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National Industrial Court

Mr. Gabriel O. Obahiagbonl & 28 ORS -VS- The President, Federal

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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: JULY 9, 2019

 

SUIT NO. NIC/LA/171/2011

 

BETWEEN

  1. Mr Gabriel O.Obahiagbon
  2. Mr T.O. Ogundana
  3. Mr O. Olugbekan
  4. Mr F.A. Oshiyemi
  5. Mr G.A Sobajo
  6. Mr M.B. Ayorinde
  7. Mrs S.O. Osikoya
  8. Mrs S.O. Adewakun
  9. Mr S.A. Adu
  10. Mr Agbolagorite
  11. Mr N.A. Alli
  12. Mr S.O. Gbadamosi
  13. Mr J.O. Adenine
  14. Ms R.A. Favored
  15. Mr H.O. Oluwashemire
  16. Mr D.S. Osho
  17. Mr S.A. Shafe
  18. Mr J. Shiyanbola
  19. Mr T.I. Akapo
  20. Mr A. Awoneye
  21. Mr E.A. Olofinbiyi
  22. Mr S.O. Aluko
  23. Mr M.O.K. Iginla
  24. Mrs P.A. Chijindu
  25. Mr J.I. Omolodun
  26. Mr O. Oni
  27. Mrs F.O. Oladeinde
  28. Mrs S.B. Gbadamosi
  29. Mr J.A. Igbene

(2nd – 29th Plaintiffs suing by their Attorney,

Mr Gabriel O. Obahiagbon)                              –             Claimants

 

AND

  1. The President, Federal Republic of Nigeria
  2. The Honourable Minister of Finance
  3. The HonourableMinister for Establishment and Management Services
  4. The Head of Service of the Federation
  5. The Accountant General of the Federation
  6. The Director-General, National Pension Commission
  7. Pension Transition Arrangement Directorate
  8. The Honourable Attorney-General and

Minister for Justice of the Federation                                                          -Defendants

 

REPRESENTATION

Adekunle Oyesanya SAN, with Adekunle Benedict, Ademola Aladetuyi, Miss Toluwase Bankole, Khoma Wenike-Briggs, Ms Tobi Adeyinka and Ms Ibukun Johnson,  for the claimant.

Elope J. Okoye, for the 1st and 8th defendants.

Chinedu Achumie, for the 2nd defendant.

Celestine Okorie Evoke, for the 3rd and 4th defendants.

Nnanna O. Ibom, for the 5th defendant.

  1. G. Alala, with Mrs E. E. Aayinbuomwan and Anene. A. Mabuechesi, for the 6th defendant.

Amos Nenfort, with Miss Adesola Olupitan, for the 7th defendant.

 

JUDGMENT

INTRODUCTION

  1. This case was transferred to this Court and started de novo upon the transfer of Hon. Justice Kola-Olalere who was hearing the matter.The claimants (who are retirees and pensioners of the Federal Civil Service of Nigeria) filed this suit on 1st June 2011 against the President of the Federal Republic of Nigeria and seven (7) others. By an amended complaint dated 27th June 2013 but filed on 28th June 2013, the claimants are praying for the following reliefs:
  • A declaration that the defendants, as functionaries and representatives of the Federal Government of Nigeria are in flagrant violation and contravention of their statutory duties under the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the African Charter on Human and People’s Rights regarding pension matters when they failed to pay the pension of the plaintiffs as and when due and have thereby caused untold suffering and hardship to the plaintiffs all of whom are elderly and aged people.
  • A declaration that the 5th defendant as the Chief Accounting and Investment Officer of the Federal Government of Nigeria has failed to perform his statutory function under the Finance (Control and Management) Act by reason of his failure to invest the deferred wages of the plaintiff and his donors, thus depriving them of the necessary investment income and the necessary funds from which pension could be paid as and when due.
  • A declaration that the defendants’ failure to make pension revision every five years is a flagrant violation of the 1999 Constitution of the Federal Republic of Nigeria, as amended.
  • A declaration that the defendants’ actions in attaching lower rates to pension revisions as against higher rates increases in existing salaries is a flagrant violation of the 1999 Constitution of the Federal Republic of Nigeria and other relevant laws.
  • An order that the aborted investment income on the failed investment on the capital base of each of the claimants, as particularized hereunder be paid over to them respectively together with the accruing interest at the rate of 20% per annum from date of filling till judgment and thereafter at 10% per annum pending final liquidation of same. [The Particulars of Aborted Invested Income are then Given.]
  • An order that the capital base hereinbefore unrecognized in the accounts of the defendants be formally recognized as claimants’ pension fund deposits and the amount therein be revised upward whenever salary are made.
  • An order directing the defendants to pay the claimants the shortfalls in the increases in pensions which they were deprived of in the course of existing salary reviews over the year as particularized hereunder. [The Particulars of Shortfalls in Pension Revisions are then Given.]
  • General, exemplary and/or aggravated damages in the sum of N1,000,000,000. (One Billion Naira) for the defendants’ willful failure, neglect and/or refusal to pay the claimants their respective pensions as and when due and for failure to properly perform their functions and duties as regards pension matters under the various laws regulating pensions in Nigeria thus causing untold hardship and suffering to the claimant and his donors.

 

  1. The defendants filed their respective statements of defence to which the claimants filed their respective replies.

 

  1. Her Ladyship Kola-Olalere J of this Court had granted the claimants’ application to be represented by the 1st claimantwho is also their one and only witness. Powers of attorney were donated tothe 1st claimant by the other claimants i.e. Exhibits GO-1A to GO-1V. At the trial, therefore, the 1st claimant testified for the claimants as CW and also tendered a bundle of documents with an index annexed to the first page consisting of the following:
  • Powers of Attorney donated by the other claimants to the 1st Claimant – Exhibits GO-1A- GO-1V.
  • The Pension Identity Cards of the Claimants- Exhibits GO-2A- GO2X.
  • Government Circulars and letters- Exhibits GO-3A- GO3I.
  • Statement of Investment Income Aborted prepared by the 1st claimant- Exhibits GO-4A- GO-4X.
  • Claimants’ Payment Record Analysis- Exhibits GO-5A- GO5X.
  • Economic Loss Consequential to no funding- Exhibits GO-6A- GO6X.
  • Defendants’ Programme for reducing Pension Liability- Exhibits GO-7A- GO7X.
  • Summary of Claims- Exhibit GO-8.
  • Udoji Award Main Report of the Public Service Review Commission- Exhibit GO-9.
  • Updated Summary of Claims- Exhibits GO-10A- GO10C .

 

  1. None of the defendants called any witness although they each cross-examined CW when he testified for the claimants. Therefore, the only evidence for evaluation in this case is that of CW. A defendant is not bound by law to call a witness to establish his defence, and so can rely on the claimant’s case. See Mobil Prod. (Nig.) Unload & anor v. Monokpo& anor[2003] LPELR-1886(SC); [2003] 18 NWLR (Pt. 852)346 and Michael v. Access Bank [2017] LPELR-41981(CA). At the close of trial, parties filed their respective final written addresses. The claimants’ final written address was filed on 11th March 2019. The 1st and 8th defendants filed theirs on 10th April 2019. The 2nd defendant filed his on 2nd April 2019. The 3rd and 4th defendants filed theirs on 18th March 2019. The 5th defendant filed his on 15th March 2019. The 6th defendant filed his on 19th March 2019. And the 7th defendant filed its own on 5th February 2019. The claimants filed four sets of reply on points of law. The first was in reply to the final written address of the 1st and 8th defendants. This was filed on 23rd April 2019. The second is in reply to the address of the 2nd defendant. This was filed on 30th April 2019. The third is in reply to the respective addresses of the 3rd and 4th defendants, the 5th defendant, and the 6th defendant. This was field on 27th March 2019. The fourth is the reply to the address of the 7th defendant. This was filed on 11th March 2019.

 

THE CASE BEFORE THE COURT

  1. The claimants are all pensioners under the non-contributory scheme who retired from the Civil Service at various times between 1981 and 2002 from the Federal Civil Service in one capacity or the other as pleaded in paragraphs 2 and 3 of their amended statement of claim. They tendered their respective Pension Identity Cards as Exhibits GO-2A- GO2X. That the fact of their being pensioners was also admitted by the 7th defendant (who should know) in paragraph 2 of its statement of defence dated 19th May 2016 where it stated as follows: “The 7th Defendant admits paragraphs 2 and 3 of the Claimants’ statement of facts only to the extent that Claimants 1,2,3,4,6,7,8,10,11,12,13,14,15,16,17,18, 20, 22, 23, 24, 25, 26, 27 and 28 are on its pension payroll”. Accordingly, that their case can be encapsulated in four compartments simply as follows:

(1) That the defendants failed to pay the pension of some of the claimants as and when due and as at the time they filed this action in 2011, some of them were even owed pension for as long as between two to five years. In the course of the case, the 3rd and 4th defendants acknowledged and admitted this fact and cleared the said arrears except for the 5th claimant who is still being owed till date. These facts are partly reflected in paragraph 20 of the amended statement of claim as well as the proceedings of this Court on 11/12/2012, 11/12/2013, 17/4/2013 and 3/6/2013, respectively.

 

(2) That the defendants are in flagrant violation of the Constitution because they have either failed to review pensions upwards every five years or have failed to review pension correspondingly with salaries whenever there was an increase in salaries of workers in the Civil Service. These facts are covered by paragraphs 16, and 17(d) of the amended statement of claim.

 

(3) That even when pensions were being paid, the defendants were short-paying the claimants in that the quantum specified by law i.e. the Pension Act 2004 was not being paid; as such, the claimants are being owed pension short-falls for those years. These facts are covered by paragraphs 20 to 28 of the amended statement of claim.

 

(4) That while in service the claimants had several undeclared amounts held back (in a scheme dubbed “non-contributory”) from their negotiated wages by the defendants and lodged in the Consolidated Revenue Fund (CRF) for pension payment in future. The claimants stated that their pension scheme was called “non-contributory” such that the salary structure published from time to time reflected only the Take Home Pay (THP) of the affected civil servant without revealing their contribution and the Federal Government contribution. The claimants thus contended that the 5th defendant,as the Chief Accounting and Investment Officer of the Federal Government of Nigeria, had an implied obligation in law under sections 9 and 10 of the Finance (Control and Management) Act Cap F28 LFN 2004 to invest on behalf of each of the claimants, as indeed with all Public Servants, from the withheld part of their salaries while they were in employment such that the invested sum could have yielded income from accrued interest which would have formed a capital base for each of the pensioners, thus making a pool of funds available from which pension would have been paid from time to time instead of Government making it a budgetary matter every year as is the case at present, with the effect that pension is not paid as and when due because Government does not readily have the funds most of the time. This fact is covered by paragraphs 11, 12, 13, 15, 29, 30 and 34 of the amended statement of claim and it was specifically denied by the 5th defendant in paragraph 10 of his amended statement of defence dated 28th October 2013.

 

  1. To the defendants, parties had at a time agreed to settle the matter out of court and this led to the payment of the pension arrears of the claimants and the restoration of their pension which they have been receiving monthly till without any delay whatsoever; and upon the resolution of the reliefs bothering on non-payment of pension, the claimants insisted on pursuing the matter hence the Court on 3rd June 2013, struck out the reliefs relating to arrears and non-payment of pension leaving the issues just enumerated to go to trial. That one agreed fact, therefore, is that the claimants have been paid their pension arrears and are receiving monthly pensions as and when due.

 

THE SUBMISSIONS OF THE CLAIMANTS

  1. The claimants submitted five issues for determination:
  • Whether or not the defendants’ failure to pay the pension of some of the claimants as and when due violated the provisions of section 173(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
  • Whether or not the defendants violated the provisions of section 173(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) when they failed to review pensions every five years or together with Federal Civil Service Salary.
  • Whether or not the defendants short-paid the claimants contrary to law at various times between 1994 and 2010 and if so whether or not the claimants are entitled to the payment of the said shortfalls.
  • Whether or not the 5th defendant had a duty in law to make investment in respect of a part of the salaries of the claimants while they were in service and if so, whether or not the claimants are entitled to the reliefs sought as a result of the 5th defendant’s admitted failure in that regard.
  • Whether or not as a result of these infractions of the Constitution and the laws regulating pensions, claimants are entitled to general, exemplary and/or aggravated damages for the defendants’ violations of the sacrosanct sections of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the African Charter on Human and People’s Rights as well as the Pension Reform Act 2004.

 

  1. On issue (1), the claimants submitted that the first part which they brought to Court and which touched on this issue originally was that their monthly pension was not paid as and when due such that at the time they filed this action in 2011, some of them were being owed pension arrears for as much as between two (2) to five (5) years, an act that violated section 173(1) and (2) of the 1999 Constitution, which stipulates as follows:

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

(2) Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage…

That in the course of proceedings, the 3rd and 4th defendants, in particular, looked into the complaints on arrears of pension and settled same by paying off all the arrears that were owed and have continued to pay from month to month except for the 5th claimant who is now being owed monthly pension arrears from November 2012 to March 2016. That the proceedings relating to the settlement of this part of the claim can be seen in the Court’s records on 11/12/2012, 11/2/2013, 17/4/2013 and 3/6/2013. The claimants then urged the Court to look at its record to ascertain this fact and do justice accordingly as allowed by law, citing Nwanosike v.Udosien [1993]4NWLR (Pt. 290) 684.

 

  1. That the claimants in consequence amended their statement of claim to remove the specific claim for arrears of pension but they are still contending that the said payments/settlement notwithstanding, the fact remains that the defendants breached section 173(2) of the 1999 Constitution when they admittedly failed for all those years to pay the pension of the said claimants as and when due. That explains why the claimants are still asking for damages in paragraph 37(h) of the amended statement of claim for the defendants’ failure and neglect to pay pensions as and when due. In other words, the fact that the 3rd and 4th defendants admitted the non-payment of those pensions for all those years and made moves to pay them off did not take away the fact that an infraction was committed under section 173(2) of the Constitution when the defendants failed to pay those arrears as and when due. That the claimants want damages granted for that infraction. To the claimants, pension is a right under the Constitution and the Constitution states that it “SHALL” not be withheld. That the mere fact that those arrears occurred at all is an infraction of section 173(2) of the Constitution for which the claimants are entitled to damages notwithstanding the fact that the affected claimants were eventually paid their arrears during the pendency of this suit. That the maxim at law is ibi jus, ubi remedium, referring to Most Rev. Alfred A. Martins&ors v. Mrs C. Kolawole[2011] LPELR-4475(CA), andCBN v. Amao[2010] 15 NWLR (Pt.1219)271 at 307 where the apex court held that pensioners ought to be treated fairly and humanely.

 

  1. For issue (2), the claimants submitted that the second part of their case which touches on this issue is predicated on section 173(2) and (3) of the 1999 Constitution. That the relevance of section 173(2) in this respect is the part that says pensions shall not be altered to the disadvantage of a pensioner. That this is to be read together with section 173(3) which states as follows: “pensions shall be reviewed every five years or together with any Federal Civil Service salary reviews, whichever is earlier”. That the facts relevant to this part of the claimants’ case can be seen in paragraphs 16 to 28 of the amended statement of claim, particularly paragraph 19(a)-(e) thereof which summarises this part of the case as follows:
  2. Unfortunately however, the aforestated section of the Constitution has been observed more in its breach for the following reasons:

(a) while existing salaries have been reviewed from time to time, pensions have not been increased correspondingly and pensions have not been reviewed every five years as stipulated by law;

(b) increase in pensions have been arbitrary and have been effected by means of various government circulars which had the effect of amending the law and the Constitution which in themselves are ultra vires;

(c) for example, whereas as at 2008, existing salaries had been reviewed in 2003 and 2007, pensions were not reviewed at all. There was a review in pension in 2000 but not in accordance with the law;

(d) contrary to law, pensions have been reviewed from 1991 till date in accordance with executive circulars issued by the Salaries, Wages and Income Commission (SWIC) which circulars created disparities in the pensions table;

(e) as a result of non-review of pension or review contrary to law, huge arrears have built up to the detriment of pensioners including the claimants.

 

  1. That the claimants’ case in this respect is that by law and by the Constitution, pension should be reviewed every five (5) years or together with any reviews of existing salaries of the workers in the Federal Civil Service, whichever is earlier. In other words, if there is no salary reviews, for example, for a period of five years in the Civil Service, then pension must compulsorily be reviewed at the end of five years. But if salaries are reviewed, within five years, then pension must also be reviewed along with salary reviews. Also, it is the claimants’ contention that in the light of the provision of section 173(2) of the 1999 Constitution, pension shall not be altered to the disadvantage of the pensioners. The increase or review in existing salaries must tally or correspond or be in the same ratio with the review in pension. That this is the essence of the declaratory relief prayed for by the claimants in paragraph 37(c) of the amended complaint.That the claimants’ case, therefore, is that the defendants have not always reviewed pensions every five (5) years contrary to the provisions of the Constitution and where they have done so, at all, they have not always reviewed it in tandem with the increase in salaries to the effect that pensioners are disadvantaged by the increase contrary to the provisions of the Constitution.

 

  1. The defendants variously denied this fact in general terms but to the claimant, this is not enough. That the law is that it is a party who asserts a negative fact that has the onus to prove that fact. Put in another way, that when a plaintiff avers that a thing does not exist (as in the instant case) the adverse party who makes the affirmative assertion that it exists must prove that it exists. In other words, where, as in this case, the claimants plead that pension was not reviewed every five years since 1993 and the defendants deny that assertion, they are, in effect, saying that pension has been reviewed every five years since then, referring toNDDC v. NLNG Ltd[2010] LPELPR-4596(CA) and Guaranty Trust Bank Plc v. Fadlauah [2009] LPELR- 8355(CA). Indeed, that section 133 of the Evidence Act, 2011 makes it clear that the burden of first proving the existence or nonexistence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption which may arise on the pleadings, referring also toAbdul Ganiyu v. Adekeye&anor[2010] LPELR-9250(CA). That the defendants having failed to prove that there was review in pension every five years or that pension was reviewed with salaries, the Court should resolve this issue in favour of the claimants.

 

  1. To the claimants, they pleaded and proved that even when the defendants reviewed the salaries of existing workers, they have not correspondingly reviewed pensions such that huge arrears are built up to the detriment of pensioners including the claimants. For example, as pleaded in paragraphs 22 and 23 of the claimants’ amended statement of claim, in October 1994, there was a 39% increase in existing salary, but pension was increased by 36.10% leaving a shortfall of a little over 2%. Again, in 1999, while existing salary was increased by 188% pension was reviewed by 180%. Again, in 2000, while existing salary was increased by 222% pension was increased by 142%.As a result of these shortfalls, the claimants, as pensioners, were deprived of balances of pensions due to them over the years. The total sum of these shortfalls came to N121,353,962.66K (One Hundred and Twenty One Million, Three Hundred and Fifty Three Thousand, Nine Hundred and Sixty Two Naira, Sixty Six Kobo) as at the time the claimants came to court in 2011 and this trend has continued such that as at 31st March2016, the pension arrears being owed the claimants in this regard is in the sum of N281,730,269,59K (Two Hundred and Eighty One Million, Seven Hundred and Thirty Thousand, Two Hundred and Sixty Nine Naira, Fifty Nine Kobo).

 

  1. Issue (3) is whether or not the defendants short-paid the claimants contrary to law at various times between 1994 and 2010 and if so whether or not the claimants are entitled to the payment of the said shortfalls. To the claimant, the issue here is simply whether or not from the facts pleaded and evidence at trial, the claimants have shown that they were short-paid over the years regarding their pension as pleaded in paragraph 25 of the amended statement of claim and particulars given in paragraph 37(G) thereof. That in proof of these payment short-falls, the claimants tendered Exhibits GO-5A- GO-5X at pages 144 to 191 of the exhibits compilation. For example taking Exhibit GO-5A, which is the payment analysis and payment record of the 7th claimant, that the Court will see at the second page thereof (from 1999 when she retired to 2010 when the exhibit was compiled) that there were short-fall payments for the years 2000, 2001, 2003, 2007 and 2010. That the Payment Record of each of the claimants shows these short-falls all the way though varying from 1981 to 2002 when they all retired respectively. That the basis of the shortfall calculations is the Pension Reform Act 2004. They are as shown in Exhibits GO-5A to GO-5X, at pages 144 to 191 of the Record of Payment. The claimant then referred the Court to the First Schedule of the Pension Reform Act referred to by section 8(3) of the Act. The Schedule shows a Table titled “Computation of Retirement Benefits – Computation for Calculation of Pensions and Gratuity in respect of Retirement”.The first column therein contains the years of Qualifying Service of the Pensioner while the third column therein is titled “Pension as percentage of total final emolument”.

 

  1. The claimants continued that what CW has done through Exhibits GO-5A to GO-5X is to take each of the claimants, and identify the pension payable to such claimant based on the number of years of qualifying service of such claimant. For example, if the Court looks at claimant No. 24, whose Pensioner’s Verification Acknowledgment Form issued by the 7th defendant shows that he was in service from 17th February 1959 till 17th February 1994 i.e. 35 years, the Court will find that the percentage of pension payable to him as shown in the last column of the Table in Schedule 1 to the Pension Reform Act 2004 is 80. That if the Court looks at his payment record as shown in Exhibit GO-5(q) particularly on page 177 of the Bundle of Exhibits, the Court will find that apart from 1994 when he was even overpaid at 100%, in 1999, 2004, 2007 and 2010, he was short-paid 35.36%, 62.74%, 49.96% and 32.58% respectively. As a result, by 2010 just before this suit was filed in 2011, he was being owed a total sum of N354,780.35 (Three Hundred and Fifty-Four Thousand, Seven Hundred and Eighty Naira, Thirty-Five Kobo) in pension arrears. That arrears were updated in 2015 vide Exhibit GO-10(a) which shows his name as No. 24 therein and shows that he is now being owed the sum of N8,207,573.61 (Eight Million, Two Hundred and Seven Thousand, Five Hundred Seventy-Three Naira, Sixty-One Kobo) as at December 2015. That the Court will find that this is the case with all the claimants. Not one of them is free of this deliberate deprivation by the defendants. That as at 2011, when this action was filed, the grand total of pension arrears was in the sum of N121,353,962.66 (One Hundred and Twenty-One Million, Three Hundred and Fifty-Three Thousand, Nine Hundred and Sixty-Two Naira, Sixty-Six Kobo) as particularized in paragraph 37(g) on page 13 of the amended statement of claim. That this figure has been updated by Exhibit GO-10A to a total cumulative grand total of N381,368,430.98 (Three Hundred and Eighty-One Million, Three Hundred and Sixty-Eight Thousand, Four Hundred and Thirty Naira, Ninety-Eight Kobo). The claimants then urged the Court to do justice to them by giving them back these pension arrears arising from deliberate shortfalls in pension made by the defendants contrary to the Pension Reform Act 2004.

 

  1. That the point being made here is that instead of following the provisions of section 1(1) and the First Schedule to the Pension Act 1990, which was adopted by the provisions of section 8(1) and (3) as well as the First Schedule to the Pension Reform Act 2004, the defendants were using circulars issued by the Salaries and Wages Commission to reduce and pay pensions. Examples of such circulars are Exhibits GO-3(g) to GO-3(i) at pages 112 to 119 in the compilation of Exhibits tendered by the claimants. For purposes of clarity, section 1(1) and the First Schedule to the Pension Act 1990 states as follows:“Subject to this Act, any pension or gratuity granted hereunder to any person on his retirement from the public service of the Federation shall be computed on the final pay of the person entitled thereto and in accordance with the provisions of the First Schedule to this Act”.Section 8(1) and(3) of the Pension Reform Act, 2004, contained in Volume 12 of the Laws of the Federation of Nigeria, 2010 Cap. P4 states as follows:

(1) Notwithstanding the provisions of section 1(2) of this Act, any employee who at the commencement of this Act is entitled to retirement benefits under any pension scheme existing before the commencement of this Act but has three or less years to retire, shall be exempted from the scheme.

(3) Any person who falls within the provisions of subsections (1) and (2) of this section shall continue to derive retirement benefit under such existing pension scheme as provided for in the First Schedule to this Act.

That Exhibits GO-3(g) and GO-3(i) are themselves also proof of the fact that the defendants breached the provisions of section 173(2) of the Constitution in that paying the claimants less than the ratios stipulated by the Pension Act 1990 and Pension Reform Act 2004 amounted to altering the pension entitlement of the claimants to their disadvantage.

 

  1. The claimants then added that that the Pension Act 1990 was applicable to the claimants because they pleaded in paragraphs 1 and 3 of the amended statement of claim that all the claimants retired from service before 2004 when the Pension Reforms Act took effect and the latter Act also now incorporated the provisions of the 1990 Act in section 8(1) and (3) thereof to put no one in doubt that the beneficiaries of pension under the non-contributory scheme (otherwise also known as Defined Benefit Scheme) are also covered under the new law.That the issue here is simply whether or not from the facts pleaded and evidence tendered at the trial, the claimants have shown that they were short-paid over the years regarding their pension as pleaded in paragraph 25 of the amended statement of claim and particulars given in paragraph 37(G) thereof.It is thus the claimants’ submission that the claimants are entitled to substantial damages for this grievous infraction of the Constitution. That it only remains to say that the claim for exemplary and aggravated damages as stipulated in paragraph 37(h) of the amended statement of claim is also in respect of this head of complaint because as stated above, apart from the claim for the arrears due to the shortfall, the fact that the claimants were short-paid also amount to the defendants withholding their pension benefits to their disadvantage under section 173(2) of the Constitution.

 

  1. Issue (4) is whether or not the 5th defendant had a duty in law to make investment in respect of a part of the salaries of the claimants while they were in service and if so, whether or not the claimants are entitled to the reliefs sought as a result of the 5th defendant’s admitted failure in that regard. To the claimants, this issue is encapsulated in paragraphs 10 to 15 and 29 to 34 of the amended statement of claim. That this is the part of the claimants’ case that seeks to make the case for the right and proper pension administration in Nigeria. Under this part of the case, the claimants recognize that there are pensioners under the Non-Contributory Scheme or what the defendants refer to as the “Defined Scheme” but the claimants also contend that sections 1 and 8 of the Pension Reform Act 2004 saved the rights of the pensioners under the Non-Contributory Scheme under the law, which law particularly states that pensioners under the Non-Contributory Scheme shall be paid according to the percentages stated in the First Schedule of that Act. In larger terms, the claimants are saying that the generally accepted definition of “pension” is captured under the September1974 Report of the Udoji Commission i.e. Exhibit GO-9 at page 172, paragraph 728 of that Exhibit which refers to:“…pensions or gratuities as deferred pay or continuance of salary. Pensions in this context, reflect money withheld during the period of employment and returned with interest to the employees after he has ceased been able to work”.Also, the Udoji Report defines as pension money “withheld or deferred” to be paid back after retirement with interest.

 

  1. It is from this concept of “money withheld” or “deferred wages” or “undeclared wages” as laid down by the Udoji Report and IFRS that the claimants have derived their claim that the Accountant-General of the Federation (the 5th defendant herein) had a duty to have invested the “held back funds” from the wages of the workers under the defined benefit scheme or non-contributory scheme, and that the income from that investment would have formed the capital base for each worker such that when the worker retires, there would have been a pool of funds from which each person will be paid as opposed to the current situation where the Government has to make pension a budgetary matter and once Government does not have enough money to fund the budget, pensions will naturally suffer and pensioners will not be paid their pension as and when due which is contrary to law.

 

  1. It is the claimants’ case, therefore, that the power to make investments is already given to the Accountant-General (who is the 5th defendant in this case) by the provisions of section 9(1) and(2) of the Finance (Control and Management) Act 2004, which states as follows:

(1) the Consolidated Revenue Fund, and any other public fund of the Federation subject to any express provisions of law regulating any such public fund, may in part consist of deposit with bank, or with the Joint Consolidated Funds, either at call or subject to notice not exceeding six months, or of any investments in which a trustee in Nigeria may lawfully invest trust funds, and the disposition of moneys of public fund (subject as aforesaid) for any such purpose shall need no legislative authority other than that contained in this section and may be made by the Accountant-General or the State Agents for Oversea Government and Administration in accordance with specific instruction issued by the Minister.

(2) No moneys deposited or invested otherwise than in accordance with subsection (1) of this section may form part of the Consolidated Revenue Fund, or of any other public fund of the Federation, and the disposition of any moneys from that fund or those funds for any purpose other than that form of deposit or investment specified in that subsection shall be made in accordance with the procedure prescribed in this Act or in accordance with the provisions of law regulating the fund in question.

 

  1. The claimants are, therefore, contending that the 5th defendant had an implied duty by this law to invest pension funds and that if he had performed his duty by making the said investments on behalf of each of the claimants, there would have been sufficient funds to pay their pensions as and when due. Also, the claimants are contending that as a result of the failure of the 5th defendant to perform his statutory duty, each and everyone of them have lost substantial investment income, which is particularized in paragraph 37(e) of the amended statement of claim, and as shown in ExhibitsGO-4(A) to GO-4(X) and GO-6(A) to GO-6(X), whichexhibits show that what should have been the income from each of the claimants’ investments is what is now being used by the defendants to pay their reduced pension plus some further sums which are now going out to some shadow pensioners instead of the claimants who are the real pensioners. The claimants are, therefore, asking for those amounts to be paid over to them. The claimants also submitted that even outside of those exhibits, they are entitled to general and/or exemplary/aggravated damages for the 5th defendant’s failure of duty in that regard, urging the Court to so hold.

 

  1. The claimants went on to note that it is this concept of investing “withheld or deferred” wages that has now been recognized by Government in the Pension Reform Act 2004 in which a part of the salaries of the workers is now set aside and deposited with Pension Managers who, in turn, have a duty to invest same and pay over the funds together with the income that have accrued from the investment to the said workers when they become pensioners.That this new scheme is now what is called the contributory scheme. So, under the deferred benefits scheme or non-contributory scheme, it was the Accountant-General who played the role of the Pension Managers even though he was not normally so called.

 

  1. For the sake of emphasis the claimants’ contention is that it was because under the old scheme a part of the wages of the worker was deemed to have been “withheld” as opposed to it being physically contributed that the old scheme was called “non-contributory”. As explained by the Udoji Commission Report, money held back is expected to come back with interest. It therefore follows that if there is no investment, there can be no interest accruing from the funds. So, even if the law does not specifically give the 5th defendant the duty to invest, he, as the Chief Finance Officer of the Government ought, in practice, to invest the funds such that the income therefrom will constitute the pool of funds from which pension will be paid as at when due and pensioners will not have to suffer the deprivation they are being subjected to year in year out.

 

  1. Issue (5) is whether or not as a result of these infractions of the Constitution and the laws regulating pensions, the claimants are entitled to general, exemplary and/or aggravated damages (in the sum of One Billion Naira) for the defendants’ violations of the sacrosanct sections of the 1999 Constitution, the African Charter on Human and People’s Rights as well as the Pension Reform Act 2004. The claimants’ case for damages as shown at the beginning of paragraph 37 is joint and several and is premised on a number of infractions as shown in the entirety of their case. That the first willful failure is the failure of the defendants to pay pension as and when due. The evidence of this is the fact that when this suit was filed, the claimants were being owed arrears of pension, some for two to three years. The 3rd and 4th defendants admitted this fact and rectified the situation. However, that the arrears were eventually paid do not take away that fact that the defendants had committed a constitutional breach of a combination of sections 173(1) and (2) of the 1999 Constitution which stipulates that pension shall not be withheld or altered to a pensioner’s disadvantage. It is the claimants’ submission that the fact of owing the claimants even for one month of pension in arrears amounts to withholding their pension to their disadvantage and that they are entitled to damages for this breach of the Constitution.

 

  1. The second willful failure or neglect which must attract damages is the defendants’ failure to review pension every five years or together with Federal Civil Service review as pleaded and proved by the claimants under issue (2) for determination.

 

  1. The third willful failure or neglect which must attract damages is the defendants’ deliberate act of short-paying the claimants their pension contrary to sections 1 and 8 of the Pension Reform Act 2004 as pleaded and proved by the claimants under issue (3) for determination. That this act amounted to altering pension benefits contrary to section 173(2) of the Constitution.

 

  1. The fifth (sic, fourth?) reason why the defendants, particularly the 5th defendant, must pay damages is his failure to invest the “withheld” or “deferred” wages of the claimants, which failure has resulted in gross delay in paying pension benefits such that Government has to look for money to pay pensions from time to time.

 

  1. That damages generally in law, are pecuniary compensation or indemnity recoverable in the courts by any person who suffered a loss, detriment or injury, be it to his person or right, referring toShell Petroleum Dev. Co. v. Tiebo [1996] 4 NWLR (Pt.448) 657,Gege v. Nande & anor [2006] 10 NWLR (Pt.988) 256 andUmudue v. SPDC[1975] 9-11 SC95. That it is trite law that general damages are such that the law will presume to be the direct natural or possible consequence of the act complained of, citingAluminium Manufacturing Company of Nigeria Ltd v. Volkswagen of Nigeria Ltd [2010] LPELR-3759(CA) andAdo-Ibrahim v. Ado-Ibrahim[2014] LPELR-22850 (CA). On the other hand, that exemplary damages are damages whose purpose extends beyond compensation to punitive functions while aggravated damages are compensatory awards when the circumstances of the infliction of the wrong including the motive of the defendant are taken into account, citingNMA v. Maline Management Associates [2008] LPELR-4583(CA). That to justify aggravated or exemplary damages, the conduct of the defendant must be high-handed or outrageous or oppressive and showing contempt of the plaintiff’’s rights, citingOdiba v. Azege[1998] LPELR-2215(SC) andUdofel Ltd & anor v. Skye Bank Plc [2014] LPELR-22742(CA). That exemplary damages will usually be granted where it involves oppressive, arbitrary or unconstitutional acts of Government or its servants such as in the instant case, citingWilliam v. Daily Times of Nigeria Ltd [1990] 1 NWLR (Pt.124) 1; [1990] 1 SC 23,Unilorin v. Ayodeji[2014] LPELR-23821(CA) andGKFIInvestment Nig. Ltd v. NITEL Plc[2009] 15 NWLR (Pt.1164) 344. It is the claimants’ submission that this being a constitutional breach, it is a very serious matter especially because it is a breach of the constitutional provision relating to pension,it is a serious matter, citingMartins v. Kolawole(supra),CBN v. Amao (supra) andKasim v. NNPC &anor [2012] LPELR-22369(CA).

 

  1. To the claimants, they are not only entitled to general damages, but also to aggravated or exemplary damages, not only because of the suffering and hardship to which they as senior citizens have been made to endure but because these hardships and suffering were inflicted on them by Government, the same Government that was supposed to take care of them. Also, that the said Government was malicious and oppressive on them when they deliberately short-paid them their pensions even when they paid at all. That the Court should take cognizance of the fact that these pensioners are meant to live on these pensions for the rest of their lives and yet the Government deliberately denies and deprives them of what exactly is due to them contrary to the law. That as shown by the evidence, instead of paying them in accordance with Schedule A in Table One of the Pension Reform Act 2004, the defendants decided to abandon that table and in its stead issued Government Circulars tendered at the trial as Exhibits GO-3(A)- GO3(I) to unilaterally declare what they will pay. Even at that,the rates declared by those Circulars are not in most cases commensurate with the rate of increase in salary for workers in the Civil Service at the same level with the pensioners. That the only possible interpretation of section 173(3) of the Constitution is that pension must be reviewed after every five years (while this was not done and none of the defendants have proved the contrary) and that when it is done, it must be done in tandem with the Federal Civil Service reviews (which was also not done where there was a review). That the failure of the defendants to carry out this constitutional duty imposed on them has brought unquantifiable losses on the claimants and indeed all pensioners. This failure alone ought to attract heavy punitive damages against the defendants, referring to Article 18(4) of the African Charter on Human and People’s Right (Ratification and Enforcement) Act Cap A9 LFN 2010, Volume 1, which stipulates that “the aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs”. That for the claimants, who are aged, pension is that right given to them by this Charter which by section 1 thereof has force of law in Nigeria.It is for this reason and many more as adumbrated that the claimants submitted that they are entitled to serious damages against the defendants so that the claimants are not only assuaged to some extent but that the defendants will also wake up to their responsibilities in the Constitution as far as pension matters are concerned.

 

THE SUBMISSIONS OF THE 1ST AND 8TH DEFENDANTS

  1. The1st and 8th defendants submitted a sole issue for the determination of the suit i.e. whether the claimants have proved their case in order to be entitled to the reliefs sought in their statement of fact. To the 1st and 8th defendants. the claimants have not established their outlandish claims through cogent and credible evidence. That the law is trite that he who asserts must prove the affirmative of such assertion, citing section 131(1) of the Evidence Act 2011. That it is the law that when the claimants have discharged the above burden of proof placed upon them by the law, the burden then shifts to the other side which shall by the law prove that such facts do not exist or that even if it does, he has a defence and it shall be his duty to prove the existence of that defence and that it inures to his benefit. This notwithstanding, that there is another, a higher category of burden of proof and that is the one involved in the instant case.It is the burden of proof of a DECLARATORY RELIEF. It is higher because the law makes it static, it does not shift. The man who seeks a declaratory claim or relief must prove that he is entitled to such declaration. He must also prove that on the strength of his case and evidence brought before the Court, not even an admission from the defendant will inure to his benefit. He swims or sinks by the evidence he places before the Court, citing Ukaegbu v. Nwololo[2009] 3 NWLR (Pt. 1127)230 and Alhaji Saidu Sanusi Dongari &ors v. Alhaji Saheed Shaumin[2013] LPELR-22084(CA).

 

  1. The 1st and 8th defendants went on that from the above, the claimants must prove their entitlement to the declaration that they seek and the orders that will flow therefrom. That the claimants are seeking four declarations and three ancillary orders from this Court.That the burden is squarely on the claimant to establish their entitlement to those reliefs. That the claimants made failed efforts to shift the burden of proof on to the defendants when they argued that a party who asserts a negative fact has the onus to prove that fact. To the 1st and 8th defendants, this is wrong and has never been the position of the law, which position is that a party who asserts the positive or affirmative of a fact has the burden to prove the said fact, citingMaximum Insurance Co. Ltd v. Owoniyi[1994] 4 NWLR (Pt. 331) 178 at 192. That a look at all the declarations sought by the claimant will show that they are all asserting the positive of facts.Therefore, the claimants must prove that those facts exist. Looking at the first relief, that the claimants have not placed anything before this Court to show that their pension were not paid as and when due. That it is only in paragraphs 20 of their statement of fact that the claimants pleaded that as a result of their allegation in paragraphs 17 -19 that there was failure on the part of the defendants to pay their pensions as and when due. However, that in paragraph 19(d), the claimants admitted that pension have been reviewed from 1991 till date (the time of filing this matter) through Executive Circulars issued by the Salaries, Wages and Income Commission (SWIC). That for the claimants, that these pension reviews were not good enough.Also, that the claimants admitted that the 3rd and 4th defendants have been paying their pension from month to month.

 

  1. To the 1st and 8th defendants, the above is an admission against interest that pensions of the claimants, except the 5th claimant, are paid as and when due. That nothing has been placed before this Court to show that the 5th claimant has not been paid even though he is entitled to same, citingIniama v. Akpabio[2008] 17 NWLR (Pt. 1116) 225 at 344 and Onovo v. Mba[2014] 14 NWLR (Pt. 1427) 391 at 424. That by admitting that the defendants have paid off the arrears of pension and have been paying the claimant’s pensions from month to month in a claim where the same claimant is alleging that pension was not paid as and when due is like building with one hand and demolishing with the other hand.

 

  1. The 1st and 8th defendants continued that at the time the claim for arrears was paid before the Court decided on it, it no longer existed. That the claimants thereafter amended their writ of summons and statement of facts removing that claim. That the law is trite that amendment of pleadings dates back to the time of initial commencement of the action and after the amendment, what stood before the amendment even though still in the Court’s file does not weigh any longer in the determination of the case, citingJatau v. Ahmed[2003] 4 NWLR (Pt. 811) 498 at 511.That in the amended statement of facts before the Court, the claimants have not proved their allegation that pensions are not paid as and when due. That the evidence before this Court is that the pensions of the claimants are being paid from month to month with the exception of the 5th claimant;and that there is nothing before this Court to prove that the 5th claimant has not received his pension entitlement, urging the Court to refuse the claimant’s relief (a).

 

  1. As regards reliefs (b), (e) and (f), the 1st and 8th defendants submitted that they are speculative and conjectures which have no place in law.That the relevant paragraphs of the claimant’s pleadings in support of these reliefs can be seen in paragraphs 10, 11, 12, 13, 14, 15, 26 and 30. That apart from these pleadings, the claimants have not in any way placed before this Court any evidence of the existence of any capital base or that any part of their negotiated wages was withheld by the defendants. That it is rather admitted by the claimants and their sole witness-CW that they were all under the Non-Contributory Pension Scheme or what is called Defined Benefit Scheme (DBS). That there was no agreement placed before this Court where the claimants and their employers agreed that part of the claimant’s salaries or wages would be held back and invested for them to be returned to them at a later date with interest. There was also no law during the Defined Benefit Scheme which provides that part of the wages of Public or Civil Servants be withheld for investment to be returned to them with interest at retirement. That during cross-examination of CW by counsel to the 1st and 8th defendants, CW admitted the following: (a) that the aborted investment income, capital base, etc they were talking about, were all derived from the alleged portions of their salaries withheld. However, that he failed abysmally to prove that any of their negotiated wages was withheld by anybody. That other answers given by CW during his cross-examination are instructive as to the speculative nature of this claim; answers that indicate that the claimants for these claims relied on an unproved trade practice and the Udoji’s Committee Report that had no White Paper.

 

  1. To the 1st and 8th defendants, the answers to the questions put to CW under cross-examination show that reliefs (b), (e) and (f) are mere speculation, which the law does not allow, citing Adisa v. State [1991] NWLR (Pt. 168) 490 at 500.That if the said deductions are according to the claimants undeclared, systemic, yet all their negotiated salaries by way of initial salaries, increased salaries, promotional arrears were all paid to them by their employers, they do not know the amount of money that was allegedly deducted, the deductions were trade practice, their salaries were negotiated by the Civil Service Union, then the Court should hold that reliefs (b), (e) and (f) are speculations which have no place in law. The 1st and 8th defendants then urged the Court to dismiss the said reliefs.

 

  1. On reliefs (c), (d) and (g), the 1st and 8th defendants submitted that the claimants have not established before this Court via cogent and credible evidence that the defendants have not reviewed pension every 5 years as envisaged by section 173 of the 1999 Constitution. That in paragraph 19 of their statement of facts, the claimants averred that the provisions of the above section of the Constitution have been observed more in the breach. That apart from the said averment, the claimant have not deemed it necessary to place before the Court, cogent and credible evidence to prove that the provisions of the Constitution has been observed more in the breach. That the claimants in an effort to prove their assertion dumped a bundle of documents from the bar before this Court and expect the Court to embark on cloistered justice by privately investigating the said bundle of documents to discover which supports the claimants’ claim and which does not. That the Court has no such vires to start doing surgical operations on documents that have not been demonstrated before the Court, citingIkenye v. Ofune[1985] 1 NWLR (Pt. 5) 1 at 13 and Durumimya v. Commissioner of Police[1961] NWLR 70 (wrong citation);[1961]2 NSCC 277.

 

  1. That what was demonstrated before this Court in the instant case cannot support the claims of the claimants;in fact, it contradicts same. That in paragraph 19(d) of the claimants’ statement of facts, they stated that pensions have been reviewed from 1991 till date in accordance with executive circulars issued by the Salaries, Wages and Income Commission. However, that the claimants asserted that the said review were contrary to the law. But they failed to show what the review ought to be. That before the Court are Exhibits GO-3 to GO-6, which are circulars evidencing series of reviews in pension by the defendants. But that how those reviews are contrary to the law and the Constitution has not been demonstrated before this Court by the claimants. That the law is trite that no matter the brilliance inputted in the writing of final written address, it cannot take the place of evidence, citingNiger Construction Ltd v. Okugbemi[1987] 4 NWLR (Pt. 67) 787. To the 1st and 8th defendants, the Court is bound only by evidence properly laid before it, not by undemonstrated fact which the claimants are trying to smuggle in through their final written address, urging theCourt not to be swayed by the address made on evidence not laid before the Court. That the Court should accordingly dismiss the claimant’s reliefs (c), (d) and (g) for lack of evidence. That it must be noted that the evidence relied upon by the claimants are what they called working documents prepared by the 1st claimant (who is CW) in his yet to explained DONEE SERVICES. That those documents are not cogent and credible evidence of the claimants’ claims. Under cross-examination, that CW agreed that those working papers and analysis were his personal speculations on what they think the claimants were entitled to.

 

  1. The claimants had referred the Court to section 1(1) and the First Schedule to the Pension Act 1990 and section 8(1) and (3) as well as the First Schedule to the Pension Act 2004; and then submitted that the pensions being paid to them are not in accordance with the provisions of these Acts. To the 1st and 8th defendants, it is doubtful how the claimants arrived at that conclusion. That looking at the entire pleadings in their statement of facts and witness statements on oath, there was no statement and proof of what any of the claimants received as their terminal salary, there was also no statement and proof of what they were being paid as pension so as to determine whether it accords with pension as a percentage of their terminal salaries or not as stated in the Acts they relied on. That none of the claimants except the 1st claimant testified, no bank statement was put in evidence which could have shown how much each of them was actually receiving as pension. That all the claimants have and which they dumped on this Court was a bundle of worthless papers which CW admitted under cross-examination are his personal speculations of what he thinks the claimants were entitled to. No other claimant gave evidence as to their respective claims. That CW undertook to step into their shoes and defend their cases even though majority of them were alive, some were even coming to the Court as observers. That it is obvious from record that CW could not substantiate his own claim let alone the claims of 28 others, some of whom were alive but failed to come and testify, urging the Court to throwaway all those documentary hearsay and dismiss their claims.

 

  1. Finally, the claimants are demanding for general, exemplary, and/or aggravated damages in the sum ofOne Billion Naira. To the 1st and 8th defendants, the claimants are not entitled to this as they have not established their entitlement to their main claims. In conclusion, the 1st and 8th defendants urged the Court to dismiss the claimants’ case for lacking in merit.

 

THE SUBMISSIONS OF THE 2ND DEFENDANT

  1. The 2nd defendant submitted a sole issue for determination i.e. whether the claimants’ suit is not totally speculative and liable to be dismissed by this Honourable Court in view of all the evidence adduced in the proceedings in support of the claims. To the 2nd defendant, the only conclusion that can be arrived at is that this suit is wholly predicated on speculation as the claimants failed to adduce any real, tangible, concrete and verifiable evidence to support and substantiate any of their claims. That the claimants are indeed acting under a misunderstanding of the operations of the Defined Benefit Scheme (DBS), the Pension Scheme the claimants fall under, and the applicable laws thereby leading to a misconception as to their pension entitlements. That this position is supported by the fact that most of the exhibits being relied on by the claimants in support of their claims including Exhibits GO-4(a-x), GO-5(a-x), GO-6(a-x), GO-7(a-x), GO-8 and GO-10(a-c) were all prepared by the 1st claimant for himself and on behalf of the other claimants in the name of G.O. Obahiagbon (Donee) Services who lacks the competence and the legal capacity to do so, urging the Court to discountenance them, as all the figures contained in the exhibits were predicated on speculation and nothing more than figments of the imagination of the claimants. That CW admitted under cross-examination that G.O. Obahiagbon (Donee) Services is not registered under our laws to provide any type of service at all especially the one relating to pensions computation and, therefore, not qualified to provide the computation that he had purportedly provided;and that the figures and computations contained in the exhibits were wholly provided by him; that he was not commissioned or engaged by any agency of the Federal Government of Nigeria, statutorily responsible for pensions matters or by any of the defendants to produce the exhibits referred to above and sought to be relied on by the claimants as the basis of their claims.

 

  1. It is the 2nd defendant’s submission that the Defined Benefit Scheme to which the claimants belong is a Non-Contributory Pension Scheme and was the Pension Scheme in operation in Nigeria until the Pension Reform Act 2004 which established the Contributory Pension Scheme to exist alongside the Defined Benefit Scheme until the demise of the last beneficiary of the scheme, when the scheme will be phased out. That contrary to the misconception of the claimants, no portion, part or percentage of their wages from the date of their employment until retirement was ever withheld, deferred, undeclared or deducted for pension payment purposes nor was any portion or percentage of the claimants’ wages ever withheld or deducted for investment purposes by the 5th defendant. That the claimants are obviously acting under a misunderstanding of the import of section 9(1) and (2) of the Finance (Control and Management) Act 2004, which provision is clear and unambiguous. That it is clear that section 9(1) and (2) of the Finance (Control and Management) Act 2004 did not allude to or make any reference to pensions or the investment of any deferred or withheld wages allegedly deducted from the income and wages of the claimants or any other person for that matter whether in service or retired, neither did the section expressly nor impliedly impose on the 5th defendant any duty to invest any money that will accrue to the claimants as pensions on their retirement. That assuming, however, without conceding, that section 9 imposed any obligation on the 5th defendant to make investment on behalf of the claimants, such obligation whether express or implied can only be enforced where any portion of the claimants’ wages was either withheld or deferred for such investment, but where as in this case no portion of the claimants’ wages was ever withheld or deferred by any of the defendants for pension purposes, then a fortiori nothing can be invested on their behalf as there will be no pool of funds for that purpose, urging the Court to so hold and to totally discountenance the content of Exhibits GO 4(a-x) and GO 6(a-x) prepared by G.O. Obahiagbon (Donee) Services which are nothing but the figment of the claimants’ imagination and contains figures and calculations founded on speculation.

 

  1. Furthermore, that Exhibit GO 9 (Federal Republic of Nigeria Public Service Review Commission, Main Report of September 1974) not having been accepted by the Federal Government of Nigeria in any White Paper cannot legally be relied upon and should, therefore, be discountenanced. It is the 2nd defendant’s additional position that “pension” as defined in Exhibit GO 9 is not the generally accepted definition of pension as the said definition did not specifically relate to the pension plan to which the claimants belong and also did not take into cognizance the various types of pension plans that are available to employees. That “pension” is defined in the Blacks Law Dictionary 9th Edition as: “A fixed sum paid regularly to a person (or to the person’s beneficiaries), esp. by an employer as a retirement benefit”. Also that there are various types of Pension Schemes and these inter alia include: Defined Benefit Scheme/Plan; Contributory Pension Scheme; Qualified Pension Plan, Non-Qualified Pension Plane, etc.That the Defined Benefit Pension Scheme/Plan to which the claimants belong is defined in the Black Law Dictionary 9th Edition as: “A pension plan in which the employer commits to paying an employee a specific benefit for life beginning at retirement. The amount of benefit is based on factors such as age, earnings, and years of service”. That the Defined Benefit Pension Scheme/Plan is also known as a Non-Contributory Pension Plan and the Blacks Law Dictionary 9th Edition defined a Non-Contributory Pension Plan as: “A pension plan funded solely by the employer’s contribution”.

 

  1. That based on the above clear and unambiguous definition of the Defined Benefit Pension Plan also known as Non-contributory Pension Scheme, the pensions paid to the claimants were wholly provided by the Federal Government of Nigeria without any manner of contribution whatsoever from the claimants or any portion of their salaries withheld or their earnings deferred while they were in service. That as was admitted by CW during cross-examination, the claimants at the time they were employed into the Federal Civil Service, were issued with letters of employment which contained the monthly and annual salaries and other allowances due and payable to each of them at the point of entry into the service.That the said letters of employment, also stated clearly and categorically that their appointments are permanent and pensionable. That there is nowhere in their various letters of employment that it was stated that any part of their salary or allowances will be deducted for pension purposes and no kobo was ever deducted or withheld by the defendants from the claimants’ salaries for pension purposes, urging theCourt to so hold.

 

  1. The 2nd defendant went on that as was also admitted by CW during cross-examination that the claimants were issued with monthly pay-slips containing a breakdown of their monthly salaries or packages and all the deductions effected on the salaries including taxes and there was no single evidence of any deduction in the pay-slips for pension purposes and there was also no undeclared deduction. That CW contended that the alleged and purported deduction for pension was systemic and a trade practice but failed to provide any tangible or credible evidence to support that position. He failed to provide evidence of the amount deducted or withheld. He was also unable to show whether the deduction was monthly, quarterly or annually. That the claimants’ allegation of deferred wages and portion of salaries being withheld for pension purposes were wholly predicated on speculation; and law does not deal with speculation and so it is, therefore, erroneous and misleading for the claimants to speculate and allege that portions of their salaries were ever withheld or deducted for pension purposes while they were in service without supporting the allegation with credible evidence, citing Agip (Nigeria) Ltd v. Agip Petroleum Internationale &ors[2010] All FWLR (Pt. 520) 1198 at 1207 andMr Ibibiama F. G. Odom & ors v. The PDP & ors [2013] All FWLR (Pt. 698) 972 at 974. Accordingly, that in the absence of credible, material and verifiable facts in support of the claimants’ claim that any portion of their salaries was ever deducted or withheld for pension purposes, the Court should totally discountenance the claim of the claimants relating to investment income and aborted investment.

 

  1. That it also trite that he who asserts must prove, citingsection 131 of the Evidence Act 2011. That the onus, therefore, is on the claimants, who claims that a portion of their salaries which was undeclared was deducted or withheld while they were in service and that the Finance (Control and Management) Act 2004 imposes an obligation to invest on behalf of the claimants the said withheld portion of salaries, to adduce material and credible evidence before this Court in support of the unfounded and misleading allegation, citingMidford Edosomwan v. Kenneth Ogbeyfun[1996] 4 NWLR (Pt. 442) 266 at 278.

 

  1. The 2nd defendant continued that contrary to the claim of the claimants, the defendants did not violate the provisions of section 173 of the 1999 Constitution. That the defendants have always acted in compliance with the provisions of section 173(2) of the Constitution and to this effect the pensions of the claimants have never been withheld or altered to their disadvantage. That the fact that a delay in the payment of pension may at times be occasioned by issues relating to periodic Verification Exercise which are conducted by the relevant pension authority to ascertain that the pensioner is still alive does not amount to withholding of pensions of the claimants. That a pensioner who fails to appear for a verification exercise may have his/her pension payment delayed pending when he or she clears himself/herself with the 7th defendant and this is necessary to ensure that pensioners who had passed on do not continue to receive pension benefits. That when a pensioner who missed a Verification Exercise or who failed to submit a relevant document as may be required during a verification exercise is cleared he/she is paid the relevant arrears of pension and this was the situation with some of the claimants whose arrears of pension were cleared during the pendency of this suit as admitted by CW. That this situation is in fact contemplated by the exception in section 173(2), which allows that a pension be withheld or altered “to such extent as is permissible under any law, including the Code of Conduct”.

 

  1. That payment of pensions under the Defined Benefit Scheme is subject to Annual Appropriation by the National Assembly; as such, it will be illegal and indeed unconstitutional for the defendants to spend any money which has not been appropriated by the National Assembly in the Annual Appropriation Act and this presupposes that a delay in the passage of the Appropriation Act or shortfall in expected revenue into the Federation Account which are circumstances beyond the control of the defendants may sometimes lead to and had at times led to a delay in the payment of pension to retirees hence the introduction by the Federation Government of the Contributory Pension Scheme to address this situation, as Civil Servant are now at liberty to choose Pension Administrators and Managers of their choice to manage their pension fund and Retirement Benefit Account. That contrary to the position of the claimants, section 173(2) is subject to exceptions as pension can be withheld or altered “to such extent as is permissible under any law, including the code of Conduct”; and this provision gives credence to the fact that pension review as provided under section 173(3) can be reviewed upwards, downwards and maintenance of status quo depending on the state of the economy of the nation.

 

  1. The claimants had inter alia contended that increase in pensions have been arbitrary and that the said increase has always been effected by means of various government circulars which had the effect of amending the law and the Constitution and are ultra vires.In response, the 2nd defendant submitted that the National Salaries, Income and Wages Commission is established by law and it is the agency empowered by law to deal with the issues relating to review of salaries and pensions and they communicate the approved review and the percentages through circulars (which they are also empowered by law to issue) to the 7th defendant and all the other relevant agencies of government for implementation. That this position is supported by the provision of section 3(p) of the National Salaries, Income and Wages Commission Act Cap N72 LFN 2004, which provides that the function of the Commission shall be to “examine the current rate of retirement benefits and recommend appropriate mechanism for periodic review of retirement benefits”. That this provision makes it clear that the duty for the periodic review of pensions and other retirement benefits and recommending the mechanism for such review is principally that of the National Salaries, Income and Wages Commission and that there is nothing ultra vires about the exercise of this function through the issuance of circulars, as circulars are one of the means of official communication by agencies of government. That it is in the exercise of its power, function and duty of periodic review of salaries and retirement benefits including pensions that the National, Salaries, income and Wages Commission at various times issued Exhibit GO-3(b-i) relating to increases in salaries and pensions, which exhibits were tendered by CW. That Exhibits GO-3(b-i) were not issued by any of the defendants on record before this Court but by the National Salaries, Income and Wages Commission who is not a party in this suit.

 

  1. The 2nd defendant then contended that the claimants knowing that they will be challenging the percentages, contents and figures in the various circulars issued by the National Salaries Income and Wages Commission as per Exhibits GO-3(b-i) ought to have joined the Commission as a party in this suit; and having failed to join the Commission,they cannot procure any order of this Court with respect to the said Exhibits GO-3(b-i) as a court must confine its orders and judgment to parties who are before it, as any judgment or order made against a person who is not a party to the suit is to no avail, citingMrs Oluchi J. Anyanwoko v. Chief Mrs Christy O. N. Okoye& 4 ors[2010]41 NSCQR 46 at 73 andUku v. Okumagba[1974] 1 All NLR 475. Again, that all persons who may be affected by a decision of the Court in a matter have the right to be heard and to canvass and ventilate their position before a decision is taken in an issue that concerns and affects them. That the claimants are inter alia challenging constitutionality and legality of the content of circulars issued by the National Salaries, Income and Wages Commission as it affects the percentages of increase in their pension at various periodic reviews and have also canvassed argument in support of that position but failed to make the Commission a party in this suit. That since the National Salaries, Income and Wages Commission is not party to this proceeding they have not, therefore, had any opportunity to be heard.Therefore, any pronouncement on Exhibits GO-3(b-i) made in the absence of the Commission being given opportunity to defend the propriety of the circulars will clearly violate the Commission’s right to fair hearing as entrenched in theConstitution and expressed in the legal maxim of audi altarem partem and to do so would amount to shaving the hair of the Commission in its absence, urging the Court to so hold and to discountenance all the claims of the claimants predicated on Exhibits GO-3(b-i). The 2nd defendant proceeded to urge the Court to also discountenance the computations of the alleged shortfall in pension contained in Exhibits GO-5(a-x) for being speculative even as the claimants are not being owed any shortfalls and are also not competent to make any computations with respect to their pension entitlement.

 

  1. On the issue of the claim for damages, the 2nd defendant submitted that the claimants are not entitled to any sum of One Billion Naira as general, exemplary and/or aggravated damages from the 2nd defendant. In fact that the claimants are not entitled to any form of damages at all in this suit in view of the facts of this case. In conclusion, the 2nd defendant urged the Court to refuse all the reliefs sought by the claimants and dismiss this action for being totally speculative and frivolous, and for the several other reasons canvassed in this address.

 

THE SUBMISSIONS OF THE 3RD AND 4TH DEFENDANTS

  1. The 3rd and 4th defendants submit two issues for the determination, namely:
  • Whether the claimants have failed to discharge the legal burden of proof on them as not to be entitled to the judgment of this Court.
  • Whether the claimants have failed to disclose and prove any reasonable cause of action against the 4th d

 

  1. On issue (1), the 3rd and 4th defendants submitted that the claimants failed to lead sufficient credible evidence before theCourt in proof of the declaratory reliefs they seek from this Court. That it is the law that a plaintiff/claimant who seeks a declaratory relief from the Court has a duty to prove to the satisfaction of the Court that he is entitled to such relief.That the gravamen of the claimants’ claim is that the Chief Accounting and Investment Officer of the Federal Government of Nigeria failed to perform his statutory duties/functions under the Finance (Control and Management) Act by reason of his failure to invest the deferred wages of the claimants, thus depriving them of the necessary investment income and the necessary funds with which pension could be paid as and when due. That the claimants claimed that while in service, they had several undeclared amounts held back from their negotiated wages by the defendants and lodged in the Consolidated Revenue Fund (CRF) for pension payment in the future. They added that due to the arrangement whereby part of their wages was held back, the pension scheme was dubbed ‘Non-contributory’ such that the salary structure published from time to time reflected only the Take Home Pay (THP) of the affected civil servants without revealing their contribution and the Federal Government’s contribution. However,that they failed to prove that such monies were ever deducted from their salaries.

 

  1. The contention of the 3rd and 4th defendants is that the claimants have a duty under the law to prove to the satisfaction of the Court that there was actually a systemic deduction of part of their salary to the Federal Government and thereafter prove that the money was not invested. That this, the claimants have failed to do and this failure is very fatal to the case of the claimants, citingAlhaji Ibrahim Habu Sule &anor v. Hajiya Umma Ibrahim &anor[2011] 7NWLR (Pt. 1246) 339 andSunday Udo Akpan v. Union Bank of Nigeria Plc [2011] 2NWLR (Pt. 1231) 399. That the claimants did not make any attempt whatsoever to prove to this Court that they made any contribution to the Federal Government as none of the numerous exhibits they tendered in this Court touches on this essential point of deduction of party of their salaries/wages. How much was the Federal Government deducting from the salaries of the claimants? How much was the total amount deducted? Or put differently, how much monies of the claimants salary were being withheld. That there is absolutely nothing before this Court to positively answer these questions. That CW during cross-examination admitted that while in service they were usually issued with a pay-slip that provided the breakdown of their salary; yet none of those pay-slips was brought before the Court. The claimants also averred that the salary structure then published from time to time reflected only their Take Home Pay and yet again failed to bring their pay-slips in proof of that claim. That the law is long settled that any person who asserts must prove, citing section 131(1) of the Evidence Act 2011.

 

  1. The 3rd and 4th defendants went on that the claimants’ claim that certain undeclared amount was held back from their salaries/wages is false since the claimants have failed to substantiate that claim by way of proof. That by the claimants’ admission in paragraph 11 of their amended statement of claim that the pension administration at the time of their retirement was non-contributory, the claimants have made one point very clear and that is: “That during the regime of non-contributory pension administration, no federal employee was contributing any sum to his or her final pension claim, urging the Court to so hold.Again, that the claimant’ admission in paragraph 10 of their statement of claim that nothing was declared as sum allegedly deducted from wages of officers removed the validity of the tabulated claims of the claimants in paragraphs 29, 32, 33 and 37(E) and (G) of their statement of claim, more so as same is without any legal basis. That although the claimants’ claim in paragraph 7 of the claimants’ reply to the 7th defendant’s statement of defence is that an individual pensioner who is short-paid can calculate or compute the amount short-paid for the 5th defendant’s approval, the claimants failed to show the Court that the tabulated computation done by the 1st claimant and shown in paragraphs 29, 32, 33 and 37(E) and (G) of their statement of claim received the required approval of the 5th defendant. That it is a common principle of law that “parties are bound by their pleadings and evidence led which is at variance with averments in pleadings goes to no issue and ought to be discountenanced by the court, citingDr Mansur Abdulkadir Funtua v. Abdullaziz Ahmed Tijani & 2 ors[2011] 7NWLR (Pt. 1245) 130 at 135.

 

  1. The 3rd and 4th defendants agreed with the 7th defendant that the claimants have no statutory power to compute or calculate their pensions anyhow they want. That doing otherwise is a recipe for disaster as any pensioner can compute their perceived entitlements in any manner, just like the claimants have done in this case. That pensions are correctly computed by the 7th defendant based on approved salary structure issued by the National Salaries, Incomes and Wages Commission. That the said computation by the 1st claimant is simply a product of bloated imagination, speculation and without any legal basis as it is not part of the official duty of the 1st claimant to compute the pension of retired civil servants. That the fact that the 1st claimant is a Chartered Accountant does not clothe him with the toga of legality to bring up any bogus unsubstantiated claim before this Court and expect to have his way. That this should not be allowed particularly as there is no evidence led in proof of the bogus claim; citingOdi v. Iyala[2004] 8 NWLR (Pt. 875) 283 at 311, which held that “the court cannot act on speculation but on cogent and credible evidence”.

 

  1. To the 3rd and 4th defendants, the claimants who did not make any pension contribution to the Federal Government of Nigeria cannot rightly expect the defendants especially the 5th defendant to invest what does not exist. Put differently, that since the defendants did not deduct or withhold any part of the salaries/wages of the claimants while they were in service for the purpose of pension or for any other purpose whatsoever, there was nothing for the defendants to invest as being claimed by the claimants. Therefore, the defendants as functionaries and representatives of the Federal Government of Nigeria are not in violation or contravention of their statutory duties under the 1999 Constitution and the African Charter on Human and Peoples Rights regarding pension matters nor has the 5th defendant as the Chief Accounting and Investment Officer of the Federal Government of Nigeria failed to perform his statutory duties/functions under the Finance (Control and Management) Act as the claimants want this Court to believe, urging the Court to so hold.

 

  1. The 3rd and 4th defendants continued that they have not violated any of the provisions of section 173 of the 1999 Constitution as they are neither the institution that makes laws that regulate pension or gratuity matters nor have they withheld any benefit to which any of the claimants or any person whatsoever is entitled to his/her disadvantage. That even the claimants have failed to prove the applicability of any pension law against the 3rd and 4th defendants; referring toAlkali EDV Consulting &anor. v. Yobe State Government &anor [2011] 1 NWLR (Pt. 1228) 331 at 334. Therefore, that since the claimants have failed to prove their case against the defendants and in particular the 3rd and 4th defendants, the case must fail as the defendants cannot be required to prove anything as the claimants are yet to discharge the burden of proving their allegations of systemic deduction from their salaries/wages.

 

  1. What is more, that by virtue of a motion on notice dated 4th but filed on 5th February 2019 the claimants prayed the Court for an order striking out the names of the 3rd, 4th, 8th, 10th, 12th, 17th, 19th and 26th claimants having all become deceased during the pendency of this suit but failed to also make the corresponding amendment in the tabulated computation already before theCourt and thereby expect this Court to embark on a voyage of discovery which this Court cannot do. The it is on record that the computation before theCourt contains the alleged monetary entitlements of all the claimants in this suit including those whose names are sought to be struck out. That it is, therefore, necessary that the alleged financial entitlement of those deceased persons should be calculated together and the total sum deducted from the computations in paragraphs 29, 32, 33 and 37(E) and (G) of the claimants’ statement of claim especially as there is no application for the substitution of those deceased persons with their respective next-of-kins, relying on NDIC v. ROSABOL (Nig.) Ltd &ors [2017] LPELR-41925.Finally, on issue (1), the 3rd and 4th defendants submitted that the claimants have been unable to lead cogent and credible evidence to substantiate their claim before this Court and accordingly the claims are doomed to fail.

 

  1. For issue (2), the 3rd and 4th defendants first submitted that the name of the 3rd defendant should be struck out from this suit as there is no person or entity under our law that is called the Minister for Establishments and Management Services in Nigeria today. That this fact which is of common knowledge has been admitted by the claimants in paragraph 5(b) of the claimant’s reply to the 7th defendant’s statement of defence where he said “assuming without conceding, that there is no more such nomenclature, the Claimants aver that Government is a Continuum and every succeeding Government has a date to act on the demands of the Claimants”. That the argument of the claimants that Government is a continuum is an indisputable fact but it is limited to the extent that the Government Office is still in existence. In the instant case, that the office in issue is no longer in existence but dead and buried. Therefore, on the authority of NDIC v. ROSABOL (Nig.) Ltd &ors [2017] LPELR-41925, the Court should strike out the name of the 3rd defendant from this suit as the 3rd defendant is dead.

 

  1. Having made the above submission, the 3rd and 4th defendants also submitted that the claimants’ case has not disclosed any reasonable cause of action against the 3rd and 4th defendants as to make the 3rd and 4th defendants liable to them. Referring to Alhaji Aminu Ibrahim v. Felix Osim [1988] 3 NWLR (Pt. 82) 257 at 260, the 3rd and 4th defendants submitted that a reasonable cause of action consists of two fundamental elements which the law expects the claimants’ case to establish simultaneously, side by side. These elements are: the wrongful acts of the defendant(s) sued; and the consequent damage arising from the wrongful act.The 3rd and 4th defendants submitted further that the disclosure of the requisite reasonable cause of action is a condition precedent to the Court assuming jurisdiction over a matter and, therefore, the non-disclosure of a reasonable cause of action robs the Court of jurisdiction to entertain the matter submitted to it for adjudication, refer to Dim Chukwu Emeka Odumegwu Ojukwu v. Alh. Umaru Musa Yar’Adua& 4 ors[2009] 28 NSCQR (Pt. 1) 492 at 565, Adimora v. Ajufo and ors[1988] 3 NWLR (Pt.80)1,Chevron Nigeria Ltd v. Lonestar Drilling Nigeria Ltd [2007] 31 NSCQR 91 at 100 – 101, AG, Federation & 2 ors v. Alhaji Atiku Abubakar &3 ors[2007] 10 NWLR (Pt. 1041) 1 at 121 and Chief Afolayan v. Oba Ogunrinde[1990] 1 NWLR (Pt. 127) 369 at 371.

 

  1. To the 3rd and 4th defendants, in that view of the reliefs being sought by the claimants, there is no cause of action against the 3rd and 4th defendants. That it is on record that in the course of hearing of this suit parties voluntarily entered into out of court settlement whereupon the 3rd and 4th defendants paid to the claimants all their outstanding pension arrears and thereby absolved themselves of any kind of liability to the claimants. Moreover, it is not in doubt that with the establishment of the Pension Transitional Arrangement Directorate (PTAD) sued as the 7th defendant in this suit, by the Pension Reform Act 2004 all matters related to pension now vest in the 7th defendant notwithstanding the time when the matter arose. That the privileges and liabilities of the 3rd and 4th defendants in so far as pension related matters are concerned, therefore, now belong to the 7th defendant, urging the Court to so hold. Accordingly, that from the totality of the claimants’amended statement of facts filed in this matter and the documents filed before this Court, plus the fact that the responsibility of the 3rd and 4th defendants in relation to the subject matter of this suit have been taken over by the 7th defendant by operation of law, there is no wrongful act of the 3rd and 4th defendants shown, and the claimants’ pleadings have not equally shown any damage arising from any alleged wrongful act of the 3rd and 4th defendants. That there is, therefore, no controversy or live issues between the claimants and the 3rd and 4th defendants in this matter to warrant the presence of the 3rd and 4th defendants in this matter. That the general position of the law is that, parties are bound by their pleadings, citingChief O.N. Nsirim v. E.A. Nsirim[1990] 3 NWLR (Pt. 138) 285 at 299.

 

  1. That from the claimants’ pleadings before this Court, there is nowhere an allegation was raised against the 3rd and 4th defendants in so far as the subject matter before this Court is concerned except in relation to payment of arrears of pension which has been addressed by the parties in the course of out of Court settlement earlier indicated. Consequently, the presence of the 3rd and 4th defendants has become unnecessary as the issues before this Court can be successfully determined without the presence of the 3rd and 4th defendants as parties, citing Lagos State Bulk Purchase Corporation v. Purification Techniques (Nig) Ltd [2012] 52 page 274 at 304 – 305 (incomplete citation). That this suit can be effectually and effectively determined without the presence of the 3rd and 4th defendants as the 3rd and 4th defendants are no longer responsible to the claimants in matters of pension and there is no law anywhere mandating the 3rd and 4th defendants to invest pension contribution of the claimants. In conclusion, the 3rd and 4th defendants urged the Court to dismiss this suit against the 3rd and 4th defendants for lack of proof and disclosure of reasonable cause of action.

 

THE SUBMISSIONS OF THE 5TH DEFENDANT

  1. The 5th defendant submitted a sole issue for determination i.e. whether the claimants have proved their case against the defendants, and particularly the 5th defendant and therefore entitled to the reliefs sought. To the 5th defendant, a claimant has the liberty to compose or construct a cause of action or relief in the way he likes and to the best of his ability, with the aim of obtaining judgment. He is free to use the words that will earn him judgment. But that is only as the matter goes for the claimant. That in law, that is not the final matter. The finality of the relief in terms of giving the claimant judgment can only be determined by the Court, citingsection 131(1) of the Evidence Act 2011. That in civil cases, the burden of proof is on a party who asserts a fact to prove the same because he who asserts must prove, citingAre v. Adisa[1967] NMLR 359,Afama v. Amu[1970] 1 SC 237 andAbubakar v. Joseph[2008] 8 MJSC 1 at 34. That the onus, therefore, is on the claimants to discharge the burden imposed by law. That an examination of the evidence tendered by the claimants, that is, Exhibits GO-l(a-u) to GO-10(c) shows that there is no iota or scintilla of evidence in support of their allegations or pleading.

 

  1. It is the 5th defendant’s submission that from time immemorial what shows third party deductions from an officer’s salary is his monthly pay-slip. The pay-slip shows the components of the deduction, where it is going and the purpose. That this vital piece of evidence was not tendered by the claimants and admitted in evidence. That when the 5th defendant’s counsel during cross examination asked the claimants’ witness about his pay-slips, he responded: “I was not asked for my pay-slip”.Also, when the counsel for the 1st and 8th defendants asked him a question on pay-slips, he answered thus: “Yes, in the civil service, we are usually issued with pay-slip, monthly. Yes, the pay-slips break down the components of the salary. No, I did not bring any of the pay-slips to this Court”. That the importance of documentary evidence like the pay-slip cannot be over-emphasized. It is important because it can be used to resolve an issue or conflicting evidence. It could be used as a hanger from which to test the veracity of oral testimony. That in view of CW’s responses, and withholding of the pay-slips by the claimants,the Court should invoke section 167(d) of the Evidence Act against the claimants.

 

  1. The 5th defendant went on that in evidence and under cross-examination by Mr Okoye, the 1st and 8th defendants’ counsel, CW stated that their pay was systematically withheld. Quoting him: “The withholding was not limited to monthly, quarterly, or annually. It was systemic. There was no physical deduction from our salary. It is the deferred pay, which Udoji identified, that I am talking of. Yes, the part of our salary that was deducted”.On this, the 5th defendant stated that there is nothing in the civil service known as “systematic withholding of salary” and “deferred pay which Udoji identified”. Rather under Chapter 3 of the Federal Public Service Rules 2008, which deals with discipline, an officer’s increment can be withheld or deferred and he is informed in writing stating the reason, and in the case of deferment, the period of deferment.On Udoji, that CW mentioned it both in the pleading and viva voce in Court without tendering any exhibit or evidence in support. That there is no Federal Government White Paper or circular in that regard, urging the Court to discountenance any averment in claimants’ pleading with respect to the Udoji story.That the law is clear and settled that pleading is not synonymous with evidence and so cannot be so construed in the determination of the merit or otherwise of a case. That a party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleadings, and where there is none then the averments in the pleadings are deemed abandoned, citingArabambi v. ABI Ltd[2006] 136 LRCN 1078 at 1109 andAdimora v. Ajufo[1989] 3 NWLR (Pt. 80)1.

 

  1. Continuing, the 5th defendant submitted that it is amazing that the claimants alleged that part of their salary was deducted, undeclared and deferred. To this, the 5th defendant’s counsel asked who held back the undeclared wages and CW declined to answer whether it is the 5th defendant that held back the undeclared wages. That this, to say the least, is not the hallmark of a reliable and credible witness. That it is a common ground amongst the claimants and the defendants that their pension was under the non-contributory pension scheme or Defined Benefits Scheme (DBS).This is because all the claimants retired between years 1984 to 2002. That under this scheme, civil servants (the claimants inclusive) did not make any contribution towards their pension. In fact, under section 2 of the Pensions Act Cap P4 LFN 1990 (the applicable law) pension and gratuity were grants by the Federal Government. The said section 2 provides thus: “There shall be charged on and paid out of the Consolidated Revenue Fund of the Federation such sums of money as may, from time to time, be granted by the Federal Government by way of pension and gratuity in accordance with this Act”. That the Court should note that the noun ‘grant’ is used in the above section. That contextually and according to the Longman Dictionary of Contemporary English, it means to give; money given by the State, for example educational purposes, etc. That pension and gratuity hitherto were given by the Federal Government to its retiring and retired employees for services rendered to it. That the Pension Reform Act 2004 created the Contributory Pension Scheme. Under this scheme, a percentage of a worker’s salary is deducted and kept aside as contribution to his pension. The sum deducted is declared because a worker has the right to know the components thereof and for what purposes. That from the foregoing, it is clear that there were no deductions made from the wages of the claimants which were supposed to be invested by the 5th defendant.

 

  1. Contrary to the contention of the claimants, it is the 5th defendant’s submission that under the non-contributory pension scheme the 5th defendant was not under any obligation (implied or otherwise) by sections 9 and 10 of the Finance (Control and Management) Act Cap F28 LFN 2004 to invest the purported claimants’ wages held back when no such money in fact existed anywhere. That a perusal of the said sections 9 and 10 clearly shows that it has nothing to do with investments of funds of the claimants or other retirees. Those sections relate to authorisation of Federal Government investments and the procedure for such investments. That the argument of the claimants is, therefore, a misconstruing of the provisions or erroneous interpretation.Meanwhile, that it is trite law that where a provision of a statute is clear and unambiguous, only its natural meaning is to be given its interpretation, citingOkoyede v. FCDA[2005] 27 WRN 125,Abia State AG v. AG Federatrion[2002] 17 WRN 1;[2002] 6 NWLR (Pt. 763) 264 at 485-486 andSalami v. Chairman LED[1989] 5 NWLR (Pt. 123) 539. Accordingly, that the defendants and particularly the 5th defendant is not in flagrant violation and contravention of its statutory duties both under the Constitution, the Finance (Control and Management) Act or any other law.Specifically, that the 5th defendant did not violate section 173 of the 1999 Constitution or any law governing payment of pension;it neither deducted any money from the salaries of the claimants nor held back or withheld any such money or undeclared sum having known that the claimants were under the non-contributory pension scheme.

 

  1. That it is also instructive to note that under cross-examination CW denied paragraph 8 of his deposition of 28th June 2013 and stated that the 5th defendant does not calculate, operate and pay pensions to pensioners including the claimants. That it should be recalled that CW had earlier declined to answer whether it is the 5th defendant that held back the alleged undeclared wages.Furthermore, that the 5th defendant has nothing to do with pension revision, and that once the Court finds that both the claimants and the Federal Government were not each contributing towards the pension of the former, and no money was withheld and undeclared or deferred, the entire case collapses and it will be futile to proceed to consider other issues in the claim. That it is settled law that in a claim of this nature, the onus is on the claimant to establish his claim upon the strength of his own case and not upon the weakness of the defendant. That the claimant must, therefore, satisfy the Court that upon the pleadings and evidence adduced by him he is entitled to the reliefs/declarations sought, citingDada v. Dosunmu[2006] 142 LRCN 2440 at 2459.That the claimants have failed to discharge the burden of proof in this action;there is clearly lack of evidence in support of the claimants’ pleading. That the claimants are on a gold-digging adventure but the Court should forestall the digging to avoid similar deceitful missions in future. In conclusion, the 5th defendant urged the Court to dismiss the claimants’ case.

 

THE SUBMISSIONS OF THE 6TH DEFENDANT

  1. The 6th defendant submitted a sole issue for determination i.e. whether the claimants have established any reasonable cause of action against the 6th defendant; and answered in the negative. That from the inception of this suit, the claimants did not in any way show to the Court any claim whatsoever they have against the 6th defendant. That the 6th defendant is created by statute as regulator of pension matters in Nigeria and nothing more. That the role of the 6th defendant as the regulator has been misconceived by the plaintiffs. That this suit as presently constituted does not in any way disclose any reasonable cause of action against the 6th defendant. That it is trite law that before any public officer is sued, he is to be given 3months’ notice of the action to be brought against him as per the Public Officers Protection Act. That the 6th defendant is only a Director of the Pension Commission which cannot be sued in his capacity without the statutory notices because the works and duties are quite distinct from that of the Commission. They are two separate persons in law.

 

  1. Furthermore, that the 6th defendant cannot be sued because he is not a juristic person for the purpose of this suit, referring to The FGN & ors v. Shobu Nig. Ltd & ors[2013] LPELR-21457(CA). Citing Asogwe v. Chukwu[2003] 4 NWLR (Pt. 811) 540 at 551, section 318 of the 1999 Constitution, section 18 of the Interpretation Act, Elijah Adebiyi (Trading under the style of Delock Association) &ors v. National Institute of Public[2013] LPELR-22628(CA), CBN v. Amao [2010] 5-7 MJSC (Pt. 111) 1 and section 2(a) of the Public Officers Protection Act Cap 379 LFN 1990, the 6th defendant submitted that the case against him is statute-barred. It is alsothe 6th defendant’s submission that the claimants have not established any reasonable cause of action against the 6th defendant sir, citingDehinsilu v. Mondee Pharmacy Ltd [2009] 35 WRN andChevron Nig. Ltd v. Lonestar Drilling Nig Ltd [2007] All FWLR (Pt. 3861) 633. That from the totality of evidence adduced before this Court by the claimants, nothing has been shown to portray the fact that the 6th defendant’s act had given rise to any enforceable claim against him by the claimants.

 

  1. The claimants had contented that it is the duty of the defendants including the 6th defendant to review pension after every five years. To the 6th defendant, the said section referred to in that regard only applies to the National Assembly; and so it is not the duty of the 6th defendant to review pension after every five years. That it will be tantamount to assuming the duties of the National Assembly. In any event, that all through the proceeding of this suit no mention was made for or against the 6th defendant. That a careful perusal of all the reliefs sought, shows that there is no single relief sought against the 6th defendant or his office. Accordingly, that this suit is just an academic exercise and a public officer who performs his duty should not be subjected to unnecessary legal tussle in other not to jeopardize the development of this nation, citingSalik v. Idris[2014] 15 NWLR (Pt. 1429) 36,Plateau State v. AG, Federation[2006] 3 NWLR (Pt. 967) 346,Odedo v. INEC[2008] 17 NWLR (Pt. 1117) 554 andOkotie-Eboh v. Manager [2004] 18 NWLR (Pt. 905) 242.

 

  1. That the contention of the claimants does not in any way affect the duties and status of the 6th defendant. That the claimants in paragraph 31 of their statement on oath contented that as stipulated by section 9 of the Finance (Control and Management)Act 2004, the 5th defendant is supposed to invest their deferred wages and that of the donors. In practice, that in so doing the 5th defendant provides the operating capital and uses same to invest the capital base belonging to him and donor. That the failure of the 5th defendant to perform this duty shows that he and the donors have been deprived of respective operational capitals. To the 6th defendant, under the Finance (Control and Management) Act, it is the Accountant General that is in custody of public funds and what amounts to public money, of which the subject matter of this suit is part and parcel of. That public fund is subject to appropriation by the National Assembly, and it is the duty of the National Assembly to have control over these funds.That the Minister charged with responsibility for matters relating to finance also supervises the expenditure and finances of the Federation as to ensure that a full account is made to the legislature and its financial control is maintained and for such purpose shall, subject to the provisions of the 1999 Constitution and of the Financial (Control and Management) Act, have the management of the Consolidated Revenue Fund and supervision, control and direction of all matters relating to the financial affairs of the Federation which are not by law assigned to any other minister.That the 6th defendant is not in any way mentioned in the Financial (Control and Management) Act to be in control or management of public fund or money which is the subject matter of this suit. In conclusion, the 6th defendant urged the Court to dismiss the entire suit for being incompetent, baseless, and vexatious and its aim is nothing but to annoy the 6th defendant in this suit.

 

THE SUBMISSIONS OF THE 7TH DEFENDANT

  1. The 7th defendant submitted three issues for determination, namely:
  • Whether the claimants have proved their claims before this Honourable Court.
  • Whether the claimants are entitled to the reliefs sought.
  • Whether the 7th defendant is a competent party, not being a juristic or juridical person.

 

  1. On issue (1), the 7th defendant submitted that there was never a time that part of the wages of the claimants or any worker who falls under the old Defined Benefits Scheme (DBS) were withheld. That the Pension Reform Act 2004 created the Contributory Pension Scheme to run side by side with the DBS until such a time when the DBS is phased out completely. The expiration date is when the last pensioner under the DBS has died. That the DBS applies to any worker who retired by 25th June 2004, or if by that date, has 3 or less years to retire. That the cut-off date for the DBS, therefore, is any worker who retires on or before 25th June 2007. That any worker due to retire after the cut-off date of 25th June 2007 is not part of the DBS but the Contributory Pension Scheme and would have part of his wages deducted and kept aside as contribution to his pension.The 7th defendant went on that deductions made from workers’ wages as a contribution towards their pension, is declared as it is on a percentage basis. That the defendants cannot make any undeclared deductions from the wages of their workers as it is the right of the workers to know what deductions are made from their wages and for what purposes, such as taxes, union dues, etc. That it is important to state here that the claimants are part of the Defined Benefit Scheme and no wages were, therefore, deducted from their wages for any investment as alleged by the claimants. That pension review could be upwards, downwards or even to maintain status quo depending on how buoyant and stable the economy is.The 7th defendant continued that any pension increase must not correspond with the increase in wages of civil servants. Pensions are a percentage of wages depending on the length of service of a pensioner. Pension reviews are not tied to a specific percentage, especially bearing in mind that pensions are not subject to taxation. Therefore,that salary increases for workers must not necessarily translate to pension increase.

 

  1. Furthermore, that the claimants have no statutory power to compute or calculate their pensions anyhow they want; asdoing otherwise is a recipe for disaster as any pensioner can compute their perceived entitlements in any manner, just like the claimants have done in this case. That pensions are correctly computed by the 7th defendant based on approved salary structure issued by the National Salaries, Incomes and Wages Commission. Additionally, that the claimants have erroneously put themselves in the same category as pensioners under the contributory scheme. These pensioners contribute towards their pensions while the government contributes a percentage as well. It is these contributions that are invested and managed by Pension Fund Administrators on behalf of the contributory pensioners. That the claimants cannot belong to the DBS and the Contributory Pensions at the same time.The 7th defendant proceeded that there is no implied duty on the defendants, particularly the 5th defendant, to invest the claimants’ money that does not exist, or to invest money from the contributory pension. That it is not in dispute that circulars have been issued by the 4th defendant at various times for pension increases. Indeed, that circulars are the instruments used to give life to government’s policies. However, none of these circulars have been for the deduction of wages from persons under the DBS or for the investment of these phantom deductions.

 

  1. It is 7th defendant’s submission that the working papers referred to by the claimants have no legal basis for computation of their pension entitlements. That the only body legally empowered to do so now is the 7th defendant by virtue of the Pension Reform Act 2014, and prior to August 2013, the various pension offices and boards that existed which includes the 4th defendant as it relates to the pensions of the claimants. That the claimants have never been denied their pension entitlements. Accordingly, that the claim of the claimants is baseless and an exercise in futility;and they are not entitled to any of the reliefs sought in this matter.The 7th defendant then urged the Court to dismiss all the claims of the claimants, same being frivolous, speculative and lacking in merit.

 

  1. To the 7th defendant, one striking feature of this suit is the total lack of evidence in proof of the wild assertions of the claimants. That systemic deduction from the wages of the claimants are serious allegation that should not be made lightly against anybody. Furthermore, evidence of such act of systemic deduction against the claimants cannot be easily erased. However, no evidence to demonstrate to the Court that there was any deduction. That the claimants have not been able to prove this allegation against the 7th defendant and same ought to be dismissed. The 7th defendant thus submitted that the claimants could not prove the allegation of deduction from their wages. That the Court cannot act on speculation but on cogent and credible evidence, citingOdi v. Iyala[2004] 8 NWLR (Pt. 875) 283 at 311. That in a civil suit, the person who asserts has the primary burden of proving his assertion. That the failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden of proof on the claimants. That in the instant case, the claimants are yet to discharge the burden of proving their assertion, citingUmeojiako v. Ezenamito[1990] 1 NWLR (Pt. 126) 2 at 47, 48 and 53, sections 131(1) and 132 of the Evidence Act 2011,Dosumu v. Salgitter GMBH[1996] 3 NCLC (Pt. 3) 632 and Onyekaonwu v. Okwubiri[1996] 1 All NLR 32 at 35. That since the claimants failed to discharge the burden of proving the alleged deduction of their wages against the 7th defendant, this suit must fail.

 

  1. In any event, that the burden is clearly on the claimants to establish the purported Investment Income which was aborted by the 7th defendant by evidence or materials of convincing quality and credibility which will now put the Court in a commanding height to enable it properly and judicially make the orders sought. That by submitting Exhibits GO-1(a) to GO-10(c) the claimants could not demonstrate to the Court how their investment income was aborted or how economic losses resulted to due to non-funding of their investment. Furthermore, that mere assertions of systemic deduction, investment income aborted or economic loss cannot suffice especially where they are seriously controverted and challenged. That in a matter of this nature, the Court will not declare that there was systemic deduction or economic loss resulting from the actions of the defendants simply because the claimants says so and in the absence of credible evidence or proof, citingAlhaji Tajudeen Ibrahim Olagunju v. AlhajaHabibat Yahaya unreported Appeal No. CA/IL/19/2000 delivered on Thursday 12th June 2003 by the Ilorin Division of the Court of Appeal,Sokwo v. Kpongbo[2003] 2 NWLR (Pt. 803) 111 at 148, Imam v. Sheriff[2005] 4 NWLR (Pt. 914) 80 at 167,Metibaiye v. Narelli International Limited[2009] 16 NWLR (Pt. 326) 343-345,Odusole v. Military Governor of Ogun State[2002] 10 NWLR (Pt.776) 566 at 602,Womiloju v. Kiki[2009] 16 NWLR (Pt. 1166) 143 at 155 and PDP &anor v. INEC &ors[2012] LPELR-8429. Finally, that failure by the claimants to pin down the 7th defendant as the person responsible for aborting their alleged investment income or economic loss consequential to non-funding the alleged investment is sufficient to have the claimants’ claim dismissed.

 

  1. For issue (2), the 7th defendant submitted that from the facts, the allegation of aborting the investment income of the claimants has not been established as argued under issue (1), which argument the 7th defendant adopted. That it is a fundamental principle of law that the burden of proving the entitlement to any relief sought before the Court lies on the party seeking such relief, citingsection 131(1) of the Evidence Act 2011. That the claimants failed to discharge this burden of proof placed on them by law; and sothey are not entitled to N281,730,269.51 (Two Hundred and Eighty-One Million, Seven Hundred and Thirty Thousand, Two Hundred and Sixty-Nine Naira, Fifty-One Kobo) as pension arrears, pension liability, Investment Income aborted, Economic loss consequential to non-funding or any other sum for that matter or any other relief claimed, citingOdogwu v. AG, Federation[1996] 40/41 LRCN 1454 at 1463.

 

  1. Regarding issue (3) i.e. whether the 7th defendant is a competent party, not being a juristic or juridical person, the 7th defendant submitted that it is a long established principle of law and condition precedent to the vesting of jurisdiction on a Court, that the parties before the Court must be competent, citingGeneva v. Afribank Nigeria Plc[2013] 14 NWLR (Pt.1373) 172.That the 7th defendant, as presently constituted is unknown to law, non-existent, and can neither sue nor be sued. That the law recognizes two categories of persons who can sue and be sued in Court. They are natural persons, with life, mind, brain and physical body and other artificial persons or institutions having juristic personality, citing AG, Federation v. ANPP & ors [2003] 12 SCM 1 at 12; [2003] 18 NWLR (Pt.851); [2003] 12 SC (Pt. II) 146 andAlhaji Afia Trading & Transport Co. Ltd v. Vesitas Insurance Co. Ltd [1986] 4 NWLR (Pt.38) 802 and The Executive of the Estate of General S. Abacha (Deceased) v. Eke-Spiff&ors[2009] 7 NWLR 97 SC. That this is because a law suit is in essence the determination of legal rights and obligations in any given situation. Therefore, only such natural juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before courts of law, citingFawehinmi v. NBA (No.2)[1989] 2 NWLR (Pt. 105) 595. That the 7th defendant, “Pension Transitional Arrangement Department, Federal Civil Service” does not exist. It is neither a natural juristic person nor a body of persons and, therefore, not capable of being sued. That the only entity recognized by the Pension Reform Act is the Pension Transitional Arrangement Directorate.

 

  1. To the 7th defendant, it is trite that that the competency of parties to a suit goes to the jurisdiction of the Court to entertain the dispute brought before it, citingAtaguba & Co. v. Gura Nig. Ltd [2005] 8 NWLR (Pt.927) 429,Development Policy Centre v. Olaniran[2018] LPELR-44741(CA),FCE (Technical) Gusau & anor v. Abubakar[2013] LEPLR-22203(CA) and Matari & ors v. Dangaladima & anor[1993] 3 NWLR (Pt.281) 266; and urging the Court to strike out the name of the 7th defendant. In conclusion, the 7th defendant urged the Court to hold that the claim of the claimants is baseless and an exercise in futility.

 

THE CLAIMANTS’ REPLIES ON POINTS OF LAW

  1. Like I pointed out earlier, the claimants filed four sets of reply on points of law in response to the respective addresses of the defendants. I shall take them in the order that they were filed. But I must point out that the replies on points of law were in the main re-argument of already made points. I shall accordingly restrict the claimants to what actually amounts to a reply on points of law.

 

Reply on Points of Law to the Submissions of the 1st and 8th Defendants

  1. To the claimants, even though the 1st and 8thdefendants correctly stated the law as contained in the case of Maximum Insurance Co. Ltd v. Owoniyi (supra) they cited, they misapplied the law to the facts of this case with respect to the proper understanding of section 133 of the Evidence Act 2011. The 1st and8th defendants had submitted that the claimants were asserting positive facts or the existence of certain facts; but that this is far from the truth, referring to paragraph 19(a) and (c) of the claimants’amended statement of claim as evidence of negative assertions contrary to the submissions of the 1st and 8th defendants. That the law is, therefore, clear as submitted by the 1st and 8th defendants themselves in Maximum Insurance Co. Ltd v. Owoniyi (supra) that “a man cannot be expected to prove a negative assertion”, citing also Intercontinental Bank Plc v. Hilman & Bros Water Engineering Services Nig Ltd[2013] LPELR-20670 (CA). That when the defendants, including the 1st and 8thdefendants, denied this negative assertion in their statement of defence, what they were doing in effect was to make a positive assertion that pensions have been reviewed every five years. That the onus of proof, therefore, shifted to them to show that pension was reviewed every five years in accordance with section 173(3) of the 1999 Constitution. That it is for the 1st and 8th defendants, therefore, to show evidence that contrary to the negative assertion of the claimants, pensions have been reviewed every five years because it is against them that judgment will be given in this regard if no evidence is given on either side.

 

Reply on Points of Law to the Submissions of the 2nd Defendant

  1. To the claimants. the submission of the 2nd defendant to the effect that pension payment is sometimes delayed because of failure of pensioners to appear for verification is an admission by itself that there was delay in payment of pension and a confirmation that pension is sometimes “withheld” to the disadvantage of pensioners including the claimants. In the alternative to this submission and in the event that this Court does not agree that it is an admission, that the submissionscontain facts which the 2nd defendant cannot give as evidence in their address at this stage. They are facts which ought to have been pleaded and evidence proffered in respect thereof. That the 2nd defendant did not only fail to plead these facts but they also failed to give evidence on those facts. That it is trite law that a written address no matter how brilliantly written cannot include evidence which was not proffered at the trial, citingMohammed v. The State[2010] LPELR-9019(CA) andCAN &anor v. Harrison &ors[2012] LPELR-8004(CA).

 

  1. The 2nd defendant had submitted that pension can be reviewed upwards, downwards or by maintaining status quo because section 173(2) of the Constitution provides for the exception under which pension can be altered and they relied on the phrase “except to such extent as permissible under any law including the Code of Conduct”. In other words, that this exception to section 173(2) allows Government to alter pension to the disadvantage of pensioners. To the claimants, in their pleadings at the trial the 2nd defendant failed to plead or give evidence of such circumstances or code of conduct or even refer to any law that allows or necessitates the delay and/or non-payment of pension’ instead, the 2nd defendant only gleefully referred to the exception in section 173(2), failing to prove that exception and the reason for the delay of payment of pension as and when due as complained by the claimants.

 

  1. The claimants went on that the 2nd defendant had taken up the gauntlet on behalf of a party not before the Court. That in their estimation, this is a party that ought to be before the Court and they submitted that the claimants ought to have directed their claim on arbitrary review of pension to the said party i.e. the National Salaries Income and Wages Commission. Again, that the 2nd defendant gave evidence on the work of that Commission. They said, for example, that it is the agency that deals with salaries and pensions and that they are the ones who communicate the percentage of review to the 7th defendant and other agencies of government and that the Commission issued Exhibit GO3(b-i). All these, to the claimants, are facts which ought to have been pleaded and proved but which were not and to that extent the Court should discountenance the submissions.

 

  1. Secondly, that the 2nd defendant cited the provision of section 3(g) of the National Salaries, Income and Wages Act which empowers the Commission, inter alia, to “recommend appropriate mechanism for periodic review of retirement benefits”.To the claimants, this very section shows that it is not the Commission that is responsible for reviewing pension. All it does is to recommend to Government as represented by the defendants in this suit. It is the Government that takes the decision. Government may decide to set aside the recommendation and say it will act according to law i.e. according to the Table to the First Schedule of the Pension (Reform) Act 2004. But the Government having failed to do so, it is the Government that should take responsibility for that failure and not the Commission who in this particular respect is an agent of a disclosed principal. In other words, having sued the government who took the decision to review pension arbitrarily through circulars instead of according to law, there was no need to sue the Commission. The claimants then urged the Court to discountenance those submissions about the National Salaries Income and Wages Commission being a necessary party in this suit. That they are not a necessary party in this suit. Also, that Mrs Oluchi Anyanwoko v. Christie Okoye (supra) cited by the 2nd defendant to the effect that a judgment or order made against a person who is not a party to a suit is to no avail, is irrelevant in the circumstance. That the judgment that will be made by this Court in this case will be against the decision of the Federal Government as represented by the parties in this suit to review pension arbitrarily and not necessarily against the recommendation of the Commission.

 

  1. Furthermore, that the submission of the 2nd defendant to the effect that the Commission was not given a fair hearing goes to no issue as no allegation has been made against the Commission per se but against its principal, the 1st defendant and the other defendants herein who acted upon the Commission’s recommendation. In conclusion, the claimants urged the Court to reject the submissions of the 2nd defendant and give judgment to the claimants as prayed.

 

Reply on Points of Law to the Submissions of the 3rd and 4th Defendants, the 5th Defendant and the 6th Defendant

  1. Reply on Points of Law to the Submissions of the 3rd and 4th Defendants. In their reply here, the claimants reiterated that despite the submissions of the 3rd and 4th defendants, the issue still arises from arrears of pension that despite the payment of same in terms of the settlement of the claim on arrears of pension, the failure to pay the said pension as and when due is itself a violation of the provisions of section 173 of the 1999 Constitution for which the claimants are entitled to damages for the failure. The claimants then submitted that since the 3rd and 4th defendants did not respond to the claimants’ issues (1), (2) and (3), they must be read to have conceded to the submissions made in respect of those issues, citing Federal Ministry of Commerce & Tourism v. Eze [2005] LPELR-5626(CA) and Air Via Ltd v. Oriental Airlines Ltd [2004] 4SC (Pt. II) 37 at 52-53. That contrary to the submission of the 3rd and 4th defendants, the issue of investment by the 5th defendant is not the gravamen of the claimants’ claim but just one out of the four claims that form the gravamina of the claimants’ claims. As regards the submissions of the 3rd and 4th defendants that they have nothing to do with pensions and that no cause of action is disclosed against them, the claimants submitted that the 3rd and 4th defendants forget that not only do the claimants’ pleadings make allegations against all the defendants together, the claimants also specifically claim in paragraph 37(a)-(h) jointly and severally against all the defendants. That it is the law that where a claimant alleges that several persons are jointly liable for a wrong done to him or her, the claimant is at liberty to select and sue anyone or any number of them as he feels he can recover from. That the issue of contribution among such persons to meet the claim is their internal affair, citing Iyere v. Bendel Feed and Flour Mill Ltd [2008] 7-12 SC 151; [2008] 18 NWLR (Pt. 1119) 300 at 336 and Ifeanyichukwu (Osondo Co. Ltd) v. Soleh Boneh Ltd [2000] 5 NWLR (Pt. 656) 322 at 337. On the submission of the 3rd and 4th defendants that upon the striking out of the names of the deceased the claimants ought to have amended the tabulated computations to remove the financial entitlements of the deceased and that having not done so the Court cannot be expected to embark on a voyage of discovery citingNDIC v. Rosabol (supra), the claimants answered that this case has nothing to do with the submission made. And that the way the reliefs are couched in paragraph 37(a)-(h), the judgment according to those reliefs can only inure to the benefit of the existing claimants at the time of judgment. That the Court will notice that the only reliefs that pertain to the claimants individually are reliefs in paragraphs 37(e) and (g) and it is simple logic that the persons who are deceased on that list will not and cannot take advantage of the judgment in respect of those reliefs as their names would have been struck out in the course of the judgment, urging the Court to discountenance this submission of the 3rd and 4th defendants.

 

  1. Reply on Points of Law to the Submissions of the 5th Defendant. That the 5th defendant addressed only the issue that particularly concerns himi.e. issue (4) of the claimants and has totally ignored all the other issues raised in the claimants’ case; as such, all the claimants’ submission in respect of the other issues having not been answered are deemed conceded and the Court should so hold, citing Federal Ministry of Commerce & Tourism v. Eze [2005] LPELR-5626(CA) and Air Via Ltd v. Oriental Airlines Ltd [2004] 4SC (Pt. II) 37 at 52-53. On whether the 5th defendant has a duty to invest any deductions made from the claimants’ salaries, the claimants merely reiterated their earlier arguments, stressing that the word “may” used in section 9 ofthe Finance (Control and Management) Act entails one of those circumstances, in law, where “may” means “shall”. Furthermore, that pension is one of the public funds defined in the interpretation section ofthe Finance (Control and Management) Act inter alia as money held by the Accountant-General in his official capacity and that under the said Act, it is the Accountant General that has custody of public funds. That the point being made here is that there is nothing quite new in the new contributory scheme in that this law and the definition given to the word “pension” in the 1974 Udoji Report (Exhibit GO 9) is that under the non-contributory scheme, it is presumed that a portion of the salary of workers in the civil service was being “withheld” and “deferred” later for payment as pension. That as defined by Udoji, that “money withheld during the period of employment” is “returned with interest to the employee after he has ceased to work”. So it automatically follows that if the money is to come back with interests there must have been an investment which yielded income in terms of interest. It is our submission that if the investment powers given to the Accountant-General in section 9 ofthe Finance (Control and Management) Act impliedly includes public funds which should have been invested and the income of which should have been used to pay pensions of retired workers as and when due instead of making pension a budgetary affair every year and whenever Government cannot fund the budget, of course, it is the pensioner that suffers, thus resulting in chronic arrears of payment of pensions as always witnessed in this country. In fact, that it is in the realisation of this failure that the new contributory scheme was promulgated in 2004 under the Pensions Reform Act so that pension will not suffer, under the new scheme, not being a budgetary matter any longer, but one borne out of investment. That if the Court can find that the 5th defendant had such a duty in law and had admittedly failed in carrying out same, the claimants would and should be entitled to as least general damages for that failure.

 

  1. Reply on Points of Law to the Submissions of the 6th Defendant. The 6th defendant had submitted that he is a public officer and the claimants ought to have sued within 3 months of the occurrence of the wrong. In answer, the claimants submitted that there are exceptions to the rule contained in that Act. One of them is where there is a continuance of damage or injury, the action can be brought after 3 months. That in the instant case, the claimants have pleaded in paragraphs 19 and 20 in their amended statement of claim wrongs which are of a continuous nature e.g. paragraph 19(d), which states that pensions have been reviewed since 1991 till date in accordance with executive circulars instead of according to law, as pleaded in paragraph 25. Also in paragraphs 17 to 19(a) and (b), the claimants made the allegations that pension has not been reviewed every five years as stipulated by the Constitution. That these are continuous wrongs and, therefore, fall under one of the exceptions, citingAnozie v. AG, Federation [2008] 10 NWLR (Pt. 1095) 278 at 290. Secondly, that where the allegation is that a public officer has acted outside the colour of his office, or outside his statutory or constitutional duty, as pleaded in paragraph 19(d) of the amended statement of claim, the public officer cannot take advantage of the law, citingHassan v. Borno State Government[2016] LPELR-4025(CA) and University of Ibadan v. Kwara State Government[2013] WRN 106 at 172; and urging the Court to discountenance their argument. In any event, that the same defendant who says he is a public officer turned around to say he is not a juristic person. That apart from the fact that he is contradicting himself, this is a fact which he ought to have established by way of evidence either at the trial or through a motion, urging the Court to discountenance the submission. On whether this action discloses a reasonable cause of action, the claimants submitted that the action of the defendants (which of course includes the 6th defendant) and their failure to administer pension matters properly is a violation of the Pension Reform Act 2004 and the Constitution, which action is enough a reasonable cause of action against the defendants. In any event, that the 6th defendant is sued jointly and severally with the other defendants. The claimants urged the Court to note that in deciding whether there is a reasonable cause of action, it is only the writ of summons and statement of claim that the Court will look at, citingAjayi v. Military Administrator of Ondo State [1997] NWLR (Pt. 504) 237 andChartered Brains Ltd & anor v. Intercity Bank Plc [2009] 15 NWLR (Pt. 1165) 445. In conclusion, the claimants urged the Court to reject the submissions of the 3rd to 6th defendants respectively and grant the claimants’ reliefs as prayed.

 

Reply on Points of Law to the Submissions of the 7th Defendant

  1. Once again, the claimants submitted that the submissions of the 7th defendant do not cover all the issues raised by the claimants’ case. The 7th defendant had submitted that pensions are not tied to a specific percentage because they are not subject to taxation. To the claimants, this submission is wrong. That pension under the Defined Benefit Scheme or Non-Contributory Scheme is tied to specific percentages under Table A of the First Schedule to the Pension Reform Act 2004. That this is specifically provided for in section 1(1) and the First Schedule to the said Act, read together with sections 8(1) and 8 (3) of the said Act.

 

  1. Also, the 7th defendant had submitted that pension could be reviewed “upwards, downwards or even by maintaining the status quo depending on how buoyant and stable the economy is”. To the claimants, this submission of the 7th defendant is not in tandem with the provisions of section 173(2) of the 1999 Constitution, which read together with section 173(1) expressly states inter alia that pension shall not be “altered to the disadvantage” of the pensioners. It is the claimants’ submission that review of pension downwards will amount to altering pension to the disadvantage of pensioners and it will be unconstitutional.In other words, the interpretation of that section could only mean that pension should not be reviewed downwards;otherwise, it would only occasion a disadvantage to the pensioner.

 

  1. The 7th defendant posited that “pensions are correctly computed by the 7th Defendant based on approved salary structure issued by the National Salaries, Income and Wages Commission”. Again to the claimants, this submission is contrary to law. That the National Salaries, Income and Wages Commission cannot issue salary structure that are contrary to the provisions of sections 1 and 8 of the Pension Reforms Act 2004, which stipulate percentages to be paid to the claimants who are under the Non-Contributory Scheme and where they so do, they cannot pay any sum lower than what that Act prescribes without an amendment of that law. That this is exactly what the defendants have done by Exhibits GO-3(g) to GO-3(i), which are circulars issued by the National Salaries, Income and Wages Commission. That those circulars are unlawful and in fact illegal and should be discountenanced. That the said circulars are analogous to the Manual and Guidelines usually issued by the Independent National Electoral Commission (INEC) to guide the conduct of elections in Nigeria which are usually issued by INEC pursuant to the provisions of section 149 of the Electoral Act2010, (as amended).That the Supreme Court had occasion to interpret the legality of such circulars or manuals in Buhari v. Obasanjo[2005] 13 NWLR (Pt.941) 1 and it was held per Akintan JSC that any provision in any circular or manual which is in conflict with the mandatory provisions of the Act will be ultra vires, null and void. This is because the Manuals or Guidelines were made pursuant to the powers given to INEC by the enabling Act i.e. the Electoral Act. Therefore, regulations or manuals made pursuant to that power must not be inconsistent with or seek to override or amend the express provisions of the enabling law. In similar vein, that the circulars issued by the National Salaries, Income and Wages Commission to fix pension outside the express provisions of the Pension Reform Act, 2004 are ultra vires, null and void.

 

  1. The 7th defendant had agreedthat circulars have been issued by the 4th defendant to increase pension and that circulars are the instruments by which Government policies are given life. To the claimants, that is not the point here. The point is that such circulars must be in accordance with the law i.e. section 173(1) to (3) of the Constitution and sections 1 and 8 and the First Schedule, Table A of the Pension Reform Act 2004; otherwise they must be struck down as being null and void.

 

  1. Finally, that the 7th defendant argued that it is not a juristic person and so cannot be sued. That the 7th defendant did not raise this point in its pleadings i.e. statement of defence and so no issue was joined on it. Rather, the 7th defendant submitted for the first time in its written address that its name is “Pension Transitional Arrangement Directorate” not “Pension Transitional Arrangement Department”. It did not refer to any law or the law setting it up to show that this is its real name. That there is, therefore, no way for the Court to determine the veracity of its claim. In any event, that the proper way for the 7th defendant to have brought this point is by way of a proper motion or notice of preliminary objection, citingMamman&anor v. Hajo[2016] 1-2 SC (PT.III) 1 at 22. That the 7th defendant did not do so. Instead,it defended the suit in its name as sued on the originating process. The claimants thus urged the Court to discountenance this submission as raised by the 7th defendant.In any event, that Order 13, Rule 5 of the National Industrial Court (Civil Procedure) Rules 2017 expressly empower the Court to order a correction of the name of a party which has been incorrectly stated on the processes. To the claimants, contrary to the submission of the 7th defendant, this is a classic example of a misnomer, which does not necessarily vitiate the proceedings, but which can be amended, citingMaersk Line & anor v. Adide Investment Ltd & anor[2002] 4 SC (Pt.) – incomplete citation. That a misnomer that will vitiate proceedings must be one that raises reasonable doubt as to the identity of the person intending to sue or be sued, citingACB v. Eurotrade Ltd[1998] 2 NWLR (Pt.536) 19. Also, that it has also been held that where parties and Court are not misled and there is no miscarriage of justice as a result of misdescription of parties, such misdescription will not be fatal to case, citingOnwuka Kalu v. Chief Victor Odiu[1992] 6 SCNJ 76. The claimants accordingly urged the Court to discountenance the 7th defendant’s submissions in this regard and do substantial justice in the circumstances. In conclusion, the claimants urged the Court to consider favourably the totality of their submissions and hold in favour of the claimants.

 

COURT’S DECISION

  1. I carefully considered all the processes filed and the submissions of the parties. Given the submissions of the parties, a number of issues naturally arise; some pertaining to the merit of the case, others merely of a general nature. I indicated earlier that the claimants’ replies on points of law were in the main re-argument of the points they already made. The law is that a reply on points of law is meant to be just what it is, a reply on points of law. It should be limited to answering only new points arising from the opposing brief. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. It is not a form to engage in arguments at large. Alternatively put, a reply on points of law is not meant to improve on the quality of a written address; a reply brief is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA), Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC), Ojo v. Okitipupa Oil Palm Plc [2001] 9 NWLR (Pt. 719) 679 at 693, Ogboru v. Ibori [2005] 13 NWLR (Pt. 942) 319 and Cameroon Airlines v. Mike Otutuizu [2005] 9 NWLR (Pt. 929) 202. The effect of non compliance is that the Court will discountenance such a reply brief. See Onuaguluchi v. Ndu [2000] 11 NWLR (Pt. 590) 204, ACB Ltd v. Apugo [1995] 6 NWLR (Pt. 399) 65 and Arulogun & ors v. Aboloyinjo & anor [2018] LPELR-44076(CA). Accordingly, in highlighting the issues addressed by the claimants in their respective replies on points of law, I left out and so discountenanced all those submissions that qualify as re-argument.

 

  1. At the start of this judgment, I indicated that none of the defendants called any witness, and accordingly the only evidence due for evaluation by the Court is the evidence of the claimants. What this means is that the pleadings of the defendants, not supported by any evidence, are pleadings without evidence, which amount to nothing in law. The law is that pleadings cannot constitute evidence; as averments in pleadings on which no evidence is adduced are deemed to have been abandoned.Mere averments of facts in pleadings do not constitute proof of such facts unless such facts are admitted. See Ifeta v. SPDC [2006] LPELR-1436(SC); [2006] 8 NWLR (Pt. 983) 585. The converse is also true. Evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. So, no matter how brilliant the address of counsel is, it cannot be a substitute for pleadings or evidence. Courts are only enjoined to limit, and restrict themselves to pleaded and proved facts. See Okwejiminor v. Gbakeji & anor [2008] LPELR-2537(SC), Ajayi v. Total Nigeria Plc [2013] LPELR-20898(SC), Adam v. Shaibu & ors [2016] LPELR-40179(CA), Lewis & Peat Ltd v. Akhimen[1976] SC 157 at 160,Niger Construction v. Okugbeni[1987] 4 NWLR (Pt. 67) 787 at 792,Igwe v. AICS[1994] 8 NWLR (Pt. 363) 459 at 481 and Salawu Yoye v. Olubode &ors[1974] 10 SC 209 at 215. What all of this means is that the pleadings of the defendants are deemed abandoned as no evidence was led on them. Also, arguments of say the 2nd defendant as to verification exercise undertaken by the defendant to ascertain that pensioners are still alive to collect pension and the state of the economy, which may allow for the alteration of pension to the disadvantage of the claimants, depict counsel giving evidence since these facts are not pleaded and so are not before the Court.

 

  1. As indicated, the fact of the defendants not calling any witness signifies that their pleadings go to no issue (in fact, deemed abandoned). This means that there are no defence pleadings before the Court. So when the claimants pleaded that their pensions have not been reviewed every five years over the years, the defendants cannot argue that they denied this fact, which denial then means that the burden is on the claimants to prove that their pensions were not reviewed every five years as required by law. The point is that there was no denial by the defendants in the first place to warrant coming to the conclusion the defendants reached in their submissions. The only problem is that of the eight reliefs prayed for by the claimants, four are declaratory reliefs.

 

  1. All parties agree, which is actually the law, that the burden of proof is on the person who would lose the case if no other evidence is adduced; in this case, it is the claimants who would lose if no evidence is adduced. The burden is thus on the claimants to prove their case; and given the four declaratory reliefs the claimants’ seek, the burden is a heavy one and is not solved by reference to any theory of negative assertion as the claimants seem to have done. In seeking declaratory reliefs, the claimants have unwittingly boxed themselves into a very tight corner; unfortunately, a very tight corner that no negative assertion theory can help. In declaratory reliefs, the claimant succeeds, not just on his own evidence and not on the weakness of the defendant’s defence, but the claimant cannot even rely on the evidence of the defendant in order to succeed. See Dmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, which relying on Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1, held that the claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the defendant. See also this Court’s decision in Mr Thaddeus Obidike & ors v. Minister of Lands, Housing and Urban Development & ors unreported Suit No. NICN/LA/632/2013, the judgment of which was delivered on 4th December 2018 especially paragraph 65. The Courts have rationalized this on the ground that the grant of a declaratory relief is discretionary. SeeMTN Nigeria Communications Ltd v. Corporate Communication Investment LtdLER[2019]SC.674/2014, citing and relying on Okoye v. Nwankwo[2014] LPELR-23172(SC);[2014] 15 NWLR (Pt.1429) 93, Kwajaffa &ors v. BON Ltd[2004] 13 NWLR (Pt 889) 146 andEmenike v. PDP[2012] 12 NWLR (Pt.1315). The claimants’ burden of proof in this case is accordingly a heavy one.

 

  1. The defendants raised a number of objections. There was the argument as to the 6th and 7th defendants not being juristic persons capable of being sued. This argument, however, seems blind to the definition of an employer under section 91 of the Labour Act, a definition that includes an agent, manager or factor as employer. In Ogunbayo Oluwole Michael v. Fidelity Bank Plc & anor unreported Suit No. NICN/LA/350/2013, the judgment of which was delivered on 13th December 2017, this Court held at paragraph 33 thus:

…The claimant put the 2nd defendant in this suit as “Managing Director Fidelity Bank Plc”. To the defendants, the 2nd defendant is not a juristic person and does not fall within the purview of the legally recognized exceptions to the juristic personality. I need not expend energy on this objection of the defendant as to the juristic personality of the 2nd defendant. In labour relations, the definition of an employer has an expansive meaning as to include officers of the employer himself. For instance, section 91(1) of the Labour Act Cap. L1 LFN 2004 defines the “employer” to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first-mentioned person and the personal representative of a deceased employer”. Of course, by section 18(1) of the Interpretation Act 2004, “person” includes any body of persons corporate or unincorporated. Since the definition of an employer includes the agent, manager or factor of an employer, the 2nd defendant in the instant suit is a juristic person properly sued in this case; and I so find and hold. The argument of the defendant in that regard accordingly goes to no issue and so is hereby discountenanced.

 

  1. The point is that the employer has an expanded meaning today capable of encompassing even departments or departmental units. So when the 7th defendant, for instance, said that it is not a juristic person but submitted that it is the only body allowed by law to compute pension entitlements, the logic must be that if by law the 7th defendant is charged with certain responsibilities, then it must by law be held to those responsibilities. In any event, the further argument of the 7th defendant that the 7th defendant (“Pension Transitional Arrangement Department, Federal Civil Service”) does not exist, as the only entity recognized by the Pension Reform Act is the Pension Transitional Arrangement Directorate merely raises the issue whether the error is not a misnomer, an error in name, not an error as to identity. Pfizer Incorporated & anor v. Prof Idris Mohammed [2013] 16 NWLR (Pt. 1379) 155 held that a party incorrectly named can be corrected but not a mistake as to identity. The error in the name of the 7th defendant is not one as to identity but merely a misnomer that can be corrected. As pointed out by the claimants in their reply on points of law, this Court can in virtue of Order 13 Rule 5 of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017) simply correct the said name of the 7th defendant. The 7th defendant is accordingly hereby corrected to read, “Pension Transitional Arrangement Directorate”, a correction that has been effected on the face of this judgment as was the case in Omisore and anor v. Aregbesola and ors [2015] 15 NWLR (Pt. 1482) 205, where the Supreme Court correctly wrote out the name of “All Progressives Congress” (APC) on the face of the judgment even before it addressed the issue raised as an objection of the juristic personality of “All Peoples Congress”, the name actually sued.

 

  1. The further argument of the 6th defendant that the claimants’ case is statute-barred in virtue of section 2 of the Public Officers Protection Act is also blind to the fact that the limitation law does not apply to pension claims as well as to contracts of service. See Ajao v. Permanent Secretary, Ministry of Economic Planning Budget Civil Service Pensions Office & anor [2016] LPELR-41407(CA) and NRMAFC & 2 ors v. Ajibola Johnson & 10 ors [2019] 2 NWLR (Pt. 1656) 247 at 270-271. The claims of the claimants in this case relate to claims that inured to them as a result of the contracts of service they had with the defendants; and they relate to their pensions.

 

  1. I now turn to the merit of the claimants’ case. The Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47 made it very clear that a claim is circumscribed by the reliefs claimed. A look at the 8 reliefs of the claimants will show that, like I pointed out earlier, the first four reliefs are for declarations, which declarations posit that the defendants are in breach of both statutory and constitutional duties as to failure to pay pension as and when due, failure to review upwards (and in the appropriate rate) pension every five years, and failure to invest the deferred wages of the claimants. It is on the basis of these declaratory reliefs that the claimants seek the payment to each of them the respective sums indicated as aborted investment income (relief e), the shortfalls in the increases in pension revisions (reliefs f and g) and general, exemplary and/or aggravated damages (relief h). What all of this means is that the claimants’ claims are actually claims for their appropriate pensions, which are thus claims for special damages. 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA) held that claims for gratuity, pension, housing fund and salary are all claims for special damages, which must be strictly proved with credible evidence to the satisfaction of the Court as the Court is not entitled to make its own estimate of same. And by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC), what appears to be an admission cannot apply to a claim for special damages. Alternatively put, a claim for special damages cannot succeed because it is admitted. This is becausespecial damages are never inferred from the nature of the act complained of. They are exceptional and so must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. Special damages are exceptional in character and so there is no room for inference by the Court. Have the claimants met this strict requirement of proof in order to succeed in their claims? This remains the question.

 

  1. This Court has in a number of decisions laid down what a claimant seeking monetary claims from this Court must establish in order to succeed. In Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, for instance, this Court stated thus:

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

Accordingly, the claimants in the instant case have the twin duties of proving their entitlement to the sums they claim; and proving how they came by the quantum of the sums they claim.

 

  1. The onus of proof on the claimants is a strict one, made the more so by the fact that the claimants are seeking in the process for declaratory reliefs, which cannot be granted save on the evidence of the claimants. I already discounted the negative assertion theory of the claimants. This aside, I need to clarity a submission of especially the 2nd defendant. The 2nd defendant had argued that pension review as provided under section 173(3) of the 1999 Constitution can be reviewed upwards, downwards or left in terms of the status quo depending on the state of the economy of the nation. Accepted that section 173(2) of the 1999 Constitution, which provides that pension cannot be withheld or altered to the disadvantage of the pensioner, allows the exception where such withholding or alteration to the disadvantage of the pensioner is permitted under any law, including the Code of Conduct. It is, however, for the defendants to show that when pension was withheld or altered to the claimants’ disadvantage, they acted under a law or the Code of Conduct. Unfortunately, the defendants did not show this for the simple fact that they have no pleadings or evidence (not even those of the claimants) to that effect before the Court. The 2nd defendant’s reliance on section 3(p) of the National Salaries, Income and Wages Commission (NSIWC) Act Cap N72 LFN 2004, which provides that the function of the Commission shall be to “examine the current rate of retirement benefits and recommend appropriate mechanism for periodic review of retirement benefits” cannot be the law talked of under section 173(2) of the 1999 Constitution since section 3(p) of the NSIWC Act talks of recommendation. Like I will shortly point out and address in greater details in terms of the case of the claimants, a recommendation does not confer an entitlement.

 

  1. Accordingly, the additional arguments of the 2nd defendant that the NSIWC was not made party to this action and that it was not given a hearing all go to no issue. The 1st defendant, in virtue of section 5 of the 1999 Constitution is reposed with all executive powers under the Constitution. This means that all executive bodies and agencies including the NSIWC act for an on behalf of the 1st defendant. The question of giving the NSIWC a hearing or making it a party is just not an issue.

 

  1. The claimants hinged their case on section 173 of the 1999 Constitution especially subsection (2) of the section. The said section 173 dealing with protection of pension rights provides as follows:

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

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

(3) Pensions shall be reviewed every five years or together with any Federal Civil Service salary reviews, whichever is earlier.

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

There is no doubt at all that section 173 of the 1999 Constitution confers pension rights on a person in the public service but this right is to be regulated by law. The same section 173 prohibits the withholding or alteration of pension or gratuity to the disadvantage of entitled persons except if such is permissible under any law including the Code of Conduct. So it is for the claimants to show that their pensions were withheld or altered to their disadvantage; and it is for the defendants, as a defence, to show that the withholding or alteration of the claimants’ pensions to the claimants’ disadvantage is permitted under a law or the Code of Conduct. There is equally no doubt that pensions shall be reviewed every five years or each time any Federal Civil Service salary is reviewed, whichever is earlier.

 

  1. From all of this, the claimants’ case is that the defendants have not always reviewed pensions every five years contrary to the provisions of the Constitution and where they have done so, they have not always reviewed it in tandem with the increase in salaries to the effect that pensioners are disadvantaged by the increase contrary to the provisions of the 1999 Constitution. The defendants on their part variously denied this fact, which to the claimants was in general terms and so is not enough. To the claimants, the law is that it is a party who asserts a negative fact that has the onus to prove that fact. Put in another way, that when a plaintiff avers that a thing does not exist (as in the instant case) the adverse party who makes the affirmative assertion that it exists must prove that it exists. In other words, where, as in this case, the claimants plead that pension was not reviewed every five years since 1993 and the defendants deny that assertion, they are, in effect, saying that pension has been reviewed every five years since then. All the parties agreed that during the pendency of this suit, all pension arrears were settled by especially the 3rd and 4th defendants although the claimants asserted that the 5th claimant was not so settled. However, the claimants insist that they are entitled to damages since settling pension arrears means that the pensions were not paid as and when due, which is thus a breach of statutory duty.

 

  1. The 1st and 8th defendants, however, argued that the admission of the claimants that the 3rd and 4th defendants have been paying the claimants’ pensions (save for the 5th claimant) as and when due is an admission of interest.But that nothing has been placed before this Court by the claimants to show that the 5th claimant has not been paid even though he is entitled to same. Here the 1st and 8th defendants are in error with this argument. The burden to prove that the 5th claimant has been paid his pension as and when due lies squarely with the defendants, not with the claimants. This is evident from Honika Sawmill (Nig.) Ltd v. Hoff [1992] 4 NWLR (Pt. 238) 673 CA at 679, which held thus:

As between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period. It is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid the employee was.

The fact of the claimants being pensioners of the defendants is not in doubt; and that they are entitled to monthly pension is not in doubt either. So once the claimants alleged that they have not been paid pension, it is the duty of the defendants to show that they paid the said pensions as and when due. The claimants’ duty here is to show the entitlement to pension, not the fact of non-payment of pension. The argument of the 1st and 8th defendants that the claimants placed nothing before this Court to show that the 5th claimant has not been paid is accordingly untenable.

 

  1. I must, however, point out that there is no relief before the Court seeking for any order that the 5th claimant be paid his pension. The law, like I pointed out earlier, is that a claim is circumscribed by the reliefs claimed; and that a claimant gets, and so a Court can only grant, the relief claimed for, nothing else. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd(supra). In the instant case, therefore, the claimants cannot be making any case (as they did asking this Court to do the needful) in respect of the 5th claimant.

 

  1. To the claimants, they pleaded and proved that even when the defendants reviewed the salaries of existing workers, they have not correspondingly reviewed pensions such that huge arrears were built up to the detriment of pensioners including the claimants. For example, that as pleaded in paragraphs 22 and 23 of the claimants’ amended statement of claim, in October 1994, there was a 39% increase in existing salary, but pension was increased by 36.10% leaving a shortfall of a little over 2%. Again, in 1999, while existing salary was increased by 188% pension was reviewed by 180%. Again, in 2000, while existing salary was increased by 222% pension was increased by 142%. As a result of these shortfalls, the claimants, as pensioners, were deprived of balances of pensions due to them over the years. That the total sum of these shortfalls came to N121,353,962.66K (One Hundred and Twenty-One Million, Three Hundred and Fifty-Three Thousand, Nine Hundred and Sixty-Two Naira, Sixty-Six Kobo) as at the time the claimants came to Court in 2011. This is the sum the claimants are praying for as per relief (g). The claimants went on that this trend continued such that as at 31st March 2016, the pension arrears being owed them in this regard is in the sum of N281,730,269,59K (Two Hundred and Eighty-One Million, Seven Hundred and ThirtyThousand, Two Hundred and Sixty-Nine Naira, Fifty-Nine Kobo). I must state that relief (g) prays for N121,353,862.66, not N281,730,269.59. I just stated that a claimant gets only that which is claimed. See Gabriel Ativie v. Kabelmetal (Nig.) Ltd (supra).

 

  1. Now, the claimants claim that they were short-paid in their pensions. In proof of these payment short-falls, the claimants tendered Exhibits GO-5A – GO-5V. Exhibits GO-5A – GO-5V are, however, theclaimants’ purported Payment Record Analysis and Pension Payment Record prepared by G. O. Obahiagbon (Donee) Services; in essence the 1st claimant. Since these exhibits are self-generated, they cannot be proof of any entitlement. At best they qualify as pleadings. In Mr Olapade Samuel Olatunwo Oyebola & ors v. FAAN unreported Suit No. NICN/LA/259/2013, the judgment of which was delivered on 20th May 2019, this Court held thus on self-generated exhibits:

Exhibits C14 and C15 are the computations made [by] the claimants themselves as to their respective 2006 furniture claim and severance claim. Exhibits C14 and C15 are self generated and so cannot be proof of the claimants’ claim for furniture and severance claims. See Peter Yinkore & 73 ors v. Neconde Energy Limited & anor unreported Suit No. NICN/LA/611/2012, the judgment of which was delivered on 12th February 2019 at paragraph 107.

 

  1. And in Mr. Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 NIC, this Court held thus on solicitor’s letter seeking to achieve the same purpose:

All of this aside, Document 6 (the letter of the claimant’s solicitor to the defendant dated 25th May 2010) cannot be used to prove the statements contained therein. We agree with the defendant that its weight and probative value as proof of its content is suspect. At best, the said letter only proves that the claimant demanded for his entitlement from the defendant. It cannot be used as proof of the entitlement of the claimant to the amount claimed as accrued performance bonus earned by the claimant. Regarding the entitlement of the claimant to the sum of Ninety-Nine Thousand United States Dollars claimed, document 6 goes to no issue and so is discountenanced for that purpose.

See also Barrister Jerome Lucky Simon v. Barrister Moses Okosun unreported Suit No. NICN/LA/78/2016, the judgment of which was delivered on 25th April 2018. The claimants in the instant case cannot thus rely on Exhibits GO-5A to GO-5V as proof of entitlement to the said N121,353,862.66 they claim as relief (g). I so find and hold.

 

  1. So while the claimants established an entitlement to pension review every five years or with salary increase in the Federal Civil Service, and paying pensions as and when due, they did not show to this Court through concrete evidence how they came by the sums they claim as per relief (g). As the 1st and 8th defendants put it, looking at the entire pleadings in the statement of facts and witness statements on oath, there was no statement and proof of what any of the claimants received as their terminal salary, there was also no statement and proof of what they were being paid as pension so as to determine whether it accords with the pension as a percentage of their terminal salaries or not as stated in section 1(1) and the First Schedule to the Pension Act 1990 and section 8(1) and (3) as well as the First Schedule to the Pension Act 2004 they relied on.

 

  1. There is the additional case of the claimants as to the defendants’ (especially the 5th defendant’s) failure to invest the deferred wages of the claimants thus yielding to the aborted investment income claimed as per relief (e) in the total sum of N2,060,998,065.16. To show that there was a duty to invest deferred wages, the claimants relied on section 9(1) and (2) of the Finance (Control and Management) Act 2004 and a number of documents including Exhibit GO-9, Federal Republic of Nigeria Public Service Review Commission Main Report of September 1974 otherwise termed the Report of the Udoji Commission (or just the Udoji Report). I shall take section 9 of the Finance (Control and Management) Act 2004 to see if indeed it imposes a duty to invest deferred wages of the claimants.

 

  1. Section 9(1) and (2) of the Finance (Control and Management) Act 2004 dealing with authorisation of investments provides thus:

(1) The Consolidated Revenue Fund, and any other public fund of the Federation subject to any express provisions of law regulating any such public fund, may in part consist of deposits with a bank, or with the Joint Consolidated Fund, either at call or subject to notice not exceeding six months, or of any investments in which a trustee in Nigeria may lawfully invest trust funds, and the disposition of moneys of the Consolidated Revenue Fund or of such other public fund (subject as aforesaid) for any such purpose shall need no legislative authority other than that contained in this section and may be made by the Accountant-General or the State Agents for Oversea Governments and Administration in accordance with specific instructions issued by the Minister.

(2) No moneys deposited or invested otherwise than in accordance with subsection (1) of this section may form part of the Consolidated Revenue Fund, or of any other public fund of the Federation, and the disposition of any moneys from that Fund or those funds for any purpose other than the form of deposit or investment specified in that subsection shall be made in accordance with the procedure prescribed in this Act or in accordance with the provisions of law regulating the fund in question.

 

  1. To be able to ascertain the true import of this section 9, I need to embark on an excursion into the Act itself. As the long title of the Act states, the Finance (Control and Management) Act is “an Act to provide for the control and management of the public finances of the Federation and for matters connected therewith”. As an Act, it complements the 1999 Constitution in terms of sections 80 to 89, and 120 to 129 of the Constitution in the control of public funds, and so is central to the yearly budgetary process. And here, the law is that the raising of money and its spending requires legislative authorisation. In order words, no withdrawals can be made from the Consolidated Revenue Fund (CRF) or government money spent (including investing the said government funds) without legislative authorisation. Consequently, no permanent charge can be made in this regard as the authorisation must be at most annual through the Appropriation Act (the instrument that gives the budget legal validity).

 

  1. However, the rigid legislative control of expenditure of public funds is relaxed in three cases. The first is in respect of expenditures charged on the CRF directly by the Constitution. This requires no separate legislative authorisation. Items in this category include salaries of specified constitutional office-holders, share of the States and Local Governments based on the revenue allocation formula, etc. The second is in regard to authorisation of withdrawals pending the passing of the Appropriation Act or Law, subject of course to certain limitations not necessary for present purposes. The third and last is in respect of the power of the legislature to establish for specific purposes public funds other than the CRF and to pay into them any public revenue raised.See, for instance, sections 83 and 123 of the 1999 Constitution, which establish the Contingencies Fund for both the Federation and the States; as well as sections 18 to 23 and the First Schedule tothe Finance (Control and Management) Act for additional public funds established by the legislature. These three instances of the relaxation of the strict legislative control over public funds constitute what is termed statutory expenditure as distinct from supply expenditure, which is what the budget typifies. Consequently, the difference between the statutory and supply expenditure is that a standing authorisation suffices for the former but not the latter where annual or supplementary authorisation (appropriation) is required.

 

  1. The point is that section 9 of the Finance (Control and Management) Act is just another example of the third relaxation of the rigid legislative control of expenditure of public funds. First, section 9(1) in providing that “the [CRF], and any other public fund of the Federation subject to any express provisions of law regulating any such public fund, may in part consist of deposits with a bank…”, does not suggest any compulsion whatsoever. The funds in issue may in part consist of deposits with a bank. This does not suggest that the 5th defendant must invest the funds in issue. The argument of the claimants that the word “may” as used should read “shall” or “must” is not tenable and does not qualify as a ground for imputing the compulsive word “shall” or “must” to it. It is when the phrase “may not” is used that a compulsion is imputed. As can be seen, the phrase “may not” is not the phrase used in the said section 9. In this context, “may” means that one has permission to do something, while“may not” means that one is not permitted to do something. See https://english.stackexchange.com/questions/189974/why-do-they-say-may-not-for-things-which-people-shouldnt-do as accessed on 16th June 2019.

 

  1. Secondly, the last limb of section 9(1) which states that “the disposition of moneys of the Consolidated Revenue Fund or of such other public fund…shall need no legislative authority other than that contained in this section and may be made by the Accountant-General or the State Agents for Oversea Governments and Administration in accordance with specific instructions issued by the Minister” signifies a standing legislative authorization, which thus does not require an annual or supplementary legislative authorization. Accordingly, the argument of the claimants that section 9(1) and (2) of the Finance (Control and Management) Act 2004 is the provision that authorizes the 5th defendant to invest “held back funds” is thus not tenable as that provision does not actually make the provision the claimants say it makes.

 

  1. Since there is no compulsion to invest, the argument of the claimants that the 5th defendant had an implied duty by this law to invest pension funds and that if he had performed his duty by making the said investments on behalf of each of the claimants, there would have been sufficient funds to pay their pensions as and when due, is untenable and cannot be sustained. This being so, there cannot be any talk of the 5th defendant breaching “his statutory duty”. The claimants are conscious of the fact that there is no duty on the 5th defendant to invest; hence their argument that “even if the law does not specifically give the 5th defendant the duty to invest, he, as the Chief Finance Officer of the Government ought, in practice, to invest the funds such that the income therefrom will constitute the pool of funds from which pension will be paid as at when due and pensioners will not have to suffer the deprivation they are being subjected to year in year out”. Once there is no duty, there can be no breach. And once there is no breach, there can be no damage. All of this is commonsensical. Thus, there can be no talk of general and/or exemplary/aggravated damages for the 5th defendant’s failure of duty.

 

  1. The claimants’s submission that it is this concept of investing “withheld or deferred” wages that has now been recognized by Government in the Pension Reform Act 2004 in which a part of the salaries of the workers is now set aside and deposited with Pension Managers who, in turn, have a duty to invest same and pay over the funds together with the income that have accrued from the investment to the said workers when they become pensioners, forgets that this new contributory pension scheme is specifically authorized as such by the Pensions Reform Act. There is no such Act authorizing the deferred benefits scheme or non-contributory scheme as to make the Accountant-General play the role of the Pension Managers as the claimants seem to think.

 

  1. The claimants went on to rely on additional documents, documents that are self-generated, in proof of their case. These additional documents are:
  • Exhibit GO-4(a-x) are the claimants’ purported statement of Investment Income Aborted (Cash Flow Analysis) prepared by G. O. Obahiagbon (Donee) Services.
  • Exhibit GO-5(a-x) are the claimants’ purported Payment Record Analysis and Pension Payment Record prepared by G. O. Obahiagbon (Donee) Services.
  • Exhibit GO-6(a-x) are the claimants’ purported Economic Loss Consequential to Non-Funding prepared by G. O. Obahiagbon (Donee) Services.
  • Exhibit GO-7 (a-x) are the claimants’ documents purported to be the respondents’ Programme for Reducing Pension Liability prepared by G. O. Obahiagbon (Donee) Services.
  • Exhibit GO-8 are the claimants’ Summary of Claims prepared by G. O. Obahiagbon (Donee) Services.
  • Exhibit GO-10(a) is a table of the claimants’ purported Summary of Claims as at December 2015 prepared by G. O. Obahiagbon (Donee) Services.
  • Exhibit GO-l0(b) is a table of the claimants’ purported defendants’ Procedural Arrangement July 2010-December 2015 prepared by G. O. Obahiagbon (Donee) Services.
  • Exhibit GO-10 (c) is a table of the claimants’ purported defendants’ Consequential Flow of Funds prepared by G. O. Obahiagbon (Donee) Services.

As self-generated documents, these documents cannot be proof of any entitlement; and I so find and hold. See Mr Olapade Samuel Olatunwo Oyebola & ors v. FAAN.

 

  1. A further document the claimants placed much premium on is Exhibit GO-9, which is Udoji Report. In character, this Udoji Report consists of recommendations. And recommendations or proposals have been held by this Court not to confer entitlements. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, which, relying on PENGASSAN v. Mobil Nig. Unltd [2013] 32 NLLR (Pt. 92) 243 NIC, held that proposals do not confer entitlements. And in Mr Usanga Eyo Brian v. Polaris Bank Limited unreported Suit No. NICN/LA/412/2014, the judgment of which was delivered on 20th March 2019, this Court held thus: “…submitting a bill for onward transmission to management for approval cannot be read to mean the approval”. As a document, which only made recommendations, Exhibit GO-9 cannot confer any entitlement on the claimants. The claimants cannot accordingly rely on it in proof of any of their claims. I so find and hold. See also Mrs Roseline Ekeng v. International Energy Insurance Plc unreported Suit No. NICN/LA/122/2016, the judgment of which was delivered on 18th June 2019.

 

  1. The case of the claimants in relying on Exhibit GO-9 is that first it defines pension. Accordingly, that the generally accepted definition of “pension” is captured under the Udoji Report in these words: “…pensions or gratuities as deferred pay or continuance of salary. Pensions in this context, reflect money withheld during the period of employment and returned with interest to the employees after he has ceased been able to work”. Also, that the Udoji Report defines as pension money “withheld or deferred” to be paid back after retirement with interest. To start with, pension is a constitutional and statutory issue. The definition of that word cannot thus be a product of the Report of a Review Commission (the Udoji Report). The Udoji Report is an offshoot of the executive arm of government; and the construction of a document or statute is a judicial function, not that of the executive; it is not the function of a witness either. See Mr Akindele Adedipe v. Oracle Software Nigeria Limited unreported Suit No. NICN/LA/214/2016, the judgment of which was delivered on 15th May 2019 at paragraph 32, Olapade Samuel Olatunwo Oyebola & ors v. FAAN unreported Suit No. NICN/LA/259/2013, the judgment for which was delivered on 20th May 2019,Ambassador D. C. B. Nwanna v. National Intelligence Agency & 2 ors unreported Suit No. NICN/ABJ/123/2011, the judgment of which was delivered on 16th December 2013, Mr Ugochukwu Duru v. First Guarantee Pension Ltd unreported Suit No. NIC/LA/246/2011, the judgment of which was delivered on 2nd February 2015 and Prince Benjamin Saliu Ikani v. Chairman/Chief Executive National Drug Law Enforcement Agency (NDLEA) & 2 ors unreported Suit No. NICN/LA/351/2013, the judgment of which was delivered on 16th July 2018.

 

  1. The claimants went on to submit that it is from this concept of “money withheld” or “deferred wages” or “undeclared wages” as laid down by the Udoji Report and IFRS that the claimants derived their claim that the Accountant-General of the Federation (the 5th defendant) had a duty to have invested the “held back funds” from the wages of the workers under the defined benefit scheme or non-contributory scheme, and that the income from that investment would have formed the capital base for each worker such that when the worker retires, there would have been a pool of funds from which each person will be paid as opposed to the current situation where the Government has to make pension a budgetary matter and once Government does not have enough money to fund the budget, pensions will naturally suffer and pensioners will not be paid their pension as and when due which is contrary to law. The Udoji Report cannot be the law that the claimants are talking of here. And because it is not the law, it remains what it is, a Report that made recommendations. This, I indicated earlier, is incapable of conferring entitlements on the claimants. What this means is that the argument of the claimants that the duty of the 5th defendant to invest in “held back funds” because they intuit it from the Udoji Report is just not sustainable; and I so find and hold.

 

  1. The argument of the claimants that it is presumed that a portion of the salary of workers in the civil service was being “withheld” and “deferred” later for payment as pension cannot be tenable either as an entitlement of the sort prayed for by the claimants cannot be based on a presumption. Presumptions cannot confer entitlements especially where the claims are for special damages. The claimants cannot rely on a presumption and then turn around and argue that the word “may” in section 9 of the Finance (Control and Management) Act 2004 should be read as “shall”. Under cross-examination, CW had prevaricated when testifying. In fact CW was particularly evasive and hesitant in answering questions when he was cross-examined by counsel to the 2nd defendant. The evidence of CW under cross-examination to the effect that part of the claimants’ pay was withheld, systematically withheld, which withholding was not limited to monthly, quarterly or annually; and that there was no physical deduction from their salary, thus branding it deferred pay, which Udoji identified, or that part of their salary that was deducted was undeclared, accordingly makes little meaning. Worst still is the evidence of CW that it was through trade practice that he got to know that part of their salary was undeclared and deducted and thatthe trade practice was in existence even before he was employed, appears to be evidence given off the cuff. As I indicated in James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12th July 2016:

…The rule is that evidence of customary practice (and customary procedure) must come from other than the person asserting its existence. This is the effect of the combined reading of sections 18(1) and (2) and 73 of the Evidence Act 2011. Additionally, the ratio of the Supreme Court decisions in Queen v. Chief Ozogula [1962] WNLR 136, Adeyemi & ors v. Alhaji Shitu Bamidele & ors [1968] 1 All NLR 31, Richard Ezeanya & ors v. Gabriel Okeke & ors [1995] LPELR-1199(SC); [1995] 4 NWLR (Pt.388) 142 at 165 and Orlu v. Gogo-Abite [2010] LPELR-2769(SC); [2010] 8 NWLR (Pt. 1196) 307 SC is to the effect that it is unsafe to accept the testimony of the only person asserting the evidence of custom as conclusive; it is desirable and certainly good law that another witness who is versed in the alleged custom should also testify.

What all this means is that the evidence of CW as to trade practice, coming from just CW and unsupported, is unsafe to be accepted by this Court. It goes to no issue and so is hereby rejected.

 

  1. As it is, therefore, the claimants have not made out any case for the payment of the monetary sums they claim as per reliefs (e) and (g). And since they could not make out any breach of duty as to failure to invest deferred wages, the talk of general, exemplary and/or aggravated damages in that regard cannot arise. This leaves out the claim for damages, exemplary and/or aggravated damages “for the Defendants’ willful failure, neglect and/or refusal to pay the Claimants their respective pensions as and when due”, the fist limb of relief (h). Since the claimants are seeking for One Billion Naira as per relief (h), which has two limbs, and I have disposed of the second limb i.e. damages for failure to invest deferred wages, I take it that the claimants are praying for N500 million (half of One Billion) Naira for the first limb of relief (h). I indicated earlier that the very fact that during the pendency of this case the claimants were paid their pension arrears means that the pension was not paid as and when due. In other words, there was a breach of the duty to pay the pension as and when due. This breach of the duty to pay pension as and when due approximates to statutory negligence, where the duty to pay is one imposed by statute (the Constitution and the relevant Pension Act). The problem, however, is that statutory negligence culls from the general tort of negligence, which requires the trilogy of duty, breach and damages for success. There is no problem regarding the existence of duty and its breach in this case. The problem, however, is the resultant damage. What was the claimants’ damage when they were not paid their pensions as and when due and which the settlement of the arrears of pension did not cure? This Court was not told. This means that the claim for damages “for the Defendants’ willful failure, neglect and/or refusal to pay the Claimants their respective pensions as and when due” cannot succeed. It fails and so is hereby dismissed.

 

  1. As it is, therefore, and for all the reasons given, the claimants’ case has no merit. It fails and so is hereby dismissed.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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