IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

18^TH DAY OF JUNE, 2026                               SUIT NO. NICN/CA/53/2024

BETWEEN:                                             

MR. ADEFOWOWE ADEBAMOWO ………………………………………………………… CLAIMANT

AND

1.                  STANBIC IBTC PENSION MANAGERS LTD

2.                  NATIONAL PENSION COMMISSION                                                         DEFENDANTS

3.                  ACCESS BANK LTD (FORMERLY ACCESS BANK PLC)    

 

JUDGMENT

1.     The judgment in this case was slated to be delivered on 24^th day of June, 2026, however, I directed the registrar to fix it for today since the judgment is ready.

2.     Vide a general form of complaint dated 26/8/2024 and filed on the same date, the claimant commenced this action against the defendants praying for:-

1.     A Declaration that the 1^st Defendant is only entitled to deduct the sum of N1,690,406.46 (One Million, Six Hundred and Ninety Thousand, Four Hundred and Six Naira and Forty-Six Kobo) from the Claimant’s Retirement Savings Account (RSA) with the Defendants, the said sum being the excess amount contributed by the Claimant’s previous employer Access Bank Ltd, into the Claimant’s Retirement Saving Account (RSA) from July 2007 to April, 2013.

2.     A Declaration that it is unlawful, unconstitutional and ultra-vires the provisions of the Pension Reform Act, 2014, for any Pension Fund Administrator (PFA) to insist and deduct monies earned by its client from investment for the purpose of refund to previous employers for any excess contributions.

3.     An Order upon the 1^st Defendant to immediately process and pay over to the Claimant 25% (Twenty Five percent) of the current balance standing to the Claimant’s credit in the Claimant’s Retirement Savings Account with the 1^st Defendant.

4.     The sum of N5,000,000.00 (Five Million Naira) as general damages for breach of contract by the Defendants to quickly process and pay up the Claimant’s entitlement of 25% (Twenty Five percent) demand of my savings on demand.

5.     An Order of Perpetual Injunction restraining the 1^st Defendant, its agents and proxies from deducting any sum of money from the Claimant’s account with them in the guise of excess contribution outside the sum of N1,690,406.46 (One Million, Six Hundred and Ninety Thousand, Four Hundred and Six Naira and Forty-Six Kobo), being the excess contribution made by Access Bank Ltd into the Claimant’s Retirement Savings Account (RSA) from July, 2007 to April, 2013.

3.     Upon being served with the originating process commencing this suit, the 1^st defendant on 19/12/2024, filed its statement of defence. On 15/1/2025, the 2^nd defendant also filed statement of defence. The claimant in response on 20/1/2025, filed reply to the statement of defence. The 3^rd defendant did not file any process before the court in defence of the claim against it.

THE CASE OF THE CLAIMANT

4.     The Claimant was a former employee of the 3^rd defend. He worked for 3^rd Defendant between years 2006 and 2007. Thereafter, he transferred his service  to Sterling Bank, from 2007 to 2009. While working for the 3^rd defendant, the claimant opened retirement savings accounts with the 1^st defendant where his pension contribution and that of his employer were remitted. 

5.     Sometime in October, 2022, the claimant applied to the 1^st defendant at its Calabar branch to withdraw 25% from his retirement savings account, which is allowed for an employee under 50 years of age out of work before retirement. The claimant was given a list of requirements of the documents to provide and forms to fill in order to process the application. The claimant duly complied and met the requirements. However, when he visited 1^st defendant to enquire about the extent to which his application had been processed, he was told that the 3^rd defendant appeared to have made remittances into his account after he had left the service of 3^rd defendant’s employment and as such the 1^st defended needed to get across to 3^rd defendant to have their input before the claimant could be allowed to make withdrawal.

6.     The claimant after October, 2022, visited defendant’s Calabar office severally without making any head way and was finally informed that the 3”’ defendant stated that the remittances made into the claimant’s pension account were made in error and was further informed that the excess amount had to be backed out of the claimant’s Retirement Savings Account (RSA) balance before the claimant’s withdrawal request “could be attended to. 

7.     The claimant was verbally informed that the excess money paid by the 3^rd defendant was N2,109,841.09 (Two Million One hundred and Nine Thousand, Eight Hundred and Forty One Naira and Nine Kobo). The claimant demanded to be formerly communicated in writing. When the 1^st defendant’s branch office in Calabar was not forth coming, in November, 2022, the claimant sent an e-mail to Headquarters of the 1^st defendant. The head office responded with a spreadsheet of the claimant’s account showing the amount contributed by 3^rd defendant into the claimant’s Retirement Savings Account (RSA) between July, 2007 and April, 2013 which totaled the sum of N1,690,406:46 (One Million, Six Hundred and Ninety Thousand, Four Hundred and Six Naira and Forty Six Kobo), which amount according to the 1^st defendant was now valued at N2,109,841.09 (Two Million, One Hundred and Nine Thousand, Eight Hundred and Forty One Naira and Nine Kobo) and was the amount that needed to be deducted from the claimant’s Retirement Savings Account (RSA) balance and presumably refunded to the 3^rd defendant.

8.     Based on the information from Headquarters, the claimant authorized deduction of the sum of N2,109,841.09 (Two Million, One Hundred and Nine Thousand, Eight Hundred and Forty-One Naira and Nine Kobo). On reaching 1^st defendant’s office in Calabar with the authorization letter he was told that the information given to him by the Headquarters was inaccurate and the amount to be deducted was N7,911,695.65. the claimant was shocked with this development, he again sent e-mail to Headquarters complaining of the new figure. In their response they provided another spread-sheet to show how they arrived at the fresh figure the claimant was now being asked to pay back.

9.     When claimant was not satisfied with the response of 1^st defendant, he wrote complaint to 2^nd defendant in November, 2022 and followed up with another in April, 2023, but there was no response.

10. The claimant stated that the 1^st defendant is only entitled to back out the sum of N1,690,406.46 being excess contribution by the 3^rd defendant into his retirement savings account from July, 2007 to April, 2013 and that the claimant is entitled to all profits from investments made by the defendant from the claimant’s savings with the 1^st defendant.

    THE CASE OF THE 1^ST DEFENDANT.

11. The case of the 1^st defendant is that it acted as pension manager for retirement savings account of the claimant where both 3^rd defendant, (Access Bank) and Sterling Bank plc, (who was not made party in this suit), had made remittances of pension contributions on behalf of the claimant. According to the 1^st defendant, till date the claimant has not yet submitted any proper application  to the defendant for the purpose of accessing 25% of the fund in his retirement savings account. Furthermore, a review of claimant’s account shows that even though he had left services of the 3^rd defendant, the 3^rd defendant kept remitting pension contributions from June, 2007 to November, 2007, January, 2018 – March, 2O013.

12. In October, 2023, the 3^rd defendant informed the 1^st defendant that the excess contribution remitted into claimant’s account belongs to another employee Mr. Abdullah Bello and requested transfer of the excess payment together with accrued interest to the said Mr. Abdullahi Bello’s retirement savings account RSA, with the 1^st defendant.

13. According to the 1^st defendant, the claimant was mistakenly informed through e-mail about the excess contribution. The correct amount is N7,911,695.05, the erroneous figure arose from use of wrong fund price to calculate the units of the excess contributions. The correct thing to do was to use the fund price for fund 1 to calculate the units of the excess contributions because sometime in August, 2018, the entire contributions in the claimant’s RSA including the excess contribution meant for another employee of Access Bank, was migrated to fund 1, based on the instruction of the claimant. This correction was made claimant advised to issue authorization to back out fund to enable process of his 25%.

CLAIMANT’S REPLY TO STATEMENT OF DEFENCE OF THE 1^ST DEFENDANT.

14. In reaction to the 1^st defendant’s statement of defence, the claimant stated that on paragraph 5 of the defence, what he is only required to is to provide retirement savings account detail to his new employer. And payment into Retirement Savings Account by Sterling Bank is evidence in itself that he had left services of the 3^rd defendant.  

15. In denial of paragraph 9 of the 1^st defendant’s statement of defence, the claimant stated that the request claimed to have been made by the 3^rd defendant is unlawful to transfer from one Retirement Savings Account to another under any guise, as funds in Retirement Savings Account is meant for the beneficiary. In case of erroneous contribution by an employer, the employer can only make claims for that contribution not for the excess contributions and the returns on it. The purported beneficiary of the funds wrongfully transferred to the Retirement Savings Account of the claimant, only has recourse to his employer.

16. The claimant is ready to consent to back out of the actual excess contribution remitted into his account in the sum of N1,690,406.46 and even authorized backing out of N2,109,841.09 as initially advised by the 1^st defendant.

17. The claimant becomes aware of excess remittance in November, 2022 when making his application for a 25% withdrawal. The claimant did not know about the excess contributions at the times they were made between June, 2007 and March, 2013.

18. The 1^st defendant failed in its fiduciary duty by failing to act by the time the erroneous contributions were made between June 2007 to march, 2013 1^st defendant is in breach of his contract with the claimant.  

      THE CASE OF THE 2^ND DEFENDANT.

19. According to the 2^nd defendant it conducted due investigation into claimant’s claim in line with its mandate under the pension Reform Act, 2014. As the 2^nd defendant upon receipt of claimant’s letter dated 16/11/2022, it conducted preliminary investigation on the complaint and later issued a letter dated 6/1/2023 to the 1^st defendant inquiring into the claim of the claimant. The 1^st defendant responded vide letter dated 19/1/2023 detailing engaging the claimant and provided requisite documents/information on the issue. The response revealed that the 3^rd defendant made remittances into claimant’s RSA after he had left services of 3^rd defendant in May, 2007. The excess remittances were from June, 2007 to November, 2007 and January, 2008 to March, 2013. The wrongful remittances were made outside the claimant’s employment with the 3^rd defendant. the remittance was for one Mr. Abdullahi Bello. The 3^rd defendant had requested 1^st defendant to transfer the remittances into Bello’s RSA being the rightful beneficiary. The 1^st defendant sought consent of the claimant to transfer the monies wrongly remitted into his RSA with investment accrued on it to the rightful owner. The claimant has refused to grant consent. The 1^st defendant has advised claimant that the excess remittance, inclusive of the investment interest accrued on it was the sum of N2,109,841.09, however, upon the realization that it had applied a wrong fund price in arriving at the figure, it informed the claimant that the initial figure was incorrect and provided the claimant with the correct figure being N7,911,695.65 which was computed using the correct fund price.

20. The order being sought is to  deprive rightful owner  of the pension contributions erroneously made into claimant’s RSA. The claim  is unjust and inhumane. Pension funds are invested as a pool of funds; however, every individual contribution has a unit price. it is the unit price that determines each RSA holder’s contribution and entitlement from the pool of funds and the rate of unit price varies as the pool of funds appreciates. The returns on investment made with pool funds is distributed to the RSAs of the contributors in that pool of funds according to each contributor’s unit price.

21. The 2^nd defendant conducted due investigation into the claimant’s claim and confirmed that the 1^st defendant had issued an extensive and elaborate explanation to the claimant on the issue. The claimant’s action is incompetent due to failure to issue pre-action notice as required by Pension Reform act, 2014.

CLAIMANT’S REPLY TO STATEMENT OF DEFENCE OF THE 2^ND DEFENDANT.

22. The claimant stated he is not part of the activities of the 2^nd defendant. The claimant stated that he refused to give consent because he believes the directive was unlawful. The claimant denied that he deprived any rightful owner as he is not in a position to deprive any purported ‘rightful owner’ of his rights, as he does not know or have anything to do with the person being referred to.

23. The claimant stated that contrary to 2^nd defendant’s assertion while he admits pension funds are invested as a pool of funds, the claim that every individual contribution has a unit price is false and misleading. It is the pooled funds that has the unit price and every RSA holder’s contribution is used to buy as  many units as it can buy based on the unit price of the funds. Return on investment are distributed based on number of units of the funds owned by each RSA holder, not on each contributor’s price. There is no such things as contributor’s unit price rather it is the unit price of the funds that exist. It is misleading and preposterous to claim that the claimant’s request to the court would affect the returns on investment of a pooled funds.

24. Under pension reform Act, the only amount PFA can request to back out of an Retirement Savings Account holder’s account is any excess contribution made by an employer. The request to back out excess contribution and return accrued on them is unlawful. The power of PFA is only to administer (manage) contribution of Retirement Savings Account holders to their benefit. Till date 2^nd defendant has not responded to him of the result of the 2^nd defendant’s investigation or to advise him on the legality of the request by the 1^st defendant. The 2^nd defendant did not deem it fit to inform the claimant of the outcome or provide guidance.

25. On pre-action notice is only on matters against members of board, the DG, commissioners or any other officer or employee of the 2^nd defendant. This is not the case at hand. The believe that the balance in his Retirement Savings Account less the excess remittance by the 3^rd defendant belongs to him.

  THE SUBMISSION OF THE 1^ST DEFENDANT.

26. On 28/4/2026, Orok O. Ironbar, Esq; counsel for the 1^st defendant adopted the 1^st defendant’s final written address franked by him as his argument. In the written address a single issue was formulated for determination. Counsel, adopted the sole issue as his argument. To wit:-

Whether the claimant in the face of the evidence before the court is entitled to his claims.

27. In arguing the sole issue counsel submitted that this is a very simple case the Claimant having admitted that it is the duty of the PFA to calculate the RSA and collect all the collectibles and further admitting that there is an excess contribution in his Retirement Savings Account in paragraph 13 of his reply to statement of defence of 1^st Defendant filed 20/1/2025, which he adopted as part of his Written Statement on Oath where he wrote:

“I deny paragraph 20 of the Statement of Defence of the 1^st Defendant and aver that my RSA balance less the excess contribution of the 3^rd Defendant of N1,690,406.46 (One Million, Six Hundred and Ninety Thousand, Four Hundred and Six Naira, Forty-Six Kobo) belongs entirely to me.”

28. According to counsel claimant can therefore not deny knowledge of excess contribution.  (What is troubling him perhaps is the quantum of the excess.)  This is in addition to his testimony under cross examination by 1^st Defendant where he said it was for the Pension Funds Administrator to calculate the Retirement Savings Account and that he was in court because he was disputing the excess calculation.  He further testified that he gave his consent for Pension Fund Administrator (1^st Defendant) to withdraw the excess contribution of about N1,690,406.46 (One Million, Six Hundred and Ninety Thousand, Four Hundred and Six Naira and Forty-Six Kobo).

29. Counsel submitted that the witness is well founded in his testimony that the Retirement Savings Account is calculated by the PFA’s because the Pension Reform Act, 2014, Section 55 says so. Counsel submitted that the 1^st Defendant as the PFA is required to calculate the RSA based on its books of account and in this case the 1^st Defendant had done exactly that. When the Claimant disputed the account sent to him, he provided nothing, no calculation of his own to show that PFA was mistaken in their own calculation.  There is nothing before this court as proof of what the Claimant is claiming.

30. Counsel further argued that by Section 23 on the functions and power of the 2^nd Defendant (National Pension Commission) it is empowered to “receive, investigate and mitigate complaints of impropriety made against any Pension Fund Administrator, custodian, employer, staff or agent”. It has other powers but by this stated power the Claimant reported to it and it reacted by directing letters including exhibit DW1E to 1^st Defendant which responded by several letters including exhibit DW1D, supplying its calculation to it and it found same satisfactory. At this stage the Claimant ought to have relented but he continued to pursue the 1^st Defendant for an amount he himself is not sure of.  He is not sure of the excess from his RSA. At other times he claimed that all the money in the Retirement Savings Account (RSA) was his.  If the 2^nd Defendant (National Pension Commission) did not find fault with the 1^st Defendant’s accounting on Claimant’s RSA, it is submitted with respect that there is nothing the court can do, particularly in this situation where Claimant provided no calculation of his own.

31. Counsel submitted that the Claimant said it had a fiduciary relationship with the 1^st Defendant, he should therefore understand the need for 1^st Defendant to take utmost care in the calculation and payment on RSAs because the courts have held that where a bank wrongfully pays cheque to a person not entitled thereto, it is guilty of the tort of conversion. In support of this contention reliance was placed on the case of TRADE BANK PLC v. BENILUXMA LTD (2003) 9 NWLR (Pt. 825) 416 ratio 6.  The same applies to a PFA.

32. According to counsel there was no way 1^st Defendant could pay all the money in the RSA to Claimant because at that stage it would be performing an illegality and it makes the entire contract become illegal and an illegal contract is a void contract and it cannot be the foundation of any legal right.  To buttress the point being made counsel relies on the cases of SODIPO v. LEMMIN KAINEN OY  (No. 2) (1986) 1 NWLR (Pt. 15) 220, SODIPO v. LEMMIN KAINEN OY  (NO. 1)(1985) 2 NWLR (Pt. 8) 547.  It can be found in the book PRACTICE NOTES FOR TRIAL LAWYERS 2^ND EDITION by Fred F. Odibei.  It becomes an illegal contract because the act of paying a 3^rd parties entitlement to Claimant is illegal, it is contrary to the Law and Public Policy.  It cannot be enforced. counsel support this view with the case of ALHAJI TAOFIK ALAO v. ACB (1998) 3 NWLR (Pt. 542) 339 @ 335 paras E-F.

33. Counsel also submitted that the 3^rd Defendant, is entitled to believe in the defences of the 1^st and 2^nd Defendants. The 2^nd Defendant through its Written Statement on Oath and its witness (Mr. Princewill Stewart) absolved the 1^st Defendant of blame.  The 3^rd Defendant stated for the records that what the 1^st Defendant had put down covered it i.e. the Retirement Savings Account (RSA).  It follows that the excess payment due to 3^rd Defendant’s employee M. A Bello, is admitted by it the payer and it is known that what is admitted need no further proof.  The court is bound to accept such evidence and the likely consequence would be to deduct the excess from the Claimant’s RSA into which it was paid.  As between the 1^st and the 3^rd Defendants there is an agreement on what is the excess in the Retirement Savings Account (RSA).  The second Defendant agreed. All the Defendants are agreed!  In the Statement of Account tendered by 1^st Defendant, exhibit DWI at the 1^st page under were you have RSA Details can be seen June 2007- July 2007, which shows the remittance per month noting that Claimant resigned in June, 2007.

34. Going to the Claimant’s claim in paragraph 19 of his Witten Statement on Oath, apart from denying the entire thing by the 1^st Defendant, it is obvious that even taking them individually they are impossible to grant having regard to the evidence in court. For instance, paragraph 19(i) is a declaration that Claimant is only entitled to deduct the sum of N1,690,406.46 from the RSA, without stating or showing how he came to that conclusion. The 1^st Defendant had said that figure was a mistake and it recalculated with the correct fund unit and it came to N7,911,695.05. The second one is another declaration that it is unlawful, unconstitutional and ultra vires the provisions of the Pension Reform Act, 2014, to deduct monies earned by its client from investment for the purpose of refund to a previous employer i.e. the excess contributions.  He did not point out the Section of the PFA 2014, entitling him to such assertion. Rather, the 1^st Defendant stated that it was its responsibility to keep RSA and to render account on them and to pay to the proper beneficiary. It referred to the proper section of the Pension Reform  Act, 2014. Thirdly, he prayed for an Order upon the 1^st Defendant to immediately process and pay over to him 25% of the balance in his RSA as it is currently, which means he wants to collect another person’s money paid into his RSA.   RSA is an investment account which must keep increasing since his retirement based on the contributions of another employee.  He claimed N5 Million as damages which we believe cannot be paid as there is no damages proved and the final prayer is an Injunction for the 1^st Defendant not to deduct more than N1,690,406.46 from RSA. This is also impossible to grant as the 1^st Defendant has established that it made a mistake in its calculation and stated the correct amount to be deducted.

35. In summation, counsel submitted that the Claimant sued the 1^st Defendant before determining what he was entitled to in his Retirement Saving Account (RSA). But the 1^st Defendant had made a calculation of the Claimant’s Retirement Savings Account (RSA) which calculation the 2^nd Defendant was in agreement with. The Claimant having agreed that there was excess money paid into his account and he was disputing it should have provided calculation or a guide to the court as to how he arrived at his own excess or lack of it. The court is required not to speculate in granting Claimant’s prayers. The relationship here is fiduciary and the 1^st Defendant is required to take the utmost care.

36. In concluding his submission, counsel argued that the 1^st Defendant believes that it has established that the Claimant is not entitled to his claims and thus urges the court to dismiss his claims in its entirety.

THE SUBMISSION OF THE 2^ND DEFENDANT.

37. E. M. Nwankwo, Esq; counsel for the 2^nd defendant adopted the 2^nd defendant’s final written address as his argument. In the written address twin issues were formulated for determination. They are:-

1.     Whether the Claimant has, by the evidence before this Honourable Court, proved entitlement to his claims in this suit.

2.     Whether the Claimant has fulfilled conditions precedent to instituting and maintaining an action against the 2^nd Defendant.

ARGUMENT:

38. Issue 1: Whether the Claimant has, by the evidence before this Honourable Court, proved entitlement to his claims in this suit.

39. In arguing issue 1, counsel while placing reliance on the case of Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638, submitted that it is a well-settled principle that a party cannot make fundamentally contradictory or inconsistent statements in its statement of claim. Pleadings must be consistent. Counsel also refers to the case of Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538, where it was held that a party cannot approbate and reprobate; such a case cannot succeed. According to counsel the Claimant had, in paragraph 14 of his Statement of Claim, stated:

“the claimant avers that he strongly believes that all amounts of money standing to the claimant’s RSA account balance belong to the claimant and nobody else.”

40. Counsel also stated that the Claimant had subsequently, in paragraphs 18 and 19 (i) of the same Statement of Claim, and in the course of trial, stated that the 1^st Defendant is only entitled to back out the sum of ?1,690,406.46 being excess contributions made by Access Bank Plc into his RSA from July 2007 to April 2013, and, thereafter claimed entitlement to the return on investment on the said amount.

41. The Claimant had, in his witness statement on oath, on one breath claimed entitlement to the entire amount standing in his RSA, and in another breath, admitted that excess remittance was actually made into his RSA. The Claimant cannot approbate and reprobate, and at such, his case cannot succeed; counsel urged the Court to hold so.

42. Counsel submitted that should the Honourable Court find that the Claimant’s claims are not contradictory, it is the position of the 2^nd defendant that, from the facts of the case and evidence of the Claimant in the course of trial, the Claimant has failed to prove entitlement to the excess remittance erroneously made into his RSA by Access Bank and interest accrued thereupon.

43. Counsel posited that the law is settled facts admitted need no proof. As was the decision in Atanda vs. Iliasu (2012) LPELR-19662(SC) (Pp. 15 paras. D).

44. According to counsel the crux of the Claimant’s case is the amount proposed to be recalled from his RSA due to another contributor, Mr. Abdullahi Bello. It is not in contention that erroneous contributions meant for the said Mr. Abdullahi Bello were made into the Claimant’s RSA for a period spanning over 5 years.

45. For counsel, the Claimant, having admitted that monies belonging to another contributor were erroneously remitted into his RSA, had unilaterally calculated the said amount to be the sum of ?1,690,406.46, and thereafter, lays claim to the entire interest accrued on the said sum. The Claimant has not placed anything before this Honourable Court, or at any time during the course of trial, stated how he arrived at the said sum of ?1,690,406.46. counsel submitted that the onus lies on the Claimant to prove how he arrived at the said sum of ?1,690,406.46, and his argument as to entitlement to the accrued interest on the excess remittance.

46. It is trite that for a Claimant to be entitled to the reliefs he claims, he must prove his entitlement to same on the preponderance of evidence or balance of probability. It is the general principle of law that he who alleges or asserts must prove. To support his view counsel relied on the cases of Kokoroowo vs Ogunbambi (1993) 8 NWLR (Pt. 313) 627 and Igwe vs A.I.C.E (1994) 8 NWLR (Pt. 363) 459 Ratio 7.

47. Counsel further submitted that in civil cases, the general legal burden of proof rests upon the party who substantially asserts the affirmative of the issue in contention. It is posited that the Claimant who commenced the court action must possess all the evidence to justify the legal factual basis for his action. In support of this contention reliance was placed on the cases of Adetona (1994) 3 NWLR (Pt. 333) 481 at 491 and Owoade vs Omitola (1988) 2 NWLR (Pt. 77) 415 at 428.

48. Counsel also made reference to section 55 of the Pension Reform Act, 2014, in establishing the functions of a Pension Fund Administrator (PFA), including the 1^st Defendant, states that the PFA shall;

(b) “invest and manage pension funds and assets in accordance with the provisions of this Act.”

49. Counsel submitted that the 1^st Defendant is vested with the statutory mandate of investing and managing pension funds. Pension funds are invested in line with the Revised Regulation on Investment of Pension Fund Assets issued by the 2^nd Defendant as a subsidiary legislation to guide/regulate the investment of pension funds. The Revised Regulation on Investment of Pension Fund Assets provides that pension funds shall be segregated and invested in different Fund Types. Among these Fund Types are Fund 1, a high-risk and high-return Fund Type, and Fund 2, a conservative and moderate return fund type. The Claimant’s RSA is in Fund 1 Fund Type, which is a high-risk and high-return fund. This means that funds in this Fund Type are invested in secure investment instruments that carry higher risk but also yield higher returns. This explains the substantial growth in the Claimant's RSA over the years. The 1^st Defendant, being the body statutorily mandated to invest the pension funds, understands the investment process and the unit price used in investing each Fund Type at all times, as well as the return on investment due to each contributor in the fund, including the Claimant.

50. It was submitted that the 1^st Defendant, having a fiduciary duty to the Claimant, proffered an elaborate explanation to the Claimant on the issue. The Claimant was also informed that, under the Pension Reform Act, 2014, pension contributions and return on investment on the contributions belong to the rightful contributor. The 1^st Defendant explained to the Claimant how the amount proposed to be recalled was arrived at, and had expected the Claimant’s understanding and cooperation for the right thing to be done, but the Claimant has insisted on laying claims to the return on investment accrued on the principal contribution.

51. The Claimant’s grouse against the 2^nd Defendant is that the 2^nd Defendant failed to respond to his complaint against the 1^st Defendant on the issue. However, the 2^nd Defendant had, as the regulator of the pension industry, engaged the 1^st Defendant on the claims by the Claimant, following which the 1^st Defendant proffered an elaborate explanation on the issue and stated that it had also explained the circumstances to the Claimant, who had remained adamant. It is our position that even a further explanation by the 2^nd Defendant would not have changed the Claimant’s mind/position.

52. Counsel contended that the Claimant is merely seeking an order of this Honorable Court to unjustly enrich himself by laying claim to the interest accrued on the excess remittance erroneously made into his RSA by his ex-employer (3^rd Defendant), even after he had left its services, therefore, seeking to deprive the rightful owner of the contributions and the return on investment.

53. According to counsel the Supreme Court had, in the case of FBN PLC v. OZOKWERE (2013) LPELR-21897(SC), frowned at the unjust enrichment of a person. Similarly, the courts have held that a party should be prevented from holding on to money, which has come into his possession, which it is against conscience that he should keep. On this contention counsel relied on the cases of First Bank of Nigeria Ltd. VS A.P. Ltd. (1996) 4 NWLR (443) @ 448 B, Chartered Bank Ltd. Vs First African Trust Bank Ltd. & Ors. (2005) LPELR-11350 (CA) @ 15 – 16 E – A.

54. Issue 2; Whether the Claimant has fulfilled conditions precedent to instituting and maintaining an action against the 2^nd Defendant.

55. In arguing issue 2, counsel submitted that the Claimant, by failing to issue a pre-action notice to the 2^nd Defendant before instituting this suit against the 2^nd Defendant, failed to comply with the requisite statutory condition precedent to the commencement of a suit against the 2^nd Defendant, and, therefore, renders the Claimant’s suit against the 2^nd Defendant incurably defective and incompetent. Counsel refers to ssection 109 (1) of the Pension Reform Act 2014, which makes it statutorily mandatory to serve the 2^nd Defendant, or its officers, with a pre-action notice, at least one month before the commencement of suit against the 2^nd Defendant or its officers.

56. Counsel further argued that it is trite law that the 2^nd Defendant is a statutory body established under the Pension Reform Act, 2014. In addition, the law is settled that a public officer not only refers to natural persons sued in their personal names but also extends to public bodies, artificial persons, and institutions. In support of this contention counsel relied on the cases of Federal Republic of Nigeria V. Zebra Energy Limited (2002) 18 NWLR (Pt. 798) 162 at 174; Rufus Momoh V. Afolabi Okewale & Anor. (1977) 11 NSCC 365 P 38 Paras D-F, where the court held that the term public officer has by law been extended to include a public department and therefore an artificial person, a public office or a public body.

57. Counsel submitted that the operative word which is worthy of note in section 109 (1) of the Pension Reform Act, 2014 is the word “shall”. The eighth edition of Black’s Law Dictionary provides that where the word “shall” is used, it suggests that the act to be done is “mandatory”. This was the position of the Court of Appeal in the case of Olarinde v Odekina & Anor (2024) LPE;R-62803 (CA), wherein the court held as follows:

“Generally, the word "shall" when used in a statute connotes a mandate or a legal duty. It means that a certain condition must be met. It is considered to be mandatory. So, the word shall ordinarily mean express command”.

58. Counsel further submitted that non-service of a pre-action notice where required by a statute cannot be waived. The failure is an irregularity that renders the action against the 2^nd Defendant incompetent. On this contention counsel relied on the cases of None vs. Anyichie (2005) 2 NWLR (Pt. 910) 623 at 647; Ojo vs. National Pension Commission (2019) 14 NWLR (Pt. 1693) 547 @ 564-565 (Para F-B) SC.

59. Counsel submitted that the Claimant did not comply with the requisite statutory condition precedent before the commencement of this suit against the 2^nd Defendant. Counsel submitted that the Claimant’s suit against the 2^nd Defendant is defective, incompetent, and incurably bad. Counsel urged the court to so hold.

60. On damages counsel as sought by the Claimant, depends on the circumstances of each case. It will flow from the loss suffered (if any). For counsel damages can only be awarded with proof of loss suffered. To support his contention counsel relied on the case of SPDC Ltd vs. NWABUEZE (2013) LPELR-21178-CA. according to counsel, the Claimant has not laid evidence before this Honourable court to entitle him to the damages sought against the 2^nd Defendant.

61. In concluding his submission counsel submitted that the claimant has failed to prove, neither by documentary nor oral evidence, how he arrived at the sum which he claims is the total excess remittance erroneously made into his RSA by his ex-employer (the 3^rd Defendant), nor has he proved his entitlement to the return on investment on the said excess remittance. It is trite that a Claimant must plead and lead evidence to establish its entitlement to the declaration being sought. The Claimant must satisfy the court on the balance of probability to be entitled to the same; declarative relief is not granted even on the admission of the Defendant when in default. To buttress his argument counsel relied on the case of Nwagu vs. Fadipe (2012) 13 NWLR (Pt 1318) 547 at 564.

62. Counsel also argued that the orders sought by the Claimant from this Honourable Court are ones to enable him to unjustly enrich himself to the detriment of another contributor who is the rightful owner of the excess remittance erroneously made into the Claimant’s RSA. The Claimant had acknowledged that excess remittances, not belonging to him, were made into his RSA, but had unilaterally computed what he believes should be recalled from the RSA as the said excess remittance while laying claims to the return on investment that accrued on same. Counsel submitted that the courts have, in a plethora of cases, frowned at unjust enrichment by individuals and we submit that this is a typical case in point. See FBN PLC v. OZOKWERE (Supra).

63. Counsel urged the court to dismiss the Claimant’s suit in its entirety for lacking in merit and for being a ploy to obtain judicial proclamation to unjustly enrich himself.

    THE SUBMISSION OF THE CLAIMANT.

64. On 28/4/2026, when this matter came up for adoption of final written addresses, A. G. Robert, Esq; appeared for the claimant holding brief of Sony Amba Mgbe, Esq; counsel adopted the final written address of the claimant as his argument. Counsel urged the court to discountenanced argument of the defendants and grant reliefs sought by the claimant as according to counsel claimant has proved his case with preponderance of evidence. In the final written address four issues were formulated for determination. They are:-

1.     Whether having regard to the Pension Reform act, and applicable Gazetted regulations, the 1^st defendant possesses lawful authority to debit or transfer alleged excess contributions and accrued returns from the claimant’s retirement savings account, and if not, whether such lack of statutory authority can be cured or validated by obtaining the claimant’s consent or authorization.

2.     Whether the 2^nd defendant as the statutory regulator, can rely on silence or absence of guidance to validate a practice not contemplated by the pension Reform Act.

3.     Whether the claimant in the face of the evidence before the court is entitled to his claims.

4.     Whether failure of the claimant to serve a pre-action notice renders this suit incompetent.

ARGUMENT:

65. Issue 1; Whether having regard to the Pension Reform act, and applicable Gazetted regulations, the 1^st defendant possesses lawful authority to debit or transfer alleged excess contributions and accrued returns from the claimant’s retirement savings account, and if not, whether such lack of statutory authority can be cured or validated by obtaining the claimant’s consent or authorization.

66. In arguing issue 1; counsel submitted that the Pension Reform Act establishes a mandatory and comprehensive statutory regime governing the collection, custody, administration and withdrawal of pension funds in Nigeria. Retirement Savings Accounts are statutory personal properties of employees and contributions credited thereto form part of the contributor’s retirement savings, held and managed strictly in accordance with the Act. Once contributions are credited into a Retirement Savings Account and invested in accordance with the Pension Reform Act, the resulting balance constitutes accrued pension rights of the contributor. Pension assets are statutorily ring-fenced and held for the exclusive benefit of the RSA holder. In the absence of an express statutory provision authorising retrospective adjustment or reallocation of accrued investment performance, neither the Pension Fund Administrator nor the employer possesses the power to diminish the contributor’s accrued pension rights. Any such debit would amount to an unlawful interference with pension assets protected under the Pension Reform Act. In support of this contention counsel relied on the unreported decision of the Lagos decision of this court in the case of OFUNLANA OLADIMEJI V PENSIONS ALLIANCE LTD NICN/LA/180/2023 PER HON. JUSTICE S. A. YELWA where the Court held that a person who is entitled to pension shall have the right to the pension regulated by law and the benefit accruable to the person shall neither be withheld nor altered to his disadvantage. See also OLUGBENGA ADAMS ADEDIPE V PENSIONS ALLIANCE LTD & ANOR (Unreported) Suit No. NICN/PHC/41/2022, PER HON. JUSTICE Z.M BASHIR.

67. Counsel submitted that sections 7, 11, and 16 of the Act regulate the maintenance of RSAs and the circumstances under which withdrawals or payments may be made. Investment returns accruals into an RSA form part of the retirement savings of the contributor in whose account they are recorded and protected under Section 7 of the Act. They are not held in suspense for possible reallocation to third parties. Once contributions are lawfully credited and invested in accordance with the statutory framework, the resulting investment performance accrues to the account holder.

68. Counsel refers to section 7 of the Pension Reform act, 2014, which makes detailed provision for withdrawals from Retirement Savings Accounts. These provisions specify when, how, and for what purpose RSA balances may be accessed. The statutory pattern is unmistakable: Where money may leave an RSA, the Act states the circumstances and prescribes the mechanism. 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. There is no provision permitting a Pension Fund Administrator to debit an RSA in order to reverse alleged excess contributions or recover investment returns for the benefit of another party.

69. According to counsel to permit recovery of returns would require an express statutory mechanism for: identifying excess contributions; isolating attributable returns; determining valuation methodology; allocating investment risk; protecting contributors’ accrued rights. According to counsel no such mechanism exists. Notably, the Act contains no provision authorising the refund of excess contributions together with investment returns; the transfer of excess contributions from one RSA to another RSA nominated by an employer; retrospective debiting of an RSA years after contributions were made, to correct an employer’s administrative error; the attribution of investment returns standing to the credit of an RSA holder to a third party.

70. Counsel argued that the omission is legally significant. In a statutory pension regime, PFAs derive their authority strictly from Statute and possess no inherent, residual or equitable powers. Their authority is confined strictly to what the enabling Act and valid subsidiary legislation expressly permit. Any action taken outside those statutory provisions is ultra vires and void. To support this contention counsel relied on the case of Olaniyan v University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 623, where the Supreme Court emphasised that a statutory body must act strictly within the powers granted to it by law. Also, in Eperokun v University of Lagos (1986) 4 NWLR (Pt. 34) 162, the Supreme Court per OBASEKI, J.S.C held that a creature of statute must act within the limits of the powers granted by the statute and cannot, whether by contract or administrative action, set aside, circumvent or outflank the provisions of the statute. Where the Act is silent, no discretion arises. This position is reinforced by the doctrine of “expressio unius est exclusio alterius”.

71. For counsel, in any case, the alleged beneficiary was not called as a witness and is not before the court. The Defendants are asking the Court to permit an action not provided for by Law and to decide on a matter affecting a non-party.

72. Counsel also refers to section 11, which regulates employer contribution obligations. The Act imposes responsibility for remittance compliance on the employer and prescribes consequences for failures or irregularities in remittance. Nowhere does the Act impose liability on a contributor to refund any excess contributions and the investment returns allegedly generated from the contributions remitted by the employer. Employers are placed under a statutory duty to deduct and remit pension contributions within a prescribed time frame. Failure attracts statutory penalties. This demonstrates that where the legislature intends to regulate the treatment of contributions, it does so expressly and in detail. The Act therefore treats pension contributions as funds subject to a strict statutory scheme, not open to ad hoc adjustment outside the statutory framework.

73. The claim for investment returns is legally unsupported. The Act does not authorise the transfer or claw back of investment returns credited to a contributor’s RSA arising from employer’s remittance error. The employee’s error does not create a legal right of recovery and any effort to recover same constitutes an attempt to impose liability not recognised by the pension statute on the Claimant.

74. Counsel submitted that the evidence before this Honourable Court shows that the excess contributions arose solely from the administrative error of the 3^rd Defendant and the prolonged inaction of the 1^st Defendant. The Claimant neither requested nor caused the excess remittances and had no knowledge of them at the material time. The law does not permit a party to transfer the financial consequences of its own negligence to an innocent third party. Having failed to detect and correct the alleged excess contributions for several years despite access to the relevant account records, the Defendants cannot now seek to retrospectively debit the Claimant’s pension account and deprive him of accrued investment performance.

75. Counsel also submitted that assuming but not conceding that that investment returns are refundable, it is an undisputed fact that Nigeria operated a single-fund pension structure prior to 2018. The multi-fund structure came into being following the enactment of “Regulation on Investment of Pension Fund Assets, 2017” by the 2^nd Defendant. This led to the introduction of Funds I, II, III and IV in 2018. Accordingly: Fund I did not exist in 2013; no unit price for Fund I existed in 2013; no contributor could earn Fund I returns in 2013.

76. Counsel further argued, participation in Fund I is restricted. It is available only to eligible contributors below a specified age threshold and only upon express opt-in. Contributors approaching retirement or already retired are excluded. The evidence establishes that the contributions in issue ceased in 2013 and the purported beneficiary retired in 2013. He could not have opted into Fund I and could not lawfully have earned returns under it.

77. Counsel submitted that pension funds administered under the regulatory framework of the National Pension Commission operate on a unitised accounting structure. Contributions made into an RSA are converted into units of the applicable pension fund at the prevailing unit price, and the value of the account thereafter fluctuates based on changes in the collective fund’s unit price. Investment performance is therefore realised through pooled asset management rather than through discrete interest accruals attributable to specific contributions. Once units have been issued and integrated into the pooled pension fund portfolio, it becomes practically and actuarially impossible to isolate and retrospectively attribute investment performance to a particular contribution made many years earlier.

78. According to counsel the computation of alleged returns using Fund I prices is not merely incorrect but legally impossible. It amounts to the retrospective application of a regulatory structure that did not exist at the material time and to which the purported beneficiary was never eligible. It is settled that laws are presumed not to operate retrospectively unless expressly stated. In support of this contention counsel relied on the cases of University of Jos & Anor v. Aro [2019] LPELR-46926 CA., Ojokolobo v. Alamu (1987) LPELR-2392 (SC) p.12-15.

79. Counsel submitted that, if the Act or a gazette expressly provided for how to handle excess contributions and returns earned on them, the use of Fund I would still be excluded, and at best the original fund of N2.0755 which produced the refund amount of N2,109,841.09 (Two Million, One Hundred and Nine Thousand, Eight Hundred and Forty-One Naira and Nine Kobo) initially communicated to the Claimant by the 1^st Defendant, would be the only useable reference.

80. Counsel also refers to section 55 of the Act, and argued it confines the role of Pension Fund Administrators (PFAs) to administration in accordance with the Act and applicable regulations. The responsibility of the 1^st Defendant under Section 55 of Act, on calculations in relation to retirement benefits is limited to the retirement benefits of RSA holders. This responsibility cannot be extended to calculations on transfers between RSAs or deduction of accrued returns on excess contributions. The Claimant does not contend how his contributions have been managed or how the balance standing to his credit was arrived at.

81. The 2^nd Defendant has relied on Section 55 of the Pension Reform Act 2014 in support of the contention that the 1^st Defendant possesses statutory authority to manage and invest pension funds. While it is not in dispute that Section 55 empowers a Pension Fund Administrator to invest and manage pension funds, it is submitted that the powers conferred under the said provision must be exercised strictly within the limits expressly provided by the Act.

82. Counsel submitted that it is settled law that where a statute confers powers on a body, such powers must be exercised strictly in accordance with the enabling statute and cannot be extended by implication. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 559 at 623; Attorney-General, Bendel State v. Aiyedan (1989) 4 NWLR (Pt. 118) 646. It follows that the existence of a general statutory mandate does not, without more, confer authority to undertake acts beyond what is expressly provided under the Act.

83. Counsel further submitted that, it is trite that subsidiary regulations or administrative guidelines cannot enlarge or confer powers beyond those granted by the principal statute but must conform to it. To support this argument counsel relied on the case of NNPC V. Famfa Oil Limited (2012) 17 NWLR (Pt.1328) 148. In this respect, reliance on regulatory provisions, without identifying any express statutory provision authorizing the position advanced, is legally insufficient.

84. The absence of any provision authorising the recovery or transfer of alleged excess contributions and accrued returns from a contributor’s RSA to another RSA is legally significant in a statute that otherwise regulates withdrawals in detail. According to counsel the conduct of the 1^st Defendant confirms this absence of authority. Rather than acting pursuant to its statutory power, it seeks the Claimant’s authorisation to perform the proposed debit and transfer. This is legally significant. Where statutory authority exists, consent is unnecessary, unless consent is an express requirement under the statute. Where statutory authority does not exist, consent cannot create it. Statutory power cannot be manufactured by private agreement.

85. Issue 2: Whether the 2^nd Defendant, as the statutory regulator, can rely on silence or absence of gazetted guidance to validate or permit a practice not contemplated or authorised by the Pension Reform Act.

86. Counsel submitted that under Section 115 of the Act, the 2^nd Defendant is empowered to issue regulations and guidelines necessary for effective pension administration. Such instruments, when gazetted, form part of the binding regulatory framework. It is not disputed that no gazetted regulation or guideline authorises: transfer of excess contributions and returns between RSAs; retrospective computation  of investment returns using a fund structure not in existence at the material time; claw-back or reallocation of investment gains credited to a contributor’s Retirement Savings Account; compelled authorisation by a contributor as a precondition for administrative adjustment of pension balances.

87. Counsel contended that the 2^nd Defendant cannot rely on the absence of regulatory prohibition as a source of regulatory power within the statutory framework of the Act, legal authority arises only where: the Act expressly provides for the power; or the regulator validly exercises delegated authority through properly issued regulations or guidelines. In Olaniyan v. University of Lagos (supra) at 653, the Court held that statutory bodies are bound to operate within their functions as expressly provided in the enabling statute conferring on them the functions and cannot act outside the statute or do anything unless expressly permitted by the statute to do so. Silence does not create power. Absence of regulation does not amount to permission. See Maroof Abdul Giwa v. ARM Pension Managers (PFA) Ltd & National Pension Commission NICN/ABJ/218/2018. If the legislature intended to authorise the transfer of excess contributions and accrued returns between RSAs, or to permit retrospective valuation methodologies affecting contributors’ balances, it would have provided the mechanism expressly or as empowered, the regulator may prescribe one through formal subsidiary legislation. No such mechanism exists. Even if the 2^nd Defendant has not issued a directive prohibiting the 1^st and 3^rd Defendants’ conducts, regulatory silence cannot operate as ratification of an act done without statutory authority. Ultra vires conduct cannot be validated by non-intervention. The legality of pension administration is determined by the Act and binding regulations, not by whether the regulator has chosen to intervene in a particular instance.

88. Counsel stated that the Supreme Court in CORPORATE IDEAL INS. LTD. V. AJAOKUTA STELL CO. LTD. (SUPRA) Pp. 193 – 194, held as follow:

“It is the view of this court that where a statute clearly provides for a particular act to be done or performed in a particular way, failure to perform the act as provided will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision. It was held by this court in ADESANOYE V. ADEWOLE (2006) 14 NWLR (PT. 1000) 242, that in such a situation, the consequences of non-compliance follow notwithstanding that the statute does not specifically provide for sanction. This knocks the bottom off the submission of the learned counsel for the appellant in this case that because section 50(1) of the Act does not provide for sanction, the contract cannot be said to be illegal. A contract which violently violates the provisions of a statute as in this case, with the sole aim of circumventing the intendment of the law maker is to all intents and purpose illegal null and void and unenforceable. Such a contract or agreement is against public policy and makes nonsense of legislative efforts to streamline the ways and means of business relations. This court, and any other court for that matter would not be allowed to be used to enforce any obligations arising therefrom.”

89. The Act confers regulatory powers on the 2^nd Defendant for a defined purpose: to issue regulations, guidelines and standards necessary to implement the statutory scheme. That power is structured and procedural. It is exercised through identifiable regulatory instruments which: define rights and obligations; provide operational procedures; ensure uniform industry practice; protect contributors’ funds from arbitrary interference.

90. Counsel submitted until such instruments are issued, regulated entities cannot lawfully act as though regulatory authority exists. Administrative practice, private agreement, internal correspondence, industry custom, or informal guidance cannot substitute for gazetted regulation in a statutory regime governing compulsory retirement savings.

91. According to counsel permitting conduct merely because the regulator has not prohibited it would invert the structure of the Act. The Pension Reform Act is not a permissive commercial framework. It is a protective regulatory code designed to safeguard retirement savings through strict control of how pension funds may be handled. Accordingly: regulated actors may do only what the statute or valid regulation allows; matters affecting pension balances require express legal basis; regulatory inaction cannot enlarge statutory authority. To hold otherwise would allow Pension Fund Administrators and employers to create financial obligations affecting contributors’ retirement savings in areas where the legislature made no provision. That would undermine the protective architecture of the Act.

92. Issue 3; Whether the Claimant in the face of the evidence before the Court, is entitled to his claims.

93. In arguing this issue counsel refers to paragraphs 9, 11, 12, 13, 20, 22 and 23 of the statement of defence of the 1^st Defendant and paragraphs 9, 13 and 15 of the statement of defence of the 2^nd Defendant claim the Claimant is trying to “reap where he did not sow”.

94. Counsel submitted that the contention that the Claimant made contradictory statements and that he has approbated and reprobated, by claiming ownership of all the funds in his Retirement savings account and yet acknowledging that there were erroneous contributions into the retirement savings account is misconceived and founded on a selective and fragmented reading of the Claimant’s pleadings. To support his contention counsel relied on the cases of Ude v Nwara (1993) 2NWLR (Pt. 278) 638 and Onafowokan v State (1987) 3NWLR (Pt.61) 538.

95. Counsel further submitted that the law is settled that pleadings must be construed holistically and not in fragments or in isolation. It is the totality of the pleading that states the case of the parties and it will be an injustice to invoke only a few paragraphs to come to a conclusion. In support of this contention reliance was placed on the case of Sterling Bank Plc V. Falola (2015) 5 NWLR (Pt. 1452) 405 at page 427-428, paras G - A. Accordingly, any attempt to isolate portions of pleadings and construe same as constituting contradicting positions, without regard to the entirety of the pleadings, amounts to a misapplication of settled principles of law. The doctrine of approbation and reprobation applies only where a party adopts positions that are legally irreconcilable in respect of the same right or transaction. To support his position counsel relied on the case of Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. In law, a distinction exists between the acknowledgment of a factual position and the acceptance of legal consequences sought to be drawn therefrom. An admission of fact does not, without more, amount to an admission of liability or of the legal implications asserted by an adverse party. See Odutola v. Papersack (Nig) Ltd (2006) 18 NWLR (Pt. 1012) 470.  Accordingly, where a party maintains a distinction between a factual occurrence and the legal consequences sought to be imposed, such a position does not amount to approbation and reprobation in law.

96. Counsel also submitted that the position that the Claimant has failed to prove entitlement to the excess remittances and interest accrued thereon is predicated on a construction of the Claimant’s pleadings which is not borne out by the settled principles governing the interpretation of pleadings.

97. It is settled law that parties are bound by their pleadings and the Court is enjoined to determine a case strictly on the pleadings as presented. See Emegoke V. Okadigbo (1973) 4 S.C. 113. It is equally settled that a party’s case is defined, circumscribed and limited by its pleadings, and any evidence or argument on facts not pleaded goes to no issue. See Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514.

98. Furthermore, pleadings must be construed holistically and not in isolation, and no single averment can be read in a manner that distorts the substance of the case presented. See Econet Wireless (Nig) Ltd V. Econet Wireless Ltd (2004) 7 NWLR (Pt. 1405)1 at 23, paras F -G.  Accordingly, any submission founded on a selective or distorted construction of pleadings, which does not reflect the case as presented on the record, is misconceived in law. The Claimant primary submission is that the actions being sort to be carried out by the Defendants is ultra vires. No specific monetary claim is being made outside the assertion that the balance in his RSA is his statutory property.

99. Counsel submitted that it is settled that an admission must be read in the context of the entirety of the pleadings and cannot be isolated or extended beyond its proper scope. See Titiloye v. Olupo (1991) LPELR-3250 p. 19 (S.C).  An admission is limited to the fact expressly admitted and must be strictly construed within the context in which it is made. It is only after pleadings are read and understood as a whole that, it can be said that formal admissions of facts in the pleadings need no further proof and the court would be free to act on such admission. See Onyiorah V. Onyiorah (2019) 15 NWLR (Pt. 1695) 227 at 243.

100.                    The law is settled that an admission, even when made against interest, must be clear, unequivocal, unqualified and consistent with the applicable legal position before it can be relied upon. An admission cannot be extended to impose liability or legal consequences not expressly conceded. See Odutola v. Papersack (Nig) Ltd (2006) 18 NWLR (Pt. 1012) 470. It follows that, any submission founded on a selective or fragmented construction of pleadings, which does not reflect the pleadings as a whole, amounts to a misapplication of the law on admissions.

101.                    The Defendants invoked the equitable doctrine of unjust enrichment. While the principle is recognised in law, its application is not at large but operates within the confines of applicable statutory provisions.

102.                    It is settled law that where a statute governs a matter, the rights and obligations of parties must be determined within the framework of that statute, and equitable principles cannot be invoked to override or supplant clear statutory provisions. See Oloriode V. Oyebi (1984) 5 (S.C.) 1. It is also a cardinal principle that equity follows the law, aequitas sequitur legem and cannot be used to create rights or remedies outside statutory provisions. See Union Bank of Nigeria Plc & Anor V. Ayodare & Sons (Nig) Ltd (2007) LPELR- 338 (S.C). In this regard, any reliance on the doctrine of unjust enrichment, in a context governed by statute, must be justified within the parameters of the enabling law. In the absence of any statutory foundation for the position advanced, the submission is misconceived in law.

103.                    Issue 4; Whether failure of the Claimant to serve a pre-action notice renders this suit incompetent.

104.                    Counsel submitted in paragraph 17 of Statement of Defence of the 2^nd Defendant alludes to a requirement of the Pension Reform Act, 2014, for the service of a pre-action notice on the 2^nd Defendant. A cursory look at Section 109 (1) of the Act, will reveal that servicing a pre-action notice on the 2^nd Defendant is only required on matters against members of the board, the director general, commissioner or any other officer or employee of the 2^nd defendant.

105.                    Beyond that, it is settled that provisions requiring pre-action notice are procedural in nature and must be construed in a manner that does not unduly fetter the constitutional right of access to Court. In Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt. 798) 1 at 33–34, the Supreme Court held that pre-action notice is at best a procedural requirement and not an issue of substantive law upon which the rights of a plaintiff depend. Its absence does not deprive the Court of jurisdiction ab initio. See Feed and Food Farms (Nig) Ltd v. Nigerian National Petroleum Corporation (2009) 12 NWLR (Pt. 1155) 387 at 401.

106.                    The law is settled that pre-action notice is enacted for the benefit of the Defendant and is therefore capable of waiver. It follows that where a Defendant raises such objection after taking steps in the proceedings, without promptly asserting same at the earliest opportunity, the right to rely on such objection is deemed waived. See Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency (supra); Achonu v. Okwunobi (2017) 14 NWLR (Pt. 1584) 142; Oluchi & Anor v. Joseph & Ors (2023) LPELR-61575 (CA).

107.                    It is settled that statutory provisions requiring pre-action notice cannot be invoked to shield acts which are challenged as being outside the scope of statutory authority. Statutory protections avail only where the acts complained of are carried out within the confines of the enabling law. See Attorney-General of Rivers State v. Attorney-General of Bayelsa State (2013) 3 NWLR (Pt. 1340) 123.

108.                    In the circumstances, an objection founded on alleged non-service of pre-action notice, particularly where raised after participation in proceedings or in a context where the acts complained of are impugned as ultra vires, is legally untenable.

COURT’S DECISION:

109.                    I have considered the processes filed by the parties as well as the evidence adduced in the course of the trial. I have equally considered the written and oral submissions of counsel for the claimant, 1^st and 2^nd defendants, as counsel for the 3^rd defendant did not file any process before the court, he only cross-examined witnesses, after giving evidence in chief.

110.                    A resume of the facts as can be gleaned from the pleadings and evidence adduced by the parties is that the Claimant was an employee of the 3^rd Defendant (Access Bank Ltd) from 2006 to 2007 and maintained a Retirement Savings Account (RSA) with the 1^st Defendant (Stanbic IBTC Pension Managers Ltd), a licensed Pension Fund Administrator (PFA). The Claimant, having left the employment of the 3rd Defendant, applied to the 1^st Defendant for the payment of 25% of his retirement savings account (RSA) balance as permitted under the Pension Reform Act for individuals who are unemployed for a specific period of four months after leaving service. The 1^st defendant has withheld the processing and payment of the 25% withdrawal, due to discovery that between July 2007 and April 2013, the 3^rd Defendant made contributions into the claimant’s retirement savings account with the 1^st defendant after he had left service of the 3^rd defendant.

111.                    Therefore, the 1^st defendant  sought consent of the claimant to back out the excess remittance and earnings on the amount, communicated to the claimant via e-mail by the head office of the 1^st defendant in the sum of N2,109,841.09. The claimant initially hesitated and refused consent, but he later changed his mind and when he visited the 1^st defendant’s branch office in Calabar, he was told that the correct amount to be deducted from his retirement savings account and refunded to Mr. Abdullahi Bello’s retirement savings account, is N7,911,695.65. dissatisfied with the new figure the claimant again sent an e-mail to the headquarters of the 1^st defendant and they affirmed that the new figure is the correct amount to be deducted from his RSA as excess remittance and earnings of the said amount. Still dissatisfied the claimant lodge a complaint with the 2^nd defendant. when there was no response from the 2^nd defendant the claimant approached this court seeking for five reliefs as per paragraph 19 of his statement of claim.

112.                    The law is settled that in an action before a court, the court as well as the parties are bound by the reliefs sought. This means it is only the reliefs as presented by the claimant where there is no counter claim as in this case that the court is bound to determined and no more.

113.                    The law is also trite that a claim is circumscribed by the reliefs claimed. And the duty of the claimant/plaintiff is to plead only such facts and materials as are necessary to sustain the reliefs, and adduce evidence to prove same. He may at the end of the day, obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed. See Ativie v. Kabelmetal (Nig.) Ltd. (2008) 10 NWLR (Pt. 1095) 399.

114.                    From the facts and pleadings of the parties, I am of the view that  the two issues formulated by counsel for the 2^nd defendant in the final written address of the 2^nd defendant can adequately deal with the dispute before the court. In the circumstances, I shall adopt the twin issues submitted by counsel for the defendant with little modification to issue one in determining this suit. The two issue as modified are:-

1.     Whether from the facts and evidence adduced the Claimant has proved entitlement to any of the reliefs sought in this suit.

2.     Whether the Claimant has fulfilled conditions precedent to instituting and maintaining an action against the 2^nd Defendant.

115.                    In this judgment, I shall start with issue 2: Whether the Claimant has fulfilled conditions precedent to instituting and maintaining an action against the 2^nd Defendant.

116.                    The 2^nd defendant has in paragraph 17 of its statement of defence raise issue of incompetency of the claimant’s action due alleged failure to issue pre-action notice as required by Pension Reform act, 2014. In his reaction to the alleged lack of pre-action notice, the claimant stated that it is only required on matters against members of board, the DG, commissioners or any other officer or employee of the 2^nd defendant and this is not the case in this action.

117.                    The counsel for the 2^nd defendant urged the court to strike out the name of the 2^nd defendant for non-service of pre-action notice.

118.                    Section 109 (1) of the Pension Reform Act of 2014, provides that:

‘’A suit shall not be commenced against a member of the Board, director general, Commissioner or any other officer or employee of the commission before the expiration of a period of one month after written notice of the intention to commence the suit shall have been served on the commission by the intending plaintiff or his agent’’.

119.                    In Eze v. Okechukwu & Ors [2002] 18 NWLR [Pt 799] 348 at 369, the Supreme Court held that the effect of non-service of a pre-action notice where it is statutorily required is only an irregularity which renders the action incompetent but does not affect the jurisdiction of the Court. Consequently, the irregularity can be waived by the Defendant where it fails to raise it by motion or plead it in the statement of defence. Where it is not waived, as in this case, it becomes a condition precedent that must be met before the Court can exercise its jurisdiction.

120.                    The cardinal principle of interpretation of statutes is that where the ordinary plain meaning of the words used in a statute are very clear and unambiguous, effect must be given to those words without resort to any intrinsic or external aid. The duty of the court in such a situation or under those circumstances is to interpret the words strictly giving them their intended meaning and effect. However, where the court finds that such literal interpretation may result in any ambiguity or injuries, it may seek internal aid from other parts of the statute itself or external aid from interpretation given a provision which is in pari materia with the statute under construction. In the instant case, the provisions in section 109 of the Pension Reform act, reproduced above is very clear and unambiguous. See Awolowo v. Shagari (1979) 6-9 SC 51; Adejumo v. Military Gov. of Lagos State (1972) 3 SC 47; A.-G., Bendel State v. A.-G., Federation (1982) 3 NCLR 1; Owena Bank (Nig.) Plc. v. NSE Ltd. (1997) 8 NWLR (Pt 515) 1; Mobil Oil (Nig.) Ltd. v. F.B.I.R. (1977) 3 SC 53.

121.                    In this case, I adopt the literal rule of interpretation in interpreting the provisions of section 109 under consideration. It is clear to me the pre-action notice required to be served on the second defendant is in respect of an action against a member of the Board, Director General, Commissioner or any other officer or employee of the commission. From the wordings of section 109 there is no requirement for serving pre-action notice if the suit is against the 2^nd defendant.

122.                    The position of the 2^nd defendant in raising this issue in this case may have been influenced by the decision in the case of Ojo & Anor v. National Pension Commission & Anor [supra] page 568, where the provision of section 95 of the old Pension Reform act of 2004, was considered. Let me say that the provision of section 95 of the Pension Reform act, 2004, are not in pari materia with the provisions of section 109 of the Pension reform act 2014. The provision of section 109 of PRA, 2014, do not require giving pre-action notice when an action is not against the persons listed in the section.

123.                    From all I have been saying above the objection on pre-action notice failed same is hereby refused and dismissed.

124.                    I now come to issue 1: Whether from the facts and evidence adduced the Claimant has proved entitlement to any of the reliefs sought in this suit.

125.                    The counsel for the defendants have in their respective addresses argued that the claimant is approbating and reprobating. Counsel urged the court should dismiss the claimant’s suit for being contradictory in nature.

126.                    After perusal of all the argument canvassed on this issue by counsel for the parties, I am in agreement with the counsel for the claimant that in considering case presented before the court whether that of the claimant or the defence, the court is enjoined to holistically look at the pleading and not by way of segregation, if the actual and true purport of the case is to be discovered. The law is settled that pleadings are read holistically in order to discern the gist of a case of a party; they are not construed in fragments, see Kofa v. Kaita (2011) LPELR-8952 CA and in Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1, where Tobi, JSC, (of blessed memory) stated thus:-

"In dealing with pleadings, a Court must read all the paragraphs together to get a flowing story of the parties and not a few paragraphs in isolation. It is the totality of the pleadings, whether it is the Statement of Claim or the Statement of Defence, that states the case of the party and it will be injustice to invoke only a few paragraphs to come (a) conclusion..."

127.                    Now applying the above enunciated principles of law to the case at hand and after careful and painstaking examination of the entire pleadings of the claimant it is clear that the main grouse of the claimant is on the investment earnings/interest/gains on funds that were wrongly remitted into claimant’s retirement savings account after he had ceased active service. The claimant is also quarreling with the calculation of the returns on investment. The claimant insisted and contended that the earnings on investment should not be withdrawn, particularly when calculated using Fund 1, which was introduced after the erroneous contributions ceased.

128.                    Now, burden of proof is the duty to offer evidence in proof of a party's assertions or counter-assertions, and evidence is the means whereby a Court is informed as to the issue of facts as ascertained by the pleading, that is, the testimony, oral, documentary or real, which may be legally received in order to prove or disprove some facts in dispute. As Oputa JSC, so very aptly put it:- "Evidence is nothing but proof legally presented at the trial on an issue". see Akintola v. Solano (1986) 4 SC 141.

129.                    In civil cases, the burden of proof in the sense of establishing the case may initially lie on the party who assert to prove his assertions, but it is not static, the proof or rebuttal of issues, which arise in the course of proceedings, may shift from the claimant/Plaintiff to the Defendant and vice versa as the case progresses. See Zubairu v. Mohammed (2009) LPELR-5124(CA) where Oredola, JCA, said - "By Section 137 (of the Evidence Act) the burden of proof is not static. It fluctuates between the parties. Subsection (7) places the first burden on the party against whom the Court will give Judgment if no evidence is adduced on either side. - - the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party - - and so the burden changes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with. By Section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the subsection, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the subsection, will be so on until all the issues in the pleadings have been dealt with. Thus, as firmly established, the standard of proof in civil cases - - is on the balance of probabilities or preponderance of evidence. Hence, where evidence adduced is loaded or tilted to one side and there is nothing forthcoming on the imaginary scale from the other side, the evidence proffered from the former will satisfy the requirement of proof.

130.                    In this suit, the first and second reliefs being sought by the claimant are for declarations. In a claim for declaratory reliefs, the claimant has an obligation to adduce evidence in proof of entitlement to the declarations sought, by cogent and credible evidence. He must rely on the strength of his own case and not on the weakness of the defence, if any. Indeed, a declaratory relief will not be granted on the basis of an admission by the adverse party. See Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361;  Bello v. Eweka (1981) 1 SC 63 (Reprint); Emenike v. P.D.P. (2012) 12 NWLR (Pt.1315) 556; Matonmi v. Dada (2013) 7 NWLR (Pt.1323) 319; Mohammed v. Wammako (2018) 7 NWLR (Pt. 1619) 573.

131.                    It is the law that a declaratory relief cannot be granted without evidence, merely on default of defence or even on admission. See Kwajaffa v. B.O.N. Ltd. (2004) 13 NWLR (Pt. 889) 146. This must be so for the burden on the plaintiff in establishing declaratory reliefs is, often, quite heavy. Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78; CPC v. INEC (2012) 1 NWLR (Pt.  1280) 106; Bello v. Eweka (1981) 1 SC 101; Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157; Dumez Nig Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Mohammed v. Wammako  (2018) 7 NWLR (Pt. 1619) 573.

132.                    In the case at hand, the first declaration being sought by the claimant is to the effect that the 1^st defendant is only entitled to deduct the sum of N1,690,406.46 from claimant’s retirement savings account (RSA) with the 1^st defendant, the said sum being the excess amount contributed by the claimant’s previous employer Access Bank Plc into the claimant’s retirement savings account (RSA) from July, 2007 to April, 2013.

133.                    It is basic that in claims relating to declaratory reliefs, as herein, it is for the claimant to establish his claim on the strength of its claim and should not rely on the weakness of the defence; if any. See: Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362, Dantata v. Mohammed (2000) 7 NWLR (Pt. 664) 176; Ekundayo v. Baruwa (1965) 2 NLR 211; Ali Ucha v. Martins Elechi (2012) MRSCJ Vol. 179 at 104; and Dumez Nig Ltd. v. Nwokhoba (2005) 18 NWLR (Pt.1119) 361 at 373-374 where it is pronounced pungently that the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy. Such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlements to the declarations by his own evidence. Let me go further and mention the obvious. A party who asserts must prove same. This is extant from the provision of Section 135 of the Evidence Act. See also the cases of Okubule v. Oyagbola (1990) 4 NWLR (pt. 144) 72; Osawaru v. Ezeiruka (1978) 6-7 SC 135 at 145; and Odukwe v. Ogunbiyi (1998) 8 NWLR (pt. 561) 339 at 352."

134.                    In proof of this relief, the claimant is relying on exhibit C5, e-mails exchanged between him and the 1^st defendant on the issue of excess remittance made into his retirement savings account after he had left the services of his employer the 3^rd defendant in this case. see exhibits C5, C7 and C8.

135.                    It is clear from the e-mail that the claimant was informed in an unambiguous term that the initial amount of N2,109,841.09 stated to had been the amount to be backed out was not the correct figure because according to the 1^st defendant the computation based on which the figure was arrived at, was not on correct investment fund 1, on which the claimant’s funds were invested. The new figure was communicated to the claimant which stood at the sum of N7,911,695.65. however, in a swift response the claimant expressed his lack of understanding of the way the figure was arrived at, as according to the claimant, the amount to be backed out should be the exact excess remittance, excluding any earnings on the excess amount remitted. The claimant also made it clear that he will need to complain to PENCOM to get their input, as well seek advice/input from an independent actuary. The claimant has now approached this court for determination of his grievances.

136.                    The claimant maintained that it is unlawful to back out earnings in his retirement savings account without any statutory or regulatory authorization as pension is statutorily protected and it must be administered in way the law has authorized not through use of discretion.

137.                    I have appraised the facts, pleadings and evidence of the parties, it is clear to me that the dispute between the claimant and the defendants borders on investment earning/interest/gains on the excess remittance made into his retirement savings account with the 1^st defendant. As the claimant is not in any way disputing the existence of the excess remittance, his contention is that since there is no provisions in the Pension Reform Act 2014, authorizing the defendants to back out earnings on access remittance and transfers same to another holder of RSA, the defendants are estopped from making deductions from his RSA in that regards. The claimant relied on so many decisions to support his contention that where law has provided procedure of doing things that method has to be employed and no any other method or procedure should be invoked or adopted which was not provided by law. And where no provisions are made in the law or rules made pursuant to the law any action carried out will be ultra vires, illegal null and void.

138.                    The arguments of counsel as lofty and enticing as they appear are not relevant to the facts of this case. This is because the same argument can be canvassed to defeat the claimant’s argument that there is no provision either in the law or rules made pursuant to the law that allowed a retirement account holder to retain investment earning/interest/gain in respect of any remittance into retirement savings account that does not belongs to the holder of the said retirement savings account.

139.                    From the facts and evidence before the court, the defendants are not making any attempt to deduct or transfer rightful contribution and earnings of the claimant on his contribution to any other person. All that the 3^rd defendant requested was for wrongly mistaken remittance into the claimant’s RSA and the accrued investment earning/interest/gains, that were wrongfully remitted into claimants RSA to be transferred to the person that was supposed to have been credited but for the error of the 3^rd defendant.

140.                    The Pension Reforms Act, is very clear on contribution to be remitted into an account holder with Pension fund administrator like the claimant. The law authorizes remittance of contribution deducted from employee’s salary and the contribution of the employer to be remitted into RSA and no other. This means if a wrong remittance was made in error, such remittance did not belong to the account holder. Likewise, the earning on such excess or wrong remittance does not belong to the account holder as he is not entitled to the wrongfully remitted funds into his account. It is only contributions belong to account holder and investment earning/interest/gains generated on them that belongs to account holder. Therefore, it is only logical that upon discovery of the wrongful remittance, the error should to be corrected by reversing the remittance made in error and credit appropriate owner of the funds. The claimant in this case not being the rightful owner of the funds wrongly remitted into his account cannot claim entitlement to earning on such funds. The position taken by the claimant in this case defies logic and common sense, if claimant who admitted existence of excess remittance and agreed that such wrongful remittance should be deducted from his RSA, I see no reason why the claimant should refuse to consent for the earning on such wrongful remittance to equally be deducted. I am at lost why the claimant is insisting to retaining what does not belong to him.

141.                    This brings us to the amount to be deducted as excess remittance and earnings or interest gains on the investment made by the 1^st defendant on the excess wrongful remittance made into the claimant’s account.

142.                    The claimant left service of the 3^rd defendant in May, 2007. From June, 2007 the 3^rd defendant kept remitting contribution into claimant’s RSA in error. The excess remittance stopped in April, 2013. The PENCOM ‘’Multi-Fund Structure’ which is made up of Funds 1, ii, ii, iv, v and vi, came into force on 1/7/2018.

143.                    Now the 1^st defendant want back out excess remittance and earning calculated based on Fund 1 pricing which came into force in July, 2018. The claimant is of the view that the 1^st defendant is not justified to make deductions from his RSA, based on new calculation done using fund 1 pricing. The 1^st defendant stated that it is justified to make deduction of both actual excess remittance and earning, interest or gains on the excess remittance.

144.                    In resolving the dispute one has to bear in mind that Fund 1 pricing came into effect in July, 2018 and it has no retrospective application, this means it is wrong for the 1^st defendant to make calculation based on fund 1, and insist in making deductions based on the fund 1, calculation. The reason being that you cannot apply fund 1, pricing returns to money that sat in the RSA from 2007-2013. That would be retrospective. Before 2018, returns should be based on the actual fund/asset class the money was invested in at that time and not the one applicable as at 2018, fund 1, pricing can only apply as from 2018 to date. The 1^st defendant PFA can’t assume it was in Fund I when the structure didn’t exist. Since Fund I didn’t exist in 2013, the excess remittance couldn’t have been invested in Fund I then. Fund I is for under-50s with high risk appetite. PFA can’t assume it was in Fund I when the structure didn’t exist.

145.                    On excess remittance the 1^st defendant is entitled to deduct is both the actual excess remittance and returns earning, interest gains on the excess remittance. However, the amount to be back out should not be the amount based on which fund 1, pricing was used. It has to be amount based on calculation of earning on investment at each stages the funds were invested on the appropriate fund pricing at each stage and not based on fund 1 pricing which was not in existence at some stages the funds have passed through.

146.                    It is a fundamental rule of statutory interpretation that legislation, and subsidiary legislation/regulations made pursuant to it, do not operate retrospectively unless the statute expressly or by necessary implication provides for retrospective effect. See A-G, Bendel State v. Aideyan 4 NWLR Pt. 118 p. 646; Adisa v. Oyinwola 10 NWLR Pt. 674 p. 116.

147.                    There is nothing in the Pencom regulation that allows retrospective application of PenCom Guidelines, Regulations, and Circulars, including the "Guidelines on Implementation of Multi-Fund Structure for RSAs" issued in 2018, operate prospectively only from their effective date. Therefore, any money sitting in an RSA prior to 1^st July 2018 could not have been invested in Fund I, as Fund I did not exist in law or in practice. To calculate "income earned" on erroneous remittances from 2009-2013 using Fund I returns from 2018-2026 is to apply the Regulation which introduced multi-fund structure retrospectively to periods 2009-2013. This is contrary to law.

148.                    For correct measure of "Income Earned": Under PenCom Regulation on Erroneous Contributions where contributions are remitted in error, the PFA shall refund "the principal sum together with income earned thereon". "Income earned" means the actual income/return generated by the investment of that principal while it was held by the PFA, based on the fund/asset class in which it was lawfully invested at the material time. It does not mean hypothetical income from a fund that came into existence years later. See A-G, Bendel State v. Aideyan 4 NWLR Pt. 118 p. 646 SC "A statute is not to be construed as having retrospective operation unless such construction is expressly stated or arises by necessary implication." Quote this for the core non-retroactivity rule.

149.                    See also, Adisa v. Oyinwola 10 NWLR Pt. 674 p. 116 SC Reaffirmed that unless a statute says so, it cannot take away rights or impose liabilities for past periods. Use this against PFA applying 2018 Fund I rules to 2009-2013 money.

150.                    In Orubu v. N.E.C 5 NWLR Pt. 94 p. 323 SC Court held that subsidiary legislation must be read subject to the parent Act. Since PRA 2014 is silent on retrospective regulations, PenCom cannot imply it.

151.                    In Udoh v. Orthopaedic Hospitals Management Board 7 NWLR Pt. 304 p. 139 SC On pension/retirement benefits: "Rights to pension are constitutional and statutory rights. Any deduction/back-out must be strictly in accordance with law as it stood at the relevant time." Good for arguing back-out must use 2009-2013 rules, in calculating returns on investment.

152.                    The claimant in this case was served with photocopies of statement of account and spreadsheets, these documents were tendered in evidence by both the claimant and the 1^st defendant as exhibits C8 and DW1 I, respectively. These documents are not lucidly clear, as some of the pages were not completely photocopied as some portions were deliberately omitted from photocopying, as the 1^st defendant may have considered the omitted portions as irrelevant. This situation has rendered exhibit C8 and DW1 I, to have no weight. Even if the omitted portions of the exhibit are considered irrelevant, the court is entitled to be availed with the content to make its mind.  

153.                    Let me also say that, the 2^nd defendant who has the statutory responsibility of clarifying all issues regarding pension contributions, retirement benefits, administration of retirement savings accounts and pension funds administration, did not help matters, as it failed in its duty, because despite evidence of investigation conducted regarding claimant’s complaint as per exhibits C1, C2 and C3, the 2^nd defendant failed and neglected to responds to the claimant’s concerns regarding the excess contribution and left him in the dark on what should have happened in the case. The conduct of 2^nd defendant in this case is appalling and clear abdication of duty, as it failed to deal with the claimant’s complaint by treating it without delay and thereby promptly resolves any dispute or grievance therein as required by its extant regulations.  

154.                    Let me further say that the 3^rd defendant who was said to had made excess remittances failed and refused to file defence or show how much it has remitted in excess to the retirement savings account of the claimant. This is very necessary since it requested for the said excess remittance to be transferred to another employee without stating the amount it had mistakenly paid.

155.                    The 2^nd defendant as the regulator and supervisor of the pension industry has a duty to ensure protection of rights of contributors and retirees.

156.                    Exhibits DW1B and DW1C, clearly shows that the 3^rd defendant was the one that put claimant’s PIN, which resulted in the wrong remittance into the claimant’s account with the 1^st defendant.

157.                    The counsel for the claimant has strenuously argued that the Pension Reform Act (PRA) is a detailed and precise statute that does not leave matters of fund management to administrative discretion; as any action taken must be explicitly authorized by the Act. There is no provision within the Pension Reform Act, that authorizes the transfer of investment returns from a contributor's Retirement Savings Account back to an employer or to another Retirement Savings Account nominated by that employer. According to counsel the 1^st Defendant's attempt to debit the account lacks a legal basis because no gazetted regulation or directive in existence that empowers a Pension Fund Administrator to unilaterally reverse investment returns. The 1^st Defendant, as a Pension Funds Administrator, owes a fiduciary duty to the account holder (the Claimant) to protect the funds in the Retirement Savings Account, and debiting the account without statutory backing constitutes a breach of that duty. The 3^rd Defendant's administrative error, which occurred years ago, should not result in a financial penalty for the Claimant, especially regarding the growth of the fund through investment returns.

158.                    If the above view expressed by counsel is to be accepted then it will also be correct to argue that since there is no provision in the Act authorizing excess payment into an Retirement Savings Account, the claimant should not be allowed to benefit from what did not belong to him. Since the excess did not belong to claimant any investment returns, earning/interest/gains on the excess remittance should not be given to the claimant.

159.                    The claimant’s position that no investment returns/earnings/interest/gains should be deducted, can only be true , and not in respect of funds not belonging to the claimant, as he cannot legally lay claim to what does not belong to him.  

160.                    It is also clear that the rejection by the claimant of the new figure which defendants want to be backed out from his RSA, raises issue of validity of 1^st defendant using method of Fund 1, pricing in calculating the 'investment returns' it seeks to debit from claimant’s RSA. Apart from lack of clarity on how the amount was arrived as per exhibit DW1 I, Fund I pricing cannot be used retrospectively to calculate investment returns for a period when Fund I did not exist. The reason being that the contributions which are subject matter of dispute were made from July, 2007 to April, 2013, this means investment made in this period is not on Fund 1 pricing as that method was not in existence or in operation when the erroneous or mistaken wrongful excess remittances were made into the claimant’s RSA. Likewise, from May, 2013 to June, 2018, Fund 1, pricing was not available as it took effect in July, 2018, this means investment made from May, 2013 to June, 2018 was also not based on Fund 1 pricing. Therefore, the 1^st defendant was wrong by using Fund 1, across board to calculate earning, interest or gains on investment when that method was yet to be in operation. The only calculation that can be made on investment based on fund 1, is investment made in respect of funds from July, 2018 to date. The reason being that fund 1 pricing came into effect in July, 2018 till date.

161.                    From all I have been saying above, the 1^st defendant’s use of fund 1 to calculate investment returns/earnings/interest/gains was wrong. This vindicated the position of the claimant that the calculation was wrong therefore the higher amount was not correctly arrived at and cannot be the amount to be backed out of the claimant’s RSA, as the investment returns on excess remittances.

162.                    The 1^st defendant who is in the custody of the funds and whose responsibility is to make calculation has a bounden duty to ensure correct computation was done in line with actual fund investment at various stages the funds were invested. This means, the position taken by the 1^st and 2^nd defendants on the new figure which is to be deducted from claimant’s RSA, is not correct and cannot be accepted.

163.                    The position of the claimant that Pension Reform Act (PRA) is a detailed and precise statute that does not leave matters of fund management to administrative discretion; as any action taken must be explicitly authorized by the Act. And there is no provision within the Pension Reform Act, that authorizes the transfer of investment returns from a contributor's Retirement Savings Account  back to an employer or to another Retirement Savings Account nominated by that employer.

164.                    The above position taken by the claimant seems to have ignored the fact that that the amount which the defendants want to back out by deduction from claimant’s RSA, do not belongs to the claimant, the money were not part of  contributions of the claimant. It is only the claimant’s contributions and investment earnings/interest/gains in line with the extant rules and regulations that are protected by the law and which the defendants cannot move out of the claimant’s Retirement Savings Account. For funds not belonging to claimant which were mistakenly or wrongly remitted and credited to the claimant’s RSA, can be backed out or deducted as they do not belong to the claimant and not being part of his contributions or earnings on investment of same.

165.                    Likewise, the investment returns/earnings/interest/gains on those funds not belonging to the claimant can be backed out. The law does allow retaining what does not belong to a person, as allowing that is to perpetrate injustice which the law frowns at.

166.                    I do not think, law and equity will side with the claimant in his quest to retain what does not belong to him or prevent the 1^st defendant from reversing the wrongful remittance and earnings on it, from the claimant’s  RSA. There is no need for any gazetted regulation or directive to be in place before reversal of wrongful remittance can be effected by PFA. But, making rules will prevent uncertainty as it will bring clarity to the system.

167.                    The 1^st Defendant, as a PFA, owes a fiduciary duty to the account holder (the Claimant) to protect the funds in the RSA, but that does not extend to fund not belonging to claimant. In such situation backing out or debiting wrongly credited funds and returns on those investment cannot in the absence of statutory backing constitute any breach of fiduciary duty. The debiting cannot also amount to any financial penalty. The claimant seems to be relying on provision Pension Reform Act, to argue that defendants are not allowed to transfer or debit his RSA to transfer to another person. The claimant has not cited any provision that prohibit deducting funds that were wrongly credited not to be retrieved and transferred to appropriate rightful owner.

168.                    What the claimant’s fails to realize is that the defendant are not deducting his contributions and investment returns or earnings on his contributions, but excess remittance and earning on the excess which do not belong to the claimant.

169.                    From the above analysis, I came to the conclusion that the claimant has not proved entitlement to reliefs 1 and 2.

170.                    On relief 3, which is o 25% withdrawal from RSA, the Claimant argued that he is entitled to 25% of his current RSA balance and that the 1^st defendant has a contractual and statutory duty to process this payment. The refusal to process the payment has caused the Claimant 'untold hardship and trauma,' justifying a claim for N5,000,000.00 in general damages. The Claimant asserts that the 1^st defendant's insistence on resolving the 'excess contribution' issue before paying the 25% is a breach of their service agreement. The Claimant, claims that the only requirement for a new employer is to provide RSA details, and the 1st Defendant's subsequent actions regarding Access Bank were 'unlawful and strange' under the Act.

171.                    I quit agree with the claimant that the 1^st defendant is duty bound to process his application for 25% and the refusal is unjustified considering the fact that the issue of excess remittance cannot be attributed to the fault of the claimant, it is the fault of the 1^st and 3^rd defendants. The 3^rd defendant was the one that make the remittances in the name of the claimant using his RSA number, without his consent. The 1^st defendant who also has record of the claimant ought to have discovered that apart from payment from the 3^rd defendant there was also remittance from Sterling bank this should have alerted a serious organization something is amiss for an employer to receive contributions from two different employers for the same period.

172.                    In the circumstance of this case the 1^st and 2^nd defendants are wanting in their duty to the claimant not to credit him with funds not belonging him. If 1^st and 2^nd defendants have exercise due diligence, the situation the claimant found himself in would have been averted. The wrongful remittances into the claimant’ RSA, has caused delay in processing of withdrawal of 25% from the claimant’s RSA, which the law has permitted. The conduct of 1^st and 3^rd defendant in this case was what led to the failure to diligently handled claimant’s request for withdrawal from his RSA, as there is insistence on backing out of excess remittance.

173.                    Let me make loud and clear that returns on investment are not deductible by law, the Claimant has a right to have his account protected from such deductions this is only in respect of his contribution and not in respect of excess that does not belongs to him. The ownership of investment returns is that of the contributor of the funds. The reason being that in law you can only earn what the law/rules allowed at the particular time.

174.                    The claimant vide relief iii, is praying for an order directing the 1^st defendant to immediately process and pay over to him 25% of the current balance standing to the claimant’s credit in the claimant’s retirement savings account  with the 1^st defendant. however, the delay in processing 25% has introduced another dimension to the process.

175.                    The claimant has stated in his pleading and evidence before the court that in October, 2022, he approached the 1^st defendant his pension fund administrator and applied for withdrawal of 25% from his RSA. He was given forms to fill he filled and complied with all the requirement, but when he visited 1^st defendant’s office to enquire about his application for 25% withdrawal, he was told that there are excess remittances made into his account after he had left service of the 3^rd defendant and that the excess remittances had to be backed out before his application for 25% can be processed.

176.                    A conflates reading of the provisions of sections 7, 11 and 16 of the Pension Reform Act, 2014, will revealed that a retirement savings account holder can only access his retirement savings when he reaches up to age 50 years of age, except where retirement is based on medical incapacitation or where an employee voluntarily retires, disengaged or is disengaged from employment while still under 50 years of age, he/she can have access to 25% of his/her RSA balance provided that such employee is unable to secure another employment after 4 months of such retirement/disengagement.

177.                    In the case at hand exhibit C7 shows that the claimant was born on 14/5/1974, this means as at 2009 when he left services of Sterling Bank who was his last employer, the claimant was 35 years of age. And as at October, 2022, when he applied to savings account RSA, he was 48 years 5 months. This goes to show that the claimant as at October, 2022 when he applies to access 25% from his funds he was duly qualified to access the 25% in line with the provisions of the Pension Reform act 2014, on the ground of disengagement and not getting another work for four months. This could not be materialized due to negligence of duty by 1^st and 3^rd defendants due to excess remittances into the claimant’s RSA, which the 1^st defendant insisted must be backed out before processing 25%.

178.                    However, the claimant did not approach this court when his Pension fund administrator refused to process his application for 25% from his RSA, until 26/8/2024, vide this complaint. Now, as at 26/8/2024, when the claimant instituted this suit before this court, he has clocked 50 years of age and three months. Going by the provisions of the Pension Reform Act, cited above, as at the time the claimant came to court he is no longer qualified or eligible to access 25% from his RSA, as he had reached 50 years and he is now qualified to access his retirement savings based on his reaching 50 years of age after leaving service. The claimant has now qualified and eligible to access fund in his retirement savings account i.e. to receive pension benefits under the 50 years age qualifying condition. As at now the claimant has the rights to; receive his retirement/disengagement benefit as and when  due, i.e. by programmed withdrawal monthly or quarterly or retiree life annuity.

179.                    Going by the above analysis of the position of the law, relief iii, of the claimant’s claim is not grantable as the claimant no longer qualified for 25% withdrawal having reached 50 years of age. The claimant can now access his retirement savings on ground of reaching 50 years of age i.e. through programmed withdrawal or annuity. The request for 255 withdrawal has been overtaken by events.

180.                    On relief iv, which is for N5,000,000.00 (Five million Naira) general damages for breach of contract by the defendants for not quickly processing and paying claimant of 25% from his RSA as allowed by law.

181.                    All request concerning payment from a retirement savings account holder needs to be treated with dispatch, this is because it borders on claim on livelihood of the account holder who was no longer in service. There is no doubt evidence abounds that the claimant in this case approached the 1^st defendant for payment of 25% from his retirement savings account as allowed byb the law. The request was made in October, 2022. However, due to discovery of excess remittance into claimant’s RSA, the 1^st defendant refused to process or attend to his application. It was after he complained to the Headquarters of the 1^st defendant that he was notified via an e-mail of the amount to be backed out of his RSA and requested for his consent. However, when, the claimant approached the 1^st defendant with consent letter he was told the earlier amount communicated to him as the excess remittance was not correct a new figure was given to the claimant which he disputes. Consequently, he wrote complaint to 2^nd defendant. The 2^nd defendant did investigation, but failed to communicate to the claimant its findings and stand on his complaint, thus why the claimant had to approach this court for redress.

182.                    It is clear from the evidence available to the court that the alleged excess remittance was not the handiwork of the claimant, it was as a result of the 3^rd defendant failure to cross check its record and ensure remittances regarding her employee were correctly submitted to the 1^st defendant and appropriate accounts holders rightly credited.

183.                    There is also the failure on part of the 1^st defendant to make appropriate checks and ensure that only account holders remittances are received and credited accordingly. The 1^st defendant has raised a feeble defence that the claimant did not formerly inform it that he left services of the 3^rd defendant, that defence cannot hold water, as the law only require the claimant to supply his details of account to his employer which he did, thus, why his new employer after leaving service of 3^rd defendant made remittances into his RSA, by seeing double remittances from different employers the 1^st defendant ought to have raised eyebrow and not wait until wrong or erroneous remittances were made spanning a period of over five years. This is a clear display of negligence and incompetence.

184.                    In the circumstances of this case the claimant is entitled to damages for the conduct of the defendants in handling his request for withdrawal of 25% from his RSA which due to the time has made him to lose the said right which was given to him by the law due to the conduct of the defendants in handling the request.

185.                    In the circumstance I award three Million Naira damages to the claimant against the defendants. Each of the defendants to pay N1,000,000.00 (One million naira) each to the claimant.

186.                    On relief v, the claimant having now qualified for accessing his RSA, by 50 years qualification a perpetual injunction cannot be granted. In addition, this court has found that the excess money that can be deducted are the original amount of excess and returns, interest or gains on the said excess remittances. But, the computation or calculation must be based on the correct fund investment at each relevant period of time and not based on fund 1 pricing method.

187.                    From all I have been saying above, the claimant has succeeded in part by proving that he has suffered damages from the acts of the defendants in delaying processing or allowing him to access his 25% from his RSA which delay led to loss of such right, as he has now reached 50 years of age which qualified him to access his RSA under different rules and guidelines.

188.                    The claimant is also entitled to cost in the sum of N600,000.00 (six hundred thousand Naira), to be paid to the claimant by the defendants in equal sums.

189.                    Judgment is hereby entered accordingly.

 

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

Orok Ironbar, Esq; for the 1^st defendant appearing with Nkoye Ironbar, Esq;

E. M. Nwankwo, Esq; for the 2^nd defendant.