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National Industrial Court

Sabastine O. Iwudibia -VS- Federal Saving Bank & 3 ors

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 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

                                             IN THE OWERRI JUDICIAL DIVISION

                                                          HOLDEN AT OWERRI

                        BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA

DATE: 3RD DECEMBER 2019                                                        SUIT NO: NICN/OW/31/2017

 

BETWEEN:

SEBASTIAN O. IWUDIBIA ……………………………CLAIMANT/RESPONDENT

AND

  1. FEDERAL SAVINGS BANK
  2. FEDERAL MINISTRY OF FINANCE
  3. FIDELITY BANK PLC                                            DEFENDANTS/APPLICANTS
  4. NATIONAL PENSION COMMISSION

REPRESENTATION:

  1. I. C. Onwukwe; G. Ozara for the Claimant;
  2. 1st Defendant unrepresented;
  3. M.B Agada for the 2nd Defendant;
  4. C.C Achonye for the 3rd Defendant;
  5. E.O. Awa; C.C Odega for the 4th Defendant;

                                                              RULING:

This Court is asked to determine preliminarily, the propriety of maintaining this suit in 2017 purportedly instituted 23 years after the cause of action accordingly arose in 1994. These Defendants as Applicants, specifically the 2nd to the 4th, variously filed notices of preliminary objections challenging this cause including the fact that the names of the 2nd and 4th Defendants ought to be struck out because they are either legally non juristic or misjoined respectively. Meanwhile, the Claimant had applied for and was granted leave of Court under Order 52 to prosecute this cause in forma pauperis. The various applications and responses were eventually adopted on the 13/11/2019 and adjourned to today, 3/12/2019, for ruling.

This suit was commenced on the 11/5/2017 by a complaint accompanied with statements of facts and other originating processes wherein the Claimant claims against these Defendants jointly and or severally, as follows;

  1. A declaration that the Claimant is entitled to continue to be receiving his pension dating from 1994.
  2. An order of this honourable Court re-instating the Claimant into pension scheme and continue to be paid his annuity and pension from the last paid date.
  3. An order of this honourable Court directing the 4th Defendant to pay the Claimant his entitled 23 years outstanding pension fee and continue to be paid his pension and annuity as required by the service Rule 1987.

Against the above, the 2nd, 3rd and 4th Defendants/Applicants, respectively brought separate notices of preliminary objections.

THE 4TH DEFENDANT’S/APPLICANT’S PRELIMINARY OBJECTION:

The 4th Defendant’s/Applicant’s motion is dated 23/6/2017 and filed on 7/7/2017. Accompanying the said application is a 13-paragraph Affidavit and a written address. The grounds on which the objection was raised are as follows:-

  1. That the Pension Reform Act 2014, established the contributory pension scheme for payment of retirement benefits of employees to whom the scheme applies, which excludes the Claimant who was retrenched from service in 1987, 17 years prior to the commencement of the Contributory Pension Scheme;
  2. That the 4th Defendant does not pay pension to anybody at all and has never paid pension to the Claimant at all;
  3. That the Claimant is exempted from the Contributory Pension Scheme. He neither owns a Retirement Savings Account nor has contributions with a Pension Fund Administrator.
  4. That the 4th Defendant is not a proper party to the suit and consequently has no case to answer.
  5. That the action is statute barred.

In arguing his Motion for Preliminary Objection, Counsel to the 4th Defendant/Applicant formulated two issues for determination in his written address thus;

  1. Whether the 4th Defendant/Applicant is a proper party in the suit against whom the Claimant/Respondent has established a cause of action in order to vest the Court with the jurisdiction to determine the suit.
  2. Whether this suit as presently constituted is not statute barred.

On the first issue, Counsel submitted that Section 3 of the Pensions Reform Act, 2014 (PRA) established the Contributory Pension Scheme and states thus;

(1) “There is established for any employment in the Federal Republic of Nigeria, a Contributory Pension Scheme (in this Act referred to as the “the Scheme”) for payment of retirement benefits of employees to whom the Scheme applies under this Act.”

(2) “The Scheme established under subsection (1) of this Section shall apply to all employees in the Public Service of the Federation, the Federal Capital Territory, State, Local Government and the Private Sector subject to the provisions of Section 5 of this Act.”

He submitted further that Section 5 (1) (b) of the PRA provides:

“The categories of persons exempted from the Contributory Pension Scheme are:

… any employee who is entitled to retirement benefits under any pension scheme existing before 25th day of June, 2004, being the commencement of the Pension Reform Act, 2004, but as at that date had 3 or less years to retire”.

He argued further that it is clear from the Writ of Complaint that the Claimant was retrenched from his employment with the Federal Savings Bank in 1987, a period of 17 years prior to the Commencement of the Pension Reform Act, 2004 (now PRA, 2014). Consequently, the Claimant/Respondent is not within the coverage of the contributory Pension Scheme. In fact, the Claimant falls under the persons exempted from the Contributory Pension Scheme by the PRA, 2014. He submitted that assuming the Claimant had not been retrenched from service but duly retired from the Bank, his service would have been for a period of 35 years, in accordance with the Public Service Rules. Consequently, his retirement would have been in the year 2000 which is still a period of four years preceding the Pension Reform Act, 2004. Accordingly, the Claimant would still have been exempted from the Contributory Pension Scheme.

He submitted on that the 4th Defendant/Applicant is not charged with the responsibility of paying the Pension benefits of the Claimant/Respondent and as such, is not a proper party in the suit as the suit, as presently constituted, does not disclose any cause of action against the 4th Defendant. He further argued that as a condition precedent to instituting an action in Court, the proper parties must be before the Court. The Supreme Court, in determining the proper parties in a suit accordingly held that the Claimant must establish the wrongful act of the Defendant, which gives the Plaintiff his cause of action — see A.G Federation V. Abubakar (2007) 10 NWLR, pt 1041 pg 45.

It was further argued that regarding the need to fulfill a condition precedent in instituting an action — in this case, bringing the proper parties before the court,— he is convinced that where there is a condition precedent for doing an act, same must be complied with. He cited Drexel Energy and Natural Resources Ltd & 2 ors V Trans International Bank Ltd (2008) 12 S.C (pt 11) 240, where the Court held:

“I think that these pre-conditions and the non-fulfillment or absence of any of them automatically robs the Court the jurisdiction to hear and determine the suit”

Furthermore, learned Counsel stated that the Claimant/Respondent did not establish any case against the 4th Defendant/Applicant to vest this Honourable Court with Jurisdiction to entertain this suit against it thus urging this Court to strike out the name of the 4th Defendant/Applicant for purportedly not being a proper party.

In arguing issue two he submitted that assuming without conceding that the Claimant/Respondent established a case against the 4th Defendant/Applicant as contested above, it is his contention in the alternative, that the Claimant’s/Respondent’s suit as presently constituted is statute barred and robs this Honourable Court of Jurisdiction to determine same. It was contended further that it is trite in order to determine whether an action is statute barred, all that is required is for the Court to examine the Writ of Summons and the Statement of Claim alleging when the wrong was committed and which gave rise to the Plaintiff’s cause of action. Accordingly, computing the date when the payment was last stopped (1994) to the date the Writ of Summons was filed (in 2017), it is clear that twenty three years elapsed before the decision to sue was made. This is very absurd, remarked learned Counsel. He cited Udoh & Ors v. Akwa Ibom State Government & Anor (2013) LPELR-21121(CA) and Egbe v. Adefarasin (1987) 1 NWLR pt.47 @ 20-21. Counsel is therefore convinced that the cause of action as presently constituted, arose sometime in May, 1994. He referred to paragraphs 9 and 10 of the Claimant’s/Respondent’s Statement of facts as well as to the Complaint filed in this suit.

He contended that Section 9 (1) of the Limitation Act of 1980 provides that:

“An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued”.

Citing and referring to A.G Adamawa State & Ors V. A.G of the Federation (2014) LPELR-23221(SC) the learned Counsel thus contended that the Claimant’s/Respondent’s claim for recovery of the alleged 23 years’ pension benefits and annuity falls within the actions described under Section 9 (1) of the Limitation Act of 1980 and therefore offends the provisions of the said Act. He is satisfied that the Claimant may have had a cause of action before now but the opportunity was lost by his protracted inaction.

He cited U.B.A LTD V. Micheal O. Abimbola & Co. (1995) NWLR part 419 @ 374 where court accordingly held;

“Where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the Limitation law for instituting such an action has elapsed”…

He submitted that on the strength of the afore cited case law, where the Court holds that Claimant’s/Respondent’s action has been statute barred and is no longer enforceable by judicial process, the consequential order to make is that of dismissal. He cited Federal Polytechnic Bauchi & Anor V. Aboaba & Anor (2013) LPELR-21916 where the Court of Appeal held that the import of a compliant that an action is statute barred amounts to a complaint against the competence of the action and consequently, the jurisdiction of the Court to adjudicate upon it. In essence, the effect of a time barred action is the loss of the right to enforce the action. He cited Araka V. Ejeagwu (2000) 15 NWLR (pt 692) p. 648 inter alia. Learned Counsel finally urged this Court to either strike out the 4th Defendant’s name from this suit or to dismiss same in limine for being statutorily time barred.

In opposition to the 4th Defendant’s/Applicant’s Preliminary Objection, Counsel to the Claimant/Respondent filed a Counter Affidavit of 10 paragraphs, dated and filed 5/11/2018, accompanied with a written address dated and filed the same day. In arguing against the application, the Claimant’s/Respondent’s Counsel formulated two questions for determination thus:

  1. If a triable cause of action arose to warrant this action?
  2. If the 4th Defendant is a proper and in fact necessary party in this action?

On issue one, the Claimant’s Counsel submitted that when a wrongful act is continuous, then a cause of action will be deemed to be in continuous existence. He cited Obueke V Nnamchi (2012) 12 NWLR (pt 1) at 354. For more than 23 years the Claimant was continuously denied his pension. He accordingly made several visits to the authorities in FCT, Abuja but was never given any audience.

On issue two, he submitted that parties in a suit can be classified as proper, necessary, and desirable parties. He relied on Green V. Green (1987) 3 NWLR (PT 61) PG 480. He submitted on that proper parties are those made parties to a suit for a good reason, just as he had sued the 4th Defendant based on the fact that it acts as a supervisory body to any other body which is responsible for the administration of Pensions in Nigeria as specifically provided by the Pension Reform Act 2014. He further argued that the 4th Defendant is also a necessary party because if it is not made a party to this action, the action may not be effectively dispensed with. Accordingly, they sued the 4th Defendant based on the singular fact that it acts as a supervisory body to any other body which is responsible for the administration of pensions in Nigeria and therefore the action will not be effectively disposed of if it is not made a party in this cause. Finally, being also a desirable party, learned Counsel believes the 4th Defendant is bound to be affected by the Judgment of this Court. Learned Counsel therefore argued that a Plaintiff has a duty to include as parties, all persons who will be affected by the Judgment of the Court. He cited Chief Maxi Okwu & Anor V. Chief Victor Umeh & ors (2015) LPELR-26042(SC). He concluded that this suit should be heard on its merits and urged this honourable Court to discountenance the Preliminary objection raised by the 4th Defendant.

THE 3RD DEFENDANT’S/APPLICANT’S PRELIMINARY OBJECTION:

The 3rd Defendant/Applicant filed a Preliminary Objection accompanied by a written address dated 24/10/2017 and filed the same day. In arguing his application, learned Counsel raised two issues for determination to wit:

  1. Whether, given all the circumstances and facts of this case, the institution of this suit has not become otiose with the effluxion of time.
  2. If the answer to issue 1 (one) above is in the affirmative, whether it is not the case that the staleness of the cause of action has divested the Honourable Court of the Jurisdiction to entertain this suit.

On issue one, he submitted that it is not in doubt that from the writ of Summons or form of Compliant and the pleadings contained in the Claimant’s Statement of Facts, especially paragraph 6 to 11 thereof that a cause of action accrued in May 1994.

The Claimant filed this suit against the Defendants on 9th May, 2017. Thus, the Claimant accordingly allowed himself the luxury of going to sleep over all his alleged rights for 23 years. He aligned his arguments with those made on behalf of the 4th Dedendant that by the provision of S. 9 (1) of the Limitation Act 1980 this suit or action is statute-barred. He submitted further that the institution of this suit by the Claimant/Respondent for the payment of an alleged 23 years outstanding pension and annuity falls within the embrace of this Statute of Limitation and clearly offends this provision.

He again relied on the decision in Eboigbe V. N.N.P.C (citation supplied) as well as Odubeko V Fowler (1993) 7 NWLR (pt 308) 637 inter alia.

Counsel went on to argue that Section 2(a) of the Public Officers (Protection) Act, Cap 379 L.F.N 1990 is equally applicable in this matter in view of the array of Defendants in this case from whom the Claimant/Respondent claims jointly and or severally. He adumbrated that without conceding to any inaction, neglect or default on the part of the 3rd Defendant particularly or any of the Defendants collectively, the provisions of Section 2(a) of the Public Officers Protection law is still applicable and renders the institution of this suit 23 years after the cause of action accrued, statute-barred. He believes that where a statute such as the ones cited above provides a time limit for the institution of an action in Court, and the time limited for such action had elapsed, such action is rendered otiose with the effluxion of time. He relied on Olagunju v P.H.C.N (2011) 10 NWLR (pt 1254) 113 at 128.

On issue two, learned Counsel argued that if the answer to issue one above is in the affirmative, whether it is not the case that the staleness of the cause of action has divested this Court of the jurisdiction to entertain this suit. It is accordingly settled law that it is the case presented by the Claimant or Plaintiff in his Statement of facts or Statement of Claim that determines the issue of the jurisdiction of this Court. He therefore submitted that it is an established fact in this suit that the date the Claimant’s/Respondent’s cause of action arose is clearly stated in paragraph 10 of his Statement of Facts as the month of May 1994. It is equally an established fact that the Writ of Summons or Form of Complaint (Form 1) in this suit is dated 9th May 2017. Simply calculating the time from whence the cause of action purportedly arose indicates that it is after 23 years and such this action is time barred.

He submitted further that on the authority of Texaco Panama Inc V Shell Petroleum Development Corp. Nigeria (2000) 4 NWLR (pt 653) 480 at 490, the 3rd Defendant/Applicant and or any of the Defendants in this suit can raise a point of law in limine on the matter without first filing a Statement of Defence or giving any evidence in support. He cited the Olagunju V. Power Holding Co. of Nigeria Plc (supra). In conclusion therefore, Counsel argued that a defence which is based or founded on a statute of limitation is a defence that the Claimant has no cause of action. It is a defence of law which can be raised in limine and without any evidence in support. It is sufficient if, prima facie, the date of taking the cause of action outside the prescribed period is disclosed in the Form of Complaint (or Writ of Summons) and Statement of Facts (or claim). He urged this Court to dismiss this suit in the interest of justice.

In opposition to the 3rd Defendant’s/Applicant’s Preliminary Objection Counsel to the Claimant/Respondent filed a Reply on Points of Law dated 5/11/2018 and filed on the same day. Learned Counsel for the Claimant raised two issues for determination to wit:

  1. If the Claimant has a cause of action that has arisen.
  2. In view of the issue one, if the Court has jurisdiction over this matter.

On issue one he submitted that when a wrongful act is continuous then a cause of action will be deemed to be in continuous existence. He cited Obueke V. Nnamchi (2012) 12 NWLR (pt 1 AT 354) and animadverted that for more than 23 years the Claimant has been continuously denied of his Pension despite making several visits and entreaties to the authorities in Abuja but was never given any audience.

On issue two he argued that the well-entrenched principles of fair hearing is the foundation of modern Nigerian Legal System. This principle is accordingly guaranteed under the Nigerian Constitution (1999 as amended). The National industrial Court is equally vested with jurisdiction under the Nigerian Constitution to hear employment disputes under S. 254 (C) (1-4) of the Nigerian Constitution 1999 as amended and when the provisions of the Constitution conflicts with any other Statute, the provisions of the Constitution will override. He thus concluded by arguing that it is in the best interest of justice to allow the Claimant, who has suffered continuous wrong, to be given audience by this Court to hear the matter on its merits. He thus impressed on this Court to refuse the preliminary objection.

 

THE 2ND DEFENDANT’S/APPLICANT’S PRELIMINARY OBJECTION:

The 2nd Defendant’s/Applicant’s Notice of Preliminary Objection is accompanied by a Written Address dated 20/7/2017 but filed on the 2/8/2017. The grounds for which the objection was brought are as follows:

  1. The 2nd Defendant is not a juristic person.
  2. The Claimant has no cause of action against the 2nd Defendant.

In arguing his objection, the 2nd Defendant’s/Applicant’s Counsel raised a lone issue for determination to wit: “Whether or not this honourable Court has the jurisdiction to hear and determine the suit against the 2nd Defendant?” On this issue Counsel cited A.G Ogun State V. Coker (2000)17NWLR 3.

On the question of jurisdiction being the threshold for continuing proceedings by a Court of law, he relied on Usman V. Baba (2005) 5 NWLR (pt 917) 113 C.A  @ Paras. H; 132 where the Court held that:

 “Jurisdiction being the threshold and life line for continuing proceedings, objection to jurisdiction ought to be taken at the earliest opportunity if there are sufficient materials before the Court before any other step is taken as any proceedings without jurisdiction is a nullity no matter how well conducted.

He cited Madukolu V Nkemdilim (1962) 2 SCNLR 341 @ 348 and submitted that where a Court is incompetent to hear and or determine an action, the proceedings thereafter remains and or becomes a nullity however well conducted and brilliantly decided. He recapped that in Madukolu V. Nkemdilim (supra) the principles which guide the Court in the determination of whether or not it has jurisdiction to hear and determine a suit are:

  1. That the subject matter of the case is within its Jurisdiction;
  2. That there is no feature in the case which prevents the Court from exercising its jurisdiction; and
  3. That the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Prof. Dada Odutola V. University of Illorin (2004) 18 NWLR [PT 905] 416 @ 427.

He thus contended that this suit brought against the 3rd Defendant does not satisfy all the conditions necessary to enable this Honourable Court exercise its jurisdiction. Purportedly, this suit is fraught with factors preventing this Court to exercise jurisdiction and they include:

  1. The Federal Ministry of Finance has no juristic personality; and
  2. It is incapable of suing or being sued.

He further submitted that on the first defect, the term juristic person as defined in the Black’s Law Dictionary, Seventh Edition, 1999 at page 1162, “denotes an artificial person or entity, such as corporation created by Law and accorded certain Legal rights and duties of a human being; a being, real or imaginary, who for the purpose of Legal reasoning is treated more or less as a human being. It is also termed fictitious person, Legal person or moral Person. He submitted further that as a general rule and as already decided in a plethora of judicial decisions any person whether natural or artificial may sue and be sued. However, no legal action can be instituted by or against any party in a Court of law other than a natural person, unless such a party is accorded by a statute, expressly or impliedly or by common law either the status of a legal person under the name by which it sues or is sued, or a right to sue by that name. He cited Fawehinmi V. N.B.A (NO. 2) (1989) 2 NWLR ( PT. 105) 558 inter alia.

Accordingly, in Ataguba and Company V. Gura Nigeria Limited (2005) 21 NSCQR page 720 at 722 ration 1, the Supreme Court Per D.O Edozie JSC while dealing with the issue of Juristic Personality and competence held thus:

“Undoubtedly, for an action to be properly constituted so as to vest Jurisdiction in the Court to adjudicate on same, there must be a competent plaintiff and a competent Defendant. As a general principle, only natural persons, that is human beings and Juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent”.

He contended that the name “Federal Ministry of Finance”, is merely the nomenclature attached to the portfolio of the Ministry of Finance and not being a juristic person cannot sue or be sued in a Law Court. It was argued on that the Court of Appeal, Kaduna Division while dealing with the issue of juristic personality as it relates to the Federal Ministry of Science and Technology in the case of S.D Agboola & 2 Ors V. Gabriel Saibu & Anor (1991) 2 NWLR pt 175 page 566 esp pg 575 para 576 paras A-D stated as follows:

“The submission in the appellant’s brief was that the 3rd Appellant (Federal Ministry of Science and Technology) was not a juristic person who could sue and be sued. The Respondent’s submission was that the 3rd Appellant could own property, employ servants and inflict injury and thus had capacity to sue and be sued. The 3rd Appellant is not a natural person. There was no indication in the ruling of the learned trial judge of the property owned by the 3rd Appellant or information as to the legal or factual basis that the 3rd Appellant owned institutions or research…there is nothing in the Act to the effect that the 3rd Appellant owned an institution established under Section 1 of the said Act. The reasons given by the learned trial judge, quoted above, for holding that the 3rd Appellant should be clothed with legal personality and with the power to sue and be sued can therefore, not be sustained. The 3rd Appellant is not a juristic personality that can sue and be sued”.

He further submitted that in line with the decision of the Court of Appeal that since the Federal Ministry of Science and Technology is not a juristic person capable of suing and being sued, then the Federal Ministry of Finance and all other Federal Ministries in Nigeria are not juristic persons that can sue or be sued in any Court of law. He urged this Court to strike out the name of the 2nd Defendant/Applicant as a party to this suit.

He further cited Yare V. N.S.W.I.C (2013) ALL FWLR (pt. 709) 1043 @ 1051-105, paras. H where the Court held thus:

“a cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is in effect, the fact or combination of facts which give rise to right to sue and it consists of two elements – the wrongful act of the Defendant which gives to the Plaintiff his cause of compliant and the consequent damage”

He submitted that the above authority was supported in Chevron (Nig) Ltd. V. L.D (Nig) Ltd (2007) 16NWLR (pt.1059) 168 at 177 paras E-H inter alia where reasonable cause of action was defined as above quoted. Learned Counsel thus submitted that the 2nd Defendant is no position to provide the reliefs sought by the Claimant in this suit as the Claimant was not under the employment of the 2nd Defendant neither is the 2nd Defendant responsible for paying pension to pensioners or handling matters related to pension. He animadverted also that the Claimant has not been aggrieved by the 2nd Defendant to justify being joined as a party to this suit. He cited Bassoy Ltd V. H.L (Nig) Ltd (2010)4 NWLR (PT.1184) 300 at paras E-F, where the Court of Appeal held:

“A cause of action is made up of an aggregation of facts recognized by Law as giving the plaintiff a substantive right to the claim or relief sought. A reasonable cause of action is a cause of action with some chance of success when only allegations in the plaintiff’s Statement of Claim are considered. Where upon examination, it is found that the alleged cause of action is bound to fail, the Statement of Claim ought to be struck out.

He again cited Chevron (Nig) Ltd V. L.D (Nig) Ltd (2007) 16 NWLR (p1. 1059) 168 SC inter alia and thereafter concluded that this suit is fundamentally incompetent and defective and therefore deprives this Honourable Court the Jurisdiction to hear and determine same. He urged this Court to strike it out with prejudice.

In opposition to the Preliminary Objection of the 2nd Defendant’s/Applicant’s Counsel, the Claimant/Respondent filed a Reply on points of Law, dated 5/11/2018 and filed on the same day. Counsel raised and submitted a lone issue for determination to wit: “If this honourable Court has Jurisdiction to hear this suit”? On this issue, it was submitted that it is not enough to assume that an entity is not a body corporate merely because of the fact that its name does not expressly depict same. Accordingly, the Ministry of Finance is a body corporate created by an enabling statute. He cited Chief Gani Fawehinmi V. Nigeria Bar Association & 4 ors (1989) 2 NWLR (pt. 785) 551. He further submitted that any legal person can sue and be sued and by its name as such, the Ministry of Finance is a statutory body, established by Ministry of Finance Incorporated Act of 1959 and it is therefore a body corporate capable of being sued as a legal entity in its name. He cited Bank of Baroda V. Iyalabani Co Ltd (2002) 13 NWLR (pt 785) 551

He concluded by submitting that the Preliminary Objection of the 2nd Defendant is frivolous waste of Court’s time and urges this Court to dismiss same.

                                                    COURT’S DECISION:

I have carefully perused all the applications filed by 2nd, 3rd and 4th Applicants as well as considered their Counsel’s interventions as contained in their respective written addresses. I have also read through the Counter Affidavit and responses by points of law made on behalf of the Claimant/Respondent. I reckon there are four issues to be determined in making my findings. They are:

  1. Is the 4th Defendant/Applicant a proper party in this suit?
  2. Whether the 2nd Defendant is a Juristic person capable of being sued?
  3. Whether this cause of action is statute barred?
  4. Whether ultimately the Court has Jurisdiction to entertain this suit?

It is important at this juncture, to state suo motu that although the issue of whether the 1st Defendant“Federal Savings Bank” is a proper party in this suit was never raised, this Court can take judicial cognizance of the fact that the 1st Defendant is no longer a known juristic person in law. The bank, which operated as an arm of the Post and Telecommunications Department was set up to facilitate mobilization through the network of post offices. In 1974, by Decree No. 38, the bank became legally known as Federal Savings Bank with a separate Management Committee. The performance of the bank, from available records, was far short of expectations. The inefficiencies associated with the Post Office permeated the bank so much that service delivery and its image were nothing to write home about. Furthermore, the bank lacked operational flexibility, streamlined processes, competitive services and rates. However, in 1990, the bank again transformed into FSB International Bank Plc, which was thereafter acquired by Fidelity Bank Plc in 2005 when the Central Bank of Nigeria (CBN) directed consolidation of banks in the country. Armed with this vital information, it is therefore safe to proceed to strike out the name of the 1st Defendant in this suit being the use of the name of a defunct and dead establishment, and same is so ordered.

The 4th Defendant’s/Applicant’s preliminary objection, although two pronged, is basically on the ground that it is not a proper party and therefore seeking the Court to strike out its name for being purportedly  misjoined to this suit.  The 4th Defendant’s reason is that the Pensions Reform Act 2014 establishes the Contributory Pension Scheme for payment of retirement benefits of employees to whom the Scheme applies, which excludes the Claimant who was retrenched from service in 1987, 17 years prior to the Commencement of the Contributory Pension Scheme.

Section 3 of the Pension Reform Act, 2014 (PRA) as relied upon by the learned Counsel to the 4th Defendant/Applicant provides that:

  1. “There is established for any employment in the Federal Republic of Nigeria, a Contributory Pension Scheme (in this Act referred to as “the Scheme”) for payment of retirement benefits of employees to whom the Scheme applies under this Act.”
  2. “The Scheme established under subsection (1) of this Section shall apply to all employees in the Public Service of the Federation, The Federal Capital Territory, State, Local Government and the Private Sector subject to the provisions of Section 5 of this Act”.

While Section 5 (1) (b) of the Pensions Reform Act Provides:

“The categories of persons exempted from the Contributory Pension Scheme are:

…any employee who is entitled to retirement benefits under any pension scheme existing before 25th day of June, 2004, being the commencement of the Pensions Reform Act, but as at that date had 3 or less years to retire”.

In determining whether the 4th Defendant is a proper Party to the Suit, the express provisions of the law is to guide and restrict the Court. 4th Defendant’s/Applicant’s Counsel has relied on the provisions above but reading through Section 5(2) of the Pensions Reform Act 2014 which provides:

Any person who falls within the provisions of Subsection (1) of this Section shall continue to derive benefit under existing Pension Schemes in accordance with the formula provided for in the second Schedule to this Act or under the provisions of the enabling Laws.

While Section 6(1) Pensions Reform Act 2014 also provides that:

The administration of the retirement benefits of the categories of employees exempted from the Scheme under Section 5 (1) (b) of this Act shall be subject to the supervision and regulation of the Commission.

It becomes therefore obvious from the express provisions of the Act as relied above, that the fact that Claimant/Respondent falls within the category of persons exempted does not in any way prevent the Commission from supervising and regulating the administration of his alleged Pension Benefits. The learned Counsel for the 4th Defendant/Applicant was quite misguided to have perceived that 4th Defendant/Applicant is not a proper party to this suit in view of the provisions in Section 5 (1) (b) alone. It does seem that the application to have the name of the National Pensions Commission struck out on the ground alone that it is not a party to this cause, must therefore fail giving the above provisions of Sections 5 (2) and 6 (1) of the Pensions Reform Act, 2014 and I so hold. I shall however deal with the second prong of the 4th Defendant’s objection shortly.

Moving on to the second issue for determination by this Court which is whether the 2nd Defendant/Applicant lacks the requisite juristic personality to be sued, in arguing his issue 1 as formulated in his written address, Counsel for the 2nd Defendant had submitted that the Federal Ministry of Finance, is merely a nomenclature attached to the portfolio of the Minister of Finance and not being a juristic person that can be sued in a law Court. Reliance may be placed on Section 147 (1) of the 1999 Constitution (as amended) which provides that:

“There shall be such offices of Ministers of the Government of the Federation as may be established by the President”.

It is therefrom evident that there is nothing in this section or from any other Statute where the “Ministry of Finance” is created specifically. What this constitutional provision seeks to establish is the portfolios of the Ministers of the Government of the Federation. I therefore adopt as the correct position, the decision in the case of Agboola & 2 Ors V. Gabriel Saibu & Anor (1991) 2 NWLR (PT. 176) 175, 566 ESP @ page 575 PARA H and 576  cited by the 2nd Defendant/Applicant where the Court of Appeal had held that the Ministry of Science and Technology as well as all other Federal Ministries, are not juristic persons capable of suing or being sued. In effect therefore, the Federal Ministry of Finance which is now sued as the 2nd Defendant in this suit, is not a juristic person and it does not have the competence of being sued. It therefore cannot be made a party to this suit. This Court is left with no choice than to strike out the 2nd Defendant from this suit, and I so hold.

On the third issue for determination outlined above, both the 3rd  and the 4th Defendants had raised the issue of this suit being time barred having been instituted 23 years after the cause of action arose and thus outside the provisions of Section 9 (1) of the Limitation Act of 1980 which provides for actions for recovery of any sums to be commenced within 6 years from the date the cause of action accrued. In fact, apart from maintaining this position, the 3rd Defendant in particular went on to argue that the suit is also time barred pursuant to Section 2 (a) of the Public Officers’ Protection Act of 1990 which requires actions against Public Officers to be commenced within 3 Months from the Date the cause of action accrued.

To my mind, the 3rd Defendant is not a public officer in law and I doubt if it can raise the defense provided for under the Public Officers’ Protection Act. Outrightly, the arguments and submissions made in that regard cannot be sustained. The position however may have been different if it was raised by the 4th Defendant which for all intents and purposes may be considered to be a quasi governmental agency and thus more than likely to be protected under POPA.

Nonetheless, I reckon it is already settled law that for a court to determine when a cause of action accrued, all that’s required is to go through the Statement of Facts to determine the time the injury was caused, and the time the action to remedy the injury was instituted before the court. If the date is not within the time limit provided by law, then the action becomes stale and it must be declared statute or time barred — see Egbe V. Adefarasin (No. 2) (1987) 1 NWLR (PT 47) 1 SC. In other words, whether a claim is time barred or not will depend on the circumstances of the cause.

In the instant suit this Claimant’s contention is for his unpaid pension benefits purportedly owed him for over 23 years from 1994 till when this suit was initiated in 2017. It is argumentative that the reliefs sought by the Claimant is continuous because pension debts owed continue from month to month as guaranteed under Section 210 of the 1999 Constitution. It will be justifiable to regard the injury as continuous therefore if the Claimant made several attempts to have his pensions paid to him. In his statement of facts, this Claimant averred that he made periodic and frantic efforts to have his pension paid to him and even made several unsuccessful trips to Abuja to recover his claims. I find also portions where he purports that he had written severally to the Defendants particularly between 2015/2016 before he finally decided to institute this trial in 2017. I believe he must not ordinarily be shut out from disputing what is considered to be his constitutional entitlement.

My decision to decide whether or not this suit should be considered time barred will indeed be dependent on the active steps and measures taken by the Claimant in pursuit of what he alleges to be his pension entitlements. According to his claims, the Claimant served with the defunct Federal Savings Bank for 22 years from 1965 till 30/2/1987 when he was retrenched with his full benefits paid to him (see paragraphs 6 and 7 of his statement of facts). He was accordingly paid his gratuity and had begun to receive his pension through North-South Bank in Owerri, Imo State till 1994 when the said bank collapsed. He alleged further under paragraph 10 of his facts that from 1994, he was denied his pension to date. From the evidence he front loaded to this Court, from 1994 when he last collected a pension payment as contained in a passbook from the North-South Bank, the only complaint made on record by the Claimant was in 2015 when he had a letter of complaint written to Pension Transitional Arrangement Directorate (PTAD) on 2/10/2015. It therefore seems the cause of action arose in 1994 but it took the Defendant another 21 years before he could put up a formal demand for the payment of his pension by PTAD. From the facts available before this Court, it was from 2015 therefore that the Claimant actively begun to pursue and fight for what he now alleges to be his constitutional right. This suit was eventually filed on the 11/5/2017, 23 years since the cause of action arose.

Now, the disposition of this Court is to refuse to deny a Claimant the right of audience to claim what we consider to be his constitutional right. This is because section 210 of the Constitution regards pensions as constitutional protected. This position is as elaborated in the case of AJAO V THE PERMANENT SECRETARY, MINISTRY OF ECONOMIC PLANNING BUDGET CIVIL SERVICE PENSIONS OFFICE (CA/L/922/2010)[2016] NGCA 24 (14th JUNE 2016) where his lordship, Obaseki – Adejumo, JCA had held in a similar case to this that:

It must be conceded…that the right of the Appellant’s counsel to pension is a constitutional right guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 210 thereof reads:

  1. “The right of a person in the 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 the 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.

Therefore, pension is not merely a statutory right of the Appellant in the instant appeal. Ipso facto it is the fulfillment of a constitutional promise so that the relevant laws or rules made pursuant to section 210 of the Constitution are enacted for effective execution of the constitutional mandate entrusted to the government. Thus, the payment of pension does not depend on the discretion of the government but is governed by the rules and anyone entitled to pension can claim it as a matter of right. The learned trial judge ought to have considered the constitutional right of the Appellant to his pension which is a continuing right before holding that the Appellant’s claim is statute-barred.

Therefore from the combined current attitude of this Court, Section 210 (1) and (2) of the 1999 Constitution and the following judicial authorities — A.G RIVERS STATE V. A.G BAYELSA STATE & ANOR (2013) 3 NWLR (PT 1340) 123, FGN V. ZEBRA ENERGY LTD, (2002) 18 NWLR (PT 798) 162, it will ordinarily be safe to have declared that the Claimant’s case is not statute barred and declare that it is properly before this Court — See also this Court’s ruling in CHIGOZIE EZE AND 102 OTHERS V. GOVERNOR OF ABIA STATE AND OTHERS NICN/OW/37/2017 delivered on 25/10/2019.

However, the above cases are distinguishable from this case in that this Claimant had never taken any active and or positive steps since 1994 when he was last paid his pension, till 2015, 21 years after when he finally realized and woke up to make this claim for his alleged pension. 23 years later, he decided to file this suit. It is equally evident from his statement of facts that the details of what his pension actually is, is unknown and doubtful to him (or if known, was never supplied by him). The statement of facts is bereft of the exact amounts of monies he was paid even though it acknowledges that he was paid his full benefits upon his retrenchment in 1988. It is difficult to ascertain what his balances are if there are any and so the entire suit seems whipped up merely to appeal to sentiments rather than on pure facts and evidence. I believe allowing this suit will open a flood gate of potentially needless litigations which is ultimately against public interests. With the greatest respect to his Lordship, the honorable Justice Chukwudifu Oputa of blessed memory who had illustrated that  “Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic…”, Justice is indeed a ‘high way’ and not merely a three-way traffic on which the Claimant, the Defendant, the general public as well as the Courts/Judges must be allowed equal and fair passage and movement since the latter must be seen as doing justice at all costs.

It is thus euphemistic to state that this cause of action is indeed stale, time and statute barred and the unfortunate truth is that it must be dismissed in limine. The claims cannot be revived. Ultimately, issue number 3 above dispenses with issue number 4 raised by this Court and since I had declared that this suit is incompetent and improperly before this Court, it is therefore impossible to exercise jurisdiction in respect of this here suit. As such, the various applications to dismiss this suit succeed. The case is thus dismissed. This ruling thus becomes the final decision of this Court in respect of this here suit.

DELIVERED IN OWERRI THIS 3RD DECEMBER, 2019.

HON. JUSTICE I.S GALADIMA

Judge, NICN.

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