(1)(b) and 5(2) of the Pension Reform Act 2014 provides that the gratuity and pensions of pensioners in the category of officers exempted in the Act shall be determined under existing pension scheme in accordance with the formula provided for in the second schedule to this Act or under the provisions of enabling laws. That the claimant’s pension and gratuity has been determined by the circulars issued by the National Salaries, Incomes and Wages Commission and these circulars have been admitted in evidence in this case as Exhibits CW5, CW6, CW7 and CW18. That 2nd defendant in its witness statement on oath and evidence in Court stated that the computation of the claimant’s pension was in accordance with the circulars issued by the National Salaries, Incomes and Wages Commission but he did not produce any such circular in Court.

 

60.           The claimant submitted that 2nd defendant acted outside its power under section 45 of the Pension Reform Act, 2014 when it deducted the pension of the claimant without any circulars authorizing them to do so; that the power to determine the pension of the claimant must be in line with the relevant laws and not arbitrarily as 2nd defendant has done in this case. That the claimant has shown in his evidence in Court that the correct amount of his pension is 211,151.58 (sic) and the deductions made by the 2nd defendant from the claimant’s pension was not authorized by any relevant law and circulars; that claimant applied the increase stated in these circular (sic) and he arrived at his calculation; that claimant’s calculation was correct, consistent and in line with the said circulars.

 

61.           That the submission in paragraph 4.6 of the written address of the 2nd defendant that CIPPO computed claimant’s monthly pension with circular unknown to law and claimant did not show as to how CIPPO arrived at this calculation is misconceived in law and facts; that it is not for claimants (sic) to prove that the circular of CIPPO was incorrect or CIPPO computed his pension with circulars unknown to law but they failed to do so. That the issue in this case is that CIPPO from inception did not pay claimant the correct pension; that the 2nd defendant instead of curing this defect deducted arbitrarily from the claimant’s pension. That the issue is that 2nd defendant relied on this purported wrong calculation by CIPPO to deduct claimant’s pension drastically without any circular authorizing them to do so; that claimant reiterate that the 2nd defendant had no such authority to reduce claimant’s pension; and the claimant urged the Court to so hold.

 

62.           The claimant continued that the 2nd defendant in paragraph 6.7 of their written address argued that the correct pension of the claimant at the time of retirement was ?62,561.76 and with the percentage increase is on the monthly pension of ?105,942.21 is incorrect; that 2nd defendant did not state how it arrived at this calculation of claimant’s monthly pension; that claimant has shown at paragraph 13 (column 1) of his witness statement on oath dated 31st May, 2019 that his pension at retirement is ?138,052.66 and he stated how he arrived at this amount. That 2nd defendant computation of claimant pension is wrong and the Court cannot rely on same; that in any case, the monthly pension of ?105,924.21 calculated by the 2nd defendant in the written address is inconsistent with what it stated in their to the claimant and in its witness statement as the claimant’s monthly pension. See paragraphs 7 and 12 of the witness statement on oath of the 2nd defendant’s witness; that the computation of claimant’s pension is inconsistent and unreliable and this Court cannot rely on same.

 

63.           That the submission in paragraph 4.7 of the 2nd defendant’s written address that calculation of claimant’s monthly pension is ?138,052.66 by him is wrong; that he trivialized the calculation of claimant’s pension by stating that claimant does not understand the computation of his monthly pension because he divided his total sum into twelve; that this submission by counsel to the 2nd defendant is misleading in facts. That the claimant in his witness statement on oath showed the Court the basis of his calculation and the circulars on which same is based. The claimant referred the Court to paragraph 13, 14, 15, 16 and 17 of the witness statement of (sic) oath of claimant dated 31st May, 2019 and same is reproduced in pages 9-11 of this written address. The 2nd defendant’s witness in Court confirmed that the circulars issued by the National Salaries, Incomes and Wages Commission is applicable in computing the pension emolument of the claimant (see paragraph 11 of the witness statement on oath of 2nd defendant). That the wordings of CW5, CW6, CW7 and CW8 is clear and it does not exclude the claimant from its application.

 

64.           The claimant continued that 2nd defendant’s counsel argued in paragraph 4.7 of his written address that claimant did not understand the procedure for calculating his emolument and he just divided the yearly emolument by 12 and this is not correct; that the claimant in paragraphs 4 and 5 of his additional witness statement on oath filed on November 16, 2020 showed how he arrived at his calculation. The 2nd defendant’s submission to the claimant, is misconceived and same should be discountenanced by this Court. That the 2nd defendant’s submission is misconceived and should be discountenanced by this Court; that 2nd defendant in his witness statement on oath relied on Exhibit CW5 as the circular to compute the claimant’s pension and emolument; that 2nd defendant made a u-turn in his written address and stated that the approved computation of retirement benefit is the computation in the second schedule to the Pension Reform Act; that 2nd defendant knows that the said computation does not apply to the claimant; that 2nd defendant computation is wrong because claimant is covered by CONPASS as he retired on 24th March 2004. That the civil service template formula of 1979 No. 102 which the 2nd defendant used in its calculation applied to those comptrollers who retired before January 2003 and are not covered by CONPASS; that claimant’s calculation is in accordance with the circulars issued by the National Salaries, Income and Wages Commission applicable to the claimant who retired in March 2004; that defendants did not produce any other circular to contradict claimant’s computation.

 

65.           The claimant in paragraph 10 of his witness statement on oath dated 31st May 2016 that 2nd defendant relied on circulars not applicable to claimant in calculating claimant’s pension in the way it did, that in any case, the Supreme Court in New Nigeria Development Company Limited v. Daniel Ugbagbe (2021) LPELR-56666 (SC) has resolved that where there is an ambiguity regarding the payment of any entitlement to an employee, same must be resolved in favour of the employee. The wordings of the Supreme Court in New Nigeria Development Company Limited v. Daniel Ugbagbe (2021) LPELR-56666 (SC) as to this issue is clear:

“However, it is a principle of labour law that any ambiguity regarding the payment of any entitlement to an employee must be resolved in favour of the employee- in this case, the retiree. I cite with approval Chiroma v. Forte Oil Plc Suit No. NICN/ABJ/165/2018 delivered on 2/5/2019 by Justice B.B. Kanyip, PhD, Owulade v. Nigeria Agip NICN/LA/41/2012 delivered on 12/7/2016 by Hon. Justice B.B. Kanyip, PhD.

That claimant has shown that he is entitled to the increment as stated in Exhibits CW5, CW6, CW7 and CW18; that the wordings of these circulars are clear and states (sic) that it is applicable to claimant who has relied on them and tendered same in Court; that the 2nd defendant’s argument on this issue is misconceived and claimant urged the Court to discountenance same.

 

66.           To the claimant, the argument of 2nd defendant in paragraph 5.2, 5.3, 5.4 and 5.5 is wrong; that the claimant did not say that he entitled to the salary in the said circular but he is entitled to the increase in pension as prescribed in the said circulars; that the question as to rent, allowance, stated by the 2nd defendant is not the issue in this case. That the provision of the circulars tendered as Exhibit CW5, CW6, CW7, CW8 and CW17 is clear and should be given their clear meaning; that 2nd defendant is not clear as its calculation of the claimant’s pension; that this is so because of their misapplication on the circulars pertaining to the claimant in calculating his pension. The claimant urged the Court to discountenance the said argument in their written address.

 

Damages in the sum of N100,000,000.00 (One Hundred Million Claimed by Claimant)

67.           It is the claimant’s submission that the Court of Appeal in the case of Edosaca v. Osakwe (2018) 16 NWLR 16 NWLR (Pt. 1645) 199 at 230, Paras F-G, the Court of Appeal on damages held thus:

“Damages are pecuniary compensation obtainable by success in an action for a wrong which either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at the tune, unconditionally and generally.”

The claimant went further to state at page 230, paragraph D-F that:

“The purpose of an award of damages is to compensate the plaintiff for damage, loss or injury suffered…”

 

68.           In this case, it is the claimant’s contention that he is a retired comptroller of the Nigeria Customs Service; that as a retiree, he has no other source of income but solely relies on his pension to cater for himself and his family. That the defendants admitted to the unlawful deduction of claimant’s pension which was paid of thousand but reduced to paltry N28,419.40 (Twenty Eight Thousand, Four Hundred and Nineteen Naira Forty Kobo). That the claimant at page 23 of his witness statement on oath stated that he has suffered loss and damages; that this deposition was neither contradicted nor questioned during cross examination in Court. That the claimant went ahead to state at paragraph 10 of his additional witness statement on oath dated 16th November 2020 and adopted in Court thus:

“I have been in shock, being unable to afford to provide for the health care and feeding of myself and my family, or afford to pay my monthly house rent, utility bills for Electricity, water and waste disposal without borrowing as a result of the short payments of my monthly pension by defendants. I am heavily indebted because of the short payment of my pension, gratuity and non-payment of severance allowance.”

 

69.           To the claimant, the above is occasioned by the failure or negligence of the defendants to properly do their duty as enshrined in the Pension Reform Act 2014, and the wrongful deduction from claimant’s monthly pension. That in First Bank of Nigeria Plc v. Attorney General of the Federation (2018) 7 NWLR (Pt. 1617) 121 @ 162, paras, B-D, the Supreme Court held that:

“The primary object of an award of damages is to compensate the plaintiff for the harm to him. A secondary object is to punish the defendant for his conduct in inflicting that harm.”

 

70.           That the failure of the defendants’ part caused the claimant a lot of harm and pain which considerably affected the quality of life he has been able to maintain for himself and his family; that this loss is as a result of the direct consequence of the defendants’ action or inactions. That in Popoola & ors v. Attorney General of Kwara State (2011) LPELR-3608 (CA), page 18-19, para P-E the Court held thus:

“An Employer, be it government of the Federation or its agency or a state government or any of its establishments or parastatals cannot under the Constitution of Nigeria and Pensions Act deny a retiree his gratuity, and terminal benefit especially in this case where all the odds are against the Cross-Respondent…

Section 173 of the 1999 Constitution relates to the protection of pension rights… section 210(1) and (2) provides simply that pension or gratuity shall not be withheld under any circumstances thus the permissions of section 2 of the Public Officers Protection Act will not be applicable to the claims of the appellants. It is inhuman and wicked for a retiree or pensioner to be denied his pension or gratuity when he ought to be enjoying the fruit of his labour. The 1999 Constitution vide section 210 is to the effect that pension or gratuity shall never be withheld under any guise or condition that is not clearly stipulated.”

 

71.           The claimant continued that assuming but not conceding in any way whatsoever that there was an overpayment, the defendants knew that the claimant is not responsible for this overpayment; that the Financial Regulations of the Federal Government holds the Accounting Officer liable for the overpayment; that 1st defendant knew of the existence of this law but chose to ignore it. That taking into consideration the fact of this case as shown by the evidence which has been led by the claimant in proof of his case, claimant submits that he has sufficiently proved his case before this Court to be entitled to an award of damages against the defendants.

 

72.           In conclusion and in view of the fuller explanation and analysis in the address, the claimant urged the Court to reject the defendants’ case and to enter judgment accordingly in favour of the claimant and grant the reliefs he seeks.

 

73.           The 1st and 2nd defendants did not file any reply on points of law.

 

COURT’S DECSION

74.           I took a careful look at the processes filed by the claimant and the defendants and the submissions of both parties’ counsel. I need to clarify a thing or two regarding some of the submissions made in this matter. First, the claimant in paragraph 1.3.9 of his final written address stated thus:

“2nd defendant computation is wrong because claimant is covered by CONPASS as he was retired on 24th March, 2004…

Claimant’s calculation is in accordance with the circulars issued by the National Salaries, Income and Wages Commission applicable to the claimant who retired in March 2004.”

I need to state that Pension Reform Act 2004 has been repealed.

 

75.           I now move to the merit of the claimant’s case. For the claimant to succeed in his claims, he must prove the twin issues of his entitlement to the outstanding pension he claims and how he came by the sum he claims; and must do this with concrete and cogent evidence, which normally is documentary evidence, not oral. Where the evidence is oral, it must be corroborated by some other credible evidence, not oral. This Court said this mush in Mr. Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2018, the judgment of which was delivered on 4th June 2018 in the following:

In labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums to prove not only the entitlement of the sums but how he/she came by the quantum of the sum; and proof of entitlement is often by reference to an instrument or document that grants it (Mr. Mohammed Dungus & ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39), not the oral testimony of the claimant except if corroborated by some other credible evidence.

 

76.           The onus of proving claims for special damages is pretty onerous. 7UP Bottling Company Plc v. Augustus (2012) LPELR-20873 (CA), for instance, held that a claim for gratuity, pension, housing fund, salary is a claim for special damages, which must be particularized and strictly proved. And by NNPC v. Clifco Nigeria Ltd (2011) LPELR-2022 (SC), what appears to be an admission cannot apply to a claim for special damages. Put in another way, a claim for special damages cannot succeed because it is admitted. That special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See also John Eneh v. Kevin Ozor & anor (2016) LPELR-40830 (SC).

 

77.           It is pertinent to note that the Pension Reform Act 2014 built upon the Pension Reform Act 2004 introduced key changes like increased participation, stricter penalties and provisions for informal sector workers. It aimed to enhance the contributory pension scheme’s effectiveness, improve benefits for retirees; and ensure better protection for contributors. A wrongful computation of retirement can lead to financial hardship for the retiree, potentially impacting their quality of life, and may also result in legal action against the employee or pension provider. The retiree may also experience psychological distress due to the uncertainty and financial instability. See Mohammed Umar Adabara v. Unity Bank Plc NICN/KD/42/2018 the judgment of which was delivered on 8th October 2021 per Justice Adeniyi. The law is established that any ambiguity regarding the payment of any entitlement to an employee must be resolved in favour of the employee. In this case, the retiree. See Chiroma v. Forte Oil Plc unreported Suit No. NICN/ABJ/165/2018, the judgment of which was delivered on 2 May 2019 and Owulade v. Nigeria Agip Plc, the judgment of which was delivered on 12 July 2016 per Hon. Justice Kanyip PhD.

 

 

78.           Section 173 of the 1999 Constitution provided thus:

1)   Subject to the provisions of this Constitution, the right of person in public service of the Federation to receive pension or gratuity shall be regulated by law.

2)   Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct.

3)   Pensions shall be reviewed every five years or together with any Federal civil service salary reviews, which is earlier.

4)   Pensions in respect of service in the public service of the Federation shall not be taxed.

 

79.           Section 1, dealing with the objectives, of the PRA provides as follows:

a)    Establish a uniform set of rules, regulations and standards for the administration and payments of retirement benefits for the Public Service of the Federation, the Public Service of the Local Government Councils and the Private Sector;

b)    Make provision for the smooth operations of the Contributory Pension Scheme;

c)     Ensure that every person who worked in either the Public Service of the Federation Capital Territory, States and Local Governments or the Private Sector receives his retirement benefits as and when due; and

d)   Assist improvident individuals by ensuring that they save in order to cater for their livelihood during old age.

 

80.           A comparison of section 7(1)(a) of the PRA 2014 with section 4(1)(c) of the PRA 2004, will show that there is a proviso in section 4 of the Pension Reform Act 2004 to the effect that after the lump sum withdrawal, the amount left shall be sufficient to procure an annuity or fund programmed withdrawals that will produce an amount not less than 50% of the retiree’s annual remuneration as the date of retirement. The proviso in section 7(1)(a) of the PRA 2014 states that “the amount left after the lump sum withdrawal shall be sufficient to procure a programmed fund withdrawals or annuity for life in accordance with extant guidelines issued by the Commission, from time to time.” The requirement that the balance left after the lump sum withdrawal must be sufficient to produce an amount not less than 50% of the retiree’s annual remuneration as at the date of retirement enjoined by section 4(1)(c) of the PRA 2004 is not maintained under section 7(1)(a) of the PRA 2014. For this reason, Awoku Segun and Peter Agbende are distinguishable and so cannot be applied in the instant case. I so hold.

 

81.           The claimant submitted that he is entitled to severance allowance; that he was prematurely retired on 24th March as shown in his letter of retirement; that by the Pension act (Cap. 34612601), the laws of the Federation of Nigeria, Claimant is entitled to 10% of his pension and gratuity as compensation for premature retirement. The claimant continued that his solicitor wrote to defendants but they refuse to pay the claimant the correct payment hence this suit. The claimant in is witness statement on oath dated 31st May, 2019 clearly stated in paragraphs 13, 14, 15, 16 and 17 of which the defendants did not cross-examined the witness to discredit the averment as to the correctness or otherwise of the computations of the claimant’s pensions and gratuity due to him; that the failure to cross-examine a witness on an issue constitutes an acceptance of the truth of his evidence in respect of that issue or on an important point. Exhibit CW5 is circular with Ref No. SWC.04/Vol.V/200 dated 9th October 2003 is an approved revised Harmonised Paramilitary Salary structure ranging from 12.5% for HAPASS 01 to 4% for HAPASS 16 which take effect from 1st October, 2003.

 

82.           I looked at Exhibit CW6 with Ref No. SWC/S/04/S.306/1 dated 18th January 2007 is an approved new salary structure for Paramilitary Services in the Federal Republic of Nigeria known as the Consolidated Paramilitary Salary Structure (CONPASS) which took effect from 1st January 2007.

 

83.           Exhibit CW7 with Ref No. SWC/S.08/Vol.IV/207 dated 5th August 2010 is an upward review of the Consolidated Paramilitary Salary Structure (CONPASS) which take effect from 1st July 2010.

 

84.           Exhibit CW18 with Ref No. SWC/S/04/S.306/1 dated 18th January 2007 is an approved increase in the pensions of retired public servants under the old, non-contributory Federal pension scheme for the Top Federal Public Office Holders, only the pension increase of 15% with effect from 1st January 2007 should apply to them since they were not affected by the 12.5% - 4% increase and Exhibit CW19 with Ref No. SWC/S/04/S.542/26 dated 26th September 2014 is an approved increase in the pensions of retired public servants under the old, non-contributory Federal pension scheme as a result of the salary increase of 53.37% in the Federal Public Service in 2009/2010 which takes effect from 1st July 2010.

 

85.           To the claimant, it is his right to have his terminal entitlements properly computed based on the approved and extant circulars issued by the relevant body which in this case, is National Salaries, Income and Wages Commission circular with Ref. No. SWC.04/Vol. V/200 dated 9th October 2003 which dealt with HAPASS and circular with Ref. No: SWC/S/04/S557/T/19 dated 18th June 2015 which referred to CONPASS of 15% increase of 1st January 2007 to 30 June 2010 and CONPASS 53.37% 1st July 2010 to date. That the National Salaries, Incomes and Wages, Commission directed CIPPO to this circular as a reply to CIPPO’s letter with Ref. No: CIP/PEN/POL/1229/4 dated 10th November 2008 asking for clarification of pensionable allowance payable to paramilitary personnel of customs, immigration and prison services and circular with Ref. No. SWC/S/04/S. 557/T/19 dated 18th June 2015 enabling 2nd defendant pay 33% from 1st July 2007 to date. That the proper pension entitlement of the claimant is ?17,318,662.39.

 

86.           There is no gainsaying that pension right is one that an employee has and must enjoy if proved. Case law authorities abound on this point. For instance, by Momodu v. NULGE (1994) 8 NWLR (Pt. 362) 336 CA, a pension is an accrued right of an employee, be the right in money or other consideration, on retiring from the services of his employer and satisfying the conditions for payment of the said pension. It is a right which cannot be unilaterally taken away by the employer. NEPA v. Adeyemi (2007) 3 NWLR (Pt. 1021) 315 on its part held that entitlement to pension and gratuity is a vested right, and whether an employee is eligible for pension and gratuity can be decided only by reference to the conditions of service. By RSCE v. Omubo (1992) 8 NWLR (Pt. 260) 456, in a pensionable employment the employee’s right to pension ripens in the year of his retirement, until then that right is only contingent upon attaining his age of retirement.

 

87.           The 1st defendant had submitted that the claimant has not made out a prima facie case against the 1st defendant to be entitled to judgment; that claimant failed to prove his case against the 1st defendant; that by the claimant’s own showing, the 1st defendant plays (sic) only supervisory and regulatory roles concerning pension matters in Nigeria; that 1st defendant dutifully discharged her obligations to the claimant as provided under section 23 (h) of the Pension Reform Act 2014; and urged the Court to so hold. See Oyewole v. Oyekola (1991) 7 NWLR (Pt. 612) 560 @ 564 Paras. G-H and section 23(b) of PRA 2014 55.

 

88.           It is the 2nd defendant’s contention that the then Customs Immigration Prison Pension Department (CIPPO) who initially computed the claimant’s pension and gratuity using a salary structure unknown to the Federal Government; that subsequently, when the 2nd defendant took over the payment of CIPPO pensioners, the 2nd defendant used the Federal Government approved salary structure provided by the National Salaries, Income and Wages Commission (HAPSS 2003). That the claimant arrived at their (sic) computation using the wrong salary structure of CONPASS 2007 and not HAPPS 2003 hence the difference in computation; that a recovery process was set in motion to recover all excess payments made to the claimant; that CONPASS 2007 salary structure which he is claiming to fall under does not apply to him. See NBC Plc v. Ezeifo (2001) 12 NWLR (Pt. 726) 11 CPP 28-29, Jolayemi v. Alaoye (2004) 122 NWLR (Pt. 887) p. 332 @ 348; AG Cross River v. AG Federation (2012) 16 NWLR (Pt. 327) 425; Tiajni, Mustpha v. Federal Republic of Nigeria anor (2018) 17 NWLR (Pt. 16480) Ratio  10; IGP v. Mobile Producing (Nig) Unltd (2018) 14 NWLR (Pt. 1639) 382 Ratio 1 and Dr Olubukola Abubkar Saraki v. Federal Republic of Nigeria (2018) 16 NWLR (Pt. 1646) 425 Ratio 35.

 

89.           The claimant’s case on the pleadings is that by virtue of Exhibit CW5, he became entitled to the sum of ?1,656,632.00 (One Million, Six Hundred Fifty Six Thousand, Six hundred and Thirty Two Naira) as total pensionable annual emolument and ?138,052.66 (One Hundred and Thirty Eight Thousand, Fifty Two Naira and Sixty Six kobo) as monthly pension from April 2004 to 31st December 2006; that the said computation is as contained in National Salaries Income and Wages Commission details of the Consolidated Para-Military Salary Structure (CONPASS) for the purpose of computing terminal benefits 1st January 2007-30th June 2010 and 1st July 2010 to date. To the claimant, the defendants are aware of the fact that the civil service template formula of 1979 No. 102 which 2nd defendant used in calculating the claimant pension in respect of retirement from 1st June 1992 released by the National Salaries Incomes and Wages Commission is not applicable to “paramilitary officers” who were covered by CONPASS who retired between January 2003 to December 2006. Exhibit PTAD 03 dated 20th September 2018 and the assertions therein that claimant’s entitlements were wrongly computed are an afterthoughts and untenable. I so rule. The deduction from the claimant’s monthly pension from August 2017 by the 1st defendant acting either by itself and or through 2nd defendant is wrongful and unlawful. I so hold.

 

90.           Section 7 of the PRA provides thus:

1)   A holder of a retirement savings account shall, upon retirement or attaining the age of 50 years, whichever is later, utilize the amount credited to his retirement savings account for the following benefits:

a)    withdrawal of lump sum from the total amount credited to his retirement savings account provided that the amount left after the lump sum withdrawal shall be sufficient to procure a programmed fund withdrawals or annuity for life in accordance with extant guidelines issued by the Commission, from time to time;

b)    programmed monthly or quarterly withdrawals calculated on the basis of an expected life span;

c)     annuity for life purchased from a life Insurance Company licensed by the National Insurance Commission with monthly or quarterly payments in line with guidelines jointly issued by the Commission and National Insurance Commission;

d)   professors covered by the Universities (Miscellaneous Provisions (Amendment) Act, 2012 shall be according to the University Act; or

e)    other categories of employees entitled, by virtue of their terms and conditions of employment, to retire with full retirement benefits shall still apply.

2)   Where an employee voluntarily retires, disengages or is disengaged from employment as provided for under section 16(2) and (5) of this Act, the employee may with the approval of the Commission, withdraw an amount of money not exceeding 25 percent of the total amount credited to his retirement savings account, provided that such withdrawals shall only be made after four months of such retirement or cessation of employment and the employee does not secure another employment.

3)    Where an employee has accessed the amount standing in his retirement savings account pursuant to subsection (2) of this section, such employee shall subsequently access the balance in the retirement savings account in accordance with subsection (1) of this section.

 

91.           Section 173(1) of the 1999 Constitution allows the right to pension or gratuity to be regulated by law but by section 173(2), the said pension or gratuity shall not be withheld or altered to the disadvantage of the recipient except to such extent as is permissible under any law, including the Code of Conduct. The PRA 2014 as enacted, therefore, meets the tenor of section 173 of the 1999 Constitution.

 

92.            From all I have said, I am satisfied that the claimant is entitled to the 50% lump sum he asked from his RSA given Maroof and the fact that the PRA, and the guidelines made by the 2nd defendant under PRA, did not bar it. If the lump sum withdrawal can go as high as 45.11% as indicated by the 2nd defendant, it may as well go to 50%. The denial by the 1st defendant to pay to the claimant the 50% of her RSA as requested is accordingly wrong. I so hold.

 

93.           Relief (2), (3) and (4) accordingly succeed and are accordingly granted as prayed.

 

94.           Relief (5) is for damages in the sum of ?100,000,000.00 (One Hundred Million Naira) only. The principle for the award of special damages is different from that of general damages. In the former, damages are specially pleaded, strictly pleaded, strictly proved and accordingly awarded; in the latter they are awarded, if necessary under specific heads of claims, presumed in law to be the direct and natural consequence of the act complained of and awarded at large. See Rock Onoh Property Co. Ltd v. NITEL (2000) 7 SC (Pt. 111) 154 at 177; (2001) FWLR (67) 882. Having considered the law on general damages, the sum of ?5,000,000.00 (Five Million Naira) only is awarded against defendants in favour of the claimant.

 

95.           On the whole, the claimant’s case succeeded in part. Accordingly, I make the following declaration and orders:

1)   It is declared that the deductions from the claimant’s monthly pension from August 2017 by the 1st defendant acting either by itself and or through 2nd defendant is wrongful and unlawful.

2)   The defendants shall within 30 days of this judgment pay to the claimant the sum of ?17,318,662.39 being the short payment of claimant’s pension arising from the period of wrongful computation. Recomputing is the task of the claimant and not that of the defendants as it is the burden of a claimant to prove special damages.

3)   Damages in terms of ?5 Million are accordingly ordered in favour of claimant to be paid by the defendants.

4)   There shall be no cost of instituting this suit.

 

96.           Judgment is entered accordingly.

 

 

Hon. Justice J.I. Targema, PhD