Kinsley .O. Uzoukwu -VS- Federal Mortgage Bank of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 6^TH DECEMBER, 2019 SUIT NO: NICN/YEN/67/2015

BETWEEN:

KINGSLEY O. UZOUKWU ESQ. ————————- CLAIMANT

AND

FEDERAL MORTGAGE BANK OF NIGERIA ——– DEFENDANT

JUDGMENT

This suit was originally commenced at the Federal High Court Port Harcourt Judicial Division by way of a Writ of Summons as Suit No. FHC/PH/CS/63/2012 filed on 10^th day of February, 2012. The suit was however transferred to this court vide an order issued under the hand of Hon. Justice B. O. Quadri on the 27^th day of November, 2014. Upon the transfer of the suit to this court, and pursuant to order of court made on 30^th day of June, 2016, the Claimant filed an Amended Statement of Facts dated 30^th June, 2016 and filed on 1^st day of July, 2016, wherein the Claimant claims the following reliefs against the Defendant:

A declaration that the claimant is entitled to receive his monthly pension in accordance with the level that he was retired from and a further declaration that the current monthly pension being paid to the claimant does not reflect his status as a level 9 officer (B 3 Step 2) as at the time of his retirement from service but rather paid as a level 4 (A 4) clerk.

A declaration that the defendant is responsible for the payment of the correct monthly pension to the claimant henceforth and an order restraining the defendant from further underpaying the claimant his monthly pension from 2008 when the claimant discovered this anomaly.

An award of N200,000,000.00 as general damages for the claimant against the defendant for the hardship and psychological trauma the incorrect monthly pension has occasioned him as a result of the defendant’s refusal and/or neglect to correct and implement accordingly and more so based on the diminishing value of the naira.

Interest at 10% per annum from the date of judgment and until the judgment sum is liquidated.

The Defendant’s Amended Statement of Defence together with the deposition of the defendant’s witness was dated and filed on the 12^th day of January, 2018, but deemed as having been properly filed and served on the 16^th day of January, 2018.

It is pertinent to state that, the Claimant had filed a Reply to the Defendant’s Amended Statement of Defence together with a further deposition of the claimant on the 11^th day of January, 2017.

The matter proceeded to trial wherein the Claimant testified for himself as CW1, adopted his witness deposition on oath made on 1^st day of July, 2016, as well as the additional deposition made on 11^th day of January, 2017, and tendered documents which were admitted and marked as exhibits CW1A-D, CW2A-B, CW3, CW4, CW5, CW6, CW7, CW8, CW9, CW10 and CW11; while CW12 was tendered through CW1 during cross-examination by the learned counsel to the defendant. The witness after being cross-examined by the defence counsel was discharged there being no re-examination by the claimant’s counsel. On the 11^th day of July, 2018, the Claimant’s counsel argued the Motion on Notice filed on 13^th June, 2018 for leave of court to call additional witness in this suit, and there being no objection from the defence, the application was granted as prayed and the matter was then adjourned to 25^th day of September, 2018 for continuation of trial. The Claimant’s second witness is one Bryan Igbinedion who testified on 29^th October, 2018.

CW2 introduced himself as the Regional Legal Officer of WEMA Bank at No. 76 Aba Road Port Harcourt, and adopted his deposition made on 26^th of June, 2018. Exhibits CW13 and CW14 were then tendered through CW2 while exhibit CW15 was tendered through the witness during cross-examination by the defence. The witness was then cross-examined by the defence counsel and discharged on 29^th November, 2018, there being no re-examination of the witness by the claimant’s counsel. The Claimant then closed his case on the 29^th of November, 2018, and the matter was adjourned for the Defendant to open its Defence.

On the 20^th day of February, 2019, K. O. Uzoukwu Esq. appeared in person as the Claimant while G. O. Chindah Esq. appeared for the Defendant.

The Defendant then called one witness Rufai Aliyu (the defendant’s State Coordinator for Kogi State Office) who testified as DW. He adopted his Witness Statement on Oath made on 12^th January, 2018. The witness was then cross-examined by the learned Claimant’s counsel and exhibit DW1 was tendered through the witness during cross-examination. The Defendant then closed its case on 20^th day of February, 2019, and the matter was adjourned for adoption of final written addresses.

On the 15^th of October, 2019, when this case came up for adoption of final written addresses, K. O. Uzoukwu Esq. appeared in person for the Claimant while Chinyenenum Amah Esq. appeared for the Defendant. Parties thereafter adopted their Final Written Addresses respectively. The Defendant’s Final Written Address was dated 9^th May, 2019 and filed on 13^th May 2019 but deemed to have been properly filed and served on the 15^th October, 2019. The Claimant’s Final Written Address was dated 27^th May, 2019 and filed on 30^th May, 2019. With the adoption of the parties’ Final Written Addresses, the suit was then adjourned for judgment.

THE CASE OF THE CLAIMANT:

The Claimant was employed by the defendant in 1983 and in the year 1988 he was allowed to go on study leave at University of Calabar and was subsequently called to the Bar in 1993. With the creation of the Federal Mortgage Finance Limited (FMFL) in the year 1993, the claimant’s services were unilaterally transferred to the new organization. Having qualified as a Barrister and Solicitor of the Supreme Court of Nigeria, he was elevated from the rank of level 4 (A4) to level 9 (B3) in 1994 as a Solicitor (Senior Supervisor) in the Federal Mortgage Finance Limited where he worked till 1995 when he was retired.

According to the Claimant, he thought his pension was based on his status as a lawyer and officer on level 9(B3) until sometimes in 2008 when officials of the defendant visited Port Harcourt for verification of pensioners when he found out that officers who retired on level 4 received higher pensions than himself and he wrote letters of appeal to the defendant to remedy the anomaly to no avail hence he filed this suit in court seeking the reliefs against the defendant since the Federal Mortgage Finance Limited where the claimant’s services were transferred to has since been merged with the defendant in 2003.

DEFENDANT’S CASE:

According the Defendant, while it is true that the Claimant was its former staff whose employment was transferred to the Federal Mortgage Finance Limited (FMFL) in 1993 due to the deconsolidation of the Defendant by the Federal Government, the Claimant however ceased to be its staff after the said deconsolidation which was made pursuant to Decree No. 82 of 1993. That the Claimant was no longer subject to the Defendant’s terms and conditions of service except pension benefit up to the time of Claimant’s transfer to Federal Mortgage Finance Limited in November, 1993.

According to the Defendant, as at the time of the Claimant’s transfer pursuant to the deconsolidation scheme in 1993 he was a clerk Grade III on salary scale A4 Step 3, and that he was paid all his terminal benefits from 21^st November, 1983 to 30^th November, 1993 when he worked for the defendant. That the pension benefit of the Claimant is limited to the period he worked for the defendant and calculated on the basis of the last salary earned prior to his transfer to the Federal Mortgage Finance Limited.

The Defendant further averred that, the Federal Mortgage Finance Limited was neither merged with the Federal Mortgage Bank of Nigeria nor did the defendant take over the liability of the said Federal Mortgage Finance Limited. That both the Boards of Directors of the Defendant and that of the Federal Mortgage Finance Limited still exist and are separate and distinct as there is neither a Gazette, certificate nor Federal Government Resolution sanctioning or authorizing such merger of the Federal Mortgage Finance Limited with the Defendant. That the Claimant whose claim before the court is predicated on non-payment and/or underpayment of gratuity, pension and other benefits is not entitled to any of the reliefs sought from the court.

DEFENDANT’S SUBMISSIONS.

The Defendant distilled two (2) issues for determination, to wit:

Whether the claims in the claimant’s Amended Statement of Claim is not vague, superfluous and unlikely to sustain the action of the claimant, the reliefs having being lumped up and too wide for consideration by this Honorable court?(sic)

Whether the claimant has discharged the evidential burden to substantiate his claim that he is entitled to pension from the defendant as a Level 9 officer (B3 Step 2) as at the date of retirement from service at the Federal Mortgage Finance Limited.

On issue one (1), the learned counsel to the Defendant, G. O. Chindah, Esq. referred the court to the reliefs in the Amended Statement of Facts, and argued that a court can only be vested with jurisdiction to determine a suit when the following pre-conditions are met:

It is properly constituted as to number and qualification of the members and no member is disqualified for one reason or the other.
The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.
The case comes by due process of law upon fulfillment of any condition precedent to exercise of jurisdiction.

The cases of Madukolu V.Nkemdilim (1996) 1 ALL NWLR (Pt. 2) 581 at 589 – 590; Okorocha V. PDP & Ors (2014) 1-2 SC (Pt. 1) 82 at 144 and Intra Motors Nig Plc V. Akinloye (2001) 6 NWLR (Pt. 708) 61 at 72 were referred to by learned counsel.

That the Claimant’s reliefs a – c in the Amended Statement of Facts are vague and superfluous in nature because the two are lumped into one relief, and that there is no evidence to sustain the said reliefs. That particularly for relief ‘a’, two declaratory reliefs were lumped into one thereby making same vague which cannot be granted by the court, referring to the cases of A.G. Ogun State V. A.G. Federation (2002) 12 SCNJ 191; A.G. Federation V. A.G. Abia and 35 Ors (No.2) (2002) 6 NWLR (Pt. 764) 542 and Kato V. CBN (1999) 5 SCNJ 1.

With respect to relief ‘b’ it is also submitted that, two distinct claims, one for a declaration over an unspecified alleged monthly pension and the other for an injunctive order restraining the defendant were lumped together into one relief. That in the circumstance it is not the duty of the court to speculate on the intention of the claimant and the court cannot also sever the two claims.

That since the claim in damages is also vague as what should amount to the correct monthly pension of the Claimant was not stated, this court should not make an order in vain or embark on an exercise that leads to nowhere. See U.B.N. Ltd V. Edionseri (1988) 1 NSCC 603 at 610; Bhojwani V. Bhojwoni (1996) 7 SCNJ 16 at 20-21; Nnodim V. Amadi (1993) 1 NWLR (Pt. 271) 568 and Uzokwu V. Igwe Ezeonu II (1991) 6 NWLR (Pt. 200) 708 at 784 – 785.

The court is therefore urged to hold that due to the vague nature of the claims which were lumped up together same is incompetent and to dismiss the suit for want of jurisdiction.

On issue two (2) it was argued that, the burden of proof rests on the party asserting the affirmative, and that after evidence has been given the burden is on the party against whom the court at the time in question would give judgment if no further evidence were adduced. That the burden of proof in the instant suit rests squarely on the Claimant who must not only plead the facts but must substantiate same by evidence. That the claimant must therefore succeed on the strength of his case. See section 133(1) of the Evidence Act, 2011 and the cases of UBN Ltd V. Simon Osezuah (1997) 2 NWLR (Pt. 435) 42 paras. F – G; Okon V. Bolingo Hotels (2004) All FWLR (Pt. 214) 89 – 90 paras. F – G; and Otamma V. Youdubagha (2006) All FWLR (Pt. 300) 1579 at 1594 paras G – H.

According to learned counsel, since the provisions of the Federal Mortgage Bank of Nigeria Act, Cap F16 LFN 2004, does not make provision for the manner and determination of employment including staff pension, the rights of the parties in the instant suit can only be determined having regard to the terms and conditions of service and other relevant documents. See Ujam V. I.M.T. (2007) 2 NWLR (Pt. 1019) 470 at 489 paras. F – B, and Nigerian Institute of International Affairs V. Ayanfalu (2007) 2 NWLR (Pt. 1018) 246 at 271 paras B – C.

It is the further submission of learned counsel that the claimant has the duty to establish the following before the court:

That he was an employee of the defendant,
The terms and conditions of the service,
In what manner was his pension underpaid by the defendant,
Must show the actual calculation of the pension as provided under the condition of service for his category. See Katto V. CBN (1996) 6 NWLR (Pt. 607) 390, and Ante V. University of Calabar (2001) 3 NWLR (Pt. 700) 239.

That while it is not in dispute that the claimant was once a pensionable staff of the defendant as per exhibit CW1, and also that the claimant’s employment was transferred to Federal Mortgage Finance Limited in 1993 following the deconsolidation exercise, the nature of the pension scheme applicable to the claimant have not been proved by the claimant. That exhibits CW1, CW6 and CW7 being relied upon by the claimant have not shown conclusively the pension entitlement of the claimant arising from his employment with the defendant. That the failure of the claimant to plead and provide evidence of any scheme or terms containing his alleged entitlement to pension and the amount, is fatal to the claimant’s case before the court, as there is no evidence before the court that employees who retired on level 4 were paid higher pensions than the claimant. That there is no evidence oral or documentary in support of the claim for pension. See Mobil Producing Nig. Unlimited V. Asuah (2001) 16 NWLR (Pt. 740) 723, New Nigeria Bank Plc V. Gabriel Egun (2001) 7 NWLR (Pt. 711) 1, Nigerian Airways V. Aiyeoribe (2000) 17 WRN 40 and Shell Petroleum Development Company of Nigeria Ltd. V. Chief Victor Sunday Olarewaju (2008) 16 NWLR (Pt. 1118) 1.

Learned counsel to the defendant further posited that, since the terms of the agreement between the parties are clear and unambiguous, they should be given their ordinary grammatical meaning, referring to the cases of Layade V. Panalpina (1996) 6 NWLR (Pt. 456) 544 at 555; Ogbunyinya V. Okudo (1976) 6-9 SC 38 at 48; UBN Ltd V. Ozigi (1994) 3 NWLR (Pt. 333) 385 403 – 404.

Learned counsel referred the court to exhibits CW6, CW7 and CW12 and argued that, the essence of exhibit CW6 was to guarantee and secure the tenor of the claimant’s employment in his last grade (Clerk level 4) with the defendant before his transfer in order to place him in the category of a confirmed staff with Federal Mortgage Finance Limited to enable him take advantage of the procedure for termination as a confirmed employee with Federal Mortgage Finance Limited under exhibit CW7.

That by exhibit CW6, the defendant had severed the claimant’s employment with the defendant and transferred same to the Federal Mortgage Finance Limited thereby limiting the liability of the defendant to the payment of pension calculated for the period the claimant worked for the defendant being 1983 – 30^th November, 1993 when he was transferred to Federal Mortgage Finance Limited. See section 21(4)(a)&(b) of the Federal Mortgage Bank of Nigeria Act.

That even where is assumed that the claimant was still a staff of the defendant as at 1995 when he was retired by Federal Mortgage Finance Limited, from exhibits CW6 and CW7 it could be deduced that:

Federal Mortgage Bank of Nigeria and Federal Mortgage Finance Limited are two distinct entities by virtue of section 23 of the Federal Mortgage Bank of Nigeria Act.
Effective 1^st December, 1993 the claimant became a staff of the Federal Mortgage Finance Limited.
The claimant could not have worked for two different institutions at the same time.
The claimant could not have received gratuities and terminal benefits twice.
The non-inclusion of ‘pension’ in the list of items in paragraph 3 of exhibit CW7 means that pension to be received is subject to exhibit CW6, which only entitles the claimant to pension for services with the defendant up to the effective date of the transfer being 30^th November, 1993.

That both the claimant’s pleadings and evidence are replete with material contradictions and the court is urged to discountenance same relying on the cases of Obiazikwor V. Obiazikwor (2007) All FWLR (Pt. 371) 1602 at 1625 para C; Ezemba V. Ibeneme (2000) 10 NWLR (Pt. 674) 61 at 75 para B; Adepaju Ayanwala V. Babalola Atenda (1998) 1 NWLR (Pt. 68) 22 and Chime V. Chime (2006) 3 NWLR (Pt. 701) 527 at 556 para D. That the Claimant who received exhibit CW12 about nineteen years before instituting the instant suit is estopped from denying the contents of the said letter.

It is further submitted that, by exhibits CW14 and CW15 the claimant is still being paid his pension pursuant to exhibit CW6 and the contention by the claimant that he should be paid pension calculated based on his last grade level before his retirement in 1995 has not been proved as required by law. See section 133(1) of the Evidence Act, 2011 and Okoya V. Santilli (1994) 4 NWLR (Pt. 338) 256 at 289 paras. A – B.

That exhibits CW2A-B, CW11, and CW6 all emanated from the Federal Mortgage Finance Limited and not the defendant and these facts were duly confirmed by the DW1 during cross-examination.

On the claimant’s allegation that the Federal Mortgage Finance Limited had been merged with the defendant vide exhibit CW5, learned counsel to the defendant argued that complex legal and administrative procedures are required for the merger of companies or corporations which must be fulfilled relying on the case of Re: South Afr. Supply & Cold Storage Co. (1904) 2 Ch. 287, Ojora V. AGIP Nig Plc (2005) 4 NWLR (Pt. 916) 515, Dennam V. Midland Employer’s Mutual Assurance Ltd (1955) 2 Q.B. 437 and section 591 of the Companies and Allied Matters Act (CAMA). That if at all there was a merger of the two organizations such would have been in a Gazette of the Federal Republic of Nigeria which the court is enjoined to take judicial notice of pursuant to section 122(2)(a) of the Evidence Act, 2011. That exhibits CW3, CW4 and CW5 neither qualify as Gazette, Certificate of Merger, order of court nor a legislation authorizing any merger as alleged by the claimant as the governing law the Federal Mortgage Bank of Nigeria Act Cap. F16 LFN 2004 has not been repealed. That the said exhibits CW3, CW4 and CW5 did not emanate from the defendant as they were not authenticated by the authorized seal of the defendant and signed by the defendant’s Managing Director as required by law hence they should not be accorded any probative value by the court. The court is in the circumstance urged to discountenance the Claimant’s allegation of merger of the Federal Mortgage Finance Limited with the defendant.

On the claim for the award of N200,000,000.00 as general damages for hardship and psychological trauma allegedly suffered by the claimant, it is argued that damages whether specific, general or exemplary can only be awarded where evidence establishes a case for such award, and damages in a claim for pension are not to be presumed or awarded just for the asking. That the claim for damages before the court is one of special damages and not general damages as portrayed by the claimant. That the onus lies on the claimant to prove what measure or quantum is the amount for the hardship and psychological trauma he allegedly suffered and the law requires strict proof.

See Federal College of Education V. Anyanwu (1997) 4 NWLR (Pt. 501) 561, Mbachu V. Anambra-Imo River Basin Dev. Authority Owerri (2006) 14 NWLR (Pt. 1000) 691.

That the measure of damages to be awarded for claims arising from alleged underpayment of pension is prima facie, the amount the claimant would have earned, if from the evidence he had proved such underpayment. That in the instant case the claimant has not placed any material before the court upon which his claim for underpayment and award of damages can be sustained. Nigerian Railway Corporation V. Umera (2006) 17 NWLR (Pt. 1008) 265 and Oshinjinrin V. Alhaji Elias (1970) 1 All N.L.R. 153.

That since the reliefs sought by the claimant before the court are declaratory in nature, they cannot be granted even in default of pleadings without convincing evidence by the claimant. That where the claimant fails to lead evidence or the evidence led is not satisfactory enough as in the instant case, he has not made out any case warranting the defendant to defend or answer. See Major V. Samouris (2002) FWLR (Pt. 98) 818 at 836 paras. E – G, Godwin Okekocha V. Min. of Commerce and Tourism (2009) FWLR (Pt. 25 1721 at 1742 para. F-G, National Bank of Nigeria Ltd V. Uche Chyke Holdings (2004) 13 NWLR (Pt. 891) 436 at 459 paras. G-H and section 133(2) of the Evidence Act, 2011.

The court is finally urged to dismiss the instant case with substantial cost for want of proof by the claimant.

CLAIMANT’S SUBMISSIONS

The Claimant nominated a sole issue for the determination of this court, to wit:

Whether or not, the claimant from the facts and evidence before the court is entitled to be paid his commensurate pension as a B3 officer by the defendant on retirement and if yes, whether general damages will arise from the omission of the defendant to fully pay same as opposed to an A4 officer?

It is however instructive to note that before arguing the lone issue submitted for the court’s determination, the learned counsel to the claimant K. O. Uzoukwu Esq. made arguments on what he termed ‘preliminary issues’ relating to exhibits CW12, CW13, CW15 and DW1 which were admitted under protest and parties directed to address the court during final addresses on the admissibility of the said exhibits. With regard to exhibit CW13 it is submitted that the said exhibit was pleaded at paragraph 12 of the Amended Statement of Facts and also at paragraph 3 of written statement on oath of CW2. That the document is relevant and therefore admissible in evidence relying on the cases of Torti vs. Ukpabi (1984) 1 SCNLR 214 and Ogbe vs. Asade (2010) 180 LRCN 106 @ 136 Paras F – Z.

As per Exhibit CW15 the protest was by the claimant that the document in question was neither produced by the witness nor did he admit to being privy to same and therefore cannot be tendered through him not being the maker of same. Learned claimant’s counsel referred the court to the answers elicited from CW2 during cross-examination and submitted that, from the evidence, the document did not emanate from WEMA Bank and therefore inadmissible through the witness (CW2). See the case of Aregbesola vs. Oyinlola (2011) 9 NWLR (Pt 1253) 458 @ 586 – 587 Paras H – A.

With regard to Exhibit DW1 it is submitted that same is a CTC of a judgment which the court should take judicial notice of. That the defence witness admitted that he was aware of the judgment when shown to him during cross-examination.

For Exhibit CW12 it is argued that same is a document pleaded by the defendant but tendered through the claimant. That since the circular mentioned in the letter (CW12) is not attached, the said exhibit is a worthless letter as the court cannot judicially take notice of a circular not before the court hence no weight can be attached to the letter (exhibit CW12). See the cases of Council, FUTA vs. Ajidahun (2012) 14 NWLR (Pt 1321) 583 @ 609 Paras F – G, Daniel Holdings Ltd vs. U.B.A Plc (2006) 133 LRCN 143 @ 161 Para K.

While arguing the lone issue, learned counsel to the Claimant submitted that, Exhibit CW1A which remains the only employment letter before the court confirms that FMBN employed the claimant in 1983, and that the transfer of claimant’s services to Federal Mortgage Finance Limited in 1993 was not based on any new employment and therefore there was no employment letter to that effect. That the conditions of service as contained in the employment of 1983 was what guided the claimant’s services in Federal Mortgage Finance Limited .

According to learned counsel, the underlying word in the letter of transfer is “continuous” which is defined by the Black’s Law Dictionary Sixth Edition at page 322 as “Uninterrupted; unbroken; not intermittent or occasional; so persistently repeated at short intervals as to constitute virtually an unbroken series. Connected, extended, or prolonged without cessation or interruption of sequence”. That this presupposes that whatever obligation that existed between parties prior to the transfer of service remains binding and sacrosanct, referring to Folorunsho & Or. vs. Shaloub (1994) 3 NWLR (Pt 333) 413 @ 433 Paras B – H and Alagbe vs. Abimbola (1978) 2 SC 39 @ 40.

That in spite of the letter of transfer which clearly spelt out the duty FMBN owed the claimant, FMBN and FMFL in 2003 were merged together pursuant to Exhibit CW5 which led to the issuance of exhibits CW3 and CW4. Learned counsel reproduced the contents of exhibit CW4 and submitted that, the said exhibit was signed by no less a person than the Managing Director/Chief Executive of FMFL and also that Exhibits CW3, CW4 and CW5 all came into being in 2003 and nobody refuted the fact that FMBN and FMFL were merged. On this point learned counsel drew the court’s attention to the case of Igunbor vs. Afolabi (2001) 87 LRCN 1760 @ 1777 Paras F – G and Esiegbe vs. Agholor & anor. (1994) 14 LRCN 132 @ 154 where the Supreme Court considered the implication of allegation of fact which has not been specifically denied.

It is further contended by learned counsel that the defendant was not right when she refused to adhere to the terms of the contract entered into by parties and which FMFL recognized that the fallout of the study leave granted the claimant was subsumed in his elevation to B3 as a lawyer, and that the defendant should be compelled to recognize same also, because the end result of going to school is to graduate and be subsequently elevated. More so, when the bond by the defendant was to the effect that the Claimant will serve her for five years on completion of study – the study leave being with pay.

That if a Claimant has a right, he must of necessity have the means to ventilate it and is entitled to remedy if he is injured in the enjoyment or exercise of the right. There cannot be a right without a remedy “Ubi Jus, Ibi remedium” as the law is an equal dispenser of justice and leaves none without a remedy for his right – Orianzi vs. A.G Rivers State (2017) 6 NWLR (pt 1561) P. 288.

Learned claimant’s counsel argued that from the evidence before the court the defendant agreed with the claimant that the defendant does not recognize the claimant’s claim as a staff on B3 before retirement and that the defendant pays the claimant’s pension as an A4 clerk. That despite bringing the anomaly of not paying the claimant his commensurate pension to the defendant’s attention through exhibits CW8, CW9 and CW10 nothing was done till the claimant was constrained to file the instant suit.

That placing the testimony of DW1 during cross-examination wherein the witness stated that the claimant was not given approval for study leave but he abandoned his office side by side with the judgment of the Rivers State High Court delivered by Hon Justice Mary Odili but now JSC in 1999, between K. O. Uzoukwu vs. Federal Mortgage Finance Limited with Suit No: PHC/166/96, it will be glaring that the witness was not a witness of complete truth but that of half truth. That in the case of Esika vs. Medolu (1997) 1 NWLR (Pt 485) 54 @ 72 Paras G – H, it was held that evidence of a witness may be believed in part and rejected in part. That the court should take judicial notice of the Judgment of the Rivers State High Court referred to above concerning the issue of study leave granted to the claimant by the defendant. See Ibrahim vs. Ojonye (2012) 3 NWLR (Pt 1286) 108 @ 135 Paras D – E where the Court of Appeal considered the power of court to take judicial notice of legislation and case law thus: “Courts are actively empowered by the Evidence Act to take judicial notice of any legislation or case law that has direct bearing on the issue in controversy before them without the same being necessarily referred to or cited by any of the parties. In the instant case, reference by the trial court to the Public Officers Protection Law of Kaduna State did not occasion any miscarriage of justice to the appellant”. See also Section 122 Evidence Act, 2011

According to learned counsel, since Section 173 of the 1999 Constitution (as amended) protects pension rights, it is unconstitutional for pension to be withheld or altered to a pensioner’s disadvantage. That in the instant case the constitutional right of the claimant has been violated by the defendant as a result of the withholding and altering of the claimant’s pension and therefore the claimant is entitled to general damages.

That the contract between the parties was regulated by the letter of employment as the letter of transfer of service is not a contract of employment and does not have the characteristics of a letter of employment. According to the claimant his elevation to B3 by FMFL was a resultant consequence of the study leave granted him by the defendant and was in line with the continuity of his employment with FMBN, because what FMFL did was to conclude the chain of events that began with FMBN in order to give effect to the letter of transfer which provided for the continuity of the Claimant’s employment with FMBN.

In response to the submissions made by the defendant under paragraphs 4.01 –

4.05 of the defendant’s final written address wherein the defendant contended

that the claim of the claimant as couched was untenable in law, it is submitted

by the claimant that the contention is misplaced as the reliefs of the claimant are

proper and maintainable in law and equity and not vague as argued by the

defendant.

That since the reliefs sought for by the claimant are constitutionally provided

for same cannot be denied even if claimed under the wrong law. See

Emecheta vs. Ogwueri (1996) 5 NWLR (Pt 447) 277 @ 238 Paras E – G and

Falobi vs. Falobi (1976) 9 – 10 SC. That reliefs A and B do not have two

separate heads of claim as the reliefs are separately interwoven and intertwined

to give momentum and meaning to what the claimant wants the court to give

him.

With regard to the defendant’s issue two (2) it is submitted that the claim of the claimant is that his pension is underpaid and nothing more; the claimant did not complain that he was illegally terminated from the defendant’s employment, or seeking to be reinstated, or seeking for his terminal benefits, or seeking to be placed on pension on retirement. That all the submissions made by the defendant under issue two (2) are misplaced and not synonymous with the facts of the case and claim before the court. That section 21(4)(a)&(b) of the FMBN Act 2004 referred to by the defendant was not applicable to this case because at the time the claimant’s services were transferred to FMFL in 1993 and his subsequent retirement in 1995 the subsisting statute was the FMBN Act 1990.

On the issue of merger, learned counsel posits that by exhibits CW3, CW4, and CW5 there was merger of FMFL with the defendant, and that the evidence of the DW1 cannot in any way contradict or reduce the weight to be ascribed to the said exhibits referring to the case of Anyanwu vs. Uzowuaka (2009) 177 LRCN 204 @ 226 Para U wherein the Supreme Court considered whether oral evidence can add to, vary or contradict the contents of a document thus: “The settled principle of law being that oral evidence cannot be allowed to add to, vary or contradict the contents of a document except where fraud in the making of the document is alleged…..And no fraud was alleged in the preparation of Exhibits “B” – “B8”.

It was finally contended that the provisions of the Companies and Allied Matters Act, 1990 cited and relied upon by the Defendant are of no moment to the present case, because what is before the court is not the legality or illegality of the merger between the Defendant and Federal Mortgage Finance Limited. That such argument would have been tenable if the present suit is between Federal Mortgage Bank of Nigeria and Federal Mortgage Finance Limited to contest the said merger in which case jurisdiction would have been vested on the Federal High Court and not this court.

The court is finally urged to grant all the reliefs claimed by the claimant in the instant suit.

COURT’S DECISION

Having carefully considered the pleadings, evidence and arguments of counsel for the parties, I am of the considered view that since the lone issue identified by the Claimant is almost similar to the Defendant’s issue two (2), I shall adopt the two (2) Issues formulated by the Defendant in the determination of this suit. These are:

Whether the claims in the claimant’s Amended Statement of Claim is not vague, superfluous and unlikely to sustain the action of the claimant, the reliefs having been lumped up and too wide for consideration by this Honorable court?

Whether the claimant has discharged the evidential burden to substantiate his claim that he is entitled to pension from the defendant as a Level 9 officer (B3 Step 2) as at the date of retirement from service at the Federal Mortgage Finance Limited.

Before delving into the consideration of the two issues as identified above, it is pertinent to consider the objections raised by the parties on the admissibility of exhibits CW13, CW15 and DW1.

On the 28^th day of November, 2018, when Frank A. Chukwuka Esq. learned Claimant’s counsel sought to tender exhibit CW13 in evidence, the learned counsel to the Defendant G. O. Chindah Esq. raised objection to the admissibility of the document on the ground that same was not pleaded by the Claimant.

May I state that even though the court directed parties to make detailed submissions on the objection in their final written addresses, I have gone through the Defendant’s final written address and no argument is made relating to the said objection to the admissibility of exhibit CW13. The Claimant however submitted in paragraph 2.06 and 2.07 of his final written address that he pleaded the said document in paragraph 12 of his Amended Statement of Facts as well as paragraph 3 of the witness deposition on oath of CW2. Having gone through the Amended Statement of Claim (Facts), I am satisfied that the said document was duly pleaded by the Claimant in paragraph 12 of the Amended Statement of Facts filed on 1^st July, 2016. I shall therefore without much ado discountenance the defendant’s objection. It is my decision that Exhibit CW13 was properly admitted.

With respect to exhibit CW15, it is recalled that on the 29^th day of November, 2018, Mr. G. O. Chindah Esq. for the Defendant sought to tender same in evidence through CW2 but Mr. K. O. Uzuokwu objected on the ground that the witness through whom the document was being tendered (CW2) was not privy to the making of the document. The Claimant has argued in paragraphs 2.08 – 2.09 of his final written address that, since the witness through whom the document was sought to be tendered is not the maker of the document and same did not emanate from WEMA Bank, it is inadmissible and should be rejected by the court. The defendant did not make any argument in their final written address relating to the admissibility of exhibit CW15.

Exhibit CW15 has Account Number 0226893860 in the name of Uzo Ukwu and recorded banking transactions from 9^th December, 2011 to 30^th December, 2011. One thing I find curious about exhibit CW15 is its source. It neither carries the name of the bank nor the stamp of the bank to authenticate same. Being a computer generated document the defendant who sought to tender same ought to have taken steps to authenticate its source by producing certificate of identification in line with the provisions of section 84 of the Evidence Act, 2011. It is therefore clear that exhibit CW15 ought not to have been admitted in the first place having not met the legal requirements for admissibility of documents. Same is hereby expunged from the record of this court. I so find and hold.

With respect to exhibit DW1 which was tendered by the Claimant through DW, it is noted that same is a certified true copy of Judgment of the FCT High Court in Suit No. FCT/HC/CV/823/2007 between Mrs. Mary Anene Chinedu & Ors. V. Federal Mortgage Bank of Nigeria & Ors. delivered by Hon. Justice M. M. Dodo on 23^rd April, 2015. Exhibit DW1 being a CTC of court judgment even if it had not been tendered, the court can take judicial notice of same by virtue of section 122 of the Evidence Act, 2011. The objection is therefore lacking in merit and is hereby overruled.

Having resolved the preliminary points, may I now consider the two issues identified for determination in this suit.

On issue one (1) which is more of a jurisdictional issue, learned counsel to the Defendant argued that reliefs (a) – (c) of the Amended Statement of Facts are vague and superfluous because two separate and distinct heads of claim were lumped together. That the said reliefs are therefore not competent and should be dismissed by the court.

The law is as rightly argued by learned counsel to the Defendant that, what donates or gives a court jurisdiction to entertain a suit is the statement of claim (in this instance Statement of Facts) and the reliefs which must be predicated on the facts as pleaded in the pleadings. See Globerstar Engr. Co. Limited V. Sylvester Omatseye & Ors (2008) LPELR-4203(CA), and Mr. Joseph Olujimi Kolawole Agbaje V. INEC & Ors. (2015) LPELR-25651(CA), where it was held that, “It is a general principle of law that inconsistent reliefs cannot be claimed for in one action and if claimed for in the same action cannot be tried together. See Aromire V. Awoyemi (1972) All NLR 101 and Ezekwesili & Ors. V. Agbapuonwu & Ors (2003) 4 SC (Pt.1) 33 in which the Supreme Court restated and applied this principle.”

Having set out the position of the law on this issue, may I say that I have carefully looked at the reliefs (a – c) which have been earlier reproduced in this judgment and I cannot see how vague or superfluous they are as argued by the defendant. The defendant who responded to the Claimant’s claims by filing an Amended Statement of Defence without any indication that the claimant’s claims before the court were not understood cannot now make a summersault and state that the claims are vague. I do not therefore find merit in the defendant’s argument that because two reliefs are sought in one leg of claim same is incompetent as to deprive the court of the requisite jurisdiction to entertain this case. I am of the humble view that in order to do substantial justice as opposed to technicality, this case has to be heard on its merit. Issue one is therefore resolved against the defendant.

With regard to issue two, may I state that having considered the submissions of learned counsel, it is clear that this case simply relates to whether the current pension being paid to the Claimant by the defendant is the correct pension he is supposed to be receiving. I say this because it is not in dispute that the claimant worked with the defendant and was later retired from service albeit by the Federal Mortgage Finance Limited as indicated in exhibit CW7. In any case, the Defendant has neither denied that the Claimant was its employee nor that it is currently paying the Claimant pension on level 04.

The employment of the Claimant vide exhibit CW1A-D, his upgrading vide exhibit CW2A-B, his transfer of service from the Defendant to Federal Mortgage Finance Limited vide exhibit CW6, his retirement vide exhibit CW7 and payment of his gratuity and pension on level 04 are all not in dispute in this case.

The narrowed areas of divergence as observed by the court are that, while the Claimant is claiming that in view of the completion of his LLB and BL and subsequent elevation from the rank of Clerk A4 step 4 to the rank of Senior Supervisor Salary Scale B3 step 1 with effect from 17^th May, 1994 his gratuity and pension should be based on his last rank prior to retirement, the Defendant’s argument on the other hand is that in view of exhibit CW6 the Claimant’s services had been transferred to the Federal Mortgage Finance Limited where the Claimant was promoted to supervisor Salary Scale B3 step 1 vide exhibit CW2A-B, and subsequently retired vide exhibit CW7. According to the Defendant since the Claimant was a clerk Grade 3 on salary scale A4 step 3 at the point of his transfer to the Federal Mortgage Finance Limited, he is only entitled to gratuity and pension on that scale from the defendant.

Of relevance is exhibit CW6 which is the letter that transferred the Claimant’s services from the Federal Mortgage Bank of Nigeria to the Federal Mortgage Finance Limited. May I for the purpose of clarity reproduce the said letter:

November 26, 1993.

Mr. K. O. Uzoukwu

C/O FMBN

Calabar.

Dear Mr. Uzoukwu

DECONSOLIDATION OF FMBN – TRANSFER OF STAFF SERVICE

Pursuant to Decree No. 82 of 1993 the Federal Mortgage Bank of Nigeria is being deconsolidated into two enterprises, with the establishment of the FEDERAL MORTGAGE FINANCE LIMITED to take over and continue the retail mortgage lending and savings mobilization which were hitherto carried on by FMBN.

As part of the staff re-organisation for the deconsolidation and in accordance with section 21 of the enabling Decree, your service with FMBN is being transferred to FMF Limited with effect from December 1, 1993.

The transfer is without prejudice to either your present grade or your full entitlement to Pension and Gratuity for your service with FMBN up to the effective date of transfer, and subject to the Terms and Conditions of your employment in FMBN. It is, therefore, confirmed that your service with FMBN will be treated as continuous with your subsequent service in FMF Limited for the purpose of Pension and other retirement benefits.

A copy of this letter is being endorsed to the Managing Director of FMF Limited who will issue further directive to you as may be necessary. You are, therefore, required to formally handover to your Head of Department your current work schedule as well as any property of the Bank (including staff identity cards) that may be in your possession. In this regard you should endorse to the AGM (Human Resources) FMBN, Lagos, a copy of your handing-over note.

The board of the FMBN hereby expresses its appreciation to you for services rendered to the Bank and wishes you a successful career in the FMF Limited.

Please acknowledge the receipt of this letter by appending your signature to the attached duplicate which must be returned to the AGM (Human Resources) FMBN, Lagos.

Yours faithfully,

FEDERAL MORTGAGE BANK OF NIGERIA

ALHAJI DAHIRU ABUBAKAR

GENERAL MANAGER (ADMINISTRATION)

The only reason the Defendant gave for paying the Claimant’s pension on grade level 04 is that with the issuance of exhibit CW6 reproduced above, the claimant’s services had been transferred to the Federal Mortgage Finance Limited and that any subsequent promotion earned by the Claimant after the effective date of the transfer is not the responsibility of the defendant. That since the claimant was on grade level 04 as at the time of his transfer, the defendant can only pay him pension on the said grade level.

Exhibit CW13 indicates that the Defendant has been paying the sum of Five Thousand, Three Hundred and Seventy Five Naira, Sixty Nine Kobo (N5,375.69) which subsequently increased to Six Thousand, Seven Hundred and Nineteen Naira. Sixty One Kobo (N6,719.61). The Claimant informed the court that this amount being paid to him is based on the post of clerk level A4 instead of that of a Senior Supervisor Salary Scale B3 in view of his upgrading pursuant to exhibit CW2A-B.

I believe the Claimant that having completed his LLB and BL and subsequently promoted from the post of Clerk level A4 step 4 to the post of Senior Supervisor, Salary scale B3 step 1 which was his rank prior to his retirement vide exhibit CW7 his pension should be based on the said post of Senior Supervisor Salary scale B3. Of what use is promotion in service if at the end of someone’s career it cannot be reckoned with in computing the benefits of the retiree. I find no merit in defendant’s contention that it can only pay the claimant up to his grade level at the point of his transfer to the Federal Mortgage Finance Limited. I am of the view that doing that will amount to altering his pension benefits to his detriment which is what section 173 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) frowns at.

I equally believe the evidence of the claimant that the Defendant and the Federal Mortgage Finance Limited have been merged. Exhibit CW5 issued by the Federal Mortgage Finance Limited on 18^th September, 2003 clearly corroborates the claimant’s testimony in that regard. The law is trite that documentary evidence is the benchmark for accessing oral evidence. Put in another way, oral evidence adduced before a court of law in relation to a document admitted by the court must be in tandem with the contents of the document which cannot be varied by way of evidence viva voce. See the case of Omodele Ashabi Eya and Others V. Alhaja Risikatu Olopade and Another (2011) LPELR-1184(SC) where the apex court held thus: “The law is well settled that when documentary evidence supports oral evidence, oral evidence led becomes more credible. This is so because documentary evidence serves as a hanger from which to assess oral testimony. See Kindley V. M. G. Gongola State 1988 2 NWLR Pt 77 p493 Omoregbe V. Lawani 1980 3 – 4 SC p.117.”

I am therefore satisfied that with the evidence adduced by the claimant in this suit, he has proved his case as required by law. In the circumstance, reliefs a, b and d are hereby granted. Relief c for the sum of N200,000,000.00 general damages is refused.

For avoidance of uncertainty, the claimant’s case succeeds in part as follows:

It is declared that the Claimant is entitled to receive his monthly pension in accordance with the level that he was retired from, and it is further declared that the current monthly pension being paid to the Claimant does not reflect his status as a level 9 officer (B3 Step 2) as at the time of his retirement from service but rather paid as a level 4 (A4) clerk.
It is declared that the defendant is responsible for the payment of the correct monthly pension to the claimant henceforth and the defendant is hereby restrained from further underpaying the claimant his monthly pension from 2008 when the claimant discovered this anomaly.
Interest of 10% per annum from the date of judgment and until the judgment sum is liquidated.

Since cost follows events, I hold the view that the Claimant is entitled to cost in this suit. Cost of Four Hundred Thousand Naira Only (N400, 000.00) is awarded in favour of the Claimant. See Master Holding (Nig) Limited and Anor V. Emeka Okefiena (2010) LPELR-8637(CA).

Judgment is entered accordingly.

Hon. Justice P. I. Hamman

Judge

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