Fidelis Mega & 11 ORS -VS- Benue state Local government pension

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

HOLDEN AT MAKURDI

BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA

DATE: 6TH DAY OF DECEMBER, 2019 SUIT NO: NICN/MKD/20/2019

BETWEEN:

FIDELIS MAGE
AUGUSTINE KYELEVE
DANIEL LAPA
CHUAN AKAAFA
JASPER KELAGBA
SCHOLASTICA DENKE ………………………………………………CLAIMANTS
SYLVESTER S. DAAKYE
AGENA BARKI
EDWIN M. DIMA
STEPHEN G. ITI
SYLVESTER SHUUL
WILFRED TORCHOMBU

AND

BENUE STATE LOCAL GOVERNMENT

PENSIONS BOARD, MAKURDI

ATTORNEY-GENERAL OF BENUE STATE ………………..……………..DEFENDANTS
THE GOVERNOR OF BENUE STATE
THE GOVERNMENT OF BENUE STATE

REPRESENTATION:

1^st, 3^rd 7^th and 8^th to 10^th Claimants present

Other parties absent

J.A. Ahungwa for the Claimants

A.O. Omenka (PSC) with S.O. Ebah (PSC) Benue State Ministry of Justice for the Respondents.

JUDGEMENT

The Claimants have by way of Originating Summons dated and filed on 29/03/2019 put some questions for the court`s determination, to wit:

“Whether upon the proper construction of:

a)Sections 15 and 19 of the Local Government Pensions Board Law Cap 102 Laws of Benue State 2004;
b)Section 210 of the Constitution of the Federal Republic of Nigeria 1999 (as amended);
Claimants are entitled to pensions and gratuities?
The withholding of the Claimants’ pensions and gratuities by the Defendants is constitutional?”

Upon the determination of the foregoing questions, the Claimants are seeking the grant of the following reliefs by the Honourable Court:

“1. A DECLARATION that Claimants are entitled to pensions and gratuities;

A DECLARATION that the withholding of Claimants’ pensions and gratuities by the Defendants is unconstitutional, unlawful and unwarranted;
AN ORDER directing the Defendants to forthwith pay the Claimants an accumulation of their gratuities and arrears of pensions from dates of entitlement to February 2019 in the sum of N83,188,126.19 now withheld by the Defendants, and additional months as may accrue after February 2019.”

In support of the Originating Summons, the 1^st Claimant, Fidelis Mage deposed to a 29-Paragraph Affidavit. The facts of the case of the Claimants as gleaned from the deposition of the first Claimant is that all the Claimants (Save for the 5^th Claimant who is suing as Next of Kin and administrator of his deceased father’s estate) are suing personally for their retirement benefits owed, having either served or been deployed to serve with the Defendants until retirement from service. The Claimants served meritoriously until either attaining the mandatory retirement age of 60 Years or having put in 35 years of service. They have respectively put forward their Letters of offer of employment, Letters of Confirmation of appointment, approval of retirement as well as calculation of their respective retirement benefits. The individual claims of the claimants have been particularized thus: 1^st Claimant has not been paid gratuity since retirement on 01/08/2016, neither have the defendants commenced payment of his monthly pension. 1^st Claimant alleges being owed 29 months arrears of pension. That his gratuity as calculated and disclosed is N3,597,840.00 while pension per annum is N959,424.00 at N79,952.00 per month. By multiplying 29 months, the 1^st Claimant has arrived at N2,318,608.00 as his 29 month arrears of pension which when added to N3,597,840.00, totals his claim to N5,916,448.00 Only.

The 2^nd Claimant is owed gratuity since retirement on 01/08/2016. Likewise, his monthly pension has remained unpaid since retirement, thereby being owed 29 months arrears of pension by the Defendants. That he has a gratuity of N1,429,488.00 as disclosed in the submission of retirement benefits computed by the Auditor General for Local Governments. The 2^nd Claimant claims his pension per annum to be N381,196.80 at N31,766.00 per month. With monthly pension of N31,766.00 multiplied by 29 months the 2^nd Claimant has arrived at N921,225.6

which he claims as 29 months arrears of pension. By adding his gratuity of N1,429,488.00 to N921,255.6 which is 29 months arrears of pension, the 2^nd Claimant arrived at N2,350,713.6 as his total claim.

For his part, the 3^rd Claimant has also not been paid gratuity since retiring on 01/03/2013. He alleges being paid only one month pension since retirement with the consequence that he is owed 71 months arrears of pension. He is claiming gratuity of N2,129,076.00 as submitted by the Auditor General for Local Government. His annual pension of N567,754.00 when divided by 12 months yields a pension value of N47,312.83 per month. The 3^rd Claimant has multiplied his monthly pension of N47,312.83 by 71 months to arrive at N3,359,211.16 as the arrears of pension owed him. N2,129,076.00 when put together with N3,359,211.16 totals N5, 488,287.16 which the 3^rd Claimant is claiming.

The 4^th Claimant retired on 10/02/2016 but has yet to be paid his gratuity and pension. He is owed 37 months arrears of pension. His gratuity as computed and submitted by the Auditor General for Local Governments is N2,129,076.00 only. The 4^th claimant is entitled to a pension of N567,753.60 per annum at N47,312.8 monthly. Now, with N47,312.8 multiplied by 37 months, arrears owed the 4^th Claimant in pension amounts to N1,759,573.6. Gratuity of N2,129,076.00 when put together with N1,759,573.6 of owed arrears in pension amounts to N3,879,649.6 which he claims in total.

As for the 5^th Claimant, he alleges that his deceased father retired on 01/07/2013. That pension and gratuity have not been paid since then. 66 months arrears of pension is claimed as owed together with gratuity of N4,970,772.00.As the computation of benefits submitted by the Auditor General for Local Governments, the 5^th Claimant’s father’s pension per annum is N1,325,539.20 at N110,461.6 per month. Having multiplied the monthly pension of N110,461.6 by

66 months, the 5^th claimant derived N7,290,465.6 as the arrears of pension owed the estate of his late father. With a gratuity of N4,970,772.00. and pension of N7,290,465.6 put together, the 5^th claimant is claiming N12,261,237.6 altogether.

The 6^th Claimant retired on 02/03/2014 but the Defendants only commenced paying her monthly pension in February 2016, thereby owing her 23 months arrears of pension. Her gratuity however is yet to be paid since then. The 6^th Claimant relied on the computation of her benefits as submitted by the Auditor General for Local Governments to assert that her gratuity is N2,812,654.00 and her pension per annum is N781,293.00 at N65,0107.75 per month. Multiplying N65,0107.75 by 23 months gave the 6^th Claimant N1,497,478.25 only in owed arrears of pension. Meanwhile, putting together the gratuity of N2,812,654.00 and the sum of N1,497,478.25 in arrears has given the 6^th Claimant a total claim of N4,310,132.25 only.

On the part of the 7^th Claimant, he retired on 01/09/2015 but has not been paid gratuity since then. Payment of his monthly pension however only commenced in February 2016, but stopped in March 2017, thereby leaving 28 months arrears of unpaid pensions. Based on the computation of benefits submitted by the Auditor General for Local Governments, the 7^thclaimant is entitled to a gratuity of N4,970,772.00 while the pension per annum is N1, 325,539.00 at N110,461.58 per month. Given a pension of N110,461.58 per month for 28 months, the claimant has deduced N3,092,924.24 only as being arrears of pension owed. With the gratuity of N4,970,772.00 and 28 months pension arrears of N3,092,924.24 put together, the 7^th claimant’s total claim is for N8,063,696.24.

Meantime, the 8^th Claimant on his part retired on 10/09/2015 but has not been paid either gratuity or pension since retirement from service. The 8^th Claimant alleges being owed 42 months arrears of pension. Relying on the computation of his benefits as submitted by the Auditor General for Local Governments, he is claiming gratuity of N4,970,772.00 only. He also claims to be entitled to yearly pension of N1,325,539.00 at N110,461.58 monthly. Multiplying N110,461.58 by 42 months has given the 8^th Claimant N4,639,386.5 which he claims in arrears of pension. Putting the gratuity of N4,970,772.00 and pension arrears of N4,639,386.5 together gives the 8^th Claimant a total claim of N9,639,386.5 only.

As for the 9^th Claimant, he retired on 01/12/2015 and has not been paid his gratuity or pension. He alleges that 39 months arrears of pension is owed him by the Defendants as a result. Also, based on the computation of his benefits as submitted by the Auditor General for Local Governments, the 9^th claimant’s gratuity is N6,625,044.00 only while his pension per annum is N1,766,678.00 at 147,223.16 per month. When the arrears of pension of 5,741,703.5 and the gratuity of N6,625,044.00 are put together, the cumulative claim of the 9^th claimant stands at N12,366,747.5.

The 10^th Claimant retired on 02/02/2015 but has not been paid gratuity since then. Meantime, payment of his monthly pension only commenced from February 2016 and stopped in March 2017, thereby owing him 35 months arrears of pensions. Going by the computation of his benefits as submitted by the Auditor General for Local Governments, the 10^th Claimant is entitled to gratuity of N4,816,008.00 only, while his pension per annum is N1,284,268.00 at N107,022.33 per month. Multiplying N107,022.33 per month by 35 months amounts to N3,745,781.66. Putting gratuity of N4,816,008.00 together with owed pension arrears of N3,745,781.66 results to N8,561,789.66 of the 10^th Claimant’s claim.

The 11^th Claimant retired on 28/12/2010 but has not yet been paid gratuity. He is therefore claiming for payment of his gratuity as shown in the computation submitted by the Auditor General for Local Governments. By the computation which he pleaded, he is entitled to gratuity of N2,638,582.08 only.

Finally, for the 12 Claimant; he retired on 01/09/2017 and has not been paid his gratuity and monthly pension. He alleged that he is owed 18 months arrears of pension by the Defendants. Based on the computation submitted by the Auditor General for Local Governments, the 12^th Claimant is entitled to gratuity of N5,529,060.00 and annual pension of N1,474,416.00 at N122,868.00 per month. Multiplying N122,868.00 by 18 months amounts to N2,211,624.00. When the gratuity of N5,529,060.00 is put together with N2,211,624.00, the arrears of pension amounts to N7,740,684.00 only.

Cumulatively, the entitlements of the claimants in this case up to February 2019 amounts to N83,188,126.19. A written address of Counsel to the claimants was filed in support of the originating summons.

On 5/07/2019 the Defendants caused an 8 – Paragraph joint counter affidavit to be filed following an application for extension of time to that effect. Shie Abraham, a Senior Administrative Officer with the Benue State Local Government Pension Board deposed to the said Counter Affidavit. Paragraphs 4 to 7 thereof are most relevant and are reproduced hereunder:

“…

That the Defendants vehemently deny liability to the claim of all the claimants and specifically state that they are not entitled to the reliefs sought from this Honourable Court in their Originating summons.
That in further answer to paragraph 4 above, the Defendants aver that:
All the claimants have been enrolled in pension payroll in the last batch of 01/12/2018 and their pension and gratuity arrears will be calculated and paid to them as soon as the 4^th Defendant allocates money to that effect.
For now, the first Defendant receives allocation from the 4^th Defendant for payment of monthly pensions only which is insufficient for payment of pensioners all at once due to paucity of funds.
Going through the figures as claimed by the claimants in their originating summons there are many discrepancies with what is contained in their personal files, some of which are analysed below:
The apportionment of gratuity of 12^th claimants (Wilfred Torchombu) is N3,949,328.58 and that of pension is N1,053,154.29 totally N5,002,432.87 while Plateau State will pay that remaining balance of N2,000,993.063 made up of N1,579,731.43 gratuity + N421,261.72 pension as opposed to N7,740,684.00 claimed by the 12^th claimant from the Defendants. See Exhibit WT4 of 12^th claimant.
The gratuity and pension arrears of 10^th Claimant (Stephen G. ITI) is N6,207,298.29 (made up of N4,816.008 gratuity + N1,191,290.29 against N8,661,879.66 claimed by him.

iii. The 11^th claimant (Shuul Sylvester) has been paid N100,000.00 on 17/11/2011 out of his arrears.

That I have been informed by S.O Ebah Esq, Principal State Counsel assigned to handle this matter in his office at Ministry of Justice during my interview with him on 24^th June, 2019 at about 10:00 am and I verily believe him to be true that the claim of the 5^th claimant is incompetent in law for failing to comply with Order 11 Rule 1 (a) (ii) of National Industrial Court Rules 2017.
That I am further informed by S.O Ebah Esq in circumstances as in paragraph (b) above and I verily believe him to be true that this case cannot be resolved by affidavit evidence but by oral evidence of witnesses.”

Similarly, the Defendants filed a written address in support while submitting on three issues posed for the court’s determination, to wit:

“1. Whether the claimants are entitled to the orders sought from this Hon. Court

Whether the claim of the 5^th claimant is competent in view of non compliance with order 11 Rule 1 (a) (ii) National Industrial Court Rules 2017.
Whether in view of figurative contradictions in the affidavit of the claimants and defendants, the matter can be resolved by affidavit evidence instead of oral evidence from witnesses.”

Learned counsel for the Defendants expressed reasoning on the issues so raised and urged the court to strike out the case of the claimants and order them to come by way of writ of summons where oral evidence would be adduced.

The claimants caused a reply on points of law to be filed on 17/07/2019 and adopted the first issue formulated by the Defendants in their written address, to wit:

“Whether the claimants are entitled to the orders sought from this Honourable Court.”

The claimants contended firstly that the defendant’s defence which features in paragraphs 5 and 6 of their Counter affidavit, contradicts the claimants’ assertion that they have not been paid by the Defendants as such, the duty falls to the defendants, by law to prove by documentary evidence the claimants have indeed been paid. Counsel cited in aid of this submission Section 132 of the Evidence Act 2011 and Section 22 of the Local Government Pensions Board Law.

With regards to the defendants’ protest to the 10^th claimant’s claim of arrears owed, counsel for the Claimants has contended that the amount which the Defendants submitted as owing to the Claimants is not supported by any evidence. In all counsel urged the court to discountenance the Defendants issues and enter judgment for the claimants.

OPINION OF THE COURT

Having carefully considered the processes filed by the parties and their respective arguments, It is apt to refer to Section 210 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides thus:

“1) Subject to the provisions of subsection (2) of this section, the right of a person in a public service of a State 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 5 years or together with any State civil servant salary review whichever is earlier.”

Meanwhile Section 15(b) of the Local Government Pensions Board Law Cap 102 Laws of Benue State 2004 provides that:

“No pension or gratuity may be granted under this law to any officer except on his retirement or withdrawal from the local government service on compulsory retirement after qualifying service of thirty-five years or upon the attainment of the age of Sixty years, whichever is earlier.”

Going by the affidavit evidence as well as the Exhibits attached to the Originating Summons, there can be no question that the Claimants herein retired having offered qualifying service to merit the respective pensions and gratuity. Indeed, I find that this fact is not even contended or in doubt here. It is vested by law that a person entitled to pension can claim it as a matter of right.

In furtherance of this constitutional imperative, other laws such as the Local Government Pensions Board Law Cap 102 Laws of Benue State 2004 have manifested and the provisions thereof are targeted and geared towards achieving the set goal ensuring that the earned benefits of retirees are duly granted as vested. I consider this elementary as it is transparent.

The crux of the claimants’ suit is therefore for non-payment of these earned benefits by the Defendants. There appears no doubt that that is indeed the case. So, is there a reason or some justification for this failure by the defendants?

According to paragraph 5 of the Defendants’ joint Counter Affidavit filed on 5/07/2019, all the claimants have been enrolled in pension payroll in the last batch of 01/12/2018 and their pension and gratuity arrears will be calculated and paid to them as soon as the 4^th Defendant allocates money to that effect.

The first Defendant receives allocation from the 4^th Defendant for payment of monthly pensions only which is insufficient for payment of pensioners all at once due to paucity of funds.

If this would suffice as a defence then one might as well be disposed to saying that earned pension and gratuity is a contingency. I think not. The ideal fact remains that pension and gratuity are retirement benefits meant for the security and upkeep of an employee’s life after retirements but in a sense, they are payments made by the employer to the employee, in the case of the former; monthly and in the case of the later, a lump sum for services rendered. It is therefore safe to think of a claim for owed pensions and gratuity as a liquidated money demand.

Basically, monies meant for pensions and gratuity are dedicated funds that ought not be affected by paucity of allocation of funds as claimed by the defendants. I am not swayed by the excuse being flaunted as a defence here. I Find the Defendants jointly and severally liable and for the owed pensions and gratuity of the claimants.

Equally, the claim by the Defendants that there are many discrepancies between the claims put forward by the claimants with what is contained in their personal files, particularly as regards the 10^th, 11^th and 12^th Claimants is not anything to go by for the simple reason that the Defendants have not Proffered proof meeting the standard required to controvert the claim.

On the whole, I find and hold the respectful view that the Claimants are entitled to their pensions and gratuities. And the withholding of the Claimants’ pensions and gratuities by the Defendants is unconstitutional.

Consequently, the defendants are directed to cumulatively pay the claimants their gratuities and arrears of pension from their various dates of entitlement to February, 2019 in the sum of N83, 188,126.19 within 30 days from the date of of the judgment, failing which it shall attract 10% interest per annum until the judgment sum is fully liquidated.

_________________________________

HON. JUSTICE S. H. DANJIDDA

(PRESIDING JUDGE)