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SULEIMAN OBA ABDULRAHAMAN VS USMANU DANFODIO

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

 

BEFORE HONOURABLE JUSTICE K.D.DAMULAK

ON THURSDAY THE 7TH DAY JUNE, 2018

SUIT NO.NICN/SK/03/2017

BETWEEN

SULEIMAN OBA ABDULRAHAMAN

CLAIMANT

AND

 USMANU DANFODIO UNIVERSITY TEACHING

HOSPITAL SOKOTO

DEFENDANT

APPEARANCES;

 Mohammed Adeleke Esq. with E.N. Longbis Esq. for the Claimant.

Kelechi O. Ogbonna Esq. with Y.Y. Balarabe Esq. and Y.J. Salawu Esq. for the Defendant.

JUDGMENT

  1. INTRODUCTION

This judgment relates to a claim of underpayment of pension. The Claimant filed a complaint against the defendant in this court on 4/12/2017.The complaint is accompanied by all the necessary processes required by the rules of this court.  The claimant prays for the following reliefs;

  1. An Order directing the defendant to pay the claimant’s pension on Grade level 12 step 11.
  2. An Order directing the defendant to computerize (sic) the number of years of service of the claimant which is twenty nine (29) years and seven (7) months (approximately 30 years of service).
  3. An Order directing the defendant to pay arrears of pensions due to the claimant on Grade level 12 step 11 being the level the claimant maintained until his appointment was terminated.
  4. General damage of ten million Naira (10,000,000.00 )
  5.  Cost of this action.

The defendant, by a motion dated 24/1/2018 and granted on 29/1/2018, filed its statement of defence accompanied by all the necessary processes required by the rules of this court. On the same 24/1/2018, the defendant also filed a preliminary objection to the competence of the suit on the ground that the suit was statute barred. In a considered ruling dated 21/2/2018, this court found that the suit has two separable causes of action and the cause of action for computation of years of service was statute barred and struck out remaining the cause of action for underpayment of monthly pension which went into hearing and this judgment is in respect of that head of claim only.

  1. FACTS OF THE CASE.

The claimant was a staff of the defendant, he was retired in 1997 and was paid gratuity and is being paid pension by the defendant. The claimant retired as a principal nursing officer on grade level 12. He claims that the defendant is paying him pension of a grade 5 retiree instead of grade level 12.

  1. CASE OF THE CLAIMANT

The claimant testified for himself as a sole witness on 15/3/2018 in line with the pleadings in the statement of facts as follows;

That he was employed as a student nursing officer by the then Northern Region of Nigeria on 1/11/1967, he proceeded on a preliminary training for six months in Kano on 1/11/1967 and a further 3 years training in Katsina from 1/5/1968 to 1/6/1971. He was promoted to grade level 12 step 1 on 1/4/1987 and stagnated at that level 12 until on 10/6/ 1997 when his employment was terminated at grade level 12 step11 and he was paid a gratuity of N210,000.00 after serving for almost 30 years. That his appointment, having been terminated while he was a principal nursing officer, the pension being paid to him falls short of the amount due to him. He complained to the Defendant through series of correspondence such as his letter dated the 4th day of February 2010, another correspondence in March 2016, and his letter through his solicitors dated 21st April 2016. And he can also identify the correspondence from the defendant to him. The Defendant used to pay and continued paying his pension on Grade Level 05 as against Grade Level 12 Step 11 being the level he maintained up till the time his appointment was prematurely terminated. That the defendant failed to or rather neglected to send his name to Pension Transitional Arrangement Directorate (PTAD) which is the body responsible for payment of senior staff pension in accordance with the Federal Civil Service Rules. That series of correspondence are being sent to the Defendant to correct and normalize the pension that ought to be paid to him, but the Defendant flagrantly refused to comply.

The claimant tendered the following documents which were admitted in evidence and marked as follows;

  1. His appointment letter dated 11/7/1970.                                   – Exhibit SOA 1.
  2. His notification of appointment dated 21/1/ 1987.                    – Exhibit SOA 2.
  3. His removal letter dated 5/6/1997.                                            – Exhibit SOA 3.
  4. Defendant’s response letter dated 30/3/2016.                            -Exhibit SOA 4.
  5. His complaint letter to PTAD dated 29/12/2016.                      -Exhibit SOA  5.
  6. Computation of Gratuity and pension dated 25/9/1997.            -Exhibit SOA  6.
  7. Promotion from student nurse to staff nurse dated 13/10/1971.- Exhibit SOA 7.

Under cross examination, the claimant testified as follows;

He was promoted to grade 12 step 1 with effect from 1/4/1986. He cannot remember the basic salary. The date on exhibit SOA1 is 11/7/1970 but the appointment is with effect from 1/5/1968. He maintains that he was employed on 1/11/1967.The parameters for calculating pension and gratuity is from the first day of employment to the day of retirement. The place of work where a junior staff worked is responsible for paying his pension. In the case of a senior staff, it is the Pension Transitional Arrangement Directorate (PTAD) Abuja that pays the pension and that he retired as a senior staff.

  1. CASE OF THE DEFENDANT

One Jibril Mohammad Marafa testified for the defendant as a sole witness on 11/4/2018 in line with the pleadings in the statement of defence as follows;

The claimant was a former employee of the defendant and he retired as a nurse on 31/5/1997. The claimant was promoted to grade level 12 step 1 on 1/4/1986. Claimant’s first appointment was with effect from 1/5/1968 and not 1/11/1967. The claimant was paid a sum of N271, 145, 88K as gratuity. The pension of the claimant was paid to him based on Elongated University Salary Scale (EUSS) 11/8 which was his position when he was retired. This witness tendered a payment voucher for the payment of claimant’s gratuity of N194,115.80  in the name of claimant’s gratuity computation form which was admitted in evidence and marked as exhibit JMM8.

Under cross examination, this witness testified as follows;

He has been working with the defendant for seven years. He knows everything pertaining to the case. The appointment date on exhibit SOA1 is 1/5/1968. He does not know whether the claimant had completed his 3 years course as at 1/6/1971. From 1986 to 1997 the claimant remained on grade level 12. As at 1997, the claimant was on EUSS 11/8 because the salary scale had been changed from grade level to EUSS. The court asked the witness if he could convert EUSS 11/8 to grade level and the witness said it was equivalent of grade level 12 step 8.

  1. SUBMISSIONS OF DEFENDANT’S COUNSEL.

Learned counsel for the defendant submitted that exhibit SOA 4 was struck out from the record of this court vide the ruling of 21/2/2018 and so same was erroneously admitted in evidence and so should be expunged. Counsel relied on FASINA &ANOR V OGUN KAYODE &3 ORS (2005)31 WRN 172 at 190 -191. Counsel submitted that cases are decided on the facts and evidence adduced in proving the facts. That he who asserts must proof. It is only when the claimant discharges the burden of proof placed on him that the burden shifts to the defendant. The law expects the claimant to succeed on the strength of his own case. Counsel then reviewed the pleadings and evidence from both sides and submitted that facts admitted need no further proof, AKPAN V UMOH(1995)7SC (part11)13 at 25. Counsel submitted further that since the claimant has admitted that it is PTAD that pays his pension, having retired as a senior staff, claimant’s claim against the defendant for underpayment of pension was not supported by evidence and ought in the circumstance to be struck out. Furthermore that claimant did not state the amount of pension of a grade level 5 pensioner, and that of a grade level 12 pensioner, neither did claimant proof how much he is being paid as pension. Counsel submitted that all the claims of the claimant have not been proved, they ought to fail and he urged the court to so hold.

  1. SUBMISSION OF CLAIMANT’S COUNSEL

Claimant’s counsel submitted that facts admitted need no further proof, and that the defendant has admitted paragraphs 1-8 of the statement of facts. That the fact that claimant is being paid pension at grade level 5 is not disproved. That the defendant admitted that it is the one responsible for the payment of pension to the claimant. That claimant established his case by preponderance of evidence through oral and documentary evidence. Reliance was placed on Section 134 Evidence Act 2011 and ETIM V CLASEN VENTURE (2011)45 WRN 79 at 84.

Counsel submitted further that the defendant ought to have shown the evidence that claimant’s pension is being paid on the EUSS 11/8 and how much is being paid to the claimant as well as how it converted grade level 12 step 8 to EUSS11/8.

Counsel continued that the claimant’s claim is not that PTAT is responsible for paying his pension but that it was PTAT that is supposed to be paying him as a senior staff retiree as against the grade level 5 pension being paid to him by the defendant.

Counsel submitted that the amount of pension being paid to the claimant and the amount which ought to be paid to the claimant was clearly stated at the last paragraph on page 2 of exhibit SOA 5.

He urged the court to find that claimant has established that he is being underpaid his due pension.

Counsel then urged the court to grant all the claimant’s reliefs.

Before urging the court to grant all the reliefs claimed by the claimant, counsel submitted;

“on the second relief as to the computation of years of service, we leave this at the discretion of the honourable court”.

It is to be observed that by reason of the ruling of this court dated 21/2/2018, that issue is no longer before the court to exercise any discretion over same as doing so will amount to this court sitting on appeal over its own decision and I have no jurisdiction to do so.

  1.  ISSUES FOR DETERMINATION.

Both the claimant and defendant counsel submitted the same issue for determination as follows;

“Whether from the state of pleadings and evidence adduced in support thereof, the claimant has proved his case on the preponderance of evidence to be entitled to all or any of the reliefs sought before this honorable court”.

In view of the remaining claim before the court, this court is of the view that the issue be adjusted to read thus;

“Whether the claimant has proven that the amount of pension being paid to him by the defendant is less than the amount of pension that is due to him from the defendant.”

 

 

  1. COURT DECISION.

Learned counsel for the defendant submitted that exhibit SOA 4 was struck out from the record of this court vide the ruling of 21/2/2018 and so same was erroneously admitted in evidence and so should be expunged.

In the ruling of this court dated 21/2/2018, this court held in relation to claimants claim for the calculation of his years of service at page 14 of the said ruling thus;

“This cause of action does not fall within any of the exceptions to the application of the limitation law. The cause of action accrued not later than 2015.This action was filed on 4/12/2017, years after the cause of action accrued. It is statute barred by reason of the provision of the Public Officers Protection Act. I so find and I so hold”.

On the 15/3/2018 when the claimant testified, the defendants counsel objected to the admissibility of exhibit SOA4, which was tendered along with two other documents, on the ground that it was meant to establish a case for the calculation of claimant’s years of service which claim this court struck out on 21/2/2018. Claimants counsel responded that the documents were meant to establish underpayment of pension and this court ruled rejecting the other two documents  and admitted this document thus;

“The contention of the defendant’s counsel is that the documents sought to be tendered relate to the computation of years of service. The claimant counsel contended that they are sought to be tendered in proof of underpayment. This being the case, the defendant can only object when at address stage, claimant’s counsel seeks to rely on them to establish a claim for computation of years of service. The objection on this ground fails and is overruled.”

The defendant’s counsel made this submission in his final written address, he did not wait to see what use the claimant will put that exhibit to but has gone ahead to make his submission as above. The claimant counsel did not, in his final written address, rely on the said exhibit in any way. I think the submission of learned counsel for the defendant is out of place.

I have also read the entire ruling of 21/2/ 2018, the contention that exhibit SOA 4 was struck out from the record of this court vide the ruling of 21/2/2018 is baseless in law and in fact.

By the ruling of this court dated 21/2/2018, the second claim for computation of claimant’s years of service was found to be statute barred and struck out, only the claim for underpayment of pension is still in issue and that is what this judgment shall consider.

The claimant averred and testified that he retired on grade level 12 step 11. The defendant on the other hand averred and testified thus;

“The pension of the claimant was paid to him based on Elongated University Salary Scale (EUSS) 11/8 which was his position when he was retired”.

Learned claimant’s counsel submitted in his final written address thus;

“the defendant ought to have shown the evidence that claimant’s pension is being paid on the EUSS 11/8 and how much is being paid to the claimant as well as how it converted grade level 12 step 8 to EUSS11/8”.

The only evidence before this court concerning the grade level of the claimant are exhibits SOA 2 and SOA6. From exhibit SOA2, the claimant was promoted to grade level 12 step 1. There is understandably no evidence of increment in steps. From claimant’s exhibit SOA6, claimant’s computation of gratuity and pension, the claimant retired on grade EUSS 11/8, it is the only documented evidence available. The explanation of DW1 to this, under cross examination by claimant’s counsel is;

“As at 1997, the claimant was on EUSS 11/8 because the salary scale had been changed from grade level to EUSS”.

 The court asked the witness if he could convert EUSS 11/8 to grade level and the witness said it was equivalent of grade level 12 step 8.

In the absence of any contrary evidence, there is no ground for the claimant to insist that he retired at grade level 12 step 11 and not EUSS 11/8.

I find and hold that the claimant retired at EUSS 11/8 which is equivalent to grade level 12 step 8.

It is also the submission of learned claimant’s counsel that the claimant proved his case by oral and documentary evidence and that the fact that claimant is being paid pension on grade level 5 is not disproved.

Now, the law, as rightly submitted by defendant’s counsel, is that the claimant must first discharge the burden of proof placed on him before the burden to disproof will shift to the defendant. See Section 136(1) of the Evidence Act 2011.

By the authority of CBN V AMAO &2 ORS (2015)5 ACELR P1 AT P24;  (2010) v0l. 5-7 (PT.IV) MJSC P.1, the claimant will succeed if he proves that the defendant has been paying him as pension an amount less than his approved, agreed or reviewed pension.

The pleading of the claimant in paragraphs 10 and 12 and the evidence of claimant in paragraphs 15 and 16 of claimant’s witness statement on oath is that he was terminated as a principal nursing officer but the gratuity and pension being paid to him fall short of the amount due to him. That the defendant used to pay and continued paying to him pension on grade level 5 as against grade level 12 step 11.

The claimant ought to and is under a duty to prove to the court what is the pension of a grade level 5 pensioner and how much is he being paid. He ought to show the court how much is the pension of a grade level 12 pensioner of his cadre and how did he come about that figure. The claimant ought to lead evidence as to what is the amount of pension that is due to him. None of these was done by the pleadings and the evidence of the claimant.

What did the claimant mean by “the amount due” to him? Is it the amount that was approved, agreed or reviewed as his pension or is it an amount higher than what was approved, agreed or reviewed as his pension? In other words, this underpayment, is it in terms of the defendant paying him less than what was approved or in terms of the defendant approving and paying an amount less than what ought to have been approved? When and how did the claimant get to know about this underpayment since he has been on pension since 1997? Going by the state of pleadings and evidence before the court, the claimant has not answered these questions. This makes his pleading short of what is required of the claimant.

If exhibit SOA6 dated 25/9/1997, tendered by the claimant is anything to go by, this is what it provides in paragraph 3;

  1. CALCULATION OF THE FINAL ANNUAL EMOLUMENTS

(a) Annual Basic Salary——————- —-32960.00

(b) Annual Housing Allowance ————- 36915.20

(c)  Annual Transport Allowance———— 5846.88

(d) Annual Meals subsidy          ————– 828.00

(e) Annual Utility Allowance —————— 480.00

(f) Annual Emolument of Domestic Servants   x x x

(g)———————————————————

Total Terminal Annual Emolument             N77,030.08

FINAL PENSION EMOLUMENTS

Gratuity

252 %   x    N77030.08   =  N194115.07

Pension

            68 %   x    N77030.08   =  N52380.45

Now it is not clear from the pleading and evidence of the claimant whether it is the sum of N52,380.45 that is what is due to him but he is not being paid that amount, or is it that he is entitled to a higher amount than N52,380.08. To prove either, the claimant must show how much he is being paid short of N52, 280.45 or show how much he was actually entitled to, by what calculation or criteria, and how much he is being paid. Claimant did none of these. His claim is not clear and precise and lacks the criteria by which any fact therein is to be tested or measured and he cannot obtain judgment in his favour that way. See AMOSUN V. INEC (2010) LPELR-4943. CA; (2007) ALL FWLR (PT.391) PG. 1712 and UWAKWE UGWU & ORS v. CHRISTOPHER ATTAH & ORS (2016) LPELR-41512(CA) where the court held;

“It is elementary principle of law of pleadings that facts must be concisely, precisely, and accurately pleaded. Pleadings should not give any room for doubt or speculation as to its real content. Statement of Claim must clearly state the facts to be relied upon at the hearing and not embark on any rigmarole. Where facts in statement of claim are not precisely stated, a defendant will be in some difficulty to respond directly or precisely to the averments. So too the statement of defence as it relates to a reply. See Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81.”

See also EMMANUEL DEBAYO V. DOHERTY (2009) 1 NWLR (Pt.1123) P. 24, paras. A-B where the court of appeal held;
“Every  relief must be clear, precise and quantifiable. It must be devoid of speculation”.

The claimant’s counsel submitted that the amount due and which ought to be paid to the claimant was clearly stated at the last paragraph on page 2 of exhibit SOA 5.

It is true that paragraphs 4 and 1 on the second and third pages of exhibit SOA5 read as follows;

“By the time my employment was terminated, I ought to have entitle to about four hundred thousand naira only (400,000.00) as monthly pension but the reverse was the case because only fifty six thousand naira only (N56,000.00) was paid to me.

It is in view of the foregoing, I hereby pray that you use your good office to come to my aid by intervene and direct that the proper computation of my pension be made and all my entitlements be paid to me so as to remedy the injustice done to me by the management board of Usmanu Danfodio Teaching Hospital Sokoto”.

Exhibit SOA5 is the claimant’s petition or complain letter written to PTAT, the assertion about what he is being paid and what he ought to be paid is there, the basis that he ought to be paid N400,000.00 as monthly pension is not there. But this not yet the problem, the problem is that the allegation in that letter was not eventually translated into any paragraph of the pleading and the witness statement on oath. Exhibit SOA 5 was pleaded as evidence that the defendant failed to send the name of the claimant to PTAT and he wrote a complaint to PTAT concerning it, the document was not pleaded and tendered as a proof of what claimant is being paid as against what he ought to be paid.

Furthermore, a mere pleading and testimony that claimant is being paid a monthly pension of N56, 000 as against N400.000.00 without more would not have established the claim. The claimant must show further how he arrived at the amount of N400, 000.00 that ought to be paid to him as monthly pension. Exhibit SOA5 is proof that the claimant complained to PTAT but it does not and cannot translate into documentary proof of the claim before the court.

 The law is settled that for a claimant to be entitled to the reliefs claimed, he must plead and proof facts enough to warrant a judgment in his favour. See   AYENI V. ADESINA (2007) 7 NWLR (PT. 1033) 233 AT 264 PARAS. A – B  where the court held as follows;

“It is trite law that who asserts or claims a relief must prove it by credible admissible evidence, and judgment for and grant of such claims must be based on legal evidence of the highest probative value and weight. See A.G, Oyo State v. Fair lakes Hotels Ltd. (No. 2) (1989) 5 NWLR (Pt. 121) 255”.

See also1.  OBASI BROS. CO. LTD. V. M.B.A.S. LTD. (2005) 9 NWLR (PT.929)117

  1. ISHOLA VS UBN LTD (2005) ALL FWLR (PT.258) 1202 AT 1213
  2. MOGAJI & ORS V. ODOFIN & ORS (1978) 4 SC 91.
  3. EKPENYONG & ORS V. NYONG & ORS. (1975) 2 SC 71.
  4. ASEIMO V. AMOS (1975) 2 SC 57

I find that the claimant did not proof this head of claim against the defendant.

Another important feature of this case is that the claimant pleaded in paragraph 13 of the statement of facts and testified in paragraph 17 of his witness statement on oath as follows;

  1. “That the defendant failed to or rather neglected to send my name to Pension Transitional Arrangement Directorate (PTAD) which is the body responsible for payment of senior staffs pension in accordance with the Federal Civil Service Rules”.

Testifying under cross examination, the claimant stated thus;

“The place of work where a junior staff worked is responsible for paying his pension. In the case of a senior staff, it is the Pension Transitional Arrangement Directorate (PTAD) Abuja that pays the pension. I retired as a senior staff”.

The claimant by his pleading and evidence as well as his counsel final written address has shown that it is the said PTAD that ought to pay his pension as a senior staff in accordance with the Federal Civil Service Rules. The said Pension Transitional Arrangement Directorate (PTAD) is not a party to this suit and no order can be made against it. See A.A. MAIKORI V. MOHAMMED DABO LERE & ORS. (1992) 3 NWLR (PT.231) 525 and ANYA V. IYAYI (1988) 3 NWLR (PT.82), 359 at.26

 In the circumstance of this case, neither can this court make an order for the defendant to pay to the claimant a senior officer’s pension which it has no duty to do, going by claimant’s pleading and evidence.

On the whole, the claim of the claimant fails in its entirety and same is hereby dismissed.

I make no order as to cost.

Judgment is read and entered accordingly.

………………………………..

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN, SOKOTO

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