Mrs Ruth Abayomi & Anor Vs. Federal Fire Service & Anor

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: MAY 24, 2018

SUIT NO. NICN/LA/290/2013

BETWEEN

Mrs Ruth Abayomi
Mr Nehemiah Amabor-Claimants

AND

Federal Fire Service
Honourable Minister, Federal Ministry of Interior -Defendants

REPRESENTATION

O. Alademehin, for the claimant.

Charles H. T. Uhegbu,for thedefendants.

JUDGMENT

Mr Ajayi Abayomi was a staff of the 1st defendant and served for a period of 35 years from 1st December 1968 to 1st December 2003 rising to the Rank of Principal Fire Superintendent I on salary GL 12. He died intestate in Lagos on 8th January 2004. When the retirement benefits of all the 21 senior officers who retired on 1st December 2003 were ready, the 1st claimant went to the 1st defendant to demand for that of the deceased but was rebuffed by officials of the 1st defendant on the ground that she was not the next of kin of the deceased as per the defendants’ record. In the circumstance, the claimants applied for Letters of Administration from the Probate Division of the High Court of Lagos State and got one dated 16th November 2007. In spite of the Letters of Administration, the defendants refused to pay the claimants, hence this action.

The claimants commenced this action vide a complaint filed on 5th June 2013 against 4 defendants. On 29th October 2014, the claimants prayed this Court to strike out the name of the 4th defendant. The prayer was granted and the name of the 4th defendant was struck out. On 9th February 2016, counsel for the 2nd defendant prayed that the name of the 2nd defendant be struck out. Though the claimants’ counsel opposed, the Court ruled otherwise and struck out the name of the 2nd defendant, thus leaving the instant defendants in the suit. All of this necessitated the amendment of the originating processes, which the claimants did by filing on 11th April 2016 the amended complaint, amended statement of facts, amended list of documents, copies of the documents, list of witness and the written statement on oath of the 1st claimant. On the face of the amended complaint, the claimant is claiming against the defendants the following reliefs:

The sum of N2,125,005.10 being gratuity of Ajayi Abayomi having served the Federal Republic of Nigeria in the Federal Fire Service for 35 years.
The sum of N1,487,503.50 being the accrued pension of Ajayi Abayomi from 1st December, 2003 when he retired to 8th day of January, 2004 when he died, a period of 13 months 7 days.

Total ……………………………………………………………………… N3,612,508.60

Interest on the said sum of N3,612,508.60 at the rate of 21% per annum from the 1st day of December, 2003 until judgment and thereafter at the rate of 20% per annum until the liquidation of the judgment.
The cost of this action.

However, in paragraph 34 of the amended statement of facts, the claimants dropped relief (c) on interest leaving essentially only reliefs (a) and (b), and (d), which now became relief (c). Since the law is that where there is conflict between the complaint (writ of summons) and the statement of facts (statement of claim), the latter prevails, I take it that for purposes of this judgment, the claimants have only three reliefs as per paragraph 34 of their amended statement of facts. The claimants even said this much in paragraph 1.05 of their final written address.

The defendants responded by filing on 9th February 2016 a motion on notice praying to amend their defence processes. The amended defence processes were, however, equally filed on same 9th February 2016. The motion on notice was never moved and the defendants stopped coming to Court especially when orders as to cost were made against them and their counsel. The claimants, however, filed on 11th April an amended reply to the defendants’ amended statement of defence together with a list of additional documents, copies of the additional documents and an additional written statement on oath of the 1st claimant.

At the trial, the 1st claimant testified on behalf of the claimants as CW and adopted her two depositions of 11th April 2016 and her exhibits, Exhibits C1 to C18. The defendants never came to Court to either cross-examine CW or open its defence. The defendants were thus foreclosed and written addresses were ordered. The claimants’ final written address was filed on 29th December 2017. The defendants did not file any written address. This action is essentially undefended, but this not preclude the claimants from discharging the minimal evidence rule which enjoins that they prove their case to the satisfaction of this Court. See Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69,Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247 and Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC.

The claimants submitted one issue for determination: whether the claimants are entitled to the retirement benefits of Mr Ajayi Abayomi. The claimants answered in the affirmative arguing that their evidence is uncontroverted as the defendants did not give any evidence, referring to Chief S. L. Durosaro v. T. A. A. Ayorinde [2005] 3 – 4 SC 14 at 24. That a close reading of the defendants’ amended joint statement of defence shows that the refusal of the defendants to pay the retirement benefits of Mr Ajayi Abayomi is predicated on three grounds: the 1st claimant did not produce marriage certificate to show that she is wife of the deceased; the name of Mr Ajayi Abayomi’s next of kin was Mr Habib Robins being Mr Ajayi Abayomi’s father; and a letter found in Mr Ajayi Abayomi’s file stated that his wife, Mrs Adenike Abayomi, died on 15th July 1981 leaving behind three children.

To the claimants, the 1st claimant is the wife of Mr Ajayi Abayomi and they married under native law and custom in December 1983 cohabiting under the same roof as husband and wife. That the demand of marriage certificate in respect of a marriage conducted under native law and custom is without justification. The claimants then referred to section 258(1) of the Evidence Act 2011 for the definition of “wife” and “husband”. To the claimants. except for a few Local Governments in Nigeria, marriage certificate is not issued in respect of customary marriage. The claimants referred to Exhibit C12, First Bank of Nigeria Plc Account Opening Form where Mr Ajayi Abayomi stated in the form under “Marital Status” that he was married and gave the name of his wife as “Mrs Ruth Abayomi”, the 1st claimant. That by this, the defendants cannot claim that the 1st claimant is not Mr Ajayi Abayomi’s wife.

The claimants went on that the claim that the 1st claimant is not the next of in of Mr Ajayi Abayomi cannot be sustained. That although Mr Ajayi Abayomi wrote the name of his father as his next of kin when he enlisted in the service of the 1st defendant in 1968 and married Mrs Anike Abayomi in 1969, his father and Mrs Adenike Abayomi respectively died in 1980 and 1982 before he married the 1st claimant in 1983. That by marrying the 1st claimant in 1983, the 1st claimant automatically became the next of kin of Mr Ajayi Abayomi, referring to Exhibit C16, Mr Ajayi Abayomi’s National Identity card which has the 1st claimant as his next of kin and wife.

That the claim that Mrs Adenike Abayomi left behind three children purportedly contained in a letter purportedly written by Mr Ajayi Abayomi is a distortion of facts. That the said letter dated 20th July 1981 was not tendered; and even if it were, it would have been objected to on the ground that the said letter is unsigned and so not admissible, citing AG, Abia State v. Agbaranya [1999] 6 NWLR (Pt. 607) 362 at 371 and Omega Bank Nig. Plc v. O. B. C. Ltd [2005] 1 SC (Pt. I) 49 at 72. That it is curious that the first line of the last paragraph of the letter used the phrase “May Allah” against the backdrop that Mr Ajayi Abayomi is a Christian whose middle name is Alfred, referring to Exhibit C16. The claimant then urged the Court to hold that the 1st claimant is the wife of Mr Ajayi Abayomi by customary law and also his next of kin; and that having obtained Letters of Administration, the claimants are entitled to the benefits of Mr Ajayi Abayomi, citing The Administrators/Executors of the Estate of General Sani Abacha (Deceased) v. Samuel David Eke-Spiff [2009] 2 – 3 SC (Pt. II) 93.

The claimants continued that the entitlement of Mr Ajayi Abayomi must be computed under the Pay-As-You-Go pension scheme of the public service of the Federation being the applicable scheme at the time Mr Ajayi Abayomi retired on 1st December 2003 and thus exempted under section 5(1)(b) of the Pension Reform Act 2004. That Mr Ajayi Abayomi’s entitlement must thus be calculated in accordance with section 46 of the Pension Reform Act 2004 particularly the Second Schedule made pursuant to section 5(2) of the Act, which provides pictorial table of the formula for computation of gratuity and pension. Referring to Exhibit C8, the claimants submitted that the defendants had indicated on it a rough estimate of the sum of N708,335.04 gratuity for one year at 100%. That Mr Ajayi Abayomi, having served for 35 years, his gratuity must be calculated on the basis of 300% and not 100%, referring to the Second Schedule to the Pension Reform Act 2004 made pursuant yo section 5(2) of the Act, which provides the table for computation of the retirement benefits of civil servants. That if N708,335.04 is multiplied by 300%, what we get is N2,125,005.10 as stated in paragraphs 15 to 18 of the amended statement of facts, admitted by the defendant in paragraphs 11 and 12 of the amended statement of defence. That what is admitted needs no further proof, citng Oladunjoye v. Akinterinwa [2004] 4 SC (Pt. I) 1 at 29 and Agbanelo v. UBN [2000] 4 SC (Pt. I) 233 at 242. Furthermore, that because Mr Ajayi Abayomi dies on 8th January 2004, he is only entitled to pension of one month seven days, not 13 months 7 days that they claimed. In the circumstance, that the pension of Mr Ajayi Abayomi is 70% of his gratuity, which is N2,125,005.10 divided by 100 multiplied by 70 which equals N1,487,503.50. In conclusion, the claimants urged the Court to enter judgment in their favour.

COURT’S DECISION

Two issues call for determination here: the one as to whether the claimants are the rightful persons to claim the benefits of Mr Ajayi Abayomi (Exhibit C4 is the discharge certificate of Mr Ajayi Abayomi in terms of his retirement from the 1st defendant having served from 1st December 1968 to 1st December 2003); and the other as to whether the claimants have shown to this Court how they came about the quantum of the sums they claim and under what law they make their said claims. All through the claimants’ final written address, counsel for the claimants kept referring to the Pension Reform Act (PRA) 2004. The PRA is an Act that commenced on 25th June 2004. Mr Ajayi Abayomi died on 8th January 2004. Could the PRA have applied to him? I do not think so. The law by Isaac Obieweubi v. Central Bank of Nigeria [2011] 7 NWLR (Pt. 1247) 465 at 495 is that the law in force or existing at the time a cause of action arose is the law applicable for determining the case. The claimants in the instant case are seeking for Mr Ajayi Abayomi’s gratuity and pension as at 8th January 2004 when he died. Exhibits C5 and C6 are respectively the medical certificate of cause of death and the certificate of death. The cause of action accordingly arose and relates as at 8th January 2004 i.e. before the PRA came into being. The reference by counsel to the claimants to the PRA is most probably because of section 99(1) of the PRA, which repealed inter alia the Pension Act 1990 and in section 99(3) provides that the repeal of the Pension Act shall not affect any additional fringe benefits, other than pension and gratuity enjoyable upon retirement by any person before the commencement of the PRA except as provided by the PRA.

The problem, however, is that all the sections of the PRA relied upon by counsel to the claimants bear little or no relationship whatsoever with the case of the claimants. For instance, the argument of the claimants’ counsel is that the entitlement of Mr Ajayi Abayomi must be computed under the Pay-As-You-Go pension scheme of the public service of the Federation being the applicable scheme at the time Mr Ajayi Abayomi retired on 1st December 2003 and thus exempted under section 5(1)(b) of the Pension Reform Act 2004. Here one would see that counsel to the claimants referred to section 5(1)(b) of the PRA. The unfortunate thing is that the Pension Reform Act No. 2 of 2004 does not have section 5(1)(b). It has only section 5(1), which provides that where an employee dies, his entitlements under the life insurance policy maintained under section 9(3) of the Act shall be paid to his retirement savings account. Section 9(3) referred to in section 5(1) talks of the maintenance of a life insurance policy by an employer. The instant case of the claimants is not a claim under a life insurance policy; as such the reference to section 5(1)(b) is inappropriate as it makes no sense at all.

Counsel to the claimants would proceed to argue that Mr Ajayi Abayomi’s entitlement must thus be calculated in accordance with section 46 of the Pension Reform Act 2004 particularly the Second Schedule made pursuant to section 5(2) of the Act, which provides pictorial table of the formula for computation of gratuity and pension. Once again, a look at the sections referred to here brings out the point I seek to make. Section 5 of the PRA deals with death of an employee. In section 5(2), the PRA provides that the pension fund administrator shall apply the amount paid under section 5(1) in accordance with section 4 of the Act in favor of the beneficiary under a will or the spouse and children of the deceased or in the absence of a wife and child, to the recorded next-of-kin or any person designated by him during his lifetime or in the absence of such designation, to any person appointed by the Probate Division as the administrator of the estate of the deceased. The amount paid under section 5(1), it must be remembered, is the amount from the life insurance policy, which is not the case of the claimants. Section 46 of the PRA on the other hand provides that as from the commencement of the PRA, pension funds and assets shall only be held by pension funds custodian licensed by the Commission under the Act. As can be seen, section 46 of the PRA has no bearing whatsoever with the claims of the claimants. And the Second Schedule to the PRA said by counsel to the claimants to be made pursuant to section 5(2) deals with supplementary provisions relating to the Commission. Once again, this has no bearing whatsoever with the claims of the claimants. As it is, therefore, the sections of the PRA that the claimants based their case on have actually nothing to do with the case of the claimants. So what law is counsel for the claimants really relying on?

The PRA by its very structure deals with contributory pension; and the claimants’ case is not that Mr Ajayi Abayomi contributed to any pension scheme. Section 8 of the PRA dealing with exemptions from the contributory pension scheme provides in subsection (1) that any employee who at the commencement of the PRA is entitled to retirement benefits under any pension scheme existing before the commencement of the PRA but has 3 or less years to retire, shall be exempted from the scheme. As can be seen, section 8(1) deals with employees still in service but have 3 or less years to retire. Mr Ajayi Abayomi was not an employee in the sense of section 8(1) of the PRA.

Leaving the PRA 2004, a look at the Pension Act Cap 346 LFN 1990 (assuming this is the Act that the counsel to the claimant actually meant to refer to) does not help the case of the claimants either. For instance, section 5(1) of the Pension Act 1990 provides that where an officer dies in service after the completion of the minimum period of qualifying service, there shall be paid to his legal personal representative or to any person designated by him during his lifetime as his survivor —

up to 31st March, 1978, a gratuity equal to his one year’s salary and if he is qualified for a pension, one year’s salary plus appropriate pension as if he had retired at the time of his death; and
as from 1st April, 1978 such pension and gratuity and pension as would have been payable to him if he had retired at the date of his death:

Provided that where an officer dies before completing the minimum qualifying period of ten years, his legal personal representative or survivor shall be paid his one year’s salary as death gratuity.

Section 5(2) then provides that any pension payable under section 5(1) shall be paid for a period expiring at the end of 5 years after his death but it shall be lawful for the total to be paid forthwith. As can be seen, section 5 of the Pension Act 1990 deals with an officer who dies in service. Mr Ajayi Abayomi did not die in service; as such section 5 of the Pension Act 1990 is inapplicable to him. Section 5(2), assuming it is of the Pension Act 1990 that counsel for the claimants relied upon, applies only in terms of pension payable under section 5(1) i.e. in respect of an employe who dies in service. The proviso to section 5(1)(b) of the Pension Act 1990 relates to an officer in service who dies before completing the minimum qualifying period of 10 years enjoined under section 5(1). The proviso accordingly does not relate to Mr Ajayi Abayomi because he was not in service when he died. The argument of the counsel to the claimants to the effect that the entitlement of Mr Ajayi Abayomi must be computed under the Pay-As-You-Go pension scheme of the public service of the Federation being the applicable scheme at the time Mr Ajayi Abayomi retired on 1st December 2003 and thus exempted under section 5(1)(b) of the Pension Reform Act 2004 is thus not sustainable and so is hereby rejected.

The claimants’ counsel referred to the Second Schedule made pursuant to section 5(2). The argument of counsel to the claimants was that Mr Ajayi Abayomi’s entitlement must be calculated in accordance with section 46 of the Pension Reform Act 2004 particularly the Second Schedule made pursuant to section 5(2) of the PRA. I indicated earlier that section 46 of the PRA deals with pension assets custodians and so has no bearing to the claimants’ case. Assuming it is the Pension Act 1990 that the counsel to the claimants meant, two points become pertinent: (a), the Pension Act 1990 does not have section 46; (b), that under the 1990 Pension Act, the Second Schedule was made pursuant to section 15(2), not 5(2), as the counsel to the claimants argued; and even at this, the Second Schedule to the 1990 Pension Act deals with organizations declared as public service under the Pension Act 1990. This of course has nothing to do with the claimants’ case. What comes close to the claimants’ case is section 11 of the Pension Act 1990, which provides that where an officer dies within 5 years after retirement, his next-of-kin or designated survivors shall continue to be paid, for a period expiring at the end of five years from the date of his retirement, the same pension which the deceased officer was receiving prior to his death but if the next-of-kin or designated survivor so elects, the balance of his pension at his death may be paid forthwith to the said next-of-kin or designated survivor.

The long and short of it is that from what I have said so far, it is not clear under what law the claimants base their case. The law is that it is the claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employee and his/her employer. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. The claimants have not succeeded in showing this Court the law that grants them the entitlement they presently claim.

Aside from not showing to this Court the law under which they claim, section 11 of the Pension Act 1990 talks of the pension the deceased was receiving prior to his death. What was the pension that Mr Ajayi Abayomi was receiving prior to his death on 8th January 2004? This Court was not told. How did the claimant even come about N2,125,005.10 as gratuity of Ajayi Abayomi and N1,487,503.50 as his accrued pension? For gratuity, all the claimants said is that it must be calculated on the basis of 300% and not 100%. See paragraph 16 of the amended statement of facts. Where did the claimants get the 300% from? They did not feel this Court. For accrued pension, all the claimant said is that this is 70% of gratuity. See paragraphs 17 and 18 of the amended statement of facts. Where did they get this from? Once again, the Court was not told.

Order 11 of the National Industrial Court (Civil Procedure) Rules 2017 governs the filing of a suit for the entitlement of a deceased employee who dies intestate. By Rule 1 of this Order, the claimant(s) can claim if named as the next of kin or beneficiary of the entitlement by the deceased employee in his/her employment bio-data form, a certified true copy (CTC) of which the claimant must provide or compel the employer to produce. Also to be produced by the claimant(s) is Letters of Administration obtained from the appropriate Probate Registry of a High Court or an order from the Customary Court of Appeal or Sharia Court of Appeal. In the instant case, what we have is Exhibit C7, the Letters of Administration, but not the employment bio-data form of the claimant; and there is no application, as enjoined by Rule 2, from the claimants to this Court that the employer of Mr Ajayi Abayomi be compelled to produce the employment bio-data form of the deceased to enable the claimants the use of a copy of the employment bio-data form as enjoined under Rule 3. The case of the claimants is that the next of kin named by the deceased is actually the father of the deceased who himself is deceased. This naturally approximates to Mr Ajayi Abayomi not naming any next of kin. In this scenario, Rule 4 provides that the claimants can in addition to any other document attach the Letters of Administration or an order of the Customary Court of Appeal or a Sharia Court of Appeal. This is what the claimants have done on the instant case by supplying Exhibit C7, which then suffices to entitle the claimants not just to bring this action but to collect the said entitlement if they prove same. By Exhibit C7, therefore, the claimants have the competence to be the claimants in this suit and so are the rightful persons to claim the benefits of Mr Ajayi Abayomi once they can prove same; and I so find hold.

However, Exhibit C7, the Letters of Administration (without a will), was granted the claimants in respect “of the personal property of Ajayi Abayomi”. It was granted on 16th November 2007. At the second page of the Letters of Administration, the personal property declared and for which the Letters of Administration was granted was described as Gratuity for one year at 100%, which was put at N708,335.04. The claimants in the instant case are using Exhibit C7 as the basis upon which they are claiming N2,125,005.10 as gratuity. The claimants referred to Exhibit C8 (Bank Certificate) which described the N708,335.04 as rough estimate for one year at 100% to explain the claim for N2,125,005.10. I do not think that this is correct given that Exhibit C7 was very specific in stating N708,335.04 without the words “rough estimate” preceding it.

The claimants referred to Exhibit C12, a First Bank of Nigeria Plc Individual Accounts Opening Form of Abayomi Ajayi, as evidencing the fact that the 1st claimant is his next of kin as well as his wife having filled as such in the appropriate column of the form. The unfortunate thing for the claimants is that Abayomi Ajayi signed it but left the column for date blank. In other words, the said form is undated. The law is that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful; as such it has no evidential value. See Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47,Sarai v. Haruna [2008] 23 WRN 130, Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). Exhibit C12 accordingly has no evidential value and so is discountenanced for purposes of this judgment. The claimant also referred to Exhibit C16, Mr Ajayi Abayomi’s National Identity card, which has the 1st claimant as his next of kin and wife. A look at Exhibit C16, however shows the name of the 1st claimant under “Particulars of Next of Kin” as the next of kin. However, there is no entry of the 1st claimant’s name as wife of Ajayi Abayomi. In other words, Exhibit C16 makes no reference whatsoever to the 1st claimant as the wife of Ajayi Abayomi. I so find. Exhibit C17 is a picture of a man and a woman. It has no description whosoever of who the man and woman are. It thus has no evidential value. I so hold. And Exhibit C18 is an identification card of the 1st claimant issued by Lagos State Government Residents Registration Agency. Its utility in this suit is not disclosed by the claimants.

As it is, I am not satisfied that the claimants proved their case in terms of the quantum of their claims. Since this case is one for monetary sums, it accordingly fails and is hereby dismissed.