NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A.
ALKALI
DATE:
WEDNESDAY
26TH MAY, 2025
SUIT
NO: NICN/KD/42/2022
BETWEEN:
ADAMU
DABO SAMBO CLAIMANT
AND
1.
PENSION TRANSITION ARRANGEMENT
DIRECTORATE
2.
CENTRAL BANK OF NIGERIA DEFENDANTS
3.
NATIONAL SALARIES INCOME AND
WAGES COMMISSION
REPRESENTATION
Abdulmutallab Ustaz Usman Esq for the Claimant
J. K. Nuhu Esq holding the brief of T. O. Abibo Esq
for the 1st Defendant
M. B. Yusuf Esq for the 2nd Defendant
3rd Defendant not represented
JUDGMENT
INTRODUCTION
The
Claimant commenced this suit by the Complaint filed on the 23rd of
December 2022 under Order 3 Rule 2 of the National Industrial Court of Nigeria (Civil
Procedures) Rules 2017whereat the Claimant claims against the Defendants the
following reliefs:
1.
A DECLARATION that the partial
continuous withholding of the Claimant’s pensions due to him from October,
2019, till the death of Abbas Dabo Sambo on the 13th March 2024 by
the Defendants, is unlawful and unconstitutional.
2.
AN ORDER DIRECTING the Defendants to
pay the Claimant, all his accrued partially withheld pension arrears from
October, 2019 until his death on the 13th March 2024.
3.
AN ORDER DIRECTING the Defendants to
pay the Claimant the sum of 3,403,338.28 (Three Million, Four Hundred and Three
Thousand, three Hundred and thirty-Eight Naira, Twenty-Eight Kobo)) being
accrued sum of withheld pension for the months of October, 2019 to November 2022.
4.
AN ORDER DIRECTING the Defendants to
pay the Claimant any sum withheld from his standard pension of N138,516.05 (One
Hundred and Thirty-Eight Thousand, Five Hundred and Sixteen Naira, Five Kobo)
from December, 2022, until his death on the 13th March 2024.
5.
AN ORDER DIRECTING the Defendants to
pay the Claimant the sum of 10,000,000.00 (Ten Million Naira Only) as general
damages for withholding his pension arrears.
6.
The cost of filing this suit and the
Claimant Solicitor’s fees.
7.
FOR SUCH FURTHER ORDER OR OTHER ORDER
OR ORDERS as this Honourable Court may deem fit to make in the circumstance.
Originally,
the Claimant before this Court when the suit was instituted was Abbas Dabo
Sambo, but due to the death of Abbas Dabo Sambo, by an application filed on the
16th of April 2024 and Order 13 Rule 15(1), Order 17 Rule 1 Order
26, and Order 38 Rule 17 (1)(2) and (3) of the Rules of this Court, the Court
substituted Abbas Dabo Sambo now deceased for Adamu Dabo Sambo on the 23rd
of April 2024 and the parties were ordered to effect the name of the
substituted parties in their respective processes.
The
Claimant predicated his claims on the Amended Statement of Fact and Witness
Statements on Oath filed on the 14th of May 2024 and Reply to the
Statement of Defence of the 1st Defendant and a Further Witness’
Statement on Oath filed on the 30th of September 2024 and Reply to
the Statement of Defence of the 3rd Defendant and a Further Witness’
Statement on Oath filed on the 8th of November 2024. The 1st
Defendant based its defence on an Amended Statement of Defence and Witnesses’
Depositions on Oath filed on the 26th of September 2024. The 2nd
Defendant based its defence on an Amended Statement of Defence and Witnesses’
Depositions on Oath filed on the 28th of May 2024. Finally, the 3rd
Defendant based its defence on an Amended Statement of Defence and Witnesses’
Depositions on Oath filed on the 27th of September 2024.
At
the plenary hearing held on the 18th of November 2024 where the
Claimant called his witness. The Claimant who testified for himself hereinafter
referred to as CW1 identified his Depositions made on Oath on the 14th
of May 2024, 30th of September 2024 and the 8th of
November 2024 and adopted the same as his evidence in support of his case. CW1
thereafter tendered Exhibits CW001, CW002, CW003, CW004, CW005, CW006, CW007,
CW008, CW009, CW010, CW011A, B and C and CW012A, B, C and D.
After
the close of the case of the Claimant, the 3rd Defendant opened its
defence, Chika Peter Ochor hereinafter referred to as DW1 testified for the 3rd
Defendant. DW1 identified his Statement on Oath filed on the 27th of
September 2024and adopted the same as his evidence in support of the defence of
the 3rd Defendant. The DW1 tendered Exhibits SW1, SW2, SW3, SW4 and
SW5.
After
the close of the case of the 3rd Defendant, the 1st
Defendant opened its defence, Adebowale Momoh hereinafter referred to as DW2
testified for the 1st Defendant. DW2 identified his Statement on
Oath filed on the 26th of September 2024 and adopted the same as his
evidence in support of the defence of the 1st Defendant. The DW2
tendered Exhibits PTAD001, PTAD002 and PTAD003.
On
the 27th of November 2024, the 2nd Defendant opened its
defence, Bappah Kabiru hereinafter referred to as DW3 testified for the 2nd
Defendant. DW3 identified his Statement on Oath filed on the 28th of
May 2024 and adopted the same as his evidence in support of the defence of the
2nd Defendant.
After
the close of the hearing of the suit, on the 4th of March 2025, the
matter came up for the adoption of the Final Written Addresses filed by
Counsel. Learned Counsel for the 1st Defendant, M. B. Yusuf, Esq
identified his Final written Address filed on the 29th of January
2025 and again, on behalf of 2nd Defendant, Counsel identified the
Final Written Address filed on the 16th of December 2024 and adopted
the same as their legal submission in the aid of the case of the 1st
and 2nd Defendants and urged this Court to dismiss this suit.
When
this matter came up on the 17th February, 2025 for adoption of final
written addresses, Counsel for the 3rd Defendant was not in Court
despite the fact that Counsel was aware of the said date, and this Court
magnanimously adjourned the matter to 4th day of March, 2025 for
adoption of final written addresses and order that hearing notice be served
unto Counsel for the 3rd Defendant. But despite the service of the
said hearing notice, Counsel was not in Court on the 4th March,
2025, and this Court relying on the authority of EKPETO VS. WANOGHO and the
Rules of this Court, this Court foreclosed the right of the 3rd
Defendant from filing its final written address, adopted the processes filed by
the 1st, 2nd Defendants and the Claimant adjourned this
matter to 26th May, 2025 for Judgment. But due to none service of
the hearing notice as ordered by this Court, the matter was further adjourned
to day 28th May, 2025.
Surprisingly,
the 3rd Defendant on the 11th March, 2025 filed a final
written address alongside a Motion for enlargement of time within which to file
the 3rd Defendant’s final written address out of time. The only
reason by the 3rd Defendant in supporting affidavit is that Counsel
to the 3rd Defendant had embarked on his annual leave, thus his inability
to file same and after his resumption from the annual leave there was power
outrage in their office (See paragraph 1 (ii) (b) of the affidavit in support.
The said reasons adduced by Counsel are not compelling and cogent that will
warrant the grant of such application. Therefore, the said processes filed by
the 3rd Defendant are hereby discountenanced with, and the Motion is
struck out.
Counsel
for the Claimant, Abdulmutallab Ustaz Usman., Esq identified his Final Written
Address filed on the 9th of January 2025 and adopted the same as his
legal submission in the aid of the case of the Claimant while urging this Court
to grant the claim of the Claimant.
CASE
OF THE CLAIMANT
The
case of the Claimant is that the Claimant's deceased
father (Abbas Dabo Sambo) retired as a State Permanent Secretary under the
Ministry of Works and Housing, Kaduna State with Grade level 16 Under the
Kaduna State Civil Service Commission. His retirement was published in Kaduna
State of Nigeria Gazette No. 32 Vol. 13 on 15th November 1979 page
324. The Claimant deceased father having acted as Deputy Returning Officer
for the 1979 Presidential Election and as Chief Returning Officer for the
Kaduna State Gubernatorial Election reached the mandatory retirement age in
service.
The Claimant further stated that the
sum of N78,148.25 (Seventy-Eight Thousand, One Hundred and Forty-Eight Naira,
Twenty-Five Kobo) were paid to the Claimant’s deceased father for the months of
May, 2021, to November, 2022, (19 months) leaving a balance of N60,367.8 (Sixty
Thousand, Three Hundred and Sixty-Seven Naira, Eighty Kobo) from the Standard
sum of N138,516.05 (One Hundred and Thirty-Eight Thousand, Five Hundred and
Sixteen Naira, Five Kobo) the Claimant is entitled to. The
Claimant’s deceased father personally wrote letters of demand to the 1st
Defendant concerning the shortfall which yielded no positive response; despite
repeated demands by the Claimant’s deceased father by himself and through his
Solicitors to the 1st Defendant, the payment of N78,148.25 (Seventy
Eight Thousand, One Hundred and Forty Eight Naira, Twenty Five Kobo) still
persists up till the time of filing this suit instead of the sum of N138,516.05
(One Hundred and Thirty Eight Thousand, Five Hundred and Sixteen Naira, Five
Kobo) due to him
The
Claimant’s deceased father engaged the services of Wole Agunbiade, SAN when he
noticed that he had been underpaid for three months in 2019 (October, November
and December), and Wole Agunbiade, SAN wrote the 1st Defendant and
copied the 2nd Defendant via a letter dated 6th January,
2022. The Claimant’s deceased father further instructed his Solicitor – Wole
Agunbiade, SAN to write another letter which was dated 11th
February, 2022, as a remainder for the Defendants’ failure and refusal to
rectify the shortfall. After some
months, the 1st Defendant wrote a reply dated the 11th
day of May, 2022, in response to the letter written by the Claimant deceased
father’s Solicitor dated 11th February, 2022, demanding for the
Claimant’s NUBAN Bank Statement from September, 2019, to the date of receipt of
the Letter (30th June, 2022). The Claimant deceased father forwarded
his NUBAN Statement of Account via a forwarding letter.
Further
stated that despite the furnishing of the Claimant deceased father’s Statement
of Account, the 1st Defendant have failed, refused and neglected to
rectify the financial anomalies in the Claimant’s pension payments. The
Claimant deceased father, again engaged the services of Yunus Ustaz Usman (SAN)
& Co. where a final notice was written and served on the Defendants with no
response. Despite the Claimant deceased father’s complaint and that of his
Solicitor and after exchange of correspondences between the Claimant deceased
father, his Solicitors and the 1st Defendant, no concrete reason for
deduction of the said sums were established. The 1st Defendant sent
a letter dated 6th February 2023 to the Claimant directly after the
institution of this action and commencement of sitting. The Claimant deceased
father has suffered irreparable loss as a result of the 1st
Defendant’s deliberate shortfall in his pension. That the Claimant deceased
father has many close family and dependents who depends on him as his major
pension sum for livelihood and survival until his death on the 13th
March 2024. That Abbass Dabo Sambo died on the 13th March 2024 after
a protracted illness.
DEFENCE
OF THE 1ST DEFENDANT
The 1st
Defendant stated that the computation of federal share of pension is based on
the computation sheet received from the state duly stamped and signed by the
Auditor General of the State. The 1st Defendant depend on the length
of service, rank at retirement, state share and the relevant/applicable laws,
regulations and circulars in coming up with the computation of Federal Share of
any State Pensioner with Federal Share; and the 1st Defendant also
rely on the Salary scale or Structure approved by the 3rd Defendant
(National Salaries, Income and Wages Commission).
It is
an organization dealing with pension administration and receives letters from
pensioners on a daily basis. However, as soon as practicable, all
correspondences are treated, as confirmed by the Claimant. The 1st
Defendant is an extra ministerial agency which was established by the Pension
Reform Act (PRA) 2004, (now Pension Reform Act (PRA) 2014) and has its
functions generally aimed at ensuring the welfare of pensioners under its
jurisdiction, which includes making budgetary estimates for existing pensioner;
preparing and submitting the monthly payroll of pensioners to the office of the
Accountant-General of the Federation (AGF) for direct payment from the
budgetary allocation maintained with the Central Bank of Nigeria (CBN)’s bank
accounts; issuing payment instructions to the AGF; ascertaining deficits in any
pension payment if any to existing pensioners and carry out such other
functions aimed at ensuring the welfare of pensioners as the National Pension
Commission may sometimes direct; render monthly returns to the National Pension
Commission on existing staff, pensioners, deceased pensioners and any other
issue as may be required by the National Pension Commission, from time to time.
The 1st
Defendant came into existence in the year 2014 but commenced operations
sometime in the year 2015. That while it was examining the matter with a view
to ascertaining the true position of the Claimant’s complaints, the Claimant
rushed to court. Even after the filing of the suit, meetings and communications
were held with the Claimant and his Counsel wherein the basis and facts and
documentation justifying the position of the 1st Defendant paying
the sums complained of by the Claimant were availed the Claimant but the
Claimant chose, instead to proceed with this action.
This verification exercise revealed
that the pension being paid to the Claimant far exceeded what is due to him. A
major fall out of its statutory mandate is the building and maintenance of a
credible payroll and database of all pensioners under the Defined Benefits
Scheme which was not available at its inception. The Claimant’s pension was
therefore properly computed by the 1st Defendant using the Approved
Salary Structure from the National Salaries, Incomes and Wages Commission, (for
Federal Civil Servants) and the Computation Sheet for State Civil Servants
(supplied by the Claimant and sourced from his retirement state of Kaduna) and
the Pensions Harmonization Table of 1994). It harmonized the Pensioner’s
entitlement like his peers, who by virtue of his retirement date was computed
using Pension Harmonization Table 94(PHAT 94) with a total emolument of
N136,426.53, which results in an annual Pension of N90,041.50 (an amount far
greater than the annual pension specified in his favour in the State
Computation Sheet submitted by him as provided by the State on his retirement
of N6, 160.60).
Further
stated that under S.45 and S.46 of the Pension Reform Act, 2014, the 1st
Defendant is obliged to determine and cause to be paid gratuity and Pension to
pensioners in accordance with the relevant and applicable computation under the
existing Pension Scheme of the Public Service of the Federation. The Pension Harmonization Table (PHAT 94) was the first
Harmonization Salary Structure of Federal Civil Service Pensioners aimed
towards ensuring parity for pensioners who retired in different years but on
same grade level from 1994 backwards. Hence, State with Federal Share
Pensioners who retired within this period are beneficiaries, this is also
applicable to the Claimant.
The computations showed that the
Claimant was taking in a huge chunk of money (nearly 50% more) that he is not
entitled to, given the approved metrics for the computation of his pension.
Using the above metrics as well as documents submitted by the Claimant during
the verification exercise aforesaid, it was determined conclusively by the 1st
Defendant that the Claimant was earning a total of One Hundred and Thirty-Six
Thousand, Four Hundred and Twenty-Six Naira, Fifty-Three Kobo (N136, 426.53) as
against his actual pension entitlement of Seventy-Eight Thousand Nine Hundred
and Thirty-Seven Naira, Ninety-Five Kobo (N78,937.95). The Claimant, thus knew,
or ought reasonably to know that he has been overpaid between January 2015 to
December, 2017 to the tune of Three Million, Seven Hundred and Seventy-Eight
Thousand, One Hundred and Eighty-Two Naira, Sixty-Five Kobo (N3, 778, 182.65).
Further
stated that the Claimant is in possession of all materials and documents and
policies relating to the proper and accurate computation of his actual
pensions. The Claimant actually submitted those documents to the 1st
Defendant in verification of his entitlements to pensions. The action of the
Claimant has put the funding of payment of pension to the Claimant's peer
pensioners in grave jeopardy as the funds being overpaid the Claimant constitute
or form part of funds that would otherwise be applied to the settlement of many
other peer pensioners of the Claimant.
DEFENCE
OF THE 2ND DEFENDANT
The 2nd
Defendant stated that its only duty as connected to the case of the Claimant is
to make direct payment from the budgetary allocation maintained with the CBN to
pensioners' bank accounts on the recommendation of the paying agency. When the
1st Defendant prepares and submits the monthly payroll of pensioners
to the Office of Accountant General of the Federation and upon confirmation and
ratification by the Office of the Accountant General of the Federation, the 2nd
Defendant will be saddled with the task of making direct payment from the
budgetary allocation maintained with the CBN to pensioners' bank accounts upon
the instructions of the 1st Defendant. The 2nd Defendant
does not partake in the computation of the pension benefits of the claimant or
any pensioner as that is the statutory responsibility of the 1st
Defendant or any other agency.
DEFENCE
OF THE 3RD DEFENDANT
The 3rd
Defendant stated that it is the duty of the 1st Defendant to
appropriately place pensioners it inherited when it was created in the year
2014 including the Claimant’s father. Its involvement in this matter as
presently constituted is with regards to the provisions of its enabling law in
its S. 3 (p) which provided, as one of its responsibilities, ‘to examine the
current rate of retirement benefits and recommend appropriate mechanism for
periodic review of retirement benefits. Being a pensioner with the federal
component, the Claimant’s father is entitled to the pension increases on his
federal share as may have been conveyed by the 3rd Defendant from
time to time from 1999 to 2021 which have all been implemented for the Claimant
as appropriate. The purported reduction came after the 1st
Defendants carried out a nation-wide verification exercise for all civil
service pensioners under the defined Benefits Scheme that was done between 2015
and 2017 when the claimants' father was still alive having retired on the 31st
December 1979.
Further
stated that one of the purposes for the verification exercise was to
appropriately place pensioners on the right pension due and the Claimant's
father was discovered to be receiving an amount - One Hundred and Thirty-Six
Thousand, Four Hundred and Twenty-Six Naira Fifty-Three Kobo (N136,426.53) far
exceeding his entitlement of Seventy-Eight Thousand Nine Hundred and
Thirty-Seven Naira Ninety-Five Kobo (N78,937.95).
ISSUES
FOR DETERMINATION
Counsel for the
Claimant, in his Final Written Address, nominated a lone issue for the
determination of this suit to wit:
Whether
having regards to the facts and evidence adduced in this case, the claimant has
proved his claim to be entitled to reliefs sought
Counsel for the 1st
Defendant also nominated a lone issue for the determination of this suit to
wit:
Whether
having regards to the evidence before this Honourable Court, the Claimant has
proved his claim to entitle him to the reliefs sought.
Counsel
for the 2nd Defendant too nominated a lone issue for the
determination of this suit to wit:
Whether
the Claimant established his case to be entitled to the joint and several
reliefs claimed in this suit against the 2ndDefendant.
Having
meticulously gone through the facts, evidence and legal submission of counsel
on behalf of their respective parties, the issue nominated by the parties are
the same though differently worded, I am inclined to adopt the issue nominated
by the Claimant.
LEGAL
SUBMISSION OF THE CLAIMANT
Counsel
for the Claimant opened his submission by reiterating the position of law that
it is trite law laid down by a plethora of case law that he who asserts must
prove. Cited MAIHAJA VS. GAIDAM (2017) LPELR-42474 (SC). Submitted that the
Claimant has proved that his deceased father monthly pension was reduced by the
1st defendant from his unity bank statement of account. That the
Defendants never denied the shortfall and reduction of the Claimant’s deceased
father’s pension rather the 1st and 3rd defendant claimed
that the sum of N78,148.25 received by the Claimant was his actual pension sum.
The burden is on the Claimant to prove and lead credible evidence in support of
his case which the claimant in the instant case has done by tendering documents
in support of his pleadings and his testimonies, submitted that the Claimant
has proved his case on the balance of probabilities to be entitled for a
declaration that the partial withdrawal or deduction of his pension from
October 2019 until the death of his deceased father by the 1st
Defendant is unlawful and unconstitutional. And also the burden has shifted to
the defendants particularly the 1st Defendant to prove contra wise.
Submitted
that the payment of actual pension sum is not a privilege but a constitutional
right of the Claimant. Cited AJAO V. PERMANENT SECRETARY, MINISTRY OF ECONOMIC
PLANNING BUDGET CIVIL SERVICE PENSIONS OFFICE & ANOR (2016)
LPELR-41407(CA). The Claimant’s deceased father severally through himself and
through his two Solicitors wrote correspondences as regards the shortfall of
his pension but his claims were never attended to but ignored. The Claimant’s
deceased father never got any explanation (if any) as to why his pension was
reduced from N138,516.05, N70,578.71 and N78,148.25. It was after the
institution of this instant suit that the 1st Defendant served the
Claimant’s deceased father with a letter attaching Exhibit PTAD001 to Exhibit
PTAD003. Submit that in all the evidences of the 1st Defendant there
is nowhere it proved that it addressed or gave reason why the Claimant’s
deceased father’s pension was reduced from the actual amount N138,516.05 before
the institution of this suit. Where a plaintiff alleging a fact pleads that
fact and produces evidence in proof of it, the onus will shift to the defendant
to adduce evidence in rebuttal. Cited OHOCHUKWU V. AG OF RIVERS STATE & ORS
(2012) LPELR-7849(SC).
From
the testimony of DW2 and looking at EXHIBIT CW005 to Exhibit CW009 this has
shown that there was no response to the Claimant’s deceased father’s
correspondences from the 8th January 2020 until this action was
instituted. Submitted that the 1st Defendant was afforded ample
opportunity to clarify the reason for the shortfall of the claimants deceased
father’s pension but failed to until the instant action was filed before this
Honourable court. Both the 1st and 3rd Defendants
tendered public documents which were all not certified in line with Section 104
of the Evidence Act. Cited ADEYEFA & ORS V. BAMGBOYE (2013) LPELR-19891(SC).
The 1st Defendant and the 3rd defendant tendered
documents (Exhibit SW1-SW5 & Exhibit PTAD001-PTAD003) in evidence which
were all public document but failed to certify all the documents which the law
provides that being a photocopy of the original copy ought to be certified or
original copy is to be tendered in evidence. Even though been admitted on the
provision of Section 12(2) (b) of National Industrial Court Act 2006 and Order
1 Rule 9 of the rules of this court not to attach weight to all the documents
tendered which were not certified. Submitted that all the documents tendered by
the 1st and 3rd Defendant are infected with the virus of
failure to certify public documents emanating from a public officer.
Submitted
further that the 2nd defendant did not partake in the computation of
the Claimant’s deceased father’s pension and the 2nd Defendant is
tasked with the responsibility of making financial policies, acts as banker and
provide economic and financial advice to the federal government, receives and
disburses federal government monies, disbursement of pensions, and keep
accounts. DW3 admitted that the 2nd defendant makes payments to the
pensioners based on the schedule transmitted by the 1st Defendant.
He also testified that it was the 1st Defendant who directed it to
pay the claimant’s deceased father a reduced pension sum. The 3rd
Defendant admitted at para 6 of its statement of Defence that the reduction of
the Claimants pension came after the 1st Defendant carried out a
nationwide verification exercise between 2015 and 2017. Submitted the
verification exercise had long completed before the reduction of the the
Claimant’s father’s pension in October 2019 as contained in paragraph 11 and 29
of the Claimant’s statement of claim. Pension is supposed to be reviewed upward
and not downward. Cited NNPC V. KOMOLAFE (2021) LPELR-55824(CA) (Pp. 73-75,
Para A)
LEGAL
SUBMISSION OF THE 1ST DEFENDANT ADDRESS
Just
like the Claimant, the 1st Defendant submitted that by the combine
provisions of Sections 131, 132 and 134 of the Evidence Act, 2011 taken
together with a host of judicial authorities, whoever desires the court to give
judgment as to any legal right or liability dependent on the existence of facts
which he asserts must prove that those facts exist. Cited NWAVU & ORS. V
OKOYE & ORS. (2008) LPELR-2116(SC) at p.31 paras. D-E; ITUAMA V AKPE-IME
(2000) LPELE-1557(SC) p.10 paras. D-E; HONIKA SAWMILL (NIG) LTD V. HOFF (1994)
LPELR-1374(SC). The burden of proof in this case consequently lies with the
Claimant to show that he is entitled to the reliefs claimed before this
Honourable Court as he will be the party to lose if no evidence is provided in
support of his assertion. In OSAAWARU V EZEIRUKA (1978) LPELR-279(SC) pp.14-15
paras. E-B
Submitted
that the Claimant testified for himself as CW1 on 18/11/2024 and tendered 15
Exhibits. The Exhibits are basically the statement of account from 2015 to 2021
showing the differentiation in his deceased father’s monthly pension and the
letters of complaint for the “short-fall” in his pension payment from 2019 till
2021. The crux of the Claimant’s case can be discerned from paragraphs 7 to 10
of his amended Statement of claim dated 14th day of May, 2024.
Submitted that what the Claimant has told this Honourable is that he was once
receiving N138,516.05 (One Hundred and Thirty-Eight Thousand, Five Hundred and
Sixteen Naira Five Kobo but later, before filing this suit, began receiving the
sum of N78,148.25 (Seventy-Eight Thousand, Five Hundred and Forty-Eight Naira Twenty-Eight
Kobo) and N70,578.71 (Seventy Thousand, Five Hundred and Seventy-Eight Naira
Seventy-one Kobo) as the case may be. Contrary to the Claimant’s submission at
page 6 paragraph 5.5, he did not prove that the “short-fall” was illegal and
unconstitutional. It is not enough for the Claimant to show that there was a
reduction of the payment of pension. He has gone further to demonstrate that
the short fall was illegal and unconstitutional? Submitted that the evidence of
the Claimants falls far short of this necessary requirement. He has not shown
any illegality or unconstitutionality in the “short fall” of his pension,
especially when his evidence is juxtaposed with paragraphs 4, 7, 8, 9, 10, 11,
12, 13, 14, 15, 16, 17, 18, 19, 20, 23, 24 and 26 of the 1st
Defendant’s amended statement of defence and Exhibits PTAD001A-C, PTAD002 and
PTAD003, which are all documents showing the metrics for the computation of his
pension and the discovery that the Claimant was overpaid by almost 50%, a
situation that put the funding of payment of pension to the Claimant’s peer
pensioners in grave jeopardy as the funds being overpaid the Claimant
constitute or form part of the funds desperately needed by his peer pensioners.
Submitted
that the 1st Defendant has sufficiently explained the reason for the
delay in responding to the Claimant’s letters in paragraphs 3, 6 and 7 of the
statement of defence, where it was stated that the 1st Defendant
receives letters from pensioners on a daily basis and replies them as soon as
it is practicable and that in the Claimant’s case, even after filing this suit,
the 1st Defendant had meetings and communications with the Claimant
and his Counsel, explaining the justification for its action, but the Claimant
still proceeded with the suit. Exhibit CW010 is the 1st Defendant’s
reply dated 6th February 2023, wherein the 1st Defendant
explained in details how the Claimant’s correct pension as opposed to the sum
of N138,516.05 (One Hundred and Thirty-Eight Thousand, Five Hundred and Sixteen
Naira Five Kobo). Using the Claimant’s employment records submitted during the
verification, the approved and applicable salary structure as well as the
relevant and approved salary increment over the period under review. (See
Exhibit CW010).
The 1st
Defendant stated in its evidence that the Claimant was discovered to be
receiving pension that was about twice the amount due to him and this was not
contradicted by way of cross examination or any documentary evidence showing
what the proper computation of then Claimant’s pension ought to have been.
Using standard metrics shown in evidence at the nationwide verification
exercise carried out by the 1st Defendant between 2015 to 2017 from
the documents submitted by the Claimant, especially Exhibit PTAD002, that the
Claimant who was a state pensioner with federal share, ought to have been
receiving the sum of N78,937.95 and not N136,426.53. Exhibits PTAD01A-C are the
general computations for grade levels 1 to 17 applicable to all pensioners,
including the Claimant who was on grade level 17 on retirement.
Exhibit
PTAD02 is the Claimant’s annual pension on retirement (Kaduna state Computation
sheet) showing the sum of N6,160.60 (Six Thousand One Hundred and Sixty Naira
Sixty Kobo) as his federal share of pension, while Exhibit PTAD03 is the
Claimant’s computation by the 1st Defendant showing the sum of
N78,148.25 (Seventy-Eight Thousand, Five Hundred and Forty-Eight Naira
Twenty-Eight Kobo) as the actual pension payable to him. From Exhibit PTAD03,
the Claimant ought to have received a total sum of N6,635,868.54 as against the
sum of N10, 334,755.34 from 2015 to 2019 paid to him and the 1st
Defendant has the right to recover the excess in line with the relevant
provisions of the law as clearly stated in Exhibit CW010. The Court was urged
to find and hold that the 1st Defendant has shown that from the
exhibits tendered, especially Exhibits PTAD03 and CW010, the 1st
Defendant has shown that the Claimant was overpaid the sum of N3,778,182.62
within the period under review.
Further
submitted that the 1st Defendant’s action is justifiable, legal and
constitutional. The sum of N78,148.25 (Seventy-Eight Thousand, Five Hundred and
Forty-Eight Naira Twenty-Eight Kobo) is what is due to his peers as can be seen
from Exhibit PTAD01C. It took the 1st Defendant a period between
2015 to 2019 to meticulously conduct a verification exercise of all pensioners,
just one year after the creation of the 1st Defendant to harmonize
pension due to pensioners to avoid overpayment and shortfalls in some
instances. The Claimant was not singled out in the exercise. It was a
nation-wide exercise aimed at correcting anomalies with regards to pension
payment, so that each pensioner can receive what is due him along with his
peers.
Submitted
that the 1st Defendant has discharged the burden of proving that the
reason for the difference in the Claimant’s pension was because the Claimant
was receiving an amount far above his peers and that action impeded on the
rights of other pensioners to receive what is due to them. Hence the effective
payment of what was then Claimant’s due pension in line with the provisions of
the law.
Further
submitted on the admissibility of the documents tendered by the 1st
Defendant that this Court acted within the powers conferred on it pursuant to
Section 12 of the National Industrial Court act, an Act of the National
Assembly, in the pursuit of the interest of justice to admit the documents in
evidence and the decision cannot be faulted by any stretch of the imagination.
The National Industrial Court Act is not inferior or subservient to the
Evidence Act. Moreover, none of the cases relied on by the Claimant in urging
the Court to discountenance the Exhibits emanated from a decision of the
National Industrial Court.
LEGAL
SUBMISSION OF THE 2ND DEFENDANT ADDRESS
The 2nd
Defendant submitted that the general onus is on the claimant to prove to the
satisfaction of the Court the assertions made in the pleadings thus, where a
claimant fails to discharge the onus of proof placed upon it, at the close of
pleadings, a defendant is not obliged to adduce any evidence in rebuttal. Cited
OLOWU VS. OLOWU (1985) 3 NWLR (PT13) 372, NITEL PLC VS. ROCKONOH PROPERTY CO.
LTD (1995) 2 NWLR (PT 1257) 1, AGBOOLA vs. UNITED BANK FOR AFRICA PLC 11 NWLR
(PT 1258) 357.
Submitted
that the 2nd Defendant’s evidence as placed before this Court is
clear to the extent that he did not partake in the computation of the pension
benefit of the claimant or any pensioners and its responsibilities only is to
make a direct payment from the budgetary allocation maintained with the CBN to
pensioners' bank accounts upon the instructions of the 1st and/or 3rd
Defendants. It is important to draw from the uncontroverted and undisputed
evidence of the 2nd Defendant as adopted by its sole witness DW3.
The testimony of the 2nd Defendant's witness remains uncontroverted
and unchallenged even under cross examination by the Claimant as the witness
maintained that the 2nd Defendant only remitted to pensioners based on the
prepared scheduled of payment for the pensioners. Where there is evidence to
support a claim, which remains unchallenged and uncontroverted by the other
party, the court is bound to accept the evidence in support of the claim. Cited
Ijebu-Ode L.G.V. Adedeji Balogun & Co. Ltd (1991) 1 SC (Pt 1)1, Pada
Chabasaya V. Joe Anwasi (2010) 3-5 SC (Pt. 1) 208.
COURT’S
DECISION
I
have carefully ruminated all the processes filed by both parties including the
evidence adduced and exhibits tendered, first and foremost, Counsel for the
Claimant submitted that the 1st Defendant and the 3rd
Defendant tendered documents (Exhibit SW1-SW5 & Exhibit PTAD001-PTAD003) in
evidence which were all public documents but failed to certify all the
documents which the law provides that being a photocopy of the original copy
ought to be certified or original copy is to be tendered in evidence. Even
though same been admitted on the provision of Section 12(2) (b) of the National
Industrial Court Act 2006 and Order 1 Rule 9 of the rules of this court, the
Court did not attach weight to all the documents tendered which were not
certified. Submitted that all the documents tendered by the 1st and
3rd Defendant are infected with the virus of failure to certify
public documents emanating from a public officer.
From
the record of the Court, DW1 tendered Exhibits SW1 – SW5 and Counsel for the
Claimant did not object to the admissibility of Exhibits SW1 – SW5 when the
same were tendered through DW1. DW2 too tendered Exhibits PTAD001 – PTAD003,
counsel for the Claimant objected to the admissibility of Exhibits PTAD001 –
PTAD003 on the ground that Exhibits PTAD001 – PTAD003 being the public
documents were not certified and the Court, relying on Section 12(2)(b) of the
National Industrial Court Act, overruled the Claimant and admitted Exhibits
PTAD001 – PTAD003 in evidence.
Without
gainsaying that Exhibits SW1 – SW5 and Exhibits PTAD001 – PTAD003 are public
documents, these exhibits were tendered without certification as required under
Section 103 of the Evidence. I had noted during the trial that the provision of
Section 12(2)(b) of the National Industrial Court of Nigeria Act 2006 is an
exception to the provision of Section 103 of the Evidence. Section 12(2)(b) of
the National Industrial Court Act has played down the requirement of the
certification of the photocopies of public documents pursuant to Section 104 of
the Evidence Act. The Court of Appeal in MR VICTOR
ADEGBOYU V. UNITED BANK
FOR AFRICA (unreported) Appeal No CA/IL/20/2021 the judgment of which was
delivered on Thursday the 14th day of April 2022 elegantly
elaborated on the importance and purport of Section 12(2)(b) of the National
Industrial Court Act where Hon. Justice IKECHUKWU AMADI, JCA held that:
The
National Industrial Court is a specialized Court established to handle labour
and employment related matters for two specific reasons. The first reason is to
ensure that such matters are determined expeditiously and without delay as
opposed to trial in the ordinary courts. This reason is very crucial considering
the fact that labour rights are primarily rights in personam as against rights in
rem, in which case, time is of essence in determining such rights. Globally, the resolution of labour disputes is
guided, among others, by this principle that: it is better to have a bad
decision quickly than a good decision too later. See B. B. Kanyip- National
Industrial Court Jurisdiction: “How Narrow is Narrow” (Hybrid Consult: Lagos)
2021, paragraph 13 page 7. This first reason also
underscores the importance of labour as a factor of production which is very
critical to economic growth and development of the country. The second reason
which is equally very important is to ensure that technicality is not allowed
to operate in the court against substantial justice. To achieve this purpose,
the National Industrial Court Act 2006 statutorily and clearly provided in
Section 12(2) that:
(a) the court may regulate its procedure and
proceedings as it thinks fit; and
(b)
shall
be bound by the Evidence Act but may depart from it in the interest of justice.
I
must use this opportunity to state clearly that this court in the case of SEC v.
Abilo Uboboso unreported Suit No. CA/A/388/2013 the judgment of which was delivered on 21st December 2016
did not invalidate nor diminish in any manner or form the provisions or
intendment of section 12(2) of the National Industrial Court Act 2006.
In that case, (SEC v. Abilo Uboboso unreported
Suit No. CA/A/388/2013), the National Industrial Court admitted in evidence
public documents that were not certified on the ground that section 12(2)
permitted the Court to depart from the Evidence Act. The Court of Appeal held that
the provisions of section 12(2) of the National Industrial Court Act 2006
cannot operate to encumber the provisions of the Evidence Act 2011. Part of the
reasons upon which this Court based its decision was that the Evidence Act 2011
was made by the National Assembly subsequent to the National Industrial Court
Act 2006.
However, in that case the attention of this Court
was not drawn to the following facts:
Firstly, granted that the Evidence
Act 2011 in the explanatory note as well as in section 256 made it clear that
the new Evidence Act in repealing the old one ‘shall apply to all judicial
proceedings in or before Courts in Nigeria’.
Section 4(2) (b) of the Interpretation Act Cap. I23 LFN 2004, provides
that where an enactment is repealed and another enactment is substituted for
it, then any reference to the repealed enactment shall, after the substituted
enactment comes into force, be construed as a reference to the substituted
enactment. It should be noted that by section 1 of the Interpretation Act, the
Interpretation Act “shall apply to the provisions of any enactment except in so
far as the contrary intention appears in this Act or the enactment in
question”.
Secondly,
section 2 of the Evidence Act 2011 itself provides that ‘for the avoidance of
doubt, all evidence given in accordance with section 1 shall, unless excluded
in accordance with this or any other Act, or any other legislation validly in
force in Nigeria, be admissible in judicial proceedings to which this Act
applies’.
The proviso to
section 2, provides that the admissibility of such evidence shall be subject to
all such conditions as may be specified in each case by or under the Evidence
Act. The implication is that section 2 acknowledges that there are existing
laws that exclude the application of even the Evidence Act 2011.
Thirdly,
section 3 of the Evidence Act 2011, provides that “Nothing in this Act shall
prejudice the admissibility of any evidence that is made admissible by any
other legislation validly in force in Nigeria”. A fortiori, if another
legislation makes any evidence inadmissible, the intention of the legislature
in that regard must be respected. Meaning that, section 3 must be read to mean
nothing in this Act shall prejudice the admissibility or otherwise that is to
say; inadmissibility of any evidence that is made admissible or inadmissible by
any other legislation validly in force in Nigeria.
Fourthly, section 12(2) of the National
Industrial Court Act 2006 is not delimited by time or date. It talks of
“Evidence Act”, not “Evidence Act 1990 or 2004”. Therefore, the notion that the
Evidence Act 2011 is subsequent to the National Industrial Court Act 2006 that
is because the National Industrial
Court Act was passed in 2006, it cannot be said that the Evidence Act
2011 was contemplated under it, cannot really hold ground as the National
Industrial Court Act 2006 simply talks of the “Evidence Act”. Even if section
12(2) of the National Industrial Court
Act were delimited by time or date, section 4(2) (b) of the Interpretation Act
took care of the problem. With very due respect, had the attention of this
court been drawn to the foregoing factors certainly this Court would have held
otherwise, therefore; I maintain that section 12(2) is extant and applicable at
the National Industrial Court.
In
view of the foregoing, I hold that section 12(2) of the National Industrial Act
2006 ought to apply to this case and it is hereby applied, The lower Court
ought to have departed from the provisions of section 84 of the Evidence Act
2011 which is hereby departed from.
Consequently, the order of the lower court discountenancing and
expunging the said exhibit VG14 is hereby set aside, the said exhibit VG14 is
to be given its probative value. This
issue is consequently resolved in favour of the Appellant and against the
Respondent.
In
view of Section 12(2) of the National Industrial Court, the requirement of
certification as per Section 104 of the Evidence can be jettisoned for the
interest of justice in this Court, consequently, Exhibits SW1 – SW5 and
Exhibits PTAD001 – PTAD003 are admissible given the provision of Section 12(2)
of the National Industrial Court. I so hold.
Now,
coming to the main claim of the Claimant, the case of the Claimant is that the
Claimant's deceased father (Abbas Dabo Sambo) retired as a State Permanent
Secretary under the Ministry of Works and Housing, Kaduna State with Grade
level 16 Under the Kaduna State Civil Service Commission. His retirement was
published in Kaduna State of Nigeria Gazette No. 32 Vol. 13 on 15th
November 1979 page 324. The Claimant tendered Exhibit CW001 and CW002
establishing that the Claimant’s late father retired from the employment of the
Kaduna State Government in 1979. The Defendants admitted to this fact. Where a
party admits a fact in issue, such fact in issue does not
require any proof again. The courts do
not need proof of fact already admitted and
further dispute in such fact should not be entertained since
admission is the strongest and highest proof of the fact in
issue: see the case of AL-HASSAN V. ISHAKU (2016) 10 NWLR (Pt. 1520)
230.
The
Claimant pleaded and led evidence to state that the Claimant's deceased
father’s gross monthly pension due to him is N138,516.05 (One Hundred and
Thirty-Eight Thousand, Five Hundred and Sixteen Naira, Five Kobo) only. The
payment of full pension accrued to the Claimant’s deceased father to the tune
of N138,516.05 (One Hundred and Thirty-Eight Thousand, Five Hundred and Sixteen
Naira, Five Kobo) only stopped in September 2019. From then, the sum of N70,578.71
(Seventy Thousand, Five Hundred and Seventy-Eight Naira-Seventy-One Kobo Only)
was paid to the Claimant’s deceased father for October 2019 to April 2021 (19
months) leaving a balance of N67,937.34 (Sixty Seven Thousand, Nine Hundred and
Thirty-Seven Naira, Thirty-Four Kobo) from the standard sum of N138,516.05 (One
Hundred and Thirty-Eight Thousand, Five Hundred and Sixteen Naira, Five Kobo)
the Claimant is entitled to. The Claimant further stated that the sum of
N78,148.25 (Seventy-Eight Thousand, One Hundred and Forty-Eight Naira,
Twenty-Five Kobo) was paid to the Claimant’s deceased father for May 2021, to
November 2022, (19 months) leaving a balance of N60,367.8 (Sixty Thousand,
Three Hundred and Sixty-Seven Naira, Eighty Kobo) from the Standard sum of
N138,516.05 (One Hundred and Thirty-Eight Thousand, Five Hundred and Sixteen
Naira, Five Kobo) the Claimant is entitled to. In support of his assertion, the
Claimant tendered Exhibit CW003 and CW004.
Exhibit
CW003 shows that from January 2015 to September 2019, the Claimant’s late
father received the sum of N138,516.05 (One Hundred and Thirty-Eight Thousand,
Five Hundred and Sixteen Naira, Five Kobo) as his monthly pension from the
Defendants. From October 2019 to April 2021, the Claimant’s late father
received the sum of N70,578.71 (Seventy Thousand, Five Hundred and
Seventy-Eight Naira-Seventy-One Kobo Only) as his monthly pension from the
Defendants. Exhibit CW004 shows that from June 2021 till November 2022 the
Claimant’s late father received the sum of N78,148.25 (Seventy-Eight Thousand,
One Hundred and Forty-Eight Naira, Twenty-Five Kobo) as his monthly pension
from the Defendants.
The
Claimant now claims that his late father was underpaid from October 2019 to the
time the Claimant’s late father passed away. That is, there is a monthly
shortfall of the sum of N67,937.34 (Sixty-Seven Thousand, Nine Hundred and
Thirty-Seven Naira, Thirty-Four Kobo) from the standard sum of N138,516.05 (One
Hundred and Thirty-Eight Thousand, Five Hundred and Sixteen Naira, Five Kobo)
the Claimant’s late father was entitled to from October 2019 to April 2021 and
there is a monthly shortfall of the sum of N60,367.8 (Sixty Thousand, Three
Hundred and Sixty-Seven Naira, Eighty Kobo) from the standard sum of N138,516.05
(One Hundred and Thirty-Eight Thousand, Five Hundred and Sixteen Naira, Five
Kobo) the Claimant’s late father was entitled to from June 2021 till November
2022.
When
the Claimant’s late father noticed the shortfall in the payment of his pension,
the Claimant authored Exhibits CW005, CW006, CW008 and CW009 demanding the
payment of the outstanding shortfall of the payment of his pension. The
Defendant replied to the plight of the Claimant’s late father through Exhibit
CW010 stating that the accurate monthly pension of the Claimant after all
adjustments for the harmonization rate is the sum of N71,291.63. (Seventy-One
Thousand Two-Hundred and Ninety-One Naira Sixty-Three Kobo) and the Claimant’s
late father was overpaid in the sum of N2,157,181.44 (Two Million One Hundred
and Fifty-Seven Thousand One Hundred and Eighty-One Naira Forty-Four Kobo).
It is
axiomatic to note that the burden of proof lies on the Claimant who asserts
that his late father was underpaid in his monthly pension. That is the law! It
is also the position of law that the burden of proof is on
the party who asserts a fact to prove it on the preponderance of evidence in
civil cases. Once a Claimant has proved his claim on balance of probabilities
and preponderance of evidence, the burden shifts on the defendant to
prove any fact he relies on to establish his case: see the case of B.E.G.H.
LTD. V. U.H.S.L. LTD. (2011) 7 NWLR (Pt. 1246) 246. In IFEGWU
V. U.B.N. PLC (2011)
16 NWLR (Pt. 1274) 555 the Court of Appeal
held that:
In civil cases, the onus of proof is not as fixed on a plaintiff as it is
on the prosecution in criminal cases. In civil cases, while the burden of proof in the sense of establishing a person’s
case lies on him as a plaintiff, such a burden is not as static as in criminal cases. Not only will there be occasions in which on the state of
the pleadings the burden of proof lies on the defendant or respondent, but also
in the course of the trial, the defendant may become duty-bound to call
evidence in proof or rebuttal of some assertions in the
case.
The
Claimant has proved his case against the Defendants on the preponderance of
evidence, having proved his case against the Defendants by evidence, the
evidential burden now shifts on the Defendants to disprove the assertion of the
Claimant. This will take me to the defence of the Defendants.
The 1st
Defendant pleaded and led evidence that the Claimant’s late father is a state
Pensioner with Federal Share pensioner and retired as a Permanent Secretary
from the Kaduna State Government. Considering that the Claimant retired on the
31st December, 1979 his current harmonized and accurate monthly
pension is the sum of N78,937.95 and not N136,426.53 as claimed. The Claimant
retired on the 31st of December 1979, at which point the 1st
Defendant had not come into existence. When the 1st Defendant began
operations, the 1st Defendant conducted a Nationwide Verification
Exercise for all Civil Service Pensioners under the Defined Benefits Scheme,
which was conducted between January 2015 and December 2017.
Further
stated that this verification exercise revealed that the pension being paid to
the Claimant far exceeded what is due to him. The Claimant’s pension was
therefore properly computed by the 1st Defendant using the Approved
Salary Structure from the National Salaries, Incomes and Wages Commission, (for
Federal Civil Servants) and the Computation Sheet for State Civil Servants
(supplied by the Claimant and sourced from his retirement state of Kaduna) and
the Pensions Harmonization Table of 1994). It harmonized the Pensioner’s
entitlement like his peers, who by virtue of his retirement date was computed
using Pension Harmonization Table 94(PHAT 94) with a total emolument of
N136,426.53, which results in an annual Pension of N90,041.50 (an amount far
greater than the annual pension specified in his favour in the State
Computation Sheet submitted by him as provided by the State on his retirement
of N6, 160.60).
The
Pension Harmonization Table (PHAT 94) was the first Harmonization Salary
Structure of Federal Civil Service Pensioners aimed towards ensuring parity for
pensioners who retired in different years but on same grade level from 1994
backwards. Hence, State with Federal Share Pensioners who retired within this
period are beneficiaries, this is also applicable to the Claimant. The
computations showed that the Claimant was taking in a huge chunk of money
(nearly 50% more) that he is not entitled to, given the approved metrics for
the computation of his pension. Using the above metrics as well as documents
submitted by the Claimant during the verification exercise aforesaid, it was
determined conclusively by the 1st Defendant that the Claimant was
earning a total of One Hundred and Thirty-Six Thousand, Four Hundred and
Twenty-Six Naira, Fifty-Three Kobo (N136, 426.53) as against his actual pension
entitlement of Seventy-Eight Thousand Nine Hundred and Thirty-Seven Naira,
Ninety-Five Kobo (N78,937.95). The Claimant, thus knew, or ought reasonably to
know that he has been overpaid between January 2015 to December 2017 to the
tune of Three Million, Seven Hundred and Seventy-Eight Thousand, One Hundred
and Eighty-Two Naira, Sixty-Five Kobo (N3, 778, 182.65). The 1st
Defendant tendered Exhibit PTAD001A, PTAD001B, PTAD001C, PTAD001D, PTAD002 and
PTAD003.
Having
ruminated on the pleading and evidence of the 1st Defendant, I have
reservations about the defence of the 1st Defendant. Firstly,
Exhibits PTAD001A, PTAD001C, and PTAD001D and part of Exhibit PTAD002 and
PTAD003 are not legible for the Court to assess the contents of these Exhibits,
I would be surprised if Counsel for the 1st Defendant and other
counsel in this matter can read Exhibits PTAD001A, PTAD001C, and PTAD001D and
part of Exhibit PTAD002 and PTAD003 too. The year PTAD002 was produced is not
readable for the Court to determine its relevance to the case of the 1st
Defendant. It is the duty of a party who wants the Court to utilize a document
in his favour to produce a legible document before the Court and demonstrate
how the document is relevant to his case. In the case of AKILA V.
DIRECTOR-GENERAL S.S.S. (2014) 2 NWLR (Pt. 1392) 443 the Court of Appeal
held that:
It
was incumbent upon the appellants, without any need to be prompted or impelled,
to exhibit a legible and comprehensible copy of the document if they intended
the lower court to read and rely on it in its process of adjudicating in the
dispute between them and the respondents. It is certainly not the duty of the
court to push, coax and cajole parties before it to do what they are ordinarily
supposed to do in the prosecution or defence of their cases. Indeed, if the
lower court had insisted on this, then the charge of descending into the arena
would have been justified. Where the lower court was unable to read and
comprehend exhibit “A”, (which, by the way, I entirely agree was dumped on it
without any consideration as to whether or not it was readable), then it cannot
have been expected to make any use of the exhibit in arriving at a decision in
the matter.
Apart
from that, Exhibit PTAD003 shows that the monthly pension of the Claimant’s
late father is N78,937.95 (Seventy-Eight Thousand Nine Hundred and Thirty-Seven
Naira Ninety-Five Kobo). How the 1st Defendant arrived at N78,937.95
(Seventy-Eight Thousand Nine Hundred and Thirty-Seven Naira Ninety-Five Kobo)
remains mysterious. The monthly pension of the Claimant’s late father has been
the subject of several adjustments and the 1st Defendant is under legal
obligation to demonstrate to the understanding of not only the Court but also
an ordinary man on the street without being secretive or evasive.
Another
snag in the defence of the 1st Defendant is that, the 1st
Defendant replied to the shortfall in the payment of the pension of the
Claimant’s late father through Exhibit CW010, the amount stated to be the
monthly pension of the Claimant’s late father is N71,291.63 (Seventy-One
Thousand Naira Two Hundred and Ninety-One Naira Sixty-Three Kobo). The 1st
Defendant failed to reconcile or explain the discrepancy inherent in Exhibits
CW010 and PTAD003 in which the two exhibits state different figures. That is,
Exhibit PTAD003 states N78,937.95 (Seventy-Eight Thousand Nine Hundred and
Thirty-Seven Naira Ninety-Five Kobo) and Exhibit CW010 states N71,291.63
(Seventy-One Thousand Naira Two Hundred and Ninety-One Naira Sixty-Three Kobo).
Exhibits CW010 and PTAD003 emanated from the 1st Defendant. It is
not the duty of the trial Judge to pick and choose between the conflicting pieces
of evidence of a party. The trial Judge cannot also believe the two versions.
In AGBI V. OGBEH (2005) 8 NWLR (Pt.
926) 40 the Court of Appeal held that the court should
and must, in such a situation, not rely on such evidence but disregard it.
Where there are inconsistencies and contradictions in the evidence of
a witness, the court should not attach probative value to it. In the case of NEW NIG. DEV. CO.
LTD. V. UGBABE (2022) 16 NWLR (Pt. 1855) 101 where the Supreme Court held
that:
It is
correct that where there is failure to conduct correct and precise computation
of a person’s entitlement, he will be entitled to bring an action to ensure
adequate and proper computation. I am of the view that where there is seeming
ambiguity in the payment of entitlements of an employee such ambiguity must be
resolved in favour of the employee.
Thus, irreconcilable evidence of the 1st Defendant will
be resolved in favour of the Claimant’s late father. I so hold.
On the defence of the 2nd and 3rd Defendants,
it is apparent in this case that it is the duty of the 1st Defendant
to appropriately place pensioners it inherited when it was created in the year
2014 including the Claimant’s father. The 3rd Defendant merely
repeated that the Claimant's father was discovered to be receiving an amount
N136,426.53 (One Hundred and Thirty-Six Thousand, Four Hundred and Twenty-Six
Naira Fifty-Three Kobo) far exceeding his entitlement of N78,937.95
(Seventy-Eight Thousand Nine Hundred and Thirty-Seven Naira Ninety-Five Kobo)
in which this Court has found to be cagy and unsubstantiated.
Given the foregoing, it is the finding of the Court that the
Defendants failed to prove how the 1st Defendant arrived at
N78,937.95 (Seventy-Eight Thousand Nine Hundred and Thirty-Seven Naira
Ninety-Five Kobo) and the 1st Defendant also failed to reconcile the
differences in the monthly pension of the Claimant’s late father as contained
in Exhibit CW010 and PTAD003. Thus, if the Court cannot pick either of Exhibit
CW010 and PTAD003 in favour of the Defendants, it then means that the
Defendants fail to prove that the monthly pension entitlement of the Claimant’s
late father is not the sum of N136,426.53 (One Hundred and Thirty-Six Thousand,
Four Hundred and Twenty-Six Naira, Fifty-Three Kobo). For this reason, I
resolve the lone issue for the determination in favour of the Claimant against
the Defendants. I so hold.
It is hereby ordered as follows:
1.
A DECLARATION that the partial
continuous withholding of the Claimant’s pensions due to him from October 2019,
till the death of Abbas Dabo Sambo on the 13th of March 2024 by the
Defendants, is unlawful and unconstitutional.
2.
AN ORDER DIRECTING the Defendants to
pay the Claimant, all his accrued partially withheld pension arrears from
October, 2019 until his death on the 13th March 2024.
3.
AN ORDER DIRECTING the Defendants to
pay the Claimant the sum of 3,403,338.28 (Three Million, Four Hundred and Three
Thousand, three Hundred and Thirty-eight Naira, Twenty-Eight Kobo)) being
accrued sum of withheld pension for October 2019 to November 2022.
4.
AN ORDER DIRECTING the Defendants to
pay the Claimant any sum withheld from his standard pension of N138,516.05 (One
Hundred and Thirty-Eight Thousand, Five Hundred and Sixteen Naira, Five Kobo)
from December 2022, until his death on the 13th March 2024.
5.
I award the sum of N1,000,000 as
general damages.
6.
The sum of N500,000 (Five Hundred
Thousand naira) only as the cost on instituting this action.
7.
All terms of this Judgment are to be
complied with within 30 days from the date of this Judgment without prejudice
to the right of Appeal by both Parties.
HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
KADUNA
DIVISION
NATIONAL
INDUSTRIAL COURT OF NIGERIA